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ACTS OF TORTURE AS AN INSTRUMENT OF GOVERNMENT POLICY IN THE COLONY OF CYPRUS IN THE 1950S AND CHOICE OF LAW

Published online by Cambridge University Press:  29 June 2018

Uglješa Grušić
Uglješa Grušić*
Affiliation:
Lecturer, Faculty of Laws, University College London, u.grusic@ucl.ac.uk.
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Abstract

This article notes the judgment in Sophocleous v Secretary of State for the Foreign and Commonwealth Office, in which the High Court dealt with the law applicable to civil claims arising out of alleged acts of torture committed by British military and security services in the colony of Cyprus in the 1950s. The judgment is important because it sheds light on some underexplored corners of choice of law (law governing the external aspects of vicarious liability and of accessory liability in tort) and reaches the conclusion, which runs against the grain of other recent judgments given in civil claims brought against the Crown for the external exercise of governmental authority, that English law governs.

Keywords

private international lawaccessory liabilitychoice of lawconflict of lawsCrownCyprustortvicarious liability
Type
Shorter Articles and Notes
Information
International & Comparative Law Quarterly , Volume 67 , Issue 4 , October 2018 , pp. 1005 - 1020
Copyright
Copyright © British Institute of International and Comparative Law 2018 

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Footnotes

Disclaimer: The author acted as an expert witness on foreign law for the claimants in Kontić v Ministry of Defence [2016] EWHC 2034 (QB). The author is grateful to Professor Paul Davies and the anonymous referee for their useful comments.

References

1 [2018] EWHC 19 (QB).

2 [1970] AC 179 (HL).

3 [2018] EWHC 19 (QB) [20].

4 1995 Act, section 14(1).

5 Reg (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L 199/40, arts 1(1), 31, 32 and Recital 9; Case C-292/05 Lechouritou v Germany [2007] ECR I-1519 (claims arising out of acta iure imperii involve matters that are excluded from the subject-matter scope of the Regulation).

6 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (CA) 443. See also Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 (PC) 468.

7 Szalatnay-Stacho v Fink [1947] KB 1 (CA).

8 Phillips v Eyre (1870) LR 6 QB 1; Boys v Chaplin [1971] AC 356 (HL).

9 Boys v Chaplin [1971] AC 356 (HL).

10 Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 (PC).

11 1995 Act, section 13; Rome II, art 1(2)(g).

12 CPR Practice Direction 6B, rule 3.1(9)(b); Four Seasons Holdings Inc v Brownlie [2017] UKSC 80, [2018] 1 WLR 192 [30], [40].

13 Berezovsky v Forbes Inc (No 1) [2000] 1 WLR 1004 (HL) 1014.

14 1995 Act, section 11(2).

15 It should be mentioned here that section 2(1) of the Crown Proceedings Act 1947 (‘Liability of the Crown in tort’) provides that ‘Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:— (a) in respect of torts committed by its servants or agents.’

16 [2018] EWHC 19 (QB) [13].

17 ibid.

18 ibid [14].

19 ibid [55]. A number of facts were pleaded to support this argument: ibid [13]–[17] and [56]–[57].

20 See the arguments of the claimants: ibid [61].

21 See the arguments of the defendants: ibid [58].

22 Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 600; Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 11, [2016] AC 677.

23 [2018] EWHC 19 (QB) [66].

24 Atiyah, PS, Vicarious Liability in the Law of Torts (Butterworths 1967)Google Scholar; Giliker, P, Vicarious Liability in Torts: A Comparative Perspective (Cambridge University Press 2010)CrossRefGoogle Scholar.

25 1995 Act, section 11. The displacement rule is set out in section 12.

26 Law Commission, Private International Law: Choice of Law in Tort and Delict (Law Com No 193, 1990).

27 ibid para 3.36.

28 ibid.

29 See Smith v Skanska Construction Services Ltd [2008] EWHC 1776 (QB) [148].

30 Rome II, art 4(1). The escape clause is set out in art 4(3).

31 The term ‘vicarious liability’ derives from the common law; civilian systems generally refer to ‘liability for the acts of others’: Giliker (n 24) 5. The Rome II Regulation adopts the terminology of civilian systems. Art 15(a) of Rome II states that the applicable law governs, among other things, ‘the determination of persons who may be held liable for acts performed by them’.

32 [2007] UKHL 58, [2008] 1 AC 332.

