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Limitation – Iraqi Civil Code – CPA Order 17 – procedure – suspension
Lord Neuberger, Lady Hale, Lord Mance, Lord Sumption, Lord Reed
12 May 2016
The Supreme Court heard the claimants’ appeal against a decision of the Court of Appeal that their claims against the defendant were time-barred. The Court of Appeal had rejected the claimants’ submission that the limitation period set down in Article 232 of the Iraqi Civil Code was suspended due to the effect of CPA Order 17, which they argued served as an ‘impediment’ pursuant to Article 435(1) of the Civil Code. The Supreme Court upheld the Court of Appeal’s decision, though giving differing reasons, and rejected the claimants’ appeal.
The claimants were 14 lead claimants, representative of more than 600 clients of Leigh Day. They claimed to have suffered unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009, for which the defendant was liable in tort. The parties agreed that any liability in tort was governed by Iraqi law. Under article 232 of the Civil Code of Iraq, the standard limitation period was three years from the date on which the claimant became aware of the injury and of the person who caused it. This action was begun after the expiry of such limitation period.
The claimants relied on Article 435(1) of the Civil Code which states that the limitation period is suspended if there is ‘another impediment rendering it impossible for the plaintiff to claim his right’. The claimants relied on the Coalition Provisional Authority Order 17 (CPA Order 17) as engaging this provision. This made it impossible for the claimant to sue the British government in Iraq, as Section 2(1) of the Order provides that coalition forces in Iraq are immune from Iraqi legal process.
The parties agreed that CPA Order 17 made it impossible for the claimants to sue the British government in Iraq throughout the relevant period, however, the question before the court was whether the suspensory provision in Article 435(1) applied to the proceedings in England. It was not suggested that there had ever been any impediment preventing the claimants from suing the British Government in England. At the hearing of a preliminary issue of the point, the judge decided in favour of the claimants. He regarded the question whether the relevant impediment had to affect Iraqi or English proceedings as turning on the territorial scope of article 435 as a matter of Iraqi law.
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The Court of Appeal allowed the appeal, but rejected the judge’s view that the answer turned on the territorial scope of article 435, holding instead that an English court was bound to disregard any impediment arising from CPA Order 17. The Court of Appeal had held that CPA Order 17 was merely a procedural bar to proceedings in Iraq which had no relevant in an English Court.
The Supreme Court held that the Court of Appeal was correct that CPA Order 17 had no legal effect in an English court as it expressly confers immunity only in respect of Iraqi legal process. It is therefore necessarily procedural and local in nature.
The Supreme Court held that where the Iraqi law of limitation depends for its operation on some fact about the proceedings, the relevant fact is that applicable to the actual proceedings, viz those brought in England, and not some hypothetical proceedings that the claimants have not, and could not have, brought in Iraq. CPA Order 17 was not an ‘impediment’ to the proceedings in England, and had no relevance to English proceedings due to having no application outside of Iraq.
The court rejected the claimants’ submission that an English court applying the Foreign Limitation Periods Act 1984 must give effect to the whole of the relevant Iraqi law of limitation and not just part of it. The court held that this assumes that because the Iraqi law of limitation would treat certain facts as relevant to Iraqi proceedings, to treat those facts as irrelevant to English proceedings involves dis-applying part of Iraqi law, and it did not. It simply involved applying the same principles of Iraqi law to different facts, and the facts relevant to proceedings in England are not necessarily the same as those which would be relevant to proceedings in Iraq.
Kim Pryce & Victoria Brown, Anthony Gold