TLQ/04/0786
Neutral Citation Number: [2005] EWHC 737 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Date: Monday, 14 March 2005

BEFORE:

MR JUSTICE TREACY

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ABDULLAH AND OTHERS
CLAIMANT

-v-

YUSUF (ABDULLAH)
DEFENDANT

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MR RONAN TOAL appeared on behalf of the CLAIMANT

There was no representation on behalf of the DEFENDANT

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JUDGMENT

MR JUSTICE TREACY:
1.	This is a claim for damages brought against the defendant, Abdullahi Yusuf, by the first claimant, Zahra Abdullah, on behalf of herself and her four children.  The claim for damages against the defendant arises from the battery and death of Ahmed Mahmood.  Mr. Mahmood was killed on 17 August 2002 in a village called Kala-Beyr, a village in north east Somalia.  The claimant is the widow of Ahmed Mahmood.  She, as I have said, is the mother and litigation friend of the other four claimants.  

2.	The deceased was an accountant.  He joined his wife in the United Kingdom in 1990 shortly after she had been given refugee status here.  He himself was subsequently given refugee status in this country and he became a naturalized British citizen on 20 February 1998.  

3.	The defendant, Abdullahi Yusuf, was a colonel in the army of the Somalia Republic and he was and is a person prominent in that country’s politics.  He took part in the overthrow of the Somali Government in January 1991.   In 1998 the defendant was elected president for three years of the self declared, but not internationally recognised, Somali State of Puntland.  Since June 2001 it appears that the defendant has remained in power, assisted by an armed militia.  

4.	The incident with which this claim is concerned took place as stated on 17 August 2002.  The deceased, Ahmed Mahmood, was driving his Land Cruiser vehicle to the village of Kala-Beyr in order to visit relatives.  There were two passengers in the vehicle with him.  He was passed by the defendant who was part of an armed column travelling in the opposite direction.  It is said there were a large number of armed gunmen in that column; one estimate was up to 400.  

5.	After the column had passed the deceased it stopped and two vehicles from the convoy with heavy machine guns chased after the deceased and chased him to the nearby village of Kala-Beyr.  They found the deceased outside his aunt’s house.  There it is alleged that men from the convoy surrounded the deceased’s vehicle and shot him dead in cold blood without harming the other two passengers in the deceased’s vehicle.  

6.	The deceased had lived in Somalia for the greater part of his life and had been resident in Puntland from February 2000 until his death on 17 August 2002.  He had been involved in the politics of Puntland and had been in a position of power in his local area.  It appears that he was not of the same political persuasion as the defendant.  

7.	There is before the court material from the Home Office, and in particular country reports produced by the Home Office.  Those reports contain evidence which show that the defendant, Abdullahi Yusuf, was the head of an armed militia involved in a civil war, that he retained the presidency by force, and that of the political and constitutional situation in Puntland was one of crisis and violence in consequence of the defendant’s actions.  

8.	There is evidence which shows that the defendant has met challenges to his claim to the presidency of Puntland with violence and lethal force, and there is evidence that his supporters have carried out retaliation against political opponents.  It appears that the defendant regarded the deceased as somebody who was an insurrectionist against his regime and his power base in Puntland.  

9.	The evidence does not show that the defendant was personally responsible for the killing of the deceased, but it appears that the killing was carried out by those acting under his authority and under his command.  

10.	The defendant took an objection to the jurisdiction of an English court to adjudicate upon the claim made by the widow and the children of the deceased.  There was a full hearing before the Master, and on 8 March 2004 the Master determined, for reasons which he explained, that this court had jurisdiction.  

11.	On 8 February 2005 the Master ordered that unless the defendant did by 4.30 p.m. on 25 February 2005 serve upon the claimant’s solicitors a list of documents, witness statements of fact, any notice to adduce hearsay evidence and a schedule of loss and damage as ordered by the court on 6 July 2004, then, if that order were not complied with by 4.30 p.m. on 25 February 2005, the defence should be struck out and the claimants should have judgment for the sum to be assessed by this court without need for a further order.  The trial was listed for today, 14 March 2005.  

