Harb v King Fahd Bin Abdul Aziz

A speculative challenge to an opponent’s capacity to litigate or authority to instruct representatives, unsupported by evidence and raised late, does not justify permission to appeal. Permission may nevertheless be granted where the proposed appeal raises novel and legally uncertain questions about sovereign immunity. The uncertainty of the boundaries defined by the Diplomatic Privileges Act 1964 and State Immunity Act 1978, together with the proposed engagement of the European Convention and a ruler’s marital life, justified full argument despite doubtful prospects of success.

The appellant sought permission in two respects. First, she challenged the legitimacy of the respondent King’s representation, raising questions about his capacity to litigate and the authority by which instructions had passed to his lawyers. Secondly, she sought permission to appeal the President’s judgment of 15 December, given in the High Court of Justice, Family Division, which upheld the respondent’s claim to sovereign immunity.

The Court of Appeal had to decide whether either proposed challenge justified permission, including whether the second application raised sufficiently novel or uncertain issues concerning sovereign immunity, the European Convention and the marital life of a ruler.

1. First application refused. Lord Justice Thorpe held that the challenge to the legitimacy of the respondent’s representation was speculative and unsupported by evidence. It had been raised for the first time in the appellant’s skeleton argument. The President was therefore entitled to reject it, and permission was refused.
2. Second application granted. The President had given a careful judgment and had adopted a conventionally broad view of sovereign immunity. Lord Justice Thorpe nevertheless considered that the legal position was insufficiently clear where immunity was defined by the Diplomatic Privileges Act 1964 and State Immunity Act 1978.
3. The proposed appeal also raised a novel question concerning the interaction between sovereign immunity, the European Convention and the marital life of a ruler. Although the prospects of success appeared doubtful, those issues justified permission so that they could be fully argued and determined.
4. Lady Justice Smith and Lord Justice Wall agreed with Lord Justice Thorpe. The merits of the sovereign-immunity appeal were not determined at this stage.

1. Court of Appeal (Civil Division) — On 26 May 2005, permission was refused for the challenge to the respondent’s representation but granted for an appeal concerning the President’s decision on sovereign immunity: [2005] EWCA Civ 633.
2. High Court of Justice, Family Division — The President dismissed the representation challenge and, in a judgment dated 15 December, upheld the respondent’s claim to sovereign immunity.