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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Belhaj & Anor v Straw & Ors [2013] EWHC 4111 (QB) (20 December 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/4111.html Cite as: [2013] CN 2034, [2013] EWHC 4111 (QB) |
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 2013] EWHC 4111 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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| 20/12/2013 |
B e f o r e :
____________________
| (1) Abdul-Hakim Belhaj ( 2) Fatima Boudchar |
Claimants |
|
| and |
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| Rt. Hon. Jack Straw MP Sir Mark Allen CMG The Secret Intelligence Service The Security Service The Attorney General The Foreign and Commonwealth Office The Home Office |
Defendants |
____________________
Rory Phillips QC, Sam Wordsworth QC, Karen Steyn, Peter Skelton and Julian Milford (instructed by the Treasury Solicitor) for the Defendants
Hearing dates: 21-24 October 2013
____________________
Crown Copyright ©
Mr Justice Simon:
Introduction
21 May 2013:
(1) Whether the claims set out in §§89-95, 99(a) and 101 of the particulars of claim should be dismissed under CPR 3.1.(2)(l), on the basis that the Court lacks jurisdiction and/or the claims are non-justiciable?
(2) In so far as the claim is not dismissed, what are the applicable laws for determining the Claimants' causes of action?
Issue (1) raises issues about the extent and application of state immunity and act of state doctrines. Although issue (2) was argued as a matter of principle, in practice it was an argument about which party should plead the foreign laws that apply.
2011, ending the war as the Commander of the Tripoli Military Council and is now the leader of a political party in Libya.
The factual assertions forming the basis of the claim
2003 the First Claimant (a Libyan national) and his wife, the Second Claimant, (a Moroccan national) were living in China. In mid to late February 2004, they wished to come to this country to claim asylum and tried to take a commercial flight from Beijing to London. While they were at the airport they were detained by the Chinese authorities, and removed to Kuala Lumpur in Malaysia, where they were held for two weeks.
1 March 2004 the 3rd Defendant (MI6) sent a fax to the Libyan intelligence services informing them that the Claimants had been detained in Malaysia and identifying the place where they were held.
... working energetically to effect the extradition of [the First Claimant] from Malaysia. The Malaysians have promised to co-operate and to arrange for [the First Claimant's] transfer to our custody.
A further fax agreed to a Libyan request that the First Claimant be rendered into their custody.
... is vital that one of your officers accompany [the First Claimant] and his wife on our aircraft during this leg of the journey (Bangkok to Libya) in order to provide legal custody of [the Second Claimant].
1] of the First Claimant.
Most importantly, I congratulate you on the safe arrival of [the First Claimant]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years ... The intelligence about [the First Claimant] was British. I know I did not pay for the air cargo. But I feel I have the right to deal with you direct on this and am very grateful to you for the help you are giving us.
23 March 2010 he was released.
The legal basis of the Claim
1) seek,
... declarations of illegality and damages arising out of the Defendants' participation in the unlawful abduction, detention and rendition of the Claimants to Tripoli, Libya in March 2004, and the Defendants' subsequent acts and omissions whilst they were unlawfully detained.
[The 2nd Defendant] and the UK and intelligence services were co-conspirators in the unlawful rendition of the Claimants. In particular they provided the intelligence that enabled the rendition. The Defendants were fully aware of the operation, supported it and enabled it to take place.
... aware of and authorised the operation and/or took no steps to prevent the operation.
The Particulars of Claim also plead (§58) that the Defendants,
... abetted the Claimants' rendition to Libya ... [and were] aware of and authorised the operation and/or took no steps to prevent the operation.
On the basis of this and further allegations, it is pleaded (§68),
Accordingly, at the material dates herein, the Defendants knew that:
a. The US government operated a covert renditions programme and a network of 'black sites' at which detainees were held incommunicado and tortured.
b. If the Claimants were abducted as part of the US renditions programme, there was a real risk that they would be:
i. held incommunicado and unlawfully at a 'black site'; and
ii. tortured.
... the Claimants will seek documentation detailing the supply of information to Malaysia, Libya and the United States relevant to their detention, interrogations and torture in Malaysia, Bangkok and Libya ...
1)), and asserts that the Defendants are,
... jointly liable for the detention of the Claimants which they procured by common design with the Libyan and US authorities.
The Defendants conspired with Libya and the US to arrange, negotiate and facilitate the illegal rendition of the Claimants.
Again these are allegations which cannot succeed unless US and Libyan officials acted unlawfully.
