England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		July 27 2005

Mr Justice Lawrence Collins:

I Background

1. This is a trial of a preliminary issue on the question whether, as the defendant says, the claimant has no standing to sue because she is an enemy alien.
2. The claim relates to a property at 251 Lonsdale Road, London E6 ("the Property") which is registered in the name of the claimant, Mrs Sadiqa Ahmed Amin ("Mrs Amin"). Mrs Amin is an Iraqi citizen and resident in Iraq. She has given a power of attorney to Dr Khadim Lami ("Dr Lami") to pursue her claim to the Property.
3. Mrs Amin's case is as follows. The Property was purchased in Mrs Amin's name in September 1993 by her husband, Dr Abbas Al-Hassani ("Dr Al-Hassani"). By that date Dr Al-Hassani was resident in the United Kingdom and had married his second wife, Ilham Al-Hassani ("Mrs Al-Hassani"). Mrs Amin continued to be married to Dr Al-Hassani and remained in Iraq.
4. At the time the Property was purchased, the defendant, Irving Brown ("Mr Brown"), was a practising solicitor. Mr Brown has not been practising as a solicitor since 1998. He acted on the purchase of the Property and claims to have acted as Mrs Amin's agent or as her attorney from and including the time of the purchase until June 2002. Mr Brown has confirmed in correspondence that the application to register the transfer of the Property to "Sadiq Ahmed Amin" was lodged by his firm, Irving Brown and Daughter.
5. Dr Al-Hassani resided at the Property with Mrs Al-Hassani from the date of its purchase until his death in June 2002 under a tenancy agreement. There is a tenancy agreement dated September 13, 1999 between Mrs Amin as Landlord and Dr Al-Hasssani as tenant. Although there are no documents relating to Dr and Mrs Al-Hassani's occupation prior to this date, it is believed that there was an earlier tenancy agreement. Throughout this period, Dr Al-Hassani paid rent to Mr Brown as agent for Mrs Amin.
6. Mrs Al-Hassani continued to reside at the Property following her husband's death. She claimed housing benefit from the London Borough of Newham which was paid directly to Mr Brown. Mrs Al-Hassani vacated the Property in August 2004 when the local authority re-housed her.
7. The rent paid to Mr Brown from 1993 to June 2002 was paid into an account in the Isle of Man. Mr Brown has not provided disclosure of this account. The rent paid to Mr Brown following the death of Dr Al-Hassani was kept by Mr Brown in his client account.
8. Mr Brown has used all of this money to refurbish the Property following Mrs Al-Hassani's departure. Mrs Amin's case is that neither Mrs Amin nor Dr Lami gave any instructions to Mr Brown or to anyone else for building works to be carried out.
9. The solicitors acting for Mrs Amin learned that the Property was being made available for rent by Mr Brown. Despite two written requests by her solicitors in September 2004, Mr Brown failed to deliver up his files and papers relating to the Property. Despite four further letters in late September and October 2004, Mr Brown refused to answer whether he had any role in the management of the Property, whether he had a current power of attorney, whether he had been receiving rent from the Property and whether he had authorised any building works.
10. Proceedings were commenced against Mr Brown on October 22, 2004. Mrs Amin seeks an injunction restraining Mr Brown from carrying out any building or refurbishment works to the Property and from leasing, selling, transferring, assigning or otherwise disposing of the Property, together with delivery up of all papers relating to the Property and its management and an account of the rent and any other monies that have been paid to Mr Brown.
11. An application for an interim injunction was issued on behalf of Mrs Amin on October 22, 2004. The application came before Etherton J on October 26, 2004, when Mr Brown gave an undertaking not to carry out refurbishment works and not to do any of the following acts: leasing, selling, transferring, assigning or otherwise disposing of the Property. It now appears that Mr Brown has purported to allow occupation by third parties of the Property under what he describes as a licence. This is a matter which will have to be dealt with by further order.

