Litigation Costs

Chagossians were prevented from returning to the Chagos in the late 1960s and then actively deported between 1971 and 1973. Since then they have brought a number of legal actions against the UK Government in the English courts challenging their expulsion.

The Vencatassen Litigation 1975

In 1975, Michael Vencatassen, a Chagossian who had been forced to leave Diego Garcia in 1971, commenced an action against the UK Government for damages for intimidation, wrongful deprivation of personal liberty, and assault. The Government realised that if the case proceeded to trial, then documents relating to the formation of the BIOT would likely become public. These, as is now known, showed how the FCO had acted dishonestly and in complete disregard of Chagossian rights.

To prevent this disclosure the UK Government made an offer to settle the case, initially for £500,000. As interest in the proposed settlement grew, including from Mauritian politicians, the scope was widened so that by the early 1980s the settlement was expanded to cover all Chagossians who had been removed to Mauritius. By 1982 agreement had been reached that the Mauritian Governments would establish an Ilois Trust Fund to receive a payment of £4 million from the UK. This was distributed as cash payments to Chagossians over the next 2 years as compensation and to help them to purchase housing. In exchange for the final payment, recipients were required to renounce all their claims against the UK Government. This renunciation was a document drafted in legal English which was in the majority of cases 'signed' by a thumbprint by Chagossians who could neither read nor write and whose only language was Creole.

Bancoult (1) 2000

When these Government documents from the 1960s were subsequently released into the National Archives under the 30 year disclosure rule they revealed the full nature of what had happened and a further round of litigation commenced in 1999. This was a challenge (a Judicial Review) to the legality of the law that had prevented their return to the islands, the 1971 BIOT Immigration Ordinance. In 2000, the High Court struck down the Ordinance on the grounds that the BIOT Commissioner's power to legislate for the ‘peace, order and good government’ of the territory, while broad, did not include a power to exile a people from their homeland [Bancoult 1]. The UK Government then passed a new Ordinance allowing Chagossians to return to the outer islands of the archipelago but not to Diego Garcia.

Chagos Islanders Case 2003

Damages do not issue automatically from a judicial review in English law and the Chagossians then brought a claim in 2003 in order to allow them to fund a return to the islands [Chagos Islanders v Attorney General & HM British Indian Ocean Territory Commissioner]. The case was dismissed largely on the basis that they had signed renunciation forms in 1982 when they had received compensation or that for those who had not signed, their claims were now out of time.

Bancoult (2) 2006-2008

Four years after the High Court victory and the passing of the new Immigration Ordinance, the Government suddenly overturned the High Court decision using Prerogative Orders in Council (BIOT (Constitution) Order and BIOT (Immigration) Order 2004), revoked the new Ordinance, and imposed full immigration control. The Orders “declared that no person has the right of abode in BIOT nor the right without authorisation to enter and remain there". The Chagossians were thus exiled once again.

A second case [Bancoult 2] was brought challenging the legality of the new Orders including the provision where (a) no person had the right to abode in the BIOT and (b) that no person was entitled to enter BIOT without authorisation. The challenge was successful both in the High Court and the Court of Appeal, the latter holding that the orders amounted to an abuse of power because they negated the islanders' rights to return to their homeland. The Government appealed to the House of Lords, where the majority (3:2) ruled that the exercise of power under the 2004 orders was essentially a concern for the government and not properly a matter for the courts. It also ruled that the making of the Orders was rational based on (1) US/UK defence needs for Diego Garcia and (2) the outcome of a feasibility study which was said to have shown that resettlement of the northern islands was unfeasible because of rising sea-levels and predicted increases in storminess which would combine in frequent inundation of the islands by seawater. In a dissenting judgment, one of the Lords stated that the Government’s submission “treats BIOT and the... power to make... laws relating to BIOT as if they related to nothing more than the bare land, and as if the people inhabiting BIOT were an insignificant inconvenience”.

European Court of Human Rights 2012

An application to the European Court of Human Rights - alleging breaches of Articles 3, 6, 8 and 13 and Article 1 of Protocol 1 - was dismissed in 2012, with the court deciding that it did not have jurisdiction to consider the Chagossians' claims.

Bancoult (3) 2013-2017

Following the unilateral declaration of a Marine Protected Area in the Chagos Archipelago on 1 April 2010, the Chagossians mounted a legal challenge on the basis that Wikileaks Cables revealed that the FCO had used the MPA as a further means of preventing their chances of resettling. The case proceeded through the High Court, Court of Appeal and the UK Supreme Court. Further details.

Bancoult (4) 2015

The outcome of the House of Lords decision in 2008 was challenged in the UK Supreme Court following the discovery and disclosure of documents that had been withheld from the Bancoult (2) legal team which revealed shortcomings in the consultant's reports on the feasibility of resettlement in 2002. Further details.

Hoareau & Bancoult 2018-2020

On 16 November 2016 the UK Government announced that it would not permit resettlement of the Chagos Islands. This decision followed a 3 year period involving an external consultancy report into the feasibility of resettlement and a Government policy review. Ms Solange Hoareau (on behlaf of Seychellois Chagossians) and Olivier Bancooult (for Mauritius and UK Chagossians) sought a judicial review of this decision. This case is pending an appeal to the UK Supreme Court. Further details.

Litigation Costs in the UNCLOS Arbitral Tribunal 2015

A Parliamentary Question on 17 July 2020 records that total costs incurred by the UK in the UNCLOS arbitration has been £1,505,720 (comprising Counsel's fees and arbitration costs).

Cost of the International Court of Justice Hearing 2018/9

In response to a Parliamentary Question in the House of Lords dated 3 November 2020 the Foreign, Commonwealth & Development Office revealed that the legal costs of the UK's participation were £309,608.20. This figure comprises Counsels' fees and Government Legal Department fees.

Parliamentary Question 22 February 2021

A PQ answered on 22 February 2021 updated the total recorded expenditure by HMG on legal disputes over the Chagos Islands as £5,841,662. This includes the Domestic, UNCLOS, and ICJ costs which are particularised above and indicate a further expenditure of £54,943 since last year (2020).