In Tomanovic & Ors v Foreign and Commonwealth Office  EWHC 3350 (QB), Brendan McGurk successfully defended the Foreign and Commonwealth Office from claims brought by family members of Serbians killed or disappeared following NATO’s airstrikes in June 1999 and the consequent withdrawal of Slobodan Milosovic’s forces from Kosovo. It was common ground that the deaths and disappearances were orchestrated by the Kosovo Liberation Army. A previous claim brought against the Ministry of Defence for the UK’s failure to carry out investigations compliantly with Articles 2 and 3 ECHR was rejected by Irwin J (as he then was) in Kontic & Ors v Ministry of Defence  EWHC 2034 (QB). The claim against the FCO was based on the novel proposition that because the FCO had seconded an employee to the EU’s Rule of Law Mission to Kosovo – a body set up to investigate and prosecute crimes in the aftermath of Milosovic’s withdrawal – his alleged failure to investigate the deaths and disappearances could be attributed to the UK Government. That proposition was rejected in the judgment of Johnson J who further concluded that the Claimants were outside the jurisdiction of the UK for the purposes of Article 1 ECHR and that the claim was an abuse of process in circumstances where these claims could have been pursued as part of the Kontic litigation. Brendan McGurk was led in both Kontic and Tomanovic by Sir James Eadie QC.
The decision of Johnson J is here.