Iraqi Civilians v Ministry of Defence

Among the many hundreds of claims brought by Iraqi civilians against the Ministry of Defence which are currently pending in the High Court, there is a group of claims brought by individuals who were detained by British forces in Iraq and then transferred into the custody of the armed forces of the United States. The claimants in these “handover” cases allege that, while in the custody of US forces, they were tortured or suffered other serious ill-treatment. They contend that the UK government is liable for such ill-treatment and for their allegedly unlawful detention by US armed forces after they were handed over. Like all the claims in this litigation, these claims are advanced on two legal bases. One is the Human Rights Act 1998. The other 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.

This judgment follows the trial of a preliminary issue to determine whether the claims in tort made in these handover cases have a valid legal basis under Iraqi law. The issue is raised on the alleged facts of three test cases in which the claimants are referred to anonymously as XYZ, HTF and ZMS. The preliminary issue is as follows:

“Whether, in respect of the claims in tort of XYZ, HTF and ZMS based on their transfer to and subsequent detention and alleged ill-treatment by the armed forces of the United States of America, the law of Iraq provides for joint liability and/or vicarious liability of the defendant for acts alleged to have been done by members of the US forces.”

Before considering the applicable rules of Iraqi law, I will summarise shortly the factual allegations made by these claimants.

XYZ alleges that on 6 July 2003 he was arrested at his home in Baghdad by US soldiers and taken to a holding camp for detainees (Camp Cropper) where he was interrogated and seriously ill-treated by members of coalition forces who may have included UK personnel. After several days he was transferred by plane to Basra Airport, which was under the control of UK forces, where he claims that he was severely assaulted by British soldiers. XYZ was handed back to US forces and taken to Camp Bucca where he was detained until his transfer to Abu Ghraib Prison at some point between late November 2003 and January 2004. It is alleged that, for part of the period of his detention at Camp Bucca, Camp Bucca was under the control of the UK. After his transfer to Abu Ghraib Prison, XYZ was allegedly subjected to torture and abuse of the most extreme nature by US soldiers. He was released from custody on around 13 December 2004.

HTF was arrested in Basra in the early hours of 27 June 2008. He alleges that he was assaulted by British soldiers during and after his arrest. He was taken to a detention facility at Basra Airport and then transferred to a US detention facility believed to have been Camp Ballad. He alleges that, while there, he was repeatedly interrogated, held in solitary confinement, deprived of sleep, exposed to cold temperatures and loud noise, and physically assaulted. After a few days, HTF was transferred to another US detention facility at Baghdad International Airport where he was interrogated further and allegedly suffered further ill-treatment, including a sexual assault. Over the following months HTF was held at various detention facilities, principally Camp Bucca, and alleges further mistreatment during this period. This includes being made to stand outside for hours at a time in the hot sun and in the cold and rain in winter. He was returned to Basra and released on 28 June 2009.

ZMS was arrested by British forces in Basra on the night of 11/12 July 2008. He alleges that he was assaulted at the time of his arrest. On 12 July 2008 he was flown to Baghdad and transferred to the custody of US forces. He was detained until August 2009 at several different detention centres including (for a substantial part of the time) Camp Bucca. ZMS alleges that during his detention he was subjected to serious mistreatment by US personnel.

The defendant does not admit that any of the claimants was unlawfully detained or suffered the ill-treatment alleged, but accepts that it would be liable for any unlawful acts which are proved to have been committed by British soldiers. The defendant denies, however, that it has any liability for any unlawful acts committed by US forces.

Although, as I have mentioned, it is agreed that the law applicable to the claims in tort is the law of Iraq, in each of the three test cases the claimants have set out their claims in their particulars of claim in English law, asserting that it is for the defendant to prove any material difference between English law and Iraqi law. The particulars of claim allege that the defendant is jointly liable for the alleged unlawful acts of US forces on the basis that the UK’s armed forces were allegedly operating in Iraq pursuant to a “common design” with the US. Alternatively, it is alleged that joint liability arose through “counselling, procuring, encouraging and/or facilitating” the alleged torts. The second of these ways in which the claims are pleaded has the double disadvantage that not only is English law not the applicable law but that, even if it were, “counselling, procuring, encouraging and/or facilitating” a tort is not sufficient to give rise to liability in English law, even where the facilitation or other assistance is provided knowingly. To establish joint liability in English law, it is necessary to show that the person who provided assistance acted in furtherance of a “common design” with the person who committed the tortious act: see Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10, [2015] 2 WLR 694.

