“The tail of limitation should not wag the dog of tort”: getting redress for historic human rights abuses

In a judgment handed down last month, the English High Court applied the rule on double actionability, and the flexible exception, to a claim by 34 individuals against the UK government for alleged assaults, beatings, rape and other acts of violence inflicted from 1956 to 1958 in Cyprus during the so-called “Cyprus Emergency” (Athanasios Sophocleous & Ors v Secretary of State for the Foreign and Commonwealth Office & Secretary of State for Defence [2018] EWHC 19 (QB)) (“Sophocleous”)

This is a rare and interesting illustration of the application of the rule on double actionability, given its limited scope following national and EU legislation in this field. However, it demonstrates the continuing significance of the rule for domestic litigation.

the Court’s conclusion was based on the accountability of a State and a State’s responsibility for its citizens

In recent years, the courts in England and Wales have dealt with several cases concerning historic abuses by colonial authorities from Malaysia and Kenya, which have raised interesting issues of jurisdiction, the scope of the government’s duty to investigate such abuses (see, for example, R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 355) and limitation (see, for example, Mutua v Foreign and Commonwealth Office [2012] EWHC 2678 (QB)).

In Sophocleous, the High Court was asked to resolve, as a preliminary issue, which law (or laws) applied to the claim for the purposes of determining limitation according to the rules of private international law. Issues of double actionability and limitation had similarly arisen in Kimathi v Foreign and Commonwealth Office [2016] EWHC 600 (QB), relating to the state of emergency declared in Kenya in 1952, but given the facts of that case Stewart J held that it was not appropriate to deal with double actionability as a preliminary matter.

Issues in the case

The defendants in this case are being sued as representing the Crown in right of the government of the United Kingdom. The claimants contend that they are (i) vicariously liable for the acts of violence alleged, (ii) liable as joint tortfeasors with the Colonial Administration and (iii) liable for negligence.

The tortious acts allegedly committed fall outside the scope of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA 1995”) and EU Regulation 864/2007 (or “Rome II”). Proceeding on the basis of assumed facts, the Court was therefore asked to determine:

1. First, where in substance the cause of action arose in the case of each of the three torts alleged;
2. Secondly, if the answer was Cyprus, whether the court should apply English law, the lex fori, to the exclusion of Cypriot law, the lex loci delicti.

The significance of these questions was that, if the cause of action arose in England, then the law of England and Wales applied. However, if the cause of action arose in Cyprus the double actionability rule applied unless the court decided to apply a recognised exception.

 The double actionability rule

In summary, the common law rule of double actionability provides that, where a tort is committed outside England, it is only actionable in England if (i) the wrong would be actionable if committed in England and (ii) it is also actionable in the place where it was committed: Phillips v Eyre (1870) LR 6 QB 1 and Boys v Chaplin [1971] AC 356.

The rationale for the double actionability rule is, firstly, that a person should not ordinarily be liable for doing something that is lawful in the place it is done and, secondly, that the principle of comity of nations requires that a person who is given protection by the laws of one country with respect to acts done in that country is protected against legal proceedings in other countries: see Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc. [1990] 1 QB 391, at 445G-H, per Slade LJ.

As with most rules, however, it is not absolute and is subject to exception – known as the “flexible exception” – that a particular issue may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties: fully set out in the 12^th Edition of Dicey & Morris, rule 203(2). The difficulty is that there are no firm guidelines for determining when the exception can be invoked and the circumstances that justify its application, limiting legal certainty.

What the court decided

Having decided that, on the basis of the assumed facts, all three torts alleged were committed in Cyprus (which was therefore the lex loci delicti) the Court went on to consider the second limb of the preliminary issue, namely whether English or Cypriot law applied. The peculiar feature of this case was that neither party invited the court to assume that the claims were actionable (subject to limitation) under the then law of Cyprus. The court was therefore asked to decide whether to apply the exception without knowing whether they were or not.

