Mbasogo & Anor v Logo Ltd & Ors

English courts will not determine a foreign state's claim where, viewed in substance, it asserts sovereign authority or seeks relief arising from the exercise of sovereign power. A patrimonial claim which could equally be brought by an individual remains justiciable.

The tort of assault requires an overt act causing apprehension of immediate unlawful force and a present capacity to carry out the threat. Emotional distress falling short of bodily or recognised psychiatric injury is not, without an established cause of action permitting it, independently compensable. The common law cannot create a remedy for a single act of intentional harassment where Parliament has confined the statutory remedy to a course of conduct.

The President and Republic of Equatorial Guinea alleged that the defendants had conspired in England and elsewhere to overthrow the government by an armed coup. They claimed damages for assault, conspiracy and intentional infliction of harm by unlawful means. The Republic sought losses arising from its investigation, detention and prosecution of suspects, security measures, a state of emergency and economic disruption. The President also claimed for anxiety and distress. Both claimants sought an injunction against further activity.

Davis J, in [2005] EWHC Civ 2034, struck out the damages claims but permitted the proposed injunction claim to continue. The claimants appealed, and the defendants cross-appealed against the survival of the injunction claim and contended that all claims were non-justiciable. The central questions concerned foreign sovereign claims, assault, recovery for emotional distress and unlawful-means conspiracy.

1. Disposition. The appeal was dismissed and the cross-appeal allowed. All claims failed. The Republic's damages and injunction claims, and the President's corresponding claim for special damages, were non-justiciable. The President's remaining claims for assault and emotional distress were also properly struck out.
2. A foreign state's claim is unenforceable where, examined in substance, bringing it constitutes an act of sovereign character, an assertion of sovereign authority or an attempt to vindicate sovereign acts. This wider principle explains the rule against enforcing a foreign state's penal, revenue or other public laws. By contrast, a patrimonial claim arising from property ownership, contract or another right which an individual could equally assert remains justiciable.
3. The pleaded losses arose from governmental decisions made to protect the state and its citizens from revolution. Investigation of the conspiracy, detention and prosecution of suspects, declaration of a state of emergency and increased security were exercises of sovereign authority. Their costs could not be transformed into private property losses. The same reasoning prevented an injunction arising from the governmental response to the attempted coup.
4. The assault claim disclosed no cause of action. Assault requires an overt act causing apprehension of immediate unlawful force, coupled with the capacity to carry the threatened violence into immediate effect. Neither the advance group's presence in Malabo nor the mercenaries' preparations in Zimbabwe constituted the necessary overt act. The pleadings also failed to allege that the advance group was armed or otherwise capable of an immediate attack.
5. The President could not recover for anxiety and distress unaccompanied by bodily or recognised psychiatric injury. Lord Hoffmann's observations in Hunter and Wainwright did not establish a new tort. The court was bound by Wong. Parliament had provided a remedy for anxiety caused by a course of harassment under the Protection from Harassment Act 1997, but had not created liability for a single act. The common law could not supply that omitted remedy.
6. The court expressed no view on whether a tort of intentionally causing harm by unlawful means exists or on the ingredients of unlawful-means conspiracy. Those issues were unnecessary after the findings on justiciability and recoverable damage. The court nevertheless doubted, without deciding, that Powell v Boladz bound it to require unlawful means to be independently actionable.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1370, dismissed the claimants' appeal, allowed the defendants' cross-appeal and held that all claims failed.
2. High Court, Queen's Bench Division: Davis J, in [2005] EWHC Civ 2034, struck out both claimants' damages claims but refused to strike out the proposed claim for an injunction.