II The preliminary issue

12. In his defence Mr Brown does not claim that he is entitled to let the Property, or carry out works on it. His defence includes the pleas (a) that the Power of Attorney to Dr Lami has not been shown to be valid by Iraqi law or to apply to proceedings outside Iraq; (b) that the Property is registered in the name of "Sadiq Ahmed Amin" and not "Sadiqa Ahmed Amin", i.e. it is registered in the name of a man, and Mrs Amin is therefore not the proper claimant. Mr Brown also pleads that Mrs Amin is an enemy subject and as such "can have no recourse to UK courts". He further claims that the Property is enemy property and that "as such it may have vested in the Custodian of Enemy Property by order of the Board of Trade". He claims that Dr Lami and Mrs Amin's solicitors, Teacher Stern Selby, are "guilty of the criminal offence of trading with the enemy," and says that he will apply to the Director of Public Prosecutions for consent to bring a private prosecution. He claims that if the English courts permit Mrs Amin "to institute proceedings or to overlook Dr Lami's and his solicitors trading with the enemy the UK would be in breach of its international obligations and international law". He claims that the Power of Attorney document is "an illegal document" in that Dr Lami "is not competent to accept the power - such power being detrimental to the UK wherein [he] resides".
13. In his reply to a request for further information Mr Brown says that it is common knowledge that a state of war exists between Iraq and the United Kingdom, and that the court will be requested to take judicial notice of the state of relations between Iraq and the United Kingdom. In support of his claim that the United Kingdom would be in breach of its international obligations in allowing Mrs Amin to sue, he says that if the United Kingdom were to allow enemy Iraqi nationals to pursue claims then that would detract from the efficacy of the coalition forces' enterprise, and that would be in breach of an implicit agreement that none of them would do or refrain from doing anything which would hinder the successful completion of the common enterprise.
14. Summary judgment was not sought (as well it might have been) by Mrs Amin on the whole of the claim, and instead at a case management conference on February 3, 2005, Master Bowles ordered that the matters relating to the pleas that Mrs Amin was an enemy alien should be tried as a preliminary issue.
15. On the hearing of the preliminary issue, Mr Brown argued that the United Kingdom has been at war with Iraq since at least March 2003, when the House of Commons passed a resolution authorising military intervention in Iraq. Military action is equivalent to war, and war nowadays depends on the existence of an armed conflict, and not on a declaration of a state of war. The court should take judicial notice of the Iraq war. Accordingly, any person voluntarily resident in Iraq during the course of the war is an enemy alien and as such is not permitted to use the English courts to litigate as claimant.
16. Mr Brown relied particularly on Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Co [1939] KB 544 a case involving the conflict between Japan and China, in which it was held that a cancellation clause in a charter party "if war breaks out involving Japan" applied.
17. For Mrs Amin it was argued that the armed conflict between the United Kingdom and Iraq did not amount to a legal state of war. The fact that the conflict was widely referred to in the media as a "war" does not mean that it was a state of war in law: House of Commons Standard Note on "Parliament and the use of force": SN/1A/1218. In any event, the armed conflict with Iraq was over well before proceedings were issued.
18. The government motion which was passed by the House of Commons on March 18, 2003 referred to UN Security Council Resolution 1441, recognised that Iraq's weapons of mass destruction and long range missiles posed a threat to international peace and security, noted the opinion of the Attorney General that since Iraq continued to be in material breach of resolution 1441 authority existed to use force under Resolution 678, and that the UK should use all means necessary to ensure the disarmament of Iraq's weapons of mass destruction. The motion referred not to "war" but to "military operations". House of Commons Standard Note: SN/SG2109.
19. In any event, the armed conflict with Iraq was over well before proceedings were issued. The regime of Saddam Hussein was toppled in April 2003. In a written statement to the House of Commons the Secretary of State for Defence said on April 30, 2003, that "decisive combat operations in Iraq are now complete and coalition forces are increasingly focusing upon stabilisation tasks". On May 23, 2003, the Security Council of the United Nations passed Resolution 1483 which referred to the "previous Iraqi regime", requested the Secretary-General to appoint a special representative for Iraq to who was to be responsible for "co-ordinating activities of the United Nations in post-conflict processes in Iraq" and supported "the formation by the people of Iraq…of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established."
20. Mr Brown referred me to numerous authorities, and in this judgment I will refer to some additional cases simply for the purpose of giving primary material instead of textbook references, and also to some other material which is not central to the point I have to decide but which is of interest as background material.

