Zubaydah v Foreign, Commonwealth and Development Office and others

Factual and Procedural Background

The Claimant alleges that he was abducted in 2002 by Agency A (a foreign intelligence service) and transferred through a network of secret detention centres in six unnamed foreign jurisdictions (“the Six Countries”). During his confinement he was allegedly subjected to torture and other extreme mistreatment that resulted in serious personal injuries.

The Claimant pleads that between 2002 and 2006 officials of two United Kingdom intelligence bodies (“the UK Services”)—for whom the First and Second Defendants are said to be vicariously liable—sent interrogation questions to Agency A knowing, expecting or intending that the questions would be used during coercive interrogations.

The Claimant sues in the courts of England and Wales for misfeasance in public office, conspiracy to injure by unlawful means, trespass to the person, false imprisonment and negligence. The parties agreed to determine, as a preliminary issue, what system of law governs those tort claims under the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”).

At first instance, Judge Lane applied the general rule in section 11 PILA and held that the applicable law is that of whichever of the Six Countries was the location of the relevant injury. The Court of Appeal (per Judge Males, with whom Judge Thirlwall and the President of the Queen’s Bench Division agreed) found legal error in that approach, reapplied sections 11 and 12, and concluded that English law governs. The Defendants appealed to the Supreme Court. The present opinion is a dissent by Judge Sales.

Legal Issues Presented

1. Whether Judge Lane erred in law in applying sections 11 and 12 PILA such that the Court of Appeal was entitled to set his decision aside.
2. If so, whether the Court of Appeal in turn erred in holding that English law is the applicable law.
3. If both lower courts erred, what law—English law or the laws of the Six Countries—applies to each of the pleaded torts under sections 11 and 12 PILA?

Arguments of the Parties

Claimant's Arguments

• Under section 12 PILA it is “substantially more appropriate” to apply the law of England and Wales because the wrongful conduct was initiated by UK officials acting for the benefit of the United Kingdom.
• Alternatively, section 14(3)(a) PILA displaces the laws of the Six Countries on public-policy grounds.

Defendants' Arguments

• The general rule in section 11(2)(a) PILA applies: the governing law is that of the place where the Claimant sustained each personal injury, i.e. the individual Six Countries.
• The heavy burden in section 12(1)—that it be “substantially more appropriate” to apply another law—has not been met. The factors connecting the torts to the Six Countries (location of injury and of primary tortfeasors) outweigh those linking them to England.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Sales dissented from the majority and reasoned as follows:

• The appellate function is limited: because Judge Lane applied the correct statutory test and made no irrational findings, the Court of Appeal should not have interfered.
• Section 11(2)(a) expressly makes the place where the Claimant sustained personal injury the presumptive governing law. Parliament intended that rule to provide certainty and should not be “emasculated.”
• Section 12(1) sets a deliberately high threshold (“substantially more appropriate”) for displacing the general rule. A comparison of connecting factors shows a stronger nexus with the Six Countries:
  • The Claimant’s injuries and imprisonment occurred there;
  • Agency A personnel inflicted harm while physically present there and were subject to those legal systems;
  • The Claimant, though secretly detained, was within the legal “space” of each country and entitled to its protection.
• Conversely, the links to England—UK Services sending questions from England, acting for the UK’s perceived benefit, and being UK public officials—are insufficient to tip the balance. The UK Services were “opportunistic” rather than prime movers; their involvement was only one element of a broader foreign scheme initiated and executed by Agency A.
• Reasonable expectations of the parties are an unreliable guide in this context; if relevant, they favour the Six Countries because harm was inflicted there.
• Precedent confirms that displacement is “very rare”; even on a finely balanced comparison the statutory requirement of “substantially more appropriate” is not satisfied.

Holding and Implications

Holding: Judge Sales would have ALLOWED the appeal and held that the laws of the Six Countries, not English law, govern each of the Claimant’s tort claims.

Implications: Because this is a dissent, it does not alter the majority’s determination but signals strong judicial concern that courts should be slow to displace the territorial-injury rule in section 11(2)(a) PILA. The opinion underscores the high threshold required by section 12 and may guide future appellate deference in evaluative conflicts-of-law decisions.