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Cite as: [2016] 3 All ER 902, [2016] 2 WLR 533, [2015] EWCA Civ 481, [2015] WLR(D) 213, [2016] Ch 308

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		Neutral Citation Number: [2015] EWCA Civ 481
		Case No: A3/2014/2316

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISON
MRS JUSTICE ROSE
HC09C01992

Royal Courts of Justice
Strand, London, WC2A 2LL

13th May 2015

B e f o r e :

LORD JUSTICE AIKENS
LORD JUSTICE PITCHFORD
and
LORD JUSTICE BEAN
____________________

Between:

	HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz	Appellant
	- and -
	Mrs Janan George Harb	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Lord Pannick QC and Shaheed Fatima (instructed by Howard Kennedy) for the Appellant
Tim Owen QC and Ian Clarke (instructed by Hughmans Solicitors) for the Respondent
Hearing dates : 20/02/2015
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Aikens :

The case in outline and the issue before the court

This is an appeal from the order and judgment of Rose J dated 9 June 2014, neutral citation number [2014] EWHC 1807 (Ch). The claimant ("Mrs Harb") has brought a claim against HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz, a prince of the Saudi Arabian royal family ("the Prince") for damages for breach of an oral contract which Mrs Harb claims was concluded between her and the Prince on about 19 June 2003. The Prince has yet to plead a defence to the claim. Instead he applied to strike it out on the ground that the English court had no jurisdiction to decide the claim. The basis for this is that the Prince asserts that if any contract was concluded between him and Mrs Harb in June 2003, he, the Prince, was acting as the representative and agent of his father, then King Fahd of Saudi Arabia ("King Fahd"). King Fahd died on 1 August 2005. The Prince asserts that the claim is, in truth, one against the estate of the late King Fahd and that it is barred by the defence of sovereign immunity pursuant to section 20 of the State Immunity Act 1978 ..."the SIA"). Rose J rejected that plea, but gave the Prince permission to appeal to this court.

Before us, Lord Pannick QC accepted that the claim, as currently formulated, is against the Prince alone. He also accepted that the Prince could not, in his own right, assert state immunity in respect of the claim of Mrs Harb. But he invited this court to assume, as effectively Rose J had done, that the Prince was at all times in the position of being the agent of King Fahd and that the claim is for damages for breach of a contract concluded between Mrs Harb and the Prince as agent only for his father King Fahd. Lord Pannick accepted that the acts of the Prince, whether performed on his own behalf or on behalf of his father, King Fahd, were of a private nature and were not acts of an official nature. Therefore, effectively, we were asked to assume that the claim is one against the estate of the late King, in respect of a contract that was made in the King's private, not official, capacity. Lord Pannick's argument is that the estate of the late King can assert sovereign immunity to bar the claim, because the immunity from suit of the King as head of state, which during his lifetime extended to everything that he did, whether of an official or private nature, continued to the same extent even after his death, and so applies to a claim against King Fahd's estate for breach of a contract made in the King's private (as opposed to official) capacity.

Rose J rejected that argument. The issue before this court is whether Rose J was correct to do so.

The assumed facts

The hearing before Rose J and before us was conducted on assumed facts. These can be taken from the draft amended Particulars of Claim.^[1] Mrs Harb is the widow of the late King Fahd whom she married in 1968 when he was Prince Fahd Bin Abdul. He became King of Saudi Arabia in 1982. Sometime before 1970 King Fahd promised Mrs Harb that he would provide for her financially and in a manner fitting for his wife. The King repeated these assurances and did provide finance from then on until he suffered a stroke in 1995. Thereafter the finance stopped. On 7 May 2003 Mrs Harb's solicitors at the time sent a letter to the King enclosing a copy of a draft statement upon which Mrs Harb intended to rely in proposed proceedings against King Fahd under the Matrimonial Causes Act 1973, claiming proper financial provision from the King.^[2]

On 19 June 2003 Mrs Harb, together with a friend, met the Prince at the Dorchester Hotel. The Prince stated that he was willing to honour the terms of King Fahd's promise to provide financially for Mrs Harb for the rest of her life. He therefore offered to pay to Mrs Harb the sum of £12 million and to procure the transfer to her of two properties in central London. The offer was made in order to satisfy the promises and assurances that King Fahd had made to Mrs Harb to provide for her financially for the rest of her life and also in return for Mrs Harb agreeing to withdraw and then actually withdrawing certain factual assertions that she had made about King Fahd. Mrs Harb accepted this offer. Thereafter, at the request of the Prince, Mrs Harb made a statutory declaration dated 20 June 2003 in which she withdrew the factual assertions made in the draft statement to which the Prince and King Fahd had taken exception. Mrs Harb also obtained statements from her legal advisers in which they undertook to keep confidential information that they had obtained about King Fahd whilst they were acting for Mrs Harb. These referred to the meeting and agreement of 19 June 2003.

