The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of the 1978 Act does not have the effect that only a submission by the head of mission would suffice to waive immunity. The court set out the following principles: ‘(a) When state immunity is claimed in appellate proceedings, the court may consider evidence called to substantiate such claim because, if substantiated, the court below had no jurisdiction to hear the case. (b) In a case where the other party claims that there has been a waiver of immunity, the court should scrutinise the available evidence. (c) Whether the issue is as to the status of the entity claimed to be an emanation of the state or as to a claimed waiver of immunity, the evidence of the Ambassador, as representative of the state, is important but not necessarily conclusive evidence of the relevant matters.’
The EAT should have remitted the matter to the ET to consider whether immunityhad been waived.
Pill LJ, Sedley LJ, Gage J
[2005] EWCA Civ 745, Times 22-Jun-2005, [2005] ICR 1391
Bailii
State Immunity Act 1978 2(7)
England and Wales
Citing:
Cited – Arab Republic of Egypt v Gamal-Eldin and Another EAT 14-Oct-1994
The appellant appealed a finding against it in the Employment tribunal, saying it had state immunity.
Held: ‘If the industrial tribunal fails to give effect to an immunity in fact enjoyed by the Arab Republic of Egypt as a result of not having . .
Cited – Ahmed v Government of the Kingdom of Saudi Arabia CA 1996
Where a defence had been filed to an action without a claim for state immunity having been made, it would have to be shown that the head of mission had submitted to the jurisdiction. . .
Cited – Arab Republic of Egypt Embassy v Gamal-Eldin and Another EAT 2-Mar-1995
. .
Cited – The Schooner Exchange v McFaddon 1812
(United States Supreme Court) The court considered the rationale of the jurisdictional immunity given to sovereign states: ‘This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of . .
Cited – The Jassy 1906
The plaintiff took process by way of arrest in a damages action in rem against a vessel which was the property of a foreign state.
Held: The action was dismissed. No waiver of the state’s privilege could be assumed even though agents of the . .
Cited – In re Republic of Bolivia Exploration Syndicate Ltd 1914
‘Even if it were conceivable that a diplomatic agent can waive his privilege, which is really the privilege of his sovereign, he can only do so intentionally, with full knowledge of his rights, and with the sanction of his sovereign or legation.’ . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Al-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Baccus SRL v Servicio Nacional Del Trigo CA 1956
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s . .
Cited – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Cited – De Haber v The Queen of Portugal 1851
Orse In the Matter of Wadsworth and R of Spain In the Matter of De Haber and R of Portugal
Property in England, belonging to a foreign sovereign prince in his public capacity, cannot be seized under process in a suit instituted against him in . .
Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – Regina v Madan CCA 1961
The defendant, a clerk on the staff of the High Commissioner for India, was entitled to diplomatic immunity. He purported to waive his immunity when charged with attempting to obtain a sum of money by false pretences. He was convicted at the County . .
Lists of cited by and citing cases may be incomplete.
Employment, Jurisdiction
Updated: 22 January 2022; Ref: scu.226829