Render v Howard

A claim against a foreign state in its sovereign capacity is not justiciable in an English court under the principle of state immunity. That principle applies where the claim is framed against the state's Prime Minister as its representative. A default judgment cannot be entered before the claim form has been served. State immunity is not displaced by the European Convention on Human Rights. Where no viable basis for English adjudication is shown, the claim may be struck out and permission to appeal refused.

Mrs Karen Seigrid Render issued a claim form in England against John Howard, the Australian Prime Minister, at the address of the Prime Minister's office. She sought compensation, permanent residency, and orders concerning an Australian Supreme Court file and agreements. At a directions hearing in the Newcastle County Court, she applied for default judgment although the claim form had not been served. His Honour Judge Walton refused default judgment and struck out the claim as non-justiciable because it was a claim against Australia as a sovereign state. The Court of Appeal considered whether there was any prospect of successfully challenging that conclusion.

Application for permission to appeal refused.

1. The refusal of default judgment was plainly correct. The claim form had not been served, so there could be no default judgment.
2. The claim was properly treated as a claim against Australia in its capacity as a sovereign state, notwithstanding that it was issued against the Australian Prime Minister at the address of his office. The English law principle of state immunity prevents the acts of a sovereign state from being adjudicated upon in an English court. The claim was therefore not justiciable.
3. The directions hearing had proceeded, in effect, as if permission to serve the claim form had been granted. The question whether service could be effected was consequently treated as part of the question whether the claim should be struck out as non-justiciable.
4. The applicant's reliance on human rights did not provide a basis for appeal. The principles of state immunity were not challenged by the European Convention on Human Rights and pre-dated it substantially.
5. Since the claim was not justiciable in the English courts, there was no prospect of a successful appeal. The judge below was entirely correct to strike out the claim.

1. Court of Appeal (Civil Division): On 16 May 2001, Lord Justice Longmore refused permission to appeal and upheld the conclusion that the claim was non-justiciable. [2001] EWCA Civ 754.
2. Newcastle County Court: His Honour Judge Walton refused the application for default judgment and struck out the claim as non-justiciable at a directions hearing.