The Court of Appeal has allowed an appeal by five Libyans against the striking out of their claims for false imprisonment.
The men, who were alleged to be members of or associated with the Libyan Islamic Fighting Group (LIFG), were subject to immigration detention pending an attempt to deport them to Qaddafi's Libya under the so-called "deportation with assurances" programme (encompassing Jordan, Egypt and Algeria).
They claimed that their immigration detention must have been unlawful when they discovered that the UK, at the same time as negotiating a Memorandum of Understanding to guarantee Libyan compliance with human rights standards, had itself been involved in human rights violations with the US and Libyan Government, most obviously in the rendition to torture of Abdelhakim Bel Haj and Sami Al Saadi, the leaders of the LIFG.
Irwin J struck out the claims on the basis that they were an abusive attempt to re-litigate matters that could have been raised in closed argument in the immigration challenge in Special Immigration Appeals Commission (SIAC) to the deportation with assurances process. He accepted that the Claimants themselves had no knowledge of the facts they now relied upon but that the Special Advocates could have raised the matters or raised similar matters. Giving judgment for the Court of Appeal Flaux LJ reviewed all the key authorities on abuse of process and the Hunter doctrine and then ruled that there could be no abuse of process on the facts, and that special advocates were not privies of those they represented (for the purpose of the abuse of process or issue estoppel doctrines).
Tom de la Mare QC appeared for the Claimants/Appellants. To read the full judgment, please click here.