At an earlier hearing in which the defendant was seeking to strike out these claims (in so far as they allege joint liability) on grounds of state immunity and act of state, some sterile argument was directed to the exact scope of the doctrine of common design: see Rahmatullah v The Ministry of Defence [2014] EWHC 3846 (QB) at paras 27-34. The argument was sterile because (1) the parties were agreed that the law applicable to the claims is not English law but the law of Iraq and (2) there is no reason to suppose that the principles of Iraqi law governing joint liability in tort bear any resemblance to the common law doctrine of common design. It was indeed the defendant’s express contention that there is no equivalent doctrine in Iraqi law, although at that stage the defendant had not pleaded any positive case as to the relevant Iraqi law, having taken the position that it was for the claimants to do so.

Following that hearing, it was agreed that each party should plead its case as to the law of Iraq on joint liability in so far as it is relevant to the claims of XYZ, HTF and ZMS and serve evidence from an expert in Iraqi law on that question. It was further agreed and directed that the existence and scope of such liability in Iraqi law should be determined as a preliminary issue.

The parties are agreed that, in answering the question posed by the preliminary issue, the court should focus on the act of handover itself. Although questions of joint liability may arise in relation to other allegations, such as the alleged participation by UK personnel in interrogations carried out by US forces, the key question which arises in all handover cases is as follows: would the defendant be liable under Iraqi law for the harm caused to the claimant, if it were shown that British soldiers or officials who ordered or approved the transfer of the claimant into the custody of US forces knew or ought to have known that the claimant would or might be subjected to serious mistreatment or unlawfully detained; and, if so, what kind of actual or constructive knowledge is necessary to give rise to such liability?

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

In accordance with the directions given, each side adduced evidence from an expert on Iraqi law. The claimant’s expert was Mr Ahmed Dawood, a practising Iraqi lawyer based in Baghdad. The defendant’s expert was Professor Haider Ala Hamoudi, an academic lawyer who is based in the United States but who has spent time working in Iraq.

The experts have provided their own translations of some Iraqi legal materials including certain provisions of the Iraqi Civil Code. There is also a published English translation of the Civil Code, from which I quote below where the experts have not translated the relevant provision themselves.

In the event a large measure of agreement has been reached between the parties and their experts as to the effect of the applicable Iraqi law. In particular, the following five matters are agreed.

First, it is agreed that the relevant provisions of Iraqi law are all contained in the Iraqi Civil Code. Although Mr Dawood explained in his report how questions of civil liability to pay compensation can be decided in Iraqi criminal proceedings, the experts agreed that it is still the civil law embodied in the Iraqi Civil Code, and not the criminal law, which the court applies in deciding such a question.

Second, it is common ground that Article 219 of the Iraqi Civil Code makes provision for vicarious liability but that the defendant is vicariously liable only for the actions of the soldiers under its command and control, and not the actions of the soldiers under the command and control of the USA.

Third, it is common ground that there is no concept in Iraqi law of joint liability based on a “common design”.

Fourth, it is agreed that Article 217 of the Civil Code is the provision of Iraqi civil law which governs joint liability for harm caused by unlawful acts. The experts have translated Article 217(1) as follows:

“The several persons responsible for an unlawful act will be jointly liable in their obligation to pay damages for the injury done without distinction between the principal, the accessory / accomplice and the causer.”

Article 217(2) states:

“He (of the foregoing persons) who has paid the entire compensation may claim from the others such part which is assessed by the court according to circumstances and the gravity of the encroachment committed by each one of them; if it was not possible to determine the extent of the responsibility of each one of them the liability will be apportioned among them equally.”

Fifth, the experts agree that, in order for Article 217 to apply, three conditions must be satisfied: (i) each actor must commit an unlawful act or omission (or “fault”); (ii) each of those faults must cause harm to the victim; and (iii) the fault of each actor must cause the same harm. Article 202 is the provision of the Code under which liability for tortious acts and omissions arises. It is agreed that Article 202 encompasses negligence and intentional wrongdoing.

The key area of dispute concerns the effect of Article 211 of the Civil Code, which the experts have translated as follows:

“If a person has established that the harm arose from a foreign cause beyond his control such as by an act of God, a sudden accident, a force majeure, the act of another or the fault of the injured himself, then he shall not be liable for the damages unless there is a provision [in the law] or an agreement stating otherwise.”

