Quantifying damages for human rights abuses by the MoD in Iraq (1) Alseran (2) Al-Waheed (3) MRE (4) KSU v Ministry of Defence [2017] EWHC 3289 (QB): aka Iraqi Civilian Litigation

This interesting blog post by Helen Waller a pupil barrister at 12 King’s Bench Walk considers in depth the legal analysis in the Iraqi Civilian Litigation.

OVERVIEW

There is a large group of claims known as the “Iraqi civilian litigation” arising out of the UK’s military intervention in Iraq between 2003 and 2009 and currently proceeding in the English courts. The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated (or in a few cases killed) by British armed forces and who are claiming compensation from the Ministry of Defence (“MoD”).

The instant cases were the first full trials of claims for civil compensation in which the claimants themselves and other witnesses testified in an English courtroom. The four claims were tried as lead cases for over 600 remaining claims in the litigation. As such, the principles laid down in those claims by Leggatt J are of considerable importance.

Harry Steinberg QC and Nina Ross of 12 King’s Bench Walk represented two of the four claimants: MRE and KSU. These Claimants alleged that, during the invasion of Iraq in 2003, they were captured on a merchant ship by British soldiers; abused sexually and physically on a series of vessels; delivered to a port where they were assaulted and hooded; and then detained unlawfully in the desert in inhumane conditions. MRE and KSU were granted anonymity on the grounds that the sexual mistreatment they alleged carries heavy stigma in Iraq.

The claims were advanced on two legal bases. The first was in the law of tort, as to which the applicable law was Iraqi law. The second was the Human Rights Act 1998 (“HRA 1998”), which renders a breach of the European Convention on Human Rights (“ECHR”) by a UK public authority unlawful as a matter of UK domestic law and gives the victim a potential claim for damages.

The claims in tort failed on the basis that they were time-barred. However, the claims under the HRA 1998 succeeded and MRE and KSU were awarded damages of £28,040 and £10,600 respectively.

THE CLAIMS IN TORT

The events with which these proceedings were concerned took place before 11 January 2009 and hence the applicable rules of private international law were those found in Part III of the Private International Law (Miscellaneous Provisions) Act 1995.

Section 11(1) of that Act provides that the applicable law for determining substantive issues is the law of the country in which the events constituting the tort or delict in question occur. It was common ground that the applicable law in this case was therefore Iraqi law.

Limitation

Section 1(1) of the Foreign Limitation Periods Act 1984 (“the 1984 Act”) enacts a general rule that the law governing the substantive claim shall also apply in respect of limitation.

In Iraqi law, Article 232 of the Iraqi Civil Code governs limitation periods for tort claims, providing for a period of three years from the day on which the injured person became aware of the injury and of the person who caused it, with a long-stop of 15 years from the day of the occurrence of the unlawful act. Leggatt J held that this period began when each claimant was detained / suffered the mistreatment of which he complained [732].

Under Iraqi law, the limitation period can be suspended or interrupted, such that time stops running (see Article 435 of the Civil Code) if, for example, some impediment exists rendering it impossible for the claimant to bring his claim. The court found that the limitation period was suspended for MRE and KSU during their detention and following their release until it became possible for an ordinary Iraqi citizen to bring a claim for damages against the MoD in the English courts. This became possible from January 2006 when Leigh Day began to accept instructions from Iraqi claimants referred to them. Accordingly, MRE’s and KSU’s claims were out of time in January 2009.

However, section 2(1) of the 1984 Act provides that section 1 does not apply to the extent that its application would conflict with public policy in any case. Section 2(2) then states that the application of section 1 is deemed to conflict with public policy where it would cause “undue hardship” to a party to the proceedings. The claimants argued that the application of Iraqi limitation law in their cases would cause them undue hardship.

Leggatt J rejected this argument. The claimants had an alternative route to the recovery of damages under the HRA 1998. Although damages awarded under the HRA 1998 tended to be lower than damages awarded in corresponding claims in tort – and hence applying the Iraqi rules of limitation had the result of causing some hardship to the claimants – when account was taken of all the relevant circumstances including the length of the delay in bringing these claims, it could not be said that this hardship was disproportionate or excessive.

