(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.’
Citations:
(1993) ILR 446
Jurisdiction:
Canada
Citing:
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 by:
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.
International
Updated: 04 September 2022; Ref: scu.219450