The experts have agreed that Article 211 is a means by which a person (A) can be excused from liability by establishing that the fault of another person (B) was the true cause of the harm. They disagree, however, as to when the requirements of Article 211 are satisfied.

In the opinion of the defendant’s expert, Professor Hamoudi, the fault of B will operate to sever the chain of causation between A’s fault and the harm ultimately caused only when B’s fault “drowns out” the fault of A: that is, where it is so much more severe than A’s fault that it overwhelms it. According to Professor Hamoudi, the most common cases where this occurs are where B’s fault is intentional while A’s fault is merely negligent. For example, if a driver negligently fails to lock the door of his owner’s car, and a thief steals the car, then the true cause of the injury is the deliberate act of the thief rather than the negligent omission of the driver. By the same token, if British forces transferred a claimant into the custody of US forces who then deliberately ill-treated the claimant, then provided the British authorities did not intend the claimant to be ill-treated or at least realise that they were exposing him to a risk of such ill-treatment when they authorised his handover, the cause of the claimant’s injury would be the intentional fault of the US forces. That would be so, in Professor Hamoudi’s opinion, even if the British forces were negligent in that they ought to have been aware of the risk to which they were exposing the claimant.

In support of this interpretation of Article 211, Professor Hamoudi relied on the views of two scholars whom he described as the two leading commentators on the Civil Code. They are Dr Abdul Razzaq Al Sanhuri and Dr Abdul Majeed Hakim.

According to Professor Hamoudi, Sanhuri was by far the most renowned Arab legal scholar of the last century. He drafted the Iraqi Civil Code. He had previously drafted the Egyptian Civil Code and later drafted codes for Libya, Kuwait and Jordan. The result is that Sanhuri’s commentary on the Egyptian Civil Code is widely available throughout the Arab world and is a commonly used reference source to which all have access. Professor Hamoudi described Sanhuri’s commentary as the most authoritative commentary on the civil codes which he drafted, very much including the Iraqi Civil Code.

Although there are some slight textual differences between Article 211 of the Iraqi Civil Code and the equivalent provision of the Egyptian Civil Code, I accept Professor Hamoudi’s evidence that for present purposes the differences are not material. (Footnote: ¹) Commenting on the latter, Sanhuri states:

“If the fault of each of the defendant and another was a factor in the occurrence of the harm, but one of the faults drowns out the other, the drowning out fault is considered alone the cause of the occurrence of the harm.”

Sanhuri explains the meaning of “drowning out” in his discussion of contributory negligence, as follows:

“One of the two faults drowns out the other in two circumstances. The first circumstance is if one of the two faults is much greater than the other in gravity. The second circumstance is if one of the two faults is the result of the other fault.

The first circumstance—One of the faults is much greater than the other in seriousness. Whenever one of the two faults is much greater than the other fault in gravity, this does not mean that the more serious fault drowns out the lighter one except in two scenarios. The first scenario is if one of the faults was deliberate. ... (Footnote: ²)

In this first scenario, one of the two parties, the defendant or the victim, wanted the harm deliberately but the fault from the other was not intentional. So if the defendant wanted the occurrence of the harm deliberately, then his liability is realized and he must compensate entirely for what occurred by way of harm even if the unintentional fault of the victim had a role in the occurrence of the harm. This is because the intent of the defendant in the occurrence of the harm is alone where the cause stops for the occurrence of the harm. As for the fault of the victim, it is only a circumstance which the defendant took advantage of to fulfill his purpose to cause the harm to occur. Hence, if the driver of a car deliberately runs over a blind man walking in the street without a guide, then he may not use the fault of the victim as an excuse to lessen his liability. Nor will his defense be heard that the victim was walking in the street blind without a guide. This is because the driver wanted to run over the victim, and the fault of the victim is only a circumstance that the driver is using to carry out his intention. But if the victim is the one who wanted harm to himself, his fault drowns out the fault of the defendant. And the responsibility of the defendant is lifted in the absence of a causal link as we have said. So if a person wants suicide, and he seizes the opportunity that a driver is driving faster than the speed limit and throws himself before the car, then he alone is the criminal on himself, and he may not use the excuse—he if he survives or his heirs if he dies—that the driver was driving at an excessive speed and that was a fault. His intention for suicide alone stands as the cause for the occurrence of the harm. The fault of the victim is only a circumstance the victim exploited to carry out his intention. . . . .

