Iraqi Civilian Litigation v Ministry of Defence

An important question which needs to be resolved in the Iraqi Civilian Litigation is whether claims have been brought in time or whether they are barred by an applicable statute of limitation. This judgment follows the trial of a short but significant set of preliminary issues to decide one aspect of that question.

I will explain and discuss the preliminary issues in this judgment and record my answers to them at the end. The issues are as follows:

“1.

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?

2.

If so, and as a matter of English law, is article 435(1) to be disregarded in relation to such heads of claim pursuant to s.2(3) of the Foreign Limitation Periods Act 1984?

3.

In any case, and as a matter of Iraqi law:

(a)

on what date did CPA Order 17 cease to have effect on new causes of action arising; and

(b)

if under article 435(1) the condition to suspend the limitation period is met, does it also suspend the period of 15 years provided for in Article 232?”

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.

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.

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, the law applicable to the tort claims is the law of Iraq.

Section 1(1) of the Foreign Limitation Periods Act 1984 states:

“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.”

Section 4 of the Act makes it clear that the law of any country “relating to limitation” includes any law relating to, and to the effect of, the “application, extension, reduction or interruption” of any limitation period.

Subject to two exceptions or potential exceptions provided for in section 2 of the Act which I will come to later, it is common ground that in accordance with these provisions the court must apply the Iraqi law relating to limitation, and not English law, in deciding whether the claims founded on the Iraqi law of tort are time-barred.

The principles to be applied when an English court has to decide the effect of a foreign statute are well established and have not been the subject of any dispute. In particular:

At this trial, the court has had the benefit of receiving written and oral evidence from two distinguished experts on Iraqi law. The claimants adduced evidence from Mr Saleh Majid, an Iraqi advocate and attorney with more than 45 years’ legal experience. The defendant’s expert was Professor Haider Ala Hamoudi who is a member of faculty at the University of Pittsburgh School of Law. Although Professor Hamoudi has never studied or practised law in Iraq, there is no doubt about his scholarship.

Iraq has a Civil Code. It is based on the Egyptian Civil Code, which in turn is based to a large extent on the French Civil Code. The experts each gave their own translations of the relevant provisions of the Iraqi Civil Code, which naturally differed slightly from each other and from a published English translation which was included in the bundles for the hearing. I did not perceive any of the differences to be material and I will quote from the published translation.

Article 232 of the Civil Code (in this translation) states:

“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.”

It is common ground that many of the claims in the Iraqi Civilian Litigation were not commenced until after the expiry of the three year limitation period prescribed by article 232.

The 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:

“(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.”

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. The impediment is said to consist in immunity from suit in Iraq conferred on (amongst others) all British military personnel by Coalition Provisional Authority Order No 17 (“CPA Order 17”). The main purpose of the present preliminary issues is to decide whether this case is correct.

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. Section 2 of the Order (in its revised form) states:

“(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. …”

The original Order contained similar provisions.

The following matters are common ground:

There is an issue about exactly when the period covered by CPA Order 17 ended. Section 20 of the Order (as revised) states:

“Effective Period

This Order shall enter into force on the date of signature. It shall remain in force for the duration of the mandate authorising the MNF under UN Security Council Resolutions 1511 and 1546 and any subsequent relevant resolutions and shall not terminate until the departure of the final element of the MNF from Iraq, unless rescinded or amended by legislation duly enacted and having the force of law.”

It is common ground that the UN mandate authorising the MNF ended on 31 December 2008 and that the final US troops left Iraq on 18 December 2011. The opinion of the claimants’ expert, Mr Majid, is that the Order remained in force until the latter date. The opinion of the defendant’s expert, Professor Hamoudi, is that the Order terminated on the earlier date of 31 December 2008. Professor Hamoudi bases his opinion on the definition of the “MNF” in section 1(1) of the Order. This states:

“’Multi National Force’ (MNF) means the force authorised under UN Security Council Resolutions 1511 and 1546, and any subsequent relevant UN Security Council Resolutions.”

In Professor Hamoudi’s view, there was no “MNF” as defined in the Order after 31 December 2008. Therefore, the words “until the departure of the final element of the MNF from Iraq” in section 20 do not extend the effective period of the Order beyond that date as there was no “MNF” after its UN mandate expired. In any event, any US or UK military personnel present in Iraq after 31 December 2008 were not “MNF personnel” and therefore did not fall within section 2 of the Order.

Mr Majid’s response is that the words referring to the departure of “the final element of the MNF from Iraq” must have been intended to add something and in particular must have been intended to ensure that for as long as any troops from the countries which contributed to the MNF remained in Iraq they would have the protection of the Order.

