ECFI Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Manifest error of assessment – Right to property – Proportionality
Pelikanova P
T-434/11, [2013] EUECJ T-434/11
European
Updated: 04 October 2022; Ref: scu.515162
ECJ Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Error of assessment
T-493/10, [2013] EUECJ T-493/10
European
Updated: 04 October 2022; Ref: scu.515168
Her Honour Judge Hilder
[2019] EWCOP 52
England and Wales
Updated: 01 October 2022; Ref: scu.646115
Proceedings were begun against Mr Smith, a member of the administrative staff of the Canadian High Commission in London, claiming damages under a private tenancy agreement. As the proceedings were commenced, he enjoyed the same immunity under the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act 1952 as the diplomatic staff of an ambassador. Under the Act of 1708, that immunity was absolute. By the time of the hearing, however, the Acts of 1708 and 1952 had been replaced by the Diplomatic Privileges Act 1964, which conferred immunity on administrative and technical staff only in respect of acts done in the course of their duties.
Held: He was entitled only to the limited immunity under the Act of 1964.
Mr Smith was held to be entitled only to the limited immunity under the Act of 1964. As Diplock LJ point out by way of analogy: ‘if the defendant had ceased to be en poste while the plaint was still outstanding the action could then have proceeded against him.’
[1965] 2 All ER 881, [1965] 3 WLR 380, [1966] 1 QB 426
Diplomatic Privileges Act 1964
England and Wales
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.
Updated: 01 October 2022; Ref: scu.645786
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party debt orders. Issues arose as to who could take the benefit of the letters of credit.
Held: (Lord Mance DPSC and Lord Neuberger of Abbotsbury dissenting) The appeal was allowed. The defendant was, under the contract, and remained the beneficiary of the letters and was the only proper owner of the debts due from the French bank. The Central Bank of Iraq, having no beneficial interest in the contract had no say in the chosen means of execution.
The situs in law of this debt was London, being the legal residence of the debtor.
Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
[2017] UKSC 64, UKSC 2015/0199, [2017] WLR(D) 701, [2018] AC 690, [2017] 3 WLR 1170
Bailii, Bailii Summary, SC, SC Summary, SC 20170321 am Video, SC Summary Video, SC 20170321 pm Video, SC 20170322 am Video, SC 20170322 pm Video, WLRD
England and Wales
At ComC (1) – Taurus Petroleum Ltd v State Oilmarketing Company ComC 18-Nov-2013
The parties referred their contract disputes to an arbitration in London which was to apply Iraqi law. As to enforcement of the award, the defendant denied that they were situated in London.
Held: The debts were situated in London rather than . .
At ComC (2) – Taurus Petroleum Led v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq ComC 18-Nov-2013
. .
Appeal from – Taurus Petroleum Ltd v State Oil Company of The Ministry of Oil, Republic of Iraq CA 28-Jul-2015
The parties had contractual disputes as to letters of credit governed by Iraqi law. The arbitration was in London applying Iraqi law. They now disputed whether the Enforcement of arbitration award was as an award made in London. Each appealed . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Overruled – Power Curber International Ltd v The National Bank of Kuwait CA 1981
The advising bank on a letter of credit was situated in Florida. The place where the credit was payable was North Carolina, and the place where the issuing bank had its place of business was Kuwait.
Held: (Waterhouse J dissenting) The contract . .
Cited – HL Boulton Co v Banque Royale du Canada 1994
(Superior Court of Quebec) The defendant asked the court to decline jurisdiction under article 3135 of the Civil Code, which provides that even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally decline jurisdiction . .
Cited – Alessandra Yarns llc v Tongxiang Baoding Textile Co Ltd 6-Feb-2015
(Superior Court of Quebec) The Court was asked whether the fraud exception to a letter of credit had been met such that the court should issue an interlocutory injunction to prevent the beneficiary claiming under the letter of credit. There were . .
Cited – Re General Horticultural Company, Ex parte Whitehouse ChD 1886
Wills, to whom a sum had been allowed in a winding up for work done for the liquidator, charged the amount due to him as security for the payment of three debts, the total amount of which exceeded the sum due to him from the company. Notice of the . .
Cited – Rogers v Whitely QBD 1889
Money in a bank account included money of which the judgment debtor was trustee.
Held: That money could not be ordered to be paid to the judgment creditor who obtained the charging order: ‘he can only obtain payment out of the debtor’s own . .
Cited – Williams v Everett And Others 25-Nov-1811
. .
Cited – Gibson v Minet And Another 28-Feb-1824
. .
Cited – Webb v Stanton CA 1883
A garnishee order was obtained against a trustee purporting to attach the beneficiary’s share of the trust income. No income was however in the trustee’s hands which he was at that time due to pay to the beneficiary.
Held: The garnishee order . .
Cited – Rekstin v Severo Sibirsko Gosudarstvennoe Aksionernoe Obschestvo Koseverputj and the Bank for Russian Trade Ltd CA 1932
The plaintiff sought to enforce payment of a judgment in his favour against the defendant (the Severo Sibirsko Bureau) by service of a garnishee order nisi on the Bureau’s bank, the Bank for Russian Trade. The order was served less than an hour . .
Cited – Dunlop and Ranken Ltd v Hendall Steel Structures Ltd CA 1957
There was no debt arising under a building contract which could be the subject of a garnishee order where there was no ’cause of action’ and no debt until an architect’s certificate had been issued.
Lord Goddard CJ said: ‘. . until the . .
Cited – Merchant International Company Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy and Another CA 10-Dec-2014
he debt sought to be attached was said to be owed by a bank to the judgment debtor Naftogaz. But the bank had received the money from Naftogaz as the agent bank under a loan agreement for distribution to the loanholders. It was not therefore, in the . .
Cited – Ferrera v Hardy CA 7-Oct-2015
H appealed from a decision to set aside a third party debt order which he had obtained over a debt he said was due to F from Liverpool City Council in respect of housing benefit owed to F as rent for one of F’s tenants.
Held: A judgment . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2022; Ref: scu.597671
he debt sought to be attached was said to be owed by a bank to the judgment debtor Naftogaz. But the bank had received the money from Naftogaz as the agent bank under a loan agreement for distribution to the loanholders. It was not therefore, in the bank’s hands, a debt payable to Naftogaz.
[2014] EWCA Civ 1603
England and Wales
Cited – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2022; Ref: scu.539824
The parties had contractual disputes as to letters of credit governed by Iraqi law. The arbitration was in London applying Iraqi law. They now disputed whether the Enforcement of arbitration award was as an award made in London. Each appealed against elements of the orders made at first instance.
Held: The appeals and cross appeals failed.
Although a bank must carefully assess the creditworthiness of its own customer before agreeing to open a letter of credit, the process of doing so is essentially mechanical. The terms of the credit are likely to be determined largely, if not entirely, by the seller and will be communicated by the buyer to its bank. The bank in its turn will then issue the credit in the terms required, undertaking a liability to the beneficiary against which it will seek an indemnity from its customer. Moore-Bick LJ added that one should therefore be very cautious before construing letters of credit by reference to extraneous circumstances and there was no evidence before the court of the extent to which those engaged in financing the trade in Iraqi oil were or were not generally aware of the arrangements.
The parties disputed the terms of their contract and had undertaken an arbitration in London, but under Iraqi law. There was no reason in principle why a letter of credit should not be issued in favour of joint beneficiaries, as for example if goods or property were being sold by joint owners.
Moore-Bick VP CA, Sullivan, Briggs LJJ
[2015] EWCA Civ 835, [2016] 1 Lloyd’s Rep 42, [2015] CP Rep 48
State Immunity Act 1978 13(2) 14(4)
England and Wales
Appeal from – Taurus Petroleum Ltd v State Oilmarketing Company ComC 18-Nov-2013
The parties referred their contract disputes to an arbitration in London which was to apply Iraqi law. As to enforcement of the award, the defendant denied that they were situated in London.
Held: The debts were situated in London rather than . .
At ComC (2) – Taurus Petroleum Led v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq ComC 18-Nov-2013
. .
Binding – Power Curber International Ltd v The National Bank of Kuwait CA 1981
The advising bank on a letter of credit was situated in Florida. The place where the credit was payable was North Carolina, and the place where the issuing bank had its place of business was Kuwait.
Held: (Waterhouse J dissenting) The contract . .
Cited – Rogers v Whitely QBD 1889
Money in a bank account included money of which the judgment debtor was trustee.
Held: That money could not be ordered to be paid to the judgment creditor who obtained the charging order: ‘he can only obtain payment out of the debtor’s own . .
Appeal from – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2022; Ref: scu.550645
Mother’s appeal against orders which registered, and permitted enforcement of, a judgment made the Tribunal de Grande Instance d’Evry. Those orders for registration and enforcement were made pursuant to Article 28(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
Held: Mostyn J pointed out that there were no reported cases about Articles 22(b) or 23(c) but there were an appreciable number under the corresponding provision, Article 45, of Council Regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) and its predecessor, Article 34 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Judgments Regulation’).
After considering the relevant authorities, a defendant who is resisting the recognition of an EU divorce or parental responsibility judgment must prove three things:
i) First, the defendant must show that the divorce was obtained in default of his or her appearance. This does not mean merely that the defendant was physically absent. If the defendant has already chosen to take part in the proceedings by defending them or even by challenging the jurisdiction, he or she may be said to have already ‘appeared’ and thus not be in default of appearance.
ii) Second, the defendant must show that he or she was not served in sufficient time and in such a way as to enable him to arrange for his or her defence. Even where there has been formal valid service the court of registration is entitled to examine whether on the ground and in the real world there was actual service of the originating application or an acceptable substitute sufficiently far ahead of the hearing to enable the defendant to arrange for his defence. In an exceptional case the court can so conclude.
iii) Third, it must be shown that the defendant has not accepted the divorce judgment unequivocally. I observed that it is hard to imagine a state of affairs where this comes into play. It is irrelevant under B2R if the defendant failed to commence proceedings to challenge the judgment when it was possible for him or her to do so (in contrast to the Judgments Regulation) or if he or she had concealed his or her whereabouts from the person who instituted the proceedings in the overseas court (in contrast to the Luxembourg Convention).’
Mostyn J
[2014] EWHC 871 (Fam), [2015] 1 FLR 213
Council Regulation (EC) No 2201/2003
England and Wales
Updated: 29 September 2022; Ref: scu.523361
The court was asked whether a ceremony in a Syriac Orthodox church was to be recognised so as to allow divorce proceedings here.
Moylan J
[2013] EWHC 3852 (Fam), [2014] 2 FLR 833
England and Wales
Updated: 29 September 2022; Ref: scu.519040
Application for permission to appeal – refusal of stay
[2002] EWCA Civ 664
England and Wales
Updated: 27 September 2022; Ref: scu.217227
A commercial debt due to the claimant from the former Iraqi government, and for which judgment had been obtained in France, had been bought from receivers by the new Iraqi Development fund. The appellants sought to secure their judgment in full by a Third Party Debt Order. The respondents had certified it to be a state debt and immune under section 13 of the 1978 Act. The claimants appealed against rejection of their request.
Held: The claim failed. The Act required the claimant to show a current or intended commercial use. An historical use was insufficient.
Rix LJ said: ‘it is difficult to see that the property in question, the admitted claim, has no current use. It is in use in order to secure the scheme dividend. Of course, the dividend, when secured, might be put to any of the uses to which money funds might be put, either by being expended or by being invested. For the present, however, until the dividend is paid, the claim’s obvious use and purpose, I would have thought, was to be the means by which the claim’s owner, Iraq, seeks to secure its value by way of a dividend in the scheme of arrangement. That is what the commercial debt was bought for in the first place, and, until the scheme of arrangement (or, in its absence, a liquidation) has been brought to fruition, the owner holds the debt for the purpose of seeking payment of its claim. For these purposes, Iraq is just like the holder of any commercial debt. As purchaser of the debt, it merely stands in the shoes of the merchants and other commercial parties who were the original owners of the debt in question. If those parties were still holders of the debt, it would not be said that they held it for no current purpose. It seems to me to be at least highly arguable that Iraq is in the same position. On this basis, the linchpin of Iraq’s argument fails.’