100 there is a claim based on negligence, which has been excluded from the determination of the preliminary issues; although Mr Phillips QC argued that the contention (§99a) that the Defendants,
facilitated and acquiesced in the extra-judicial rendition of the Claimants to Libya and their detention there via a US operated 'black site' in Bangkok,
suffers from the same vice as the other causes of action.
The basis of the alleged liability of the Defendants
2] that,
... the complaints against the Defendants concern secondary liability: the primary tortfeasors, upon whom the unlawfulness of whose actions the claim against the Defendants depends, are foreign states. If the foreign states are the primary wrongdoers, they should be directly impleaded in the claim; but the Claimants have not done this, in the knowledge that those States would be immune from suit in the domestic courts. Principles of State Immunity cannot be circumvented by making a claim contingent upon the findings of unlawfulness by foreign States, but refusing to make those States parties to the claim.
2013] 1 WLR, Beatson LJ at [42].
Issue (1): the state immunity and act of state doctrines
3] and the confusion is compounded by the use of 'act of state' in a number of different contexts.[4] It is used to mean (1) an act of the Crown performed in the course of its relations with other states, (2) executive acts which are authorised or ratified by the Crown in the exercise of foreign power and (3) legislative or executive acts of foreign states. It is the third of these that is relevant to the present case.
... consists of those cases which are concerned with the applicability of foreign municipal legislation within its own territory, and the examinability of such legislation - often, but not invariably, arising in cases of confiscation of property.
... the more general principle that the courts will not adjudicate upon the transactions of foreign states.
2013] 3 W:R 1329 at [40]-[104]. At [115] Rix LJ, giving the judgment to which all members of the court[6] contributed, highlighted some of the difficulties of definition.
The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.
Dr Bristow
23 years in the Diplomatic Service (including a posting as HM Ambassador in Azerbaijan), and consultations for the purpose of his evidence with the High Commissioner in Kuala Lumpur, the Ambassadors in Bangkok, Beijing and Tripoli, and the Deputy Head of the North America Team of the Foreign Office.
4 ...The claims are thus predicated on the assertion that third party sovereign states acted unlawfully subsequent to, and in reliance, on information supplied by the United Kingdom.
5. The claims also require for their proper determination detailed examination of any intelligence-sharing arrangements between the United Kingdom and other states, including the United States. They require consideration of and evidence upon communications between states on matters of great sensitivity.
In summary, I consider that there would be a real risk of serious harm to the United Kingdom's international relations and national security interests if the Court were to engage in determining the Claimants' allegations; and if the Court were to make the rulings sought by the Claimants, the consequences would be very serious damage to those interests. I also consider that it would appear to be necessary for the Defendants to obtain evidence from third party states in order to defend themselves against the Claimants' allegations, but it would be highly improbable that the states concerned would supply this.
10), adding that even where states understood the division between the judicial and executive branches, findings by a UK domestic court retained 'the potential to cause serious damage.' In the later parts of his witness statement he set out his views about the impact of the allegations on the UK's relationship with China, Malaysia, Thailand and the US. His opinion was that each country is sensitive to interference in its internal affairs; and that a forensic investigation of the particular allegations that Thailand and Malaysia were involved in a collusive agreement with the US would be highly corrosive to relations between the UK and those countries, as would an investigation into the conduct of those said to be acting on behalf of the US outside the jurisdictions of the courts of the UK. Although he gave evidence as to the importance of good relations with these countries, his evidence about relations with Libya recognised the realities:
... given the change of regime in Libya, it is unlikely there would be damage to relations between the UK and Libya if the Court were to make findings of fact about the alleged actions of the previous regime to the effect pleaded in the Claimants' claims.
State Immunity
1 of the State Immunity Act 1978.
General Immunity from jurisdiction
(
(
2-11 which do not apply in the present case, for example, where the State has submitted to the jurisdiction (s.2).
[56] ... whether in claiming immunity for themselves or according it to others, States generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity.
[57] The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article
10] was the House of Lords' decision in Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia and another [2007] 1 AC 270. The issue in Jones was whether the English court had jurisdiction over proceedings brought by claimants against a foreign state and its officials, at whose hands they said that they had suffered systemic torture in the territory of that foreign state.[11] The House of Lords rejected two arguments which had found favour with the Court of Appeal: first, that state immunity did not apply where the claim was made against officials of the state and, secondly, that the allegation of torture took the case outside the general rule of state immunity. In the course of his speech, Lord Bingham (with whom the other members of the appellate committee agreed) held that,
[
[
33] that state immunity was a matter of law and not governed by executive or judicial discretion.
... Where applicable, state immunity is an absolute and preliminary bar, precluding any examination of the merits. A state is either immune from the jurisdiction or it is not. There is no half-way house and no scope for the exercise of discretion.
