Ministry of Defence v Iraqi Civilians

When an English court must apply foreign limitation law, it must ascertain how the foreign court would answer the limitation question, even if that court would never hear the claim. The Foreign Limitation Periods Act 1984 requires application only of foreign law relating to limitation as defined by the Act. A foreign procedural bar to suit, including immunity or exclusive jurisdiction, is not transformed into limitation law merely because it would cause the foreign limitation period to be suspended. The procedural bar must therefore be disregarded. The foreign limitation provision is applied without it.

Iraqi civilians brought tort claims in England against the Ministry of Defence concerning alleged detention and ill-treatment by British forces in Iraq. Under Part III of the Private International Law (Miscellaneous Provisions) Act 1995, Iraqi law governed the tort claims. The claimants relied on Article 435(1) of the Iraqi Civil Code, arguing that the three-year period in Article 232 was suspended because CPA Order 17 made proceedings in Iraq impossible. Leggatt J held that the period was suspended: [2015] EWHC 116 (QB). The appeal concerned whether that procedural bar could affect the Iraqi limitation law applied in England.

1. Disposition. The Court of Appeal allowed the Ministry of Defence’s appeal. The three-year limitation period under Article 232 of the Iraqi Civil Code was not suspended under Article 435(1) because CPA Order 17 made proceedings in Iraq impossible. The second preliminary issue did not arise.
2. Hypothetical application of foreign law. The English court must determine how the courts of the foreign country would apply that country’s law to the issue before the English court, even where the foreign court would never have occasion to decide the question. The court applied the approach stated by Scott LJ in A/S Tallina Laevauhisus A/S v Estonian State Steamship Line (1947) 80 Lloyd’s Rep 99.
3. Scope of foreign limitation law. Sections 1 and 4 of the Foreign Limitation Periods Act 1984 require application only of so much of the foreign law as makes provision concerning a limitation period applicable to proceedings in the foreign courts, including the application, extension, reduction or interruption of that period. CPA Order 17 created a procedural bar through immunity and exclusive jurisdiction. It was not part of Iraqi limitation law, although its operation would otherwise have supplied the impediment relied on under Article 435. The court followed the analogous approach in OJSC Oil Company Yugraneft (in liquidation) v Abramovich and Others [2008] EWHC 2613 (Comm) and treated CPA Order 17 as unavailable for that purpose. The classification of CPA Order 17 as a procedural bar was consistent with Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758; [2011] QB 773.
4. Section 2(3). The court indicated, obiter, that “absence from any specified jurisdiction or country” meant physical absence from a place, not immunity from or lack of jurisdiction in a court. That issue was academic after the first preliminary issue was decided. The court also reserved the question whether CPA Order 17 involved Iraqi rules of private international law under sections 1(5) and 4(2).

1. Court of Appeal (Civil Division): Allowed the Ministry of Defence’s appeal and held that the Iraqi three-year limitation period was not suspended by CPA Order 17.
2. High Court of Justice, Queen’s Bench Division: Leggatt J held that Article 435 of the Iraqi Civil Code suspended the limitation period because proceedings in Iraq were impossible: [2015] EWHC 116 (QB).