Mrs Harb arranged for a formal written document to be prepared, entitled "contractual agreement", which was to be signed by the Prince and Mrs Harb. It set out the agreement made on 19 June 2003 and dealt with various practicalities that would follow from it. Mrs Harb met the Prince at the Dorchester Hotel on 22 June 2003 and provided him with copies of the statements and the contractual agreement. There were further discussions and another meeting between Mrs Harb and the Prince on 31 August 2003. However, Mrs Harb was not paid £12 million, nor were the properties transferred to her.

The proceedings

The present proceedings were issued by Mrs Harb's trustee in bankruptcy on 15 June 2009, that is shortly before the expiry of the limitation period of 6 years. The Prince's application notice challenging the court's jurisdiction on the basis of state immunity was issued in January 2010. We asked counsel why there had been what appeared to be a very long period of inactivity between the issue of the application and the hearing before Rose J in May 2014. Counsel provided us with an agreed chronology. There was in fact a dispute between the current claimant, Mrs Harb, and her trustee in bankruptcy, after the latter gave notice of discontinuance of the action on 14 June 2010. Mrs Harb intervened to set that notice aside. The action was stayed in the meantime. The discontinuance issue was dealt with finally when, as is recorded in the draft amended Particulars of Claim, on 8 August 2012 Mrs Harb took an assignment from her trustee in bankruptcy of the causes of action pleaded. The leisurely progress of the action continued. On 20 November 2013, Mrs Harb was substituted as claimant in the action and the stay on the action was lifted. Thereafter preparations were made for the hearing of the Prince's application which was heard by Rose J on 1 May 2014.

Mrs Harb continues to allege that there was an oral contract made between Mrs Harb and the Prince on 19 June 2003, which is evidenced by the subsequent "contractual agreement". There is no suggestion in the current pleading that the prince acted as agent for his father, King Fahd, in concluding the agreement with Mrs Harb. The estate of King Fahd is not a party to the proceedings.

The decision of Rose J

Rose J considered the claim for state immunity on the basis of two assumptions, which are set out at [7] and [8] of her judgment. Rose J emphasised the assumptions were made solely for the purpose of determining the application and would have no bearing if the case proceeded. She said:

"[7]. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father's estate is entitled to now. I should make it clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.

[8]. The second assumption is that if Mrs Harb's claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the prince would have been able to claim sovereign immunity in the English courts to defeat her claim."

Rose J characterised the sole question for determination to be: "whether when the King ceased to be head of state of Saudi Arabia on his death, his immunity from suit (and hence the Prince's) continued to extend to everything he did when he was head of state, whether of an official or private nature".

Rose J concluded: (1) the rationale for granting a head of state immunity from suit whilst in office is that he is "the personal embodiment of the state";^[3] (2) once a head of state no longer embodies the state he merits no particular privileges or immunities as a person, although his official acts (when he was head of state) still attract immunity from suit;^[4] (3) Pinochet No 3 established that a living former head of state retained immunity from suit only in respect of official actions carried out whilst in office, although even that immunity did not extend to the international law crime of torture after the Torture Convention was given the force of law in the UK by the Criminal Justice Act 1988;^[5] (4) when a head of state dies in office (no matter which means are used to choose the head of state), that head of state ceases immediately to be "the embodiment of the state";^[6] (5) there is no basis in public policy, comity or the desirability of promoting international cooperation that requires that there should be a distinction in relation to the immunity that attracts to those heads of state who leave office on death and those who leave office in their lifetime;^[7] (6) the principles set out in Pinochet No 3 cannot be distinguished because King Fahd ceased to be head of state upon his death rather than during his lifetime. Pinochet No 3 therefore bound the court and on that basis the Prince's application must be dismissed.^[8]

This conclusion meant that Rose J did not need to rule on Mrs Harb's alternative argument that even if the effect of section 20(1) of the SIA was to grant immunity from suit to the Prince (or the King's estate), then the effect of the requirement of access to the court imposed by Article 6 of the European Convention on Human Rights ("ECHR") was to negate that rule. Rose J concluded that the effect of the ECtHR's decision in Jones and others v the United Kingdom^[9] is that the measures which reflect "generally recognised rules of public international law on state immunity" cannot be regarded as imposing a disproportionate restriction on rights of action to the court; once the nature of the immunity has been determined as a matter of public international law, then there is no further scope for modification by using Article 6.^[10]