Rix, Hooper, Stanley Burnton LJJ
[2011] EWCA Civ 1256
England and Wales
At Commercial Court – Servaas Incorporated v Rafidain Bank and Others ComC 14-Dec-2010
The claimant had supplied a factory to Iraq, but remained unpaid. Assets had been frozen in the respondent Iraqi bank, and with the new government, the liquidators were to pay assets to a fund who were, in turn to discharge debts pro rata. The . .
Appeal from – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2022; Ref: scu.448139
(Iraq Sanctions) The court was asked as to the manner in which Security Council Resolutions relating to the arms trade are implemented in the domestic law of the United Kingdom under the United Nations Act 1946.
Held: Laws LJ, rejecting an argument that an Inco Europe amending interpretation in relation to a provision creating a substantive criminal offence should be adopted in that case, nevertheless stated ‘we cannot rule out the application of the principles in the Inco Europe case in relation to a substantive criminal offence’
Thomas LJ, Ryder, Calvert-Smith JJ
[2011] EWCA Crim 2082, [2012] 1 All ER 1108
England and Wales
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2022; Ref: scu.444843
Lord Denning said: ‘a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a legal entity which buys commodities on the London market; or if it has a state department which charters ships on the Baltic Exchange: it thereby enters into the market places of the world: and international comity requires that it should abide by the rules of the market.’
Lord Denning
[1975] 1 WLR 1485
England and Wales
Cited – AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2022; Ref: scu.441562
[2003] ICJ 4, [2003] ICJ Rep 161
England and Wales
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.
Updated: 19 September 2022; Ref: scu.645785
The parties referred their contract disputes to an arbitration in London which was to apply Iraqi law. As to enforcement of the award, the defendant denied that they were situated in London.
Held: The debts were situated in London rather than New York and that SOMO was a separate entity from the state of Iraq and did not contract as its agent. As a result, if the debts under the letters of credit had been owed to SOMO alone, they would not have been immune from execution. However, each letter of credit contained a single joint promise in favour of SOMO and CBI and thus a joint debt in respect of which the court could not make a third party debt order.
The debts, being the property of CBI as the Central Bank, were in any event immune from execution under sections 13(2) and 14(4) of the State Immunity Act 1978. He therefore set aside the interim third party debt orders and the receivership orders. He also granted permission to appeal and ordered a stay of execution.
Field J
[2013] EWHC 4495 (Comm), [2014] 1 Lloyds Rep 432, [2014] 1 All ER (Comm) 942
England and Wales
See Also – Taurus Petroleum Led v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq ComC 18-Nov-2013
. .
Appeal from – Taurus Petroleum Ltd v State Oil Company of The Ministry of Oil, Republic of Iraq CA 28-Jul-2015
The parties had contractual disputes as to letters of credit governed by Iraqi law. The arbitration was in London applying Iraqi law. They now disputed whether the Enforcement of arbitration award was as an award made in London. Each appealed . .
At ComC (1) – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 September 2022; Ref: scu.575329
Field J
[2013] EWHC 3494 (Comm), [2013] CN 1836, [2013] 2 CLC 835
England and Wales
See Also – Taurus Petroleum Ltd v State Oilmarketing Company ComC 18-Nov-2013
The parties referred their contract disputes to an arbitration in London which was to apply Iraqi law. As to enforcement of the award, the defendant denied that they were situated in London.
Held: The debts were situated in London rather than . .
At ComC (2) – Taurus Petroleum Ltd v State Oil Company of The Ministry of Oil, Republic of Iraq CA 28-Jul-2015
The parties had contractual disputes as to letters of credit governed by Iraqi law. The arbitration was in London applying Iraqi law. They now disputed whether the Enforcement of arbitration award was as an award made in London. Each appealed . .
At ComC (2) – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 September 2022; Ref: scu.518026
The wife filed a petition for a dissolution of her marriage to a diplomat attached to the United States embassy. At the time, he was immune, but the petition was allowed to proceed once the husband’s posting came to an end and he left the United Kingdom.
[1979] F 62
Diplomatic Privileges Act 1964
England and Wales
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.
Updated: 16 September 2022; Ref: scu.645787
Admissibility – The applicant brought summary civil proceedings (kort geding) against the Netherlands State before the President of the Regional Court (arrondissementsrechtbank) of The Hague. He sought an order directed against the State for his unconditional release; in the alternative, for him to be returned to the FRY; in the further alternative, for the State to make representations to ‘the so-called Tribunal’ (i.e. the ICTY) and other competent international bodies and institutions for his release; in the still further alternative, for the State to make representations to ‘the alleged Tribunal’ (again, i.e. the ICTY) and other competent international bodies and institutions for his return to the FRY. He argued, essentially, that his transfer to the ICTY was illegal as a matter of the domestic law of the FRY; that the ICTY itself lacked a basis in international law, having been set up by a resolution of the Security Council of the United Nations (to wit, resolution no. 827 of 25 May 1993) and not by a multilateral treaty; that the ICTY was the handmaiden of NATO and therefore not an independent and impartial tribunal in the sense of Article 6 of the Convention; that the actions of the Security Council and the ICTY were discriminatory; and that he was entitled to immunity as a former head of state. In view of these considerations the Netherlands State was acting unlawfully by allowing him to be detained and remain in detention on its territory,
J-P Costa, P
77631/01, [1999] ECHR 194
European Convention on Human Rights 6
Updated: 16 September 2022; Ref: scu.441990
(French Text) Diplomatic immunity is not an immunity from liability. It is a procedural immunity from the jurisdiction of the courts of the receiving state. The receiving state cannot at one and the same time receive a diplomatic agent of a foreign state and subject him to the authority of its own courts in the same way as other persons within its territorial jurisdiction. But the diplomatic agent remains amenable to the jurisdiction of his own country’s courts, and in important respects to the jurisdiction of the courts of the receiving state after his posting has ended. I
2002] ICJ 1, [2002] ICJ Rep 3
England and Wales
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.
Updated: 15 September 2022; Ref: scu.645784
(4th Circuit – United States) The appellant worked for two years as a domestic servant in the home of the respondent diplomats. The appellant brought proceedings claiming damages for breach of the terms of her contract of employment. In response to a claim for diplomatic immunity, her argument was that ‘because ‘commerce’ is simply the exchange of goods and services, . . ‘commercial activity’ necessarily encompasses contracts for goods and services, including employment contracts.’
Held: The commercial activity exception to diplomatic immunity under article 31(1)(c) did not apply: ‘there may appear to be some unfairness to the person against whom the invocation occurs. But it must be remembered that the outcome merely reflects policy choices already made. Policymakers . . have believed that diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, but fosters good will and enhances relations among nations. Thus, they have determined that apparent inequity to a private individual is outweighed by the great injury to the public that would arise from permitting suit against the entity or its agent calling for application of immunity. ‘
(1996) 73F 3d 535, (1996) 107 ILR 452
United States
Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
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.
Updated: 15 September 2022; Ref: scu.542436
Application for registration, recognition and enforcement of a Judgment of the Portuguese Court pursuant to Council Regulation (EC) 2201/2003 and consequential orders for stay of proceedings in the UK on the basis that the Portuguese Court has jurisdiction to determine issues in relation to the child.
Macur DBE J
[2012] EWHC 983 (Fam)
England and Wales
Updated: 15 September 2022; Ref: scu.460529
The republic appealed the striking out of its claims for the return of artefacts which formed part of its national heritage and were alleged to have been unlawfully removed.
Held: The claim was not an attempt to apply a foreign penal law. There were positive reasons of publc policy as to why such claims should not be shut out. A refusal to allow a foreign state to assert title to such antiquities would render impossible similar claims by the UK If Iran could show that it had a title, it should be allowed to enforce that title.
[2007] EWCA Civ 1374, Times 07-Jan-2008
England and Wales
Appeal from – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 September 2022; Ref: scu.263406
The International Court of Justice referred to the maintenance of an apartheid regime as being a flagrant violation of the purposes and principles of the UN Charter,
Article 22(1) of the Covenant of the League of Nations provided for the grant of mandates for the administration of former colonies and territories ‘which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’. The mandate territory was to be administered on the ‘principle that the wellbeing and development of such peoples form a sacred trust of civilisation.’ ‘Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion, the court is bound to take into account the fact that the concepts embodied in article 22 of the Covenant – ‘the strenuous conditions of the modern world’ and ‘the wellbeing and development’ of the peoples concerned – were not static, but were by definition evolutionary, as also, therefore, was the concept of the ‘sacred trust’. The parties to the Covenant must consequently be deemed to have accepted them as such.’
General List No 53, https://www.icj-cij.org/en/case/53
England and Wales
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
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.
Updated: 14 September 2022; Ref: scu.241306
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba might appear to be entitled to plead the state immunity, it should be denied that right on various grounds: that its acts were contrary to international law, or to good faith, or were discriminatory, or penal. On the view which your Lordships take these arguments do not arise, but I would wish to express my agreement with the judge and with Waller LJ as to their invalidity. The whole purpose of the doctrine of state immunity is to prevent such issues being canvassed in the courts of one state as to the acts of another.’
Lord Wilberforce, after reviewing the national and international authorities, held that the section gave statutory effect to the distinction in international law between acts jure imperii and acts jure gestionis. Its application depended on: ‘in considering under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.’
and: ‘It is necessary to start from first principle. The basis upon which one state is considered to be immune from the territorial jurisdiction of the courts of another state is that of ‘par in parem’, which effectively means that the sovereign or governmental acts of one state are not matters upon which the courts of other states will adjudicate.’
Lord Wilberforce
[1983] 1 AC 244
State Immunity Act 1978 3(1)(a)
England and Wales
At QBD – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) QBD 1978
The trading or commercial activities of states are not protected by state immunity. The basic principle of international law is that all states are equal, the rule is ‘par in parem non habet imperium’. . .
Approved – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Appeal from – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .
Cited – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
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 – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
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.
Updated: 14 September 2022; Ref: scu.220685
The court considered the nature of a mirror order.
Thorpe, Rimer, Stanley Burnton LJJ
[2011] EWCA Civ 703
England and Wales
Updated: 13 September 2022; Ref: scu.441052
[2018] EWHC 3429 (Fam)
England and Wales
Updated: 12 September 2022; Ref: scu.631448
The defendant had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant, a French company, was placed in judicial liquidation in France and it was assumed that as a matter of French law, the defendant was discharged from its liability in damages.
Held: Lord Esher MR said that French law was irrelevant because it was ‘not a law of the country to which the contract belongs, or one by which the contracting parties can be taken to have agreed to be bound; it is the law of another country by which they have not agreed to be bound.’
Lord Esher MR, Lindley and Lopes LJJ
(1890) 25 QBD 399, [1890] UKLawRpKQB 117
England and Wales
Approved – Adams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .
Applied – New Zealand Loan and Mercantile Agency Company Limited v Christina Morrison PC 15-Dec-1897
(Victoria) . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2022; Ref: scu.512187
The Court considered whether the principle of universality in insolvency proceedings enabled the court to enforce a judgment in personam which had been given in New York against the defendants in and for the purposes of bankruptcy proceedings in New York, notwithstanding that the defendants had not submitted to the jurisdiction of the New York court.
