Zubaydah v. Foreign, Commonwealth and Development Office and Others [2023] UKSC 50
On Appeal From: [2022] EWCA Civ 334
Parties Involved
Respondent: Mr. Zubaydah (Claimant)
Appellants: Foreign, Commonwealth and Development Office, Home Office, and Attorney General
Representation
Justices: Lord Lloyd-Jones, Lord Kitchin, Lord Sales, Lord Burrows, Lord Stephens
Hearing Details
The Supreme Court deliberated on the preliminary issue of the applicable law for torts alleged to have been committed by the UK Security Service and the UK Secret Intelligence Service (“UK Services”).
Key Facts
- Background of Claimant: Mr. Zubaydah, a Palestinian national, has been detained without trial by the U.S. authorities since 2002 and is currently held at Guantánamo Bay.
- Allegations:
- From 2002 to 2006, the CIA allegedly subjected Mr. Zubaydah to extreme mistreatment and torture at secret detention facilities (“black sites”) in Thailand, Poland, Morocco, Lithuania, Afghanistan, and Guantánamo Bay (“the Six Countries”).
- The UK Services purportedly sent questions to the CIA to elicit information from him, implicating them in the alleged torture.
- Legal Claims: Mr. Zubaydah seeks compensation for personal injuries, asserting torts such as misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence.
- Legal Question: The preliminary issue concerned whether the governing law for these torts should be the law of England and Wales or the laws of the Six Countries.
Main Legal Issues
- Applicability of Private International Law: Does the Private International Law (Miscellaneous Provisions) Act 1995 (PILA) favor the law of England and Wales or the laws of the Six Countries?
- Relevance of Tort Elements: How should the actions of the UK Services and the CIA be weighed in determining the applicable law?
Judgment
The Supreme Court, by a majority, dismissed the appeal and held that the law of England and Wales applies to the claim.
Observations and Legal Principles
Majority Opinion
- PILA Provisions:
- Section 11 of PILA sets a general rule that the applicable law for tort claims is the law of the country where the tort occurred, specifically where the injury was sustained.
- Section 12 allows this general rule to be displaced if another country’s law is substantially more appropriate.
- Factors Reducing Significance of the Six Countries:
- The claimant was involuntarily present in the Six Countries after being unlawfully rendered.
- The UK Services did not know or attempt to identify his locations.
- The black sites were specifically chosen to avoid the application of local laws.
- The tortious acts spanned multiple jurisdictions, diminishing the relevance of any single country’s law.
- The primary tortfeasors (CIA agents) acted independently of the Six Countries.
- Factors Connecting the Torts to England and Wales:
- The alleged torts were committed by UK executive agencies under English law.
- The events partly occurred in England and partly in CIA black sites.
- The purported actions were carried out under powers conferred by English law.
- England and Wales represent a substantially more appropriate legal framework for resolving these claims.
Dissenting Opinion (Lord Sales):
- Support for the General Rule: The injuries and imprisonment occurred in the Six Countries, making their laws the starting point under PILA Section 11.
- Role of CIA Agents: Since the CIA agents were present and acted in the Six Countries, their actions should be judged by the respective local laws.
- UK Services’ Role: The UK Services were not the prime movers in the alleged scheme, reducing the significance of connections to England and Wales.
- Conclusion: The laws of the Six Countries were more appropriate than the law of England and Wales.
Decision
The Supreme Court determined that the law of England and Wales applies to the claims, emphasizing the substantial connection between the alleged torts and the UK Services, while recognizing the unique factual matrix of the case.
