Background
The two claimants allege they were detained and tortured by Egyptian security services in Cairo between 27 August and 9 September 2007. They claim that British Security Services (MI5 and/or MI6) shared intelligence about them with the Libyan Security Services and the Egyptian Security Services, which caused or materially contributed to their unlawful detention and torture. The claims are among a broader category of actions brought against the UK Government arising from alleged BSS conduct between approximately 2004 and 2010.
To establish their case, the claimants relied on the “Tripoli cache” — documents discovered in Tripoli following the fall of the Gaddafi regime — which they say evidenced close liaison and intelligence sharing between BSS, Libyan, and Egyptian security services from at least January 2006. The defendants neither confirmed nor denied the authenticity of those documents. The proceedings involve both open and closed elements under a Closed Material Procedure (CMP) pursuant to the Justice and Security Act 2013, with Special Advocates representing the claimants’ interests in closed proceedings.
This ruling arose from a Case Management Conference (CMC) convened to resolve disputes over the defendants’ disclosure frameworks (both open and closed), and to give directions for the disclosure exercise going forward. The central dispute concerned the date range and scope of document searches, including whether the defendants should be required to search approximately 40,000 documents held by the Intelligence and Security Committee of Parliament that were reviewed in the course of the ISC’s 2018 detainee mistreatment inquiry.
The Court’s Holding
Mr Justice Jay resolved the three outstanding disclosure issues. First, on the date range for Category 1 (name search) documents, he fixed the start date at 1 January 2006 and the end date at 31 January 2008, accepting that post-detention communications were probable but would not have continued for a lengthy period. Second, he agreed with the defendants that separate disclosure of documents bearing on a “Libyan detention risk” was unnecessary, as that risk was sufficiently captured within the already-accepted “Libyan Dissemination Risk” category, and there was ample open-source material establishing that the Gaddafi regime tortured political opponents.
On the most contested question — whether the defendants must immediately search the approximately 40,000 ISC documents — the court adopted a phased approach. The first stage requires the defendants to carry out the disclosure exercise they had themselves proposed (reviewing Gibson Inquiry and ISC reports and the product of four UKIC detainee reviews by reference to the claimants’ names and the identified risk issues, disclosing relevant material into closed). A further CMC, to be conducted largely in closed, will then test whether that exercise is sufficient to do justice. If not, the court indicated it would consider progressively ordering disclosure of underlying material and ultimately of the 40,000 ISC documents themselves. In the meantime, the defendants were directed to ascertain the location, availability, and searchability of the ISC documents.
The court also applied the principle from Alame v Shell PLC [2024] EWCA Civ 1500 that significant information asymmetry between parties requires that disclosure be calibrated to place the parties on as equal a footing as practicable, while at the same time emphasising the continuing requirements of proportionality under CPR Part 31. The court noted that the claimants are doubly disadvantaged in a CMP case: they cannot see highly sensitive closed documents, and the defendants hold the documents most capable of illuminating the pleaded issues.
Key Takeaways
- In CMP litigation where claimants face structural information asymmetry — both because sensitive material is withheld and because the government holds the most probative documents — courts will calibrate disclosure obligations accordingly, drawing on the Alame principle that the overriding objective requires parties to be placed on as equal a footing as practicable.
- A phased or staged approach to large-scale disclosure (here, 40,000 ISC documents) is appropriate where it is unclear whether a less burdensome first-stage exercise will suffice; the court will hold successive CMCs to test adequacy before compelling more onerous searches.
- Disclosure of the “Libyan detention risk” as a separate category was declined where it was encompassed within an already-accepted risk category and publicly available material was sufficient to establish the general torture risk without further documentary disclosure.
- The court confirmed that its earlier reasoning in Kamoka v Security Service [2019] EWHC 2283 (QB), concerning “systems failure” and similar-fact evidence in BSS detainee mistreatment claims, remains applicable to claims of this type.
Why It Matters
This ruling is significant for the growing body of litigation in which claimants allege that UK intelligence services were complicit in post-9/11 detention and torture abroad. It confirms that courts will not permit the structural secrecy inherent in CMP proceedings to effectively defeat disclosure obligations, and that the Alame information-asymmetry principle applies in the national security context even though Alame itself did not involve a CMP. The phased disclosure framework adopted here may serve as a template for managing similarly complex, document-heavy intelligence litigation.
The case also illustrates the practical constraints on claimants relying on leaked or found document caches (here the Tripoli cache) where the government maintains a neither-confirm-nor-deny position on authenticity — such material cannot, on its own, cure the informational disadvantage that courts must address through proportionate but meaningful disclosure orders.