The second circumstance—One of the faults is the result of the other fault

If the fault of the victim is the result of the fault of the defendant, the second fault drowns out the first fault, and the fault of the defendant is alone what caused the harm. The liability of the defendant is entire. Hence if a person rides with his friend in a car driven by this friend fast, and what arose from this fast driving was a danger which led the passenger under the influence of the fear to make a blameworthy movement that endangers his safety, and harms himself, then the fault of the victim is the result of the fault of the defendant. The fault of the friend drowns out the fault of the passenger and the liability of the friend is entire. Similar is the rule if a sick person commits a fault in treating himself, but this was based on a blameworthy indication from the doctor. The fault of the doctor drowns out the fault of the sick person because the second fault is but a result of the first fault, hence the doctor is responsible entirely for the compensation. The same is true for the client who commits a fault following the blameworthy advice of his lawyer. The fault of the lawyer drowns out the fault of the client because the second fault was the result of the first fault.”

As explained by Professor Hamoudi,Sanhuri makes explicitly clear that the same principles apply mutatis mutandis when the two respective faults are the fault of the defendant and the fault of a third party, as opposed to the fault of the defendant and the fault of the victim, in the following passage:

“One of the two faults drowns out the other, as we made clear in the context of the remarks on the fault of the victim, if the fault was intentional or if it was what led to the commission of the other fault.”

Professor Hamoudi pointed out what may appear to be an inconsistency in Sanhuri’s commentary in that, in a later section dealing with Article 217 and multiple faults causing the same harm, Sanhuri states:

“Nor is it necessary that the faults are one act, or one crime. One might be deliberate and the other not deliberate [i.e. negligent], and there may be a difference in the seriousness of the faults, such that there is a connection of a serious fault with a slight fault. Despite this, the perpetrator of the slight fault is responsible with the perpetrator of the serious fault jointly and severally. And the nature of the faults might differ, so that one is criminal and the second civil, or one is an act and the other is an omission. An example of this is a servant who is negligent and leaves the door of the house open, and a thief enters and steals from the home. In this case, the servant and the thief are jointly and severally responsible despite the differences in the two faults. Hence, one is deliberate and the other is not. One is criminal and the other civil. One is an act and one is an omission.”

Although Sanhuri in the above passage indicates that joint liability can arise where the fault of one party was deliberate and that of the other party merely negligent, it is Professor Hamoudi’s view that this passage was meant to describe the outcome under the general principles of liability for multiple actors, subject tothe causation limitations imposed by Article 211. Otherwise, there would be a flat contradiction between the two parts of Sanhuri’s commentary.

As mentioned, Sanhuri’s commentary is focused on the Egyptian Civil Code which, although very similar to the Iraqi Civil Code, is not identical. According to Professor Hamoudi, for this reason Iraqi lawyers often consult commentaries specific to the Iraqi Civil Code in addition to Sanhuri. Professor Hamoudi said that by far the most well known and official of these commentaries is that by Hakim et al, “A Summary of the Theory of Obligation in the Iraqi Civil Code”. This commentary was first published by the Ministry of Higher Education and Research in 1980 and is still widely used and available in Iraq.

Commenting on Article 211 of the Iraqi Civil Code, Hakim says:

“The act of another may interfere in the occurrence of the harm and thus cut off the causal relationship [between the original fault and the harm]. However, for this act of another to cut off the causal relationship, it must be a fault that drowns out the fault of the responsible party.”

As explained by Professor Hamoudi, Hakim tends to take an even broader view than Sanhuri of when one fault drowns out another. Hakim indicates in his section on contributory negligence that the fault of a victim is deemed to be the sole cause of the harm if it was “intentional ora grave fault that drowned out the fault of the other” (emphasis added). One example given by Hakim is that, if a person who is driving a car finds an adversary jaywalking and deliberately hits him, then the intentional fault of hitting a person with a car drowns out the negligent fault of jaywalking. This example is similar to Sanhuri’s example of the driver and the blind person. However, Hakim also deems “drowning out” to occur if two faults are negligent, but one is considerably worse than the other. He gives the example of a person who drives at night without turning on his headlights. A drunk driver runs into the back of the person’s car, causing the car to hit someone and cause that person injury. In this situation Hakim indicates that, even if the victim would have avoided being hit if the car which hits him had had its headlights switched on, the fault of that driver is drowned out by the fault of the drunk driver. That is so, even though in this example the drunk driver did not intend to cause harm.

