Ministry of Defence v Iraqi Civilians (Respondents/Claimants)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Master Of The Rolls |
| Judgment Date | 09 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1241 |
| Docket Number | Case No: A2/2015/0651 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 2015 |
In The Matter Of The Iraqi Civilian Litigation
[2015] EWCA Civ 1241
The Master Of The Rolls
Lord Justice Tomlinson
and
Lord Justice Vos
Case No: A2/2015/0651
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Leggatt
HQ09X01235 & Ors
Royal Courts of Justice
Strand, London, WC2A 2LL
Derek Sweeting QC and James Purnell (instructed by Government Legal Department) for the Appellant
Richard Hermer QC, Alison Pickup and Andrew Scott (instructed by Leigh Day) for the Respondent
Hearing dates: 19 October 2015
This appeal raises a short but elusive point concerning the manner in which the English Court applies a foreign law relating to limitation when required to do so by section 1 of the Foreign Limitation Periods Act 1984, hereinafter "the FLPA".
The context in which it arises is the "Iraqi Civilian Litigation." I gratefully adopt, without specific attribution, the description of that litigation, the background to it, the common ground and the issues which arise as set out in the judgment of Leggatt J below, [2015] EWHC 116 (QB). 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, hereinafter "the PILA", the law applicable to the tort claims is the law of Iraq.
The FLPA provides, so far as material:-
" 1. Application of foreign limitation law.
(1) 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.
(2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account.
…
(4) A court in England and Wales, in exercising in pursuance of subsection (1)(a) above any discretion conferred by the law of any other country, shall so far as practicable exercise that discretion in the manner in which it is exercised in comparable cases by the courts of that other country.
(5) In this section "law", in relation to any country, shall not include rules of private international law applicable by the courts of that country or, in the case of England and Wales, this Act.
2. Exceptions to s. 1.
…
(3) Where, under a law applicable by virtue of section 1(1)(a) above for the purposes of any action or proceedings, a limitation period is or may be extended or interrupted in respect of the absence of a party to the action or proceedings from any specified jurisdiction or country, so much of that law as provides for the extension or interruption shall be disregarded for those purposes.
4 Meaning of law relating to limitation.
(1) Subject to subsection (3) below, references in this Act to the law of any country (including England and Wales) relating to limitation shall, in relation to any matter, be construed as references to so much of the relevant law of that country as (in any manner) makes provision with respect to a limitation period applicable to the bringing of proceedings in respect of that matter in the courts of that country and shall include —
(a) references to so much of that law as relates to, and to the effect of, the application, extension, reduction or interruption of that period; and
(b) a reference, where under that law there is no limitation period which is so applicable, to the rule that such proceedings may be brought within an indefinite period.
(2) In subsection (1) above "relevant law", in relation to any country, means the procedural and substantive law applicable, apart from any rules of private international law, by the courts of that country."
Subject to a point as to the applicability of section 2 (3), it is common ground for present purposes that in accordance with these provisions the Court must apply the law of Iraq relating to limitation when deciding whether the claims founded on the Iraqi law of tort are time-barred.
The judge heard evidence as to the law of Iraq from two distinguished experts. The Iraqi Civil Code provides, by Article 232:-
"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 brought in the English court in the Iraqi Civilian Litigation were not commenced until after the expiry of the three year limitation period prescribed by Article 232.
The relevant 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. A set of preliminary issues fell to be determined by Leggatt J the main purpose of which exercise was to decide whether this case is correct.
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. The Order in its revised form states:
" Section 2
Iraqi Legal Process
(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. …
Section 18
Claims
Except where immunity has been waived in accordance with Section 5 of this Order, third-party claims including those for property loss or damage and for personal injury, illness or death or in respect of any other matter arising from or attributed to acts or omissions of CPA, MNF… shall be submitted and dealt with by the Sending State whose personnel… property, activities, or other assets are alleged to have caused the claimed damage, in a manner consistent with the Sending State's laws, regulations and procedures."
The original Order contained similar provisions.
It was common ground before the judge that:-
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 judge decided that the effective period of CPA 17 ended on 31 December 2008. No claim has as yet been brought relating to any alleged act or omission of British Forces after 31 December 2008. It is common ground that the jurisdictional immunity which CPA 17 affords for acts which occurred before 31 December 2008 is of...
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