Mohammed v Ministry of Defence (Rev 1)

The claimant in this action, Mr Serdar Mohammed, was captured by British forces in Afghanistan during a military operation in April 2010. He was suspected of being a Taliban commander and was detained by British forces for 110 days before being handed over to the Afghan authorities. He was convicted of criminal offences by an Afghan court and sentenced to 16 years’ imprisonment, later reduced to 10 years on appeal.

In this action, which was begun in August 2012, he has alleged that his detention by British forces was unlawful. On 6 March 2013 I directed that there should be a trial of preliminary issues of law raised by the claim. That trial took place in January 2014 and I handed down judgment on 2 May 2014. Both parties appealed the decision to the Court of Appeal, which gave judgment on 30 July 2015. There were further appeals on certain issues to the Supreme Court, on which judgments were handed down on 17 January 2017. There followed a dispute about the form of the order to be made on one of those appeals, which was finally resolved on 12 April 2017. The ultimate result of the Supreme Court judgments is that, although the issues have been narrowed, a trial of disputed questions of fact is necessary in order to decide the case.

Since the judgments of the Supreme Court were given a year ago, the claimant has not taken any step to progress the action. In March 2017 his solicitors suggested that fixing a timetable for service of amended pleadings should await the final order of the Supreme Court. After that order was made the defendant’s solicitors wrote on 31 May 2017 proposing a timetable. After some chasing the claimant’s solicitors responded on 11 July 2017 saying that they were currently unable to establish contact with their client. They also indicated that they intended to submit an application on behalf of the claimant to the European Court of Human Rights. They requested a six-month stay of the proceedings to give them further time to make further attempts to contact the claimant and sought an extension of time for filing amended particulars of claim until 8 February 2018.

The defendant did not agree to such a stay. The correspondence between the parties’ solicitors was then referred to me and I directed that a case management conference should be listed in order to determine the future of this litigation. That case management conference was listed for hearing today. In a letter dated 19 October 2017, the defendant indicated that, unless confirmation was received by the end of December that the claimant’s solicitors had re-established contact with Mr Mohammed, they would apply at this hearing to strike out the claim.

On 22 December 2017 the claimant’s solicitors sent a letter stating that they had been informed that Mr Mohammed resided in a different village to that which they had previously understood to be the case. It was said that a Red Crescent worker had been engaged to travel to the village to seek to make contact with him and that an update would be provided on 3 January 2018. On 3 January 2018 the claimant’s solicitors confirmed by email that this most recent attempt to make contact with Mr Mohammed had failed, and the defendant in those circumstances issued its application for an order to strike out the claim.

In opposing that application on behalf of Mr Mohammed, his solicitors have served evidence which explains that they were in contact with him while he was in prison in Kabul. In June 2014 they received an email from an Afghan lawyer, Mr Shajjan, who was assisting them, to say that Mr Mohammed had been released from prison and had informed Mr Shajjan that he was with his family. In October 2014 the claimant’s solicitors were told by Mr Shajjan that he had received a further telephone call from Mr Mohammed who had said that he was living in Helmand province.

Since then, they have heard nothing from Mr Mohammed and all attempts to contact him have failed. The only news that they have managed to obtain of his possible whereabouts is an indication that he may have moved to a different province in Afghanistan. Evidence has also been served on the claimant’s behalf from Dr Giustozzi, who has expert knowledge of conditions in Afghanistan. He has explained that most of Helmand province is under the control of the Taliban, but it is possible to visit villages there if you have no connection with the Afghan government, although travelling is difficult and most of the province has no mobile phone coverage.

Finally, the claimant’s solicitors have served evidence from an individual who has worked as a reporter in Afghanistan and has previous experience of finding missing persons there. She is willing to search for Mr Mohammed but considers that the task will take at least six months. On this basis the claimant’s representatives have asked the court to stay proceedings for seven months to enable this line of inquiry to be pursued.

It is unusual to say the least to receive a request made by representatives of a litigant on the litigant’s behalf for a stay of proceedings to give them time to try to find their client. The request also has to be considered against the background that Leigh Day have had no communication or contact with their client, direct or indirect, for over three years. It is well established by authority that it is an abuse of process to maintain proceedings without any present intention to bring them to trial: see the decision of the House of Lords in Grovit v Doctor [1997] 1 WLR 640, and the decision of the Court of Appeal in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426.

The primary submission made on behalf of the defendant by Mr Sheldon at the hearing today is that the court can be satisfied in the light of the history that I have recounted that the claimant has no present intention to bring this case to trial. Accordingly, the claim is an abuse of process and the court should now strike it out.

It seems to me highly unlikely, given the facts that I have related, that Mr Mohammed does have an intention to pursue this claim to trial and that there is a realistic prospect of his doing so. A litigant who wishes to pursue a claim is expected not simply to wait to be found by his solicitors but to take some form of initiative to communicate with his representatives. The evidence filed by the claimant’s solicitors does not indicate to me that it has been impossible for Mr Mohammed, for the last three years, to send a message to Mr Shajjan by some means or other to indicate his present whereabouts and desire to pursue the claim. If, on the other hand, it really has been impossible or virtually impossible to do so, then I cannot see how Mr Mohammed could realistically take this case to trial.

Nevertheless, perhaps out of an abundance of generosity, and because of the very unusual conditions in Afghanistan and the fact that I do not think that a further, final opportunity to contact Mr Mohammed will prejudice the defendant, I am prepared to give his representatives acting in what they perceive to be his best interests one last opportunity to try to find and make contact with Mr Mohammed using the investigator whom they have identified. I do not find myself able to be completely confident without having afforded that opportunity that Mr Mohammed has indeed decided to abandon the claim and/or that there is no realistic prospect of him, given assistance, carrying the claim forward to trial. I have to consider, amongst other factors, the background from which Mr Mohammed comes and the fact that he is an illiterate person living in a remote part of Afghanistan.

The order that I therefore propose to make in the circumstances is to direct that, by a date in six months’ time, amended particulars of claim must be served, signed by Mr Mohammed with a statement of truth. A witness statement must also be provided explaining insofar as it can properly be done without going into privileged matters the means by which it is said that it will be possible to communicate with Mr Mohammed in a way that will enable the claim to be pursued to trial. I will direct that, unless those conditions are satisfied, the claim will on that date be automatically struck out.