Phillippa Kaufmann QC, Adam Straw, Edward Craven and Maria Roche (instructed by Leigh Day ) for the claimants; James Eadie QC, Karen Steyn QC, Ben Watson and Melanie Cumberland (instructed by Treasury Solicitor ) for the defendants; Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor ) for the defendants in the Iraqi Civilians litigation.
The claimant was a citizen of Pakistan who was detained by British forces in Iraq. He was transferred into the custody of the US forces and was detained in Afghanistan for ten years without charge or trial. His first claim was a civil claim for damages in tort and under the Human Rights Act 1998 in which the claimant alleged that while he was in detention he was subject to torture and other serious mistreatment. By a second claim, the claimant sought permission to proceed with a claim for for judicial review. The second claimant in the judicial review claim had also been arrested, transferred and detained at the same time. The defendants applied, under CPR Pt 11, for an order declaring that the court had no jurisdiction or should not exercise any jurisdiction which it might have to try the claims because of the doctrines of state immunity, foreign act of state or Crown act of state. The court was asked to determine, as a preliminary issue, whether the claim alleging liability of the defendant in tort was barred by those doctrines. The same preliminary issue had been raised in group litigation pending in the High Court (Iraqi civilian litigation). Accordingly, it was heard with the preliminary issue in present claim.
None of the claims in tort brought by the claimant and the three Iraqi civilians was barred by reason of the doctrine of state immunity or by reason of the doctrine of foreign act of state. If, in each of the cases the defendant showed that the arrest and detention of the claimant by British armed forces was authorised pursuant to a lawful policy of the defendant, then any claim in tort in respect of such arrest and detention would be barred by the doctrine of Crown act of state. The same applied to the transfer of the three Iraqi civilians. Both claimants in the judicial review claim were granted permission to proceed with their claim for judicial review. The judge applied Belhaj v Straw [2014] EWCA Civ 1394; [2014] WLR (D) 459.