33 [2015] EWCA Civ 843, [2016] 2 WLR 247, reversing in part [2014] EWHC 1369 (QB).

34 [2016] EWHC 2034 (QB).

35 International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries Yearbook of the ILC (2001) vol 2, Pt 2, 26.

36 International Law Commission, Draft Articles on the Responsibility of International Organizations, Yearbook of the ILC (2011) vol 2, Pt 2, 37.

37 (2007) 45 EHRR SE10.

38 (2011) 53 EHRR 23.

39 See Kämmerer, JA, ‘Colonialism’ in Wolfrum, R (gen ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2008) para 9Google Scholar (‘Colonialism is a matter of concern to public international law, since the latter not only served as an instrument for establishing colonial regimes but also for justifying the mode of their acquisition and colonial policy.’); para 15 (‘Each “conqueror” elaborated its specific colonial law.’); para 23 (‘historical incidents must not be judged on the basis of currently applicable rules of public international law, but only on the law in force at the respective time’); and para 24 (‘In sum, present public international law has not been able to remedy the shortcomings of the rules that, more than a century ago, applied to colonies and colonial peoples.’).

40 See (n 19).

41 A number of facts were pleaded to support these claims: [2018] EWHC 19 (QB) [71]–[72], [74]–[75].

42 Dietrich, J, ‘Accessorial Liability in the Law of Torts’ (2011) 31 LS 231Google Scholar; Davies, PS, Accessory Liability (Hart 2015)Google Scholar; Dietrich, J and Ridge, P, Accessories in Private Law (Cambridge University Press 2015)CrossRefGoogle Scholar; Davies, PS, ‘Accessory Liability in Tort’ (2016) 132 LQR 15Google Scholar; McMeel, G, ‘Joint and Accessory Liability for Wrongs in Private Law’ [2016] LMCLQ 29Google Scholar.

43 Dietrich (n 42) 232 and 239; Dietrich and Ridge (n 42) 94–5.

44 Heinze, C, ‘Multiple Defendants and Joint Liability’ in Basedow, J (gen ed), Encyclopedia of Private International Law (Edward Elgar 2017) vol II, 1277Google Scholar.

45 See Dornis, TW, ‘Contribution and Indemnification among Joint Tortfeasors in Multi-State Conflict Cases: A Study of Doctrine and the Current Law in the US and Under the Rome II Regulation’ (2008) JPIL 237Google Scholar; Takahashi, K, Claims for Contribution and Reimbursement in an International Context (Oxford University Press 2000)Google Scholar.

46 [2015] UKSC 10, [2015] AC 1229.

47 ibid [21] (per Lord Toulson). Similarly, ibid [37] (per Lord Sumption).

48 That this should be the law in Scotland, see obiter dicta in Frank Houlgate Investment Co Ltd v Biggart Baillie [2014] CSIH 79, 2015 SC 187 [44] (per Lord Malcolm), [89] (per Lord McEwan). This is the law in the United States: Restatement (Second) of the Law of Torts, para 876; Halberstam v Welch 705 F 2d 472, 478 (1983, Col). This approach has been advocated in England by the leading commentators: see the works cited in (n 42) above.

49 See Wade, JW, ‘Joint Tortfeasors and the Conflict of Laws’ (1953) 6 VandLRev 464Google Scholar.

50 [2015] UKSC 10, [2015] AC 1229 [38].

51 [2018] EWHC 19 (QB) [93].

52 ibid [94].

53 ibid [91].

54 Davies, Accessory Liability (n 42) 58–60 and 180–1; Dietrich and Ridge (n 42) 27 and 105–6.

55 [2018] EWHC 19 (QB) [91]–[92]. See also ibid [105].

56 ibid [103].

57 ibid [104].

58 ibid [93].

59 The judge referred to this ‘tort’ as ‘the common design tort’ and ‘common design joint liability tort’ at ibid [94] and [119] respectively.

60 ibid [103]–[107].

61 ibid [104]. Also [105].

62 ibid [108].

63 ibid [109].

64 Davies, Accessory Liability (n 42) 7–8, 54–5, 59–60 and 178–82; Dietrich and Ridge (n 42) 11, 96–8.

65 [2018] EWHC 19 (QB) [103].

66 Rome II, art 19.

67 ibid art 20.

68 Art 15 of Rome II only states that the law applicable to non-contractual obligations under this Regulation governs, among other things, the basis and extent of liability and division of liability.

