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Liam MacleanBackground

This case concerns tort claims brought by over 600 Iraqi civilians claiming to have suffered unlawful detention and / or physical maltreatment by UK armed forces between 2003 and 2009. The claims were brought against the Ministry of Defence in the English courts.

The viability of many of the claims turns on how English international private law deals with the Iraqi law of limitation. The High Court found for the claimants on this issue, but the Court of Appeal came to the opposite view.

Legal Issue

The Foreign Limitation Periods Act 1984 provides that English courts should apply the law of limitation of the place whose law is being applied to the substantive legal issues being decided in a case (aka the lex causae) rather than the law of the England (aka the lex fori). It was agreed by the parties that Iraqi law governed the claims under tort.  Accordingly, Iraqi law is the lex causae and its law of limitation should apply also.

Article 232 of the Iraqi Civil Code (the “ICC”) provides for a limitation period of 3 years from the date that the claimant became aware of the injury and the identity of the tortfeasor. Many of the claims were brought to the English court out with this period and as such are prima facie time barred.

However, the claimants believed that Article 435(1) of the ICC had the effect of suspending this period of limitation in respect of their claims as, inter alia, it provides that a time limit barring a claim is suspended if there is “[an] impediment rendering it impossible for the plaintiff to claim his right.”

The effected Iraqi civilians argued that such an impediment arose from the terms of Coalition Provisional Authority Order 17 (“CPAO 17”), which made coalition forces, including the UK armed forces, immune from Iraqi jurisdiction. As such, they could not – and still cannot due to CPAO 17’s ongoing effect – bring their claims in Iraq. The parties agreed that this represented an ‘impediment’ which made it impossible for the claimants to bring their claims in Iraq.

However, they differed on how the 1984 Act was to be applied where, as it did in this case, the operation of the foreign law of limitation depends on facts which are not relevant to litigation in England – which, as explained below, CPAO 17 was not.

The Supreme Court’s Decision

Lord Sumption dealt with this narrow point is a crisp 18 paragraph judgment, with which the rest of the panel agreed.

His Lordship noted that the 1984 Act requires an English court to apply a foreign law of limitation.  However, facts that would be treated as relevant under the foreign law in proceedings in its own jurisdiction, in this case Iraq, will not necessarily be relevant when the English court is to apply that same foreign law to English proceedings.

Rather, where the application of the foreign law of limitation turns on a factual point (e.g.  whether there was in fact an ‘impediment’ to bringing a claim), the English court must discern whether this fact actually applies to the proceedings in England. What effect the fact may have on hypothetical proceedings in the relevant foreign jurisdiction is irrelevant.

In this case, Lord Sumption noted that CPAO 17 only applies in Iraq and would only be an impediment to bringing the tort claims in that jurisdiction. CPAO 17 would never have acted as a barrier to the Iraqi civilians bringing the same claims in the English courts. Accordingly, for the purposes of the proceedings in England the general Iraqi rule of limitation found in Article 232 of the ICC applies and is not suspended by Article 435(1).  His Lordship affirmed the Court of Appeal’s order and dismissed the appeal.

Comment

This is a useful judgment for international private lawyers, making clear how foreign law on limitation should be applied to foreign claims brought in England. If the foreign law of limitation turns on a fact, then how this fact applies to the circumstances of the English proceedings, not hypothetical proceedings in the foreign country, needs to be considered when deciding whether the claims are within the limitation period.

In terms of the claims by the Iraqi civilians, these will press ahead despite the additional barrier Lord Sumption’s judgment puts in the way of many. Press reports advise that the High Court will hear at two test cases later this summer.