Don’t forget “procuring”!

My last post discussed Leggatt J’s recent decision in Iraqi Civilians v Ministry of Defence [2015] EWHC 1254 (QB), in particular his approach to foreign (Iraqi) law.

But Leggatt J’s decision also included a brief discussion of English law. Why? Because the claimants initially pleaded their case on the basis of English law. They argued that it was up to the MoD to plead Iraqi law, if it wanted. Primarily, the claimants relied on an alleged common design between US and UK forces. But they included alternatives, alleging that the MoD could be liable on the basis of English law for “counselling, procuring, encouraging and/or facilitating” the alleged torts.

The case’s subsequent shift of focus to Iraqi law meant that Leggatt J dealt only briefly with the position in English law. But his summary includes an error. He held that “counselling, procuring, encouraging and/or facilitating” a tort is “not sufficient to give rise to liability in English law” (para. 8).

That misstates English law in an important respect. English cases of high authority have recognised that liability exists for procuring another person to commit a tort. As recently as the Supreme Court’s decision in Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10, which Leggatt J cited, Lord Toulson confirmed the position as follows:

A defendant may incur joint liability by procuring the commission of a tort by inducement, incitement or persuasion…. (para. 18, my emphasis)

In the Sea Shepherd case, the Supreme Court flagged liability for procuring a tort (Credit: Adrian Tritschler under Creative Commons)

In the same case, Lord Sumption (dissenting on the result, but not the law) also confirmed that English law recognises liability for procuring a tort. He distinguished procurement from mere assistance on the basis that the former “necessarily involves common intent if the tort is then committed.” (para. 41)

It might seem difficult to identify the boundary between procurement versus assistance. Professor Stevens’ textbook on “Torts and Rights” provides a helpful definition. He says (at page 254) that procurement means “to bring about”. This suggests a closer causal connection than mere assistance. Liability for procuring a tort can also be distinguished from liability on the basis of common design which, as discussed here, has a low conduct threshold and more attenuated causal connection to the primary wrongdoer.

There are important nuances to the bases on which English law might recognise civil liability for a tort committed by another person. Unfortunately Leggatt J rather lumped lots of different modes of liability together. He erred as a result.

This error had no impact on the outcome of this particular decision, which turned on Iraqi law rather than English law. But it is an error which, if repeated, could affect future cases.