England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 98/0085/1

Royal Courts of Justice

Strand, London WC2

Thursday, 30th July 1998

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE HUTCHISON and

SIR JOHN BALCOMBE

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CAROLSUE HOLLAND Plaintiff/Appellant

-v-

JAMES LAMPEN-WOLFE Defendant/Respondent

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LORD LESTER OF HERNE HILL QC and MR P SAINI (instructed by Messrs Mishcon de Reya, London WC1) appeared on behalf of the Appellant Plaintiff.

MR C GREENWOOD (instructed by Messrs Nabarro Nathanson, London W1) appeared on behalf of the Respondent Defendant.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Thursday, 30th July 1998

LORD JUSTICE NOURSE:

This is a libel action in which the defendant's plea of state immunity has succeeded before the master and the judge. With the leave of the judge, the plaintiff brings a further appeal to this court.

The plaintiff, Dr Carolsue Holland, is a citizen of the United States of America and a professor of international relations at Troy State University ("TSU"), a campus university based in America which also provides courses at a number of United States bases in Europe and Asia, including Menwith Hill RAF Station in North Yorkshire. Menwith Hill is one of the military bases operated and maintained in the United Kingdom by the United States of America as part of its functions as a member of the NATO alliance. The units stationed at Menwith Hill are responsible, amongst other things, for the coordination of education and training for United States military personnel in the United Kingdom, Denmark and Norway and for certain associated civilian personnel in the United Kingdom. The United States Government has a contract with TSU, under which TSU provides certain courses as part of these education and training programmes. Overall responsibility for the administration of the courses is vested in TSU's European regional office, which is situated at a United States Air Force base in Germany.

The defendant, James Lampen-Wolfe, is also a citizen of the United States of America. On his assignment to the United Kingdom in February 1995 he was employed by the United States Department of Defence as educational services officer at Menwith Hill, in which post his responsibilities included the planning, development and implementation of the education and training programmes provided from that base. Owing to an administrative error, his passport did not at that time contain the entry and note of recognition which, by paragraphs (b) and (c) respectively of section 10(1) of the Visiting Forces Act 1952, are made prerequisites to his being a member of a civilian component of a visiting force for the purposes of that Act. The error was not corrected until July 1997, after the acts complained of in this action.

In 1997 the plaintiff, as part of her employment with TSU, was teaching research methods in international relations at Menwith Hill. She had the status of a technical representative, which means that she had been admitted to the United Kingdom and permitted to work here without having to comply with the normal immigration and work permit requirements. She also enjoyed various privileges extended to members of the US forces at Menwith Hill.

On 27th March 1997 the defendant, in his capacity as education services officer, wrote a memorandum to TSU's European programme director at its European regional office in Germany under the heading "Unacceptable Instructor Performance Dr Carolsue Holland". In it the defendant listed seven complaints about the plaintiff's conduct which he had received from a number of her students. He said that he was deeply disturbed about these events and that he had never before written such a letter regarding an instructor. He added:

"With deep regret I officially request that another instructor be assigned to complete the current class at Menwith Hill Station."

The defendant has said in an affidavit that he had been instructed to take action regarding the complaints by his immediate superior. He added:

"I therefore contacted Dr Philip Wittenburg at TSU's European Regional Office and orally reported the complaints. He asked me to confirm in writing the complaints which had been received so he could more fully consider them. This I did. The memorandum was written further to complaints which had been made to me, and in pursuance of my duties as Educational Services Officer. Throughout this matter, I acted in the course of my duties as Educational Services Officer."

The plaintiff having complained that the defendant's memorandum had defamed her, the writ in this action was issued on 6th May 1997. The statement of claim was served on 9th June 1997. On 26th June 1997 the defendant issued a summons seeking to have the writ and service thereof set aside pursuant to RSC O.12, r.8(1)(g) and (h). The summons came before Master Trench who, on 19th December 1997, granted the relief sought and dismissed the action with costs. The plaintiff appealed to the judge. Her appeal came before Mr John Mitting QC, sitting as a deputy judge of the Queen's Bench Division, who, on 16th January 1998, dismissed it. He gave the plaintiff leave to appeal to this court.

State immunity can arise either under the State Immunity Act 1978 or at common law. But section 16(2) of the 1978 Act provides:

"This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State whilst present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952."

So the first question is whether the defendant's writing and publication of the memorandum was something done by or in relation to the armed forces of the United States of America. If it was, the defendant's claim for immunity must be dealt with under the common law.

In Littrell v United States of America (No 2 ) [1995] 1 WLR 84 the plaintiff claimed damages for personal injuries arising out of allegedly negligent medical treatment which he had received at the United States military hospital at Lakenheath while serving in the United States Air Force in England. In that case it was common ground that section 16(2) applied, so that the 1978 Act did not; see at p. 87B, per Rose LJ. On the facts it could be said that the proceedings related both (1) to something done by the armed forces of the United States of America (the medical treatment) and (2) to something done in relation to those forces (the treatment having been given to a member of the forces).

In the present case, where the plaintiff was not a member of the armed forces, it may be said that the relationship between the acts complained of and those forces was less direct than in Littrell. Nevertheless, it may also be said that there was a relationship in the sense that the defendant acted in discharge of his duty to further the interests of the armed forces. But whether that be right or wrong, it is in my view clear that the defendant's writing and publication of the memorandum was something done by the armed forces. It cannot be decisive that the defendant was not at the material time a member of a civilian component of those forces for the purposes of the 1952 Act. He was employed by the United States Department of Defence. He had been instructed to take action regarding the complaints by his immediate superior. He wrote and published the memorandum in the course of his duties as educational services officer.

For these reasons I am of the opinion that the defendant's claim for immunity must be dealt with under the common law. That means that the actual decision in Littrell is directly in point. The judgments of Rose and Hoffmann LJJ in that case were closely considered in argument before us, especially the observations of Hoffmann LJ at p. 94H:

"The context in which the act took place was the maintenance by the United States of a unit of the United States Air Force in the United Kingdom. This looks about as imperial an activity as could be imagined. But it would be facile to regard this context as determinative of the question. Acts done within that context range from arrangements concerning the flights of the bombers - plainly jure imperii - to ordering milk for the base from a local dairy or careless driving by off-duty airmen on the roads of Suffolk. Both of the latter would seem to me to be jure gestionis, fairly within an area of private law activity. I do not think that there is a single test or "bright line" by which cases on either side can be distinguished. Rather, there are a number of factors which may characterise the act as nearer to or further from the central military activity . . .

Some acts are wholly military in character, some almost entirely private or commercial and some in between."

As to that passage, the learned deputy judge said:

"The overall activity here, the provision of education, seems to me to be in the in-between category, but, as I have already indicated, I am satisfied that the provision of education was sufficiently closely connected to the central military activity of the United States in maintaining its armed services in these islands as to be clearly performed in the exercise of sovereign authority and clearly not a private or commercial or even professional activity."

In my view the judge's decision of this question was correct. For myself, I can see no material distinction between the medical treatment provided in Littrell and the education provided here. I agree with Mr Greenwood, for the defendant, that the provision of education for members of armed forces posted away from their own country and for their families is, like the provision of medical services, a normal and necessary part of the overall activity of maintaining those forces in the foreign country and part of the responsibility of government.

I would therefore hold that the defendant is entitled to immunity at common law. But if, contrary to the opinion I have expressed, the correct view is that the plaintiff's action does not fall within section 16(2), I would hold that the defendant is entitled to immunity under the 1978 Act, section 1(1) of which provides:

"A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act."

So immunity is only lost if the proceedings fall within one of the specified exceptions. In general there is no exception for proceedings in tort. Section 5 makes exceptions for proceedings in respect of (a) death or personal injury or (b) damage to or loss of tangible property, in each case caused by an act or omission in the United Kingdom. There is no exception for proceedings in respect of defamation.

The only exception on which it is suggested that the plaintiff can rely is in section 3 which, so far as material, provides:

"(1) A State is not immune as respects proceedings relating to -

(a) a commercial transaction entered into by the State; . . .

(3) In this section "commercial transaction" means -

(a) any contract for the supply of goods or services;

(b) . . .

(c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) which a State enters or in which it engages otherwise than in the exercise of sovereign authority; . . ."

It is clear that the contract between the United States Government and TSU is a contract for the supply of services entered into by the United States of America within those provisions. The primary argument of Lord Lester of Herne Hill QC, for the plaintiff, was that because her action was one for tortious conduct which related to the quality of the provision of services pursuant to that contract, it was a proceeding "relating to" the contract within section 3(1)(a). He referred us to Garland v British Rail Engineering Ltd [1983] 2 AC 751, where it had been the view of this court that the expression "provision in relation to . . . retirement" in section 6(4) of the Sex Discrimination Act 1975 was a wide expression which included any provision about retirement; see p. 770E. Similarly, Lord Lester submitted that here the plaintiff's action could fairly be described as a proceeding "concerning" or "about" the contract between the United States Government and TSU.

I reject these submissions. Even accepting Lord Lester's meaning of "relating to", I am unable to hold that the plaintiff's action concerns or is about the contract. Its only connection with the contract is that the acts complained of were done by the defendant in the course of its performance. The action does not raise any issue as to the meaning, enforceability or due performance of the contract itself. It is impossible, on any normal use of language, to say that it relates to the contract.

An alternative submission which was developed in reply by Mr Saini, junior counsel for the plaintiff, was that the provision of education was an activity into which the United States of America had entered or in which it was engaged within section 3(3)(c). That submission must also be rejected on the simple ground that, for the reasons already given, it is not an activity entered into or engaged in "otherwise than in the exercise of sovereign authority".

At the forefront of his argument, Lord Lester made submissions as to the relevance of the European Convention on Human Rights, in particular Article 6, to our decision in this case. He referred us to a number of authorities in support of his submissions. However, he recognised that, as the law at present stands, the English courts can only have regard to the Convention in order to resolve an ambiguity in United Kingdom legislation or an uncertainty in the common law. In my view there is no such ambiguity or uncertainty here. In any event, it seems very unlikely that the grant by the courts of this country of state immunity in respect of sovereign acts could be said to be contrary to Article 6. Mr Greenwood referred us to Article 24.1 of the European Convention on State Immunity 1972, which clearly recognises the duty to grant immunity in respect of such acts. We were also referred to the decision of the European Commission of Human Rights in Application No. 26083/94, Waite and Kennedy v Germany (2nd December 1997, unreported), in which both the majority and the minority appear to have accepted that the grant of state immunity in respect of sovereign acts does not involve a violation of Article 6.

I would dismiss this appeal.

LORD JUSTICE HUTCHISON:

I agree.

SIR JOHN BALCOMBE:

I also agree.

Order: appeal dismissed with costs; leave to appeal to the House of Lords refused.