Imran Khan and Partners represented Fawaz Al Attiya in his claim against the ex-Prime Minister of Qatar, Hamad bin Jassim bin Jabber Al Thani. Mr Al Attiya issued a claim for damages, including aggravated damages and exemplary damages for assault and false imprisonment arising out of his unlawful rendition and subsequent detention without trial in Qatar for over a year in conditions which he alleged amounted to torture. The action also included a claim for damages arising out of trespass to his land and goods and trespass to property.
The Defendant, whilst disputing much of the factual basis of the claim, applied to set aside the claim on the basis that the Court had no jurisdiction on the grounds of both state immunity and diplomatic immunity. The case was heard by Mr Justice Blake in the High Court who handed down judgment on the 15th February 2016. On the 8th February 2016, Mr Justice Hayden handed down judgment in the High Court in a case involving similar arguments as to diplomatic immunity: Estrada v Al Juffali  EWHC 213 (Fam).
In the case of Fawaz Al Attiya, the Claimant alleged that, in pursuit of a private vendetta between the parties, the Defendant used his influence in Qatar to induce public officials to commit very serious wrongs against him, including his forcible transfer across national borders to Qatar and incommunicado incarceration for many months combined with threats and psychological abuse – treatment which cumulatively amounted to torture. In response to these claims, the Defendant sought to rely on both state immunity and diplomatic immunity.
Section 1 of the State Immunity Act 1978 provides:
A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Act;A court shall give effect to the immunity conferred by this Section, even though the state does not appear in the proceedings in question.The House of Lords considered the issue of state immunity in Jones v Ministry of the Interior of Saudi Arabia  UKHL 26  1 AC 270. That case concerned the issue of whether there was jurisdiction in the UK courts to try a claim brought by British nationals for damages for false detention and assault by means of infliction of torture in Saudi Arabia. The Defendants in that case were the Ministry of the Interior of Saudi Arabia and a Lieutenant Colonel in the employment of the state. The House of Lords concluded that:
(i) There was no jurisdiction to bring the claim against either Defendant;
(ii) A state can claim immunity when directly impleaded by suing a Ministry or indirectly by suing one of its public officials acting as such;
(iii) There was no principle of international law providing an additional exception to state immunity from civil proceedings where torture contrary to a norm of international law was alleged;
(iv) Immunity from suit was not an unjustified and/or disproportionate interference with a right of access to a Court for a determination of civil rights within the meaning of Article 6 ECHR, where the absence of domestic jurisdiction was to give effect to well established principles of international law.
The Defendant in Mr Al Attiya’s case submitted that he was being sued for an alleged abuse of power exercised by reason of his being the former Prime Minister of Qatar and, therefore, applying the principle stated in Jones, the claim should be struck out on state immunity grounds. Amongst other submissions, the Claimant argued that the “act of state” doctrine was subject to an exception in the case of serious abuse of core human rights including peremptory norms of international law such as the use of torture, and referred to the case of Belhaj v Straw  EWCA Civ 1394. In that case, the Claimants alleged that UK authorities had participated in their unlawful rendition to Libya and torture. They alleged that they were unlawfully mistreated in China, Malaysia, Thailand and Libya, and on board a US-registered aircraft by state officials of China, Malaysia, Thailand, Libya and the United States. The Defendants relied on the doctrines of both state immunity and foreign act of state. At first instance, Simon J rejected the submission that state immunity could be invoked because the claim necessarily required findings of illegality in respect of acts on the part of officials of foreign states for which they could claim immunity if they had been sued directly. He held that the claim did not implead China, Malaysia, Thailand, Libya or the United States or their servants or agents. The Court of Appeal upheld Simon J’s decision, concluding that the Defendant’s submission would involve an unprecedented extension of state immunity and that the concept of indirect impleader is not as broad as submitted by Defendants and that it is limited to certain identified categories of case.
In the present case, Mr Justice Blake concluded that, even if the claim was amended to state that the Defendant had acted in a purely private capacity when procuring Qatari state officials to commit wrongdoing against the Claimant, the claim would still be barred by state immunity. At paragraph 27 of the judgment, he said this:
“Even if it were possible to sue the defendant for malicious abuse or abuse or malicious prosecution, applying the law of Qatar, it seems to me that any adjudication on any amended claim would still engage state immunity. Any determination of the claim would directly challenge the good faith of both the Minister of Municipality in promoting compulsory purchase of the claimant’s land and the Attorney General in seeking the return of the claimant from Saudi Arabia, detaining him and prosecuting him. This is not a case where the acts of a foreign case under challenge are the unwitting outcome of a malicious use of process by a powerful citizen of that state.”
