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On appeal from: [2015] EWCA Civ 1241

The Supreme Court has unanimously dismissed the appeal of the fourteen lead claimants on a preliminary issue pertaining to the claimants’ action against the Ministry of Defence in tort for physical maltreatment at the hands of British armed forces in Iraq, allegedly suffered between 2003 and 2009.

All parties agreed that any liability of the Ministry of Defence would arise in tort governed by Iraqi law. The case concerned the application of Iraqi limitation rules, and the correct manner in which the courts of England and Wales should apply foreign limitations, when the facts as they operated in the Iraqi context did not apply before the English courts.

The standard limitation periods for such tort claims in Iraq was governed by the Civil Code of Iraq, art 232, which provided that an action must be taken within three years from the day on which the claimant became aware of the injury and of the person who caused it. However, art 435 provided for the suspension of time limits for a number of reasons, including where there was an impediment rendering it impossible for the plaintiff to claim his right. While the claimants all initiated proceedings in England after the expiry of the limitation period, they argued that the time limit was suspended in their cases, as the Coalition Provisional Authority Order 17 made it impossible for them to take action against the British government in Iraq.

It was not disputed that CPA Order 17 prevented the claimants from bringing suit in Iraq, however the respondents successfully argued before the Court of Appeal that the three year limitation period had expired in England, as there had never been any impediment rendering it impossible to bring claims in this jurisdiction.

Lord Sumption gave the lead judgment. He applied the Foreign Limitation Periods Act 1984, which in this instance required the English courts to ascertain the relevant rules of the foreign law of limitation in Iraq, and to apply them to English proceedings. He stated that the question to be answered was whether CPA Order 17, which was no doubt procedurally binding in Iraq, operated as an impediment rendering it impossible for the plaintiff to claim his right, under art 435, where the English courts were concerned.

The Iraqi limitation law had to be applied to the facts as before the English courts. Lord Sumption noted that any alternative interpretation would result in the ongoing immunity from suit in Iraqi courts meaning that no limitation period could apply in England.

Lord Sumption did not accept that the conclusion on the application of foreign limitation rules was irrational, as Leggatt J had suggested in earlier proceedings.

For judgment, please download: [2016] UKSC 25
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website