Accordingly, MRE and KSU’s claims in tort were time-barred.

(N.B. it was assumed by both parties that, if it were held that the limitation period prescribed by Iraqi law did not apply because its application would conflict with public policy, the consequence would be that the limitation period prescribed by English law would apply instead. Leggatt J expressed the view obiter that this was incorrect.)

Damages

Despite his findings on limitation, Leggatt J identified the principles and guidelines that would have governed the assessment of damages in tort had the claims succeeded.

The recoverable heads of damage fell to be identified in accordance with the applicable law (i.e. Iraqi law), but the quantification of the damages under each recoverable head of loss was a matter of procedure and therefore of the law of the forum (i.e English law) following Harding v Wealands.

It was agreed that loss of liberty, injury to feelings, pain and suffering and financial loss were kinds of injury for which the perpetrator of an assault or wrongful imprisonment was in principle liable to compensate the victim under Iraqi law. It was further agreed that exemplary damages were not available under Iraqi law.

As to the quantification of the relevant heads of loss in English law, the Court reviewed the authorities on awards for loss of liberty and injury to feelings (see [888] to [893]). It also considered the MoD’s argument that, in order to avoid over-compensation, any damages award for non-pecuniary loss should be reduced to reflect the lower cost of living in Iraq. Leggatt J regarded this as a “legitimate concern”, but held at [896 to 897] that:

…once it is accepted that the quantum of damages is to be decided in accordance with English law, there is no scope for reducing the amount of any award by reference to the claimant’s economic or social circumstances. When awarding damages as compensation for pain and suffering, mental distress or other harm of a non-financial nature, English courts do not have regard to whether the claimant is rich or poor, nor to the standard or cost of living in the place where the claimant habitually resides. Damages are not reduced if the claimant lives in a deprived region of the country, nor increased if the claimant lives in London on the ground that living costs there are higher. Nor if, for example, a foreigner visiting the UK is injured in a road traffic accident and is awarded damages for pain and suffering, are the damages scaled down because the claimant comes from a poor country or bumped up because the claimant comes from a country with a significantly higher gross national income per capita than the UK (such a Norway or Monaco). The claimant’s economic and social situation is irrelevant see e.g. Fletcher v Autocar and Transporters Ltd [1968] 2 QB 322 , 364; Heil v Rankin [2001] QB 272 , para 33.

Counsel for the MOD were unable to point to any case in which an English court has altered the amount of damages awarded for non-financial injury on account of the claimant’s country of origin or economic or social circumstances.

THE HUMAN RIGHTS ACT CLAIMS

MRE and KSU contended that the treatment they suffered at the hands of British Forces constituted violations of their rights under Article 3 ECHR (the prohibition on torture and inhuman or degrading treatment or punishment) and Article 5 ECHR (the guarantee of the right to liberty and security of person).

The main issues in dispute were:

  1. Whether the claims brought under the HRA 1998 should be allowed to proceed out of time;
  2. Whether MRE and KSU were mistreated by British Forces as alleged and, if so, whether that mistreatment violated Articles 3 and 5; and
  3. Whether the Court should award damages for just satisfaction and if so in what amount.

Issue 1: limitation

Pursuant to section 7(5) of the HRA 1998, proceedings must be brought before the end of: (a) one year, beginning with the date when the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances. In considering whether to allow a longer period, the Court thought it relevant to have regard to the factors that would be considered in the equivalent provision in English law, section 33 Limitation Act 1980, without treating them as necessarily conclusive.

The delay in bringing proceedings in this case was substantial (five and a half years). However, the delay was not the result of any fault or lack of diligence on the part of these claimants. It was in practice impossible for an ordinary Iraqi citizen to bring proceedings against the MoD in this jurisdiction claiming damages for personal injury unless they could find an English law firm willing to represent them under a conditional fee agreement. The only law firm shown to have been willing to act for Iraqi claimants on this basis at any material time was Leigh Day. The only way in which potential claimants could find out about and make contact with Leigh Day was with the assistance of a local agent in Basra called Abu Jamal. Each of the claimants had acted promptly and reasonably as soon as he had come across Abu Jamal and discovered the possibility of bringing a personal injury claim in the UK.

