Ministry of Defence v Iraqi Civilians [2016] UKSC 25

Iraqi civilians sued the MoD in England for alleged mistreatment by British forces in Iraq. The Supreme Court held that Iraqi limitation law applied but the suspensory provision in article 435 did not extend the period, as CPA Order 17’s bar on Iraqi proceedings was irrelevant to English proceedings.

Facts

The 14 lead claimants, representing over 600 Iraqi civilians, alleged unlawful detention and physical mistreatment by British armed forces in Iraq between 2003 and 2009. It was common ground that any tortious liability of the Ministry of Defence was governed by Iraqi law. Under article 232 of the Iraqi Civil Code, the standard limitation period for such claims is three years from the date the claimant became aware of the injury and its cause. The action was commenced more than three years after most claimants must have become aware of these matters.

The claimants sought to rely on article 435 of the Iraqi Civil Code, which suspends limitation where there is a ‘lawful excuse’ including any ‘impediment rendering it impossible for the plaintiff to claim his right.’ They contended that Coalition Provisional Authority Order 17, which conferred immunity on coalition forces from Iraqi legal process, constituted such an impediment. It was agreed that CPA Order 17 made it impossible to sue the British government in Iraq throughout the relevant period. There was, however, no impediment to suing in England.

Issues

The principal issue was whether, in proceedings brought in England governed by Iraqi law as the lex causae, the suspensory provision in article 435 of the Iraqi Civil Code was engaged by an impediment (CPA Order 17) which prevented proceedings in Iraq but had no effect on proceedings in England. This required consideration of how the Foreign Limitation Periods Act 1984 operates where the foreign limitation rule depends on facts that are not germane to litigation in England.

Arguments

Claimants

The claimants argued that an English court applying the 1984 Act must give effect to the whole of the relevant Iraqi limitation law. They submitted that the express disapplications in section 2 of the Act (public policy and absence from the jurisdiction) implied that no other circumstances permitted disapplication. As CPA Order 17 made Iraqi proceedings impossible, article 435 suspended time indefinitely.

Ministry of Defence

The MoD contended (consistent with the Court of Appeal’s reasoning) that CPA Order 17 was not a rule of limitation falling within sections 1(1) and 4 of the 1984 Act, nor a substantive rule of Iraqi law to be applied via private international law. It was a procedural and local immunity with no relevance in an English court.

Judgment

The Supreme Court (Lord Sumption giving the lead judgment, with whom Lord Neuberger, Lady Hale, Lord Mance and Lord Reed agreed) dismissed the appeal, affirming the Court of Appeal’s order, though on different reasoning.

Lord Sumption clarified that, although CPA Order 17 had no legal effect outside Iraq, its consequences could nevertheless be relevant as fact. Article 435 raises factual questions of ‘impediment’ and ‘impossibility’, and the parties agreed that CPA Order 17 did render proceedings in Iraq impossible.

The decisive question, however, was whether it was legally relevant, in proceedings brought in England, what impediments might have prevented similar proceedings in Iraq. Lord Sumption held this was a question of English law, not Iraqi law. The Foreign Limitation Periods Act 1984 requires the English court to ascertain the relevant foreign limitation rules and then apply them to the English proceedings. Because foreign limitation rules are designed for foreign proceedings, a process of transposition is required: some facts relevant to foreign proceedings may be irrelevant in England.

Where the foreign rule depends for its operation on facts about the proceedings, the relevant facts are those concerning the actual proceedings in England, not hypothetical proceedings in Iraq that the claimants had not brought and indeed could not bring. Impediment and impossibility relate to the bringing of the actual proceedings, and there was no impediment to bringing them in England.

Lord Sumption rejected the argument that this disapplied part of Iraqi law: it merely involved applying the same Iraqi principles to different facts. He also rejected Leggatt J’s concern about irrationality where a temporary impediment in England might allow a claim to proceed here when time-barred in Iraq, observing that this simply reflects the fact that practical impediments may differ between jurisdictions.

Implications

The decision clarifies the operation of the Foreign Limitation Periods Act 1984 where foreign limitation rules depend on factual circumstances relating to the bringing of proceedings. The English court ascertains the foreign rule but applies it to the facts of the English proceedings, transposing the rule accordingly. Facts pertinent only to hypothetical foreign proceedings are not to be treated as if they applied to the actual English action.

The judgment is significant for claims brought in England under a foreign lex causae, particularly involving allegations against UK forces or government bodies overseas where local immunities or procedural bars may exist. It prevents claimants from indefinitely extending limitation by reference to obstacles that have never affected their ability to sue in England.

The Court did not decide whether section 2(1) of the 1984 Act (undue hardship) was engaged, as that was not part of the preliminary issue. The decision leaves intact the broader distinction in English private international law between substance and procedure as modified by the 1984 Act, and confirms that ascertaining foreign law concerns identifying the relevant rule, with application of that rule to the facts being the function of the English court.

Verdict: Appeal dismissed; the order of the Court of Appeal was affirmed. The suspensory provision in article 435 of the Iraqi Civil Code did not apply to the English proceedings because CPA Order 17 created no impediment to suing in England.

Source: Ministry of Defence v Iraqi Civilians [2016] UKSC 25