31] of Lord Bingham's speech to whether allegations of torture 'indirectly implead the state' leads to the argument in the present case as to the reach of the state immunity doctrine; and in particular, what is meant by the word 'implead'.
A judgment in rem is a judgment against all the world, and if given in favour of the plaintiffs would conclusively oust the defendants from the possession which on the facts I have stated they beyond question de facto enjoy. The writ by its express terms commands the defendants to appear or let judgment go by default. They were given a clear alternative of either submitting to the jurisdiction or losing possession. In the words of Brett LJ the independent sovereign is thus called upon to sacrifice either its property or its independence.
12] it is clear that the doctrine is potentially engaged where the interests of the foreign state are affected by the judgment of the Court, so that the Court is bound to hear the state if it objects;[13] and is clearly engaged where the property rights of the state are in issue, see for example Lord Atkin in The Cristina at p.490. However, Mr Phillips submitted that the doctrine extends (by parity of reasoning) to a situation where the claim involves assertions of unlawful acts of detention and torture by a foreign state or its agents, notwithstanding that the state is not a party.
EWHC 1910 (Admin), where the claimant alleged breaches of International law by the State of Israel in Gaza and sought declarations based on what was said to be the secondary liability of the defendant for assisting such unlawful acts. Although the claim was decided on issues of non-justiciability rather than state immunity, Cranston J at [52] was of the opinion that issues of state immunity would arise whether or not Israel was a party to the claim.
As originally conceived Israel was not a party to the action, although the claimant has subsequently said that it would be content if Israel were to be joined as an interested party. Parliament has conferred on Israel and on other states sovereign immunity through section
31], the interests of these States were 'obviously affected', since their acts lay at the heart of the claim; and the declaration sought by the Claimants would involve findings that agents of these states carried out unlawful acts.
Consideration and conclusion on state immunity
Modalities for giving effect to State immunity
(a) is named as a party to that proceeding; or
(b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.
2(b) advances the Defendants' argument. The Particulars of Claim cannot be said to 'seek to affect' the activities of any foreign state: they simply rely on certain activities for the purposes of the claims against the Defendants.
Whatever the nature of the obligations invoked, the [International Court of Justice] could not rule on the lawfulness of the conduct of a state when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.
20] and Lord Hoffmann cast doubt on the decision of ECtHR in Al-Adsani v. United Kingdom [2001] 34 EHRR, where the majority of the court held that article 6 of the European Convention on Human Rights was engaged and the rule of state immunity needed to be justified. As Lord Hoffmann put it [at 64],
... On the question of whether article 6 is engaged at all, I am inclined to agree with the view of Lord Millett in Holland v. Lampen-Wolfe [
Act of state
21] it is unnecessary to refer to each in the light of the Court of Appeal judgment in Yukos (see above), where the Court of Appeal provided a comprehensive review of the case law.
2002] 2 AC 883, the judgment of the Court of Appeal at [319]; and Yukos at [48]. Although one of the 'philosophical' bases for the act of state doctrine is the potential for political embarrassment,[22] caution should be exercised in giving weight to this consideration, see Yukos at [65].[23]
... the doctrine is confined to acts of state within the territory of the sovereign, but in special and perhaps exceptional circumstances, such as Buttes Gas itself, may even go beyond territorial boundaries and for that very reason give rise to issues which have been recognised as non-justiciable. The various formulations of the paradigm principle are apparently wide, and prevent adjudication on the validity, legality, lawfulness, acceptability or motives of state actors. It is a form of immunity ratione materiae, closely connected with analogous doctrines of sovereign immunity and, although a domestic doctrine of English (and American) law, is founded on analogous concepts of international law, both public and private, and of the comity of nations.
... will not apply to foreign acts of state which are in breach of clearly established rules of international law, or are contrary to English principles of public policy, as well as where there is a grave infringement of human rights.
This part of the Court of Appeal's judgment referred to a number of passages in the speeches of the House of Lords in Kuwait Airways v. Iraqi Airways. It was in this context that the Court of Appeal noted, see Yukos at [115],
... it has become wholly commonplace to adjudicate or call into question the acts of a foreign state in relation to matters of international convention, whether it is the persecution of applicant asylum refugees, or the application of the Rome Statute with regard to international criminal responsibility ... That is also perhaps an element of the naturalness with which our courts have been prepared, in the face of cogent evidence, to adjudicate upon allegations relating to the availability of substantive justice in foreign courts. It also has to be remembered that the doctrine was first developed in an era which predated the existence of modern international human rights law. The idea that the rights of the state might be curtailed by its obligations in the field of human rights would have seemed somewhat strange in that era.