III Conclusions

Enemy Aliens

21. In Calvin's case (1608) Co. Rep.1a, 17a Sir Edward Coke said: "If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm." The history of the rule is set out in Clive Parry, British Digest of International Law, vol 6 (1965), pp 270-277 and Sir Arnold McNair and Sir Arthur Watts (as he now is), Legal Effects of War, 4th ed 1966 ("McNair and Watts"), chap 3. An alien enemy living in England by the King's licence and under his protection could bring an action: Wells v Williams (1697) 1 Ld Raym 292; and so the subject of an enemy state registered in the United Kingdom under the Aliens Registration Act 1914 as an alien was entitled to sue in England: Princess Thurn and Taxis v Moffitt (1914) 31 TLR 2; Porter v Freudenberg [1915] 1 KB 857, 874.
22. Consequently an enemy national resident in the enemy state has no right of access to an English court during the war as a claimant or other actor in any proceedings, except by licence of the Crown: McNair and Watts, p 70. A British citizen or neutral who is voluntarily resident in the enemy country is also treated as an alien enemy: Porter v Freudenberg [1915] 1 KB 857, 869.
23. The basis of the rule is that the enemy subject in this country cannot come to sue in the courts any more than could an outlaw, and that the courts will give no assistance to proceedings which, if successful would lead to the enrichment of an alien enemy, and therefore would tend to provide his country with the sinews of war: Rodriguez v Speyer Brothers [1919] AC 59, 66. The rule is based on public policy, the protection of the state in time of war: Sovracht (V/O) v Van Udens Scheepvaart en Agentuur Maatshappij [1943] AC 203, 213, per Lord Atkin. Because the rule is one of public policy, it does not apply if the case discloses no mischief against which the rule was intended to guard: Rodriguez v Speyer Brothers [1919] AC 59, 77, per Viscount Haldane, criticised by McNair and Watts, p.83, who say that they found no warrant for saying that Coke and his predecessors who established the rule of the disability of the alien enemy plaintiff regarded the rule as anything but an unqualified rule.
24. The Trading with the Enemy Act 1939, section 1(1) prohibits trading with the enemy. By section 2(1) the expression "enemy" means (among other things) any state at war with Her Majesty, but does not include any individual by reason only that he is an enemy subject. But section 2(2) provides that the Board of Trade may by order direct that any person specified in the order shall be deemed, while so specified, to be an enemy. Section 15(1) provides that enemy subject means an individual who, not being either a British subject or a British protected person, possesses the nationality of a state at war with His Majesty.

Meaning of war and the modern law of armed conflict

25. In the traditional international law, a state was considered as either being at peace with another state, or at war with it. The expression "war" meant "not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force": John Bassett Moore, 7 Digest of International Law, 153. "War" was a technical concept, which began either by declaration of war, or by an act of force which the attacked state treated as creating a state of war: see McNair and Watts, pp.2-8. As Oppenheim, International Law, vol 2, 7th ed. Sir Hersch Lauterpacht, 1952, puts it, under the traditional law "a condition of war could arise either through a declaration of war, or through a proclamation and manifesto by a State that it considered itself at war with another State, or through one State committing hostile acts of force against another State … Although Grotius laid down the rule that a declaration of war is necessary for its commencement, the practice of States shows that this rule was not accepted …" (pp 290-291)
26. Modern developments in the outlawing of war began with the League of Nations Covenant and the General Treaty for the Renunciation of War 1928 (the Kellogg-Briand Pact 1928) and culminated with the adoption of the United Nations Charter, and in particular Article 2(4), which provides that "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." : see Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) 1986 ICJ Rep 12, paras 172 et seq.
27. Under modern international law, the use of force is generally no longer permissible except (a) in individual or collective self-defence; (b) under the authority of the Security Council of the United Nations; and (c) (perhaps) for the purposes of intervention for humanitarian ends. See generally Professor Ian Brownlie, International Law and the Use of Force by States, 1963; Professor Yoram Dinstein, War, Aggression and Self Defence, 3rd ed, 2001; Dr Christine Gray, International Law and the Use of Force, 2nd ed 2004.
28. The traditional concept of war has virtually disappeared from state practice since the Second World War. Unhappily, armed conflict has continued to be an instrument of state policy. But it is almost never necessary to invoke the traditional legal concept of war. Thus each of the humanitarian Geneva Conventions of 1949 applies (Article 2) to "declared war or any other armed conflict".

The meaning of war in English law and the views of the executive

29. In Janson v Driefontein Consolidated Mines [1902] AC 484, 497, Lord Macnaghten said:

"… the law recognises a state of peace and a state of war, but .. it knows nothing of an intermediate state which is neither the one thing nor the other – neither peace nor war."

30. An English court faced with the decision whether or not a state of war existed to which the United Kingdom was a party would have to approach the question by ascertaining whether a state of war had broken out, and if so, whether it had yet been terminated. Those were issues essentially in the last resort for the executive: McNair and Watts, pp. 34-36. According to McNair and Watts (p 36), this is because English law knows no technical definition of a state of war. It may be more consistent with principle to say that whether a state of war exists is a question of international law, but if there is any doubt as to whether a state of war exists, that is a question which is reserved to the executive.
31. Consequently, the certificate of the Foreign Secretary given on behalf of the Crown as to the existence of a state of war involving HMG is conclusive and binding on the court: R v Bottrill, ex parte Kuechenmeister [1946] 1 All ER 635, affd [1947] 1 KB 41, at 50, where Scott LJ said:

"If the King says by an Act of State that the Commonwealth of countries over which he reigns is at war with a particular state, it is at war with that state, and the certificate of the Secretary of State is conclusive."

