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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ministry of Defence v Iraqi Civilians [2015] EWCA Civ 1241 (09 December 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1241.html Cite as: [2016] 2 All ER 300, [2016] WLR 1290, [2015] EWCA Civ 1241, [2016] 1 WLR 1290, [2015] WLR(D) 515 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Leggatt
HQ09X01235 & Ors
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE VOS
____________________
IN THE MATTER OF THE IRAQI CIVILIAN LITIGATION Ministry of Defence |
Appellant/ Defendant |
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- and - |
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Iraqi Civilians |
Respondents/Claimants |
____________________
Richard Hermer QC, Alison Pickup and Andrew Scott (instructed by Leigh Day) for the Respondent
Hearing dates: 19 October 2015
____________________
Crown Copyright ©
Lord Justice Tomlinson:
"1. Application of foreign limitation law.
(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter—
(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings; and
(b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.
(2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account.
…
(4) A court in England and Wales, in exercising in pursuance of subsection (1)(a) above any discretion conferred by the law of any other country, shall so far as practicable exercise that discretion in the manner in which it is exercised in comparable cases by the courts of that other country.
(5) In this section "law", in relation to any country, shall not include rules of private international law applicable by the courts of that country or, in the case of England and Wales, this Act.
2. Exceptions to s. 1.
…
(3) Where, under a law applicable by virtue of section 1(1)(a) above for the purposes of any action or proceedings, a limitation period is or may be extended or interrupted in respect of the absence of a party to the action or proceedings from any specified jurisdiction or country, so much of that law as provides for the extension or interruption shall be disregarded for those purposes.
4 Meaning of law relating to limitation.
(1) Subject to subsection (3) below, references in this Act to the law of any country (including England and Wales) relating to limitation shall, in relation to any matter, be construed as references to so much of the relevant law of that country as (in any manner) makes provision with respect to a limitation period applicable to the bringing of proceedings in respect of that matter in the courts of that country and shall include—
(a) references to so much of that law as relates to, and to the effect of, the application, extension, reduction or interruption of that period; and
(b) a reference, where under that law there is no limitation period which is so applicable, to the rule that such proceedings may be brought within an indefinite period.
(2) In subsection (1) above "relevant law", in relation to any country, means the procedural and substantive law applicable, apart from any rules of private international law, by the courts of that country."
"A claim for damages resulting from whatever (kind) of unlawful act shall not be heard after the lapse of three years from the day on which the injured person became aware of the injury and of the person who caused it; in all cases the claim will not be heard after the lapse of 15 years from the day of occurrence of the unlawful act."
"(1) The time limit barring the hearing of the case is suspended by a lawful excuse such as where the plaintiff is a minor or interdicted and has no guardian or is absent in a remote foreign country, or where the case is between spouses or ascendants and descendants, or if there is another impediment rendering it impossible for the plaintiff to claim his right.
(2) The period which lapses while the excuse still exists (lasts) shall not be taken into account for the running of the time limitation."
"Section 2
Iraqi Legal Process
(1) Unless provided otherwise herein, the MNF [and] the CPA … shall be immune from Iraqi legal process.
…
(3) All MNF [and] CPA Personnel … shall be subject to the exclusive jurisdiction of their Sending States. …
Section 18
Claims
Except where immunity has been waived in accordance with Section 5 of this Order, third–party claims including those for property loss or damage and for personal injury, illness or death or in respect of any other matter arising from or attributed to acts or omissions of CPA, MNF… shall be submitted and dealt with by the Sending State whose personnel… property, activities, or other assets are alleged to have caused the claimed damage, in a manner consistent with the Sending State's laws, regulations and procedures."
The original Order contained similar provisions.
a) CPA Order 17 has never been repealed and would be regarded as a valid part of the law of Iraq by an Iraqi court.
b) The effect of section 2 of the Order is to deprive the Iraqi courts of jurisdiction which they would otherwise have over (amongst others) British forces in respect of unlawful acts allegedly committed by them in Iraq.
c) Nothing in the Order prevents claimants from bringing claims in respect of such acts in the English courts.
d) The English courts have jurisdiction over such claims.
a) As with any domestic legislation dealing with court process, it is natural to expect that Article 435 would be concerned only with bringing proceedings in the forum state (i.e. Iraq), and there is nothing in the words of Article 435 which suggests otherwise. Furthermore, the inference that Article 435 is concerned only with proceedings in Iraq is reinforced by the reference to absence in "a remote foreign country" as an example of a lawful excuse.
b) This interpretation is further reinforced by the fact that Article 435 is contained in a section of the Civil Code dealing with procedural steps in Iraqi courts.
c) An interpretation which required an Iraqi court to consider the possibility of bringing proceedings in foreign jurisdictions would involve practical difficulties in terms of complexity and expense of a type not envisaged in Iraqi civil litigation.
