Earlier this week, the U.K. High Court handed down a further judgment in the ongoing litigation brought on behalf of hundreds of Iraqi civilians against the British government—holding that the U.K. could be held liable for transferring detainees to U.S. forces under certain circumstances.

In Iraqi Civilians v Ministry of Defence, the Court was dealing with claims relating to those individuals who were detained in Iraq by British troops and subsequently handed over to U.S. custody, where they allegedly suffered torture or serious ill-treatment. The period of detention in each of the three test cases varied, ranging between July 2003-August 2009. The claims are grounded in (1) the Human Rights Act 1998 (which incorporates the European Convention on Human Rights into domestic law) and (2) the law of tort (which remains an independent ground for challenge notwithstanding the HRA). However, under the relevant provisions of the Private International Law (Miscellaneous Provisions) Act 1995, the law of Iraq is the applicable law for the tort claims.

This week’s ruling determined a preliminary issue in relation to the tort claims, namely: whether, on the alleged facts of the test cases, Iraqi law provides for joint liability and/or vicarious liability of the U.K. government for acts alleged to have been committed by U.S. troops. Mr. Justice Leggatt (who has been tasked with this sizeable, complex litigation) relied on expert witnesses adduced by each side, taking into account the ordinary principles to be applied when deciding a question of foreign law. He concluded:

“52. …if the claimants are able to prove that after being handed over by UK forces to the armed forces of the United States they were subjected to serious and deliberate ill-treatment by US soldiers, then, to establish that the [Ministry of Defence] is jointly liable for their injuries under Iraqi law, it will not be sufficient to show that the defendant owed a duty to take care not to expose them to a risk of ill-treatment at the hands of US forces and was negligent in exposing them to that risk. In order to establish joint liability for their injuries, it will be necessary for a claimant to prove that the British soldiers or officials responsible for the decision to transfer him to the custody of the US forces had one of the three mental states … Thus, it will be necessary for the claimant to prove: (a) an intention to facilitate the claimant’s ill-treatment; or (b) actual foresight that the claimant might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (c) contemplation and acceptance of the risk that transferring the claimant would facilitate his ill-treatment.”

The test for joint liability under Iraqi law—as declared by Leggatt—appears fairly wide-ended in the circumstances in which liability can be imposed. However, it is not entirely clear how this conclusion is reached.

The judgment, building up to the conclusion, gives the impression that Leggatt is supporting the arguments of the government’s expert. The judgment notes how the expert for the claimants backtracked from the joint experts’ report only the day before the trial and adduced further commentary on the relevant legal provisions which put forward a significantly different interpretation. Leggatt, upon reviewing the evidence, rejected these new arguments and placed great emphasis instead on the legal scholars referred to by the government’s expert.

So it is then quite surprising that Leggatt, when he comes to the conclusion, simply adopts the test put forward by the claimants’ expert in his original evidence, which details what state of mind would be required on the part of the defendant in a joint liability case. While there is agreement on principle between the experts at the initial stage, the test as set out by the claimants’ expert is in no way supported by the evidence of the government’s expert. Much of Leggatt’s judgment focuses on the expert evidence on behalf of the government (paragraphs 23-34), whereas the claimants’ expert’s initial position (which contained the test) is set out merely in one paragraph. Moreover, while the government’s position relies heavily on the legal commentaries that are praised as authoritative later in the ruling, the claimant’s position at this point is seemingly not supported by any legal commentary. Yet, it is the test put forward by the claimants’ expert that is finally adopted, but without a convincing explanation for how this leap in judgment has been made.

Looking at the test itself, it strikes me that even though Leggatt is keen to distance the test from the ordinary, and highly expansive principles of English law (which takes into account any duty owed by the defendant to the claimant), his final formulation (based on the claimants’ position) turns right around and incorporates a highly similar, if not almost identical, standard to the English rule. The second limb of the test—“actual foresight that the claimant might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant”—is not only extremely broad but is also likely to mirror, in practice, English negligence standards.

The wide scope for joint liability is likely to trouble the U.K. government, which has denied any liability for any unlawful acts committed by U.S. forces. Moreover, the rather open-ended nature of the test will no doubt cause concern among U.S. officials, whose actions could end up being scrutinized (even if indirectly) in British courts.