19 November 2009
In a highly controversial judgment on 18 November in the latest stage of Binyam Mohamed's claim against the British government for complicity in his torture, Mr Justice Silber ruled that in principle it is possible for a party to rely on closed evidence and closed pleadings in a civil claim for damages.
This is a marked departure from the prevailing system of "public interest immunity," (PII) where a party may assert, and the Court may accept, that certain material should not disclosed because it would be against the public interest to do so (eg. on the grounds of national security).
The crucial difference is that if a PII certificate is upheld, the material which is not disclosed cannot be relied upon by either party. However, with the closed evidence procedure the Government is seeking, they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the party from whom disclosure is withheld (in this case, and invariably, the claimants) and their legal team would not be able to see it, respond to it or cross-examine witnesses on it.
It's important to note than in civil claims such as these, claimants have to prove their case - doing so with a closed evidence procedure, would mean they would be severely restricted in their attempts to do so.
, partner at Leigh Day & Co who is representing Binyam Mohamed in his civil claim against the British Government comments:
"We are naturally very disappointed that Mr Justice Silber did not see fit to put a halt to the encroachment of secret trials being entertained by the English courts. The point of principle is hugely important, further tipping the scales away from equality in legal claims against the state and we will be vigorously appealing against this decision in the Court of Appeal and, if necessary, all the way to the Supreme Court."
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