Held: The principle had that effect:
‘The ordinary rules for enforcing, or more precisely not enforcing, foreign judgments in personam do not apply to bankruptcy proceedings’
‘For the reasons we set out in writing the appeal is allowed; the cross-appeal is dismissed; paragraphs 4 to 6 of the order of Mr Nicholas Strauss QC are set aside; paragraphs 3 and 5 of the judgment of the United States Bankruptcy Court will be enforced; but we are going to give a stay for 28 days to allow them to go off to the Supreme Court and see if they can get permission. Order provides for costs to be paid by the respondent, to pay back some money they paid on costs already.
Ward, Wilson, Henderson LJJ
[2010] EWCA Civ 1047
England and Wales
Appeal from – Rubin and Another v Eurofinance Sa and Others ChD 31-Jul-2009
. .
Order – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others CA 30-Jul-2010
. .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.424932
Nicholas Strauss QC J
[2009] EWHC 2129 (Ch), [2010] 1 All ER (Comm) 81, [2009] BPIR 1478
Trustee Act 1925, Cross-Border Insolvency Regulations 2006
England and Wales
Appeal from – Rubin and Another v Eurofinance Sa and Others CA 20-Jul-2010
The Court considered whether the principle of universality in insolvency proceedings enabled the court to enforce a judgment in personam which had been given in New York against the defendants in and for the purposes of bankruptcy proceedings in New . .
Appeal from – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others CA 30-Jul-2010
. .
At First Instance – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.374033
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of exchange prevailing at the respective dates when the several sums arising by the company to the creditor fell due and payable. Although the substantive debt was a US dollar debt, English procedural law dictated (a) that it must be converted into English pounds for the purposes of converting it into a debt provable in an English liquidation and (b) the date at which each debt should be converted into English currency.
Lord Denning said: ‘if there is one thing clear in our law, it is that the claim must be made in sterling and the judgment given in sterling’
Lord Denning
[1961] AC 1007, [1960] 2 WLR 969, [1960] 2 All ER 332
England and Wales
Appeal from – In re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others CA 31-Jul-2003
The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest . .
Not followed – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.185174
The court considered an application under 51(3)(c) of the 1986 Act to refuse to recognise a foreign decree of divorce.
Held: The appeal was allowed against the non-recognition of a Russian divorce that followed proceedings between Russian parties in which both had taken part. The court emphasised the gravity and undesirability of refusal to recognise a divorce granted by a foreign court of competent jurisdiction, particularly (on the facts of this case) where the foreign state is a member of the Council of Europe (even if not of the EU) and in the situation where the other party has a Part III remedy here.
Thorpe, Etherton LJJ, Baron J
[2011] EWCA Civ 479
England and Wales
Leave – Golubovich v Golubovich CA 3-Mar-2011
. .
Cited – Liaw v Lee (Recognition of Divorce) FD 3-Jun-2015
The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 September 2022; Ref: scu.434841
Lord Justice Males
[2021] EWCA Civ 11
England and Wales
Appeal from – Motorola Solutions, Inc and Others v Hytera Communications Corporation Ltd and Others ComC 24-Apr-2020
Grant of domestic freezing injunction to support US proceedings. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.657122
Jurisdictional Immunities of the State
The Rule of State Immunity: ‘occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as article 2, para 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.’
[2012] ICJ Rep 99, [2012] ICJ 10
England and Wales
Updated: 07 September 2022; Ref: scu.644062
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.
1986 ICJ Rep 12
England and Wales
Cited – Amin v Brown ChD 27-Jul-2005
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 . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.230005
[2004] EWCA Civ 444
England and Wales
Updated: 06 September 2022; Ref: scu.195898
International Convention for the Suppression of the Financing of Terrorism, International Convention on the Elimination of All Forms of Racial Discrimination
England and Wales
Updated: 06 September 2022; Ref: scu.644061
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political persecution. The defendants now appealed from rejection of the defendants’ claim to state immunity and their reliance on the foreign act of state doctrine which, he held, was not engaged.
Held: The defendants’ appeals failed. State immunity is a matter of customary international law acknowledged by common law and statute. It arose from the equality of sovereign states and a need for international comity. The immunity given was personal to the state as to its sovereign actions. It worked only on the direct or indirect impleading of the state, in non-consensual proceedings were or where the proceedings, even though the state was not itself a party, related to its property.
These claims were rather against officials of the UK, not of any foreign state, and no question arose of any relief being sought other than against the domestic defendants. No legal position of no foreign state being directly or indirectly affected by the claims, the pleas of state immunity failed.
135
Lord Sumption said: ‘The act of state doctrine comprises two principles. The first can conveniently be called ‘Crown act of state’ and does not arise in the present cases. It is that in an action based on a tort committed abroad, it is in some circumstances a defence that it was done on the orders or with the subsequent approval of the Crown in the course of its relations with a foreign state. The second, commonly called ‘foreign act of state’, is that the courts will not adjudicate upon the lawfulness or validity of certain sovereign acts of foreign states. For this purpose a sovereign act means the same as it does in the law of state immunity. It is an act done jure imperii, as opposed to a commercial transaction or other act of a private law character. These are distinct principles, although they are based on certain common legal instincts.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes
[2017] UKSC 3, [2017] HRLR 4, [2017] AC 964, [2017] 3 All ER 337, [2017] WLR(D) 51, [2017] 2 WLR 456, UKSC 2014/0264
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
England and Wales
Cited – Yukos Capital Sarl v OJSC Rosneft Oil Company CA 27-Jun-2012
The court was asked to enforce an award of a foreign court, but the claimant objected to admission of evidence as to the procedures underlying the obtaining of the judgment which might go to show unfairness.
Held: International comity and the . .
See Also – Rahmatullah v Secretary of State for Foreign Affairs and Another Admn 29-Jul-2011
The claimant, a Pakistani national, detained by US Armed forces in Bagram in Afghanistan, sought a writ of habeas corpus. He had been first captured by British forces in Iraq in 2004, and transferred to US military under a Memorandum of . .
Cited – United States of America v Dollfus Mieg et Cie SA HL 1952
The Bank of England was holding, in safe custody for the governments of the US, France and the UK, bars of gold which had been wrongly removed by German troops from a French bank and later captured by the allied armies in Germany during the Second . .
Cited – Secretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .
Cited – Nissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Rahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .
See Also – Belhaj and Others v Security Service and Others IPT 18-Nov-2014
. .
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 – Belhaj and Another v Straw and Others QBD 20-Dec-2013
The Claimants sought a declaration of illegality and claim damages arising from what they contend was the participation of the seven Defendants in their unlawful abduction, kidnapping and illicit removal across state borders to Libya in March 2004. . .
Cited – Belhaj and Another v Straw and Others CA 30-Oct-2014
Judiciary 1. In these proceedings the appellants seek a declaration of illegality and damages arising from what they contend was the participation of the respondents in their unlawful abduction, kidnapping and . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – Propend Finance Property Ltd and Others v Sing and Another CA 17-Apr-1997
Diplomatic immunity had not been waived by an Australian policeman acting in breach of a court undertaking re documents. The effect of s14(1) was to give state officials protection ‘under the same cloak’ as the state itself: ‘The protection afforded . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Hatch v Baez 1876
(United States) The plaintiff claimed that he had suffered injuries in the Dominican Republic as a result of acts done by the defendant in his official capacity of President of that Republic. The Court accepted that because the defendant was in New . .
Cited – Underhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .
Cited – Carr v Fracis Times and Co HL 1902
The House considered a claim following seizure of ammunition by British officers in Muscat under the authority of a proclamation of the absolute ruler, the Sultan of Muscat, whose word was law.
Held: The appeal succeeded. To found an action . .
Cited – Oetjen v Central Leather Co 1918
(US Supreme Court) Animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser . .
Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
Cited – Princess Paley Olga v Weisz 1929
English courts will refrain from examining the validity of foreign executive action relating to matters within the territorial jurisdiction of the foreign state. . .
Cited – In re Helbert Wagg and Co Ltd’s Claim ChD 8-Dec-1955
Conflict of Laws – Movables – Assignment – Foreign legislation –
Validity – Foreign exchange legislation – Whether confiscatory –
German Moratorium law of 1933 – Debt payable in London made payable to
Konversionskasse in Reichsmarks – German law . .
Cited – Rahimtoola v Nizam of Hyderabad HL 1957
A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner.
Held: Appeal allowed. The . .
Cited – Oppenheimer v Cattermole (Inspector of Taxes) HL 5-Feb-1975
HL Income tax, Schedule D – Foreign possessions – Double taxation relief – German government pension for past services – Paid to British subject of German origin – Whether German nationality deemed to be retained . .
Cited – Williams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Canada (Justice) v Khadr 23-May-2008
Supreme Court of Canada
Civil procedure – Motion for sealing order – Documents to be adduced as fresh evidence can be filed only if subject to sealing order – Admissibility and use of documents to be determined by panel of Supreme Court . .
Cited – AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
Cited – Sabeh El Leil v France ECHR 29-Jun-2011
Grand Chamber – The applicant alleged that he had been deprived of his right of access to a court as a result of the immunity from jurisdiction upheld by the domestic courts.
This was a claim for unfair dismissal, brought before the French . .
Cited – Dobree And Others v Napier And Another 9-May-1836
A vessel (Lord of the Isles) supplying the revolutionary Don Miguel of Portugal was seized in the Portuguese port of St Martinho by Sir Charles Napier as admiral in the service of the Queen of Portugal lawfully under Portuguese law. The ship was . .
Cited – Charles Duke of Brunswick v The King of Hanover 13-Jan-1844
Discussion of the question whether a sovereign prince was liable to the jurisdiction of the Courts of a foreign country, in which he happens to be resident, and as to the liability to suit of one who unites in himself the characters both of an . .
Cited – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Kurt v Turkey ECHR 25-May-1998
The court referred to ‘the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities’ and to the need to interpret . .
Cited – Moti v Regina 7-Dec-2011
High Court of Australia – Mr Moti claimed that he had been deported by officials of the Solomon Islands Government from the Solomon Islands to Australia, where he was wanted for trial. The deportation occurred after the High Commissioner had issued . .
Cited – Gul (M), Regina v CACD 22-Feb-2012
The defendant appealed against his conviction under the 2006 Act for disseminating terrorist publications. He had uploaded to the internet videos showing attacks ofn coalition forces on soldiers of the coalition. He said that his were not acts . .
Cited – Gul, Regina v SC 23-Oct-2013
Mr Gul appealed against a dismissal of his appeal against his conviction for dissemination of terrorist publications contrary to section 2 of the 2006 Act. The Court was now asked as to the meaning of ‘terrorism’ in section 1 of the Terrorism Act . .
Cited – Khan, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs CA 20-Jan-2014
The claimant’s father had been killed in Pakistan by a missile in a drone strike by the USA. He alleged that the strike had been supported by positional information supplied by the British intelligence agencies, and sought judicial review of the . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Markovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
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 – Jones and Others v The United Kingdom ECHR 14-Jan-2014
. .
Cited – Nabob of The Carnatic v The East India Company 2-Jan-1789
A political treaty, between sovereigns, or parties exercising sovereign authority cannot be the subject of a municipal jurisdiction. . .
Cited – Nabob of The Carnatic v East India Company 28-Jan-1793
The case arose out of the East India Company’s controversial relations with the Nabob at a stage when the courts had not yet learned to identify the East India Company with the British government. The Company had assisted the Nabob, a sovereign . .
Cited – Thomas Cook and James Charles Cook v Sir James Gordon Sprigg PC 1-Aug-1899
Municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law.
(Cape of Good . .
Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – Peer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Cited – Mullen and Another, Regina v CACD 5-May-2000
Mr Mullen, had been deported from Zimbabwe to the United Kingdom as a result of a plan concocted between the United Kingdom and Zimbabwean authorities which involved breaching Zimbabwean extradition law.
