Zubaydah v Foreign Office. Court of Appeal reverses on the law applicable to illegal rendition cases.

Update 8 June 2023 see Ugljesa Grusic’s further analysis here.

Update 10 May 2023 the Supreme Court’s appeal in the case will be heard in the week of 12 June 2023.

Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334  discusses the same issue as Rahmatullah and Ali v MOD and FCO which I review here (and in which I later inserted the High Court judgment in current case).

What law is applicable to torts allegedly committed by the UK Security Services against a detainee subjected to “enhanced interrogation techniques” by the US CIA. The essence of the claimant’s claim is that the 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 first instance judge had refused to overturn the mosaic of six applicable laws (of the countries involved: Thailand, Poland, the US’ base at Guantanamo Bay, Morocco, Lithuania  [see also Zubaydah v Lithuania at the ECtHR] and Afghanistan) which follows from the standard application of the residual English conflict of laws rules (the EU Rome II Regulation does not apply): these point to lex locus damni. Males LJ to my mind unconvincingly does overturn that general rule, with  some reliance on the Supreme Court in VTB Capital Plc v Nutritek. 

The Court holds [37] that the judge had failed to focus on the tort allegedly committed by the UK Services (with too much emphasis on the treatment of claimant in the six countries, by the CIA); [38] wrongly discounted the reasons advanced by claimant for saying that the factors connecting the tort with the Six Countries were of reduced significance (this includes the fact that the claimant had no control whatever over his location and in all probability no knowledge of it either; and that there was a (jurisdictional) forum shopping element in the transfers to the 6 countries: keeping him away from jurisdictions with less forgiving rules on the practices concerned); and [40] the fact 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.

The reasonable expectations of claimant play a big role in the analysis: claimant could have expected [41] 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.

Throughout the judgment Males LJ puts great emphasis on what he notes [22] as an overarching aim of the relevant Act, which is ‘the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ However that is the Law Commission’s view on the raison d’être of conflict of laws full stop. I am not so sure it can serve as a determinative principle in the application of a specific rule of the Act.

I am not saying that the outcome of the case is wrong. Yet the judgment gives the impression of a correction of the judge’s factual balancing act between the different factors, rather than an error of law, and the emphasis on legitimate expectations feels a bit artificial in the circumstances. Add to this that [35] nobody suggested on the facts of this case that one applicable law might apply to the tort of misfeasance in public office and another to the tort of false imprisonment. Both parties proceeded on the basis that the law applicable to the claimant’s claims as a whole was either English law or the law of the Six Countries, and so did the Court of Appeal. This, too, may make the judgment’s authority limited.

Finally Males LJ holds obiter [51 ff] and correctly that it is too early to decide whether the application of the foreign laws, had they been applicable, would have had to be set aside on the basis of ordre public: while some evidence on the law of the 6 countries had been presented, there had not yet been proper discussion of same.

Geert.