Rahmatullah & Anor v The Ministry Of Defence & Anor

Under Part III of the Private International Law (Miscellaneous Provisions) Act 1995, the law of the country identified by the general rule is not displaced merely because the tort has significant connections with another country. Section 12 requires a comparison of the connecting factors and a finding that applying the other country’s law would be substantially more appropriate. The threshold is deliberately high.

A non-binding memorandum of understanding may have practical and diplomatic significance, but it does not necessarily create a private-law connection sufficient to displace the statutory rule. Section 14 concerns the substantive content of foreign law and does not ordinarily provide an escape route based on procedural difficulties in applying that law within a closed material procedure.

The claimants, Pakistani nationals, alleged that British forces captured them in Iraq, transferred them to United States control, and that they were subsequently detained and mistreated in Afghanistan. Their return claims were pleaded in negligence and misfeasance in public office.

The judgment determined the applicable law before trial. The claimants relied on sections 12 and 14 of the Private International Law (Miscellaneous Provisions) Act 1995 to argue that English law should apply, despite the alleged injuries occurring in Iraq and Afghanistan. They also argued that applying foreign law would create procedural unfairness because foreign-law experts might lack access to closed material.

1. Applicable law. The return claims concerned personal injury caused by events occurring in more than one country. Under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995, the starting point was therefore the law of the country where the claimants sustained their injuries: Iraq for the earlier events and Afghanistan for the later events.
2. Section 12. Displacement required more than showing that the geographical connections with Iraq and Afghanistan were weaker than in ordinary cases. The court had to compare the significance of all relevant connecting factors and decide whether it was substantially more appropriate to apply English law. The authorities emphasised that the general rule should not be dislodged easily. The claimants’ connections with England, including the location of officials responsible for the alleged failures and the exercise of state authority, did not satisfy that threshold.
3. The 2003 memorandum of understanding had practical significance because it supported the United Kingdom’s ability to comply with obligations under the Geneva Conventions. It was not a contract, was not legally binding, and was not an agreement to which the claimants were parties. It therefore did not provide the strong private-law connection required to displace section 11.
4. Section 14. The public-policy saving was directed to the substantive foreign law itself, not to procedural difficulties arising in England when foreign law had to be proved. In any event, the closed material procedure provided the statutory mechanism for balancing open justice, natural justice and national security, subject to Article 6. CPR r.82.2(3) required the court to satisfy itself that the material available enabled it properly to determine the proceedings.
5. The claimants’ arguments under sections 12 and 14 failed. The law of Iraq applied to the claims concerning events before rendition, and Afghan law applied thereafter.

First-instance determination of the applicable law issue in claims proceeding towards trial. No prior appellate decision in the same proceedings was identified as determining this issue for the present claims.