The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of war had been formally declared. The force used against Iraq was used according to HM government under authorisation of the UN. The position of the government was clearly that they were not at war with Iraq. Also: ‘the disability of alien enemies is part of the rules of English law relating to the traditional laws of war, and . . there is no warrant for extending it to modern armed conflict not involving war in the technical sense.’
Judges:
Lawrence Collins J
Citations:
[2005] EWHC 1670 (Ch), Times 24-Aug-2005
Links:
Statutes:
Trading with the Enemy Act 1939 1
Jurisdiction:
England and Wales
Citing:
Cited – Calvin’s case 1606
Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws . .
Cited – Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) ICJ 1986
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. . .
Cited – Rex v Bottrill, Ex parte Kuechenmeister CA 1946
There is no right as such of entry to the UK for someone fleeing persecution in their own country. The certificate of the Foreign Secretary given on behalf of the Crown as to the existence of a state of war involving HMG is conclusive and binding on . .
Cited – Sovracht (V/O) v Van Udens Scheepvaart en Agentuur Maatshappij 1943
The rule that an enemy alien may not prosecute an action is based on public policy, namely the need for the protection of the state in time of war. . .
Cited – Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Company Limited CA 1939
The case was heard against the background of an armed conflict between Japan and China. The charterparty contract included a clause providing for cancellation ‘if war breaks out involving Japan’.
Held: The court rejected an argument that the . .
Cited – Wells v Williams 1697
An alien enemy living in England by the King’s licence and under his protection could bring a court action. . .
Cited – Rodriguez v Speyer Brothers 1919
The courts will not give assistance to proceedings which, if successful would lead to the enrichment of an alien enemy, and therefore would tend to provide his country with the sinews of war. An enemy alien has no standing to commence proceedings . .
Cited – Porter v Freudenberg CA 1915
A British citizen or neutral who is voluntarily resident in the enemy country is to be treated as an alien enemy when the question is asked as to his entitlement to bring proceedings in England.
An order for substituted service, which is as . .
Cited – Janson v Driefontein Consolidated Mines 1902
Lord MacNaghten said: ‘the law recognises a state of peace and a state of war, but . . it knows nothing of an intermediate state which is neither the one thing nor the other – neither peace nor war.’ . .
Cited – Princess Thurn and Taxis v Moffitt 1914
The subject of an enemy state registered in the United Kingdom under the Aliens Registration Act 1914 as an alien was entitled to sue in England. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 01 July 2022; Ref: scu.229036
