Holland v Lampen-Wolfe

State immunity depends on the character and official context of the act, not solely on the defendant’s formal status under the Visiting Forces Act 1952. An employee of a foreign defence department acting under official instructions may have done an act by the armed forces for section 16(2) of the State Immunity Act 1978. Education supplied to deployed forces is a normal and necessary sovereign military function.

Alternatively, the statutory commercial-transaction exception did not apply. A defamation claim arising during performance of a services contract was not a proceeding relating to that contract, and the education activity was sovereign rather than commercial. The Act contains no general defamation exception.

The appellant, an American professor teaching at Menwith Hill, brought a libel claim against an American Department of Defence educational services officer. The claim concerned a memorandum sent by the respondent to the university’s European office about the appellant’s alleged performance.

The respondent succeeded on state immunity before Master Trench, and the appellant’s appeal was dismissed by Mr Mitting QC sitting as a deputy High Court judge. The central issues were whether the memorandum concerned an act done by the United States armed forces, whether the State Immunity Act 1978 applied, and whether any statutory exception covered the claim.

Lord Justice Nourse delivered the judgment. Lord Justice Hutchison and Sir John Balcombe agreed. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

1. Section 16(2) of the State Immunity Act 1978 excluded the application of that Part where proceedings related to anything done by or in relation to foreign armed forces present in the United Kingdom. The respondent’s memorandum was an act done by the United States armed forces. He was employed by the United States Department of Defence, had acted under instructions from his superior, and wrote the memorandum in the course of his official duties. His lack of the passport entry and recognition note required for civilian-component status under the Visiting Forces Act 1952 was not decisive.
2. The reasoning and result in Littrell v United States of America (No 2) [1995] 1 WLR 84 were directly applicable. The provision of education for armed forces posted abroad and their families was, like medical services, a normal and necessary part of maintaining those forces in a foreign country. It was therefore an exercise of sovereign authority, or jure imperii, rather than a private or commercial activity.
3. Alternatively, if section 16(2) did not apply, section 1(1) preserved immunity unless a specified exception applied. Section 5 contained exceptions for death, personal injury, and damage to or loss of tangible property, but no exception for defamation.
4. The contract between the United States Government and Troy State University was a contract for the supply of services. Nevertheless, the defamation proceedings did not relate to that contract within section 3(1)(a). Their only connection with the contract was that the acts complained of occurred during its performance; the claim raised no issue concerning the contract’s meaning, enforceability, or due performance. Garland v British Rail Engineering Ltd [1983] 2 AC 751 did not justify a different conclusion.
5. The education activity was not undertaken otherwise than in the exercise of sovereign authority for the purposes of section 3(3)(c). The commercial-transaction exception was therefore unavailable.
6. The observations concerning Article 6 of the European Convention on Human Rights were alternative. On the law as it then stood, the Convention could assist only in resolving ambiguity in United Kingdom legislation or uncertainty in the common law, and neither existed. In any event, immunity for sovereign acts was considered unlikely to contravene Article 6.

1. Court of Appeal (Civil Division): Appeal dismissed with costs; leave to appeal to the House of Lords refused.
2. Queen’s Bench Division: Mr Mitting QC, sitting as a deputy High Court judge, dismissed the appellant’s appeal on 16 January 1998 and granted leave to appeal.
3. Master Trench: On 19 December 1997, set aside the writ and service and dismissed the action with costs.