Professor Hamoudi concludes that, while the matter is not free from doubt, Iraqi courts are more likely to follow Hakim’s approach rather than that of Sanhuri in so far as there is any difference between them. Hakim is the Iraqi commentator after all, specifically reviewing Article 211 of the Iraqi Civil Code. Moreover, in Professor Hamoudi’s view there is no reason to limit the concept of “drowning out” used by both Sanhuri and Hakim to the specific circumstances described by Sanhuri. In Professor Hamoudi’s view, the concept is broader, and encompasses any scenario where one person’s act is so much more serious than another’s that the former act is then deemed the sole cause of the harm, even if the second act had some role in the occurrence of the harm as well. By the same token, Professor Hamoudi accepted that the fact that one act was intentional and the other was not does not necessarily mean that the intentional act must drown out the non-intentional one. The reason why it generally does so is that intentional wrongdoing is generally more serious than wrongdoing which is merely negligent.

The claimant’s expert, Mr Dawood, expressed the opinion in his report that Article 211 has no application to these claims. His reason was that, in order for the unlawful act of a third party which causes the injury to be a “foreign cause beyond [the defendant’s] control”, the third party’s act must be one in which the defendant had no involvement. However, that condition is not met in any case where the defendant is jointly liable as an accessory for the acts of the third party. Mr Dawood said:

“By definition, an accessory must intentionally facilitate for the principal in some way. It is not sufficient for the defendant to have a minor degree of fault and claim that the ‘cause beyond his control’ was the predominant cause of the injury.”

Mr Dawood further explained that, in order to be an accessory, a person must facilitate the commission of an unlawful act and possess one of three mental states: (a) an intention to facilitate the commission of an unlawful act; (b) foresight that another person might commit an unlawful act, coupled with failure to act in accordance with a legal duty; or (c) contemplation and acceptance of the risk that his action will facilitate the unlawful act of another.

The impression given by Mr Dawood’s report is that he, like Professor Hamoudi, regarded the application of Article 211 as depending on the comparative degree of fault of the defendant who is seeking to rely on that provision and the third party whose act is said to be the cause of the injury; and that, where someone facilitates an intentional act, it is necessary that the facilitation was itself intentional in one of the three ways identified by Mr Dawood in order to avoid the application of Article 211 and give rise joint liability. The implication is that negligence would not be sufficient.

This impression was confirmed by the joint experts’ report. In that report the experts agreed that a causer (A) can seek to excuse itself from liability by arguing that the general requirements of Article 211 are satisfied and that the fault of another person (B) was the true cause of the harm. The report continued:

“This only applies when the fault of B is so much more serious than the fault of A that it can be said to ‘drown out’ the fault of A. For example, a servant who leaves the door of his master’s car open has committed a fault of negligence, and a thief who steals the car has committed a fault of intention. … The civil court would hold that the servant was not civilly liable because the intentional fault of the thief ‘drowned out’ the negligent fault of the servant under Article 211, subject to a finding that the general requirements included in the text of Article 211 are satisfied.”

There therefore appeared to be agreement between the experts on the effect of Article 211 in so far as it is relevant to the preliminary issue.

On the day before the trial, however, the claimants’ solicitors gave notice that Mr Dawood “does not agree” with two paragraphs of the joint experts’ report. Those paragraphs contained statements to similar effect to the passage quoted above (although the passage quoted above was not identified as one which Mr Dawood did not agree with). It was not apparent whether Mr Dawood was saying that the joint experts’ report did not accurately represent his view at the time when he signed it or that he had since changed his mind. Nor was any explanation given at that stage of his reasons for disagreeing with the paragraphs in question. The first clue was given on the morning of the hearing when Mr Dawood produced an extract from a commentary on which he wished to rely dealing with the equivalent provision to Article 211 in the Egyptian Civil Code. The interpretation expounded by the author, Dr Sulaiman Marqis, is very different from that found in the commentaries of Sanhuri and Hakim cited by Professor Hamoudi and makes no reference to “drowning out” or any similar concept. Marqis suggests that the provision is applicable only where (1) the foreign cause made the harm inevitable in the sense of being impossible for the defendant to prevent and (2) the cause is one which the defendant had nothing to do with so that it is not attributable to him.