I can see the force of Mr Majid’s view. However, it seems to me that in circumstances where the experts are agreed that an Iraqi court would give primacy to the text of the legislation and the text includes an express definition of the “MNF” which on the facts is incapable of applying after 31 December 2008, it is difficult to interpret the Order in this way. Mr Majid also accepted in cross-examination that, if fresh US troops were sent out to Iraq after 31 December 2008, those troops could not be said to be “MNF Personnel” and would therefore not be covered by the Order. It would seem irrational to make the existence of immunity dependent on whether the soldier responsible for an allegedly unlawful act committed after 31 December 2008 was already stationed in Iraq before that date or was sent out afterwards. For these reasons, I consider the opinion of Professor Hamoudi to be the better view and conclude that the effective period of the Order ended on 31 December 2008.

I am told that this point at present has no practical significance since, so far at least, no claim has been brought which relates to any alleged act or omission of British forces after 31 December 2008. In these circumstances I do not think it necessary to address the further question on which the experts also disagree of whether, if Mr Majid’s opinion about the duration of CPA Order 17 is right, the Order was in any event suspended after that date by Resolution 50 of 2008.

It might be thought from reading section 20 that after the period specified in that section had ended the Order would no longer have any legal force at all. It is common ground between the experts, however, that this is not the effect of section 20. They are agreed that, whilst the Order provides no immunity for acts occurring after its termination date (which I have found was 31 December 2008), the immunity which it affords for acts which occurred before that date is of enduring effect.

The experts are accordingly agreed 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.

On this footing, I turn to the key question in dispute. That question is whether article 435 of the Civil Code suspends the limitation period in circumstances where it is impossible for a claimant to bring his claim in Iraq but it is nevertheless possible for him to do so in another jurisdiction, in this case England. The answer to this question depends on the territorial scope of article 435. In particular, as properly interpreted by an Iraq court, does it mean that the time limit is suspended if there is an impediment rendering it impossible for the plaintiff to claim his right in Iraq; or does it have 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 in the world?

The opinion of the claimant’s expert, Mr Majid, is that the former interpretation is correct. 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:

The defendant’s expert, Professor Hamoudi, disagreed with Mr Majid’s interpretation of article 435 but did not advance any clear alternative view of how an Iraqi court would interpret the language of article 435 in terms of its territorial scope.

One of the questions discussed by the experts for the purpose of identifying points of agreement and disagreement between them was the following:

“Would an Iraqi court hearing a case of an Iraqi civilian as against the United Kingdom or any of its forces present in Iraq, in respect of acts or omissions occurring during the period that CPA Order 17 was in effect, consider the possibility of bringing a claim in England or other countries when considering whether the limitation period should be suspended by reason of CPA Order 17 for the purposes of article 435?”

The experts agreed that the answer to this question is “no”. It follows that it cannot be Professor Hamoudi’s opinion that the impediment referred to in article 435 is one which makes it impossible for the claimant to claim his right anywhere in the world.

Nevertheless, the experts’ joint statement went on to record that there were important differences between them concerning this question. In particular, Professor Hamoudi’s opinion was recorded as being that the question is “entirely irrelevant”, as:

“Article 435 makes no reference to narrowing the consideration of factors to those relevant to bringing a case in Iraq. Nor, Professor Hamoudi maintains, would it make sense to do so when, as here, the case is not brought in an Iraqi court. Article 435 merely initiates a suspension of a statute of limitations where there is a legitimate reason that renders it impossible for a claimant to make a claim. Any court hearing the case would assess that Iraqi law standard (as further elaborated in cases and commentaries) based on its own determination of whether it was or was not impossible to make the claim before it during any given period.”

Professor Hamoudi’s position was further elaborated in his supplementary expert’s report.

It was understandable in the light of some of the statements made in Professor Hamoudi’s reports that Mr Majid and the claimants’ counsel had the impression that Professor Hamoudi was trespassing into matters of English private international law in identifying the question which he thought the English court should address. It was only in Mr Sweeting QC’s closing oral submissions on behalf of the defendant that it became entirely clear that Professor Hamoudi’s position, at least as understood by the defendant, is indeed based on a view about the meaning of article 435 as a matter of Iraqi law. As I understood Mr Sweeting’s submissions, the interpretation for which the defendant contends is 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. Thus, if proceedings are brought in Iraq, the Iraqi court must consider whether it was possible for the claimant to sue in Iraq, and is not concerned with the possibility of suing anywhere else. But where proceedings are brought in England, the English court must consider, and consider only, whether it was possible to sue in England during the relevant period.

My first difficulty with this contention is that I do not think that it was ever explained by Professor Hamoudi in his evidence with sufficient clarity that this is how he believes that article 435 would be interpreted by an Iraqi court. That means that there is in my view no adequate evidence to support the defendant’s case as to how article 435 should be read. A further consequence is that Mr Majid did not in my view have a proper opportunity to comment on the interpretation contended for by the defendant, either in any expert report or in cross-examination.

