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Cite as: [2016] 2 All ER 300, [2015] WLR(D) 515, [2016] WLR 1290, [2016] 1 WLR 1290, [2015] EWCA Civ 1241

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Neutral Citation Number: [2015] EWCA Civ 1241
Case No: A2/2015/0651

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Leggatt
HQ09X01235 & Ors

Royal Courts of Justice
Strand, London, WC2A 2LL
09/12/2015

B e f o r e :

THE MASTER OF THE ROLLS
LORD JUSTICE TOMLINSON
and
LORD JUSTICE VOS

____________________

Between:
IN THE MATTER OF THE IRAQI CIVILIAN LITIGATION

Ministry of Defence
Appellant/
Defendant
- and -


Iraqi Civilians

Respondents/Claimants

____________________

Derek Sweeting QC and James Purnell (instructed by Government Legal Department) for the Appellant
Richard Hermer QC, Alison Pickup and Andrew Scott (instructed by Leigh Day) for the Respondent
Hearing dates: 19 October 2015

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Tomlinson:

  1. This appeal raises a short but elusive point concerning the manner in which the English Court applies a foreign law relating to limitation when required to do so by section 1 of the Foreign Limitation Periods Act 1984, hereinafter "the FLPA".
  2. The context in which it arises is the "Iraqi Civilian Litigation." I gratefully adopt, without specific attribution, the description of that litigation, the background to it, the common ground and the issues which arise as set out in the judgment of Leggatt J below, [2015] EWHC 116 (QB). The "Iraqi Civilian Litigation" is a general description for many hundreds of claims which have been brought in the English High Court by Iraqi civilians against the Ministry of Defence. The Claimants are seeking damages for their allegedly unlawful detention and alleged ill-treatment by British armed forces on various dates during the period when British forces were present in Iraq.
  3. That period began on 20 March 2003, when a coalition of armed forces led by the United States and including a large contingent from the UK invaded Iraq. On 1 May 2003, major combat operations were formally declared complete. The US and the UK became occupying powers within the meaning of article 42 of the Hague Regulations and with their coalition partners established the Coalition Provisional Authority ("CPA") in order to exercise powers of government in Iraq on a temporary basis. On 28 June 2004 sovereign authority was transferred from the CPA to a new Iraqi government, but British forces remained in Iraq as part of a Multi National Force ("MNF") established pursuant to resolutions of the United Nations Security Council to assist the Iraqi government in maintaining law and order. The UN mandate for the MNF expired on 31 December 2008 but it was not until sometime in 2009 that British forces withdrew from Iraq.
  4. The claims in the Iraqi Civilian Litigation are made on two legal bases. One basis is the Human Rights Act 1998. The other basis is the law of tort. It is common ground that, pursuant to Part III of the Private International Law (Miscellaneous Provisions) Act 1995, hereinafter "the PILA", the law applicable to the tort claims is the law of Iraq.
  5. The FLPA provides, so far as material:-
  6. "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."
  7. Subject to a point as to the applicability of section 2 (3), it is common ground for present purposes that in accordance with these provisions the Court must apply the law of Iraq relating to limitation when deciding whether the claims founded on the Iraqi law of tort are time-barred.
  8. The judge heard evidence as to the law of Iraq from two distinguished experts. The Iraqi Civil Code provides, by Article 232:-
  9. "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."
  10. It is common ground that many of the claims brought in the English court in the Iraqi Civilian Litigation were not commenced until after the expiry of the three year limitation period prescribed by Article 232.
  11. The relevant Claimants argue, however, that their claims are not time-barred because this limitation period was suspended or interrupted. In particular, the claimants rely on article 435 of the Civil Code, which states:
  12. "(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."
  13. It is the Claimants' case that the three year time limit which would potentially bar their claims has at all material times been suspended by a lawful excuse in the form of an impediment rendering it impossible for them to claim their rights within the meaning of Article 435. A set of preliminary issues fell to be determined by Leggatt J the main purpose of which exercise was to decide whether this case is correct.
  14. CPA Order 17 was originally issued and entered into force on 26 June 2003. A revised version of the Order was issued on 27 June 2004. The Order in its revised form states:
  15. "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.

