Zubaydah v Foreign And Commonwealth Office & Ors: Establishing English Law as the Applicable Law in Tort Claims Involving International Tortious Conduct

Introduction

The case of Zubaydah v Foreign And Commonwealth Office & Ors ([2022] EWCA Civ 334) represents a pivotal moment in the application of English tort law in the context of international human rights abuses. The appellant, Abu Zubaydah, a detainee held by the United States, alleges that UK intelligence agencies—the Security Service (MI5) and the Secret Intelligence Service (MI6)—committed various torts in facilitating his rendition and subsequent torture at CIA-operated "black sites" across six different countries: Thailand, Lithuania, Poland, the United States Base at Guantanamo Bay, Cuba, Afghanistan, and Morocco.

Central to the case is the determination of the applicable law governing the alleged torts: whether English law or the laws of the countries where Zubaydah was mistreated should apply. The initial trial, presided over by Mr. Justice Lane, concluded in favor of the defendants, asserting that the applicable law was that of the respective countries where the tortious conduct occurred. Zubaydah appealed this decision, challenging the court's interpretation of the Private International Law (Miscellaneous Provisions) Act 1995 (the "1995 Act") and arguing that English law should prevail.

Summary of the Judgment

The Court of Appeal, Civil Division, overturned the initial ruling, favoring Zubaydah's appeal. The appellate court held that English law is the applicable law for the tort claims against the UK's foreign intelligence services. This decision marked a significant departure from the initial judgment, emphasizing the importance of focusing on the tortious conduct of the defendants and the reasonable expectations of the parties under the 1995 Act.

The appellate court identified three critical errors in the trial judge's approach:

• Failure to focus on the wrongful conduct of the Services (MI5 and MI6) specifically.
• Incorrect dismissal of arguments that the general rule under section 11 was not applicable due to the extraordinary circumstances of the detention.
• Overlooking the substantial connections of the tortious conduct with England and Wales, thereby neglecting the displacement of the general rule under section 12 of the 1995 Act.

Consequently, the Court of Appeal declared that the law applicable to Zubaydah's claims is that of England and Wales, setting aside the lower court's order.

Analysis

Precedents Cited

The judgment extensively references several key cases and legal principles to substantiate the decision:

• VTB Capital Plc v Nutritek International Corpn [2013] UKSC 5: This case clarified the approach to applying section 12 of the 1995 Act, emphasizing that the general rule is not easily displaced and that 'substantially more appropriate' conditions must be met to apply a different law.
• Al-Jedda v Secretary of State for Defence [2006] EWCA Civ 327: Highlighted that when a defendant operates under foreign law, it aligns with the parties' reasonable expectations, thereby applying the foreign law rather than the UK's.
• Belhaj v Straw [2013] EWHC 4111 (QB): Demonstrated that complicity in unlawful acts abroad by UK entities does not automatically subject claims to English law if the tortious actions occurred under foreign jurisdiction.
• Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) and Rahmatullah v Ministry of Defence [2019] EWHC 3172 (QB): These cases further reinforced the difficulty in displacing the general rule under section 11 unless exceptionally justified.

These precedents collectively establish a framework wherein English law applies by default, unless there is a compelling reason to override this through section 12 of the 1995 Act.

Legal Reasoning

The court's legal reasoning centered on the interpretation and application of the Private International Law (Miscellaneous Provisions) Act 1995, specifically sections 11 and 12. Section 11 outlines the general rule for determining the applicable law in tort claims, favoring the law of the country where the tortious events occurred. Section 12 provides a mechanism to displace this general rule if it is "substantially more appropriate" to apply another country's law.

The trial judge erred by not adequately isolating the tortious actions of the UK's Services when evaluating the applicable law. Instead, the focus was on the overall CIA operations in the Six Countries, which diluted the significance of the UK's specific conduct in sending interrogation requests to the CIA. The appellate court rectified this by emphasizing that the tort claims should center on the Services' direct involvement and the reasonably anticipated consequences of their actions under English law.

Furthermore, the appellate court underscored the principle that the 1995 Act aims to align with the parties' reasonable expectations regarding applicable law. Given that the Services are English entities operating under English legal frameworks, it is "substantially more appropriate" for English law to govern their conduct, especially when this conduct results in international tortious acts.

Impact

This judgment has profound implications for future tort claims involving UK entities in international contexts. By establishing that English law can supersede the general rule under section 11 when dealing with tortious conduct by English authorities, the court has broadened the scope for holding UK services accountable within English legal frameworks, even when actions have international dimensions.

Moreover, it reinforces the doctrine that state entities cannot operate with impunity under the guise of foreign jurisdiction, thereby strengthening the rule of law and the accountability of intelligence services. This decision may encourage more plaintiffs to pursue claims against state entities for international human rights abuses, knowing that English courts may provide a forum for justice.

Additionally, the judgment clarifies the application of section 12 of the 1995 Act, setting a higher threshold for displacing the general rule and emphasizing the importance of focusing on the defendant's specific conduct rather than the broader context of the tortious acts.

Complex Concepts Simplified

Conclusion

The decision in Zubaydah v Foreign And Commonwealth Office & Ors significantly advances the accountability of UK state entities in international tort contexts. By affirming the applicability of English law over foreign laws in cases involving the wrongful conduct of UK intelligence services, the Court of Appeal has reinforced the interplay between domestic legal principles and international human rights obligations.

This judgment exemplifies the judiciary's role in ensuring that state entities cannot evade liability through international legal complexities. It underscores the importance of focusing on the specific tortious actions within the scope of English law, thereby aligning legal outcomes with the principles of justice and the reasonable expectations of the parties involved.

Moving forward, this case sets a crucial precedent for similar tort claims, potentially facilitating greater legal recourse for victims of international human rights abuses involving state actors. It also serves as a reminder of the enduring relevance of foundational legal principles, such as the rule of law and accountability of public officials, even in the most complex international scenarios.