Further, the delay had not caused the MoD significant prejudice / significantly reduced the cogency of the evidence.

Moreover, to refuse to extend time would be to prevent the claimants from obtaining any redress for proven violations of their fundamental rights (at [869]).

The court concluded, therefore, that it was equitable to permit the claims under the HRA 1998 to be brought, “notwithstanding the substantial periods which elapsed from when the acts complained of occurred before the claims were issued” [870].

Issue 2: violations of Articles 3 and 5

MRE and KSU claimed that they were captured by British soldiers during the invasion of Iraq in 2003; abused sexually and physically on a series of vessels; delivered to a port where they were assaulted and hooded; and then detained unlawfully in the desert in inhumane conditions. One of the key issues was whether MRE and KSU had been captured by British (as opposed to other Coalition) Forces.

The Court found that:

  • MRE and KSU had been mistreated as alleged.
  • However, they were unable to prove that the mistreatment at sea was carried out by British soldiers. There were features of the evidence that suggested that they had been captured instead by US Forces. A trial judge was not bound in every case to make a finding one way or another on a disputed question of fact (Rhesa Shipping Co SA v Edmunds (The “Popi M”) [1985] 1 WLR 948 at 951). This was one of those unusual cases in which deciding a disputed question of fact on the burden of proof was only the just course to take [457].
  • It followed that the MoD was only potentially liable for the mistreatment at the port and thereafter, which, on a balance of probabilities, had been carried out by British soldiers.
  • The hooding and some of the assaults suffered by MRE and KSU at the port constituted inhuman and degrading treatment contrary to Article 3.
  • Although the conditions where MRE and KSU were subsequently detained were arduous, they did not amount to inhuman or degrading treatment violating Article 3.
  • The capture and initial detention of MRE and KSU was in accordance with international humanitarian law. MRE and KSU were, however, entitled under international humanitarian law and Article 5 ECHR to have their cases assessed and a decision whether to intern or release them made promptly following their arrival at in the detention camp. Making all due allowance for the wartime conditions, such an assessment should have taken place within, at most, ten days of their internment. This meant that for six of the days that MRE and KSU were detained, their detention was unlawful and amounted to a violation of Article 5.

Issue 3: damages

Relevant principles

Pursuant to s.8(3) of the HRA 1998, no award of damages is to be made unless such award is “necessary to afford just satisfaction to the person in whose favour it is made”.

In considering awards for damages under s.8(3), Leggatt J held that the level of damages that would be awarded in domestic tort law [930-932] and in the European Court of Human Rights was relevant.

Leggatt J identified eight key principles emerging from the European Court cases:

First, the award of just satisfaction is not an automatic consequence of a finding that there has been a violation of a Convention right. The Court may decide that, for some heads of alleged prejudice, the finding of a violation constitutes in itself sufficient just satisfaction without there being any call to afford financial compensation or that there are reasons of equity to award less than the value of the actual damage sustained, or even not to make any award at all: see Practice Direction, paras 1-2.

Second, before the Court will award financial compensation, a clear causal link must be established between the damage claimed and a violation found by the Court: see Practice Direction, paras 7-8. As stated in Kingsley v United Kingdom (2002) EHRR 10 at para 40:  

“The Court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention’s requirements … The Court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the state cannot be required to pay damages in respect of losses for which it is not responsible.”

Third, where it is shown that the violation has caused “pecuniary damage” (i.e. financial loss) to the applicant, the Court will normally award the full amount of the loss as just satisfaction: see Practice Direction, paras 10-12. As stated in para 10 of the Practice Direction:

“The principle with regard to pecuniary damage is that the applicant should be placed, as far as possible, in a position in which he or she would have been had the violation found not taken place, in other words, restitutio in integrum.”

