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High Court Rules on Principle of Closed Material Procedures in Civil Damage Claims

18 Nov 2009

The issue in this case is whether it could be proper and lawful for a court to order that a “closed material” procedure be adopted in a civil claim for damages.   Such a procedure would involve the use of Special Advocates who could receive material which was not seen by the claimants themselves.

The issue arises in the present claim, which has been brought against organs of the State by seven former detainees, who have been held by foreign states at various locations including in each case the United States’ detention facility at Guantanamo Bay.

Such “closed material procedures” have operated in SIAC and in relation to Control Orders (amongst other matters) but could it be lawful and proper for a court to order that a closed material procedure be adopted in a civil claim for damages?

Mr Justice Silber considered that it can be lawful and proper for a court to order that a closed material procedure as defined in the preliminary issue can be adopted in a civil claim for damages.

The criticisms of the claimants and the Interveners that the closed material procedure introduces a new and previously unheard of level of secrecy into the present claims for damages such that they should never be adopted were not upheld.

Daniel Beard acted with others  for the government.

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Daniel Beard QC

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