Despite the fact that an appeal is outstanding before the Supreme Court with respect to the Court of Appeal’s decision on state immunity in Belhaj, Mr Justice Blake found in the present case that the claim should be struck out for want of jurisdiction because he was able to apply the Court of Appeal decision in Belhaj, distinguishing its facts from those in this case.
If a Defendant is a diplomatic agent, then he/she is immune from suit. In this case, the Defendant asserted diplomatic immunity. The Claimant argued that the Defendant’s appointment as a diplomat was a sham and/or that he did not discharge the functions of a diplomat. Accordingly, the Defendant could not avail himself of the protections afforded by the Diplomatic Privileges Act 1964 (DPA) and the Vienna Convention on Diplomatic Relations 1961 (VCDR).
The Claimant argued for a functional test to determine whether a Defendant could seek the protections. Such a test was considered by Mr Justice Hayden in Al Juffali where, in effect, it was set out in this way : has the Defendant, in any real sense, taken up his/her appointment, and discharged any responsibilities in connection with it? Al Juffali involved a wealthy Saudi businessman who was married for twelve years, had a thirteen-year-old daughter and lived with his family in the matrimonial property in the UK. The wife applied under Part III of the Matrimonial and Family Proceedings Act 1984 for a financial remedy following a foreign divorce. Mr Al Juffali sought to strike out her application on the basis of diplomatic immunity, relying on his being appointed as a Permanent Representative of the International Maritime Organisation. The Foreign & Commonwealth Office (FCO) had issued a certificate confirming the post. Mr Justice Hayden took the view that there were several factors which indicated that Mr Al Juffali’s appointment was solely intended to defeat the claim for financial relief brought in the English courts. Mr Justice Hayden concluded that the appointment was “an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic provision required to support such a conclusion.” Mr Justice Hayden relied on Article 39(1) of the VCDR in adopting the functional test. Article 39(1) provides: Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs, or such other ministry as may be agreed.
The Judge in this case accepted the argument that this provision imposed a substantive requirement on the fulfilment of diplomatic functions and held that Mr Al Juffali had not “in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it”. Accordingly, Mr Al Juffali failed the functional test and could not avail himself of the immunity from suit. Mr Justice Hayden also went on to consider whether such immunity contravened a right under Article 6 in terms of access to the courts. He cited the case of Reyes v Al-Maliki  EWCA Civ 32, in which the Court of Appeal had to decide whether engaging domestic staff was an activity incidental to diplomatic functions, and therefore well within immunity from suit, or was subject to an exemption from immunity under the VCDR. It upheld the claim for immunity, but there was a wide-ranging consideration of the object and purpose of the VCDR, with the Court holding that the compatibility of diplomatic immunity with the right of access to the courts involved a balancing act. In Al Juffali, Mr Justice Hayden concluded that :
“The proportionality exercise reviewed by Lord Dyson in Reyes v Al-Maliki balances the competing interests of the cluster of factors which give definition to the principle of international comity alongside the Article 6 rights of the individual. Here ‘comity’ cannot be weighed into the balance at all when the post itself is a mere empty husk.”
He was, therefore, not prepared to accede to Mr Al Juffali’s request to strike out the claim on his spurious assertion of diplomatic immunity, as he had found it to be. A similar approach was argued by the Claimant in Al Attiya. The Claimant contended that a person is only a diplomatic agent if at the relevant time he exercised the function of such an agent – the functional approach. The Claimant argued that whether a person exercises such functions and accordingly has immunity from suit is ultimately a question of fact for the court and that in the absence of any conclusive evidence provided by the FCO in a certificate or otherwise, the court must examine the other evidence related to the question and determine whether the burden of establishing the facts that would result in immunity, has been discharged by the person relying on it, on the civil balance. Mr Justice Blake dealt with the evidence presented to the court as to the Defendant’s performance of his diplomatic functions, as follows:
“64. If [the claimant] is correct in his central contention of law that it is for the defendant to prove that he has the status of a diplomatic agent by establishing on a civil balance of probabilities that he is actually exercising diplomatic functions […] I would not be satisfied on the evidence before me that this burden had been discharged. “66. The difficulty with the defendant’s evidence is its essential silence on whether he has ever performed this function since he arrived in the UK or performs it now in 2016.
