In Rai v Ministry of Defence (HH Judge Mark Gargan sitting as a Deputy High Court Judge, judgment handed down on 9 May 2016), the Court had to determine whether the Rome II Regulation 864/2007 applied and to identify what was the proper law of the tort (Alberta law being the law of the place of the accident, or English law). The Claimant was a serving Ghurkha who, as part of Adventurous Training, was sent to Canada. In Canada he received training provided by a Canadian company (“Lazy H Trail Limited”) contracted to provide services, under a contract governed by Alberta law, for the benefit of the British Army. The circumstances of the accident were that the Claimant was kicked by a horse on the first day of training, as he attempted to clean the horse’s hoof, thereby suffering a head injury. The Claimant brought a claim for breach of a non-delegable duty of care in negligence against the Ministry of Defence.
A dispute arose as to which law applied, the Defendant contending that Alberta law applied (in which case the Defendant relied on a limitation defence, proceedings having been issued more than 2 years after the date of the accident), whereas the Claimant contended that English law was the proper law of the tort.
In support of its position that Alberta law applied, the Defendant argued that as a matter of material scope the Rome II Regulation did not apply because the cause of action concerned acta iure imperii and therefore fell outwith the scope of the Regulation, Article 1(1), in which case the Private International Law (Miscellaneous Provisions) Act 1995 continued to apply. In that regard, the Defendant contended under section 11 of that Act, that the law of the place of the accident under section 11 applied. In the alternative, the Defendant argued that if the Rome II Regulation did apply, then under Article 4(3), Alberta was the country most manifestly connected to the tort. The Claimant adopted the converse position: if the Rome II Regulation applied (which the Claimant contended was the proper instrument to determine the proper law), then Article 4(2) applied to indicate that English law, being the law of the parties, was the proper law; and if the 1995 Act applied, then English law applied by virtue of the displacement of the general rule under section 12 of that Act.
Identifying the proper conflict of laws regime
The first question for the Judge was to identify the proper instrument by which the conflict of laws issue was to be determined. This point concerned a preliminary issue of classification or characterisation, namely whether the Claimant’s claim against the Ministry of Defence fell to be considered to be a civil or commercial matter within the scope of the Rome II Regulation or a claim involving acta iure imperii (the exercise of sovereign State authority) in which case it fell outside the Rome II Regulation to be determined by the 1995 Act.
In order to consider whether the claim involved a civil and commercial matter, as opposed to matters falling within the category acta iure imperii, the parties agreed that the case law of the Court of Justice of the European Union in relation to the Brussels Regulation 44/2001 was relevant to determine the ambit of the Rome II Regulation. The principal authority was the case of Lechouritou  ECR I-1540, which concerned a claim before the Greek Courts for compensation arising out of a massacre committed by the Wehrmacht during the course of World War II.
The Claimant argued that the proper test to determine whether an act was part of acta iure imperii under European law involved firstly whether the act was carried out by a public authority, secondly whether the basis and nature of the action and the detailed rules for the exercise of the right of action involved the exercise of sovereign power, and thirdly whether the exercise of the power involved matters going beyond those existing in relationships between private individuals. Although the Defendant clearly satisfied the first criterion, the Claimant submitted that the second and third criteria were not satisfied. Although the acts of the armed forces clearly could in times of armed conflict comprise acta iure imperii, as occurred in the Lechouritou case, the provision of training services to a soldier, in circumstances similar to one involving employer’s liability, did not take the matter outside the scope of civil and commercial matters. Other cases relied upon which identified the dividing line between civil and commercial cases and cases involving acta iure imperii included the case of Grovit v De Nerderlandsche Bank NV  1 WLR 51 (which concerned a claim in defamation arising out of an alleged libel contained in a letter written by the Dutch Central Bank when exercising a regulatory function), and the case of Sonntag v Waidmann  ECR I-1963 (which concerned enforcement proceedings against a teacher who had been adjudged guilty in relation to the death of a child part of a school party on a trip to Italy, the teacher being a public official for the purposes of domestic law in Germany).
The Defendant argued that the Claimant’s accident occurred during the course of military training conducted for the purpose of military operations, which activities are the exclusive preserve of the State. In particular the purpose of the training was to increase the resilience of the soldiers with a view to those soldiers being exposed to the rigours of operations and rapid deployments, which training by its nature involves potential risk to life and limb. The Defendant therefore argued that it was necessary to look at the underlying purpose of the activities, and that since the underlying purpose was to promote military training, this was within the preserve of the State. Further, the Defendant argued that there was no equivalent to private training for military purposes since the preparation of an Army was quintessentially a State activity.
Philip Mead appeared for the Claimant, instructed by Thompsons (Newcastle). Louis Browne, Exchange Chambers, Liverpool appeared for the Defendant, instructed by BLM (Liverpool).
To read the full judgment, please click here.
armed forces, personal injury, liability
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