  16. It was common ground before the judge that:-
  17. 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.
  18. The judge decided that the effective period of CPA 17 ended on 31 December 2008. No claim has as yet been brought relating to any alleged act or omission of British Forces after 31 December 2008. It is common ground that the jurisdictional immunity which CPA 17 affords for acts which occurred before 31 December 2008 is of enduring effect. It is therefore common ground that it always has been and still is impossible for any of the Claimants in this litigation to bring their claims in the Iraqi courts.
  19. The principal question for decision is therefore whether the law of Iraq as it must be applied by the English court has the effect that the three year period of limitation within which the English actions must prima facie be brought has been suspended by operation of Article 435 (1) of the Code as a result of the fact that CPA 17 rendered it impossible for the Claimants to claim their rights in Iraq.
  20. The judge considered that the answer to this question depends on the territorial scope of Article 435. This in turn reflected the manner in which the case appears to have been argued before him. Thus the judge set about deciding whether Article 435 means that the time limit is suspended if there is an impediment rendering it impossible for the claimant to claim his right in Iraq; or whether it has a different or wider scope such that, for example, the time limit is suspended only if it is impossible for the claimant to claim his right in any jurisdiction of the world.
  21. The Claimants' expert Mr Majid took the former view. In his view, an Iraqi court would hold that Article 435 is concerned exclusively with whether there is a lawful excuse/impediment which prevents the claim from being heard in Iraq. Mr Majid gave three reasons in support of his opinion:
  22. 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.
  23. The view of the Defendant's expert, Professor Hamoudi, was more difficult to discern. Ultimately however it appeared that his view was that the impediment referred to in Article 435 is an impediment rendering it impossible to sue during any given period in the jurisdiction in which a claim is in fact brought.
  24. The judge did not accept that Professor Hamoudi's view corresponded with how an Iraqi court would interpret Article 435, noting of course that it is in fact inconceivable that an Iraqi court, by definition situated in Iraq, would ever have to address the question. The judge regarded as compelling the three reasons given by Mr Majid in support of his interpretation. Professor Hamoudi pointed out that Article 435 contains no words expressly confining its scope to the bringing of proceedings in Iraq, but the judge thought that it went without saying that the proceedings in contemplation in Article 435 are domestic proceedings in Iraq, not proceedings in any other jurisdiction. The judge also thought compelling Mr Majid's view that the reference in Article 435 to absence in a remote country must be a reference to an absence in a country remote from Iraq. He rejected as unconvincing Professor Hamoudi's view that this is a reference to absence from the jurisdiction in which the claim is brought, a view which Professor Hamoudi did not support with any reasoning founded in principles of Iraqi law.
  25. Professor Hamoudi also took issue with Mr Majid's approach that Article 435 is procedural in nature. Professor Hamoudi pointed out that Article 435 is part of a broader section of the Code dealing with determination of obligations other than through their fulfilment. The judge thought that it mattered little whether Article 435 or the section of the Code in which it appears would be characterised as procedural or substantive. In the context of a provision of Iraqi law dealing with the period within which proceedings must be brought, a reference to the possibility of making a claim is naturally to be understood as a reference to the possibility of making a claim in the Iraqi courts.
  26. The judge recognised that the conclusion to which his view compelled him was unattractive. As Professor Hamoudi pointed out, if Mr Majid's interpretation of and approach to Article 435 is correct, then no matter how easy it might become to assert a claim in England, or even in a closer state such as Jordan, and no matter how many lawyers would be willing to solicit clients and press such cases abroad, there would be no limitation period of any kind attaching to such claims, so long as the Iraqi courts could not hear the case themselves. Nonetheless, the judge thought that the consequences of Professor Hamoudi's interpretation of the territorial scope of Article 435 were at least as irrational. He posed the following example, at paragraph 35 of his judgment:-
  27. "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."
