Sophocleous & Ors v The Secretary of State for Foreign And Commonwealth Affairs & Anor

For a foreign tort committed before statutory reform, double actionability remains the general rule. The claim must be actionable under English law and the law of the place of the tort. The flexible exception is exceptional. It may govern a whole claim, but only where clear and satisfying grounds show that the foreign law should be displaced, having regard to its policy, intended reach and the interests of the place of commission. Vicarious or accessory liability does not create a separate tort. Negligence is generally located where the injury is suffered. A foreign limitation period cannot be displaced merely because it is less generous than English law; the statutory public-policy exception remains relevant.

Thirty-four claimants brought personal injury claims arising from alleged assaults and other mistreatment in Cyprus between 1956 and 1958 by members of the British security forces and personnel of the Colonial Administration. The defendants, successors to the relevant Secretaries of State, appealed from Mr Justice Kerr’s determination of a preliminary issue that English law alone governed limitation.

The alleged torts included vicarious liability, accessory or joint liability and negligence. The claimants also challenged the conclusion that the torts were committed in Cyprus. The central issues were the place where the causes of action arose, whether the common-law double actionability rule applied, and whether its flexible exception displaced Cyprus law for the claims or for limitation alone.

Longmore LJ delivered the judgment, with Hamblen LJ and Sir Stephen Richards agreeing. The appeal was allowed and the cross-appeal dismissed.

1. Place of commission. The alleged torts were committed in Cyprus. Vicarious liability is not itself a tort, and accessory liability is liability for the primary tort. There was therefore one tort, committed where the primary acts occurred, even if assistance or omissions originated in England. The same conclusion followed for negligence: the relevant private international law inquiry is where, in substance, the cause of action arose, ordinarily where personal injury was suffered. The court relied on Fish & Fish Ltd v Sea Shepherd UK [2015] A.C. 1229, Distillers Co. (Biochemicals) Ltd v Thompson [1971] A.C. 458, Durham v T & N Plc and Connelly v RTZ Corporation [1999] CLC 533.
2. Double actionability. Because the torts were foreign torts committed in Cyprus before the relevant statutory reform, the common-law rule applied in principle. The claims had to be actionable under both English law and Cyprus law, subject to the flexible exception described in Boys v Chaplin [1971] A.C. 356.
3. Flexible exception. The exception can, in principle, apply to an entire claim, but it must remain exceptional. Clear and satisfying grounds are required. The court must identify the policy and intended reach of the foreign rule and consider whether declining to apply it would serve any interest that the rule was designed to protect. The judge’s reasons did not satisfy that threshold. Cyprus law was not inferior to English law, colonial constitutional arrangements did not convert it into English law, and the relevant interests had to be assessed at the time of the tort. Deliberate harm, an alleged connection with London and the sophistication of English law were insufficient. The rationale of comity also supported applying the law of the place of the tort.
4. Limitation. If Cyprus law fell to be taken into account, the Foreign Limitation Periods Act 1984 required its limitation law to be considered alongside English limitation law, with the shorter period ordinarily effective. The flexible exception did not displace Cyprus limitation merely because it was less generous. Any public-policy challenge had to be addressed under section 2 of the Act.

The first preliminary issue was answered on the basis that both Cyprus law and the law of England and Wales applied to limitation. The remaining preliminary issues were left for determination. The order was varied to provide judgment for the defendants on the first preliminary issue, with consequential costs and repayment directions.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 2167, the appeal was allowed and the cross-appeal dismissed. The order of Kerr J was varied to give judgment for the defendants on the first preliminary issue.
• High Court, Queen’s Bench Division: Mr Justice Kerr held that the torts were committed in Cyprus but applied the flexible exception so that English law alone governed the claims for limitation.