Limitation of action

Re Iraqi Civilian Litigation: Queen’s Bench Division (Mr Justice Leggatt): 26 January 2015

Period of limitation – Suspension – Claimant Iraqi civilians bringing proceedings against defendant Ministry of Defence for allegedly unlawful detention and ill-treatment by British armed forces in Iraq

The ‘Iraqi Civilian Litigation’ was a general description of many hundreds of claims which had been brought in the court by Iraqi civilians against the defendant Ministry of Defence. The claimants sought damages for their allegedly unlawful detention and ill-treatment by British armed forces on various dates during the period when British forces were present in Iraq.

Their claims were made on the basis of the Human Rights Act 1998 and the law of tort. The present case concerned the preliminary issue of whether the claims had been brought in time or whether they were barred by an applicable statute of limitations.

The issues for determination were, first, whether, as a matter of Iraqi law and in respect of those heads of claim brought pursuant to rights under Iraqi law, the primary limitation period of three years provided for in article 232 of the Iraqi Civil Code (the Code) had been suspended by operation of article 435(1) of the Code, as a result of the fact that Coalition Provisional Authority Order No 17 (CPA Order 17) had rendered it impossible for the claimants to claim their rights in Iraq.

Secondly, in any case, as a matter of Iraqi law: (i) on which date had CPA Order 17 ceased to have effect on new causes of action arising, in particular, whether it was the 31 December 2008, when the United Nations mandate authorising the multi-national force (MNF) had ended or 18 December 2011, when the final US troops had left Iraq; and (ii) if, under article 435(1) of the Code, the condition to suspend the limitation period was met, whether it also suspended the period of 15 years provided for in article 232 of the Code.

Thirdly, if the first issue was resolved in the affirmative, whether as a matter of English law, article 435(1) of the Code was to be disregarded in relation to such heads of claim, pursuant to section 2(3) of the Foreign Limitation Periods Act 1984 (the 1984 act).

The court ruled:

(1) As a matter of Iraqi law and in respect of those heads of claim brought pursuant to rights under Iraqi law, the primary limitation period of three years provided for in article 232 of the Code had been suspended by operation of article 435(1) of the Code as a result of the fact that CPA Order 17 had rendered it impossible for the claimants to claim their rights in Iraq.

An Iraqi court hearing a case of an Iraqi civilian as against the UK or any of its forces present in Iraq in respect of acts or omissions occurring during the period that CPA Order 17 had been in effect, would not consider the possibility of bringing a claim in England or other countries when considering whether the limitation should be suspended by reason of CPA Order 17 for the purposes of article 435 of the Code.

Accordingly, the impediment referred to in article 435 of the Code was not one which made it impossible for the claimant to claim his right anywhere in the world. Article 435 of the Code was concerned only with the possibility of bringing a claim in Iraq (see [26], [36], [45] of the judgment).

(2) As a matter of Iraqi law, the date on which CPA Order 17 had ceased to have effect on new causes of action arising was 31 December 2008. In circumstances where the experts agreed that an Iraqi court would give primacy to the text of the legislation and that text included an express definition of the ‘MNF’ which, on the facts, was incapable of applying after 31 December 2008, it was difficult to interpret CPA Order 17 any other way.

Further, where the condition to suspend the limitation period was met, article 435(1) of the Code suspended the period of 15 years, as well as the three-year period, provided for in article 232 of the Code. An Iraqi court would regard the words ‘in all cases’ in article 232 of the Code as meaning only that time would 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 had not yet lapsed and not as seeking to exclude the operation of article 435 of the Code where the conditions which it laid down for suspending the time limit were satisfied (see [19], [38], [45] of the judgment).

(3) As a matter of English law, article 435(1) of the Code was not to be disregarded in relation to such heads of claim by reason of section 2(3) of the 1984 act. 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 was suspended indefinitely.

It was not tenable to interpret section 2(3) of the act as if the immunity of the defendant from Iraqi legal process conferred by CPA Order 17 constituted the absence of a party to the action or proceedings from a specified jurisdiction or country. The words ‘absence from any specified jurisdiction or country’ on their plain meaning referred 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 (see [40], [41], [44], [45] of the judgment).

Richard Hermer QC, Alison Pickup, Maria Roche and Andrew Scott (instructed by Leigh Day) for the claimants; Derek Sweeting QC and James Purnell (instructed by the Treasury solicitor) for the defendant; Dan Squires (instructed by Public Interest Lawyers Ltd) for the PIL claimants.