The basis on which the state immunity issue is being considered by this court

Before the hearing in this court, I wrote to counsel, indicating a concern that the court had about the basis on which we were being invited to determine the question of whether the claim was barred by reason of sovereign immunity. A number of things were pointed out. First, the claim as pleaded was solely against the Prince personally and no allegation that he was acting as agent or representative of his father, King Fahd, was raised in the Particulars of Claim.^[11] Secondly, the Prince, who was not in 2003 and is not now the head of state of Saudi Arabia, could not, on his own behalf, claim sovereign immunity in respect of the claim. Thirdly, if the Prince was able to establish on the facts that he was at all times acting as agent only on behalf of his father, King Fahd, then he, the Prince, as agent only, could not be liable for the alleged breach of contract and so the claim against the Prince must fail. Lastly, as the limitation period had long since elapsed, even if a new claim against the estate of King Fahd were now to be permitted, it would be bound to fail as being time-barred. Therefore, the note suggested, the issue of state immunity did not arise to be determined. The note enquired of the purpose of the appeal if those circumstances were correct.

Counsel for the appellant prepared a note in response and counsel for the respondent (neither of whom had appeared below) submitted a "Respondent's Position Paper". The upshot of these documents and the subsequent discussion with counsel at the outset of the hearing is as follows: (1) before Rose J the assumption was made that the claim is properly to be regarded as being based on a contract made between Mrs Harb and King Fahd, with the Prince acting solely as the agent or representative of his father, King Fahd, with no personal liability on any contract; (2) therefore, as King Fahd has subsequently died, effectively this is to be regarded as a claim against the estate of the late King; (3) these assumptions had been accepted on behalf of Mrs Harb before Rose J by the solicitors and counsel then instructed by her; (4) it had been conceded by Mrs Harb, the respondent before Rose J that if the Prince were to succeed on the state immunity argument, based on the assertion that at all times he was acting as the agent or representative of his father, King Fahd, then the claim against the Prince must be struck out; and (4) the respondent remained prepared to rest on those assumptions and that concession in the Court of Appeal.

Having considered the matter, the court decided that it was prepared to determine the sovereign immunity issue on the basis of the assumptions made. This was despite the fact that this would be contrary to the basis of the claim as currently pleaded and despite the fact that any attempt to make a claim against the late King Fahd's estate would now be bound to be met by the defence that it was time-barred and so must be struck out. We were very conscious of the fact that much effort had gone into preparing for the appeal and that the point to be argued was not covered directly by authority or, indeed, in the text books or legal literature.

The State Immunity Act 1978 ("SIA"), the Diplomatic Privileges Act 1964 ("the DPA") and Article 39 of the Vienna Convention on Diplomatic Relations 1961 ("the Convention").

Section 20(1) of the SIA confers an immunity from suit on heads of State in the following fashion:

"(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to-

(a) a sovereign or other head of State;

(b) members of his family forming part of his household; and

(c) his private servants;

as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants".

The SIA therefore formulates the nature and extent of the immunity of suit by reference to what applies to the head of a diplomatic mission, rather than setting out, in plain language, what the law of the UK is in relation to the immunity from suit of a head of state. Section 2 of the DPA gives the force of law in the UK to the various Articles of the Convention that are set out in Schedule 1 to the DPA, "subject to section 3 of this Act". That section is not relevant to the present debate.

Section 20(1) had a curious Parliamentary history. Originally the section was intended to apply to heads of state who were "in the United Kingdom at the invitation or with the consent of the Government of the United Kingdom". However, the wording of the original clause 20(1) in the bill was changed to the current form by a Government amendment, because, it was said, the clause as introduced left "an unsatisfactory doubt about the position of heads of state who are not in the United Kingdom".^[12] Lord Goff of Chieveley considered that this meant that the court had to be "robust" when applying the Convention to heads of state with what section 20 calls "the necessary modifications".^[13]

The relevant Articles of the Convention are Articles 31 and 39. They provide:

"Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State".

"Article 39

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceedings to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.

4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the county the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission".

The arguments of the parties

On behalf of the Prince, Lord Pannick made four principal arguments. First, he submitted that the judge erred in holding that she was bound by Pinochet No 3 to conclude that the immunity of a head of state who dies in office does not continue to apply to private acts committed during his period in office. On this ground, Lord Pannick emphasised that the decision in Pinochet No 3 concerned the extent of the immunity of a living former head of state in respect of official acts committed whilst he was in office. The House of Lords did not have in mind the issue of the extent of the immunity of a head of state who had died in office in respect of private matters. Therefore, Pinochet No 3 did not resolve the current question and the judge was wrong to regard herself as bound by it to reach the conclusion she did.

