Supreme Court

Iraqi Civilians v Ministry of Defence (No 2)

[2016] UKSC 25; [2016] WLR (D) 261

2016 April 25; May 12

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmon DPSC, Lord Mance , Lord Sumption , Lord Reed JJSC

Conflict of laws — Limitation of action — Whether foreign limitation period applying — Claims brought by Iraqi civilians in England in respect of events occurring in Iraq — Provision of Iraqi law barring bringing of claims in Iraq — Provision constituting “impediment” rendering it impossible for rights to be claimed in Iraq — Whether suspending time limit imposed by Iraqi limitation law — Whether claims time-barred — Foreign Limitation Periods Act 1984 (c 16), ss 1, 4(1)

Facts

Many Iraqi civilians brought claims in England against the Ministry of Defence, seeking damages in tort for alleged unlawful detention and ill-treatment by British armed forces in Iraq between 2003 and 2009. By Part III of the Private International Law (Miscellaneous Provisions) Act 1995 the applicable law was the law of Iraq. Article 232 of the Iraqi Civil Code prescribed a three-year limitation period in respect of such claims. Preliminary issues were ordered to be tried to determine whether those claims which had been commenced after the expiry of that period were time-barred for the purposes of sections 1 and 4(1) of the Foreign Limitation Periods Act 1984. It was the claimants’ case that Order 17 of the Coalition Provisional Authority, which had been issued on 26 June 2003 and never repealed and provided that the British forces were immune from the Iraqi legal process and subject to the exclusive jurisdiction of the United Kingdom and which still had force of law in Iraq, constituted a lawful excuse within the meaning of article 435 of the Code which suspended the three-year time limit at all material times because it was an “impediment” rendering it impossible for them to claim their rights. The judge held that, as a matter of Iraqi law, the primary limitation period under article 232 had been suspended by operation of article 435 of the Code as a result of the operation of Order 17 of the Coalition Provisional Authority, and that, consequently, the claims were not time-barred. The Court of Appeal allowed the defendant’s appeal, holding that article 435 was not engaged because the English courts were bound to disregard Order 17 of the Coalition Provisional Authority, which was a mere procedural bar to proceedings in Iraq and as such had no relevance to proceedings in England.

On the claimants’ appeal—

Held

Held, appeal dismissed. The Foreign Limitation Periods Act 1984 required an English court to ascertain the relevant rules of the foreign law of limitation and then to apply them to proceedings in England. Since the foreign law of limitation would have been designed for foreign proceedings, that necessarily involved a process of transposition. There might be facts which the foreign law of limitation would treat as relevant to foreign proceedings but which were irrelevant to proceedings in England. The English court was concerned only with what the foreign court would decide to be the relevant foreign law. It was the function of the English court to apply that law to the relevant facts. It followed that where the Iraqi law of limitation depended for its operation on some fact about the proceedings, the relevant fact was that applicable to the actual proceedings brought in England and not to hypothetical proceedings which might have been brought in Iraq. Order 17 of the Coalition Provisional Authority had no relevance to the claimants’ proceedings in England because it did not apply outside Iraq and had never impeded resort to the English court. Accordingly, the limitation period in article 232 of the Iraqi Civil Code was not suspended under article 435 as a result of the operation of Order 17 of the Coalition Provisional Authority (paras 11–18).

Appellate History

Decision of the Court of Appeal [2015] EWCA Civ 1241; [2016] 1 WLR 1290affirmed for different reasons.

Appearances

Richard Hermer QC, Alison Pickup, Andrew Scott and Marie Louise Kinsler (instructed by Leigh Day) for the claimants.

Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor) for the defendant.

Reported by: Jill Sutherland, Barrister