Iraqi Civilian Litigation v Ministry of Defence

Where Iraqi law governs limitation, an Iraqi limitation period is suspended under article 435 of the Iraqi Civil Code if an impediment makes it impossible to bring the claim in Iraq. The provision is concerned with proceedings in the Iraqi courts, not with the availability of proceedings in every jurisdiction worldwide or in the court where proceedings happen to be brought.

The suspension applies to both the three-year and 15-year periods in article 232. Section 2(3) of the Foreign Limitation Periods Act 1984 does not require that suspension to be disregarded where the impediment is immunity from Iraqi legal process rather than physical absence from a jurisdiction or country.

Hundreds of Iraqi civilians brought claims in the High Court against the Ministry of Defence concerning alleged detention and ill-treatment by British forces in Iraq. The claims included tort claims governed by Iraqi law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995.

The court determined preliminary issues concerning the effect of CPA Order 17 on limitation under articles 232 and 435 of the Iraqi Civil Code, the duration of CPA Order 17, and whether section 2(3) of the Foreign Limitation Periods Act 1984 displaced the Iraqi suspension rule.

1. Applicable Iraqi law. The effect of foreign law was a question of fact to be determined by evidence of how a court in the foreign jurisdiction would interpret its legislation. The court accepted the claimants’ expert evidence on the territorial scope of article 435 of the Iraqi Civil Code.
2. Duration and effect of CPA Order 17. The effective period of CPA Order 17 ended on 31 December 2008, when the UN mandate authorising the MNF expired. The immunity conferred for acts occurring before that date remained effective after the Order ceased to apply to new causes of action.
3. Territorial scope of article 435. Article 435 suspends limitation where a lawful excuse or impediment makes it impossible to bring the claim in Iraq. It does not require an Iraqi court to assess whether proceedings could be brought in another country. CPA Order 17 therefore suspended the applicable limitation period for claims which could not be brought in the Iraqi courts.
4. Three-year and 15-year periods. Article 435 is a general suspension provision. It suspends both the three-year period and the 15-year period in article 232. The words “in all cases” in article 232 do not exclude the operation of article 435.
5. English limitation law. The reference in section 2(3) of the Foreign Limitation Periods Act 1984 to absence from a specified jurisdiction or country means physical absence from a place. It does not include immunity from the jurisdiction of a court. Section 2(3) therefore did not require article 435 to be disregarded. The questions of public policy and undue hardship under section 2(1) and (2) were left for determination on another occasion.
6. The preliminary issues were answered accordingly. The Iraqi limitation periods were suspended for the relevant claims, CPA Order 17 ceased to have effect on new causes of action on 31 December 2008, and section 2(3) did not disapply article 435.