The Court was clear that the issue of limitation is subordinate and secondary to the prior question of which country’s substantive law governs the torts alleged. The “…tail of limitation should not wag the dog of the proper law of the torts.” [At §155]

“where a state stands to be held to account for acts of violence against its citizens, it should be held to account, in its own courts, by its own law”

It also emphasised that there is no overriding “interests of justice” ground on which to apply the flexible exception, without proper analysis. The correct approach is that adopted by Lord Wilberforce in Boys v Chaplin (that the double actionability rule should be applied “unless clear and satisfying grounds are shown why it should be departed from…” [at 391H]) and/or Lord Hope in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 (that “[u]nless a rigorous approach to this question is adopted, the application of the exception is at risk of giving rise to much uncertainty and to the criticism…that it has become instinctive and arbitrary” [at §164]) On the basis of those authorities, the Court concluded that:

“While justice may demand that the exception be applied, that conclusion may not be reached on a basis that is merely intuitive, instinctive or arbitrary.” [At §154]

However, the Court held that this case was like no other cited to it and that, applying the exception, the law of England and not of Cyprus should be applied for the purpose of determining whether the torts were committed. [At §201] As a result, the law of limitation governing the alleged torts was also English law. In reaching this decision, the Court relied on the following six factors

1. The defendants did not concede that the claims are actionable against them under Cyprus law; [At §186]
2. The defendants represent the state which made the law which may absolve it from liability; [At §187]
3. Even though the three torts were, on assumed facts, committed in Cyprus, the connection with London is very close. The Crown bore responsibility for justice in Cyprus and many of the key decisions and instructions emanated from London; [At §189]
4. All three pleaded torts engage the special responsibility of the state where violence is deliberately inflicted on citizens; [At §190]
5. The current independent state of Cyprus has no interest in the application of its law to the issues in this litigation. No question therefore arises as to respect for comity of nations; [At §193]
6. Modern and familiar English tort law is well equipped to address the difficult issues that arise in determining these claims. [At §195]

The Court rejected the defendants’ submissions that if Cypriot law affords the claimants no right of action, that is a satisfactory state of affairs not productive of any injustice. [At §164] To the contrary, in a powerful conclusion to the judgment, Kerr J held that:

“…it seems to me that, in this case at any rate, where a state stands to be held to account for acts of violence against its citizens, it should be held to account, in its own courts, by its own law and should not escape liability by reference to a colonial law it has itself made.” [At §197]

Finally, the Court held that if it was wrong about applying the exception, the law of Cyprus would apply for determining whether the torts were committed. In that event, the limitation law of both England and Cyprus would apply, pursuant to s.1(1)(a) and 1(2) of the Foreign Limitation Periods Act 1984 (the “1984 Act”). The question of whether the limitation law of Cyprus should be disapplied, on the basis of “undue hardship” under s.2(2) of the 1984 Act, would have to be determined at a future hearing.

Comment

The Law of Nations blog has previously considered the difficulty, as a matter of private international law, of applying foreign limitation periods under the 1984 Act (here). This case provides a vivid example of a prior hurdle that potential claimants must cross (at least in cases concerning facts occurring long ago), of establishing which substantive law applies in cases involving historic abuses abroad.

As noted above, the range of cases for which the application of the common law rule of double actionability and/or the flexible exception will be relevant is narrow, given that it continues to apply only to those cases for which the relevant cause of action arose prior to the coming into force of PILA 1995 or Rome II, and to defamation claims. It is notable that the two “modern” cases which applied the flexible exception to which Kerr J referred in his judgment dated from 1971 (Boys v Chaplin) and 1992 (Johnson v Coventry Churchill International Ltd. [1992] 3 All ER 14).

this case demonstrates that the rules are by no means obsolete

However, this case demonstrates that the rules are by no means obsolete. Given the spate of recent cases involving allegations of historic abuses, the courts have had to grapple with these complicated issues. An interesting take away from this case is that, while the Court emphasised that the application of the exception could not be intuitive, based on the “demands of justice”, the Court’s conclusion was based on the accountability of a State and a State’s responsibility for its citizens. This is reflective of the approach of English courts in a range of recent cases, for example Belhaj & Another v Straw & Ors [2017] AC 964, §§262 & 266 per Lord Sumption JSC. Those are principles that will be common across all cases of this nature.