"Suppose that an Iraqi citizen living in Iraq has a potential claim against an English defendant which could in principle be brought either in Iraq or in England. Suppose further that there is no practical impediment to bringing the claim in Iraq but there are difficulties which for several years render it impossible within the meaning of article 435 to sue in England. The claimant does not sue the defendant in Iraq but several years after the limitation period specified in article 232 has expired he is contacted by an English lawyer who is able to arrange for him to bring proceedings in England. On the defendant's interpretation, an English court applying article 435 will be required to find that the time limit was suspended and the claim is not time-barred, even though an Iraqi court would hold that the claim was time-barred if the claimant were now to bring proceedings in Iraq and even though there was no lawful excuse for not suing in Iraq before the expiry of the limitation period. I cannot regard this result as rational."
"295. That issue seems to be one which is unlikely to arise in Russia. If, as Mr Rozenberg claims, a Russian court will not, as a matter of substance, entertain a claim based on conduct which amounts to a crime in the absence of a criminal finding, then, any such claim will be dismissed if there is no such finding. If, as Professor Sergeev states, it will not do so as a matter of practice, a Russian court is likely either to dismiss such a claim or at least to stay it. In each case it would not be necessary for the court to determine whether the claim was also statute barred.
296. In relation to each of the claims it is necessary for Yugraneft to show that the defendants are civilly liable in Russian law. That involves showing (a) that they are substantively valid and (b) that they are not time-barred.
297. As to (a) the defendants do not contend that, if there is no applicable time bar, Yugraneft still has no claim. But it is common ground that, insofar as the claims are founded (as they all are) on criminal conduct they would, in the absence of a criminal finding, fail either as a matter of substance (Mr Rozenberg) or practice (Professor Sergeev). But, although they would fail either way, different consequences would attend the manner of their failure.
298. In determining whether or not a defendant would be liable under a foreign law an English court will ignore any bar to recovery which is purely procedural. Thus, as Dicey points out at para 35-050, by reference to General Steam Navigation Co v Guillou (1843) 11 M & W 877, if the foreign law regards the defendant as under no liability unless other persons are sued first that rule is substantive and must be applied to English proceedings. If the foreign law regards the defendant as liable but makes that liability conditional on others being sued first the rule is procedural only and is to be ignored. Similarly if the foreign law provides that civil proceedings cannot be brought until a criminal prosecution has been brought, that requirement would be treated by an English court as procedural and a matter for the lex fori; Scott v Seymour (1862) 1 H & C 219, 230 and 234-7. See, also Grupo Torras SA v Al-Sabah [1999] CLC 1469 at 1661-1662.
…
311. If the sole matter at issue was whether or not the Russian courts, applying Russian law and procedure, would or could dismiss a claim based on criminal conduct on the ground of limitation, in the absence of a criminal finding, at any rate at the end of the criminal liability period, I would not have thought it appropriate, despite my doubts about Professor Sergeev's logic, to attempt to resolve the question on a summary application.
312. But the question for decision is, in my judgment, somewhat different. Yugraneft's claims would be unmaintainable in Russia for want of a criminal finding. However, for private international law purposes it is necessary to ignore the Russian practice not to entertain civil claims based on criminal conduct in the absence of a finding, as being a procedural matter. Yugraneft invokes that principle. But, if the Court is to ignore the practice then, as it seems to me, it should ignore the whole of it. Professor Sergeev's report makes clear that the practice of deeming the victim's knowledge to crystallize upon the event of a criminal finding is part and parcel of its practice not to entertain a claim based on criminal conduct in the absence of a criminal finding. This is not surprising. The need to deem (often contrary to the fact) that knowledge only arose when the criminal finding was given is necessitated, as a matter of justice, by the court's refusal to entertain claims in the absence of a criminal finding. There is no need for such deeming otherwise.
313. In those circumstances the question for the English Court is: what, leaving aside the Russian practice not to deal with cases based on criminal acts in the absence of a criminal finding, but, in the event of a criminal finding, to assume knowledge arises only from its date, is the Russian law of limitation? To that question, there seems to me only one answer. The law is as laid down in Article 200 of the Russian Civil Code.
314. Such a conclusion seems to me to make good sense; and to avoid the curious result which is said otherwise to arise, namely that, under Russian law there is (i) in the event of an allegation of non criminal conduct, a three year time limit from knowledge of the violation of the claimant's right; (ii) in the event of a criminal finding a three year limit from the date of the finding, which is, in practice, a pre-condition for any claim at all; but (iii) if the claim is brought in England under Russian law, there is no limit, at least until a Russian criminal finding is made, and if none is made then no limit ever.
315. I have not forgotten that Section 4 of the 1984 Act requires the Court to apply:
"so much of the relevant law of [Russia] as (in any manner) makes provision with respect to a limitation period being applicable to the bringing of proceedings in respect of that matter in the courts of that country [including]-
(a) … so much of that law as relates to, and to the effect of, the application, extension, reduction or interruption of that period."
It is, also, material to note that the relevant foreign law may provide that proceedings may be brought within an indefinite period: section 4 (2).
