Littrell v United States of America (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,LORD JUSTICE HOFFMANN,LORD JUSTICE NOURSE |
| Judgment Date | 12 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1112-5 |
| Docket Number | QBENI 92/0854/E |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1993 |
[1993] EWCA Civ J1112-5
(Sir Gervase Sheldon)
Before: Lord Justice Nourse Lord Justice Rose and Lord Justice Hoffmann
QBENI 92/0854/E
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
MR. M. MENDELSON Q.C., MR. A. BUCHAN and MR. M. SHAW (instructed by Cunningham John & Co. of Thetford, Norfolk) appeared on behalf of the Appellant
MR. C. FALCONER Q.C. and MR. T SALAMON Q.C. (instructed by Nabarro Nathanson of London W1X 5FL) appeared on behalf of the Respondent
The Plaintiff, with the leave of the judge, appeals against a decision of Sir Gervase Sheldon sitting as a High Court Judge on 8th June 1992. He ordered, on the Defendant's application under Order 12 Rule 8 1(h) that the court decline jurisdiction on the ground that the Defendant is immune from suit. As will appear, the argument before this court has not proceeded on the same basis as before the judge.
The Plaintiff was a Staff Sergeant in the United States Airforce stationed for 5 years prior to December 1987 in the United Kingdom. He developed asthma. On 1st December 1987 he suffered an asthma attack at home and was taken for treatment to the United States Military Hospital at the United States Base at Lakenheath. The treatment involved the administration of an intravenous drip, by reason of which the Plaintiff claims he lost the use of his right arm. He was discharged from the United States Airforce in August 1989 as being medically unfit. He now lives in the United States and receives a disability pension from the United States Government.
In the United States he claimed compensation. This was rejected by letter in December 1989 on two grounds: first, his treatment met acceptable standards of medical care; secondly, his claim was barred by the doctrine established by the Supreme Court in U.S. -v- Feres (1950) 340 US 135, namely that the United States Government was not liable under the Federal Tort Claims Act for injuries to servicemen sustained on active duty as a result of the negligence of others in the armed forces.
The Plaintiff did not take matters further in the United States. But on 21st November 1990 he issued a writ in England naming the United States of America as first defendant and the United Kingdom's Ministry of Defence as second defendant. On 14th November 1991 Mr Robert Carnwath QC sitting as a Deputy High Court Judge, in a decision reported in 1992 3 AER 218, struck out the action against the second defendant on the ground that the Status of Forces Agreement (SOFA) (to which I will come later) did not, on its proper construction, confer on the Plaintiff any right of action against the United Kingdom Government. Sir Gervase Sheldon followed Mr Carnwath's construction of SOFA. The Plaintiff's appeal against Mr Carnwath's decision has been abandoned. For it is now common ground between the parties that, contrary to the basis on which the matter proceeded before Mr Carnwath, SOFA, as such, has never been incorporated into English municipal law: the statement upon which the parties relied below in Halsbury's Laws 4th Edition Volume 18 para 1611 is inaccurate.
The submissions before this court have been directed to two questions. First, what, if any, relevance to the Plaintiff's claim has SOFA? Secondly, should the Defendant's conduct giving rise to the Plaintiff's claim be characterised as acta jure gestionis (i.e. of a private or commercial law character in relation to which the defendant government is not immune from suit) or acta jure imperii (i.e. the exercise of sovereign, immune, authority).
Before setting out the rival contentions it is convenient to identify the potentially material terms of SOFA and the legislation.
SOFA was made in June 1951 between the parties to the North Atlantic Treaty. It has been ratified by the governments of the United Kingdom and the United States of America. It regulates the stationing of the forces of member states in each others' territory.
I adopt Sir Gervase Sheldon's summary.
