Aziz v Aziz & Ors Rev 1

The protection afforded to a serving foreign head of state by Article 29 of the Vienna Convention on Diplomatic Relations 1961, as applied by section 20 of the State Immunity Act 1978, extends to the head of state personally and is not confined to official acts. The duty to take appropriate steps against attacks on dignity is qualified, however, and is not itself an immunity.

Identifying a head of state in a judgment does not constitute an attack on dignity merely because the litigation may cause embarrassment. A foreign sovereign receives the same protection from unnecessary embarrassment as another third party, but no enhanced right to secrecy. Open justice prevails unless non-disclosure is necessary to protect an affected interest or to secure the administration of justice.

The claimant obtained judgment against a defendant who had induced her to transfer substantial sums through an invented relationship. The litigation and related committal proceedings referred to the claimant’s former husband, the Sultan of Brunei, because the defendant had attempted to exert pressure through his representative.

Gray J refused the Sultan’s request for permanent anonymity and comprehensive restrictions on identifying material, although the committal hearing was conducted privately and confidential material was protected. Underhill J later gave redacted judgments following the trial and further committal proceedings.

The Sultan appealed from Gray J’s decision. He sought further redaction of the judgments and a prohibition on material identifying him. The central issues were whether Article 29 of the Vienna Convention on Diplomatic Relations 1961, applied through section 20 of the State Immunity Act 1978, conferred enhanced protection and whether open-justice principles otherwise required anonymity.

1. Disposition. The appeal was dismissed unanimously. The existing privacy measures and redactions were sufficient. There was no basis for removing the Sultan’s identity or the other identifying material from the judgments.

2. Article 29 of the Vienna Convention on Diplomatic Relations 1961, as applied by section 20 of the State Immunity Act 1978, protects a serving foreign head of state personally. Its application is not confined to official acts or to cases in which the impugned conduct actually prevents the performance of state functions. Gray J had therefore erred insofar as he distinguished between the Sultan’s public and private capacities.

3. The final sentence of Article 29 does not create an immunity. It imposes a qualified obligation to take appropriate steps rather than an absolute duty to prevent every affront. The material before the court did not sufficiently establish a customary international law rule requiring a state to prevent private individuals from publishing material which merely insults a foreign head of state abroad.

4. A deliberately offensive act intended to lower a head of state in public estimation is not, without more, an attack on dignity for Article 29 purposes. Such an interpretation would intrude impermissibly upon freedom of expression. Mentioning the Sultan as the claimant’s former husband, and explaining his representative’s central role in the contempt proceedings, was neither an attack nor an interference with dignity. The judgments contained no adverse finding or confidential information about him.

5. The governing principle was open justice. Under CPR 39.2 and the court’s inherent jurisdiction, a hearing, judgment or identity may be protected where this is necessary for the administration of justice, the preservation of confidentiality or the protection of an affected person. Embarrassment alone does not displace the general rule. A third party may have a stronger claim than a litigant to protection from avoidable harm, but the restriction must have an objective and necessary basis.

6. The Sultan could seek redaction without waiving immunity for other purposes, and his status and the United Kingdom’s international obligations were relevant discretionary considerations. They did not confer a superior entitlement to secrecy. Sedley LJ added that a foreign sovereign is entitled to no less protection from unnecessary embarrassment than another third party, but equally no more. Sir Anthony Clarke MR agreed with both judgments.

1. Court of Appeal (Civil Division): Dismissed the Sultan’s appeal and upheld the refusal to impose further anonymisation or redaction.
2. High Court, Queen’s Bench Division (Gray J): On 1 November 2005 refused permanent anonymity and comprehensive restrictions identifying the Sultan, while directing that the committal hearing be private and preserving confidential material. Permission to appeal was granted on 29 November 2005.
3. High Court, Queen’s Bench Division (Underhill J): Following trial and further committal proceedings, issued judgments redacted to protect confidential and personally sensitive material, but did not remove references identifying the Sultan.