  28. Before us, as so often occurs with points of this nature argued as a preliminary issue, the arguments developed were rather different. In consequence I have come to the conclusion that the starting point adopted both by the parties below and, therefore, by the judge, was wrong. In my view the answer to the question posed at paragraph 14 above does not depend upon the territorial scope of Article 435. The territorial scope of Article 435 is, I think, obvious. Plainly it contemplates and contemplates only the impossibility of a plaintiff claiming his right in an Iraqi court.
  29. The first argument deployed before us by Mr Derek Sweeting QC for the Defendant was that the Court should not consider the effect of Article 435 at all because an Iraqi court would never have occasion to consider it. It would never have occasion to consider it because CPA 17 would deprive it of jurisdiction to consider it. Another way of putting the same point is that the "right" referred to in Article 435 is a right capable of vindication in an Iraqi court. The Iraqi court will never have jurisdiction to consider the question whether a claim which cannot be brought before it is time-barred.
  30. Attractive and beguiling though I find this submission, I do not think that it represents the correct approach or the complete answer. The task of the English court, when applying foreign law, is to ascertain how the courts of that foreign country would apply the law of that country to the questions under investigation by the English court – see per Scott LJ in A/S Tallina Laevauhisus A/S v Estonian State Steamship Line (1947) 80 Lloyd's Rep 99 at page 108 LH. That may sometimes involve an element of hypothesis or fiction. The question is whether the Iraqi court would in the circumstances regard the ordinary three year time limit as having been suspended. The fact that the Iraqi court would have no occasion to ask the question does not detract from the need to ascertain what its answer would be. On the basis of the judge's findings, the answer would be that the ordinary three year time limit had been suspended, by reason of CPA 17 rendering it impossible for proceedings to be brought within time in Iraq.
  31. However the law which the English court is to apply is only "so much of the relevant law of [Iraq] 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 [Iraq]" – FLPA section 4 (1). CPA 17 is not part of Iraqi limitation law. It is a procedural bar to an action in Iraq – see per Elias LJ in Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773 at page 815, paragraph 169. The question therefore arises whether the English court is bound to apply that part of a conclusion of Iraqi law which derives from the application of CPA 17.
  32. Mr Sweeting submits that it is not. Mr Richard Hermer QC for the Claimants submits that the English court is not being invited to apply CPA 17, but rather Article 435. The application of Article 435 involves a factual question whether it was at the relevant time impossible to bring an action in Iraq. CPA 17 is thus the reason why the claim could not be brought in Iraq and is therefore the factual impediment to claiming a right which brings Article 435 into play.
  33. I do not accept that a provision of Iraqi law, CPA 17, should be characterised as simply a factual impediment. That is an attempt to deprive it of its status as part of the procedural law of Iraq. The situation here is very like that with which Christopher Clarke J, as he then was, was concerned in OJSC Oil Company Yugraneft (in liquidation) v Abramovich and Others [2008] EWHC 2613 (Comm). In that case the Claimant Yugraneft sought to pursue claims against the Defendants which may be broadly characterised as arising out of allegedly fraudulent conduct. The claims were for dishonest assistance, knowing receipt and unjust enrichment. Those claims were either governed by the law of Russia, or were claims in respect of which it was necessary to show, because of the rule of double actionability, that the Defendants were liable under Russian civil law to the same extent as in English law. One of the defences advanced was that the claims were time-barred. By virtue of section 1 of the FLPA that was an issue to which the judge had to apply the Russian law of limitation.
  34. The relevant Russian law imposed a time limit of three years "from the day when the person has learned or should have learned about the violation of his right" – Article 200 of the Civil Code of the Russian Federation. The English proceedings were issued in November 2007. Yugraneft was aware of what it asserted to be the violation of its rights more than three years before that date, viz by March or April 2004.
  35. Russian law does not however, so the judge held, recognise a free-standing claim of civil fraud. As a matter of practice, a Russian civil court will only entertain a claim based on an allegation of fraud once a "finding" that such conduct has taken place has been made in criminal proceedings. There had been no conviction in Russia. There were no reasonable prospects of a conviction in Russia. Accordingly, Yugraneft contended that its claims were not time-barred, as no relevant "finding" had yet been made. The judge had to resolve this question on the basis of the experts' views as to the law of Russia, which revealed that they were divided as to whether, if a claim were brought in Russia in 2008, relying on conduct that amounts to a crime, it would or should be dismissed (i) on the ground that there has been no criminal finding and that the limitation period has expired, as the expert witness Mr Rozenberg claimed, or (ii) only on the former ground, as the expert witness Professor Sergeev claimed, the limitation period not having begun – judgment paragraph 294.
