Iraqi citizens claimed to have suffered unlawful detention and/or physical maltreatment from British armed forces in Iraq between 2003 and 2009. The claims were brought in tort in England against the Ministry of Defence, but the torts were governed by Iraqi law. Under the 1984 Act where a claim is brought in England but governed by foreign law, the English courts are to apply the foreign law of limitation. In many of these cases the action was begun more than three years after the relevant claimant became aware of the injury and the person who caused it, and was therefore time-barred under article 232 of the Iraqi Civil Code.
Held: The appeal failed.
‘The real question is whether it is legally relevant when the claimants have brought proceedings in England what impediments might have prevented similar proceedings in Iraq. The judge, as I have observed, regarded that as depending on the territorial ambit of article 435 as a matter of Iraqi law. On that footing it is obvious that a procedural time-bar arising under Iraqi law applied only in Iraq. But in my opinion, this was not a question of Iraqi law but of English law. In English proceedings, the relevant law is the Foreign Limitation Periods Act. Where the cause of action is governed by a foreign law, the Act requires an English court to ascertain the relevant rules of the foreign law of limitation and then to apply it to proceedings in England. Because the foreign law of limitation will have been designed for foreign proceedings, that necessarily involves a process of transposition. There may be facts which the foreign law of limitation would treat as relevant to foreign proceedings but which are irrelevant to proceedings in England.’
and ‘ The claimants’ submission, if accepted, would mean that there was no limitation period at all affecting the present proceedings in England, by reason of a consideration (CPA Order 17) which had no relevance to English proceedings because it has no application outside Iraq and has never impeded resort to the English court. The main argument advanced in support of it was that an English court applying the Act of 1984 must give effect to the whole of the relevant Iraqi law of limitation, and not just to part of it. This point was reinforced by reference to section 2 of the Act of 1984. Section 2(1) disapplies the relevant foreign law of limitation so far as its application would conflict with English public policy, and section 2(3) disapplies it so far as it suspends the running of time on account of ‘the absence of a party to the action or proceedings from any specified jurisdiction or country’. The point made is that where the Act disapplies some part of the foreign law of limitation, it does so expressly, thereby impliedly excluding its disapplication in any other circumstances. I reject the submission because it assumes that because the Iraqi law of limitation would treat certain facts as relevant to Iraqi proceedings, to treat those facts as irrelevant to English proceedings involves disapplying part of Iraqi law. It does not. It simply involves applying the same principles of Iraqi law to different facts. The facts relevant to proceedings in England are not necessarily the same as those which would be relevant to proceedings in Iraq.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Reed
[2016] UKSC 25, [2016] 1 WLR 2001, [2016] WLR(D) 261, UKSC 2015/0126
Bailii, Bailii Summary, WLRD, SC, SC Summary
Private International Law (Miscellaneous Provisions) Act 1995, Foreign Limitation Periods Act 1984
England and Wales
Citing:
At QBD – Iraqi Civilian Litigation v Ministry of Defence QBD 26-Jan-2015
The court considered limitation issues as an interim issue in this claim and particularly as it was affected by Iraqi law.
Held: The effective period of CPA 17 ended on 31 December 2008. No claim had been brought relating to any alleged act or . .
Appeal from CA – Ministry of Defence v Iraqi Civilians CA 9-Dec-2015
‘This appeal raises a short but elusive point concerning the manner in which the English Court applies a foreign law relating to limitation when required to do so by section 1 of the Foreign Limitation Periods Act 1984’ . .
Lists of cited by and citing cases may be incomplete.
International, Limitation
Updated: 01 November 2021; Ref: scu.563387