Secondly, Lord Pannick argued that the rationale for immunity from suit of a head of state is that any legal action against him amounts to an affront to the state he personifies. Lord Pannick submitted that when a head of state dies in office, he remains the personal embodiment of the state itself, even in death. Lord Pannick submitted it would be a bizarre situation if a claim against a head of state on a private matter was barred by immunity of suit during his lifetime, but the head of state's death enabled the same claim to be brought because a plea of immunity would then fail. Such a legal position would be inconsistent with international comity and co-operation. The judge did not give any principled reason for rejecting this submission.

The third principal argument is that the judge's conclusion would raise major practical difficulties which therefore suggest that, in principle, the conclusion was wrong. Lord Pannick gave examples by using the analogy of a head of state who died on a visit to the UK or of a head of a diplomatic mission who died whilst en poste in the UK.

The final principal argument is that a failure to recognise an immunity from suit where a head of state dies in office and then a "private" claim is brought against his estate or representative would frustrate the "functional basis" of sovereign immunity. Lord Pannick submitted that a lack of immunity in those circumstances would mean that there was a loss of protection for the head of state in relation to his ability to carry out his functions, thereby hampering, as opposed to promoting, international co-operation.

On behalf of Mrs Harb, Mr Owen QC submitted that the decision of Rose J was correct on all the issues she dealt with. First, he submitted that section 20(1) of the SIA reflected Article 39(2) of the Convention. When the "necessary modifications" are applied, the immunity against suit in respect of "private" matters comes to an end upon the head of state ceasing to perform his duties as such, however that might occur. Therefore, section 20(1) is clearly contrary to the appellant's argument. Secondly, he submitted that the clear effect of Pinochet No 3 is that a former head of state can only claim immunity in respect of official acts, (subject to the torture exception) and not personal ones. It did not lend any support to the appellant's arguments. Thirdly, this position is in accord with the principles of customary public international law, as articulated by the International Court of Justice in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium).^[14] Such a restricted principle is also consistent with the human rights principle that forbids a denial of access to a court of justice save insofar as customary international law requires there to be immunity. Fourthly, any distinction between the position of a head of state who died in office as opposed to one who ceased to hold office in his lifetime would be unprincipled and lack logic.

In relation to the respondent's notice concerning the judge's conclusion on the Article 6 point, Mr Owen accepted that if Lord Pannick persuaded the court that customary international law recognised that there was an immunity from suit in respect of private acts after the head of state ceased to hold office (whether still alive or after death), then Article 6 could not assist his case. However, Mr Owen submitted that Article 6 assisted in relation to the correct construction of section 20(1) of the SIA. In so far as is possible, section 20 should be construed in a way that is consistent with the fundamental right of access to justice. Only restrictions that are necessary should be permitted and there is nothing in either domestic or international law to justify the restriction proposed.

The issue to be decided

Lord Pannick accepted that the extent of the immunity from suit of the estate of King Fahd must depend upon the correct construction of section 20(1) of the SIA. He was, with respect, quite right to do so. As Lord Goff of Chieveley stated in Pinochet No 3, at 209C, the SIA is intended to provide the sole source of English law on the principles of state immunity applicable in the case of heads of state and former heads of state. Because section 20(1) applies the DPA to a "sovereign or other Head of State", its construction depends in turn upon what "necessary modifications" have to be made to the relevant articles of the Convention, as given the force of law by the DPA. In so far as Pinochet No 3 and other English or international case law or authors make general statements about the rationale and scope of customary international law on immunity from suit of a head of state and so have a bearing on the construction of section 20(1) and its application to the situation in the present case, those sources must be considered. Ultimately, however, the issue in this appeal is whether, as a matter of construction of section 20(1), it stipulates that there will be immunity from suit for the estate of a head of state who has died in office, when the estate is thereafter sued in respect of a private, as opposed to an official, act.

If necessary, I will have to consider whether Article 6 has any bearing on the conclusion reached on the principal issue.

The construction of section 20(1) of the SIA, making the "necessary modifications" to the DPA and the Convention.

The SIA was passed in order to replace the previous English common law on state immunity and allied subjects. In the previous decade the English common law had developed swiftly, bringing English law into line with developments in other jurisdictions, including those of the Commonwealth, which had developed a more restricted theory of state immunity than the classic English law rule of a state's absolute immunity from suit. However, customary international law remains the background against which the SIA is set.^[15] Part 1 of the SIA deals with state immunity as such. Section 20 is, however, found in Part 3 of the SIA, which is headed "Miscellaneous and Supplementary". Section 20 itself is headed "Heads of State".

