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 costs. These steps were taken on the instructions of the head of the organisation, Mr Cavero, who was a senior civil servant, without his Minister of Agriculture knowing of them. Eighteen months after the writ was served, steps were taken to stay proceedings on the ground that the organisation was a department of the Spanish Ministry of Agriculture.
Held: (majority) The defendants were a department of the State of Spain and entitled to claim immunity. There could be no submission to the jurisdiction unless it were made by a person with knowledge of the right to be waived and with the authority of the foreign sovereign. Jenkins LJ: ‘Applying those authorities to the present case it seems to me that the evidence here, and in particular the evidence of the ambassador, makes it reasonably plain that Mr Cavero knew nothing about sovereign immunity, or at all events, had no idea that by entering an appearance the defendants would be giving up any advantage or; in particular, any right to claim immunity which they might otherwise have. Furthermore, Mr Cavero’s superiors knew nothing about the matter at all until after the acts relied on as submissions to the jurisdiction had taken place. It seems to me, therefore, that what was done here was done by Mr Cavero without the knowledge of any of his superiors, in ignorance of his rights and without actual authority inasmuch as I think the evidence shows that the authority of the Minister of Agriculture would in fact have been necessary to enable Mr Cavero to submit to the jurisdiction.’
Parker LJ: ‘Like Jenkins LJ, I confess that at first impression it seemed to me remarkable if the true view was that the State of Spain had not submitted to the jurisdiction. Not only was there an unconditional appearance entered on the instructions of the head of this body, Senor Cavero, himself a senior civil servant, but again on his instructions security for costs was asked for and obtained; and it was not until the writ had been served for some 18 months that any steps were taken to stay the proceedings. I am satisfied, however, as the result of Mr Kerr’s argument and the cases to which he has referred, that there can be no submission in such a case as this unless it is made by a person with knowledge of the right to be waived, with knowledge of the effect of our law of procedure, and with the authority of the foreign sovereign. As Mr Kerr pointed out, proceedings against a foreign sovereign are wholly void.’ and ‘In those circumstances it does seem to me that it requires some solemn act of the foreign sovereign to bring to life something which is otherwise completely dead; and, without referring to the cases, I think that The Jassy and the case before Astbury J., In re Republic of Bolivia Exploration Syndicate Ltd., support that view. So far as this case is concerned, it is true that we have not had the benefit of an affidavit from Senor Cavero, but for my part I cannot impute to him knowledge of the effect of entering an unconditional appearance. Quite apart from that, it seems to me that the evidence is clear that although he is the person, the intermediary, to pass on instructions to English solicitors to deal with a case in England, he is bound to consult the appropriate minister as to whether sovereign immunity should be waived or not. It is true this does open up the rather alarming prospect that a foreign sovereign may allow proceedings to continue for years in this country before taking the point; but for my part I think that that is a theoretical difficulty. I do not think any person, even though he be a foreign sovereign, would be likely to be believed if in such an extreme case he were to come forward and assert that he had had no knowledge whatever of the proceedings. So far, however, as this case is concerned, I am satisfied that the point has been properly taken and that there has been no waiver.’
Singleton LJ dissented. The state had created the organisation as a legal entity to trade with citizens and corporate bodies in other countries and that Mr Carvero was acting in the ordinary course of business left to him. That being so, he had, on behalf of the state, waived the state’s right to claim immunity.
Jenkins LJ, Parker LJ, Singleton LJ (dissenting)
[1958] 1 QB 438, [1956] 3 All ER 715, [1956] 3 WLR 948
England and Wales
Citing:
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 – 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 by:
Cited – Aziz v Republic of Yemen CA 17-Jun-2005
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 . .
Cited – Regina v Central Criminal Court Ex Parte Propend Finance Pty Ltd and Others QBD 17-Mar-1994
A Home Secretary requesting warrants must be specific on the type he required. It was his duty, and not that of the police to state the method of seizure of documents for use in a foreign jurisdiction. A judge making an order should give reasons for . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .
Lists of cited by and citing cases may be incomplete.
International, Contract
Updated: 22 January 2022; Ref: scu.227915
