Nissan v Attorney-General (Attorney-General v Nissan)

Military forces sent abroad to assist a friendly government do not become its agents merely because it consented to their presence and received their assistance. An intergovernmental agreement does not give every act undertaken during the operation the character of an act of State.

The occupation of premises for routine accommodation is cognisable by the courts unless the pleaded facts show the exceptional sovereign character and intention required for an act of State. Incorporation of national troops into a United Nations force does not, without more, transfer responsibility for their continuing occupation. Responsibility ordinarily ends when those troops leave and an independent contingent takes possession, subject to any contractual liability.

The respondent, a citizen of the United Kingdom and Colonies, was the tenant of a hotel in Cyprus. British troops occupied it from 29 December 1963. They initially formed part of a truce force assisting the Cyprus Government and, from 27 March 1964, a British contingent of a United Nations peacekeeping force. Finnish and other non-British troops took over on 5 May 1964.

The respondent claimed payment or compensation for the occupation and related losses. Preliminary questions asked whether the pleaded facts established that the British forces acted as agents of Cyprus, whether their conduct was a non-justiciable act of State, and whether the Crown ceased to be answerable when the forces joined the United Nations operation.

The Court of Appeal rejected the agency and act-of-State defences for the first period but upheld the defence concerning the United Nations period. The Attorney-General appealed and the respondent cross-appealed.

1. Disposition. The House unanimously dismissed the Attorney-General’s appeal and allowed the respondent’s cross-appeal in part. The pleaded agency and act-of-State defences did not answer the claims arising before 27 March 1964. Nor did participation in the United Nations force answer claims arising while British troops remained in the hotel between 27 March and 5 May 1964. Subject to any contractual liability, the Crown was not liable for occupation by non-British forces after 5 May 1964.

2. Agency. All five Law Lords concluded that the facts did not establish agency. Per Lord Reid, Lord Morris, Lord Pearce, Lord Wilberforce and Lord Pearson, the forces operated under British command. Consent, cooperation and assistance to the Cyprus Government did not create a relationship of principal and agent or show that Cyprus controlled the forces or their accommodation arrangements.

3. Act of State. The House agreed that the pleaded occupation was cognisable by the courts. Per Lord Morris, Lord Pearce, Lord Wilberforce and Lord Pearson, the sending of forces and the intergovernmental agreement could possess a sovereign or international character, but routine provision of accommodation was ancillary. The pleadings disclosed no military necessity, sovereign seizure or intention to exclude municipal remedies. The connection between the agreement and the occupation was too tenuous to confer immunity.

4. Lord Reid would have held more broadly that an act of State could never exclude the legal remedy of a citizen of the United Kingdom and Colonies for interference with property, wherever situated. Lord Pearce saw force in that conclusion but found it unnecessary to decide. Lord Morris and Lord Pearson reserved the question. Lord Wilberforce considered that some acts abroad in the conduct of foreign relations might be non-justiciable even at the suit of a British subject. The broader nationality question therefore formed no common basis of decision.

5. United Nations period. Per Lord Morris, Lord Pearce, Lord Wilberforce and Lord Pearson, the United Nations was an international organisation rather than a sovereign state. British troops remained in national service, and the pleaded international arrangements did not transfer their existing occupation or any resulting liability to the United Nations or Cyprus. When the British contingent left and independent non-British contingents took possession, British responsibility ended unless supported by contract.

6. Questions reserved for trial. The House did not finally determine the respondent’s contractual, quasi-contractual, unjust-enrichment or prerogative claims. Those issues depended upon facts and, potentially, Cypriot law. The express and implied contract claims were permitted to proceed.

1. House of Lords: Dismissed the Attorney-General’s appeal. Allowed the respondent’s cross-appeal to the extent that the Crown’s defence did not defeat claims for the period of British occupation from 27 March to 5 May 1964. Declared that, absent contractual liability, the Crown was not liable after non-British forces took possession.

2. Court of Appeal: Held that the pleaded facts established neither agency for the Cyprus Government nor an act-of-State defence for the initial period. It upheld the conclusion that no claim lay against the Crown for the period after the British forces joined the United Nations force.

3. Queen’s Bench Division: Rejected the agency defence but accepted the act-of-State defence for most claims concerning the initial occupation. It also held that the Crown was not liable for the United Nations period.