: Iraqi Civilian Litigation v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 26 January 2015 |
| Neutral Citation | [2015] EWHC 116 (QB) |
| Date | 26 January 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X01235 & OTHERS |
[2015] EWHC 116 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Leggatt
Case No: HQ09X01235 & OTHERS
Richard Hermer QC, Alison Pickup, Maria RocheandAndrew Scott (instructed by Leigh Day) for the Claimants
Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor) for the Defendant
Dan Squires (instructed by Public Interest Lawyers) for the interested PIL claimants
Hearing date: 16 January 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
An important question which needs to be resolved in the Iraqi Civilian Litigation is whether claims have been brought in time or whether they are barred by an applicable statute of limitation. This judgment follows the trial of a short but significant set of preliminary issues to decide one aspect of that question.
The preliminary issues
I will explain and discuss the preliminary issues in this judgment and record my answers to them at the end. The issues are as follows:
"1. As a matter of Iraqi law, and in respect of those heads of claim brought pursuant to rights under Iraqi law, was the primary limitation period of three years provided for in Article 232 of the Iraqi Civil Code suspended by operation of article 435(1) of the Code as a result of the fact that CPA Order 17 rendered it impossible for the claimants to claim their rights in Iraq?
2. If so, and as a matter of English law, is article 435(1) to be disregarded in relation to such heads of claim pursuant to s.2(3) of the Foreign Limitation Periods Act 1984?
3. In any case, and as a matter of Iraqi law:
(a) on what date did CPA Order 17 cease to have effect on new causes of action arising; and
(b) if under article 435(1) the condition to suspend the limitation period is met, does it also suspend the period of 15 years provided for in Article 232?"
The litigation
The "Iraqi Civilian Litigation" is a general description for many hundreds of claims which have been brought in the English High Court by Iraqi civilians against the Ministry of Defence. The claimants are seeking damages for their allegedly unlawful detention and alleged ill-treatment by British armed forces on various dates during the period when British forces were present in Iraq.
That period began on 20 March 2003, when a coalition of armed forces led by the United States and including a large contingent from the UK invaded Iraq. On 1 May 2003, major combat operations were formally declared complete. The US and the UK became occupying powers within the meaning of article 42 of the Hague Regulations and with their coalition partners established the Coalition Provisional Authority ("CPA") in order to exercise powers of government in Iraq on a temporary basis. On 28 June 2004 sovereign authority was transferred from the CPA to a new Iraqi government, but British forces remained in Iraq as part of a Multi National Force ("MNF") established pursuant to resolutions of the United Nations Security Council to assist the Iraqi government in maintaining law and order. The UN mandate for the MNF expired on 31 December 2008 but it was not until sometime in 2009 that British forces withdrew from Iraq.
The claims in the Iraqi Civilian Litigation are made on two legal bases. One basis is the Human Rights Act 1998. The other basis is the law of tort. It is common ground that, pursuant to Part III of the Private International Law (Miscellaneous Provisions) Act 1995, the law applicable to the tort claims is the law of Iraq.
Section 1(1) of the Foreign Limitation Periods Act 1984 states:
"Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter—
(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings …; and
(b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply."
Section 4 of the Act makes it clear that the law of any country "relating to limitation" includes any law relating to, and to the effect of, the "application, extension, reduction or interruption" of any limitation period.
Subject to two exceptions or potential exceptions provided for in section 2 of the Act which I will come to later, it is common ground that in accordance with these provisions the court must apply the Iraqi law relating to limitation, and not English law, in deciding whether the claims founded on the Iraqi law of tort are time-barred.
The evidence of Iraqi law
The principles to be applied when an English court has to decide the effect of a foreign statute are well established and have not been the subject of any dispute. In particular:
a) Matters of foreign law are treated in an English court as matters of fact which must generally be proved by expert evidence.
b) Where the relevant foreign law is contained in a code or other legislation, the relevant question is how a court in the foreign jurisdiction would interpret the legislation.
c) The primary evidence to be used in answering that question is evidence of the opinions of expert witnesses. As with any expert evidence, however, the court is entitled and may be bound to look at the sources on which the experts rely in order to decide what weight to give to their opinions.
