Richard Hermer QC, Alison Pickup, Maria Roche and Andrew Scott (instructed by Leigh Day ) for the claimants; Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor ) for the defendant; Dan Squires (instructed by Public Interest Lawyers ) for the interested PIL claimants.
The claimants brought damages claims for their allegedly unlawful detention and ill-treatment by British armed forces on various dates when those forces were present in Iraq. The court was asked to determine three preliminary issues, including: (i) as a matter of Iraqi law, in respect of the heads of claim brought pursuant to rights under Iraqi law, whether the primary limitation period of three years, provided for in article 232 of the Iraqi Civil Code was suspended by operation of article 435(1) of the Civil Code as a result of the fact that Order 17 of the Coalition Provisional Authority, which came into force in 2003, rendered it impossible for the claimants to claim their rights in Iraq; and (ii) as a matter of English law, whether article 435(1) of the Iraqi Civil Code was to be disregarded in relation to heads of claim brought pursuant to rights under Iraqi law by virtue of section 2(3) of the Foreign Limitation Periods Act 1984. The defendant contended that the word “jurisdiction" in section 2(3) of the 1984 Act was not used in a territorial sense, but referred to the court’s power or authority to try a claim and that, on that basis, Order 17 of the Coalition Provisional Authority fell within section 2(3) of the Act, with the result that article 435(1) of the Civil Code was to be disregarded.
As a matter of Iraqi law and in relation to the heads of claim brought pursuant to rights under Iraqi law, the primary limitation period provided for in article 232 of the Civil Code was suspended by operation of article 435(1) of the Code as a result of the fact that Order 17 of the Coalition Provisional Authority rendered it impossible for the claimants to claim their rights in Iraq. As a matter of English law, article 435(1) of the Civil Code was not to be disregarded in relation to such heads of claim by reason of section 2(3) of the 1984 Act.