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Zubaydah v FCDO: UKSC holds English law governs UK security services' alleged CIA-related torts abroad; PIL(MP)A 1995 s12 displaces s11; appellate evaluative review; Lord Sales dissents

Published on: 05 March 2024

Published by a LexisNexis Dispute Resolution expert
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Zubaydah v Foreign and Commonwealth Office and others [2023] UKSC 50

What are the practical implications of this case?

This decision is a rarity in two respects. First, it offers one of the few instances in which the general rule in PIL(MP)A 1995, s 11 was set aside by PIL(MP)A 1995, s 12 due to the significance of factors linking the torts to a different forum—here, England. The central message is that, when relying on PIL(MP)A 1995, s 12 to displace PIL(MP)A 1995, s 11, the court scrutinises how the key elements of the torts connect with each of the competing countries whose laws are said to govern. That assessment calls for a careful examination of the pleadings, a step taken only by Lord Sales in his dissenting judgment. Secondly, the case is unusual because, rather than pinpointing errors of law in the courts below, the Supreme Court held that the lower courts went wrong in the way they approached the application of the law...

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