32. Because English courts do not recognise any intermediate state between peace and war, in the event of there being an armed conflict which does not give rise to a state of war, a state of peace would still be considered to subsist: McNair and Watts, p.45.
33. On February 19, 2003 Lord Goldsmith, the Attorney General, said in the House of Lords that:

"The last time there was a declaration of war was in 1939. It is not necessary to make a declaration of war these days. Since then, we have been involved in a number of armed conflicts. The existence or not of a legal state of war is nowadays irrelevant for most purposes of international law. The application of what used to be called 'the law of war' and the status of prisoners of war depends upon the existence of an armed conflict, which is a factual situation and not a question of a declaration of a state of war. Whether there is a state of war might still be relevant for certain purposes of domestic law: for example, as regards the application of certain private contracts referring to war. Apart from that … a formal declaration of war is not necessary." (HL deb, February 19, 2003, col 1139)

34. In relation to the war in Korea, the British government did not consider that there was a state of war, but it was the opinion of the Attorney General that the law of treason was applicable in connection with the conflict: McNair and Watts, p. 52.
35. In 1982, HMG took the position that there was no state of war between the United Kingdom and Argentina in relation to the Falkland Islands, but that hostilities were being carried out under Article 51 of the United Nations Charter in self-defence following the Argentine invasion and occupation of the Falkland Islands. In a letter dated May 20, 1982 to Mr George Foulkes MP, the Lord President of the Council, Mr John Biffen MP, wrote ((1982) 53 BYIL 519):

"I promised to let you have a reply to the question put in the House on 13 May about the mechanism for informing the House if we were legally in a state of war with Argentina.

As you will be aware, the military and naval operations which we are currently conducting in the South Atlantic are being carried out in exercise of the United Kingdom's inherent right of self-defence recognised in Article 51 of the United Nations Charter, following the flagrantly unlawful Argentine invasion and occupation of the Falkland Islands. The prime objective of these operations is to secure the withdrawal of Argentine forces from the Islands.

In the circumstances, we do not consider that there exists a state of war between this country and Argentina. However, should Argentina formally declare war against the United Kingdom, an immediate statement would be made to the House."

36. Viscount Trenchard stated on behalf of HMG (HL Deb, vol 429, col.1178: May 5, 1982; (1982) 53 BYIL 519) that

"…neither side has in the old-fashioned way declared war on the other. I am not a lawyer, but I understand that the majority of lawyers today take the view that we are not at war but that hostilities are being carried out under Article No 51 in self defence, which has been described many times before."

37. So also when in 1999 the Government was asked whether NATO was at war with Serbia, and Baroness Symons, Minister of State at the Foreign and Commonwealth Office, replied (HL Debs, vol 602, WA 5, June 14, 1999 (1999) 70 BYIL 607):

"We have not been at war with the Federal Republic of Yugoslavia. The application of international law to an armed conflict is not dependent upon the existence of a state of war between the parties. In conducting military operations we, along with all other parties to the conflict, are bound by obligations under international law, including those arising under the Geneva Conventions 1949 and the First Additional Protocol to those conventions."

