Athanasios Sophocleous & Others v The Secretary of State for Foreign and Commonwealth Affairs
| Judge | Lord Justice Hamblen,Sir Stephen Richards,Lord Justice Longmore |
| Judgment Date | 09 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2167 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2018/0238 |
| Date | 09 October 2018 |
[2018] EWCA Civ 2167
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lord Justice Hamblen
and
THE RIGHT HONOURABLE Sir Stephen Richards
Case No: B3/2018/0238
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE KERR
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Chamberlain QC & James Purnell (instructed by Government Legal Department) for the Appellants
Mr Zachary Douglas QC & Mr Malcolm Birdling (instructed by KJ Conroy & Co) for the Respondents
Hearing dates: 19 th July 2018
Judgment Approved
Order at bottom of this judgment.
Introduction
The common law private international rule used by the courts to determine liability in an English court in respect of foreign torts (usually referred to as the double actionability rule) was prospectively abolished by the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”) for all torts except defamation. But it casts a long shadow because section 14(1) of the 1995 Act expressly provides that its provisions do not apply to “acts or omissions giving rise to a claim which occur before the commencement” of the relevant Part of the Act. The 1995 Act has itself been largely superseded by the provisions of the Rome II Convention but that likewise only applies to events occurring after its entry into force.
The present appeal from Kerr J relates to alleged torts committed during the Cyprus Emergency sixty years ago between 1956 and 1958. Accordingly the old common law rule of double actionability applies. In the last edition of Dicey and Morris, Conflict of Laws published before the 1995 Act (12 th edition (1993)) the double actionability rule was stated as follows in rule 203:-
“(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both
a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and
b) actionable according to the law of the foreign country where it was done.
(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.”
This is the rule which governs the issues arising on this appeal. It is derived from Phillips v Eyre (1870) LR 6QB 1 and Boys v Chaplin [1971] A.C. 356.
The Secretaries of State appeal, with permission from Kerr J, from his decision determining (as a preliminary issue) that English law alone (rather than both English law and Cyprus law) governs the personal injury proceedings brought in this country by 34 individuals.
The claimants seek damages for personal injuries sustained in Cyprus, as a result of alleged assaults perpetrated in Cyprus by members of the UK armed forces, seconded British police officers and servants or agents of the then Colonial Administration, including the Cyprus Police Force (together “the Security Forces”). The appellants are the defendants to those claims. They are the successors to the Secretaries of State for the Colonial Office and the War Office and are said to be:-
1) vicariously liable and/or
2) jointly liable with the Colonial Administration for acts committed by members of the Security Forces; and/or
3) liable in negligence for allowing or failing to prevent the alleged assaults.
The parties agreed that four preliminary issues could usefully be determined before the main trial:-
1) As a matter of private international law, which law (or laws) applies (or apply) for determining limitation?
2) If Cyprus law applies, whether alone or in addition to English law: what is the relevant limitation period in respect of each of the causes of action?
3) In the event that any of the claims have been brought outside the relevant limitation period under Cyprus law, should such limitation period be disapplied pursuant to section 2 of the Foreign Limitation Periods Act 1984 (“the 1984 Act”)?
4) Are the facts as alleged by the claimants capable of constituting the fraudulent concealment of the civil wrong by the defendants within the meaning of article 68(d) of the Civil Wrongs Law of Cyprus?
This appeal is from Kerr J's determination of the first preliminary issue only. If the judge was right and only English law applies to determine limitation, preliminary issues 2–4 fall away. The importance of the issue lies in the fact that it is the defendants' case that Cyprus limitation law imposes a non-extendable limitation period of two years and that therefore, if Cyprus law applies (whether alone or in conjunction with English Law), the claims will be time barred (unless the claimant can make out a case for fraudulent concealment or persuades the court to disapply Cyprus limitation pursuant to the 1984 Act). This is because it is said that the alleged assaults are foreign torts and must by reason of the “double actionability rule” be actionable under both English and Cyprus law. If they are not actionable under Cyprus law, the claims must fail.
Factual Background
It was agreed between the parties that the first preliminary issue was to be determined on the basis of assumed facts, as alleged in the amended particulars of claim. The Judge therefore proceeded on that basis. The assumed facts were as follows:-
i) The claimants were all resident in Cyprus during the Emergency and all but five are still resident there.
ii) The acts of violence were committed from 1956 to 1958 by the Security Forces. The acts of violence included assaults, shooting in the ear, striking with rifles, rubbing salt into wounds, deprivation of water, sleep deprivation, subjection to electric shocks, being left naked in a small dark space alone for days and, in the case of one claimant, rape.
iii) The British Army soldiers were deployed by the UK government from the UK; they answered to their military commander in the British Army, not to the Governor of Cyprus. The British Army had the power to discipline and dismiss its soldiers through the court-martial system.
iv) The seconded British police officers were paid by the UK government and were nominated by the Colonial Secretary to carry out police duties in Cyprus under his control. The seconded British police officers could be discharged by the UK government.
v) The Governor of the Colonial Administration in Cyprus was appointed by the UK government, which had the power to remove him and the power “to issue instructions to the Governor of the Colonial Administration on all aspects of the administration of Cyprus, including the conduct of security operations”. There was constant dialogue between the Colonial Office, (based in London) and the Colonial Administration (based in Cyprus) including dialogue on important matters of security policy, which required the consent of the UK government. The British Treasury controlled the budget for counter-insurgency operations in Cyprus during the Emergency.
vi) Security operations in Cyprus at the time were coordinated by local “District Security Committees”, each comprising a senior British Army officer and a senior police officer, usually a seconded British police officer.
vii) The UK government “knew, or ought to have known, that interrogation techniques amounting to assault, battery and torture were being used to obtain intelligence from detainees in Cyprus”. Further, the UK government and the Colonial Administration “carefully coordinated their responses to allegations of ill-treatment by the Security Forces in Cyprus”. Some of those detained in Cyprus were removed to the UK under statutory authority (the Colonial Prisoners Removal Act 1884).
No defence was filed before the hearing but, following his judgment, the Judge directed the defendants to file a Defence. Consistently with the Judge's judgment, that defence is pleaded by reference to English law; it is, however, expressly stated as being without prejudice to the defendants' arguments on this appeal that the law of Cyprus should also govern the liability of the defendants.
On 13 th April 2018 the Judge gave directions leading to trial with a provisional time estimate of 115 days between 2 nd October 2019 and 8 th April 2020.
The Law
The Foreign Limitation Periods Act 1984 (“1984 Act”) governs limitation in claims where the law of any other country is to be taken into account. Section 1 provides that where foreign law falls to be taken into account in English proceedings that includes the foreign law of limitation, unless the law of England and Wales also falls to be taken into account, in which event the limitation laws of both countries apply, the effective limitation period being the shorter of the two. However, section 2 provides an exception: where the outcome under section 1 would conflict with public policy, section 1 is disapplied to the extent that its application would so conflict. By section 2(2) the application of section 1 conflicts with public policy “to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings …”. It is therefore necessary to determine whether foreign law falls to be taken into account; this has to be determined in accordance with rules of private international law.
The parties agree that in order to determine the first preliminary issue it is necessary to decide where in substance the cause of action arose in the case of each of the three torts alleged. It is agreed that if the cause of action arose in England, then the law of England and Wales applies and no other law. However, if the...
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