Held: The subsequent conviction was set . .
Cited – Princess Paley Olga v Wiesz CA 1929
The Court considered a seizure of property from the plaintiff which had then been adopted by the Russian Government and a later confiscation decree.
Held: The decree was effective to vest the goods in the Russian authorities and the adopted . .
Cited – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Cited – Rex v Earl of Crewe, Ex parte Sekgome CA 2-May-1910
By an Order in Council, dated May 9,1891, made ‘in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in Her Majesty vested,’ the High Commissioner for South Africa was authorized to exercise in the Bechuanaland Protectorate . .
Cited – Blad v Bamfield PC 2-Nov-1674
Peter Blad was holder of a patent of monopoly from the King of Denmark to trade in Iceland, then a Danish possession. Bamfield was an Englishman whose property was seized on the high seas in 1668 by the authority of the Danish Crown and forfeited by . .
Cited – Secretary of State in Council of India v Kamachee Boye Sahaba 1859
Lord Kingsdown said: ‘ . . the transactions of independent States between each other are governed by other laws than those which Municipal Courts administer’. . .
Cited – Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) HL 1977
The court considered a claim that a party was not compelled to give evidence where it might incriminate him: ‘No one is bound to furnish information against himself. It [the common law] says: ‘If a witness claims the protection of the court, on the . .
Cited – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .
Cited – Schuler-Zgraggen v Switzerland (Article 50) ECHR 31-Jan-1995
. .
Cited – AIG Capital Partners Inc and Another v Kazakhstan ComC 20-Oct-2005
Aitkens J said as to the United Nations Convention on Jurisdictional Immunities of States and Their Property that it though not in force, and not ratified by the United Kingdom: ‘its existence and adoption by the UN after the long and careful work . .
Cited – Cudak v Lithuania ECHR 23-Mar-2010
Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in . .
Cited – El-Masri v The Former Yugoslav Republic of Macedonia ECHR 13-Dec-2012
(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated . .
Cited – Al Nashiri v Poland (Chamber Judgment) ECHR 24-Jul-2014
. .
See Also – Al-Waheed v Ministry of Defence SC 17-Jan-2017
‘These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. . .
See Also – Belhaj and Another v Straw and Others QBD 21-Jul-2017
The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings . .
See Also – Belhaj and Another v Director of Public Prosecutions Admn 1-Dec-2017
The claimants alleged that the defendants had been involved in their unlawful rendition in 2004 from Thailand to Libya, in particular now challenging by judicial review the decision not to prosecute certain senior British Officers. . .
See Also – Belhaj and Another v Director of Public Prosecutions and Others (1) Admn 15-Mar-2018
A claim that the DPP erred in her decision not to prosecute for alleged involvement in the unlawful rendition of the Claimants to Libya. . .
See Also – Belhaj and Others v Director of Public Prosecutions and Others (2) Admn 15-Mar-2018
Second judgment on the scope of privilege to which we have both contributed – inadvertent disclosure . .
See Also – Belhaj and Another v Director of Public Prosecutions and Others Admn 3-May-2018
Incorrect disclosure of non-redacted material in closed hearing. . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.573213
The revenue appealed against the confirmation of the grant of double taxation relief to the taxpayer company. The Court was asked whether the UK company was entitled under article 23(2)(a) to a credit, to set against UK tax on its profits, in respect of the US tax which had been paid by its US parent on the same profits. The Commissioners submitted that domestic law did not apply to ‘source’ for the purpose of article 23, because article 23 contained its own comprehensive clause for defining ‘source’: it was a free-standing treaty concept which applied for all the purposes of that article. Held; The court accepted the submission.
Arden LJ said that ‘article 23(3) contains its own rule as to how source [is] to be determined, save where tax has been imposed on the basis of citizenship’.
Arden, Pitchford, Tomlinson LJJ
[2011] EWCA Civ 304, [2012] Bus LR 796, [2011] STI 1208, 13 ITL Rep 747, [2012] 1 WLR 1630, [2011] STC 717, [2011] BTC 242
England and Wales
Appeal from – Bayfine UK v Revenue and Customs ChD 23-Mar-2010
. .
Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.430825
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both.’
This doctrine derives from the maxim par in parem non habet imperium, but also from ideas as comity or reciprocity, the practicability of enforcement, or the respect for the dignity of other states.
Lord Wright said that proceedings in rem against property are a form of direct impleader.
‘The rule [of immunity] is not limited to ownership. It applies to cases where what the Government has is a lesser interest, which may be not merely not proprietary but not even possessory. Thus it has been applied to vessels requisitioned by a Government, where in consequence of the requisition, the vessel, whether or not it is in the possession of the foreign state, is subject to its direction and employed under its orders.’
Lord Atkin, Lord Wright
[1938] AC 485, [1938] 1 All ER 719
England and Wales
Cited – The Broadmayne CA 1916
Pickford LJ rationalised the relation between a state and the crew of a requisitioned vessel as being one of forced hiring.
Bankes LJ said: ‘The position is, I think, quite clearly indicated in the passage from Clerke [Praxis Curiae . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Cited – United States of America v Dollfus Mieg et Cie SA HL 1952
The Bank of England was holding, in safe custody for the governments of the US, France and the UK, bars of gold which had been wrongly removed by German troops from a French bank and later captured by the allied armies in Germany during the Second . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.242887
‘In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effect of the performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative in international negotiations and intergovernmental meetings . . . In the performance of these functions, he or she is frequently required to travel internationally and thus must be in a position freely to do so whenever the need should arise.’ and
‘In civil matters we already see the beginnings of a very broad form of extraterritorial jurisdiction. Under the Alien Tort Claims Act, the United States, basing itself on a law of 1789, has asserted a jurisdiction both over human rights violations and over major violations of international law, perpetrated by non-nationals overseas. Such jurisdiction, with the possibility of ordering payment of damages, has been exercised with respect to torture committed in a variety of countries (Paraguay, Chile, Argentina, Guatemala), and with respect to other major human rights violations in yet other countries. While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.’
[2002] ICJ Rep 3, [2002] ICJ 1
England and Wales
Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.235346
The court explained the consequences of the breach of international law which it found: ‘Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.’
9 July 2004, General List No 131
England and Wales
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.235916
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 1978. It is highly unlikely that Parliament intended to require United Kingdom courts to act contrary to international law unless the clear language of the statute compels such a conclusion.
Lord Diplock said: ‘The Act, as its short title indicates, deals primarily with relations between sovereign states, though its provisions are capable of extension by Order in Council to relations between the United Kingdom and the constituent territories of federal states. Accordingly its provisions fall to be construed against the background of those principles of public international law as are generally recognised by the family of nations.’ and ‘The State Immunity Act 1978, whose long title states as its first purpose to make new provision with respect to proceedings in the United Kingdom by or against other states, purports in Part I to deal comprehensively with the jurisdiction of courts of law in the United Kingdom both (1) to adjudicate upon claims against foreign states (‘adjudicative jurisdiction’); and (2) to enforce by legal process (‘enforcement jurisdiction’) judgments pronounced and orders made in the exercise of their adjudicative jurisdiction . . the Act . . draws a clear distinction between the adjudicative jurisdiction and the enforcement jurisdiction of courts of law in the United Kingdom. Sections 2 to 11 deal with adjudicative jurisdiction. Sections 12 to 14 deal with procedure and of these, sections 13(2) to (6) and 14(3) and (4) deal in particular with enforcement jurisdiction.’
In the case of a bank account, the onus is on the judgment creditor to show that the use or intended use of the account is, apart from minimal exceptions, for commercial purposes within the meaning of the Act.
‘The crucial question of construction for your Lordships is whether a debt which has these legal characteristics falls within the description contained in section 13(4) of ‘property which is for the time being in use or intended for use for commercial purposes.’ To speak of a debt as ‘being used or intended for use’ for any purposes by the creditor to whom the debt is owed involves employing ordinary English words in what is not their natural sense, even if the phrase ‘commercial purposes’ is given the ordinary meaning of jure gestionis in contrast to jure imperii that is generally attributed to it in the context of rights to sovereign immunity in public international law; though it might be permissible to apply the phrase intelligibly to the credit balance in a bank account that was earmarked by the state for exclusive use for transactions into which it entered jure gestionis. What is clear beyond all question is that if the expression ‘commercial purposes’ in section 13(4) bore what would be its ordinary and natural meaning in the context in which it there appears, a debt representing the balance standing to the credit of a diplomatic mission in a current bank account used for meeting the day-to-day expenses of running the mission would fall outside the subsection.
‘Commercial purposes,’ however, is given by section 17(1) the extended meaning which takes one back to the comprehensive definition of ‘commercial transaction’ in section 3(3). Paragraph (a) of this tripartite definition refers to any contract for the supply of goods or services, without making any exception for contracts in either of these two classes that are entered into for purposes of enabling a foreign state to do things in the exercise of its sovereign authority either in the United Kingdom or elsewhere. This is to be contrasted with the other paragraph of the definition that is relevant to the instant case, paragraph (c), which on the face of it would be comprehensive enough to include all transactions into which a state might enter, were it not that it does specifically preserve immunity from adjudicative jurisdiction for transactions or activities into which a state enters or in which it engages in the exercise of sovereign authority, other than those transactions that are specifically referred to either in paragraph (a) or in paragraph (b), with the latter of which the instant appeal is not concerned . . My Lords, the decisive question for your Lordships is whether in the context of the other provisions of the Act to which I have referred, and against the background of its subject matter, public international law, the words ‘property which is for the time being in use or intended for use for commercial purposes,’ appearing as an exception to a general immunity to the enforcement jurisdiction of United Kingdom courts accorded by section 13(2) to the property of a foreign state, are apt to describe the debt represented by the balance standing to the credit of a current account kept with a commercial banker for the purpose of meeting the expenditure incurred in the day-to-day running of the diplomatic mission of a foreign state.
Such expenditure will, no doubt, include some moneys due under contracts for the supply of goods or services to the mission, to meet which the mission will draw upon its current bank account; but the account will also be drawn upon to meet many other items of expenditure which fall outside even the extended definition of ‘commercial purposes’ for which section 17(1) and section 3(3) provide. The debt owed by the bank to the foreign sovereign state and represented by the credit balance in the current account kept by the diplomatic mission of that state as a possible subject matter of the enforcement jurisdiction of the court is, however, one and indivisible; it is not susceptible of anticipatory dissection into the various uses to which moneys drawn upon it might have been put in the future if it had not been subjected to attachment by garnishee proceedings. Unless it can be shown by the judgment creditor who is seeking to attach the credit balance by garnishee proceedings that the bank account was earmarked by the foreign state solely (save for de minimis exceptions) for being drawn upon to settle liabilities incurred in commercial transactions, as for example by issuing documentary credits in payment of the price of goods sold to the state, it cannot, in my view, be sensibly brought within the crucial words of the exception for which section 13(4) provides.’
Lord Diplock, Lords Fraser of Tullybelton, Keith of Kinkel, Roskill and Templeman
[1984] AC 580, [1984] 2 WLR 750, [1984] 2 Lloyds Rep 24, [1984] 2 All ER 6
England and Wales
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 – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
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 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 – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Cited – AIC Ltd v Federal Government of Nigeria QBD 13-Jun-2003
The court was asked: ‘i. whether a judgment against a State may be registered under section 9 of the Administration of Justice Act 1920 and enforced in this country; and
ii. whether moneys in a bank account of a central bank that is a separate . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.220687
(Ontario Court of Appeal) Florida state officials were sued for alleged conspiracy maliciously to prosecute and to kidnap and detain the claimant, in order to blackmail him into giving up a civil suit.
