Chagos Islanders v Attorney Generall & Anor

Under English common law, unlawful state action does not by itself create a damages claim against the Crown as an institutional tortfeasor. The Crown Proceedings Act 1947 provides vicarious liability for servants’ torts, while the Human Rights Act 1998 creates distinct primary liability for certain rights violations. Clear renunciation forms can compromise private-law claims, subject to ordinary grounds for impeaching a settlement. A possible trespass claim requires force or threats attributable to persons for whom the Crown is liable. Limitation is generally a complete code, although waiver, estoppel, disability and deliberate concealment may affect time. The surviving claims were time-barred.

Former inhabitants of the Chagos Islands and their descendants claimed damages and declaratory relief against the Attorney General and the British Indian Ocean Territory Commissioner for their removal or exclusion from the islands between 1967 and 1973. Ouseley J struck out the claim in its entirety. The claimants sought permission to appeal on the effect of compensation-related renunciations, state liability in tort, exile, misfeasance in public office, deceit, the Mauritius Constitution and limitation. The central issue was whether any viable claim remained notwithstanding the settlements and the lapse of time.

Application for permission to appeal dismissed. The court held that the claimants who had signed clear renunciation forms in return for compensation had bindingly compromised the private-law claims now advanced. No general principle prevented a person from compromising a claim arising from infringement of fundamental rights. A settlement could, however, be impeached for improper pressure or lack of understanding. The court also distinguished a compensation claim from the public-law challenge in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067; it treated that decision as rightly decided, so statutory authority could not defeat any tort otherwise established.

1. Under English common law the Crown was not itself a tortfeasor for wrongs by its servants. The Crown Proceedings Act 1947 imposed vicarious liability and did not create primary institutional liability. Unlawful exile was a public-law wrong, but not thereby a tort committed by the state. Removal or exclusion from an entire territory might constitute trespass to the person if effected by force or threats of force, but there was no pleaded or evidential case of such conduct.
2. Misfeasance in public office was directed at individuals who consciously abused powers entrusted by the state, knowing that harm might result. The evidence did not show that the relevant officers knew the depopulation scheme was unlawful. There was therefore no viable claim. The claim based on representations to the claimants also failed for want of evidence of knowledge or recklessness as to falsity. Article 73 of the UN Charter conferred no individual rights in domestic law. The possible extension of deceit to statements made to third parties was left open, but was immaterial in view of limitation.
3. The argument that the Mauritius Constitution continued in the British Indian Ocean Territory through s.15 of the British Indian Ocean Territory Order 1965 was arguable on the wording of the Order, although the court did not decide the merits. The Limitation Act 1980 was intended as a complete code. Waiver or estoppel remained conceivable, and disability might arguably extend beyond infancy or unsound mind, but neither unconscionability nor disability could survive the compensation process beyond 1983. Deliberate concealment required a positive act and lack of reasonable diligence in discovering the facts. Any surviving claim was inevitably time-barred.

No separate claim for declaratory relief had been developed. The court dismissed the application.

1. Court of Appeal (Civil Division): dismissed the application for permission to appeal and upheld the conclusion that the claims were barred or unsustainable.
2. High Court of Justice, Queen’s Bench Division: Ouseley J struck out the claim in its entirety.