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The underlying private law action brought by the six claimants in this case is for damages for improper detention and mistreatment as part of the “war on terror”, phrased in conventional torts such as false imprisonment, trespass to the person and misfeasance in public office, and public law breaches such as breach of the Human Rights Act 1998 on the basis that the treatment was torture or inhuman or degrading treatment. They had been held at Guantanamo Bay. Various government departments were said to be complicit in the harm suffered: they filed an open defence, but also sought to rely on closed material and to have proceedings that would consider this closed material by way of special advocates (ie keeping the defence away from the Claimants and their lawyers). This was presented as little more than an obvious extension of the principles of public interest immunity and the hearing of some evidence in private through the well-established process of the special advocate; indeed, they suggested that the process of considering and making the relevant PII applications would take some 3 years or more, and so the alternative process suggested would secure expedition. Silber J accepted these arguments: the Claimants appealed, joined by human rights organisations and some media companies.

The Court of Appeal overturned the judgment. Lord Neuberger MR, speaking for the Court, noted that the question was whether in the absence of a specific statutory regime it was permissible to order a private law trial for damages to be heard in private: the unambiguous conclusion was that there was no such power in the absence of a statute to that effect (though the possibility of the parties agreeing to the process was left open). In truth, determined the Court of Appeal, the approach adopted by Silber J was not a matter of developing the common law in a flexible way: rather, the judge had forgotten a fundamental principle of the common law, namely that of open justice and the adversarial process, under which the lawyers of the parties see all the relevant evidence and have the ability to use or test it. In short, the rule was that fair trial involved irreducible minimum requirements that could not be taken away in the absence of specific statutory authority: that could not be provided by the general lan guage as to effective case management in the CPR.