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blind-justiceFollowing a further day of argument in the Bank of Mellat v HM Treasury proceedings, Lord Neuberger has made a statement in open court elaborating on the reasons why the Court yesterday concluded that it could, if necessary, consider the closed judgment of Milling J at first instance.

The full text of that statement is not yet available on the Supreme Court’s website and so to cater for those of us eager to dissect the Court’s reasoning we have set it out in full below [Update: as of 22 Mar 2013, it is now available here]:

“Yesterday morning, having heard full argument on the issue the previous day, we decided, for reasons to be given later – and, it should be added, by a majority of six to three – that we had power to consider the closed judgment of Mr Justice Mitting (“the closed judgment”) in this case. This would involve part of this hearing being conducted in private without Bank Mellat or its representatives being present. We also indicated that, on the basis of the arguments we had so far heard, we were not persuaded that it was necessary to take such a course. “The substantive appeal concerns the validity of an order made by the Treasury in 2009, which significantly and detrimentally affected the Bank’s business. We have also heard the whole of the Bank’s argument and certain interested parties and in response from the Treasury on the substantive appeal. The Treasury now applies for us to look at, and hear brief submissions on, the closed judgment of Mr Justice Mitting on the basis that we cannot be wholly confident of disposing of the bank’s appeal justly without considering the closed judgment. We are very dubious indeed whether this will turn out to be the case and we are also sceptical whether as full an open gist of the judgment has been provided as should have been possible. However, an incidental vice of the closed material procedure is that unless and until an appellate court sees the judgment it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted.

“The closed judgment is, we have been told, much briefer than the main open judgment of Mitting J, but it may just conceivably contain relevant material for the purpose of disposing of this appeal. It is closed because it contains material which he decided should not be made public on the grounds of public interest and national security. We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives.

“It must be emphasised that this is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing. Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a Judge, we have concluded that, on an appeal from a decision in a case where a Judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly.

“We emphasise that (i) this is course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly, (ii) the party who is excluded, in this case Bank Mellat should be given as much information as possible about the content of the evidence and arguments presented at any closed hearing and the contents of any closed judgment, (iii) the interests of that party should be protected as far as possible by the full involvement of special advocates at the closed hearing, and (iv) when we give our judgment, we will try to avoid placing any reliance on the closed material, and, in so far as it is necessary to do so, to keep any reliance to a minimum and give as much detail about that material to Bank Mellat and the public as we properly can.

“No doubt in due course when we have completed the closed hearing and Mr Brindle [for Bank Mellat] has made his closing submissions, and we in due course consider the matter and give our judgment, we will have quite a few things to say about this unhappy procedure.”

There is much to take away from so short a statement, not least the ominous threat at its conclusion, but a particular point of interest is the seemingly irreconcilable tension between the Court’s decision only to consider the judgment if necessary and the arguably trite statement that the Court will not be able to assess the judgment’s relevance without first reviewing it.  The need to read the statement before deciding whether it needs to be read is not just an incidental vice of the closed material procedure; it is an inevitable fallacy.