Holland v Lampen-Wolfe

A foreign state is immune from proceedings concerning acts performed in the exercise of sovereign authority. Characterisation depends on the nature and character of the act, assessed in its whole context, rather than its motive or purpose.

Proceedings concerning educational services provided for a foreign state’s armed forces at an overseas military base, including official supervision of those services, may relate to the armed forces and concern sovereign activity. Where international law requires state immunity, article 6 of the European Convention on Human Rights and Fundamental Freedoms does not enlarge the adjudicative jurisdiction of the domestic courts.

An American university professor brought defamation proceedings against a civilian official of the United States Department of Defense. The claim concerned a memorandum, written at the Menwith Hill military base during the official’s supervision of educational programmes for American military personnel and their families, which criticised the professor’s performance.

The Master set aside the writ and dismissed the action on grounds of state immunity. Appeals to a judge and the Court of Appeal were dismissed, the latter decision being reported at 1 W.L.R. 188. The professor appealed to the House of Lords.

The central questions were whether Part I of the State Immunity Act 1978 was disapplied by section 16(2), whether the memorandum was an act performed iure imperii at common law, and whether article 6 prevented recognition of the immunity.

1. Appeal dismissed unanimously. All five Law Lords concluded that the United States could assert state immunity on behalf of its official.

2. Per Lord Millett, with Lord Hope, Lord Cooke and Lord Hobhouse agreeing in substance, the proceedings related to something done “in relation to” the armed forces of the United States while present in the United Kingdom. Lord Hope and Lord Millett also considered that the respondent acted as part of the civilian component of those forces, although that conclusion was unnecessary. Section 16(2) of the State Immunity Act 1978 therefore disapplied Part I, leaving immunity to be determined at common law. Lord Clyde likewise adopted a broad construction of “in relation to”.

3. Per Lord Millett, Lord Hope and Lord Clyde, common-law state immunity applies to acts performed iure imperii. The nature and character of the act must be assessed in its whole context. Its motive or purpose is not decisive, and rigid categories or a single bright-line test are inappropriate.

4. The provision of education to military personnel and their families at an overseas military base was, in modern conditions, a normal and necessary aspect of maintaining the armed forces. Its supervision by an official of the foreign state had the same sovereign character. The commercial agreement under which the university supplied teaching staff, the civilian status of the professor and the non-military content of the courses did not alter that conclusion. Lord Cooke regarded the result as a modern application of sovereign equality to a state’s educational and welfare responsibilities towards its forces.

5. Per Lord Millett, article 6 of the European Convention on Human Rights and Fundamental Freedoms regulates access to adjudicative powers which a contracting state possesses; it does not confer jurisdiction which customary international law denies. The United States had not waived its immunity. Lord Hope and Lord Clyde likewise concluded that recognising immunity required by international law did not infringe article 6 in these circumstances.

6. Lord Millett added, obiter, that section 3 would not have removed immunity. The defamation claim arose independently of the commercial contract and was not a proceeding “relating to” that transaction within section 3(1)(a). The memorandum was also written in the exercise of sovereign authority and therefore fell outside section 3(3)(c).

1. House of Lords: Dismissed the appeal unanimously and upheld the United States’ state immunity.

2. Court of Appeal: Nourse and Hutchison L.JJ. and Sir John Balcombe dismissed the appeal; the decision was reported at 1 W.L.R. 188.

3. Judge: Dismissed the professor’s appeal from the Master.

4. Master: Set aside the writ and dismissed the action with costs on grounds of state immunity.