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Double actionability applies in Cyprus Emergency assault claims

09/10/18

The Court of Appeal (Longmore, Hamblen LJJ and Sir Stephen Richards) today allowed an appeal from the judgment of Kerr J on a preliminary issue in 34 linked claims alleging assaults committed by members of the security forces during the Cyprus Emergency between 1956 and 1958.

The preliminary issue was which law or laws applied to determine limitation. Kerr J held that, although the alleged torts were substantially committed in Cyprus, the exceptional features of the case engaged the exception to the double actionability rule in Boys v Chaplin [1971] AC 356, so that only English law applied. The Secretaries of State for Foreign and Commonwealth Affairs and Defence appealed. The claimants resisted the appeal and, by a respondent’s claimants, contended that in any event the substance of the torts alleged against the UK Government was committed in England (where it was said the policies implemented during the Emergency were devised).

In a judgment by Longmore LJ with which the other two members agreed, the Court of Appeal affirmed the judge’s conclusion that the substance of the torts was committed in Cyprus, where the alleged assaults were committed. Contrary to the judge’s view, there was no reason to apply the exception to the double actionability rule. It was important that the exception should not be too easily applied. The Defendants could not be criticised for failing to concede that the claims were actionable under Cyprus law, as they had not at the relevant time served a Defence. It was not appropriate to describe UK law as “superior” to Cyprus law, even at the relevant time. The fact that some of those alleged to be directing the management of the Emergency were in London did not supply the “close connection” necessary for engagement of the exception, because they were acting on behalf of the Crown in right of the government of the Colony of Cyprus. There was no authority for the proposition that intentional torts should be treated differently from others for the purpose of the application of the double actionability rule. Nor could it be said that Cyprus had no interest in the application of its law to this case. Finally, insofar as the judge held that English law was “well equipped” to deal with the issues, this was not a factor in favour of invoking the exception.

The Court of Appeal also rejected an argument by the claimants that the exception to the double actionability rule could be applied to the issue of limitation. The latter was governed exclusively by the Foreign Limitation Periods Act 1984, which was a comprehensive statutory code. Obiter comments to the contrary in Ennstone Building Products Ltd v Stranger Ltd [2002] 1 WLR 3059 should not be followed.

The Judgment is here.

Martin Chamberlain QC was leading counsel for the Secretaries of State for Foreign and Commonwealth and Defence. Malcolm Birdling appeared as junior counsel for the claimants.