  36. The judge reasoned as follows:-
  37. "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."
  38. Both parties before us accepted that Yugraneft was on this point correctly decided. If it was, it must be because the judge correctly characterised the Russian practice as not forming part of the limitation provisions of Russian law. Had the claim been litigated in Russia, the Russian court would for one reason or another not have entertained it, but it would not have determined that it was time-barred.
  39. Although obviously not precisely analogous, in my judgment this situation is sufficiently analogous to that with which we are here concerned for the judgment to be of assistance. One could equally say, paraphrasing Mr Hermer's characterisation of CPA 17 and the role played by it here, that the Russian rule of practice was simply the factual basis upon which a Russian court would have concluded that the claim was inadmissible, but by definition not yet time-barred. On that showing Mr Hermer's argument would surely be that the application of Article 200 involved a factual question whether there had been a relevant finding, and that there is no warrant for disregarding the factual basis upon which the Russian court would have proceeded. But that is not how the judge approached it, and in my view he was right not to do so. The judge was being invited by Yugraneft to give effect to a Russian procedural rule as the foundation for the contention that the Russian court would regard the relevant limitation period as not having begun to run. So here, the Claimants are inviting the court to give effect to CPA 17, which is a procedural bar to an action in Iraq, as the foundation for a finding that in Iraqi law the actions would be regarded as not time-barred. If we are to regard Yugraneft as correctly decided, as in my view we should, we should apply the same approach here as was applied in that case. True it is that in Yugraneft there was no equivalent of Article 435, which is part of the Iraqi law of limitation which if it is engaged the English court must apply. But that as it seems to me is a distinction without a difference. It was the Russian rule of practice which meant that in Russia the period of limitation would not be regarded as having started to run. It is CPA 17 which means that in Iraq, one must hypothesise, the period of limitation would be regarded as having been suspended. The English court should not give effect to that procedural rule, which forms no part of the Iraqi law relating to limitation, which means that Article 435 is not brought into play.
  40. I would add that I did not find helpful Mr Hermer's equiparation of CPA 17 as the reason why these Claimants could not claim their rights in Iraq with a similar result brought about by a strike of Iraqi judges. Mr Hermer suggested that it would be equally irrelevant that the latter was the impediment as the former. Article 435 simply involves a factual enquiry as to the existence of an impediment, whatever it might be. I do not find this convincing. There may be other reasons why an English court would not regard a strike by Iraqi judges as relevant to the question whether proceedings in England are time-barred, not least perhaps public policy, c.f. section 2 (1) of FLPA. But the short answer is that a strike by Iraqi judges would not be part of the procedural law of Iraq, which is the feature of CPA 17 which causes it to be of no application.
  41. Mr Hermer protests that it is entirely artificial to pretend that the Claimants could have claimed their rights in Iraq where it is common ground that they could not have done. With respect that is not what the Court is doing. The Court is holding that the circumstance that, by reason of a provision of Iraqi procedural law, the Claimants could not have claimed their rights in Iraq, is not an admissible consideration when determining whether, as a matter of Iraqi law, the claims brought in England would be regarded as time-barred. That is a straightforward application of what Mr Hermer also describes as the well-established rule of English private international law that effect is not given to procedural rules of the lex causae – see also section 14 (3)(b) of the PILA 1995. It also brings about a straightforward result which displays none of the anomalous features of that for which the Claimants contend. There is something inherently curious about the notion that inability to bring a claim in an excluded forum has the result that proceedings may be brought in the forum having exclusive jurisdiction without limit of time.
  42. The first preliminary issue which the judge had to decide was:-
  43. "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.

