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Closed material and special applicants

Litigation Letter

Closed material and special applicants

Al Rawi and others v Security Services and others [2009] EWHC 2959 (QB); TLR 24 November; NLJ 27 November p1668

The claim was brought against organs of the state by seven former detainees who had been held in foreign states at various locations, including the US detention facility at Guantanamo Bay, and who alleged the defendants caused or contributed to their detention and alleged ill-treatment by foreign authorities. The justification for the use of special advocates in the closed material procedure was expressed in very wide terms and the only limitation on the use was that they had to be used in exceptional cases as a last resort in order to ensure fairness. The use of the closed material procedure in civil claims for damages was not precluded by any authority, any rule relating to public interest immunity, any provisions in the Civil Procedure Rules or in the Crown Proceedings Act 1947 or any matter which had been raised in the written or oral submissions of the claimants or the interveners. Accordingly, closed material procedure, as was used in criminal proceedings, sitting in camera and using special advocates who are not allowed to disclose secret evidence to their clients, could be used in a civil claim for damages.

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