COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE TUGENDHAT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE JACOB
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Mr M Barnes QC & Mr H Forbes-Smith (instructed by Messrs Slaughter and May Solicitors) appeared on behalf of the Respondent.
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Lord Justice Dyson:
The defendant claims state immunity
"This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs, or administrative matters."
"Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."
"A person domiciled in a Member State may, in another Member State, be sued … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred …"
Which ground of appeal first?
The civil and commercial matter issue
"The claim is overwhelmingly private in nature, being a defamation action."
"The broad principle of the distinction is therefore this. First, if the claim is one based on ordinary civil law, it will be a civil or commercial one, even if it is brought by a public law entity. It will retain this character even if the only claimant which could bring the proceedings is a public law entity, for it is the character of the right relied on, rather than the nature of the claimant doing the relying, which determines the impact of Article 1. But secondly, if the claim is one which appears to be vested in only a public body, which is bringing a claim which no other claimant could have brought, attention then turns to the obligations imposed on or owed by the defendant. If these are obligations owed by him as a matter of ordinary civil or commercial law the claim likewise falls within Article 1, no matter how or by whom they come to be enforced. Thirdly, only if the position of the defendant is one in which he is placed as a matter of public law, and the claim is made against him by an entity exercising rights which only it has, will the claim not be a civil or commercial one. In other words, there is a dual test which requires the non-civil or non-commercial law character of the claim to be established by reference to claimant and defendant. To the extent that the case law provides any more detailed guidance, the Court of Justice indicated in Eurocontrol v Rüffer, that recourse could be had to the general principles of Member States' legal systems to see how similar claims are there categorised; but in practice such guidance may be of extremely limited help. More helpful will be to ask the question: is the action brought by or against a public law body acting as such, or by or against it instead acting as any other private individual? If the claim is one brought by or against a private law person, performing duties which in other states are performed by organs of government, the claim should nevertheless be seen to be based in private law and to fall within the scope of the Judgments Regulation."
"It follows from the judgments in the LTU and Rüffer cases cited above that such an action falls outside the scope of the Convention only when the author of the damage against whom it is brought must be regarded as a public authority which acted in the exercise of public powers."
"37. As [the advocate general] has observed in points 54 to 56 of his opinion, there is no doubt that operations conducted by armed forces are one of the characteristic emanations of state sovereignty, in particular inasmuch as they are decided upon in a unilateral and binding manner by the competent public authorities and appear as inextricably linked to states' foreign and defence policy.
38. It follows that acts such as those which are at the origin of the loss and damage pleaded by the plaintiffs in the main proceedings and, therefore, the action for damages brought by them before the Greek courts must be regarded as resulting from the exercise of public powers on the part of the state concerned on the date when those acts were perpetrated.
39. Having regard to the case law recalled in paragraph 30 of this judgment, a legal action such as that brought before the referring court therefore does not fall within the scope ratione materiae of the Brussels Convention as defined in the first sentence of the first paragraph of Article 1 thereof."
In the present case the judge disposed of the issue in the following way:
"59. Mr Kennelly's first point (that a defamation action is overwhelmingly private in nature) is at first sight attractive. However, I am addressing this point only on the hypothesis that I was wrong to hold that state immunity was unavailable in a case where service has been affected pursuant to the Judgments Regulation Article 5(3). I remind myself that I must interpret the concept of a civil matter by reference, first, to the objectives of the Regulation and, secondly, to the general principles which stem from the national legal systems as a whole.
"60. The objectives of the Regulation, as set out in the Recitals, give no support to the view that it was intended to enable claimants to implead natural or legal persons in proceedings relating to anything done by them in the exercise of the sovereign authority of a foreign state. And the general principles of law include the principle of state immunity in public international law. In the light of those considerations, and the guidance in paragraph 20 of Sonntag, I have no hesitation in holding that this action, brought on this Intended Decision Letter (which was written against the public law background set out above) is not a civil matter within the meaning of the Regulation."
Lord Justice May:
Lord Justice Jacob:
"Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public powers. [Reference is then made to various authorities]."