Harb v King Fahd Bin Abdul Aziz

Open justice is the starting point. A preliminary issue concerning sovereign immunity is a public question of law, particularly where immunity is asserted in relation to private acts. It should be heard in public even though the underlying family claim would ordinarily be heard in chambers. The court must separate the immunity issue from the merits and disregard untested allegations irrelevant to that issue. Article 29 of the Vienna Convention protects the substance of a diplomatic agent’s person, freedom and dignity; it does not require secrecy or anonymity to prevent publicity arising from reliance on sovereign immunity. Anonymity should not be ordered where it would merely disguise the sovereign’s identity and that identity is relevant to public debate.

Mrs Harb issued an originating application under section 27 of the Matrimonial Causes Act 1973, asserting that she was the King’s wife and that he had failed to provide reasonable maintenance. The King accepted that the Kingdom of Saudi Arabia was a state for the purposes of the State Immunity Act 1978 and that he was its sovereign and head. He claimed immunity from suit.

The President of the Family Division heard the preliminary issue in private, upheld the immunity claim, and imposed confidentiality and anonymity orders on 15 December 2004. The appeal concerned whether the immunity issue should have been heard publicly and whether the related privacy provisions should stand. It did not determine the merits of the maintenance claim.

Unanimous outcome. The court extended time, granted permission to appeal and allowed the appeals. It deleted paragraphs 4, 5 and 6(a) of the order of 15 December 2004. Paragraph 6(b) remained in force.

1. Misdirection. The President correctly recognised open justice and the existence of private family proceedings. She nevertheless elided the sovereign-immunity issue with the underlying section 27 claim. The chambers practice governing ancillary-relief merits hearings under Rule 2.66 did not govern the separate preliminary issue. The preliminary issue involved only agreed facts and legal argument, so the contents of Mrs Harb’s affidavit were irrelevant.
2. Public character of immunity. A claim to State or sovereign immunity is a public claim demanding open litigation, especially where private rather than governmental acts are involved. The limits of immunity in that context are matters of legitimate public interest. If immunity defeats a merits hearing, that deprivation should be declared through open justice.
3. Discretion and confidentiality. The power to order a private hearing under CPR 39.2(3)(c) is discretionary, but anticipated press interest, embarrassment, distress, or possible later publicity could not justify secrecy on this pure legal issue. The approach towards greater openness in Pelling v Bruce-Williams (2004) 2 FLR 823 supported that conclusion.
4. Article 29. Article 29 of the Vienna Convention, as applied to a head of state by section 20(1) of the State Immunity Act 1978, was not breached by an open hearing. Lord Justice Wall emphasised that the provision concerned protection of the person, freedom and dignity in substance; it did not protect a sovereign from publicity resulting from deployment of an immunity plea.
5. Anonymity. There was no legitimate basis under CPR 39.2(4) for an order that would thinly disguise the sovereign’s identity. His identity was relevant to public debate concerning the immunity issue, and the court should be cautious about fictional party names that shield proceedings from scrutiny. The original heading and title were restored.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 632, the court unanimously allowed the appeals concerning the public hearing and privacy orders, extended time and granted permission.
2. High Court of Justice, Family Division: The President heard the preliminary immunity issue in private, upheld the King’s claim to immunity, and made confidentiality and anonymity orders on 15 December 2004.