Mellat v HM Treasury

Judgment

Mr Justice Collins:

The Claimant is making an application pursuant to section 63 of the Counter-Terrorism Act 2008 which seeks to set aside financial restriction decisions affecting it in the Financial Restrictions (Iran) Orders of 2011 and 2012. The Defendant has relied on material which it is not prepared to disclose since it would breach national security to do so and accordingly the special advocates have been appointed to protect the interests of the Claimant in any closed session of the claim. In accordance with the requirements of CPR 79.26 , closed hearings must take place in order to determine what can be disclosed to the Claimant having regard to s.66(2)(b) of the 2008 Act which prohibits disclosure of information where such disclosure would be contrary to the public interest.

In considering what disclosure should be made, it is most important to determine the standard to be applied. In a previous claim against a financial restriction decision made in 2009, it was decided that the standard required by the decision of the House of Lords in Secretary of State for the Home Department –v- AF(No 3) [2010] 2 AC 269 (AF3) applied. This meant that the claimant should be given sufficient information about the allegations against it to enable it to give effective instructions to the special advocates.

There was a hearing fixed before me on 23 May 2014. An issue was raised whether the Defendant should be able to remove from the documentation which has been served on the special advocates material which had not been before the Chancellor of the Exchequer when he decided to make the orders. Consideration of disclosure was adjourned. The issue was dealt with by me at this hearing. I decided that in the circumstances it was not appropriate to permit such removal and that, if it transpired that any of it might assist the special advocates in furthering the Claimant’s interests, it could then be relied on. Otherwise it would remain unused. The Defendant’s argument was based on the limitation by virtue of s.63(3) of the 2008 Act of the approach of this court to applying judicial review principles. This meant, it was argued, that there was no obligation to provide material which was not before the decision maker. I did not hear full argument on this because for reasons I gave in the course of the hearing I took the view that since the documentation had been served the point was academic and in the interest of justice it should remain available to the