Iraqi Civilians v Ministry of Defence (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Mance,Lord Neuberger,Lord Reed,Lord Sumption,Lady Hale |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] UKSC 25 |
| Date | 12 May 2016 |
| Court | Supreme Court |
[2016] UKSC 25
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Sumption
Lord Reed
Appellant
Richard Hermer QC
Marie Louise Kinsler
Alison Pickup
Andrew Scott
(Instructed by Leigh Day)
Respondent
Derek Sweeting QC
James Purnell
(Instructed by The Government Legal Department)
(with whom Lord Neuberger, Lady Hale, Lord Mance and Lord Reed agree)
English private international law distinguishes between matters of substance which are governed by the proper law of the relevant issue ( lex causae), and matters of procedure which are for the law of the forum. The distinction was preserved when the English principles relating to the choice of law were amended and partly codified by the Private International Law (Miscellaneous Provisions) Act 1995: see section 14(3)(b). Limitation, which deprives the litigant of a forensic remedy but does not extinguish his right, is for that reason classified by the English courts as procedural. The result was that until the position was altered by statute in 1984, the English courts disregarded foreign limitation law and applied the English statutes of limitation irrespective of the lex causae. This was widely regarded as unsatisfactory, mainly because of the rather technical character of the distinction on which it was based between barring the remedy and extinguishing the right.
The Foreign Limitation Periods Act 1984 provided for the English courts, with limited exceptions, to apply the limitation rules of the lex causae. Section 1 provides:
"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) … the law of England and Wales relating to limitation shall not so apply.
…
(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."
The law of a country relating to limitation is defined by section 4. It means
"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 … references to so much of that law as relates to, and to the effect of, the application, extension, reduction or interruption of that period."
For this purpose, the "relevant law" means
"the procedural and substantive law applicable, apart from any rules of private international law, by the courts of that country."
The question which arises on this appeal is how the Act is to be applied in a case where the foreign limitation law depends for its operation on facts which are not germane to litigation in England.
The claimants are 14 "lead claimants", representative of more than 600 clients of solicitors Leigh Day. They claim to have suffered unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009, for which the Ministry of Defence is liable in tort. It is agreed between the parties that any liability of the Ministry in tort is governed by Iraqi law. Under article 232 of the Civil Code of Iraq, the standard limitation period applicable to claims of this kind in Iraqi law is three years from the day on which the claimant became aware of the injury and of the person who caused it. This action was begun more than three years after most of the claimants must have been aware of these matters.
As far as those claimants are concerned, the fate of their claims may depend on the operation of article 435 of the Civil Code, which is one of a number of provisions suspending the running of time in particular cases. It provides:
" Article 435— (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)."
The circumstance on which the claimants rely as engaging this provision is that Coalition Provisional Authority Order 17, which had and still has the force of law in Iraq, made it impossible for them to sue the British government in Iraq. Section 2(1) of the Order provides that coalition forces in Iraq (including British forces) are "immune from Iraqi legal process." Section 2(3) provides that coalition personnel are to be "subject to the exclusive jurisdiction of their parent states", and "immune from local criminal, civil and administrative jurisdiction" other than by persons acting on behalf of their parent states. Section 2(5) provides that parent states may waive the immunity in respect of criminal liability at the request of the Coalition Provisional Authority if there are no relevant criminal sanctions in the parent state. It is agreed between the parties that CPA Order 17 made it impossible for the claimants to sue the British government in Iraq throughout the relevant period. Broadly stated, the question is whether the suspensory proviso in...
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Table of Cases
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