Bici v Ministry of Defence [2004] EWHC 786 (QB) (07 April 2004)

During peacekeeping operations in Kosovo, British soldiers opened fire on a car, injuring the claimants. Sued in tort, the Ministry of Defence argued self-defence. The High Court applied English law, finding the soldiers liable for trespass to the person as their belief of an imminent attack was unreasonable.

Facts

In 2001, in Pristina, Kosovo, a British Army patrol was involved in a public order incident. The claimants were passengers in a Volkswagen Golf which drove towards the soldiers. Believing they were under attack from the vehicle, three soldiers opened fire. One passenger, Mr Bici, was killed (his claim was settled before trial). The two claimants, his son Sheremet Bici and another passenger, suffered physical and psychiatric injuries. The claimants brought an action in tort against the Ministry of Defence (MoD) for trespass to the person (battery and assault).

Issues

The court had to determine several key legal issues:

1. Choice of Law: Should the applicable law be the law of Kosovo (the lex loci delicti), where the tort occurred, or should it be displaced in favour of English law under the Private International Law (Miscellaneous Provisions) Act 1995?
2. Trespass to the Person (Battery): Had the claimants established the elements of battery, namely the intentional and direct application of force?
3. Self-Defence: If battery was established, could the MoD prove the lawful justification of self-defence? This required the court to define the test for self-defence in the context of peacekeeping operations.
4. Assault and Transferred Intent: Could a claimant who was not physically struck but suffered psychiatric injury from the incident recover damages for assault, and could the doctrine of transferred intent apply?

Judgment

Mr Justice Elias found in favour of the claimants on all substantive issues.

Choice of Law

The judge ruled that English law was the applicable law. While the general rule under the 1995 Act is that the law of the place where the tort occurs applies (Kosovan law), section 12 allows for this rule to be displaced if it is ‘substantially more appropriate’ to apply the law of another country. The judge found that because the parties were the claimants (Kosovan nationals) and the MoD (a UK government department), and the soldiers were British, subject to UK military discipline and Rules of Engagement based on English law, it was substantially more appropriate to apply English law. He stated:

I am satisfied that it is substantially more appropriate for the applicable law to be the law of England and Wales and that I ought to apply that law pursuant to section 12 of the 1995 Act.

Liability and Self-Defence

The judge found that the firing of the weapons was an intentional act, establishing a prima facie case of battery. The burden then shifted to the MoD to establish the defence of self-defence. Mr Justice Elias established a two-part test for self-defence in tort:

First… the soldier must have a genuine belief that he is facing an attack and that it is necessary to respond with force. But in addition the belief must be a reasonable one.

After a detailed analysis of the evidence, the judge concluded that while the soldiers may have subjectively and honestly believed they were about to be attacked, this belief was not objectively reasonable in the circumstances. The force used was therefore not lawful. He concluded:

I have concluded that even if the soldiers genuinely believed that they were about to be attacked, that belief was not in the circumstances a reasonable one. For that reason, the plea of self defence fails.

Assault and Transferred Intent

For the claimant who suffered psychiatric injury but no physical impact, the judge considered the law of assault and the principle of transferred intent (or transferred malice). He held that the soldiers intended to commit battery against the occupants of the car. That intention could be ‘transferred’ to a claimant who, while not physically hit, was a direct victim of the tortious act and suffered recognisable psychiatric harm as a result. The judge reasoned:

The claimant was a victim of the unlawful shooting, just as the other occupants of the car were. In my judgment, where the defendant is liable for the direct consequences of his tort, whether foreseeable or not, there would be no justice in precluding a claimant from recovering in these circumstances.

Implications

The case is highly significant for establishing that the actions of British soldiers during overseas peacekeeping missions can be subject to English tort law. It confirms that the common law defence of self-defence requires not only an honest belief of imminent threat but also that the belief must be objectively reasonable. Furthermore, it clarifies the application of transferred intent in trespass to the person, allowing recovery for psychiatric injury directly caused by an intentional, unlawful act, even without physical impact on that specific claimant. The decision has important ramifications for the Ministry of Defence’s liability for the conduct of armed forces abroad.

Verdict: The claimants’ actions succeed. The court found in favour of the claimants, with damages to be assessed at a later date.

Source: Bici v Ministry of Defence [2004] EWHC 786 (QB) (07 April 2004)