Held: It is the character of the act, rather than its purpose, that determines a claim for immunity in respect of the acts of a state official, but the purpose may throw some light on the nature of what is done and that a contextual approach is appropriate. If immunity was conferred on the government department of a foreign state but denied to ‘functionaries, who in the course of their duties performed the acts, [that] would render the State Immunity Act ineffective’, since the claimant would only have to sue the functionary and ‘In the event that the plaintiff recovered judgment, the foreign state would have to respond to it by indemnifying its functionaries, thus through this indirect route, losing the immunity conferred on it by the Act. Counsel submitted that when functionaries are acting within the scope of their official duties, as in the present case, they come within the definition of ‘foreign state’. The claimants submitted that, although the defendants were acting within the scope of their authority so as to make the State vicariously liable, their acts were so egregious that they could not shelter under the State’s immunity. The Court said to this: ‘ . . .. the use of adjectives cannot deprive them of their status as functionaries of the foreign sovereign. The illegal and malicious nature of the acts alleged do not of themselves move the actions outside the scope of the official duties of the responding defendants. Further . . the appellants’ statement of claim contains no express allegation that any of the respondents were acting outside of their official capacities.’
(1993) ILR 446
Canada
Applied – Herbage v Meese 1990
(US) A claim was brought against British police officers and prosecuting counsel for knowingly and falsely stating, in the context of extradition proceedings against the claimant, that the United States had made a valid ‘provisional request’ for his . .
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) QBD 1978
The trading or commercial activities of states are not protected by state immunity. The basic principle of international law is that all states are equal, the rule is ‘par in parem non habet imperium’. . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.219450
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Held: The key questions are those of ‘governmental control’ and ‘governmental functions’ and that these are to be determined as a matter of English law, although the English courts may have regard to the position under the law where the body is incorporated and account can be taken of the view of the government concerned.
International law was incorporated into domestic law unless it was in conflict with statutory provision. This enabled domestic law to respond to changes in international law rather than it being bound by the interpretation of international law upon a particular point when it was first decided, if international law had later evolved. Domestic law could evolve as the incorporated international law evolved.
Lord Denning MR said: ‘Seeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law.’ and ‘we should give effect to those changes and not be bound by any idea of stare decisis in international law’ and ‘Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature.’
Lord Denning MR said that it was necessary to look to all the evidence to see whether the organisation in question was under government control and exercised governmental functions in order to determine whether it was part of the State.
Shaw LJ stated that whether a particular organisation is to be accorded the status of a department of government or not must depend upon its constitution, its powers and duties and its activities. There could be no intermediate hybrid status occupied by the bank where it was regarded as a government department for certain purposes and as an ordinary commercial or financial institution for different purposes.
Shaw LJ, Denning MR, Oliver LJ
[1977] 1 QB 529, [1976] 3 All ER 437, [1976] 1 WLR 868
England and Wales
Cited – In re Trepca Mines (No 2) CA 1962
Champerty: Lord Denning MR said: ‘The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the . .
Cited – Perch, Dennie and Commissiong v The Attorney General of Trinidad and Tobago PC 20-Feb-2003
PC (Trinidad and Tobago) The postal system had been transferred to a company. Employees complained that they had been public servants and had lost privileges associated with that employment, and provisions of the . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
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 – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Kensington International Ltd v Republic of the Congo; Glencore Energy UK Limited, Sphynx UK Limited, Sphynx (BDA) Limited, Africa Oil and Gas Corporation, Cotrade SA (Third Parties) ComC 28-Nov-2005
The claimant had taken an assignment of debts owed by the defendant, and obtained judgment in US$121m. They sought to enforce the judgment and obtained third party debt orders against the parties listed.
Held: Officers in the third party . .
Approved – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Cited – AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
Cited – Morris and Another v London Borough of Southwark QBD 5-Feb-2010
The residential tenant claimant sought damages from her council for failure to repair her flat. The counciil now objected to being asked to pay her costs, saying that the agreement with her solicitors was champertous, being a Conditional Fee . .
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – Ali Hussein v Secretary of State for Defence Admn 1-Feb-2013
The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.186583
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: Rules granting the State immunities, did not infringe the applicants’ right to a fair trial under article 6. In each case the applicant sought to pursue an action against a government, and the courts had accepted pleas of state immunity. Sovereign immunity is a concept of international law, under which one state was not subject to the jurisdiction of another.
Held: The Convention should, so far as possible, be interpreted in harmony with other rules of international law. ‘The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.’ The law against torture has attained the state of jus cogens. In the Soering judgment: ‘it was emphasised, however, that in so far as any liability under the Convention might be incurred in such circumstances it would be incurred by the expelling Contracting State by reason of its having taken action which had as a direct consequence the exposure of an individual to proscribed ill-treatment.’
The claimant Al-Adsani, said that he had been tortured in Kuwait during the war against Iraq. He complained that the UK courts had given him no remedy.
The claimant Fogarty had applied unsuccessfully for posts at the US Embassy in London. She issued proceedings claiming that she was the victim of sex discrimination. The US Government claimed state immunity under section 16(1)(a) of the State Immunity Act 1978. She contended that this constituted a violation of article 6(1) of the ECHR taken together with article 14.
Held: Her claim was rejected. The article 6(1) right of access to court is not absolute. The court considered whether the limitation of the right by state immunity pursued a legitimate aim, and held that the grant of sovereign immunity to a state in civil proceedings pursues the legitimate aim ‘of complying with international law to promote comity and good relations between States through respect of another State’s sovereignty’. Compliance with a state’s international law obligations is conclusive on the issue of proportionality.
Wildhaber, Palm, Rozakis, Ferrari Bravo, Jorundsson, Caflisch, Loucaides, Cabral Barreto, Jungwiert, N Bratza, Zupancic, Vajic, Pellonpaa, Tsatsa-Nikolovska, Levits, Kovler and Kearns JJ
Times 26-Nov-2001, 37112/97, 35763/97, 31253/96, 5763/97, [2001] 34 EHRR 302, [2001] ECHR 752, [2001] ECHR 753, [2001] ECHR 754, (2002) 34 EHRR 11, 35763/97, [2001] ECHR 761, [2001] ECHR 762, [2001] ECHR 763, (2001) 34 EHRR 273, 12 BHRC 88, (2002) 34 EHRR 12
Worldlii, Worldlii, Worldlii, Bailii, Bailii, Bailii
European Convention on Human Rights Art 6, State Immunity Act 1978
Human Rights
Appeal from – 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 – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Mohamed Moneim Al-Fayed for Judicial Review of A Decision of the Lord Advocate To Refuse To Instruct A Public Inquiry Into the Death of Emad Al-Fayed OHCS 12-Mar-2004
The claimant sought judicial review of the minister’s decision not to order a judicial public investigation of the death of his son in a car crash in Paris.
Held: The primary obligation to undertake an enquiry fell upon France. The obligation . .
Appealed to – 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 – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
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 – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.166855
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
Held: A head of state’s immunity from prosecution extends only to official acts performed in exercise of his state functions. Acts of torture and taking of hostages cannot be part of that head of state function despite being undertaken with the state authority. ‘We apply customary international law as part of the common law, and we give effect to our international obligations so far as they are incorporated in our statute law; but we are not an international court. For an English court to investigate and pronounce on the validity of the amnesty in Chile would be to assert jurisdiction over the internal affairs of that state at the very time when the Supreme Court in Chile is itself performing the same task. In my view this is a case in which, even if there were no valid claim to sovereign immunity, as I think there is, we should exercise judicial restraint by declining jurisdiction.’
Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann
Times 26-Nov-1998, [1998] UKHL 41, [1998] 3 WLR 1456, [2000] 1 AC 61, [1998] 4 All ER 897
Extradition Act 1989 8(1), State Immunity Act 1978, Criminal Justice Act 1988 134, Taking of Hostages Act 1982
England and Wales
Appealed from – Augusto Pinochet Ugarte and In the Matter of an Application for Leave To Move for Judicial Review Regina v Evans (Metropolitan Stipendiary Magistrate) Admn 28-Oct-1998
A provisional warrant had been issued by a magistrate for the arrest of the former president of Chile when visting London. The arrest had been in response to an extradition request from a judge in Spain and related to allegations of criminal acts by . .
Cited – Duke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Hatch v Baez 1876
(United States) The plaintiff claimed that he had suffered injuries in the Dominican Republic as a result of acts done by the defendant in his official capacity of President of that Republic. The Court accepted that because the defendant was in New . .
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
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 – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.135004
The trading or commercial activities of states are not protected by state immunity. The basic principle of international law is that all states are equal, the rule is ‘par in parem non habet imperium’.
[1978] QB 500
England and Wales
Cited – BP Exploration Operating Co Ltd v Chevron Transport (Scotland) HL 18-Oct-2001
A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was . .
Cited – Jaffe v Miller 1993
(Ontario Court of Appeal) Florida state officials were sued for alleged conspiracy maliciously to prosecute and to kidnap and detain the claimant, in order to blackmail him into giving up a civil suit.
Held: It is the character of the act, . .
At QBD – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Appeal from – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.183209
Thorpe, Elias LJJ
[2011] EWCA Civ 272, [2011] 2 FLR 515, [2011] 2 FCR 177, [2011] Fam Law 584
Hague Convention on the Civil Aspects of International Child Abduction 1980
England and Wales
At ECJ – Mercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.430645
‘The scheme of both the ICSID Convention and the bilateral investment treaties is that in this circumstance, the foreign investor acquires rights under the Convention and Treaty, including in particular the standing to initiate international arbitration.’
ARB/03/10
England and Wales
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.230257
(Spanish Text) Diplomatic protection ‘cannot be considered the general rule in the system of international law presently governing the matter, but as a residual mechanism available when the affected individual has no direct channel in its own right.’
ARB/03/2
England and Wales
Cited – In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 September 2022; Ref: scu.230255
The appellant’s conviction for criminal damage to a fence at the Atomic Weapons Establishment at Aldermaston was upheld by the Crown Court; and she appealed by way of case stated to the Divisional Court, maintaining that she had acted in order to halt the production of Trident nuclear warheads at Aldermaston. The threat or use of nuclear weapons was contrary to customary international law as reflected in the Advisory Opinion of the International Court of Justice in the Case Concerning the Legality of the Threat or Use of Nuclear Weapons (1996) 110 ILR 161.
Held: No clear rule was established. Had one been found: ‘It is agreed that a rule of international customary law, if it is sufficiently agreed in international law to be such, is translated automatically into English domestic law. The question however is how it should be characterised once it arrives here? Mr Mercer contended, after some hesitation, that the rule that he had formulated was in English law a rule of substantive criminal law, making conduct by the Crown or British Government in contravention of it a criminal act. That is a very striking submission in view of the context of the rule in its terms. I say nothing in passing as to the susceptibility of the Crown to criminal process. It is also in my view impossible to reconcile that contention with the debate Pinochet No 3 which concluded, illuminatingly subject to the specific dissent on this point by Lord Millet, that although state torture had long been an international crime in the highest sense . . . and therefore a crime universally in whatever territory it occurred, it was only with the passing of section 134 of the Criminal Justice Act 1998 that the English Criminal Courts acquired jurisdiction over ‘international’, that is to say extra-territorial, torture. . . . the unlawfulness of the United Kingdom Governments conduct that is established in English Law by the transformation of the rule of International Law is unlawfulness of a more elusive nature than is to be found in the substantive criminal law. What exactly that nature is was never satisfactorily explained to us, despite the courts efforts to seek elucidation.’
Buxton LJ
[2000] EWHC QB 61, (2000) ILR 499
England and Wales
Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.135705
Application for third party debt order.
Arnold J
[2010] EWHC 3287 (Ch)
England and Wales
See Also – Servaas Incorporated v Rafidain Bank and Others ComC 14-Dec-2010
The claimant had supplied a factory to Iraq, but remained unpaid. Assets had been frozen in the respondent Iraqi bank, and with the new government, the liquidators were to pay assets to a fund who were, in turn to discharge debts pro rata. The . .
