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.
Judges:
Shaw LJ, Denning MR, Oliver LJ
Citations:
[1977] 1 QB 529, [1976] 3 All ER 437, [1976] 1 WLR 868
Jurisdiction:
England and Wales
Citing:
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 by:
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.
Administrative, Commercial, International, Jurisdiction
Updated: 03 September 2022; Ref: scu.186583
