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: The appeal was allowed: ‘the question whether the exception in article 31(1)(c) would have applied to Mr Al-Malki had he still been in post does not strictly speaking arise. If he had still been in post, I would have held that he was immune, because the employment and treatment of Ms Reyes did not amount to carrying on or participating in carrying on a professional or commercial activity. Her employment, although it continued for about two months, was plainly not an alternative occupation of Mr Al-Malki’s. Nothing that was done by him or his wife was done by way of business. A person who supplies goods or services by way of business might be said to exercise a commercial activity. But Mr and Mrs Al-Malki are not said to have done that. They are merely said to have used Ms Reyes’ services in a harsh and in some respects unlawful way. There is no sense which can reasonably be given to article 31(1)(c) which would make the consumption of goods and services the exercise a commercial activity.’
Lord Sumption (with Neuberger L) said: ‘ the employment of a domestic servant to provide purely personal services is not a ‘professional or commercial activity exercised by the diplomatic agent’. It is therefore not within the only relevant exception to the immunities. The fact that the employment of Ms Reyes may have come about as a result of human trafficking makes no difference to this. But the appeal should be allowed on a different and narrower ground. On 29 August 2014, Mr Al-Malki’s posting in London came to an end and he left the United Kingdom. Article 31 confers immunity only while he is in post. A diplomatic agent who is no longer in post and who has left the country is entitled to immunity only on the narrower basis authorised by article 39(2). That immunity applies only so far as the relevant acts were performed while he was in post in the exercise of his diplomatic functions. The employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki in the exercise of his diplomatic functions.’
Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption
[2018] 1 All ER 629, [2017] UKSC 61, [2017] ICR 1417, [2018] IRLR 267, [2017] 3 WLR 923, [2017] WLR(D) 692, [2019] AC 735, UKSC 2016/0023
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Vienna Convention on Diplomatic Relations 1961
England and Wales
At EATAl-Malki and Another v Reyes and Another (Jurisdictional Points) EAT 4-Oct-2013
Two domestic workers, employed one after the other by the First Respondent, a diplomat, and Second Respondent, his wife, (the appellants in this appeal) asserted they had been . .
At CAReyes 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 . .
CitedDemocratic Republic of the Congo v Belgium – Arrest Warrant of 11 April 2000 ICJ 14-Feb-2002
(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 . .
CitedZoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
CitedFothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
CitedJones 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 . .
CitedWokuri v Kassam ChD 30-Jan-2012
. .
CitedAbusabib and Another v Taddese EAT 20-Dec-2012
EAT Jurisdictional Points : State Immunity – Diplomatic Immunity
The First Respondent, who had been found liable together with the Second Respondent for acts of discrimination against the Claimant in a . .
CitedRegina v Central Criminal Court Ex Parte Propend Finance Pty Ltd and Others QBD 17-Mar-1994
A Home Secretary requesting warrants must be specific on the type he required. It was his duty, and not that of the police to state the method of seizure of documents for use in a foreign jurisdiction. A judge making an order should give reasons for . .
CitedRegina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
CitedBaccus SRL v Servicio Nacional Del Trigo CA 1956
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s . .
CitedTabion v Mufti 1996
(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 . .
CitedCA Empson v Smith CA 1965
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 . .
CitedConsequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) ICJ 21-Jun-1971
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 . .
CitedShaw v Shaw 1979
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 . .
CitedIslamic Republic of Iran v United States of America – Oil Platforms – Judgment of 6 November 2003 ICJ 6-Nov-2003
. .
CitedDownes Manor Properties Ltd v Bank of Namibia and An CA 18-Mar-1999
The choice of a lawyer outside the UK to provide services as part of litigation did not excuse the failure to comply with an unless order made by the court. Such orders are intended to be punitive. The use of lawyers outside the UK was not . .
CitedPlaya 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 . .

These lists may be incomplete.
Updated: 13 March 2021; Ref: scu.597260