Abu Zubaydah alleged that UK intelligence services supplied questions to the CIA knowing he would be mistreated to obtain answers. Before any trial of those allegations, the courts had to decide which law governed his civil claim. The place of injury and the place from which the questions were allegedly sent pointed in different directions.
The claim
At the time of judgment, Abu Zubaydah had been detained without trial by US authorities since March 2002. He alleged that, from at least May 2002 until at least 2006, the UK services supplied questions while aware of his detention and torture. His claim concerned injuries allegedly sustained while the CIA sought answers to those questions at sites in Thailand, Poland, Morocco, Lithuania, Afghanistan and Guantánamo Bay.
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There have been no findings of fact. The preliminary issue was decided on assumed facts taken from his pleaded case, and the defendants neither confirm nor deny the allegations. It is not alleged that the UK services took part in his capture, rendition or detention, were present at the mistreatment, had direct contact with him, or knew his precise location. He is a Palestinian national with no relevant connection to the United Kingdom or to those six countries other than his detention. He sues the Foreign, Commonwealth and Development Office, the Home Office and the Attorney General as vicariously liable for the services.
The English-law torts pleaded are misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence. False imprisonment is not itself a personal-injury claim under the statute, but the parties agreed that one law should govern all the claims: either the law of England and Wales or the law of each of the six countries. Neither side contended that United States law should apply across the board.
The choice-of-law rules
Sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 determine the applicable law. Where elements of the events constituting the tort occur in different countries, the general rule for a personal-injury claim is the law of the country where the person was when the injury was sustained. It was common ground that this pointed to the laws of the six countries. Section 12 displaces that rule only if, after comparing the significance of the factors connecting the tort with that law and with another country, it is substantially more appropriate for the other law to apply. The threshold is exacting. An appellate court may interfere with the judge’s evaluation only for a clear error of law or a conclusion not reasonably open.
The courts below
Lane J held that the connection with the six countries was not materially reduced by the claimant’s lack of control over his presence, the services’ indifference to location, or the use of sites chosen so that local law would not in practice be invoked. He treated the services’ conduct in England as of limited significance because it was only part of the CIA’s overall treatment, and held that English law was not substantially more appropriate.
The Court of Appeal held that he had erred by focusing on the CIA’s overall conduct rather than the torts alleged against the UK services, and by discounting factors that reduced the significance of the six countries while downplaying strong connections with England and Wales. It declared that the law of England and Wales applies.
The majority decision
Lord Lloyd-Jones and Lord Stephens, with whom Lord Kitchin and Lord Burrows agreed, held that those errors justified the Court of Appeal in intervening. They also held, however, that the Court of Appeal had itself erred. Sections 11 and 12 require attention to the tort, not merely to the defendants’ wrongful conduct. On the pleaded case, misfeasance, conspiracy and negligence are actionable only on proof of damage, and the claims in trespass and false imprisonment allege joint liability with the CIA. Focusing only on the sending of questions in England left out the CIA conduct that inflicted the injury.
The majority gave less weight than usual to the place of injury. On the assumed facts, Abu Zubaydah was taken to secret sites against his will and did not know where he was. The UK services were not said to have known or cared which country he was in. The locations were chosen to keep detention outside the practical reach of local law. The alleged perpetrators were CIA personnel and it was unlikely that particular injuries could now be assigned to individual countries.
Substantial factors pointed the other way. The claimant sues UK departments for the acts of UK security officials. Those officials’ relevant acts and omissions were more likely than not committed in England, for the perceived benefit of the United Kingdom, by executive agencies acting officially under English law and subject to English criminal and public law. Comparing the two sets of factors, the majority held that it was substantially more appropriate for the law of England and Wales to apply.
Lord Sales’s dissent
Lord Sales did not accept that Lane J had made an error of law; differences about the weight of factors were, in his view, within the statutory evaluation. He agreed that the Court of Appeal had concentrated too narrowly on the services’ conduct. Applying sections 11 and 12 himself, he would have held that the laws of the six countries remained applicable. Parliament had treated the place of injury as presumptively the most significant element. The claimant was within the protection of those laws even though access to local courts was denied, and the CIA agents who imprisoned and injured him were present there and answerable under those laws. The services’ involvement was peripheral: they took advantage of a course of conduct begun and continued by the CIA for the CIA’s own purposes. In his view, earlier authority, including Belhaj v Straw, supported that conclusion, and it was not substantially more appropriate to apply English law. The statutory regime is weighted towards the general rule and is neutral as to which party a particular law advantages.
Public policy
Section 14 prevents the application of foreign law so far as that would conflict with principles of public policy. That question was not before the Supreme Court. The majority noted the artificiality of deciding the governing law without it, recorded that they expressed no view, and observed that a later court might need to consider section 14.
Verdict: By four votes to one the Supreme Court dismissed the government departments’ appeal. The law of England and Wales governed the claims. Liability and damages were not decided, and the possible effect of public policy under section 14 was left open.
Source: Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50