316. In my judgment the relevant law does not include a practice, or part of a practice, which, if the claimant is to have any claim at all, the English Court is bound to ignore.
317. Accordingly there is in my judgment no realistic way in which Yugraneft can establish that it has a cause of action in Russian law in respect of either criminal (or non criminal) conduct which is not time-barred."
"As a matter of Iraqi law, and in respect of those heads of claim brought pursuant to rights under Iraqi law, was the primary limitation period of three years provided for in Article 232 of the Iraqi Civil Code suspended by operation of article 435(1) of the Code as a result of the fact that CPA Order 17 rendered it impossible for the claimants to claim their rights in Iraq?"
I would not have formulated the relevant question in quite that way, but the answer is that as a matter of the Iraqi law relating to limitation which the English court is bound to apply, and in respect of those heads of claim brought pursuant to rights under Iraqi law, the primary limitation period of three years provided for in Article 232 of the Iraqi Civil Code was not suspended by operation of Article 435 (1) of the Code as a result of the fact that CPA Order 17 rendered it impossible for the Claimants to claim their rights in Iraq.
"41. That question is one to be addressed on another occasion. A point raised by the defendant as one of the present preliminary issues and therefore to be decided now is whether section 2(3) is applicable. In an addendum to their skeleton argument, counsel for the defendant advanced an argument that the word "jurisdiction" in section 2(3) of the 1984 Act is not used in a territorial sense but refers to the court's power or authority to try a claim. On this basis it was submitted that the immunity of the defendant from Iraqi legal process conferred by CPA Order 17 constitutes "the absence of a party to the action or proceedings from [a] specified jurisdiction or country" within the meaning of section 2(3). If this were correct, it would follow that insofar as article 435 of the Iraqi Civil Code suspends the limitation period by reason of CPA Order 17, article 435 must be disregarded.
42. I do not, however, consider this to be a tenable interpretation of section 2(3). The words "absence from any specified jurisdiction or country" on their plain meaning refer to physical absence from a specified place. If the intention had been to use the word "jurisdiction" to refer to the power or authority of a court, the subsection would have referred to the absence of jurisdiction over a party to the action, and not to the absence of the party from the jurisdiction. Even such a formulation would not have been sufficient because the subsection would also have had to specify that the jurisdiction in question was that of the courts of the country whose law was applicable by virtue of section 1(1)(a). Any possible doubt about the sense in which the term "jurisdiction" is used is in any event removed by its juxtaposition with the words "or country". The obvious reason for mentioning "jurisdiction" as an alternative to "country" is that some countries, for example the United Kingdom and the United States, comprise more than one jurisdiction in the territorial sense.
43. If it were necessary – which I do not think it is – in order to decide this point to look beyond the text of section 2(3) and to consider the mischief at which the provision is aimed, it is apparent from the Law Commission report whose recommendation section 2(3) implemented that the concern was only with laws which suspend the running of time during a person's absence from the country (or relevant part of the country): see 'Classification of Limitation in Private International Law' (LAW COM No 114, 1982), paras 4.27-4.32.
44. I accordingly consider that section 2(3) of the 1984 Act does not apply to suspension of the limitation period resulting from the effect of CPA Order 17."
"The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law, unless provided otherwise in this Regulation."
We heard very little argument on this question and I prefer to express no opinion on it unless and until it arises for decision.
Lord Justice Vos:
i) Whether CPA 17 made provision with respect to a limitation period applicable to the bringing of proceedings in respect of the claimants' claims in Iraq, so that it should be regarded as part of the relevant law of limitation in Iraq for the purposes of sections 1 and 4 of FLPA? The defendant argued, of course, that CPA 17 should not be regarded as part of the relevant Iraqi limitation law, because otherwise, even if it were a part of Iraqi procedural (as opposed to substantive) law, it would still form part of the relevant law to be applied by the English court as a consequence of section 4(2) of FLPA.
ii) Whether CPA 17 was to be regarded as an Iraqi procedural bar to proceedings being brought in Iraq unrelated to the Iraqi law of limitation, which would not be given effect in England & Wales?
iii) Whether CPA 17 included any Iraqi "rule of private international law" within sections 1(5) and 4(2) of FLPA, so that it would not be given effect in England & Wales?
Should CPA 17 be regarded as part of the relevant law of limitation in Iraq for the purposes of sections 1 and 4 of FLPA?
"(1) Subject to subsection (3) below, references in this Act to the law of any country (including England and Wales) relating to limitation shall, in relation to any matter, be construed as references to so much of the relevant law of the country as (in any manner) makes provision with respect to a limitation period applicable to the bringing of proceedings in respect of that matter in the courts of that country and shall include – (a) references to so much of that law as relates to, and to the effect of, the application, extension, reduction or interruption of that period; and …".
Does CPA 17 include any "rule of private international law" so that it will not be given effect in England & Wales?
Master of the Rolls: