Closed Material Procedure
Closed Material Procedure

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Closed Material Procedure
  • The closed material procedure (CMP)—evolution and rationale
  • Obtaining a JSA 2013, section 6 declaration
  • Applying to withhold sensitive material under the closed material procedure—Rule 82
  • Relevance of other litigation
  • Spectrum of disclosure
  • Inadvertent disclosure of documents
  • Closed hearings and closed judgments
  • The role of Special Advocates (or 'Special Counsel')
  • CMP—protective costs orders
  • more

This Practice Note considers the Closed Material Procedure (CMP) which allows the state to disclose sensitive material to the judge without having to disclose the material to its opponent.

The closed material procedure (CMP)—evolution and rationale

For many years, the State has been able to safeguard matters of national security and other associated matters by seeking to withhold disclosure of documents on the basis of an assertion of public interest immunity (PII)—see Practice Note: Public interest immunity.

If the PII application was successful, the advantage for the State was the protection of sensitive information as the documents would not be disclosed to anyone and would not feature in, or have any bearing on, the matters being litigated. However, the downside for the State was that where those documents assisted its position, the State itself could not make use of them, their having been excluded under the PII certificate.

If however the PII application failed, then the documents were disclosable to all parties in the litigation. Thus, if the PII application failed, the State had the choice to:

  1. 'disclose and be damned' as regards any consequences for State matters as a result of the disclosure, or

  2. abandon its case to preserve the secrecy and integrity of such sensitive information

With the increase in the number of damages claims being brought against the State,