To call the drafting of section 20(1) of the SIA clumsy would be an understatement. Given the parliamentary history of the section, as set out in Lord Browne-Wilkinson's speech in Pinochet No 3, it is not surprising that the section has all the hall-marks of being concocted in a hurry without much thought as to how it was intended to work in conjunction with the DPA and the Convention. However, the general rule in relation to the immunity of serving heads of state must be clear, given the terms of Article 31 of the Convention. A serving head of state is immune from suit in relation to the criminal, civil and administrative jurisdictions of the UK, except in the case of the three exceptional circumstances set out in Article 31(1)(a), (b) and (c) of the Convention.

Article 39 of the Convention deals with the period during which a person who is entitled to privileges and immunities will enjoy them. Article 39(1) deals with the start point. In the case of diplomats and others who enjoy privileges and immunities they are entitled to these privileges from the moment they enter the territory of the receiving state on taking up their post; or if the person is already there from the moment the appointment is notified officially. Article 39(2) deals with the end point. The privileges and immunities of the person entitled to enjoy them cease the moment the person leaves the country, or "on expiry of a reasonable period in which to do so", even in case of armed conflict. Article 39(3) stipulates that if a member of a mission dies en poste then his family will continue to enjoy privileges and immunities until the expiry of a reasonable period in which to leave the country. Article 39(4) deals with the property of a deceased member of the mission.

How, then, are the "necessary modifications" to be made to Article 39 to divine the scope of immunity that English law affords to a head of state by virtue of section 20(1) of the SIA? In Pinochet No 3 Lord Browne-Wilkinson described this process of making the "necessary modifications" so that the Convention terms applied to a head of state as "baffling": see 203B. However, if, as Lord Goff advocated, a "robust" approach is taken,^[16] then I think the process of modification is reasonably plain. It is clear from statements of Lords Browne-Wilkinson, Goff of Chieveley, Hope of Craighead, Hutton, Saville of Newdigate, Millett and Phillips of Worth Matravers in Pinochet (No 3) that, in their view, Parliament cannot have intended to give heads of state, or former heads of state any greater rights than they already enjoyed under customary international law, so that the immunity granted to a head of state and a former head of state by section 20 must reflect customary international law.^[17]

I think that there must be two stages in the process of trying to divine what immunity applies to former heads of state in respect of a suit against him (or his estate) in respect of a private act done whilst he was head of state. The first is to try and construe Article 39(2) of the Convention, with the "necessary modifications" to see what result it produces. The second is to test that construction against other sources of customary international law or cases commenting on those sources.

In Pinochet No 3, Lord Browne-Wilkinson explained the rationale of Article 39(2) of the Convention. The former diplomat no longer represents his country. Thus he no longer merits immunity as a person, but it is necessary to preserve the integrity of activities of the state he represented as diplomat, so that there must be immunity in respect of official acts performed during his tenure en poste.^[18] If Article 39(2) is applied to heads of state, then, using a "robust approach" in making the "necessary modifications" it seems to me that when a head of state ceases to be such, his immunity from suit must also cease, save in respect of official acts performed whilst he was head of state. That is the construction that Lord Hope put on Article 39(2) in Pinochet No 3.^[19] Article 39(2) does not draw any distinction between the position of a diplomat (or another person entitled to privileges and immunities) who ceases to perform his function because his term of office in the post has come to an end and the position of one who has died en poste. That suggests that there no distinction should be made. Article 39(3) is of no further help in relation to the immunities applicable after the death a member of mission en poste. That Article deals only with the privileges and immunities of the deceased diplomat's family. There is no modification, however robust, that can be made to that provision to make it apply to a deceased head of state.

Article 39(4), which deals with the property of a member of a mission who has died en poste (or a member of his family), does not give any further assistance on the immunities enjoyed by the estate of the deceased diplomat. It deals solely with the position of his property or that of a member of his family. No amount of "robust necessary modification" of that Article can provide a further clue on the extent of immunity of a deceased head of state.

Assistance from customary international law sources

It is sensible to start with Pinochet No 3 because of the conclusion of the Law Lords that section 20(1) reflected customary international law and no more. Therefore, in construing section 20(1) to discover the extent of immunity of a living former head of state, Senator Pinochet, the House of Lords necessarily had to examine customary international law sources. I accept that this does not necessarily lead to an answer about the extent of immunity of the estate of a deceased head of state, but it is a start. However, unless there is some logical or practical reason why the rules on immunity for deceased heads of state should differ from those who have left office and are still alive, then, a priori, the same rules should apply.

Lord Browne-Wilkinson concluded that, "at common law" (which includes customary international law), a former head of state loses immunity in respect of private acts on ceasing to be head of state. He referred to a number of cases and the writings of the distinguished former legal advisor to the Foreign and Commonwealth Office, Sir Arthur Watts KCMG QC, in support of this general statement.^[20] It seems incontrovertible as a general proposition, particularly as Lord Goff expressed the same opinion and Lord Hutton referred specifically to Sir Arthur Watts' lectures.^[21]

Satow's Diplomatic Practice ...6^th edition 2009) is currently the most authoritative work on all aspects of diplomatic law and practice. It states, in chapter 12, under the heading "Immunity of a Former Head of State" that personal immunity ceases when "a head of state is no longer, for whatever reason, in office".^[22] That wording therefore draws no distinction according to how the head of state ceased to hold the office. In Sir Arthur Watt's Hague Lectures, referred to above, he states that after a former head of state has lost office he may be sued "in respect of his private activities, both those taking place while he was still head of state, as well as those occurring before becoming head of state or since ceasing to be head of state".^[23] No distinction on the extent of the immunity is drawn according to how the head of state lost office, although earlier in the lecture, Sir Arthur had discussed the different ways in which a head of state might cease to be so: see pages 84 to 87.

In 2001, the Institut de Droit International adopted a resolution concerning the immunity of heads of state, former heads of state and heads of government. Article 13, which is in the 2^nd part of the resolution and is headed "Former Heads of State", stipulates:

"1. A former Head of State enjoys no inviolability in the territory of a foreign state.

2. Nor does he or she enjoy immunity from jurisdiction in criminal, civil or administrative proceedings, except in respect of acts which are performed in the exercise of official functions and relate to the exercise thereof. Nevertheless, he or she may be prosecuted and tried when the acts alleged constitute a crime under international law, or when they are performed exclusively to satisfy a person interest, or when they constitute a misappropriation of the State's assets and resources.

………"

No distinction is drawn between a former head of state who is still alive and one who has died in office.

My provisional conclusion, on the basis of the Convention wording, the statements of the House of Lords in Pinochet No 3 and the other international law sources to which I have referred, would be that a former head of state has no immunity from suit in respect of private acts and that this rule applies whether the person has ceased to be head of state whilst alive or has done so because he has died. However, as already noted, Lord Pannick submitted that the position in respect of immunity for private acts in respect of the estate of a head of state who died in office was different from that of the person who had been head of state but who left office and lived for some time thereafter. I must therefore now examine those arguments.

Is there immunity from suit for the estate of a head of state who died in office, even if there is no immunity from suit for a former head of state who is still alive?

Lord Pannick did not distinguish between an hereditary head of state and one who had been elected or selected for office. So, on his argument, the estate of Franklin D Roosevelt would have been in the same position as that of King George VI, viz. continuing immunity from suit in respect of private acts performed in office; and that of Harry S Truman and King Edward VIII, who abdicated and became Duke of Windsor, would also be in the same position, viz. no immunity from suit in respect of private acts performed whilst in office.

Lord Pannick's first argument for making this distinction is that it would be an affront to the state of which the deceased person had been head before his death if there were no immunity from suit in respect of private acts performed whilst that person was head of state. He relied on statements by Lord Millett in his speech in Pinochet No 3^[24] that the reason for a head of state having immunity for personal acts is by reason of his special status as the holder of his state's highest office, so that it would be an "affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign states" to subject the head of state to the jurisdiction of another state's courts, "whether in respect of his public acts or private affairs". Lord Pannick submitted that the deceased head of state continued to personify the state and that the affront would continue even after the death of the head of state, so that the logic for having the immunity remained, even after the demise of the head of state.

I cannot accept this argument. In the case of an hereditary monarch, upon his death, the successor becomes monarch immediately: "the king is dead, long live the king". The same principle must hold for heads of state who are elected or appointed otherwise. Upon death, they cease to be head of state. There is no hint of a penumbra attaching to the deceased head of state that would entitle his estate to immunity from suit for private acts. Lord Pannick argued that this would produce an illogical situation because there would be a "wider scope" for litigation after the head of state's death than before. The phrase "wider scope" is tendentious. Suit in respect of a private act either can be brought or it cannot. Whether it can be brought before the head of state's death depends on whether the person is still head of state at the time suit is brought. If he is, then he has all the immunities due to a living head of state, including immunity from suit in respect of private acts. If, at the time of death, he was a former head of state, then, as such, he would only have immunity from suit in respect of official acts. So in the latter case the immunity from suit is the same before or after death. In the former case the reason why there can be suit after death but not before is that there is no rationale for permitting the estate of the deceased head of state to claim immunity for suits in respect of private acts. The estate of the deceased head of state does not personify the state any longer; nor is it an affront to the state if the estate of a deceased head of state is sued in respect of private acts.

Lord Pannick's next argument was that there would be practical difficulties if a head of state is stripped of all immunities immediately upon his death. He gave the example of a head of state dying whilst visiting the UK and asked: would state immunity prevent an inquest being held? Lord Pannick suggested that customary international law indicated that it would and that this was a powerful illustration of the proposition that when a head of state dies in office he remains immune from suit for personal acts "for a period after his death". In my view this example does nothing of the sort. An inquest is an official enquiry into the cause of death of a person. If an inquest were to be held upon the corpse of a person who formerly constituted the head of another sovereign state it could well be regarded as an interference with the internal affairs of that other state because the inquest would be enquiring into the way that the head of state had died. That inquiry into the internal affairs of a state would be an affront to that state and its dignity. So, in my view, an inquest into the death of a head of state in the UK should attract state immunity in respect of official acts, even after the head of state concerned has died. That is why customary international law indicates that such an inquest would be prevented by state immunity. Moreover, there is no support in the cases or the books for Lord Pannick's argument that, because an inquest on a deceased head of state would attract state immunity, it must follow that that immunity from suit in respect of private matters continues after a head of state has died in office.

Lord Pannick's second example was based on the terms of Article 39(4) of the Convention, which permits the withdrawal of moveable property of a diplomat who dies en poste. Whatever "necessary modifications" are made to that Article to make it apply to a deceased head of state, I cannot see how it can create an immunity from suit of the estate of a head of state in respect of a private act.

Lord Pannick's final argument was that a failure to recognise that there was an immunity in respect of private acts where a head of state dies in office and a claim is brought against his estate would frustrate the "functional basis" of the doctrine of state immunity. Lord Pannick referred the court to the statement of Lawrence Collins LJ (as he then was) in Aziz v Aziz and others (Sultan of Brunei intervening) [2008] 2 All ER 501 that the privileges and immunities of a serving head of state are "functional" in the sense that, in international relations, they protect the ability of the head of state to carry out his functions and to promote international co-operation.^[25] Thus, whilst a head of state is serving, he must not be distracted from the performance of his functions by litigation concerning his private acts. Lord Pannick argued that a head of state who lives on once he has left office is then able to attend to such litigation, but a head of state who dies in office cannot. So, it is necessary to impose an immunity in respect of private acts in favour of the estate of a head of state who dies in office, so as to enable him to perform his functions while in office without being distracted by concerns about litigation that might occur after his death in office. Moreover, to permit a suit in respect of private acts to be brought against the estate of a head of state who died in office would frustrate the principles of comity and public policy that underlie the doctrine of state immunity.

I am prepared to accept that a primary justification for the doctrine of state immunity is the functional one, as described by Lawrence Collins LJ in Aziz v Aziz. However, that proposition does not, in itself, justify an extension of the doctrine in the way Lord Pannick suggested. His argument would produce capricious results which would make a mockery of the doctrine. Take this example: a head of state is sued on a private contract whilst he is still in office; he is immune from suit and does not have to think about it, save for the fact that he may face suit after he leaves office. Imagine that he quits office, proceedings are immediately started and, within 24 hours of leaving office, he dies. On Lord Pannick's argument, there is no immunity, whereas if the head of state died in office 24 hours before he was due to quit , there is immunity. Where is the "functional" logic or rationale in that different consequence? In neither case would the head of state have been able to participate in the litigation and defend himself generally. Furthermore, the argument, if carried through, results in Lord Pannick having to admit that there is indeed a difference between a head of state who is not normally removed from office during his lifetime and one who is because his term of office comes to an end after a period of time, because the former would always have the additional immunity in respect of private acts and the latter would not. But that is to contradict Lord Pannick's fundamental concession that there is no difference in the position of the head of state who holds office for only a certain period of time and one who holds office until death.

As to the second strand in this argument, I accept that sovereign immunity is based on broad considerations of public policy, international law and comity, as Lord Reid stated in Rahimtoola v Nizam of Hyderabad [1958] AC 379 at 404. Lord Pannick effectively submitted that those considerations apply differently to the living former head of state and the head of state who dies in office. But his arguments for creating a different application are the same as those I have already discussed and dismissed. Making a statement about the rationale for sovereign (or state) immunity does not obviate the need to discover how far public policy, international law and comity require that the doctrine be extended. All existing authority suggests that there is a general rule that once a head of state ceases to be such, there is no immunity of suit in respect of private acts performed whilst head of state. Whatever the basis for the doctrine of state immunity, there is no need for it to be extended to create immunity from suit for private acts once the head of state has left office. Neither case law nor doctrine, logic or practical considerations lead me to conclude that there is a distinction between the position of a head of state who has left office and who lives thereafter and one who ceased to be head of state upon dying in office.

