Tomanovic & Ors v The Foreign And Commonwealth Office

Summary judgment is appropriate where a claim has no realistic prospect of success and no compelling reason requires a trial. The court must avoid a mini-trial, but may decide an issue summarily where the evidential foundation is sufficient and factual disputes are immaterial.

A state employee seconded to an international mission does not, merely by reason of employment, exercise the sending state’s extra-territorial jurisdiction. The claimant must show the sending state exercised authority or control over the victims, or directed or controlled the impugned official functions. Responsibility allocated by a secondment instrument does not itself attribute the official’s operational conduct to the sending state.

Proceedings may be abusive where matters that could and should have been raised in earlier test-case litigation are brought later, even against a different government department.

The claimants were relatives of persons killed or abducted in Kosovo in 1999 and 2000. They alleged that a prosecutor, Mr Ratel, failed to investigate those crimes while serving as Head of the Special Prosecutions Office of the Republic of Kosovo on secondment from the Foreign and Commonwealth Office.

They relied on section 6 of the Human Rights Act 1998 and articles 2 and 3 of the ECHR. The FCO sought summary judgment on grounds including immunity, lack of UK jurisdiction, non-attribution, retrospectivity, absence of an investigative duty, abuse of process and limitation. The central issues were whether the claimants were within UK jurisdiction, whether Mr Ratel’s conduct was attributable to the UK, and whether the later proceedings were abusive.

1. Summary judgment. The court applied CPR 24.2. It avoided resolving immaterial factual conflicts and concluded that the available evidence was sufficient to assess the critical issues without disclosure or a trial. The claimants had no real prospect of success and there was no compelling reason for the claim to proceed.
2. Jurisdiction. Article 1 ECHR can apply outside national territory in limited categories, including state-agent authority and control arising from the exercise of public powers. However, the claimants had to show that the UK exercised control over them or their relatives. The FCO’s employment of Mr Ratel, residual disciplinary powers and receipt of high-level reports did not amount to UK jurisdiction. The SPRK operated under Kosovan law, and Mr Ratel’s prosecutorial functions were subject to EULEX and SPRK structures.
3. Attribution. Whether the correct test was ultimate control or operational control made no practical difference. The UK exercised neither. Article 10(2) of the Joint Action allocated responsibility for claims linked to secondment, but did not attribute EULEX’s institutional or prosecutorial conduct to the UK.
4. Other grounds. The court declined to enter summary judgment solely on immunity or retrospectivity. It considered that the claimants had a real prospect of resisting those grounds and that the timing issue under the Human Rights Act 1998 was fact-sensitive. It also held that an investigative duty could, in principle, arise even where the state was not responsible for the underlying killing.
5. Abuse of process. Applying the broad merits-based approach in Henderson v Henderson, Johnson v Gore-Wood & Co and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, the claim was abusive. The allegations concerning Mr Ratel could and should have been raised in the earlier Kontic test-case proceedings. The fact that the later claim was brought against the FCO rather than the MOD did not prevent abuse.
6. Disposition. Summary judgment was entered for the FCO on the whole claim.

This was a first-instance decision. The judgment describes earlier proceedings against the Ministry of Defence and separate proceedings concerning the European Union, but no appellate determination of the present claim is stated.