McGartland & Anor v Secretary of State for the Home Department, Court of Appeal - Civil Division, July 14, 2015, [2015] EWCA Civ 686

Resolution Date:July 14, 2015
Issuing Organization:Civil Division
Actores:McGartland & Anor v Secretary of State for the Home Department
 
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Neutral Citation Number: [2015] EWCA Civ 686

Case No: T3/2014/2772

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr Justice Mitting

[2014] EWHC 2248 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14/07/2015

Before :

LORD JUSTICE RICHARDS

LORD JUSTICE LEWISON

and

LORD JUSTICE McCOMBE

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Between :

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Phillippa Kaufmann QC and Henrietta Hill QC (instructed by Bhatt Murphy Solicitors) for the Appellants

James Eadie QC, Neil Sheldon and Louise Jones (instructed by the Government Legal Department) for the Respondent

Angus McCullough QC and Ben Watson (instructed by the Special Advocates' Support Office) as Special Advocates

Hearing dates : 19-20 May 2015

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Lord Justice Richards :

  1. This is an appeal against a declaration made by Mitting J under section 6 of the Justice and Security Act 2013 (``the 2013 Act'') that proceedings brought by Mr Martin McGartland and his long-term partner, Ms Joanne Asher, are ``proceedings in which a closed material application may be made to the court''. It is one of two cases in which this court has been called upon to consider, at a relatively early stage in the life of the 2013 Act, the correct approach towards an application under section 6. The other is Case No T3/2014/2545, R (Sarkandi and Others) v Secretary of State for Foreign and Commonwealth Affairs. Whilst at a general level the cases have points in common, the specific issues in them are very different. The cases have been heard by different constitutions of the court, albeit with myself as a member of both constitutions, and are the subject of separate judgments. In order to enable each judgment to stand alone, there is an element of repetition between them, in preference to substantial cross-referencing.

  2. The claimants' pleaded claim in the present case is summarised in paragraph 2 of Mitting J's judgment:

    ``[The first claimant] claims to have been an agent of the Royal Ulster Constabulary and/or Special Branch in Northern Ireland between 1987 and 1991. ... He claims that after his cover was blown and he escaped kidnapping by the Provisional IRA he lived in Tyne and Wear under an assumed identity until an assassination attempt was made against him in 1999. Thereafter, he claims that he was the recipient of advice and assistance from the UK State to protect him from further risks to his life and safety. By this claim he seeks to prove that the arrangements which resulted did not adequately fulfil promises made to him by State officials of financial and non-financial support. In consequence, he claims he has not received payments to which he is entitled and his health has been impaired. He also claims that his security may have been compromised by errors in the manner in which he was protected. His partner, the second claimant, claims that she has been caused distress and impairment to her mental health by the same events.''

  3. The Secretary of State filed a limited defence stating that Her Majesty's Government will neither confirm nor deny whether an individual is, or ever has been, an agent of the Security Service and that the application of that policy (``the NCND policy'') deprived her of the ability to plead a positive case in response to the claimants' claim. The proceedings were subsequently stayed by agreement pending the coming into force of the 2013 Act.

  4. After the 2013 Act had come into force, the claimants applied for an order under CPR rule 3.1(2)(m) requiring the defendant to plead a full defence meeting the requirements of rule 16.5, in place of the limited defence based on the NCND policy; whereas the defendant applied under section 6 of the 2013 Act for a declaration permitting closed material applications in the proceedings. The defendant's section 6 application was supported by both open and closed material.

  5. The two applications were heard together by Mitting J. The hearing involved closed as well as open sessions but the judge gave only an open judgment. The claimants had submitted that the defendant's entitlement to rely on the NCND policy should be decided before determining the section 6 application. The judge rejected that submission, made the declaration sought by the defendant under section 6 and dismissed the claimants' application for an order that the defendant be required to plead a full open defence, but without prejudice to the right of the claimants to make a substantially similar application once the steps set out in directions he gave as to the future conduct of the case had been taken.

  6. The central question on the appeal is whether the judge was wrong not to decide the NCND issue before deciding whether to make a section 6 declaration. It is submitted on the claimants' behalf that the NCND issue could and should have been resolved on the material before the judge and that if it had been resolved in the claimants' favour it would have led to a requirement for the defendant to plead a full open defence, which in turn would have enabled the court to form a proper assessment as to whether the conditions for a section 6 declaration were truly made out. It is said that a closed material procedure, shutting the claimants out from full participation in the proceedings, is a measure of last resort which was not justified in the circumstances of the case.

  7. The claimants' case on the appeal to this court was advanced in an open hearing by Miss Phillippa Kaufmann QC and resisted by Mr James Eadie QC on behalf of the Secretary of State. There was also a closed hearing in which Mr Angus McCullough QC, as special advocate, made submissions in support of the claimant's case, and in response we again heard from Mr Eadie.

  8. This open judgment covers all the main issues arising in the appeal, including reference in general terms to arguments advanced in the closed procedure. A separate closed judgment is to be avoided if possible and I do not think that it is needed in this case. The open judgment contains sufficient detail to enable those involved in the closed procedure to understand the court's essential reasoning and conclusions in relation to the arguments advanced.

    The statutory framework

  9. Part 2 of the 2013 Act makes provision for a closed material procedure in civil proceedings. The gateway to such a procedure is section 6:

    ``6. Declaration permitting closed material applications in proceedings

    (1) The court seised of relevant proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.

    (2) The court may make such a declaration -

    (a) on the application of (i) the Secretary of State ... or (ii) any party to the proceedings, or

    (b) of its own motion.

    (3) The court may make such a declaration if it considers that the following conditions are met.

    (4) The first condition is that -

    (a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or

    (b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following -

    (i) the possibility of a claim for public interest immunity in relation to the material ....

    (5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.

    (6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (2)(a) need not be based on all the material that might meet the conditions or on material that the applicant would be required to disclose).

    (7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.

    (8) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material (`a relevant person').

    ...

    (11) In this section -

    `closed material application' means an application of the kind mentioned in section 8(1)(a);

    `relevant civil proceedings' means any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court, (b) the Court of Appeal ....

    `sensitive material' means material the disclosure of which would be damaging to the interests of national security.''

  10. Section 7 provides for a section 6 declaration to be kept under review and to be revoked where appropriate:

    ``7. Review and revocation of declaration under section 6

    (1) This section applies where a court seised of relevant civil proceedings has made a declaration under section 6.

    (2) The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.

    (3) The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.

    (4) The court may revoke a declaration under subsection (2) or (3) -

    (a) on the application of (i) the Secretary of State ... or (ii) any party to the proceedings, or

    (b) of its own motion.

    (5) In deciding for the purposes of subsection (2) or (3) whether a declaration continues to be in the interests of...

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