Therefore I would hold that all Lord Pannick's arguments must fail and that the Prince, or more exactly, the late King's estate, cannot or could not claim state immunity in respect of Mrs Harb's claim.

The Cross- Appeal: Article 6 of the ECHR.

Given my conclusion on the main argument, I do not need to go into this issue at length. Mr Owen's argument is that section 20 must be construed in a manner that is consistent with the right of access to the courts that is guaranteed by Article 6 of the ECHR and so, if necessary, section 20 has to be "read down" to make it compatible with Article 6.

It is clear from the judgment of the ECtHR in Jones v United Kingdom [2014] 58 EHRR 1 that the right of access to a court given by Article 6 is not absolute. The court re-iterated its statement in a number of previous cases that the ECHR (which is an international law instrument) should be read, as far as possible, so as to be in harmony with other rules of international law, including those relating to the grant of state immunity. Thus "measures taken by a state which reflect generally recognised rules of public international law on state immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6": see [189]. Thus, as section 20(1) of the SIA embodies "generally recognised rules of public international law on state immunity", if that results in restrictions on access to a court because a suit is not justiciable by reason of state immunity, then it will not become justiciable by virtue of Article 6.

The ECtHR recognises that it is not the tribunal for determining the boundaries of sovereign immunity when there is uncertainty.^[26] However, for the reasons I have attempted to give above, I have concluded that the scope of customary public international law is clear as to the extent of immunity from suit of the estate of a lately deceased head of state in respect of a private act. Therefore, Article 6 will not diminish the extent of that immunity. So, if I had been in favour of Lord Pannick's arguments, I would have concluded that reliance on Article 6 could not have provided an answer for Mrs Harb.

Disposal

The issue of state immunity does not arise on the way that the claim is currently put by Mrs Harb against the Prince. Even if it were somehow to turn into a claim for damages for breach of contract against the estate of the late King Fahd, the estate cannot claim state immunity. Therefore the appeal against Rose J's refusal to grant an order declaring that the court has no jurisdiction to try the claim on the ground of state immunity must be dismissed.

Lord Justice Pitchford:

I agree

Lord Justice Bean:

I also agree.

Note 1   Permission to amend the Particulars of Claim had not been given at the date of the appeal hearing, but that is immaterial for present purposes.     [Back]

Note 2   Those proceedings were instituted by Mrs Harb but dismissed by the President of the Family Division on 15 December 2004 as being barred by state immunity. When King Fahd died the matrimonial proceedings thereby came to an end, thus terminating the appeal from the President’s ruling: Harb v King Fahd Bin Abdul Aziz [2006] 1 WLR 578.     [Back]

Note 3   See [24] of the judgment.    [Back]

Note 4   See [25].     [Back]

Note 5   See [16].     [Back]

Note 6   See [26].     [Back]

Note 7   See [37].     [Back]

Note 8   See [38].     [Back]

Note 9   [2014] 59 EHRR 1.    [Back]

Note 10   See [43]-[44] of the judgment.     [Back]

Note 11   Some facts are pleaded in the Particulars of Claim which, the appellant’s counsel asserted, might support an allegation that the Prince was acting as agent. But there is no express or implied pleading of agency.     [Back]

Note 12   See Reg v Bow Street Magistrates ex p Pinochet (No 3) [2000] 1 AC 147 (“Pinochet (No 3)”) at 203, where Lord Browne-Wilkinson refers to the parliamentary history of the clause that became section 20.     [Back]

Note 13   See 210B in Pinochet No 3.    [Back]

Note 14   Judgment of 14 February 2002: see para 61.    [Back]

Note 15   Alcom Ltd v Republic of Colombia [1984] 1 AC 580 at 597 per Lord Diplock, as cited by Lord Goff of Chieveley in Pinochet No 3 at 210 C.     [Back]

Note 16   See 210B.    [Back]

Note 17   See pages 203E, 210C, 240H, 251A, 265H, 268H-269A, 270C, 287H and 291G.    [Back]

Note 18   See 201H to 202F.     [Back]

Note 19   See 241B.    [Back]

Note 20   202F-G. These were the Hague Lectures: “The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers” 1994 – III 247 Recueil des cours.     [Back]

Note 21   210F.     [Back]

Note 22   Counsel told us that this chapter was written by Hazel Fox CMG QC, the distinguished Oxford international lawyer.     [Back]

Note 23   See Recueil des Cours (Collected Courses of the Hague Academy of International Law 1994 III) at page 88.     [Back]

Note 24   See 269.    [Back]

Note 25   See [61] at page 514.     [Back]

Note 26   See the cases referred to at [20] and [21] of the judgment of the Court in Benkharbouche v Embassy of the Republic of Sudan and others [2015] EWCA Civ 33.    [Back]