The Weekly Roundup: The Establishing Jurisdiction Edition

• Published date: 13 September 2022
• Law Firm: 1 Chancery Lane
• Author: Mr Conor Kennedy and Thomas Yarrow

This week the team has found time to consider two interesting cases on jurisdiction, which does seem to be a topic consuming a very large amount of court time, post-Brexit. We understand that various proposals seeking to simplify matters are currently being considered, and this would appear to be timely. Of course, as with everything, the devil is in the detail, and we look forward very much to having the opportunity to carp from the sidelines when the various options are publicised.

State Immunity and Forum non Conveniens

'Suppose, to take a not entirely theoretical example, a foreign state (not, I emphasise, the Defendant) sends two agents to the UK to kill a dissident opponent by poisoning him. The operation is planned abroad. The radioactive poison is made abroad. The operatives bring the poison into the UK from abroad. They meet with the dissident in a London hotel, poison his tea, and he dies. The foreign state's responsibility is clearly established by the evidence. Can the dissident's representatives sue the foreign state in the High Court for damages for his wrongful death ? Or is the responsible foreign state immune from civil proceedings by virtue of the State Immunity Act 1978'

Under section 1 of the States Immunities Act 1978, a State is immune from the jurisdiction of the courts of the United Kingdom, unless one of a limited set of exceptions applies.

One of the exceptions is set out in section 5:

"A State is not immune as respects proceedings in respect of -

(a) death or personal injury; or

(b) damage to or loss of tangible property;

Caused by an act or omission in the United Kingdom"

It was this exemption which came to be considered by Mr Justice Knowles in Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB) in June of this year, with judgment recently handed down. By the claim, the Claimant alleged that his iPhones had been infected with spyware by agents of the Saudia Arabian State. He alleged misuse of private information, harassment, trespass to goods and assault, all occasioning personal injury in the form of psychiatric harm. The Defendant disputed jurisdiction, invoking the principle of State Immunity.

As with any jurisdictional hearing, there were of course several issues of fact for the Claimant to satisfy the court of, but two issues of perhaps more general interest: first, were these qualifying proceedings 'in respect of death or personal injury'; second, was the injury 'caused by an act or omission in the United Kingdom'?

As to the first question, one might be forgiven for thinking that the issue was already in the bag for the Claimant (provided he could prove the facts); his was demonstrably a claim for damages for personal injury. The hiccough for him was that customary international law recognises a distinction between acts done by a State in the exercise of sovereign or governmental authority - acta jure imperii - and acts done of a private law nature - acta jure gestionis. (Avid readers of this publication may remember an article by this author discussing such in the context of the Rome II Regulation.) In customary international law, claims impugning public law acts of foreign governments are not actionable in domestic courts. Indeed it is only by reason of the evolution of a 'restrictive' theory of immunity that private law acts have been carved out as justiciable. The Defendant therefore invited the court to interpret the words 'act or omission' in section 5 of the 1978 Act as excluding acts or omissions of an inherently sovereign or governmental nature in line with customary international law: the presumption was immunity and exceptions ought to be interpreted narrowly. In this case the planting of spyware (were the Claimant's allegations proved) would be the acts of State agents exercising State authority.

How then was the statute to be interpreted in circumstances where it appeared to be at odds with public international law? That very question had been considered by Lord Diplock in the case of Alcom Ltd v...