Iraqi Civilians v Ministry of Defence

Under Iraqi Civil Code art 211, an unlawful act by a third party may be a foreign cause beyond the defendant’s control where the third party was not acting in collusion with the defendant and was not subject to the defendant’s meaningful control. The decisive question is whether the third party’s fault drowned out the defendant’s fault. Negligent exposure to a risk of deliberate ill-treatment is insufficient for joint liability where the deliberate act drowns out the negligence. Liability may nevertheless arise where the defendant intended to facilitate the harm, foresaw the risk and failed to discharge a legal duty to protect against it, or contemplated and accepted the risk that its conduct would facilitate the harm.

Three Iraqi civilians brought claims against the Ministry of Defence arising from their alleged transfer by British forces into United States custody, followed by alleged unlawful detention and serious ill-treatment by US personnel. The tort claims were governed by Iraqi law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The claims relied on joint liability and, alternatively, vicarious liability.

The court determined a preliminary issue concerning whether Iraqi law could impose liability on the Ministry for acts of US forces. The parties agreed that vicarious liability under art 219 extended only to soldiers under the Ministry’s command and control, and that art 217 governed joint liability. The central issue was the effect of art 211 where the defendant’s conduct allegedly exposed a claimant to a risk of deliberate mistreatment by a third party.

1. The court declared that, if the claimants proved that they were subjected to serious and deliberate ill-treatment by US soldiers after handover, negligence by British personnel in exposing them to that risk would not alone establish joint liability under Iraqi law.

2. Article 217 of the Iraqi Civil Code requires each alleged participant to have committed an unlawful act or omission, each fault to have caused harm, and each fault to have caused the same harm. Article 202 encompasses negligence and intentional wrongdoing. Article 219 provides vicarious liability only for acts of soldiers under the defendant’s command and control.

3. Article 211 operates where harm arose from a foreign cause beyond the defendant’s control. The court accepted that an unlawful act by a third party who was not acting in collusion with the defendant and over whom the defendant exercised no meaningful control could satisfy that description. The relevant inquiry was whether the third party’s fault drowned out the defendant’s fault.

4. Having considered the commentaries of Sanhuri and Hakim and the expert evidence, the court held that the deliberate and unlawful conduct of US personnel could drown out mere negligence by British personnel. The fact that the harm might have been avoided had the handover not occurred did not itself prevent the US conduct from being a foreign cause beyond the defendant’s control.

5. Joint liability would therefore require proof of one of three mental states by the British soldiers or officials responsible for the transfer: intention to facilitate the ill-treatment; actual foresight that the claimant might suffer such ill-treatment coupled with failure to act in accordance with a legal duty to protect him; or contemplation and acceptance of the risk that the transfer would facilitate the ill-treatment. The court made a declaration to that effect.

First-instance determination of a preliminary issue. No prior appellate decision is stated in the judgment.