Yunus Rahmatullah v Amanatullah Ali
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 21 November 2019 |
| Neutral Citation | [2019] EWHC 3172 (QB) |
| Date | 21 November 2019 |
| Docket Number | Claim Nos: HQ13X01841 & HQ15P01285 |
| Court | Queen's Bench Division |
[2019] EWHC 3172 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON Mr Justice Turner
Claim Nos: HQ13X01841 & HQ15P01285
and
Richard Hermer QC, Nikolaus Grubeck and Andrew McIntyre (instructed by Deighton Peirce Glynn) for the 1 st Claimant
Angus McCullough QC and Martin Goudie QC (supported by Special Advocates' Support Office) for the 1 st Claimant
Dan Squires QC and Julianne Morrison (instructed by ITN Solicitors) for the 2 nd Claimant
Shaheen Rahman QC, Zubair Ahmad QC and Rachel Toney (supported by Special Advocates' Support Office) for the 2 nd Claimant
Derek Sweeting QC and James Purnell (instructed by Government Legal Department) for the Defendants
Hearing dates: 15 th and 16 th October 2019
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.
THE HON. Mr Justice Turner
The claimants in this case are Pakistani nationals both of whom allege that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States' control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.
The case against the defendants is based upon three broad categories of allegation:
(i) mistreatment by UK personnel upon arrest and before the claimants were transferred to United States' control;
(ii) transfer to United States' control; and
(iii) failures thereafter to intervene to bring the claimants' detention to an end and/or stop the United States' authorities from further mistreating them (“the return claim”).
The claims are brought under the provisions of the Human Rights Act 1998 and in common law. They are strenuously denied.
As the claims proceed towards trial, two important issues have arisen between the parties relating to disclosure and applicable law respectively. For the sake of convenience and ease of reference, I have set about the task of giving separate written judgments on each issue. This judgment is concerned with the issue of applicable law.
In their presentation of the return claim, the claimants rely on the torts of negligence and misfeasance in public office respectively. These causes of action arise under the common law which will, of course, be engaged only in the event that English law 1 is found to apply.
THE STATUTORY FRAMEWORK
The old common law rules for the determination of the applicable law relating to tortious claims were replaced by the provisions of Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Section 9, in so far as is material, provides:
“ Purpose of Part III.
(1) The rules in this Part apply for choosing the law (in this Part referred to as “the applicable law”) to be used for determining issues relating to tort…
(2) The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort … is a matter for the courts of the forum…
(4) The applicable law shall be used for determining the issues arising in a claim, including in particular the question whether an actionable tort …has occurred.
(5) The applicable law to be used for determining the issues arising in a claim shall exclude any choice of law rules forming part of the law of the country or countries concerned.
(6) For the avoidance of doubt (and without prejudice to the operation of section 14 below) this Part applies in relation to events occurring in the forum as it applies in relation to events occurring in any other country.
(7) In this Part as it extends to any country within the United Kingdom, “the forum” means England and Wales, Scotland or Northern Ireland, as the case may be.”
The starting point for the exercise of determining the applicable law takes the form of a general rule to be found in section 11:
“ Choice of applicable law: the general rule.
(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.
(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being—
(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;
(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.
(3) In this section “personal injury” includes disease or any impairment of physical or mental condition.”
In this case, the elements of those events constituting the relevant torts are alleged to have occurred in different countries. However, there is no dispute that the claimants' return claim is, in essence, one relating to personal injury. The alleged mistreatment occurred in Iraq and Afghanistan and so the general rule, unless displaced, would operate so as to preclude the application of the English common law.
The general rule is, however, subject to exceptions the first of which is to be found in section 12 of the 1995 Act:
“ Choice of applicable law: displacement of general rule.
(1) If it appears, in all the circumstances, from a comparison of—
(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2) The factors that may be taken into account as connecting a tort…with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort…in question or to any of the circumstances or consequences of those events.”
The claimants seek to persuade me that, on the facts of this case, this section operates to displace the general rule and to open the door to the application of the common law.
Alternatively, they contend that, even if they were to be unsuccessful in their argument under section 12, they are entitled to fall back upon section 14, which provides in so far as is material:
“ Transitional provision and savings.
(3) … nothing in this Part
(a) authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim in so far as to do so—
would conflict with principles of public policy…”
The defendants deny that on the facts of this case there would be any justification for departing from the general rule on either basis advanced by the claimants.
SECTION 12 – THE CASE LAW
In R (Al-Jedda) v Secretary of State for Defence [2007] Q.B. 621 the claimant, who had dual British and Iraqi nationality, travelled to Iraq where he was arrested and detained in a detention centre operated by British forces on the grounds that he was suspected of membership of a terrorist group and of terrorist activities. He argued, unsuccessfully, that section 12 operated to displace the general rule under which Iraqi law would apply.
In dismissing his appeal, the Court identified the mischief to which the statutory regime was directed with reference to The Law Commission Report: Private International Law, Choice of Law in Tort and Delict (1990) (Law Com No 193, Scot Law Com No 129), para 2.7:
“The exceptional role given to the substantive domestic law of the forum in the law of tort, apart from being almost unknown in the private international law of any other country, is parochial in appearance and ‘also begs the question as it presupposes that it is inherently just for the rules of the English domestic law of tort to be indiscriminately applied regardless of the foreign character of the circumstances and the parties’.”
Brooke LJ, with whom the other members of the court agreed, held, with reference to the section 12 exception:
“104. The threshold exclusion test which they chose, and which Parliament adopted, was that it should be substantially more appropriate for the applicable law to be other than the law of the country in which the events constituting the tort in question occurred. We have read the evidence given by the representatives of the Law Commission to the Special Standing Committee of the House of Lords (Session 1994–1995, HL Paper 36). It is clear that the commission intended the use of the word “substantially” to be taken seriously. Thus Dr Peter North, the distinguished scholar of private international law who was the moving force behind these proposals when he was a law commissioner, said, at p 37:
“The structure of clauses 11 and 12 is to have as certain a rule as possible in 11 but in 12 to disapply that rule after a threshold has been overcome. The words that embody that threshold are the words in line 20 on p 5 of the Bill: ‘substantially more appropriate.’ I do not see any magic in those particular words but I do support the policy that you disapply the rules in clause 11 when some significant threshold has been reached embodied in clause 12… I think the...
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