In his oral evidence Mr Dawood explained that, after the meeting between the experts, their joint report was drafted by Professor Hamoudi. Mr Dawood said that he had very little time to read over the draft report before he had to leave for the airport to catch a flight, and that he did not notice that what was said in the draft report about Article 211 and “drowning out” did not accurately represent his view. Mr Dawood also said that, at the time of the experts’ meeting, he had no basis for disagreeing with what was said about Article 211 and “drowning out” in the commentaries on which Professor Hamoudi relied. It was only later when he reflected further on the point and looked at the commentary by Marqis that he concluded that the interpretations of Article 211 given in the commentaries relied on by Professor Hamoudi are mistaken.

In so far as Mr Dawood suggested that the joint experts’ report did not accurately represent his opinion at the time when he signed it, I reject his evidence. The meaning of Article 211 was evidently discussed at the experts’ meeting and, although of course possible, I consider it unlikely that Professor Hamoudi had misunderstood or misrecorded Mr Dawood’s view on the point when he drafted the joint report. It is also unlikely that Mr Dawood, even if he did not read the draft report with the care to be expected before he signed it, could have failed to notice either then or soon afterwards the passages which record a common view about “drowning out”, giving the example of the negligent driver and the thief. Furthermore, that view is, as already indicated, consistent with what Mr Dawood had said in his own expert report. Finally, Mr Dawood’s evidence that he had no basis on which to disagree with the views of Sanhuri and Hakim at the time of his meeting with Professor Hamoudi makes it all the more likely that he knowingly agreed at that stage to what was written in the joint experts’ report.

An expert is of course entitled to change his mind. It was not, however, entirely clear from Mr Dawood’s oral evidence to what extent he had done so. Thus, in cross-examination he initially agreed that there are cases in which Iraqi courts will find that Article 211 applies because a person’s fault is “drowned out” by the fault of another. Later, however, Mr Dawood claimed that the concept of “drowning out” is only relevant in traffic law and not as part of the general law of obligations. I understood Mr Dawood’s basic position to be that an Iraqi court would simply apply the express wording of Article 211, which contains no reference to “drowning out”. He considered that Article 211 does not apply to excuse from civil liability the servant who negligently leaves his master’s car or house unlocked with the result that the car is stolen or the house is burgled because it cannot be said that the act of the thief or burglar is a “foreign cause beyond [the] control” of the servant: in so far as the commentaries of Sanhuri and Hakim suggest otherwise, their views are not consistent with the language of Article 211. In re-examination, Mr Dawood further asserted that commentaries are not referred to in the Iraqi courts and that an Iraqi judge would simply look at the wording of the relevant articles in the Civil Code when deciding how they should be applied.

It was common ground between the experts that, in the hierarchy of sources of law relevant for an Iraqi judge, the text of the Civil Code has priority over any commentary. Like any text, however, the Civil Code requires interpretation. I cannot accept that the meaning of Article 211 is so self-evident that in the example of the thief who enters the unlocked house it is impossible to interpret the act of the thief as a “foreign cause beyond [the] control” of the servant. Assuming as I do that the words have the same meaning in Arabic, it seems to me that, in the absence of any collusion between them, the act of the thief can perfectly well be described as a “foreign cause”. It may be said that, if the servant could have prevented the house from being burgled by locking the door, the act of the thief is not a cause “beyond [the servant’s] control”. But it is also possible to describe the act of the thief in stealing property from the house as a cause “beyond [the servant’s] control” if the servant has done nothing to induce the thief to come and steal property and has simply failed to prevent the thief’s entry by negligently leaving the door unlocked.

This ambiguity was reflected in the views expressed by the experts about the alleged facts of the present cases. Both experts agreed that if the court were to find in any case that UK soldiers exercised control over US soldiers during the time of the alleged mistreatment of the claimant by the US soldiers, then the defendant could not rely on Article 211, as the cause would have been within its control. They did not agree, however, about what the position would be if the defendant did not exercise any meaningful control over US soldiers at the time when the alleged mistreatment occurred. Professor Hamoudi considered that in such circumstances the acts of those who inflicted the ill-treatment would constitute a cause beyond the defendant’s control. Mr Dawood, as I understood his evidence, considered that the cause would not be one beyond the defendant’s control if the defendant could have prevented the ill-treatment from occurring by previously electing not to hand over the claimant. I do not see how the question of which of these interpretations is correct can be resolved just by studying the words of Article 211 and without some additional guidance.

