Closed material process application in a civil claim


Re: CF & Ors v The Security Service & Ors [2013] EWHC 3402 (QB)

This is the first case to consider in detail the test applied pursuant to the Justice and Security Act 2013 in determining whether a declaration should be granted permitting a closed material process in a civil claim.

Held: the Justice and Security Act 2013 permitted the State to establish a regime allowing evidence to be adduced in private and under strict conditions which do not threaten national security. This could avoid the need for a concession which threatens or carries injustice for the State. There was also a risk of injustice to the claimant acting against the State, whose case would be met by evidence he never hears and cannot answer. The Court could make a declaration before disclosure had been given and without completing a public interest immunity exercise. The question of whether it was in the interests of justice to make a declaration turned on the specific circumstances of the case and could not properly turn on objections which would arise in every case, as this would subvert the intention of Parliament. The preconditions of the Justice and Security Act 2013, s 6(7) had been fulfilled. Following the Justice and Security Act 2013, s 6(1) a closed material application could be made.

Richard Hermer QC and Dan Squires were involved in this case.