Athanasios Sophocleous & Others v (1) Secretary of State for the Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 12 January 2018 |
| Neutral Citation | [2018] EWHC 19 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X01164 |
| Date | 12 January 2018 |
[2018] EWHC 19 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
Case No: HQ15X01164
Mr Zachary Douglas QC & Mr Malcolm Birdling (instructed by KJ Conroy & Co) for the Claimants
Mr Martin Chamberlain QC & Mr James Purnell (instructed by Government Legal Department) for the Defendants
Hearing dates: 27 th and 28 th of November, 2017
Judgment Approved
Introduction
In these claims, the 34 claimants complain of assaults, beatings, rape and other acts of violence allegedly inflicted from 1956 to 1958 in Cyprus during the “Cyprus Emergency” (the Emergency) by agents of the United Kingdom government and of the then Colonial Administration of Cyprus.
I am required to decide the following preliminary issue, which is the first of three preliminary issues ordered by Master Kay QC: “as a matter of private international law, which law (or laws) applies (or apply) for determining limitation?”
The claimants were all resident in Cyprus during the Emergency. All but five still are resident there. The defendants are the successors to the Secretaries of State for the Colonial Office and the War Office. They are sued as representing the Crown in right of the government of the United Kingdom.
The claimants contend that the defendants are (i) vicariously liable for the acts of violence alleged (ii) liable as joint tortfeasors with the Colonial Administration and (iii) liable for negligence, i.e. breach of a duty of care by allowing the acts of violence to take place or failing to prevent them.
The second and third preliminary issues are not before me. They are as follows. If Cyprus law applies, whether alone or in addition to English law, (2) 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)?
A fourth preliminary issue for determination has also been formulated, as follows: 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 issue too may need to be decided in due course.
It is agreed between the parties that the first preliminary issue, now before me, is to be treated as one of law to be determined on the basis of assumed facts, as alleged in the amended particulars of claim, at paragraphs 18 to 64. I will therefore proceed on the basis that those pleaded facts are true, although the defendants have not yet served their substantive defence.
The tortious acts allegedly committed in the 1950s fall outside the temporal scope of the Private International Law (Miscellaneous Provisions) Act 1995, whose material provisions do not apply to “acts or omissions giving rise to a claim which occur before the commencement of this Part” (section 14(1)). Nor do the material provisions of EU Regulation 864/2007 (known as “Rome II”) apply except to events occurring after its entry into force (article 31).
It is agreed that the issue of limitation is governed by the relevant provisions in the 1984 Act. 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 both countries' limitation laws apply, the effective limitation period being the shorter of the two.
There is an exception enacted by section 2 of the 1984 Act: 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 agreed between the parties that in order to determine the first preliminary issue I am required to decide, first, where in substance the cause of action arose in the case of each of the three torts alleged; and secondly, if the answer is Cyprus, whether the court should instead apply English law, the lex fori, to the exclusion of Cypriot law, the lex loci delicti.
Assumed Facts: Overview
I am required to assume the following facts, to which the defendants have not yet pleaded. The acts of violence were committed from 1956 to 1958. The perpetrators were soldiers in the British Army, seconded British police officers and agents of the Colonial Administration, collectively referred to as “the Security Forces”.
The British Army soldiers were deployed by the United Kingdom government from the United Kingdom. They answered to their military commander in the British Army, not to the Governor of Cyprus. The seconded British police officers were paid by the United Kingdom government and were nominated by the Colonial Secretary to carry out police duties in Cyprus under his control.
The British Army had the power to discipline and dismiss its soldiers through the court-martial system, as happened in one case where two British Army soldiers were convicted of assaulting the 11 th claimant. The seconded British police officers could be discharged by the United Kingdom government.
The Governor of the Colonial Administration in Cyprus was appointed by the United Kingdom government, which also had the power to remove him and “to issue instructions to the Governor of the Colonial Administration on all aspects of the administration of Cyprus, including the conduct of security operations” (amended particulars, paragraph 54(c)).
There was constant dialogue between the Colonial Office, based in London, and the Colonial Administration, based in Cyprus, including on important matters of security policy, which required the consent of the United Kingdom government. The Treasury controlled the budget for counter-insurgency operations in Cyprus during the Emergency (paragraphs 54(c), (f) and (g)).
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 (paragraph 54(d)). British Army personnel participated directly in the acts of violence committed against 21 of the 34 claimants (paragraph 60(d)).
Some of those detained in Cyprus were removed to the United Kingdom under statutory authority (the Colonial Prisoners Removal Act 1884) (paragraph 59(e)). The Colonial Office co-ordinated deportations from Cyprus and detention of deportees in the Seychelles (paragraph 61(h)).
The United Kingdom 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” (paragraph 59(d)). Further, the United Kingdom government and the Colonial Administration “carefully coordinated their responses to allegations of ill-treatment by the Security Forces in Cyprus” (paragraph 59(l)).
The assumed acts of violence mainly fall into the following categories, all occurring in at least one case and some in several or many: assaults, shooting in the ear, striking with rifles, tying the hands between the legs impairing breathing, wrapping a blanket round the head, whipping with an iron edged whip tearing the skin from the back, rubbing salt into wounds, punching and kicking, placing a tin bucket on the head and striking the bucket with a hammer, deprivation of water, forcing a person to swallow salt, shining bright light into the eyes, sleep deprivation, placing blocks of ice on the body, subjection to electric shocks, threats of death including placing one claimant in a coffin, simulated executions including simulation of hanging by putting the head through a noose, rape of one claimant, a young female student and a virgin at the time, tightening with screws an “iron wreath” placed around the head causing discharge of blood from the ears and eye sockets, simulation of drowning, a threat to cut off a person's penis and testicles, being left naked in a small dark space alone for days, stubbing out cigarettes on the exposed rectum, slamming the head into a wall and being made to stand for long periods in a stress position.
Reasoning and Conclusions
Where in substance did the causes of action arise?
It is agreed that the court must ask itself the question where in substance the causes of action arose; see Metall und Rohstoff AG v. Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391, per Slade LJ giving the judgment of the court, at 443F:
“First, in deciding whether an alleged tort has been committed in this country or in some other country, our courts will look back over the series of events constituting it and ask themselves ‘Where in substance did this cause of action arise?’ Secondly, in answering this question, the courts will apply exclusively English law.”
Those words draw on Lord Pearson's judgment of the Board of the Privy Council in Distillers Co (Biochemicals) Ltd v. Thompson [1971] AC 458, at 468:
“The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?”
It is agreed that if the answer is that the cause of action arose in England, then the law of England and Wales applies and no other...
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