  44. A distinct ground of appeal was argued before us to the effect that the judge had been wrong in his approach to the development of Professor Hamoudi's evidence. Essentially the criticism of the judge seemed to me to be not so much that he had reached the wrong conclusion as to the content of Iraqi law but rather that he had failed to appreciate that Professor Hamoudi's views had been consistently advanced and moreover that Mr Majid had been both afforded the opportunity to comment on them and had taken that opportunity. This debate has become academic. It suffices to say that I am unpersuaded by the criticism. The judge gave cogent reasons for adopting as reliable the evidence proffered by Mr Majid and for rejecting the criticisms thereof advanced by Professor Hamoudi. The judge's reservations as to the manner in which he perceived the evidence of Professor Hamoudi to have developed were not determinative of, and indeed so far as I can see not even contributory to, his ultimate conclusion as to the content of Iraqi law.
  45. It follows also that the answer to the second preliminary issue determined by the judge has become academic. That issue asked, in the event that the first preliminary issue was answered in the affirmative, whether as a matter of English law Article 435 (1) is to be disregarded in relation to such heads of claim pursuant to section 2 (3) of the FLPA 1984.
  46. The judge dealt with this point quite shortly as follows:-
  47. "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."
  48. Mr Sweeting repeated his submission that in this context, and having regard to the mischief sought to be eliminated, absence from a jurisdiction includes not being subject to it. I am afraid that I had some difficulty in following this argument. Had the question arisen I would have answered it in the same way as did the judge, but the point will be available to Mr Sweeting should the matter go further.
  49. Similarly, there will be available to Mr Sweeting his argument to the effect that, if CPA 17 is to be regarded as part of the law of Iraq relating to limitation, then it should be disregarded by the English court by reason of sections 1 (5) and 4 (2) of the FLPA, because it is part of the private international law of Iraq. Mr Hermer's answer to this point, buttressed by considerable and weighty academic commentary, was that the statutory disregard should be construed only as excluding renvoi, i.e. a choice of law rule leading the courts of a foreign country to apply to a certain issue a law other than their own. Such an approach would be consistent with the drafting technique used in both the Rome I Regulation applicable to contractual obligations – Regulation No. 593/2008 and the Rome II Regulation applicable to non-contractual obligations, Regulation No. 864/2007, in which, at Articles 20 and 24 respectively, one finds, under the rubric "Exclusion of renvoi":
  50. "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.