As to evidence that the Defendant made two public statements during the relevant period that he was a private person and not representing the Government of Qatar, Mr Justice Blake commented : “It is difficult to understand how a person could make such a statement if he regarded himself as an a [sic] charged with the task of representing the interests of Qatar in the United Kingdom.” He further commented : “[…] [T]here is nothing in the factual information provided to suggest that [the defendant] has ever undertaken any such function [of representing the interests of Qatar].”
Mr Justice Blake went on to reject the Claimant’s contention that he should adopt the functional approach and so, despite his comments as to the evidence or otherwise in relation to the actual functions of the Defendant in this case, and in contrast to the finding of Mr Justice Hayden as to the test to be applied, Mr Justice Blake concluded that the courts should take a “formal” approach. For him the critical factor in Mr Al Attiya’s case was that the FCO had issued a certificate under Section 4 of the DPA stating that the Defendant’s appointment as a member of the diplomatic staff had been notified to it and it had accepted this accreditation which was to be regarded “as good evidence of the fact of membership of diplomatic staff”. He concluded that : “[…] [A]lthough a case for a functional requirement can be made by reference, the object and purpose of the Convention, US state practice and a few observations in case-law [sic], I conclude that it does not provide the test to be applied by this court in determining whether someone is a diplomatic agent.”Mr Justice Blake defined the formal test as follows : “In the previous cases where a FCO certificate or letter has been issued, the court has treated the question of whether a person is a diplomatic agent as settled by the question of whether the receiving state has accepted the accreditation of the sending state or not.”
Mr Justice Blake held that “ultimately it is a question whether a sending state has appointed such a person to its mission and that appointment has been consented to by the receiving state” and that the certificate was conclusive evidence of those facts. Amongst his reasons for so holding was that “a functional inquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the Court and the FCO, with the result that the one voice principle is undermined”. In coming to this conclusion, he explained in a summary of the existing law, as he saw it, that “diplomatic status is not something created for the benefit of individuals but the freedom of states to conduct relations with a host state; a broad meaning of diplomatic function is to be given, although there are some activities that clearly fall outside this definition”. He stated :
“There would be real difficulties and uncertainties if the court were to undertake the [functional] inquiry that the claimant intends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose.” Having considered this approach, Mr Justice Blake accordingly granted the Defendant’s application for strike-out on the basis of diplomatic immunity.
In relation to Article 6, Mr Justice Blake held that his conclusion was not incompatible with the right of access to the Court for this purpose, holding that the current state of the law does not grant more extensive immunity than the VCDR envisages. He relied on Strasbourg case-law that a restriction on jurisdiction is considered relevant, necessary and proportionate if it is to give effect to international law principles, including the VCDR and state immunity. Whilst Mr Al Attiya is awaiting permission to appeal, the Court of Appeal has handed down judgment in the Al Juffali case (Al-Juffali v Estrada  EWCA Civ 176). The judges in the Court of Appeal rejected the functional approach, stating : “There is no support in the relevant international instruments or the case law for a functional review by a court where there is a challenge to a claim to immunity by a diplomat or Permanent Representative.” The Court of Appeal fell squarely within the “formal” approach camp, stating : “[…] Circumstances might arise in which a claim of immunity might be unjustified on the facts of a particular case […] However, it is not envisaged that the correct response to such a situation is for the domestic courts to look behind the status of the representative. The decision of whether or not to waive the immunity is a matter which is solely within the executive discretion of the sending State or the courts of the sending State […] If the sending State does not waive immunity, the courts of the receiving State are required to grant immunity.
The Master of the Rolls echoed [33-34] Mr Justice Blake’s concern that to apply a functional test would risk undermining the recognised “one voice” principle and, accordingly, the sovereignty of executive government. As a matter of “law and policy”, therefore, it accepted the FCO’s certificate as “powerful” and “conclusive” evidence of Mr Al Juffali’s appointment, and the judge’s opposing factual determination incapable of overriding the former . The Court of Appeal accordingly found that Mr Justice Hayden had been wrong to hold that Mr Al Juffali was not entitled in principle to immunity from his wife’s application. Whilst the Court of Appeal found in Mr Al Juffali’s favour by adopting the formal approach to determining whether a diplomatic agent can avail themselves of immunity, the court concluded that on the facts Mr Al Juffali was not entitled to diplomatic immunity because he was permanently resident in the UK and the claim did not relate to any official acts performed by him in the exercise of his functions. The appeal was therefore dismissed.