38. But the meaning of the expression "war" may vary according to the context. Thus in the United States the legal status of the Korean war and the Vietnam War and other armed conflicts has been considered in a large variety of contexts, from the application of the War Clause of the Constitution (e.g. Mitchell v Laird, 488 F 2d 611 (DC Cir 1973); Campbell v Clinton, 203 F 2d 19 (DC Cir 2000)) to the construction of a war risk exclusion in an insurance contract (e.g. Lynch v National Life and Accident Ins Co, 278 SW2d 32 (Mo 1955) and the construction of a National Guard enlistment contract (Qualls v Rumsfeld, 357 F Supp 2d 274 (DC 2005)).
39. So also in England, even if HMG does not recognise that there is a war in the sense of the traditional international law, war may still be held to exist for certain purpose. As I have said, Mr Brown relied on Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Co [1939] KB 544, a case involving the conflict between Japan and China, in which it was held that a cancellation clause in a charter party "if war breaks out involving Japan" applied.
40. The Foreign Office had stated that the current situation in China was indeterminate and anomalous and HMG was not at present prepared to say that in its view a state of war existed. At first instance Goddard J said that it was difficult to understand how any ordinary person could regard the state of affairs in China as other than involving war: [1938] 3 All ER 80, at 82. Goddard J said that it seemed to follow that HMG was not at the time of the letter prepared to say that a state of war did not exist. It merely said that HMG suspended judgment on the fact: p.83. He had to determine what the parties meant by the clause. What they meant was war in the sense which an ordinary commercial man would use it. Accordingly he was satisfied that the umpire was justified in coming to the conclusion that for the purpose of construing the document a war had broken out in which Japan was involved.
41. The Court of Appeal ([1939] 2 KB 544) emphasised that the case was concerned, and concerned only, with the question of construction of the charter party. The phrase "if war breaks out" could not mean "if war is recognised to have broken out by His Majesty's Government". At p.556 Sir Wilfred Greene MR said he had asked for any authority on which for the purpose of the municipal law of England "war" was in any way defined, and no authority could be suggested. He said (at 556):

"Nobody would have the temerity to suggest in these days that war cannot exist without a declaration of war. Similarly, the recent events in the world have introduced new methods and a new technique, with regard to which I conceive that writers on international law will dispute for many years to come. I do not propose to be the first to lay down a definition of 'war' in a so called technical sense."

42. This is a decision on the construction of the charterparty, and not, it is clear, a decision on what constitutes war for the purposes of English municipal law. Cf Navios Corp v The Ulysses II, 101 F Supp 932 (D Md 1958) (Suez within charterparty war clause).

The Iraq war

43. The position of HMG is that authority to use force against Iraq flowed from the combined effect of Security Council Resolutions 678, 687 and 1441, which were adopted under Chapter VII of the United Nations Charter, which allowed the use of force for the express purpose of restoring international peace and security. HMG's position is that Security Council Resolution 678 (1990) gave to member states authorisation to use all the necessary means to restore international peace and security in the area. That authorisation was suspended but not terminated by Security Council Resolution 687 (1991) and revived by Security Council Resolution 1441 (2002). In that resolution the Security Council determined that Iraq's possession of weapons of mass destruction constituted a threat to international peace and security, that Iraq had failed, in clear violation of its legal obligations, to disarm and that, in consequence, Iraq was in material breach of the conditions laid down by the Security Council in Resolution 687 at the end of hostilities in 1991, thus reviving the authorisation in Security Council Resolution 678. On the wider considerations of the legality of the Iraq war, which do not and cannot arise in this case, see Professor Christopher Greenwood, Afghanistan, Al-Qaida, and Iraq (2003) 4 San Diego Int LJ 7; and contrast Professor Vaughan Lowe, The Iraq Crisis: What Now? (2003) 52 ICLQ 859; Professor Thomas Franck, What Happens Now: the United Nations After Iraq (2003) 97 AJIL 607.
44. HMG's position is set out in a number of public documents, including a reply to a written question in the House of Lords by Lord Goldsmith QC, Attorney General, March 17, 2003 (2003) 74 BYIL792; (2003) 52 ICLQ 811; and in a Foreign and Commonwealth Office Paper sent by the Foreign Secretary on the same day to the Chairman of the Foreign Affairs Committee: (2003) 74 BYIL 793; (2003) 52 ICLQ 812-814.
45. HMG's position is also set out in a letter to Mr Brown's Member of Parliament (Eleanor Laing MP) dated April 4, 2005, from Baroness Symons, Minister of State at the Foreign and Commonwealth Office, who said:

"Authority to use force against Iraq derived from the combined effect of UNSCRs 678, 687 and 1441; and all of those resolutions were adopted under Chapter VII of the UN Charter, which allows the use of force for the express purpose of restoring international peace and security."

46. I am satisfied that HMG's position is that there is not, and has not been, a state of war between the United Kingdom and the Republic of Iraq, and that it is therefore not necessary for me to ask any questions of the Foreign and Commonwealth Office. I am also satisfied that the disability of alien enemies is part of the rules of English law relating to the traditional laws of war, and that there is no warrant for extending it to modern armed conflict not involving war in the technical sense. To the extent that there is a public policy against enriching a person who is resident in a foreign State with which there are hostilities, that policy was satisfied in the case of Iraq by the Iraq (United Nations Sanctions) Order 2000 (SI 2000 No 3241).
47. Accordingly Mrs Amin succeeds on the preliminary issue. I will hear argument on the form of order if it cannot be agreed.