... we agree with the holding of Hamblen J at [
112]) is what is referred to as the Kirkpatrick exception, see the judgment of the US Supreme Court in Kirkpatrick v. Environmental Tectonics Corp International 493 US 400 (1990), where the essential proposition was stated by Justice Scalia at 409-410.
The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of sovereigns taken within their own jurisdiction shall be deemed to be valid. That doctrine has no application to the present case because the validity of no foreign sovereign act is at issue.
The Court of Appeal in Yukos at [100] noted that the Kirkpatrick case had been followed by the Court of Appeal of England and Wales in two cases;[26] and at [110] summarised the effect of the Kirkpatrick exception.
What Kirkpatrick is ultimately about, however, is the distinction between referring to acts of state (or proving them if their occurrence is disputed) as an existential matter, and on the other hand asking the court to enquire into them for the purposes of adjudicating upon their legal effectiveness, including for these purposes their legal effectiveness as recognised in the country of the forum. It is the difference between citing a foreign statute (an act of state) for what it says (or even for what it is disputed as saying) on the one hand, something which of course happens all the time, and on the other hand challenging the effectiveness of that statute on the ground for instance, that it was not properly enacted, or had been procured by corruption, or should not be recognised because it is unfair or expropriatory or discriminatory.
The territorial limitation
... whether the sovereign acts within his own territory or outside it, there is a certain class of sovereign act which calls for judicial restraint on the part of the municipal courts ... It may not be easy to generalise about such acts, and the application of the principle may be fact sensitive. Guidance, however, is to be found in such considerations as to whether there are 'judicial or manageable standards' by which to resolve the dispute, whether the court would be in 'a judicial no-man's land' ...
The public policy limitation
2010] FCAFC 12. That case concerned a claim by an Australian citizen that Australian officials had committed various torts (misfeasance in public office and indirect infliction of harm by aiding and abetting, and counselling) in relation to his torture and ill-treatment by agents of a foreign government while he was in Pakistan, Egypt, Afghanistan and Guantanamo Bay. The issue before the Court[28] was whether Mr Habib's case should be dismissed on the grounds that his claims were not justiciable, since their resolution would require a determination of whether agents of foreign states had acted unlawfully within the territories of those foreign states. The leading judgment was given by Jagot J, with whom Black CJ agreed. Although the issue was decided within the framework of the Australian Constitution, in the course of her judgment Jagot J addressed a number of points which the Claimants contend are relevant to the present case.
[
[114] As Mr Habib said, the consequences of the Commonwealth's submission is that Commonwealth officials would not be held accountable in any court for their alleged breaches of Australian laws having extra-territorial effect. The consequence of Mr Habib's submissions, in contrast, is that each set of government officials would be able to be held accountable for their actions in their national courts ...
A similar point is made on the Claimants' behalf here.
[115] ... the claim is by an Australian citizen against the Commonwealth of Australia. Findings will be necessary as facts along the way but no declaration with respect to the conduct of foreign officials is required. Those officials will not be subject to the jurisdiction of an Australian court (or, for that matter, any international court by reason of this proceeding) ...
...
[118] ... While this case will involve factual findings about the conduct of foreign officials, the context in which their conduct arises for consideration is inconsistent with the acceptance of the Commonwealth's proposition that international comity might be undermined. The case involves an Australian court considering and determining whether, as alleged, officials of its own government aided, abetted and counselled foreign officials to inflict torture upon an Australian citizen in circumstances where the acts of those foreign officials, if proved as alleged, would themselves be unlawful under Australian laws having extra-territorial effect.
[119] The separation of powers rationale cannot be considered in isolation from that of justiciability. Issues for which there are no 'judicial or manageable standards' of judgment are outside the reach of the judicial branch (Buttes at 938 ...). But, as Mr Habib's submissions proposed, in this case there are clear and identifiable standards by which the conduct in question may be judged - the requirements of the applicable Australian statutes and the international law which they reflect and embody. The Court will not be in a 'judicial no-man's land' (Buttes at 938).
[
30] In addition, the case proceeded on the basis that foreign relations would not be affected by a decision on the claim and the facts were not in dispute.
31] suggests that the Court should adopt a rigorous and confined approach to its application. In the Kuwait Airways case, the House of Lords was concerned with an alleged infraction of international law sufficient to justify refusing to recognise a foreign law on public policy grounds.
