(Jurisdictional Points, Practice and Procedure) In advance of a preliminary hearing to determine whether the Appellant benefited from state immunity under the State Immunity Act 1978, the First Respondent and the former Second Respondent (whose claim has since been withdrawn) sought an order for specific disclosure, following the standard disclosure previously given by the Appellant. The Appellant sought orders (1) debarring the Respondents from advancing any positive factual case on state immunity unless that case were first set out in a pleading, to which it would then be given the opportunity to respond, and (2) deferring consideration of the Respondents’ application for specific disclosure, pending completion of that process. In any event, the Appellant asserted that (1) it could not be compelled to give the disclosure sought, because it formed part of the Kuwaiti diplomatic mission in the UK and, accordingly, benefited from diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961 (‘the VCDR’), which it had not waived; and (2) the specific disclosure sought was irrelevant to the issues arising for consideration in relation to its plea of state immunity.
The employment tribunal refused the Appellant’s application and went on to determine the Respondents’ application for specific disclosure. It held that, as a separate entity from the state of Kuwait, the Appellant could not benefit from diplomatic immunity and that the documentation sought by the Respondents was relevant to the issue of state immunity and disclosable (in certain cases, without a right of inspection).
The Appellant appealed from the above orders, contending that the employment tribunal had erred in its conclusions as to diplomatic immunity; in particular (1) having concluded that certain documentation created a rebuttable presumption of diplomatic immunity, in going on to conclude that the Appellant’s status as a separate entity necessarily precluded such immunity (ground 5), and (2) in failing to defer to the executive’s alleged recognition of the Respondent as forming part of the Kuwaiti diplomatic mission in the UK, in breach of the ‘one voice’ doctrine (ground 4). Three further grounds of appeal (6 to 8) related to the asserted consequences of its diplomatic immunity. In any event, the Appellant maintained its position on the need for a further pleading by the Claimants (grounds 1 and 2) and on the irrelevance to the substantive preliminary issue of the disclosure sought (ground 3).
The EAT allowed ground 5 and dismissed grounds 1 to 4 of the appeal. In consequence of its conclusions on ground 4, grounds 6 to 8 fell away. The employment tribunal had erred in concluding that, as a matter of principle, a separate entity could not benefit from diplomatic immunity. Nevertheless, on the available evidence, Her Majesty’s Government had not expressly recognised the Appellant as forming part of the Kuwaiti diplomatic mission, such that the one voice doctrine was not engaged. As a matter of law, there was no scope for implied recognition, but, in any event, the available evidence would not have supported such an inference. The EAT made observations regarding (1) the relationship, where diplomatic immunity exists, between a claimant’s Article 6 ECHR rights and a respondent’s rights under Articles 24 and 27(2) of the VCDR; and (2) the scope and effect of the latter articles. The employment tribunal had made no error of law in refusing to order a further pleading by the Respondents, or in its approach to determining the relevance of the specific disclosure which it had ordered the Appellant to give.
Judges:
The Honourable Mrs Justice Ellenbogen DBE
Citations:
[2022] EAT 51
Links:
Jurisdiction:
England and Wales
Employment
Updated: 28 April 2022; Ref: scu.675612