At Administrative Court – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 August 2022; Ref: scu.427407
The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the jurisdiction.
Held: The English courts had jurisdiction in this issue. ‘[T]he correct approach for the purposes of identifying the governing law is to look at how the contract was intended by its terms to operate at the time it was made, rather than to look at what in fact occurred. ‘ ‘The presumption contained in Article 4(2) is a blanket provision which falls to be applied across the entire field of contract law. It assumes the ability to identify a single party charged with the (single) performance characteristic of the contract. A letter of credit as such is not susceptible of such treatment. It is the source of a number of autonomous bilateral contracts arising successively between the parties and/or banks involved, each of which, considered separately, has a separate characteristic performance and therefore potentially a different governing law, albeit that a conclusion as to the law governing one contract may be the same in respect of another. Thus it is misleading to speak of the governing law in respect of a letter of credit. It is desirable but not essential that each of the contractual relationships arising in the course of the transaction have the same governing law. ‘
Potter, Buxton, Hooper LJJ
[2005] EWCA Civ 422, Times 18-May-2005, [2007] 2 Lloyd’s Rep 72
Rome Convention on the Law Applicable to Contractual Obligations 4, Contracts (Applicable Law) Act 1990
England and Wales
Cited – Bank of Baroda v Vysya Bank Limited ChD 1994
An Indian buyer had agreed to purchase a consignment of Latvian steel through its London office. The buyer instructed Vysya to issue a credit in favour of the seller beneficiary. The credit was confirmed by the Bank of Baroda’s London office. The . .
Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Cited – Offshore International SA v Banco Central SA ChD 1977
A standby letter of credit was issued by a Spanish bank and advised (but not confirmed) by a New York bank payable in New York.
Held: The governing law was the law of New York, as the place where the letter of credit was opened, the documents . .
Appeal from – Marconi Communications International Ltd v Pt Pan Indonesia Bank Ltd Tbk ComC 4-Feb-2004
Marconi claimed damages for the defendant’s alleged breach of contract in respect of the latter’s failure to honour its obligations as a confirmer of a Letter of Credit. Marconi alleged that Panin Bank wrongfully failed to accept drafts properly . .
Cited – Bank Melli Iran v Barclays Bank Ltd 1951
. .
Cited – Power Curber International Ltd v The National Bank of Kuwait CA 1981
The advising bank on a letter of credit was situated in Florida. The place where the credit was payable was North Carolina, and the place where the issuing bank had its place of business was Kuwait.
Held: (Waterhouse J dissenting) The contract . .
Cited – Land Rover Exports Limited v Samcrete Egypt Engineers and Contractors S A E CA 21-Dec-2001
The defendant appealed an order refusing a stay of the proceedings on the grounds of forum non conveniens. The contract of guarantee contained no choice of law clause, but the contract under which it was made set English law as the jurisdiction. The . .
Cited – Caledonia Subsea Limited v Micoperi Srl IHCS 12-Jul-2002
The court considered the proper application of Article 4 of the Convention. The Lord President expressed agreement with the position as stated in Samcrete: ‘I consider that the presumption under para 2 should not be disregarded unless the outcome of . .
Cited – Bank of Credit and Commers Hong Kong Ltd v Sonali Bank QBD 20-Oct-1994
There was no basis for a forum switch to Bangladesh of an action as of right under UK law. Under a Letter of Credit it is desirable that the same system of law should govern the co-existing contracts between (a) the issuing bank and the beneficiary, . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2022; Ref: scu.224500
Area Of Freedom, Security And Justice – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation (EC) No 2201/2003 – Lis pendens – Action on the merits relating to custody of a child and application for provisional measures relating to the right of custody of the same child
C-296/10, [2010] EUECJ C-296/10, ECLI:EU:C:2010:665, [2011] Fam 312, [2011] 3 WLR 1040, [2011] ILPr 14
European
See Also – Purrucker v Valles Perez ECJ 20-May-2010
EU (Opinion) Area Of Freedom, Security And Justice – Recognition and enforcement of judgments in matters of parental responsibility Provisional measures Custody. . .
See Also – Purrucker v Valles Perez (No 1) ECJ 15-Jul-2010
ECJ (Judgment) Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 August 2022; Ref: scu.426022
An English court will not accede to a request for information from third parties here in circumstances in which an English court would not ask.
Times 29-Jan-1998
England and Wales
Updated: 24 August 2022; Ref: scu.80332
The 17 year old daughter applied to be joined in proceedings brought by her father for the return to Australia of her 11 year old brother.
Held: She was to be joined as a pert
Baker J
[2009] EWHC 3288 (Fam)
Child Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction 1980
Updated: 22 August 2022; Ref: scu.421349
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The appeal was allowed, and the decree of the Russian court accepted. Thorpe LJ said: ‘where the applicant’s reliance is on subsection 51 (3)(c) the judge’s true task is to conclude whether ‘recognition of the divorce . . would be manifestly contrary to public policy.’ In reaching that conclusion, the judge is not exercising a discretion but forming a proportionate judgment, by which I mean a judgment which gives proper weight to all relevant factors and circumstances.
If a judge reaches the positive conclusion that recognition would be manifestly contrary to public policy, refusal of recognition must follow. It would be quite unrealistic to suggest that the positive conclusion only leads him into a second stage discretionary judgment as to whether or not to refuse recognition.’ As to the Russian Court: ‘the court regarded itself as having a straightforward jurisdiction to dissolve a marriage between two Russian citizens and, absent any treaty with the United Kingdom in this field, was not deterred by the London orders. To refuse recognition of the Moscow decree would disregard our obligation to respect the function of that court.’
Lord Neuberger MR, Thorpe, Etherton LJJ
[2010] EWCA Civ 831
England and Wales
Cited – Hemain v Hemain 1988
The court confirmed its the power to grant a temporary injunction restraining the party from pursuing proceedings in a foreign jurisdiction to prevent that party from obtaining unfair advantage. The injunction would typically preserve the status quo . .
Cited – A v L FD 11-Mar-2010
Sir Mark Potter considered the validity of an Egyptian decree obtained in breach of a restraining injunction upon which the court had relied to preserve the status of marriage.
Held: Recognition was refused on the facts.
Sir Mark Potter P . .
Cited – Gray (orse Formosa) v Formosa CA 1963
Lord Denning MR said: ‘Suffice it to say that I am content to decide this case on the simple basis that the courts of this country are not compelled to recognise the decree of the court of another country when it offends against our ideas of . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Joyce v Joyce and O’Hare FD 1979
The Wife asked the court not to recognise a foreign decree of divorce, saying that it would deprive her of substantial fairness in ancillary relief.
Held: Lane J said: ‘If the courts of this country were empowered to grant ancillary relief on . .
Cited – Chaudhary v Chaudhary 1985
The Pakistani husband pronounced bare Talaq in Sharia form before witnesses in Kashmir, although administered by Pakistan a territory to which the Muslim Family Ordinance 1961 did not apply. Recognition of the Talaq divorce had been refused by Wood . .
Cited – National Navigation Co v Endesa Generacion Sa (The Wadi Sudr) CA 17-Dec-2009
The court was asked whether a judgment of a fellow member state of the European Union ruling against a stay of proceedings on the basis that an arbitration clause was not incorporated in the contract can be relied on as creating an issue estoppel so . .
Cited – Krombach v Bamberski ECFI 30-Mar-2000
Normally a court within the European community could not refuse to enforce a judgment of another members state. It could do so however where the judgment had been obtained by virtue of a procedure which denied the right of a defendant to appear . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.420972
The court gave its reasons for ordering the child at issue to be returned to the UK from Israel.
Munby LJ
[2011] 1 FLR 97, [2010] Fam Law 1072, [2010] EWHC 1579 (Fam)
England and Wales
Updated: 21 August 2022; Ref: scu.420702
Ships collided at sea. The negligent crew were aboard the British ship. A crew member on the Norwegian ship died in the collision, and his family sued here.
Held: The family had a right of action against the defendant owners of the British ship. The existence of a cause of action in favour of dependants of a person negligently killed was regarded as a universal principle which should be treated as part of the international law maritime.
Kennedy and Phillimore LJJ
[1901] 2 KB 606, (1901) 70 LJKB 788, (1901) 85 LT 118, (1901) 49 WR 630, (1901) 9 Asp MLC 223
Fatal Accidents Act 1846, Fatal Accidents Act 1864
England and Wales
Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Applied – The Esso Malaysia 1974
A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.460862
[2006] EWCA Civ 146
England and Wales
Updated: 20 August 2022; Ref: scu.238779
The claimant appealed against his conviction in New South Wales for bigamy. He had married originally in New South Wales, but then a second time in Missouri in the US.
Held: The court in New South Wales did not have jurisdiction. The crime alleged occurred on the second marriage which was not within the jurisdiction of the NSW court.
[1891] UKPC 31, [1891] AC 455
Australia
Updated: 19 August 2022; Ref: scu.417743
The court allowed a third category of case (after penal and revenue) of provisions of foreign law where an English court would decline to enforce a provision: ‘that the fact that the right, statutory or otherwise, is penal in nature will not deprive a person, who asserts a personal claim depending thereon, from having recourse to the courts of this country; on the other hand, by whatever description it may be known, if the purpose of the action is the enforcement of a sanction, power or right at the instance of the state in its sovereign capacity, it will not be entertained. ‘
[1989] QB 255
England and Wales
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2022; Ref: scu.245570
The parties contracte for works relating to a power plant. The applicable law was Khazak, but the agreement provided that any dispute between the parties was to be settled by arbitration in London. The claimant now sought an anti-suit injunction to prevent the respondent, effectively the Khazak government from pursuing a dispute in the Khazak courts. The respondent replied that since no arbitration was planned, there was no jurisdiction to grant such an order.
Held: The court had such a jurisdiction, and the application to dismiss the request was rejected, though the injunction itself was restricted.
Burton J
[2010] EWHC 772 (Comm), [2010] 2 Lloyd’s Rep 493
England and Wales
Appeal from – AES UST-Kamenogorsk Hydropower Plant Llp v UST-Kamenogorsk Hydropower Plant Jsc CA 27-May-2011
The parties disputed the right to prevent a foreign court action where the agreement required arbitration in London . .
At first instance – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2022; Ref: scu.408674
Collins J
[2008] EWHC 1511 (Admin)
Income and Corporation Taxes Act 1988 232(3)
England and Wales
Updated: 15 August 2022; Ref: scu.270621
The court considered a child who was a German national. He was taken by his mother out of England where they had been living and where they had their habitual residence. The mother was sole custodian of the child. On the application of the father the child was made a ward of court and the father applied for a declaration under the Hague Convention that the retention by the mother was wrongful.
Held: The court concluded that the English wardship court had jurisdiction over an alien child provided England or England and Wales is the habitual residence of the child.
Eastham J
[1993] 1 FLR 979
England and Wales
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.181964
The claimant, based in Cypress, appealed against refusal of an anti-suit injunction. It had contracted with the state-owned Tunisian company defendant under a contract applying English law, and providing for arbitration of disputes. The defendant had wanted to proceed for a declaration in the Tunisian courts that the arbitration clause was void or inapplicable.
Held: The appeal succeeded. The contract included an English law clause and an English arbitration clause. Where there was a valid English arbitration agreement, it was repudiatory conduct for one of the parties to ask a foreign court to declare that there was no such agreement.
In the course of the judgment, Mummery LJ deplored the huge excess of papers filed in the appeal. The case was as to the application of standard contract rules for which no more than 10 pages would have been adequate. Instead the court received 15 lever arch files of papers nearly all of which had not been referred to or used in any way.