It seems clear from the commentaries cited by Professor Hamoudi that it cannot be enough to make the act of the third party within the control of the defendant so as to preclude the application of Article 211 to show that, if the defendant had not committed a fault, the injury to the claimant would have been avoided. If that were the test, then in, for example, Sanhuri’s case of the driver who deliberately runs over a blind man who is at fault in walking in the road without a guide, the blind man would not be able to say that the driver’s act was a cause “beyond his control” and therefore could not rely on Article 211. Similarly, the driver travelling at excessive speed and too fast to stop in time could not rely on Article 211 to be excused from liability for running over the man who deliberately commits suicide by throwing himself in front of the car. In each case, however, it is clear that Sanhuri regards the act of the other person as a foreign cause beyond the control of the defendant and regards the relevant question as being whether the fault of one party “drowns out” the fault of the other. The same analysis is adopted by Hakim. These commentaries therefore seem to me to support the interpretation of what amounts to a “foreign cause beyond [the defendant’s] control” adopted by Professor Hamoudi.

It would be a strong thing for an English judge to conclude that the language (as translated into English) of a provision in a foreign legal code, which forms part of a legal system not based on English law and with which the English judge is not acquainted, is so clear that the opinions as to its meaning of the leading jurists in the foreign legal system should be rejected. I do not accept Mr Dawood’s assertion that an Iraqi court would not have regard to the views of Sanhuri and Hakim. I accept his evidence that the judgments given by Iraqi courts are extremely short and seldom, if ever, refer expressly to commentaries. However, I also accept Professor Hamoudi’s evidence that the commentaries of Sanhuri and Hakim are the medium through which lawyers in Iraq are taught about the civil law of obligations and are accorded considerable respect by Iraqi lawyers and judges. Mr Dawood agreed that Sanhuri was the drafter of the Iraqi Civil Code and that Hakim is a leading commentator. He himself cited a commentary on the Egyptian Civil Code in support of his views, albeit one which there is no evidence to suggest has a status in Iraq in any way comparable to that of Sanhuri and Hakim. I think that I can also take notice that in civil law systems where there is no doctrine of precedent – including that of France from which the Iraqi Civil Code is ultimately derived – considerable weight is often given to the opinions of eminent legal scholars. In any event I am satisfied that such weight would be given to the opinions of Sanhuri and Hakim by an Iraqi court if the present preliminary issue were being decided by a court in Iraq. There is, on the other hand, no evidence to suggest that an Iraqi court would have regard to the views of Marqis, at any rate in so far as they conflict with those of Sanhuri and Hakim.

I accept the view of Professor Hamoudi, founded as it is on the commentaries of both Sanhuri and Hakim, that in applying Article 211 an unlawful act of a third party who is not in collusion with the defendant and over whom at the time the act occurs the defendant does not exercise any meaningful control would be regarded by an Iraqi court as a foreign cause beyond the control of the defendant and that the critical question to be asked is whether the fault of the third party “drowns out” the fault of the defendant.

Once it is accepted – as I have no difficulty in accepting – that such an unlawful act of a third party would be regarded by an Iraqi court as a foreign cause beyond the control of the defendant, the wording of Article 211 requires the court to decide whether the harm “arose from” (i.e. was caused by) both faults or whether the act of the third party (or that of the defendant) was the sole cause of the harm. Although the choice of metaphor might be different, the analysis of this question in terms of whether one cause “drowns out” the other makes ready sense to an English lawyer. So too does the notion that the intentional wrongful act of a third party may generally be considered to break the chain of causation between a negligent act of the defendant and the claimant’s injury. For example, in Weld-Blundell v Stephens [1920] AC 956, 986, Lord Sumner said:

“In general…, even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause. It is hard to steer clear of metaphors. Perhaps one may be forgiven for saying that B snaps the chain of causation; ... in a word, he insulates A from C.” [citations omitted]

I quote this statement not because there is any reason to presume that the law of Iraq is the same as English law on this question, but simply to indicate that the Iraqi law as explained by Professor Hamoudi and in the commentaries on which he relies requires no leap of imagination for an English lawyer to grasp.