[16] … Exceptionally and rarely, a provision of foreign law will be disregarded when it would lead to a result wholly alien to fundamental requirements of justice as administered by an English court. A result of this character would not be acceptable to an English court. In the conventional phraseology, such a result would be contrary to public policy. Then the court will decline to enforce or recognise the foreign decree to whatever extent is required in the circumstances.
[17] This public policy principle eludes more precise definition. Its flavour is captured by the much repeated words of Judge Cardozo that the court will exclude the foreign decree only when it 'would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal': see Loucks v Standard Oil Co of New York (1918)
[18] Despite its lack of precision, this exception to the normal rule is well established in English law. This imprecision, even vagueness, does not invalidate the principle. Indeed, a similar principle is a common feature of all systems of conflicts of laws. The leading example in this country, always cited in this context, is the 1941 decree of the National Socialist Government of Germany depriving Jewish émigrés of their German nationality and, consequentially, leading to the confiscation of their property. Surely Lord Cross of Chelsea was indubitably right when he said that a racially discriminatory and confiscatory law of this sort was so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all: Oppenheimer v Cattermole [1976] AC 249, 277-278. When deciding an issue by reference to foreign law, the courts of this country must have a residual power, to be exercised exceptionally and with the greatest circumspection, to disregard a provision in the foreign law when to do otherwise would affront basic principles of justice and fairness which the courts seek to apply in the administration of justice in this country. Gross infringements of human rights are one instance, and an important instance, of such a provision.
32] it is only where the breach is clear and acknowledged before the proceedings are commenced that the public policy exception can apply. If this were not so, the Court would have to engage in an enquiry into the facts which the doctrine excludes, in order to decide whether the doctrine applies.
33] However, I am not persuaded that the House of Lords was intending to lay down an absolute and invariable test for the public policy exception. The importance of a rigorous test is that there should be principles which the court can apply in order to avoid the adjudication problems which arose in the Buttes Gas litigation.[34] This does not mean that a defendant can defeat the public policy exception by denying the facts relied on.
The golden rule is that care must be taken not to expand the [public policy exception] beyond the true limits of the principle. These limits demand that, where there is room for doubt, judicial restraint must be exercised. But restraint is what is needed, not abstention. And there is no need for restraint on grounds of public policy where it is plain beyond dispute that a clearly established norm of international law has been violated.
2002) 14187, where the Federal Court described a four-factor 'balancing test' for determining whether the act of state doctrine applied. The first three factors derived from the US Supreme Court decision in Banco Nacional de Cuba v. Sabbatino:[36] (1) the greater the consensus concerning the international law issue, the more appropriate it is for the judiciary to render decisions regarding it; (2) the less important the implications of an issue for foreign relations, the weaker the justification for attaching weight to political or comity considerations; and (3) the potential for the balance to shift if the government which perpetrated the act of state no longer exists. The fourth factor was whether the foreign state was acting in the public interest.[37] This approach with different factors having different weight in a forensic equation suggests that the ultimate decision will be sensitive to the particular facts of the case.
... the lack of judicial or manageable standards by which to judge these issues, or to adopt another phrase,... the Court would be in a judicial no-man's land.
2002] EWCA Civ 1598.
2001] 2 AC 477.
To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all.
Although the statutory context in which Adan was decided was highly material, the passage from Lord Cross's speech in Cattermole supports the view that, albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.
2002] EWHC 2777 (Admin), the Divisional Court[45] emphasised the importance of any such judicial decision having a 'foothold in domestic law' before any ruling could be given. As Richards J expressed it at [61(iii)]
By way of exception to the basic rule,[46] situations arise where the national courts have to adjudicate upon the interpretation of international treaties e.g. in determining private rights and obligations under domestic law and/or where statute requires decisions to be taken in accordance with an international treaty; and in human rights cases there may be a wider exception. Those examples feature in the discussion in Abbasi at paras 51-57. None of them applies here.
2012] 3728 (Admin), in which Moses LJ at [22], after a brief review of authorities, including Adan, Abbasi and the CND case, stated.
Those cases demonstrate that the mere fact that the issues are those which the courts 'have traditionally been very reluctant to entertain' will not necessarily be dispositive of the issue of justiciability. If a domestic right or obligation can be identified and can only be vindicated by consideration of the actions of other states under international law, then the courts may be compelled to undertake that task to the extent that it is necessary for that purpose.
2000] QB 520 at 535E, the Court of Appeal (Criminal Division), when considering an appeal based on an abuse of process, was prepared directly to impugn the conduct of state officials (in Zimbabwe) acting in complicity with the British authorities.
In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the defendant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of public international law.
2013] 1 AC 614 at [70], where Lord Kerr (giving a judgment with which the majority agreed) drew a distinction between cases where the Court was being asked to consider whether a foreign state was in breach of its international obligations (on the one hand) and the claimant's case that the defendant was directly at fault (on the other).
... the legality of the US's detention of Mr Rahmatullah is not under scrutiny here. It is the lawfulness of the UK's inaction in seeking his return that is in issue.
The Kirkpatrick limitation
The relevance of the applicable law
Issue (2): Applicable Law
11-12 of the Private International Law (Miscellaneous Provisions) Act 1995 (the '1995 Act'). Secondly, if the applicable law is the former, whether the Court should apply English law in the absence of pleading and proof that the law of those states is different. However, Mr Hermer submitted that there was a logically prior question: whether the issue of applicable law is fact sensitive; and whether for this reason it should not be determined at this stage.[50]
... reliance on foreign law is inappropriate and otiose not least because:
(i) it is to be presumed that the law of all relevant countries will provide a remedy to victims of serious human rights violations.
12 of the 1995 Act.
12 of the 1995 Act, or (c) if a foreign law applies, the Defendants should plead it.
11 of the 1995 Act provides:
(
(
(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;
(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.
(
11(1) may not provide a clear answer in this case; but to the extent that it is alleged that the events occurred in more than one country, s.11(2) applies. The applicable law for a cause of action in respect of injury caused to an individual is the law of the country where he or she was when he or she sustained injury. On this basis, the applicable law for determining the allegations of false imprisonment is the law of the country in which the Claimants allege they were unlawfully detained. Thus the laws of China would apply to allegations in relation to the events which occurred in China; and the laws of Malaysia in relation to the events which occurred in Malaysia.
11 can be displaced by the operation of s.12 in a case where it is 'substantially more appropriate' for the law of another state to apply.
(
(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(
2002] 1 WLR 2304, Waller LJ at [12(v)].
12 of the 1995 Act) since the matters of complaint were carried out in purported exercise of state authority and it is probable that the acts and omissions relied upon occurred while the First and Second Defendants were in the United Kingdom.
1 AC 332 the House of Lords had to consider a similar situation (an allegation of illegal detention of a claimant with dual British and Iraqi nationality by British forces in Iraq). In that case Lord Brown stated at [138].
Unless the appellant can show that it is 'substantially more appropriate' (section
until the basis for that detention is evidenced. If, for example, it transpires that the Malay authorities held and transferred the Claimants solely for entirely legitimate immigration grounds, then there is unlikely to be a dispute on the legality of that detention and consequently the claim against the Defendants would not be pursued in respect of that period. If, however, the evidence indicates that purpose of detention, or continued detention, and/or transfer of the Claimants was to effect their unlawful kidnap and rendition to Libya, then it is reasonable to assume that this would not be sanctioned by local law.
2 All ER 941 to support a contention that any determination under s.12 should not be made on the basis of the Particulars of Claim alone. Secondly, he relied on observations by the House of Lords in the case of Anyanwu v. South Bank Students Union [2001] 1 WLR 638, deprecating the practice of resolving issues of law without the necessary findings of fact.[56] Thirdly, he argued that, in the meantime, the case should proceed on the basis of the presumption that foreign law was the same as English law, see Dicey, Morris and Collins, The Conflict of Laws, 15th Edition, Ch.9 rule 25(2).
32-34 of the 1st Defendant's Defence that English law is not the applicable law and the assertion in §9 of the Reply that it is for the Defendants to advance a case that foreign law applies.
2003] EWHC 1783 (QB) [37].
I further accept that it was held in University of Glasgow v. Economist, that at least at the pleading stage, a claimant is entitled to rely on the presumption that the foreign laws are the same as English law.
He went on to add.
The Supreme Court Procedure Committee's Report on Practice and Procedure in Defamation (July 1991) described the presumption as 'quite unrealistic and curiously egocentric in the post-imperial age'.
(a) Although it is open to criticism and subject to exceptions, a court of first instance cannot ignore the rule[57] that, in the absence of evidence, foreign law is presumed to be the same as English law.
(b) On the other hand, I consider that the decision in University of Glasgow and another v. The Economist and another is of doubtful continuing authority. The case was decided in 1990 (and reported at [1997] EMLR 495) under the old pleading rules in Order 18. I am doubtful whether the practices of libel pleading should be applied more widely; not least because the double-actionability rule still applies to defamation proceedings.
(c) It is not consonant with the overriding objective of the Civil Procedure Rules, in a case where the 1995 Act applies, for a party either to decline to plead the relevant provisions of the applicable law or to rely on a presumption that a foreign law is the same as English law. Such an approach is evasive. There may of course be an issue as to which particular law applies, but that is a different matter. The 'parochial' approach, which 'presupposes that it is inherently just for the rules of the English domestic law of tort to be indiscriminately applied regardless of the foreign character of the circumstances and the parties', is precisely the mischief which the Law Commission sought to remedy, and which was remedied by the 1995 Act, see per Brooke LJ (with whom May and Rix LJJ agreed) in R (Al-Jedda) v Secretary of State of Defence [2007] QB 621 at [103], in a judgment which was upheld by the House of Lords ([2008] 1 AC 332).
20, where the Defendants sought to set aside various orders on the basis (among others) that as a matter of Indonesian law, 'as to which there was some evidence', three of the grounds for service out were held not to be sustainable. At [70] the Court said,
It will often be the case that the material provided as to the foreign law will be of an incomplete or provisional nature unsupported by detailed authority or by materials of the weight or complexity suitable to a final disposal, but nonetheless sufficient to satisfy the court that an arguable defence or other relevant issue has been established for the purposes of a decision at that stage of the proceedings. Nonetheless, the party who asserts that the application of foreign law would provide a different result bears the burden of satisfying the court that that is so. If the evidence proffered is of such incomplete, inconsistent or unconvincing character that it is sufficient for its purpose, it is not necessary for the opposing party to adduce its own contradictory evidence from an expert.
Conclusion on the act of state doctrine
2013) 57 EHRR, where there was an allegation of breaches of Article 3 of the ECHR by reason of the respondent state's involvement in torture at, and rendition by US authorities from, Skopje. The Court held[60] unanimously:
(5)... the respondent state was responsible for the ill-treatment to which the applicant was subjected at Skopje Airport and that such treatment was classified as torture within the meaning of article
(6) that the responsibility of the respondent state was engaged with regard to the applicant's transfer into the custody of the US authorities despite the real risk that he would be subjected to further treatment contrary to article
3 is made against the Defendants. Secondly, the ECtHR's findings were predicated upon proof of the facts 'beyond reasonable doubt', [61] which is not a test which can be satisfied on the basis of pleadings whose content is either not admitted or denied.
Summary
(1) although the state immunity doctrine does not operate as a bar to the claim,
(2) the act of state doctrine does operate as a bar to the claim; and accordingly,
(3) the claims should be struck out on the basis that they are non-justiciable, save to the extent that they rely on allegations of negligence.
Note Note Note Note 4 See for example, Dicey, Morris and Collins on the Conflict of Laws, 15th Ed. ( Note 5 See Lord Millett in R v. Bow Street Magistrate, Ex p. Pinochet (No. Note 6 Rix, Longmore and Davis LJJ. [Back] Note 7 which ‘cannot be reduced to a single formula’, see Yukos at [ Note 8 ICJ Reports Note 9 See Jurisdictional Immunities case at [89]. Germany acknowledged that the acts giving rise to the claim were unlawful and the Court proceeded on the assumption that they constituted crimes against humanity, see [52]. [Back] Note Note Note Note Note 14 The Parlement Belge (1880) 5 PD 197, The Cristina [1938] AC 485, USA and the Republic of France v. Dollfus Mieg et Cie SA [1953] AC 582 and Rahimtoola v. Nizam of Hyderabad [1958] AC 370. [Back] Note 15 See s. Note 16 See for example the speech of Lord Porter in the Dollfus Mieg case (above) at 612. [Back] Note 17 See Lord Bingham in Jones (above) at [ Note 18 See again, Lord Bingham in Jones (above) at [ Note 19 See for example: A and others v. Secretary of State for the Home Department (No. Note Note Note Note 26 A Ltd v. B Bank [1997] ILPr 586 and Berezovsky v. Abramovich [ Note 27 [ Note 28 See the judgment of Black CJ at [4]. [Back] Note 29 See the judgments of Black CJ at [4], Perram J at [37] and Jagot J at [ Note Note Note Note Note 34 See Lord Nicholls in Buttes Gas at [26]. [Back] Note 36 376 US 398 (164) at 428 [Back] Note 41 The judgment of the Court: Lord Phillips MR, Waller and Carnwath LJJ. [Back] Note 42 See Abbasi at [53]. [Back] Note 44 SeeR (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs, referred to later in this judgment, [ Note 45 Simon Brown LJ, Maurice Kay and Richards JJ. [Back] Note 46 That international treaties do not form part of domestic law and that national courts have no jurisdiction to interpret them, see Richards J at [61(i)]. [Back] Note 47 Lord Kerr at [53] [Back] Note 48 See the earlier references to the speeches of Lord Nicholls, Lord Steyn and Lord Hope inKuwait Airways v. Iraqi Airways (nos.4 and 5). [Back] Note 49 Lord Wilberforce in Blaythwayt v. Baron Cawley [1976] AC 397, 426, referred to in the judgment of the Court of Appeal in Kuwait Airways (4) and (5) at [314] [Back] Note 50 See §4.4 of the Claimants’ skeleton argument. [Back] Note 51 §8 of the Reply. [Back] Note 52 §8(iii) of the Reply. [Back] Note 53 §8(iii) of the Reply (and §4.6. Note 54 The First Claimant was at all material times a Libyan national and the Second Claimant, a Moroccan national. [Back] Note 55 Claimants’ skeleton argument §4.4. [Back] Note 56 Lord Steyn at [24] and Lord Hope at [37]. [Back] Note 57 It has existed since at least the decisions in Dynamit AG v. Rio Tinto Co [1918] AC 260, Note 58 Yukos at [69] see above. [Back] Note 59 Habib at [1 A footnote to §1 of the Particulars of Claim reads, ‘rendition’ is a euphemism commonly used since about 2001 to describe covert unlawful abduction organised and carried out by state agents, across international borders, for the purpose of unlawful detention, interrogation and /or torture.
The Report of the Intelligence and Security Committee on Rendition (July 2007) gives the following definitions at §7:
‘Rendition’: encompasses any extra-judicial transfer of persons from one jurisdiction or State to another.
‘Extraordinary Rendition’: the extra-judicial transfer of persons from one jurisdiction or State to another for the purpose of the detention and interrogation outside the normal legal system where there is a real risk of torture or cruel, inhuman or degrading treatment.
At §8 there is a further definition of Extraordinary Rendition: ‘A transfer to a secret facility constitutes cruel and inhuman treatment because there is no access to legal or other representation.’
[Back]2 Defendants’ skeleton argument §24. [Back]3 ‘Even though the doctrine has spawned a wealth of cases and scholarly writings, there has been little agreement as to the exact ‘scope of the doctrine or the policies underlying its application.’ In fact it has been described as a doctrine of judicial prudence or deference, judicial restraint, judicial abstention, issue preclusion, conflict of laws and choice of law.’ Alderton, ‘The Act of State Doctrine: Questions of Validity and Abstention from Underhill to Habib,’ Melbourne Journal of International Law. Volume 12, Issue 1 (June 2011), citing Bayzler, ‘Abolishing the Act of State Doctrine (1986). [Back]2012) §§5-043 to 5-045. [Back]3) [2000] 1 AC at 268-9. [Back]113]. [Back]2012, Judgment of 3 February 2012. At issue was the existence and ambit in International law of the jurisdictional immunity from claims made against Germany in the Italian courts, and from measures taken against its property in Italy, see [52]. [Back]10 See Jurisdictional Immunities case at [96]. [Back]11 Lord Bingham at [1]. [Back]12 See Lord Bingham in Jones at [8] [Back]13 The Sultan of Johore case at p.243. [Back]1(2) of the 1978 Act. [Back]30]. [Back]31]. [Back]2) [2006] 2 AC 221; AS and DD (Libya) SC 42 & 50/2005 (SIAC 2007 Ouseley J); HT (Cameroon) v. Secretary of State for the Home Department [2011] 1 AC 596; SK (Zimbabwe) v. Secretary of State for the Home Department [2012] 1 WLR 2809. [Back]21 In particular: Underhill v. Hernandez 168 US 250 (1897), Fuller CJ; Oetjen v. Central Leather Co 246 US 297 (1918) Justice Clarke at 245-6; Buttes Gas and Oil Co v. Hammer (No.3) [1982] AC 888 [Back]22 See Oetjen v Central Leather (above) [Back]23 In fact this did not arise inYukos, so this observation is not part of the ratio. [Back]2011] EWCA Civ 153. [Back]2002] 2 AC p.971; also set out as part of the judgment in Yukos at [113]. [Back]121]-[133]). [Back]30 Jagot J at [93]. [Back]31 Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19. [Back]32 Breaches of International law which were ‘plain, and indeed acknowledged’, per Lord Nicholls at [26], ‘gross’, per Lord Steyn at [113] and ‘plain beyond dispute.’ [Back]33 While noting that in Habib at [110], Jagot J concluded that ‘the cases do not support a distinction between known and alleged violations.’ [Back]2012] EWHC 3728 (Admin) Moses LJ at [21]. [Back]3 of the Claimants’ skeleton argument). [Back]301 and The Parchim [1918] AC 157,161. [Back]131] see above. [Back]