12.	The Master ordered that service of his order be made by post to three addresses in London.  I am satisfied that the order as to service as required by the Master has been complied with.  I have seen the witness statement of Michael George Hamley, a partner in Wilson and Co, Solicitors of Tottenham, London, dated 11 March 2005.  

13.	As a result of the service of those documents it is plain to me that the defendant has had appropriate notice of today’s proceedings and of the court’s requirements that he serve the documents referred to by 4.30 p.m. on 25 February 2005.  

14.	The defendant has not responded to the requirements to file documents as ordered by the Master, nor has he appeared by himself or through any representative to this court today.  

15.	Consequent upon the Master’s order of 9 February 2005 I order that the defence in this case be struck out and I enter judgment for the claimants in the action.  

16.	Then it falls to me to assess damages.  The claim as originally put forward sought damages under a number of heads: a claim for bereavement damages pursuant to section 1(a)(ii) of  the Fatal Accidents Act 1976; a claim for loss of dependency by the wife and four children of the deceased; and a claim for aggravated and exemplary damages.  

17.	As to the claim for the loss of dependency by the wife, the first claimant, and the four children, I have seen the evidence and seen the history of the deceased’s activities in this country between 1990 and his return to Somalia, and I have seen the evidence as to his activities in Somalia.  

18.	The evidence, in short, is insufficient to enable any claim for loss of dependency to be mounted.  That is now acknowledged on behalf of the claimant through her counsel, Mr. Ronan Toal.  He acknowledges that there is no evidence sufficient to establish pecuniary loss and loss of dependency.  Accordingly, under that head there can be no award.  

19.	The claim also raised the issue of aggravated and exemplary damages.  This present claim, of course, is brought under Fatal Accidents Act.  The estate of Ahmed Mahmood is not a party to these proceedings.  In short, it is acknowledged on behalf of the claimant that a claim for aggravated and/or for exemplary damages cannot succeed in these present proceedings.  I dismiss that head of claim.  

20.	That leaves the claim for bereavement damages pursuant to the Fatal Accidents Act 1976.  This being a cause of action which has arisen since April 2002 the appropriate sum, fixed by statutory instrument, is the sum of £10,000.  It appears to me that the claimants are entitled to damages in that sum as damages for bereavement under section 1(a) of the Fatal Accidents Act 1976 and I award them that sum as claimed in the particulars of claim.  

21.	I am also asked to deal with the issue of costs.  The claimants are anxious to finalise matters.  It seems to me that it is in the interests of justice that I should make an assessment of costs as opposed to postponing the matter for a detailed assessment by a costs judge.  This is particularly so where the realities of the case are that enforcement of the court’s order, both as to damages and costs, are a relatively remote prospect.  Mr. Yusuf, the defendant, as a resident of Puntland is outside the scope of any reciprocal arrangements that may exist between this country and other jurisdictions.  To put the matter over to the Master for an assessment of costs would simply involve committing further judicial resources within this jurisdiction to an exercise which is likely to prove an empty one.  

22.	The claimant has accepted that if I make today an assessment of costs that it will have to be on a basis which is rough and ready and which represents a reduction from the headline figure which has been put before me on a schedule of claimants’ costs up to today.  

23.	 For the reasons I have indicated I consider it is appropriate and in the interests of justice that I should finalise this matter and make an assessment myself of the costs of the action.  The total costs shown on the schedule to me are £29,364.86.  In making the assessment which I have to make on the basis which I have indicated without the benefit of the sort of detailed enquiry that the costs judge can make, I have to approach the matter on a very rough and ready basis.  But, as I say, the claimants are content for me so to do.  

24.	In those circumstances I assess the costs in this matter on a summary basis at £20,000.  I make an order for costs against the defendant in that sum.  However, from that amount must be deducted the sum of £5,000 which I am informed has already been paid on account during the course of these proceedings.  

25.	Therefore, the actual amount which the defendant remains liable to pay under the court’s order is some £15,000.