On behalf of the claimants, Ms Kaufman QC suggested that the examples of “drowning out” given by Sanhuri can be distinguished from the case of the servant who negligently leaves the door of the house unlocked on the basis that Sanhuri’s examples involve one person taking advantage of a circumstance created by the fault of another person to advance his own ends. Thus, the driver takes advantage of the fault of the blind man who is walking in the street without a guide in order to run him over; and the man who wants to commit suicide takes advantage of the fact that the driver is speeding and travelling too fast to stop in order to realise his aim of bringing about his own death. However, it seems to me that exactly the same can be said of the case of the negligent servant: the thief takes advantage of the opportunity created by the fault of the servant in carelessly leaving the door unlocked in order to realise his goal of stealing property.

An English court would not regard a deliberate wrongful act of a third party as breaking the chain of causation if the act of the third party is one which the defendant owes a duty to the claimant to take care to prevent. In the case, therefore, of the door left unlocked, the negligent omission of the servant as well as the intentional act of the thief would, in English law, both be regarded as causes of the householder’s loss. During the hearing I could not help wondering whether a similar approach might be taken by an Iraqi court. It seemed to me that this could perhaps explain why Sanhuri when discussing the effect of Article 217 expressed the view that the servant and the thief are jointly liable, despite the fact that the fault of the thief is deliberate and criminal whereas the servant is merely negligent. Explaining it as turning on a duty owed by the servant to take care to prevent the deliberate criminal act of the thief could potentially distinguish such a case from the examples given previously by Sanhuri when discussing Article 211 of deliberate acts which “drown out” negligent acts.

There is nothing in any of the passages quoted by Professor Hamoudi from Sanhuri’s commentary, however, to suggest that this distinction reflects the law of Iraq. To the contrary, Sanhuri’s discussion of “drowning out” in the context of Article 211 identifies two relevant tests, neither of which involves the question whether the defendant has a duty of care to prevent the third party’s deliberate act. The commentary of Hakim is also inconsistent with such an analysis. In these circumstances it seems to me that it would be parochial and unwarranted to suppose that Iraqi law employs the same categorisation as English law. I accept Professor Hamoudi’s opinion, which I regard as a more reliable guide on the present issue than that of Mr Dawood, that an Iraqi court would not analyse the case of the servant who negligently leaves the door unlocked in the same way as an English court and would be likely to hold that the intentional criminal act of the thief “drowns out” the servant’s fault, following the guidance given by Sanhuri and Hakim in their commentaries on Article 211. I also accept Professor Hamoudi’s interpretation of Sanhuri’s discussion of the servant and thief example in the context of Article 217 as subject to the effect of Article 211.

I am further supported in this conclusion as to what an Iraqi court would decide by the fact that I think it clear that it reflects Mr Dawood’s original view of the matter at the time when he wrote his expert’s report and agreed the joint expert’s report. I consider his first thoughts to be a more reliable guide to how an Iraqi court would approach the matter than his later views which did not, with respect, give a coherent explanation of the concept of “drowning out”. According to the analysis in Mr Dawood’s expert report, Article 211 does not apply if the defendant’s fault was committed with one of the three mental states which Mr Dawood described. Hence, although mere negligence on the part of the servant in forgetting to lock the door is not a sufficiently serious fault to prevent “drowning out”, the servant will be jointly liable with the thief if he goes out knowing that he has left the door unlocked and that there is a risk that a thief might enter. I understood Professor Hamoudi to agree that Article 211 would not provide a defence in such a situation.

Applying these findings to the present cases, I conclude that, if the claimants are able to prove that after being handed over by UK forces to the armed forces of the United States they were subjected to serious and deliberate ill-treatment by US soldiers, then, to establish that the defendant is jointly liable for their injuries under Iraqi law, it will not be sufficient to show that the defendant owed a duty to take care not to expose them to a risk of ill-treatment at the hands of US forces and was negligent in exposing them to that risk. In order to establish joint liability for their injuries, it will be necessary for a claimant to prove that the British soldiers or officials responsible for the decision to transfer him to the custody of the US forces had one of the three mental states identified by Mr Dawood in his expert’s report. Thus, it will be necessary for the claimant to prove: (a) an intention to facilitate the claimant’s ill-treatment; or (b) actual foresight that the claimant might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (c) contemplation and acceptance of the risk that transferring the claimant would facilitate his ill-treatment.

In answer to the question raised by the preliminary issue, I will make a declaration to this effect.