Iraqi civilians sued the Ministry of Defence in England over alleged unlawful detention and ill-treatment by British forces in Iraq. Iraqi law governed the claims and imposed a three-year limitation period, but the claimants said time had stopped running because Iraqi law made proceedings against the British government impossible in Iraq. The Supreme Court held that this obstacle did not affect the English proceedings, where no such impediment existed, and dismissed their appeal.
Fourteen lead claimants, representing more than 600 clients, alleged that British armed forces had unlawfully detained or physically maltreated them in Iraq between 2003 and 2009. The parties agreed that any tortious liability of the Ministry of Defence was governed by Iraqi law. Under article 232 of the Iraqi Civil Code, the usual limitation period was three years from the day the claimant became aware of the injury and of the person who caused it. The English action was begun more than three years after most claimants must have been aware of those matters.
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The claimants therefore relied on article 435. That provision suspends the running of time where there is a lawful excuse, including another impediment rendering it impossible for the plaintiff to claim his right. The period while the excuse lasts is left out of account. They said Coalition Provisional Authority Order 17 supplied that excuse. The Order, which had the force of law in Iraq, made coalition forces, including British forces, immune from Iraqi legal process and placed coalition personnel under the exclusive jurisdiction of their parent states. The parties agreed that it made proceedings against the British government impossible in Iraq throughout the relevant period. It was not suggested that anything had ever prevented the claimants from suing in England.
The issue under the 1984 Act
English private international law distinguishes substance, governed by the law applicable to the issue, from procedure, governed by the law of the court hearing the case. Limitation had been treated as procedural because it bars the remedy without extinguishing the right. Until 1984, English courts therefore applied English limitation rules even where foreign law governed the claim. The Foreign Limitation Periods Act 1984 changed that position: subject to limited exceptions, an English court applies the limitation law of the country whose law governs the matter and does not apply English limitation law.
The question was how that Act operates when a foreign limitation rule depends on facts that have no bearing on litigation in England. In particular, did article 435 suspend time in the English action because the claimants could not sue in Iraq?
The decisions below
Leggatt J decided a preliminary issue in the claimants’ favour. He treated the question as one about the territorial scope of article 435 under Iraqi law. Accepting the claimants’ expert evidence, he held that an Iraqi court would read the article as referring to impediments to proceedings in Iraq. Because Order 17 deprived the Iraqi courts of jurisdiction, he concluded that limitation was suspended indefinitely, subject only to the undue-hardship exception in section 2(1) of the 1984 Act. He described that outcome as a very unattractive result, but thought the alternative at least as irrational. He did not decide whether section 2(1) applied, because that was outside the preliminary issue.
The Court of Appeal allowed the Ministry’s appeal. Tomlinson LJ, with whom Lord Dyson MR and Vos LJ agreed, held that the answer did not turn on the territorial scope of article 435. Order 17 was neither a limitation law which the 1984 Act required the English court to apply nor a substantive Iraqi rule applicable under ordinary choice-of-law principles. It was only a procedural bar to Iraqi proceedings and was irrelevant in England.
The Supreme Court’s reasoning
Lord Sumption, with whom Lord Neuberger, Lady Hale, Lord Mance and Lord Reed agreed, reached the same result for different reasons. He accepted that Order 17 had no legal effect in an English court. It conferred immunity only from Iraqi legal process. It was a form of state immunity limiting the jurisdiction of the Iraqi courts, not a limitation rule, and was therefore procedural and local. A state’s immunity does not operate in its own courts.
Its consequences could nevertheless matter as facts. Article 435 asks whether, as a matter of fact, there was an impediment rendering it impossible for the plaintiff to claim his right. Lord Sumption said that he might have doubted whether the article covered the absence of a relevant right or jurisdiction, rather than an obstacle to asserting an existing right or invoking an existing jurisdiction. Those, however, were questions of Iraqi law, and the parties agreed that Order 17 was an impediment which made suit in Iraq impossible. Recognising that factual consequence did not mean giving the Order legal effect in England.
The decisive question was one of English law. Where foreign law governs the claim, the 1984 Act requires the English court to identify the foreign limitation rules and apply them to the proceedings in England. Because those rules were designed for foreign proceedings, this involves transposition. Facts relevant to proceedings abroad may be irrelevant to proceedings here. The English court asks what the foreign court would decide the foreign law to be, and then applies that law to the facts of the actual case. Likewise, where foreign law gives the foreign court a discretion, section 1(4) requires the English court to exercise it in the manner used in comparable foreign cases, while recognising respects in which English proceedings are not comparable.
Accordingly, where Iraqi limitation law depends on a fact about the proceedings, the relevant fact is the fact concerning the proceedings actually brought in England. It is not a fact about hypothetical Iraqi proceedings which the claimants had not brought and could not have brought. The relevant impediment was one affecting those English proceedings and the claimants’ personal situation in relation to them.
The claimants’ arguments
The claimants’ construction would have meant that Order 17, which never applied outside Iraq and never prevented resort to the English court, removed any limitation period from the English action. They argued that the 1984 Act required the whole Iraqi limitation law to be applied. They pointed to section 2, which expressly disapplies foreign limitation law where its application would conflict with English public policy and, in specified circumstances, where time is suspended because a party is absent from a specified jurisdiction or country. Express provision for those cases, they said, excluded any other refusal to apply part of the foreign law.
Lord Sumption rejected that argument. Treating a fact as irrelevant to English proceedings does not disapply part of Iraqi law. It applies the same Iraqi principles to different facts. The facts relevant in England need not be those that would matter in Iraq.
He also rejected Leggatt J’s concern that the alternative was irrational. If there were a temporary impediment in England but none in Iraq, an English court applying Iraqi limitation law might have to let proceedings continue in England although they would have been time-barred in Iraq. Lord Sumption saw nothing strange in that result. Iraqi limitation law is qualified by practical impediments, and those impediments may be greater in one jurisdiction than another. On the hypothesis put by the judge, Iraqi proceedings would become time-barred sooner precisely because the claimants would not have been impeded had they sued in Iraq.
Verdict: The Court unanimously dismissed the claimants’ appeal. The bar on proceedings in Iraq did not suspend time for the claims brought in England. The Court did not decide the underlying allegations or the separate question of undue hardship.
Source: Ministry of Defence v Iraqi Civilians [2016] UKSC 25