69 For cases which show that different laws may govern the liability of the accessory and the liability of the primary wrongdoer, see Fiona Trust & Holding Corp v Privalov [2010] EWHC 3199 (Comm) [153] (breach of fiduciary duty); Protea Leasing Ltd v Royal Air Cambodge Co Ltd [2002] EWHC 2731 (Comm) [75]–[80] (inducing breach of contract); Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (CA) (conspiracy; inducing breach of contract; procuring a breach of trust).

70 For the causes of action in negligence, see [2018] EWHC 19 (QB) [111]–[120].

71 Boys v Chaplin [1971] AC 356 (HL); Church of Scientology of California v Commissioner of Metropolitan Police (1976) 120 Sol J 690; Johnson v Coventry Churchill International Ltd [1992] 3 All ER 14; Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 (PC); Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 (HL).

72 [2018] EWHC 19 (QB) [96].

73 ibid [97]. See also [165], [185] and [196].

74 ibid [98].

75 ibid [187]–[188] and [197].

76 ibid [189].

77 ibid [190].

78 ibid [191]–[192].

79 ibid [193]–[194].

80 ibid [195].

81 See nn 4 and 5 above.

82 1995 Act, section 12(1).

83 R (Al-Jedda) v Secretary of State for Defence (No 1) [2006] EWCA Civ 327, [2007] QB 621 [100]–[107]; affd [2007] UKHL 58, [2008] 1 AC 332 [40]–[43] and [153]–[154]; Belhaj v Straw [2013] EWHC 4111 (QB) [119]–[144]; affd [2014] EWCA Civ 1394, [2015] 2 WLR 1105 [134]–[160].

84 R (Al-Jedda) v Secretary of State for Defence (No 1) [2007] UKHL 58, [2008] 1 AC 332; R (Al-Jedda) v Secretary of State for Defence (No 2) [2010] EWCA Civ 758, [2011] QB 773.

85 Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1, sub nom Mohammed v Ministry of Defence [2017] 2 WLR 287; see also [2017] UKSC 1, [2017] AC 964.

86 [2016] EWHC 2034 (QB).

87 See Ruskola, T, ‘Colonialism without Colonies: On the Extraterritorial Jurisprudence of the US Court for China’ (2008) 71 LCP 237Google Scholar: ‘China as a whole was never colonized by the United States or any other western power, and the West's extraterritorial legal presence in China was ultimately authorized in a series of bilateral “Treaties of Trade, Peace and Amity” to which China had given its formal consent – even if only at gunpoint.’ See also ibid 236 (‘In the West's legal encounter with the states of Asia, for example, the practice of extraterritorial jurisdiction emerged as a key technology of a kind of nonterritorial imperialism – in effect, a colonialism without colonies as such.’); and ibid 238–9 (‘given its similarities to and differences from classic territorial imperialism, Western extraterritoriality in China constituted a kind of colonialism without colonies that was in some ways remarkably modern – more akin to neocolonialism than to traditional colonialism’).

88 [2016] EWHC 2034 (QB).

89 Joint Declaration, art 1. Art 2.1 of Reg 2000/47 is essentially identical.

90 [2016] EWHC 2034 (QB) [229].

91 ibid [230] (emphasis added).

92 ibid [257].

93 See R (Al-Jedda) v Secretary of State for Defence (No 2) [2010] EWCA Civ 758, [2011] QB 773, where the immunity of the British forces present and operating in Iraq was afforded by the Coalition Provisional Authority (CPA) Order No 17.

94 [2016] EWHC 2034 (QB) [193].

95 [1971] AC 356 (HL).

96 [1992] 3 All ER 14.

97 See R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, [2007] QB 621 [106], referring to Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21, [2002] 1 WLR 2304 [12]: ‘the general rule is not to be dislodged easily’ and Harding v Wealands [2004] EWCA Civ 1735, [2005] 1 WLR 1539 (in both cases sections 11 and 12 of the 1995 Act were strictly applied). The Court of Appeal decision on choice of law in Al-Jedda was affirmed by the House of Lords in [2007] UKHL 58, [2008] 1 AC 332. See also Belhaj v Straw [2013] EWHC 4111 (QB) [128], referring to [12] of Roerig v Valiant Trawlers Ltd. The High Court decision on choice of law in Belhaj was affirmed by the Court of Appeal in [2014] EWCA Civ 1394, [2015] 2 WLR 1105.

98 [2018] EWHC 19 (QB) [96].