Fourth, it is also the practice of the Court to award financial compensation for “non- pecuniary damage”, such as mental or physical suffering, where the existence of such damage is established: see Practice Direction, paras 13-14. If the Court considers that a monetary award is necessary, the Practice Direction states that it will make an assessment “on an equitable basis, having regard to the standards which emerge from its case law”: see para 14. The case law of the European Court shows that awards for mental suffering are by no means confined to cases where there is medical evidence that the applicant has suffered psychological harm and that compensation may be awarded for injury to feelings variously described as distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life or powerlessness. The case law also shows that the Court will often be ready to infer from the nature of the violation that such injury to feelings has been suffered. Applicants who wish to be compensated for non-pecuniary damage are invited by the Court to specify a sum which in their view would be equitable: see Practice Direction, para 15.

Fifth, the purpose of an award under article 41 is to compensate the applicant and not to punish the state responsible for the violation. Hence it is not the practice of the Court to award punitive or exemplary damages: see Practice Direction, para 9.

Sixth, in deciding what, if any, award is necessary to afford just satisfaction, the Court does not consider only the loss or damage actually sustained by the applicant but takes into account the “overall context” in which the breach of a Convention right occurred in deciding what is just and equitable in all the circumstances of the case. This may require account to be taken of moral injury. As stated by the Grand Chamber in Varnava v Turkey [2009] ECHR 1313 at para 224, in some situations “the impact of the violation may be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the applicant as to require something further.” The Court further explained:

“Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court’s role to function akin to a domestic tort mechanism in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.”

See also Al-Jedda v United Kingdom (2011) 53 EHRR 23 , para 114.

Seventh, as part of the overall context, the Court may take account of the state’s conduct. Thus, in Anufrijeva v Southwark London BC [2003] EWCA Civ 1406, [2004] QB 1124 , para 68, the Court of Appeal noted that, as well as the seriousness of the violation, the manner in which the violation took place may be taken into account. This is similar to the English law concept of aggravated damages discussed earlier.

Eighth, the Court also takes account of the applicant’s conduct and may find reasons in equity to award less that the full value of the actual damage sustained or even not to make any award at all. This may be the case if, for example, the situation complained of or the amount of damage is due to the applicant’s own fault: see Practice Direction, para 2. A striking example is the case of McCann v United Kingdom (1995) 21 EHRR 97 , in which the European Court found that the killing of IRA gunmen in Gibraltar by British soldiers involved a breach of article 2 but declined to make any award under article 41 “having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar” (see para 219).

Leggatt J concluded at [923] that it would be wrong to attempt to deduce an appropriate sum to award as just satisfaction from decisions of the European Court using a “mathematical and mechanical approach”. Rather, awards made by the European Court should be regarded simply as illustrations of the eight principles identified above and as a cross-check to ensure that the amount of any damages awarded would not be likely to be perceived by the European Court as inadequate or excessive.

Application to the present cases

Leggatt J held that to decline to award damages in these cases would be to deny the claimants an effective remedy.

As to the size of the award of damages in each case, the best approach was:

  • first to assess the amount of compensation that would be awarded in accordance with the principles of English law applicable to claims in tort;
  • second to consider whether to depart from this sum having regard to wider considerations of what is just and equitable in all the circumstances of the case, including taking into account the fact that the country where the claimants reside and suffered harm has a lower cost and standard of living than the UK; and,
  • third to ask whether there is any reason to think that the sum of money arrived at by this process is significantly more or less generous than the award a claimant might expect from the European Court.

In relation to the second point, Leggatt J considered that it would be equitable to award a figure for damages in each case that was “around half the amount that would be recoverable on a claim in tort to which English law applied” [947]. The Court’s rationale for such discount was that this would:

…strike a balance between two competing considerations. On the one hand, I consider it appropriate to take account of the greater purchasing power of money in Iraq than in the UK and to award a lower sum on that account as compensation for non-financial damage than would be awarded if English domestic scales of damages were applied. On the other hand, I am concerned that the award should not be reduced to a level which might be thought to imply that violating the rights of an Iraqi citizen is less serious than violating the rights of a British citizen, or that the suffering of those who live in poorer countries matters less than the suffering of people who live in richer countries such as the UK [947].

Applying this 50% discount to the awards for non-pecuniary loss, the Court awarded MRE and KSU £600 each for six days’ unlawful detention. For injury and loss arising out of being hooded and/or assaulted MRE was awarded £27,440 and KSU was awarded £10,000.

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