In Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334, the Court of Appeal considered which law should apply to tort claims against the State based on the Claimant’s extreme mistreatment and torture at “black sites” at the hands of the CIA between 2002 and 2006.

Lane J had held that the applicable law under the Private International Law (Miscellaneous Provisions) Act 1995 was the law of each place (six different countries) where the mistreatment had occurred.

The Court of Appeal disagreed: it was substantially more appropriate for English law to cover all of the allegations.

The essence of the claim was that the British Security and Secret Intelligence Services were aware that the claimant was being subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and intending (or at any rate not caring) that the Claimant would be subject to such mistreatment and torture at interrogation sessions conducted for the purpose of attempting to obtain this information.

The court was asked to determine as a preliminary issue which country’s law governed these claims.

The Defendants relied on the general rule under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995.

This provides that the applicable law will be the law of the country in which the events constituting the tort occurred. Where the claim is for personal injuries, this means the law of the country where the claimant was when he sustained the injury.

It was common ground that the effect of this was that the applicable law under section 11 was the law of each of the six countries in which the Claimant had been mistreated.

However, section 12 of the 1995 Act allows the court to apply another substantive law where it is “substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country”.

Males LJ gave some useful general guidance on how the courts would approach this section.

The first step, he said, is identification of the factors connecting the tort with the different possible jurisdictions:

Drawing the threads together, it is apparent that the court must approach section 12 in a structured way. First, it must identify the factors which connect a tort with the country whose law would be applicable under the general rule (in this case, the laws of the Six Countries) and assess their significance. This requires the court to focus on the conduct of the defendant which is alleged to be wrongful (i.e. the tort). It is their significance in connection with that conduct which matters. The court must then undertake the same exercise for the country whose law is suggested to displace the general rule.

The second step is to decide whether it is substantially more appropriate for the applicable law to be one other than the law dictated by the general rule:

Having assessed the significance of the factors connecting the tort with each of the competing candidates, the court must decide whether it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, thereby displacing the general rule.

The reasonable expectations of the parties are in that respect a significant factor:

In considering this question, the parties’ reasonable expectation as to the law which will apply is likely to be an important factor.

However, the starting point is a heavy weighting of the scales in favour of the general rule:

This is a fact specific evaluation, but it is not a typical balancing exercise in which the scales are equally balanced at the outset. Rather, they are heavily weighted in favour of the general rule, which will only be displaced in a clear case.

Males LJ considered that the judge below had made a fundamental error in failing to focus on the specific allegations of wrongful conduct said to have been committed by the Services:

The alleged tortious conduct consisted of the sending of requests to the CIA in the knowledge or expectation that this would result in the torture or extreme mistreatment of the claimant. Instead, the judge viewed the Services’ conduct as no more than one component “in the overall exercise undertaken by the CIA” (at [62]) or as “only an element of the overall treatment of the claimant by the CIA in the Six Countries” (at [69]). That may be a valid way of looking overall at what happened to the claimant, but this is not a claim against the CIA.

The judge was also wrong to discount the Claimant’s reasons for saying that the factors connecting the tort with the six countries were of little significance. Males LJ pointed out that:

  • The Claimant had no control over (and probably no knowledge of) his location.
  • So far as the Services were concerned, his location was irrelevant (and possibly unknown even to them).
  • There was no reason to doubt that the Claimant had been sent to each of the six countries locations precisely so that he could be detained and tortured outside the laws and legal systems of the relevant countries.

By contrast, there were significant features linking the allegations with the UK:

The judge accepted that the Services’ conduct in requesting information from the CIA was more likely than not to have taken place in England. It would therefore be in accordance with the principle of territoriality for the legality of that conduct to be determined in accordance with English law. He accepted that the actions taken by the Services were undertaken “for the perceived benefit of the UK”, that is to say in the interests of this country’s national security.

And, finally, this also reflected the reasonable expectations of the parties:

While it is true that the claimant himself had no connection with this country, he could reasonably have expected, if he had thought about it during the 20 years in which he has been detained, that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law. That seems obvious, but the judge did not mention it.

The Court of Appeal therefore overturned Lane J’s decision and held that the claim would be governed by English law.

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