Sophocleous & Ors v Secretary of State for the Foreign And Commonwealth Office & Anor

For private international law purposes, a cause of action in tort is located where, in substance, it arose, assessed by looking back over the events constituting the tort. Vicarious liability generally shares the location of the primary tort. Joint liability for a common design must also be located in one country, even if the design was formed or implemented in more than one country. The same approach applied to negligence causing injury abroad.

The flexible exception to the double actionability rule requires clear and satisfying grounds, assessed rigorously rather than by a general appeal to justice. Exceptionally, where the United Kingdom was alleged to be responsible for deliberate violence against colonial citizens and had made the potentially exculpatory colonial law, English law had the closest and most significant relationship with the claims.

Thirty-four claimants brought claims against the Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for Defence concerning alleged assaults, torture, rape and other violence in Cyprus during the Cyprus Emergency between 1956 and 1958.

The claims alleged vicarious liability, joint liability by common design and negligence in failing to prevent the violence. The court was asked to decide a preliminary issue on assumed facts: which law governed limitation and, more specifically, where the causes of action arose and whether the flexible exception to the double actionability rule should apply.

1. Location of the torts. The court applied the substance test: it looked back over the series of events constituting each tort and asked where, in substance, the cause of action arose. The three causes of action arose in Cyprus on the assumed facts.
2. Vicarious liability. Vicarious liability is not itself a tort. It imposes liability for another person's tort. Since the primary assaults were committed in Cyprus, the vicarious liability claim shared that location.
3. Joint liability. Joint liability by common design is different from vicarious liability. The accessory is treated as a party to the primary tort and is personally a joint tortfeasor. Nevertheless, the substance of the joint tort must be located in one country. Although the common design was formed and operated across England and Cyprus, the Colonial Administration and individual perpetrators were in Cyprus and the assaults occurred there. The joint liability therefore arose in Cyprus.
4. Negligence. The negligence claim was analogous to personal injury cases where the harmful event occurred abroad. The physical injuries and the acts allegedly failing to prevent them were centred in Cyprus. The negligence cause of action therefore also arose there.
5. Flexible exception. The double actionability rule is subject to a flexible exception only where clear and satisfying grounds exist. The relevant law is that of the country having the most significant relationship with the occurrence and the parties. The court considered the United Kingdom's responsibility for the colony, the close connection with London, the state's special responsibility for deliberate violence against its citizens, the absence of a present Cypriot state interest, and the fact that the United Kingdom had made the colonial law potentially absolving it from liability. Those cumulative factors justified applying English law.
6. Disposition. English law governed whether the alleged torts were committed, and therefore English limitation law governed them. Section 1(1) of the Foreign Limitation Periods Act 1984 did not apply. Had the exception not applied, Cyprus law would have governed the torts and both English and Cypriot limitation law would have applied under section 1, with any undue-hardship issue under section 2 reserved for the later preliminary issue.