"It deals with a variety of problems likely to arise in such circumstances —from the obligation of the members of the visiting forces "to respect the law of the receiving state" (i.e. "the Contracting Party in the territory of which the force is located") (Article II); to exceptions from passport, visa and immigration regulations (Article III); to the need for driving permits (Article IV); to the wearing of uniform (Article V); to the possession and carrying of arms (Article VI); and to the respective jurisdictions of the receiving state and the 'sending state' (i.e. "the Contracting Party to which the force belongs") in criminal and disciplinary matters (Article VII). Article IX deals with such diverse subjects as the purchase by members of the visiting forces of goods and services, the provision for the Force of buildings, facilities and services and the employment of local labour. Article IX, paragraph 5, also provides that "when a force…..has at the place where it is stationed inadequate medical or dental facilities, its members or their dependants may receive medical and dental care, including hospitalisation, under the same conditions as comparable personnel of the receiving state." Taxation is the subject of Article X, and Customs that of Article XI."
Article VIII deals with claims for personal injury and damage to property resulting from the activities of a visiting force or its members. By paragraph 4 each contracting party "waives all its claims against any other contracting party for injury or death suffered by any member of its Armed Forces while such member is engaged in the performance of his official duties." Paragraph 6 deals with tort claims against members of visiting forces arising from acts not committed in the performance of official duties and paragraph 7 with claims arising from the unauthorised use of official vehicles. Paragraph 9 precludes an immunity claim by a sending state for the member of its force against local civil jurisdiction except in relation to enforcement of judgments arising from the performance of official duties.
Paragraph 5 provides:
"Claims (other than contractual claims and those to which paragraphs 6 and 7 of the Article apply) arising out of acts or omissions of members of a force or a civilian component done in the performance of official duty or out of any other act, omission or occurrence for which a force or a civilian component is legally responsible and causing damage in the territory of the receiving state to third parties other than any of the Contracting Parties, shall be dealt with by the receiving state in accordance with the following provisions."
Provisions follow which set out the procedure for dealing with claims and they include an agreement in 5(e) for the distribution between the Contracting Parties of the cost incurred in satisfying claims of 25% to the receiving state and 75% to the sending state where one sending state is responsible.
The Visiting Forces Act 1952 enacted a variety of provisions, notably in relation to criminal jurisdiction, to enable the government to ratify SOFA (see per Lord Simonds LC Hansard 26 June 1952, columns 451 and 452) although the Act itself makes no reference to SOFA. Section 9 establishes machinery for satisfying civil claims but the jurisdictional basis for such claims is not referred to in the Act. The Visiting Forces (Designation) Order 1954 No. 634, made under s1(2) of the Act, designated the United States as one of the countries to which the Act applied. s8(2) of the Act enabled an Order in Council to exempt a visiting force or its members from the operation of specified enactments and to confer on such a force or its members any privilege or immunity to the extent, in each case, appropriate to home forces. Such an order was made by the Visiting Forces and International Headquarters (Application of Law) Order 1965 No. 1536.
The State Immunity Act 1978 removed, by s5, state immunity "as respects proceedings in respect of (a) death or personal injury or (b) damage to or lose of tangible property caused by an act or omission in the United Kingdom." But s16(2) excluded from the ambit of that Act proceedings in relation to armed forces of a state while present in the United Kingdom and expressly made the 1978 Act subject to the Visiting Forces Act 1952. Accordingly, save for a submission on behalf of the Defendant as to the inference to be drawn from s16(2) as to the legislature's then state of mind, it is common ground that the 1978 Act is for present purposes immaterial.
The Crown Proceedings (Armed Forces) Act 1987 repealed s10 of the Crown Proceedings Act 1947 so as to permit proceedings for death or personal injury caused by a member of the armed forces while on duty to be brought against the Crown by a member of those forces.
Against that background I turn to the submissions made to this court.
As to the first question, Mr Mendelson QC, who did not appear below, submitted on behalf of the Plaintiff that, contrary to the submission made below, SOFA is irrelevant to the present claim. Immunities of the sovereign state itself are not referred to in SOFA and form no part of it. Further or alternatively SOFA is not part of English law by legislation or otherwise. Although parts of it were anticipated by the provisions of the Visiting Forces Act 1952, Article VIII of SOFA, in so far as it provides a jurisdictional basis for claims, as distinct from the machinery for dealing with them, was not so enacted. The only exceptions, immunities and privileges...
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