Wokuri v Kassam

Residual diplomatic immunity under Article 39(2) of the Vienna Convention is confined to acts performed by a former diplomat in the exercise of functions as a member of the mission. It protects acts which are, in law, acts of the sending State. It is less extensive than the immunity of a serving diplomat.

Domestic employment does not automatically fall within residual immunity. Claims concerning a diplomat’s household or personal life may be outside Article 39(2), particularly where any benefit to diplomatic functions is indirect. The distinction between domestic services and official acts must be assessed functionally.

Ms Daphine Wokuri claimed unpaid salary and other employment-related relief from Ms Mumtaz Kassam, whom she said had employed her as a chef and domestic servant. Ms Kassam invoked diplomatic immunity, relying on her former membership of the Ugandan diplomatic mission in the United Kingdom and Article 39(2) of Schedule 1 to the Diplomatic Privileges Act 1964.

Ms Kassam sought to discharge an earlier order allowing further evidence concerning an alleged 2006 employment contract and to obtain a declaration that the English courts had no jurisdiction. The central issue was whether the employment-related acts were performed in the exercise of functions as a member of the mission.

1. Application dismissed. The court refused to discharge its order of 4 October 2011. The materials did not establish that diplomatic immunity answered the claim.
2. Under Article 39(2) of the Vienna Convention, a former diplomatic agent retains immunity for acts performed in the exercise of functions as a member of the mission. Such acts are in law acts of the sending State. Residual immunity is narrower than the immunity enjoyed by a serving diplomat.
3. Domestic employment does not necessarily attract residual immunity. Acts concerning a diplomat’s household or personal life, producing at most an indirect benefit to diplomatic functions, do not fall within Article 39(2).
4. Tabion v Mufti was confined to the meaning of commercial activity under Article 31(1)(c) for serving diplomats. It did not define official functions or official acts receiving continuing immunity under Article 39(2). Baoanan v Baja and Swarna v Al-Awadi supported the distinction between private domestic employment and mission functions.
5. On the evidence, Ms Wokuri’s employment began under a 1998 contract made before Ms Kassam became a diplomat. It was not shown that the contract or the nature of the work changed, that Ms Wokuri worked for the High Commission as such, or that the alleged 2006 contract took effect. The court therefore could not be satisfied that the claims arose from acts performed in the exercise of mission functions.