18/05/2016

Extra-territorial claims in the “spider’s web” of the law? Supreme Court judgment on Iraqi Civilians appeal

Ministry of Defence (Respondent) v Iraqi Civilians (Appellant) [2016] UKSC 25

Ever since the case of Al Rawi v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289, and the Binyam Mohamed case, the direction of travel of jurisprudence by English Courts left behind an earlier position that considered UK foreign affairs a non-justiciable area, and shifted towards scrutiny of the impact of UK foreign policy decisions on individuals.  After all, as it was put by Lord Sumption, in an address at the LSE in 2012, “the acts of the executive are by definition justiciable in its own courts”. The most significant factor for such a shift as Lord Sumption noted, was the enactment into English Law of the European Convention on Human Rights (“ECHR”).

Yet, in a broader spectrum of cases, jurisdictional issues (ratione temporis) and time bars are proving to be hurdles on the path of claimants bringing extra-territorial claims before the highest court of the land. It was so in the recent Supreme Court decision Kayu v Secretary of State for Foreign and Commonwealth Affairs (“Batang Kali massacre“) [2015] UKSC 69 in the form of a temporal jurisdictional obstacle. It is so again in the Supreme Court’s 12 May 2016 decision in Ministry of Defence v Iraqi Civilians [2016] UKSC 25 (“The Iraqi civilians case”) in the guise of a time bar.  

While the Batang Kali massacre case was concerned with the Supreme Court’s interpretation of public international law rules (quite centrally, with the duties Article 2 of the ECHR imposes on the UK in the context of inquiries) the decision in the Iraqi civilians case concerns English private international law and turned on a point of interpretation of The Foreign Limitation Periods Act 1984.

In the Iraqi civilians case, the Supreme Court gave judgment in relation to 14 lead claimants (claims had been brought by over 600 Iraqi citizens) who had alleged unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009.

The Supreme Court held, applying Iraqi limitation law, that the claims of the Iraqi civilians, were time-barred. It dismissed the appeal. This post addresses the central finding in the case.

The Iraqi civilians case

The claims in the Iraqi civilians case were brought in tort in England against the Ministry of Defence.  The substantive claims (in tort) were governed by Iraqi law, the lex causae.

Under article 232 of the Civil Code of Iraq, the standard limitation period applicable to claims of the kind made by the claimants is three years from the day on which the claimant became aware of the injury and of the person who caused it.

The action by the Iraqi claimants had begun more than three years after most of them must have been aware of the relevant facts.  The claimants argued, however, that time had been suspended for limitation purposes under article 435 (1) of the Iraqi Civil Code because it suspends the time limit “if there is [an] impediment rendering it impossible for the plaintiff to claim his right”.   They argued that Coalition Provisional Authority (“CPA”), Order 17, was such an impediment because it made it impossible for them to sue the British government in Iraq. Section 2(1) of this Order provides that coalition forces in Iraq (including British forces) are “immune from Iraqi legal process”.     It was agreed between the parties indeed that the CPA Order 17, in fact, made it impossible for the claimants to sue the British government in Iraq throughout the relevant period.

At first instance, Leggatt J, had found in favour of the claimants, holding that the limitation period had been suspended under article 435 (1).   The Court of Appeal disagreed. It held that an English court was bound to disregard any impediment arising from CPA Order 17, because that order was merely a procedural bar to proceedings in Iraq and had no relevance in an English court.

The Supreme Court’s decision on limitation

Lord Sumption gave the only judgment with which the other Justices (Lord Neuberger (Presiding), Lady Hale, Lord Mance, Lord Reed) agreed.

The Supreme Court first noted that English private international law distinguishes between matters of substance which are governed by the proper law of the relevant issues (lex causae) and matters of procedure which are for the law of the forum. The relevant law in English proceedings concerning how to treat limitation matters was the English Foreign Limitation Periods Act 1984. Under this Act, English courts are required to apply the limitation rules of the lex causae to English proceedings.   In this case, the Court noted, this was Iraqi law of limitation.

The question for the Supreme Court was whether, when the claimants had brought proceedings in England, impediments which might have prevented similar proceedings in Iraq were legally relevant.

The answer was no.

The Court observed that because the foreign law of limitation would have been designed for foreign proceedings, in order to apply Iraqi law of limitation to English proceedings, a process of transposition would be involved. “There may be facts which the foreign law of limitation would treat as relevant to foreign proceedings but which are irrelevant to proceedings in England.” – it observed.

In that process of transposition, the Supreme Court found that the CPA Order 17 was not a rule of limitation but rather a fact devoid of legal effect outside Iraq.

The Court held that where the Iraqi law of limitation depends for its operation on some fact about the proceedings, the relevant fact is that applicable to the actual proceedings (e.g. those brought in England) and not some hypothetical proceedings that the claimants had not brought in Iraq, and in this case, could not have brought in Iraq.

Having regard to the impediment and impossibility affecting the bringing of legal proceedings, the Court held that this depends on the personal situation of the claimants in relation to the relevant proceedings; i.e., those brought in England. CPA Order 17 was an irrelevant fact for the proceedings in England because it had never impeded resort to the English courts.

The claimants had argued that an English Court applying the 1984 Act must give effect to the whole of the relevant Iraqi law of limitation and not just part of it. Iraqi law would treat certain facts as relevant to Iraqi proceedings; to treat those facts as irrelevant to English proceedings would involve displacing part of Iraqi law.

The Supreme Court held that this was not so. It was rather a matter of applying the same principles of Iraqi law to different facts. It dismissed the claim of the Iraqi civilians and affirmed the Court of Appeal’s conclusion that the limitation period was not suspended under article 435 (1) of the Iraqi Civil Code.

The aftermath

The judgment is brief (seven pages) and contains no references to authorities.  It has been described as a sweeping decision. But it does not, however, end the claims arising from the Iraqi intervention. A number of test cases brought exclusively against the UK government over their role in southern Iraq are going to trial this summer.   The courts will be hearing such cases around the time the Chilcot report into the Iraq war, set for July, becomes available.

Lord Sumption’s observation in his address at LSE back in 2012 has never been more relevant: the courts will continue to scrutinise the impact of foreign policy decisions upon individuals  in a way that would not long ago have been unthinkable. Whether “the law’s web [would] be spun more finely”, and actions that in the past may have escaped it, may be dealt with by English courts, remains to be seen.