High Court decides applicable law in claim against UK Government concerning claimant detained in CIA ‘black sites’


Re: Husayn (Zubaydah) v The Foreign And Commonwealth Office & Ors [2021] EWHC 331 (QB)

The claimant is suing for damages for alleged torts committed by the UK Government.  A declaration under s.6 of the Justice and Security Act 2013 that these were proceedings where there could be closed material was made by consent.

The claimant is held by the United States as a detainee in Guantanamo Bay, Cuba. He alleges that from 2002-2006 he was arbitrarily detained at US “black site” prisons located in six different countries (“the Six Countries”), where he was subjected to extreme mistreatment and torture. The claimant contends that from at least May 2002 the defendants were aware that he was being arbitrarily detained, mistreated, and tortured, in CIA “black sites”. However, he contends that UK intelligence services nonetheless sent questions to the US intelligence agencies to be used in their interrogations of the claimant for the purpose of attempting to elicit information of interest to the UK intelligence services. Further, the claimant contends it is to be inferred that the UK intelligence services sent the questions to the CIA in the knowledge and with the expectation and/or intention that the CIA would subject the claimant to torture and extreme mistreatment at those interrogation sessions, conducted for the specific purpose of attempting to extract information in response to the questions from the UK intelligence services. Consequently, the claimant contends that the defendants are vicariously liable to him for the tort of misfeasance in public office; conspiracy; trespass to the person and false imprisonment; and negligence.  The claimant also claimed, alternatively, that the defendants were liable under the laws of the six countries in which he was detained.

The preliminary issue of applicable law fell to be determined by the High Court which has handed down judgment.

Lane J held that the applicable law was to be determined by reference to the provisions of Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The general rule is set out in section 11. According to section 11(1), the applicable law is the law of the country in which the events constituting the tort or delict in question occur. Unless this general rule is displaced, which happens on very few occasions, section 11(2)(a) produces the result that the applicable law in the context of the present proceedings is the laws of each of the Six Countries. This Court held that this general rule has not been not displaced and so the laws of each of the Six Countries applied to determine tortious liability.   The judge also rejected the claimant’s argument under section 14 of the 1995 Act.  The claimant had argued that the judge should either hold now that it would be contrary to public policy to apply the law of the Six Countries, in the light of the section 6 declaration  or, that the determination of this issue should be adjourned.

Edward Craven and Richard Hermer QC were instructed by Bhatt Murphy for the Claimant and Jonathan Glasson QC was instructed by the Government Legal Department for the Defendants.