At this trial, the court has had the benefit of receiving written and oral evidence from two distinguished experts on Iraqi law. The claimants adduced evidence from Mr Saleh Majid, an Iraqi advocate and attorney with more than 45 years' legal experience. The defendant's expert was Professor Haider Ala Hamoudi who is a member of faculty at the University of Pittsburgh School of Law. Although Professor Hamoudi has never studied or practised law in Iraq, there is no doubt about his scholarship.
Relevant Iraqi limitation law
Iraq has a Civil Code. It is based on the Egyptian Civil Code, which in turn is based to a large extent on the French Civil Code. The experts each gave their own translations of the relevant provisions of the Iraqi Civil Code, which naturally differed slightly from each other and from a published English translation which was included in the bundles for the hearing. I did not perceive any of the differences to be material and I will quote from the published translation.
Article 232 of the Civil Code (in this translation) states:
"A claim for damages resulting from whatever (kind) of unlawful act shall not be heard after the lapse of three years from the day on which the injured person became aware of the injury and of the person who caused it; in all cases the claim will not be heard after the lapse of 15 years from the day of occurrence of the unlawful act."
It is common ground that many of the claims in the Iraqi Civilian Litigation were not commenced until after the expiry of the three year limitation period prescribed by article 232.
The claimants argue, however, that their claims are not time-barred because this limitation period was suspended or interrupted. In particular, the claimants rely on article 435 of the Civil Code, which states:
"(1) The time limit barring the hearing of the case is suspended by a lawful excuse such as where the plaintiff is a minor or interdicted and has no guardian or is absent in a remote foreign country, or where the case is between spouses or ascendants and descendants, or if there is another impediment rendering it impossible for the plaintiff to claim his right.
(2) The period which lapses while the excuse still exists (lasts) shall not be taken into account for the running of the time limitation."
It is the claimants' case that the three year time limit which would potentially bar their claims has at all material times been suspended by a lawful excuse in the form of an impediment rendering it impossible for them to claim their rights within the meaning of article 435. The impediment is said to consist in immunity from suit in Iraq conferred on (amongst others) all British military personnel by Coalition Provisional Authority Order No 17 ("CPA Order 17"). The main purpose of the present preliminary issues is to decide whether this case is correct.
CPA Order 17
CPA Order 17 was originally issued and entered into force on 26 June 2003. A revised version of the Order was issued on 27 June 2004. Section 2 of the Order (in its revised form) states:
"(1) Unless provided otherwise herein, the MNF [and] the CPA … shall be immune from Iraqi legal process.
…
(3) All MNF [and] CPA Personnel … shall be subject to the exclusive jurisdiction of their Sending States. …"
The original Order contained similar provisions.
The following matters are common ground:
a) CPA Order 17 has never been repealed and would be regarded as a valid part of the law of Iraq by an Iraqi court.
b) The effect of section 2 of the Order is to deprive the Iraqi courts of jurisdiction which they would otherwise have over (amongst others) British forces in respect of unlawful acts allegedly committed by them in Iraq.
c) Nothing in the Order prevents claimants from bringing claims in respect of such acts in the English courts.
d) The English courts have jurisdiction over such claims.
The effective period of the Order
There is an issue about exactly when the period covered by CPA Order 17...
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Kamil Najim Abdullah Alseran and Another v MRE and Others
...Order 17 rendered it impossible for the claimants to claim their rights in Iraq: see Iraqi Civilian Litigation v Ministry of Defence [2015] EWHC 116 (QB). 736 The MOD appealed from that decision to the Court of Appeal, which allowed the appeal: see Iraqi Civilians v Ministry of Defence (No ......
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