  51. I would allow the Defendant's appeal and answer the first preliminary issue in the manner I have indicated at paragraph 34 above. The second preliminary issue does not arise. There was no challenge to the manner in which the judge answered the third preliminary issue.
  52. Lord Justice Vos:

  53. I agree with the judgment of Tomlinson LJ and with the result that he proposes. I gratefully adopt the abbreviations employed by Tomlinson LJ.
  54. The arguments seemed to me to have radically changed as the case progressed. I took the view after the argument had closed that there were essentially three questions. Each related to a separate reason advanced by the defendant for contending that the court in England & Wales should not give effect to the provisions of CPA 17. The three questions were as follows:-
  55. 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?

  56. It is only in relation to the first and third of these three questions that I wish to add anything to what Tomlinson LJ has already said.
  57. 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?

  58. This is a crucial question, because, as I have said, if CPA 17 is to be regarded as part of the relevant law of limitation in Iraq, the English court must give it effect under sections 1(1) and 4 of FLPA. Tomlinson LJ has concluded at paragraphs 24 and 31 that CPA 17 is not to be regarded as a part of Iraqi limitation law. I would like to add a further reason for that conclusion.
  59. For ease of reference, I repeat section 4(1) of FLPA as follows:-
  60. "(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 …".
  61. It is as well to recall also that section 2 of CPA 17 (as revised), as Tomlinson LJ has said, provided that the MNF and the CPA should be immune from Iraqi legal process, and should be subject to the exclusive jurisdiction of their Sending States, and section 18 of CPA 17 provided that personal injury claims against them should be dealt with by their Sending States in accordance with their laws, regulations and procedures.
  62. CPA 17 is said to be relevant to the limitation law of Iraq because it is an "impediment" making it impossible for the claimants to claim their rights within article 435, which provides that "[t]he time limit [in article 232] barring the hearing of the case is suspended by a lawful excuse such as where the Plaintiff … is absent in a remote foreign country … or if there is another impediment rendering it impossible for the Plaintiff to claim his right".
  63. CPA 17 operates so as to give the prospective defendants to a personal injury claim immunity from suit in Iraq (section 2(1)), and to provide for exclusive jurisdiction in the courts of the sending state of those defendants (sections 2(3) and 18). It is hard to see how such provisions can be regarded as even part of the "relevant law of [Iraq] as (in any manner) makes provision with respect to a limitation period applicable to the bringing of [personal injury] proceedings … in [the Iraqi courts]" (emphasis added) within the main body of section 4(1) of FLPA. CPA 17 does not say anything about limitation periods, let alone make provision for them or with respect to them.
  64. It is more difficult, however, to say that CPA 17 does not relate to the interruption of a limitation period within the meaning of the extension of the definition contained in section 4(1)(a) of FLPA 1984. The judge decided in paragraph 40 of his judgment that the effect of CPA 17 under Iraqi law was to suspend indefinitely the time limit for bringing these claims in Iraq. It seems to me that it is at least arguable that CPA 17 does contain provisions that fall within section 4(1)(a) as being "so much of the relevant law of [Iraq] as … relates to … the … interruption of that [limitation] period".
  65. I have concluded, however, that neither provision of CPA 17 actually falls within even the extended meaning in section 4(1) of FLPA. That is because, in my judgment, the provisions of section 4(1)(a) are a little more complex than they at first appear. The words "references to so much of that law" in section 4(1)(a) refer back to the words "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" in the main body of section 4(1). They cannot, therefore, be construed in isolation. When read back into section 4(1)(a), the extended definition is only referring to "so much of the relevant law of [Iraq] as … [makes provision with respect to a limitation period and including] … so much of that law as relates to … the … interruption of that [limitation] period".
  66. Neither a provision for immunity nor a provision for exclusive jurisdiction, as I have said, makes any provision with respect to a limitation period. It so happens that article 435 provides that a limitation period "is suspended … if there is [an] impediment rendering it impossible for the Plaintiff to claim his right". The provisions of CPA 17 as to immunity and exclusive jurisdiction are impediments which make it impossible for the claimants to claim their rights in Iraq. Whilst the provisions may, as a result, relate indirectly to the interruption of the limitation period, that does not make them provisions with respect to a limitation period, which they are also required to be if they are to fall within the section 4(1) definition.
  67. In the result, I do not think that the relevant provisions of CPA 17 are part of Iraqi limitation law within the proper meaning of section 4(1) of FLPA, despite the judge's finding that their effect under Iraqi law was to suspend the limitation period.
  68. Does CPA 17 include any "rule of private international law" so that it will not be given effect in England & Wales?

  69. Mr Sweeting QC argued for the defendant that the provisions in CPA 17 providing for the exclusive jurisdiction for these claims in England & Wales and for the immunity of foreign forces were to be regarded as comprising Iraqi "rules of private international law" within the meaning of that phrase in sections 1(5) and 4(2) of FLPA. If he was right, the English court would be bound under those sections to disregard those parts of CPA 17 in applying the limitation law of Iraq to these claims.
  70. It is not as easy as it might appear to ascertain whether either or both of (i) an exclusive jurisdiction provision, and (ii) an immunity provision, in a domestic statute is to be regarded as a rule of private international law. Mr Hermer QC referred to a sentence in paragraph 7-058 of Dicey & Morris on the Conflict of Laws 15th edition saying "[t]he applicable provisions of the foreign lex causae are defined to include both procedural and substantive rules with respect to a limitation period, but any renvoi is excluded …". The footnote to the word "renvoi" refers to sections 1(5) and 4(2) of FLPA suggesting that the words "private international law" are to be taken as referring only to "renvoi" or choice of law rules.
  71. I take the view that, although the term "private international law" is a wide one that might in some circumstances encompass a choice of jurisdiction (see chapters 11-13 of Dicey & Morris) and perhaps even an immunity provision (see paragraph 10-002 of Dicey & Morris), it is pushing the limits of that term in the context of the FLPA to hold that it does so. I say that because one can only imagine that the exclusion for private international law was included to prevent the local forum's renvoi rules imposing an eternal game of ping pong. There is no logical reason why an exclusive jurisdiction or immunity statute would in normal circumstances have any relevance to limitation. It only does so here because the immunity provided imposes an interruption in the limitation period running.
  72. Since the English court will not apply the provisions of CPA 17 which provide an Iraqi procedural bar that form no part of the Iraqi law of limitation, I do not think we need to decide whether either part of CPA 17 comprises a rule of private international law for the purposes of FLPA. In common with Tomlinson LJ, I think that question deserves more argument than was addressed to it before us.
  73. Master of the Rolls:

  74. I agree with both judgments.


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