Lord Justice Mummery, Lord Justice Toulson and Lord Justice Patten
[2010] EWCA Civ 66
England and Wales
Appeal from – Midgulf International Ltd v Groupe Chimiche Tunisien ComC 13-Jul-2009
The claimant, based in Cypress sought an anti-suit injunction. The defendant a state-owned Tunisian company intended to request a Tunisian court to determine that the contract had no valid arbitration clause. The contract provided that it was to be . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 August 2022; Ref: scu.396714
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
Held: The actual threat to the arrangements for disclosure of secret materials between the US and UK might be affected but would not be damaged substantially damaged by disclosure which has already been given made in proceedings in the US.
Lord Judge CJ said: ‘The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law.’ and ‘In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself.’
Lord Judge, LCJ, Lord Neuberger of Abbotsbury, Master of the Rolls and Sir Anthony May, President of the Queens Bench Division
[2010] EWCA Civ 65, [2011] QB 218
England and Wales
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See Also – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 August 2022; Ref: scu.396715
[2006] EWCA Civ 158
England and Wales
Updated: 13 August 2022; Ref: scu.238787
ECJ (Area Of Freedom, Security and Justice) Judicial cooperation in civil matters Matrimonial matters and matters of parental responsibility Regulation (EC) No 2201/2003 Provisional measures concerning custody Decision enforceable in a Member State Wrongful removal of the child Other Member State Other court Custody of the child granted to the other parent Jurisdiction Urgent preliminary ruling procedure.
‘Since article 20(1) of Regulation No 2201/2003 authorises a court which does not have jurisdiction as to the substance to take, exceptionally, a provisional measure concerning parental responsibility, it must be considered that the concept of urgency in that provision relates both to the situation of the child and to the impossibility in practice of bringing the application concerning parental responsibility before the court with jurisdiction as to the substance.’
K. Lenaerts, P
[2009] ECR I-12193, [2009] EUECJ C-403/09, [2010] 1 Fam 104, ECLI:EU:C:2009:810, [2010] 3 WLR 1098,, [2010] Fam 104
European
Cited – In re J (A Child) SC 25-Nov-2015
The court considered for the first time the scope of the jurisdiction conferred by article 11 of the 1996 Convention ‘in all cases of urgency’ upon the Contracting State where a child is present but not habitually resident. F had obtained an order . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2022; Ref: scu.384491
The deceased had died in an accident whilst filming in Spain for the defendants. The plaintiff personal representatives sought damages here, while the defendants denied that the court had jurisdiction under the 1968 Convention, and said that the death actually occurred as a consequence of the negligence of his medical treatment in Spain.
Phillips J
[1994] EWHC QB 1, [1996] 1 WLR 920, [1994] ILPr 731, [1994] 3 All ER 42
Brussels Convention on Civil Jurisdiction and Judgments 1968, Civil Liability (Contribution) Act 1978 1, Civil Jurisdiction and Judgments Act 1982
Cited – Haqen v Zeehaqhe ECJ 1990
ECJ ‘Article 6(2) makes provision for a special jurisdiction, which the Plaintiff may choose because of the existence, in clearly defined situations, of a particularly close connecting factor between a dispute . .
Cited – Somafer Sa v Saar-Ferngas Ag ECJ 22-Nov-1978
ECJ 1. The Convention of 27 September 1968 must be interpreted having regard both to its principles and objectives and to its relationship with the treaty. The question whether the words and concepts used in the . .
Cited – Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2022; Ref: scu.383805
Stewart J
[2019] EWHC 2073 (QB)
England and Wales
See Also – Heiser, Estate of and Others v The Islamic Republic of Iran and Another QBD 31-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2022; Ref: scu.641722
Mr Justice Stewart
[2019] EWHC 2074 (QB)
England and Wales
See Also – Michael Heiser, Estate of and Others v The Islamic Republic of Iran and Another QBD 31-Jul-2019
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2022; Ref: scu.641721
Lord Sumner suggested that in the absence of a clear statement of the position from the Government, the court might be entitled to decide whether a defendat had the benefit of state immunity for itself on the basis of the evidence before it.
A foreign state cannot be impleaded in the English courts without its consent.
Lord Cave said that as regards state immunity: ‘It is the duty of the Court to accept the statement of the Secretary of state thus clearly and positively made as conclusive upon the point.’
Lord Sumner, Lord Cave
[1924] AC 797, [1924] All ER 1
England and Wales
Reversed – British Wagon Co Ltd v Gray 1896
. .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.441560
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The issue in this case is the legality of the Government’s decision to provide mutual legal assistance to the United States – in the shape of the product of police enquiries – to facilitate the prosecution of the claimant’s son in the United States for very serious offences, some carrying the death penalty, without seeking assurances that the death penalty would not be imposed or, if imposed, would not be carried out. What is immoral and unacceptable is not necessarily unlawful. ‘
Held: The appeal succeeded: ‘ insofar as the information provided, or to be provided, to the US authorities consisted of personal data (which much of it did) the processing of such data by the Secretary of State as data controller required a conscious, contemporaneous consideration of whether the criteria for such processing were met. ‘Substantial compliance’ with those criteria, as found by the Divisional Court, is not enough. It is not in dispute that the Secretary of State, when making the decision in question, did not address his mind to the 2018 Act at all.’
Lord Kerr said: ‘I believe that the time has arrived where a common law principle should be recognised whereby it is deemed unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that person in peril of being executed. This is not a conclusion of the considerable and controversial variety suggested by the respondent. It is a natural and inevitable extension of the prohibition (in the common law as well as under the HRA) of extradition or deportation without death penalty assurances. If it appears to be an incremental step, that is only because this is the first time the matter has come before the courts for consideration, largely because the two previous occasions since 2001 on which – according to the respondent – MLA was provided without a death penalty assurance, that was done without public knowledge and so without the possibility of judicial scrutiny.’
Lady Hale, Lord Reed, Lord Kerr, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones
[2020] UKSC 10, UKSC 2019/0057, 49 BHRC 169, [2020] 2 WLR 857, [2021] AC 937, [2020] 3 All ER 1, [2020] HRLR 9, [2020] WLR(D) 188, [2021] Crim LR 390, [2021] 1 CMLR 8
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 30 Jul 2019 am Video, SC 30 Jul 2019 am video, SC 30 Jul 2019 pm Video, WLRD
European Convention on Human Rights P13, Data Protection Act 2018
England and Wales
Appeal from – El Gizouli, Regina (on The Application of) v The Secretary of State for The Home Department Admn 18-Jan-2019
The claimant challenged the giving of Mutual Legal Assistance to the US in a case where after trial for very serious terrorist allegations, the death penalty might be imposed after conviction, without first insisting that an undertaking be given . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for her appeal, and now . .
Cited – Gurieva and Another v Community Safety Development (UK) Ltd QBD 6-Apr-2016
Claim against private investigator, seeking compliance with the 1988 Act, in particular seeking details of personal information held.
Held: ‘The claimants’ SAR is and was valid. There was never any proper basis for questioning its validity. . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Rex v Lord Rusby 1800
The common law, in being formed from time to time by the wisdom of man it grew and increased from time to time with the wisdom of mankind.
Lord Kenyon said: ‘The common law, though not to be found in the written records of the realm, yet has . .
Cited – Ahmed and Another v Regina CACD 25-Feb-2011
. .
Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Abbott v The Attorney General of Trinidad and Tobago and Others PC 12-Jun-1979
Trinidad and Tobago . .
Cited – Bell v The Director of Public Prosecutions and Another PC 30-Apr-1985
(Jamaica) Failure to provide trial within a reasonable time. There had been a lapse of seven years between the date of the alleged offence and the date of the retrial. The view was taken that there was specific prejudice caused as a consequence of . .
Cited – Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2) PC 6-Nov-1995
(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment. . .
Cited – Lin and Another v Commissioner of Police for The Metropolis QBD 25-Aug-2015
The claimants were facing capital charges in Thailand. They sought the release of information held by the defendant to assist in their defence on charges of the murder of two British tourists. In particular a report had been prepared by the MPS . .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Regina v Cambridge and Huntingdon Health Committee Ex Parte B CA 10-Mar-1995
A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.649466
The claimant challenged the giving of Mutual Legal Assistance to the US in a case where after trial for very serious terrorist allegations, the death penalty might be imposed after conviction, without first insisting that an undertaking be given that the penalty would not be sought in this case.
The Right Honourable the Lord Burnett of Maldon
Lord Chief Justice of England and Wales
The Honourable Mr Justice Garnham
[2019] EWHC 60 (Admin), [2019] 3 All ER 598, [2019] 1 WLR 3463, [2019] WLR(D) 87, [2019] ACD 44
England and Wales
Appeal from – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
‘The issue in this case is the legality of the Government’s decision to provide mutual legal assistance to the United States – in the shape of the product of police enquiries – to facilitate the prosecution of the claimant’s son in the United States . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.633147
Challenge to grant of assistance to US authorities.
Dame Victoria Sharp P Qbd Mr Justice Garnham
[2020] EWHC 2516 (Admin), [2020] WLR(D) 520, [2021] 3 All ER 247
England and Wales
Updated: 06 August 2022; Ref: scu.654031
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and Afghanistan.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes
[2017] UKSC 1, [2017] 3 All ER 179, [2017] WLR(D) 49, [2017] AC 649, [2017] 2 WLR 287, UKSC 2015/0002
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary
Crown Proceedings Act 1947 2(1), Human Rights Act 1998 Sch 1, Pt I, art 6
England and Wales
Appeal from – Mohammed and Others v Secretary of State for Defence CA 30-Jul-2015
Appeal arising from the determination of preliminary issues in relation to claims arising out of the detention of the claimant by Her Majesty’s armed forces in 2010 in Afghanistan. They were acting as part of the International Security Assistance . .
See Also – Al-Waheed v Ministry of Defence SC 17-Jan-2017
‘These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.573214
Decision on three letters of request
Popplewell J
[1997] EWHC QB 320
England and Wales
Updated: 05 August 2022; Ref: scu.380363
ECJ (External Relations) Opinion – EEC-Turkey Association Agreement Free movement of workers Article 7, second paragraph, of Decision No 1/80 of the Association Council The right of the child of a Turkish worker to respond to any offer of employment in the host Member State where he has completed a vocational training situation of the child who begins his training on a date on which his parents, who have been in regular employment in the host State for more than three years, have left that State for ten years Article 59 of the Additional Protocol More favorable treatment than that accorded to nationals of Member States
C-462/08, [2009] EUECJ C-462/08 – O
European
Opinion – Bekleyen v Land Berlin ECJ 21-Jan-2010
EEC-Turkey Association Agreement Second paragraph of Article 7 of Decision No 1/80 of the Association Council Right of the child of a Turkish worker to respond to any offer of employment in the host Member State in which that child has completed a . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.380275
The registration of an order under BIIR is ‘essentially administrative, although it requires a judicial act’
Thorpe, Wall LJJ
[2009] EWCA Civ 993, [2010] 1 FCR 258, [2010] 1 FLR 982, [2009] Fam Law 1138
England and Wales
Cited – In re D (A Child) SC 22-Jun-2016
F had obtained an order in Romania for the custody of D. F obtained orders initially for the registration and enforcement of that order, but the High Court reversed that saying that neither the child nor his mother had been given adeuate opportunity . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.375596
The parties, both English, met and married and made a life in Spain. They had two children. The mother brought the children back to the UK on the breakdown of the marriage.
Thorpe LJ, Longmore LJ, Bodey J
[2009] EWCA Civ 986, [2010] 1 FLR 782, [2009] Fam Law 1124
England and Wales
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.375594
ECJ Opinion – Bilateral investment treaties Article 307 EC.