It seems to me that some confusion may have arisen from the fact that because an Iraqi court applying article 435 of the Civil Code is, by definition, situated in Iraq, an Iraqi court would never in practice have to choose between Mr Majid’s view of how article 435 should be interpreted and the defendant’s interpretation. Both would lead to exactly the same result in every case. This does not mean, however, that an Iraqi court could not decide, if required to do so, which of the two interpretations is correct. As with any question of foreign law, the English court must answer the hypothetical question of what the foreign court would decide if it were to decide the particular point. There is no difficulty in principle in addressing that question.

Quite apart from the evidential problems with the defendant’s case, I cannot accept that it represents how an Iraqi court would interpret article 435. That is because I found the reasons given by Mr Majid for his opinion on this issue convincing. Nor can I see merit in any of the objections to Mr Majid’s view which were raised by Professor Hamoudi.

The first such objection was that article 435 does not contain any words which expressly confine its scope to bringing a claim in Iraq. While that is true, I am persuaded by Mr Majid’s view that, in an Iraqi statutory provision dealing with the time for bringing proceedings, it goes without saying that the proceedings in contemplation are domestic proceedings in Iraq and not proceedings in any other jurisdiction. It would require express words to displace this natural assumption, of which there are none. For the same reason, I regard as obviously correct Mr Majid’s reading of the reference in article 435 to absence in “a remote country” as a reference to absence in a country remote from Iraq. Professor Hamoudi did not put forward any reason to support his suggestion that the phrase should be taken to refer to absence from the jurisdiction in which a claim is brought, even if that jurisdiction is not Iraq. Without some supporting reasoning founded in principles of Iraqi law, I cannot accept that an Iraqi court would adopt what seems to me to be an over-elaborate interpretation of the provision.

Secondly, Professor Hamoudi objected to the statement that article 435 is procedural. Thus, he pointed out that the subsection of the Civil Code dealing with limitation which includes article 435 is part of a broader section of the Code dealing with the termination of obligations other than through their fulfilment. He said that this is not a procedural issue. I cannot see that it matters, however, whether either article 435 itself or the section of the Code in which it appears would be characterised in Iraqi law as procedural or substantive. The important point made by Mr Majid, as it seems to me, is that 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 understood as a reference to the possibility of making a claim in the Iraqi courts.

Professor Hamoudi’s third objection to Mr Majid’s view is that it leads to irrational results. Professor Hamoudi pointed out that, if Mr Majid’s interpretation of 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 Iraqi courts could not hear the case themselves.

I agree that this is a very unattractive result. However, the consequences of the defendant’s interpretation of the territorial scope of article 435 seem to me to be at least as irrational. 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.

Overall, none of the points made by Professor Hamoudi or by the defendant’s English counsel persuades me that there is any legitimate reason to reject Mr Majid’s straightforward reading of article 435 as concerned only with the possibility of bringing a claim in Iraq.

A further point on which the experts disagreed is whether article 435, when it is engaged, suspends the 15 year time limit as well as the three year time limit prescribed by article 232. The experts agreed that article 435 is a general provision which, when applicable, works to suspend all types of limitation period provided for in the Iraq Civil Code. Thus, in the opinion of Professor Hamoudi, so long as a lawful excuse which satisfies the requirements of article 435 exists, all relevant limitation periods are suspended, including the limitation period which would normally expire 15 years from the date of occurrence of an unlawful act. Mr Majid agreed that this is a possible interpretation of article 435 when read with article 232. However, he also considered that there is another possible interpretation – which he was inclined to prefer – being that the 15 year period cannot be suspended because article 232 states that, “in all cases the claim will not be heard after the lapse of 15 years …” (emphasis added).

As Professor Hamoudi pointed out, it would make no sense at all to say that, uniquely among all the time limits prescribed in the Civil Code, the 15 year limit prescribed by article 232 cannot be suspended. I accept Professor Hamoudi’s view that an Iraqi court would regard the words “in all cases” in article 232 as meaning only that time will expire in all cases after 15 years from the day of occurrence of the unlawful act even if the period of three years from the date of knowledge has not yet lapsed, and not as seeking to exclude the operation of article 435 where the conditions which it lays down for suspending the time limit are satisfied. I therefore find that article 435, where applicable, suspends the 15 year as well as the three year time limit.

Section 2 of the 1984 Act specifies certain exceptions to the general rule that where a claim is governed by a foreign system of law that law should also govern matters of limitation. Section 2 provides:

“Exceptions

(1)

In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.

(2)

The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.

(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.”

The result of my conclusions on the questions of Iraqi law raised by the preliminary issue is that, by reason of CPA Order 17, the time limit for bringing claims governed by Iraqi law seeking compensation for unlawful acts allegedly committed by British forces in Iraq between 25 June 2003 and 31 December 2008 is suspended indefinitely. It does not follow, however, that the English courts will allow any such claim to proceed, no matter how long after the relevant events it is brought and whether or not it could have been brought sooner. The court has power under section 2(1) and (2) to prevent that result if and insofar as it conflicts with public policy.

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.

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.

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.

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.

For the reasons given, I conclude that the preliminary issues should be answered as follows: