Barry Manners & Ors v The Cabinet Office & Ors

Facts

The claimants are passengers and crew of British Airways flight BA149, who allege they were detained and mistreated by Iraqi troops following the invasion of Kuwait on 1–2 August 1990. They sued the Cabinet Office, the Foreign, Commonwealth and Development Office, the Ministry of Defence and British Airways plc, alleging that the government defendants failed adequately, or at all, to heed signs, signals and warnings that Iraq was likely to invade Kuwait, and failed to issue advice to British Airways about diverting the flight to protect passengers and crew. The claimants further allege that the government intentionally used the aircraft to deploy to Kuwait a team of military or quasi-military personnel known as "the Increment". In the course of disclosure the government defendants conducted extensive searches and, having identified relevant material, applied to withhold certain documents on grounds of public interest immunity. PII certificates were issued by the interim Permanent Under-Secretary of the FCDO on 16 June 2026, in respect of Cabinet Office and FCDO material, and by the Minister of State at the Ministry of Defence, Lord Coaker, on 23 June 2026, in respect of MoD material. Both the claimants and British Airways urged the court to test the claim rigorously, particularly as to material showing whether UK Special Forces personnel were aboard. Mr Justice Garnham heard open submissions on 28 July 2026, followed by closed submissions from the government defendants alone.

Decision

Issues

• Whether the withheld material would fall to be disclosed but for the public interest immunity claim, and whether its disclosure would create a real risk of serious harm to the public interest.
• Whether that harm could be mitigated by gisting rather than requiring non-disclosure.
• Whether HMG's neither-confirm-nor-deny position on UK Special Forces' presence on the flight was justified.

Reasoning

Garnham J applied the three-stage test established in Chief Constable of West Midlands Police, ex parte Wiley: first, whether the material would otherwise fall to be disclosed; second, whether disclosure would create a real risk of serious harm to the public interest, a test to be applied vigorously by reference to the likelihood and severity of the damage, and having regard to whether that damage could be mitigated through confidential disclosure or gisting; and third, where such a risk exists, whether the public interest in non-disclosure is nonetheless outweighed by the public interest in doing justice in the proceedings. He noted that it is for the Minister or Permanent Under-Secretary to weigh these interests in the first instance and, if not satisfied that disclosure is justified, to certify accordingly so that the court, as ultimate decision-maker, can determine the point. Applying the most recent statement of principle from the Supreme Court in The Secretary of State for Northern Ireland, the judge held that the court must balance the public interest against disclosure with the public interest in the due administration of justice, considering also whether any partial disclosure, such as gisting, could be given. Having heard open submissions from all parties, the judge sat in closed session, hearing only from Ms Cumberland KC for the government defendants, who took him through the withheld material by reference to prepared schedules and the documents themselves. On that basis he concluded that, save for minor points to be reflected in the final disclosure, there was a significant public interest in excluding all of the withheld material. Where gists had been provided by the MoD, he found this amounted to substantial mitigation; where HMG maintained that material could not be gisted at all, he concluded that no measure short of non-disclosure could adequately protect the public interest. On the specific question of Special Forces involvement, pressed by both the claimants and British Airways, the judge held that the government's neither-confirm-nor-deny response was justified, observing that its utility depended on being maintained save in the most unusual circumstances.

Case history