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PI and Civil Litigation

Law - practice - procedure

07 AUG 2015

Iraqi Civilians v Ministry of Defence EWHC 1254 (QB)

Iraqi Civilians v Ministry of Defence EWHC 1254 (QB)
Tort – Foreign Law - Expert Evidence - Causation

High Court, Queen's Bench Division: Mr Justice Leggatt

18 May 2015

In a claim by Iraqi civilians in respect of ill-treatment suffered at the hands of US troops whom the claimants had been handed to from UK soldiers, a trial of a preliminary issue was found in favour of the defendants, namely over how to interpret the relevant Iraqi law.

The claimants claimed that the defendant was liable for their ill-treatment which had taken place after the defendant had transferred the claimants into the custody of US forces. It was common ground that the applicable law was that of Iraq and the issue before the court was whether the defendant would be liable under Iraqi law if it were shown that UK soldiers who approved the transfer of the claimants to US custody knew or ought to have known that there was a risk of ill-treatment and if so, what sort of knowledge was required to give rise to liability.

Both parties relied on the evidence of experts in Iraqi law with respect to whether the defendant would be liable under Iraqi law if it were shown that British soldiers or officials who approved transfers to the US forces knew or ought to have known that the claimants might be subjected to serious mistreatment; and, if so, what kind of knowledge was necessary to give rise to such liability.

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The claimants’ expert, having previously agreed a joint expert report, gave notice on the day before the trial that he did not agree with two paragraphs of the joint report, although no explanation was given. In oral evidence the expert stated that he had not had time to thoroughly read the report before getting on a flight. However, the judge rejected this and found that the report had accurately represented his opinion at the time.

Although the court noted that the expert was entitled to change his mind, it was not clear from his evidence to what extent he had done so and the court accepted the opinion of the defendant’s expert that the unlawful acts of US troops at a time at which the UK troops had no meaningful control would be regarded by an Iraqi court as a cause “beyond the control” of the defendant. While under English law, the acts of both the UK and US troops would be regarded as causes of the harm given that the MoD would be deemed to have a duty of care to prevent the harm caused by the US troops, there was no evidence that this could be applied to Iraqi law.

The court concluded that under Iraqi law the seriousness of the alleged US acts “drowned out” the acts of the UK troops. Therefore the claimants must prove that the UK officials responsible for the handing over the civilians must have had one of the three following mental states at the time: either (1) an intention to facilitate the claimant’s ill-treatment; or (2) actual foresight that the claimants might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (3) contemplation and acceptance of the risk that transferring the claimants would facilitate their ill-treatment.

A reminder that an expert who changes their opinion shortly before trial can expect a judge to treat their evidence unfavourably unless they can give a convincing explanation.

Joseph Carr & Ellen Lucas, Anthony Gold
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