C-118/07, [2009] EUECJ C-118/07 – O
Opinion – Commission v Finland (External Relations) ECJ 19-Nov-2009
ECJ Failure of a Member State to fulfil obligations Article 307, second paragraph, EC Failure to adopt appropriate steps to eliminate incompatibilities between the bilateral agreements concluded with third . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.374746
The mother sought an order for the return of the children of the family to Poland.
Black J
[2008] EWHC 2049 (Fam), [2008] 2 FLR 1884, [2008] Fam Law 1076, [2009] 1 FCR 177
England and Wales
Updated: 30 July 2022; Ref: scu.276703
(Court of Appeals of New York) The court considered the market share doctrine for apportioning responsibility between tortfeasors: ‘We hold that the liability of DES producers is several only, and should not be inflated when all the participants in the market are not before the court in a particular case. We understand that, as a practical matter, this will prevent some plaintiffs from recovering 100% of their damages. However, we eschewed exculpation to prevent the fortuitous avoidance of liability, and thus, equitably, we decline to unleash the same forces to increase a defendant’s liability beyond its fair share of responsibility.’
Wachtler CJ
(1989) 539 NE 2d 1069
England and Wales
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.241495
Hearing of a request from the Hague District Court for an order under the 1985 Act.
Sir Christopher Sumner
[2009] EWHC 636 (Fam), [2009] 4 All ER 641, [2009] Fam Law 917, [2009] 3 FCR 95
Child Abduction and Custody Act 1985
Updated: 28 July 2022; Ref: scu.347341
Lightman J said: ‘The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions . . This extends to decisions whether or not to seek to persuade a foreign government of any international obligation (e.g. to respect human rights) which it has assumed. What if any approach should be made to the Yemeni authorities in regard to the conduct of the trial of these terrorist charges must be a matter for delicate diplomacy and the considered and informed judgment of the FCO. In such matters the courts have no supervisory role.’
Lightman J
[1999] Imm AR 341, [1999] EWHC Admin 624, (1999) 116 ILR 607
England and Wales
Cited – Regina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
Appeal from – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Ferhut Butt CA 9-Jul-1999
The applicant had sought an order that the FCO should make representations to the President of the Yemen relating to a criminal trial in progress in the Yemen.
Held: Henry LJ recorded the concession by the respondent Secretary of State that he . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.139888
The right to sue in conversion at common law is available to a person who is entitled at the time of the conversion to the immediate possession of the goods.
Slade J discussed the applicability of the law of renvoi in an international dispute about the ownership of goods.
Slade J
[1980] Ch 496
England and Wales
Cited – Iran v Berend QBD 1-Feb-2007
The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.442756
Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered such an application, it had to look not just at the fact that the property to which the claim related is in the jurisdiction, but also at reality of the extent of the connection with the UK, and the difficulties if any of enforcement. Here the claimant had not demonstrated that the purpose of the transaction might be to defeat creditors, and one would, in its own jurisdiction, enjoy immunity from enforcement. Section 423 ‘extends to any claim for relief, whether for damages or otherwise, so long as it is related to property located within the jurisdiction’ and ‘the claim under section 423 relates to the shares and particularly the disposition of the shares.’ By CPR 6.20(10) the court may assume jurisdiction if the whole subject-matter of the claim relates to property situated in England.
Lightman J: ‘The critical differences between RSC, O 11, r 1(1)(g) and CPR 6.20(10) is the substitution for the words ‘land situate within the jurisdiction’ of the words ‘relates to property located within the jurisdiction’. The implications are that: (1) the rule is no longer limited to land and now extends to personal property; and (2) instead of the whole claim having to be confined to a claim to a proprietary or possessory interest, it is sufficient that the whole claim relates to property. The evident purpose of the new rule is to lay down a single rule in place of the three earlier rules which embraces and extends beyond the contents of those rules. It is to be noted that at p 128 of the Autumn 2000 Civil Procedure (‘White Book’) the comment is made on CPR 6.20(10): ‘This wide and new provision is no longer confined to land and the old cases are redundant.’ In my view on its proper construction the rule cannot be construed as confined to claims relating to the ownership or possession of property. It extends to any claim for relief (whether for damages or otherwise) so long as it is related to property located within the jurisdiction. This construction vests in the Court a wide jurisdiction, but since the jurisdiction is discretionary the Court can and will in each case consider whether the character and closeness of the relationship is such that the exorbitant jurisdiction against foreigners abroad should properly be exercised.’
Lightman J
Times 18-May-2001, Gazette 07-Jun-2001, [2001] 1 WLR 2039
Civil Procedure Rules 6.20., Insolvency Act 1986 423
England and Wales
Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.81730
The defendant state sought to prevent the company enforcing a judgment entered against it in the USA.
Held: Where the judgment was properly obtained, a claim of sovereign immunity would not operate to allow avoidance of an enforcement of the judgement. The requirements of section 3(1) had been met, and the defendant’s application to set aside service failed.
Blair J
[2009] EWHC 110 (Comm), [2009] QB 579, [2009] 1 CLC 60, 159 NLJ 199, [2009] 1 All ER (Comm) 697, [2009] 1 Lloyd’s Rep 378
Civil Jurisdiction and Judgments Act 1982 31
Appeal from – Republic of Argentina v NML Capital Ltd CA 4-Feb-2010
The appellant republic appealed against an order allowing the enforcement against it of a judgment obtained in the US by the claimant. There is no treaty between the US and the UK for the mutual recognition and enforcement of judgments, and an . .
At First Instance – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.293977
The object of 8 Anne, c. 19, was to encourage literature among British subjects, which description includes such foreigners as, by residence here, owe the Crown a temporary allegiance; and any such foreigner, first publishing his work here, is an ‘author’ within the meaning of the statute, no matter where his work was composed, or whether he came here solely with a view to its publication.
Copyright commences by publication; if at that time the foreign author is not in this country, he is not a person whom the statute meant to protect.
An Englishman, though resident abroad, will have copyright in a work of his own first published in this country.
B, a foreign musical composer, resident at that time in his own country, assigned to R, another foreigner, also resident there, according to the law of their country, his right in a musical composition of which he was the author, and which was then unpublished. The assignee brought the composition to this country, and, before publication, assigned it, according to the form required by the law of this country, to an Englishman. The first publication, took place in this country :
Held, reversing the judgment of the Court of Exchequer Chamber, that the foreign assignee had not, by the law of this country, any assignable copyright here in this musical composition.
Per Lords Brougham and St. Leonards.-Copyright did not exist at common law; it is the creature of statute.
Brougham, St Leonard LL
[1854] EngR 816, (1854) 4 HLC 815, (1854) 10 ER 681, [1854] UKPC 28
Appeal from – Boosey v Jefferys 20-May-1851
. .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.293673
(US Second Circuit) The judge discussed the difficulty in copyright cases in drawing the line between the taking of general concepts and copying in an infringing manner: ‘Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended.’
Learned Hand J
45 F 2nd 119 (2nd Cir 1930)
United States
Cited – IPC Media Ltd v Highbury-Leisure Publishing Ltd ChD 21-Dec-2004
The claimant magazine publisher alleged breach of copyright by the defendant in their magazine, as to the cover page designs used. It was not clear just which cover was said to have been copied.
Held: The first step in a copyright action is . .
Cited – Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd ChD 1994
In cases of claimed copyright infringement, it is not the function of the expert to decide the question of substantiality. In cases of simple visual comparison the court can and should do the visual comparison for itself. A distinction between the . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.231501
The court rejected the renvoi doctrine in tort. An act done in a foreign country was actionable in Scotland only if it was, if done in Scotland, a tort, and was also actionable according to the law of the place in which it was done.
[1948] ScotCS CSIH – 4, 1949 SC 110, 1949 SLT 139
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279401
The court considered the domicile of the husband.
Lord Makintosh
[1949] ScotCS CSIH – 2
Updated: 22 July 2022; Ref: scu.279404
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system under which the judgment was obtained was not independent of the the state against whom the fraud was alleged and was therefore unenforcable.
Held: ‘The investigation into and adjudication on the Reinsurers’ allegations that the N Korean State, under the guiding mind, inter alios, of the Dear Leader, fraudulently procured the N K judgement and that this was of a piece with and is to be inferred from many other criminal acts committed by the N Korean State has an obvious potential for embarrassing the foreign relations between Her Majesty’s Government and the Government of N Korea.’ and ‘the doctrines of act of state and non-justiciability are not subject to agreement by the parties. If the parties do not take the point, the court should take it of its own motion.’ Those parts of the Reinsurers’ fraud defence that allege that the State of N Korea procured the N K judgement by fraud and that: (i) it is to be inferred that KNIC knew of the fraud because it is part of the State of N Korea and that state, through a directing mind or minds, directed or approved of the Underlying Fraud; and (b) the Underlying Fraud is to be inferred from other acts of state criminality committed by the State of N Korea, are non-justiciable and should be struck out.
Filed J
[2008] EWHC 2829 (Comm)
England and Wales
Cited – Oetjen v Central Leather Co 1918
(US Supreme Court) Animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser . .
Cited – Princess Paley Olga v Wiesz CA 1929
The Court considered a seizure of property from the plaintiff which had then been adopted by the Russian Government and a later confiscation decree.
Held: The decree was effective to vest the goods in the Russian authorities and the adopted . .
Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
Cited – First National City Bank v Banco Nacional de Cuba 7-Jun-1972
(United States Supreme Court) The court worried about just how much confusion can result from executive encroachment on issues of justiciability and that executive interference would lead to arbitrary results as ‘the Court becomes a mere errand boy . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-Nov-2000
If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in . .
Cited – Jayaretnam v Mahood and Others 21-May-1992
The court set aside an order which had granted leave to serve libel proceedings outside the jurisdiction on the ground that the court was precluded by principles of judicial restraint from embarking on an enquiry into the plaintiff’s grounds for . .
Cited – Skrine and Co (a Firm) and others v Euromoney Publications plc and others QBD 10-Nov-2000
The court was asked to strike out parts of a defemation pleading alleging that (i) the Malaysian Prime Minister had acted in a manner intended and/or calculated to interfere with the independent judiciary; (ii) Malaysian judges applied the law of . .
Appeal from – Korea National Insurance Corp (KNIC) v Allianz Global Corporate and Speciality Ag CA 2-Dec-2008
The insurance company appealed against refusal of the court to decline to enforce a judgment entered against it by the courts of North Korea. It had argued that the insurance policy had been obtained by fraud of the NK government, and that the court . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278855
The plaintiff brought an action on a bill of exchange given in Paris in payment of gaming debts. By English law the debt was unenforceable but the plaintiff alleged that in France the debt could be enforced in a Court of Honour.
Held: Wilmot J: ‘I cannot help thinking, that where a person appeals to the law of England, he must take his remedy according to the law of England, to which he has appealed.’
Wilmot J
(1760) 2 Burr 1077
England and Wales
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.242984
(Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia) The acts of state officials acting in that capacity are not attributable to them personally but only to the state: ‘Such officials are mere instruments of a state and their official action can only be attributed to the state. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a state. In other words, state officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the state on whose behalf they act: they enjoy so-called ‘functional immunity’. This is a well-established rule of customary international law going back to the 18th and 19th centuries, restated many times since.’
(1997) 110 ILR 607
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.242891
The court exercised the wardship jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J made the girl a ward of court and ordered that she be brought to this country. The half-brother was assessed as offering a suitable home and in fact she went to him. Hogg J explained that she thought the circumstances ‘sufficiently dire and exceptional’
Hogg J
[2008] 2 FLR 1624, [2008] Fam Law 983, [2008] EWHC 1436 (Fam)
England and Wales
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278550
The father sought an order for the return of his children to France.
Coleridge J
[2008] EWHC 688 (Fam), [2008] Fam Law 714, [2008] 2 FLR 965
Updated: 21 July 2022; Ref: scu.278551
