Belhaj & Anor v Straw & Ors

State immunity is not engaged merely because proceedings require factual consideration of foreign state conduct. It applies where the foreign state is effectively impleaded, so that it must defend itself or accept a judgment binding its rights or interests. The act of state doctrine is distinct. It may bar adjudication on the legal validity of foreign sovereign acts, particularly acts within the foreign state’s territory, where no clear and manageable standards govern the inquiry. Its limitations include grave breaches of established international law or fundamental human rights, judicial acts, commercial activity and the Kirkpatrick distinction between proving an act and challenging its legal validity. Where foreign law governs overseas torts, a claimant must plead that law; the presumption that foreign law mirrors English law cannot provide an evasive substitute.

The claimants sought declarations and damages against British political and intelligence defendants for alleged participation in their abduction, detention, rendition to Libya and subsequent mistreatment. The pleaded causes included joint tortious liability, conspiracy, trespass, misfeasance in public office and negligence. The alleged primary acts occurred in China, Malaysia, Thailand, on a US-registered aircraft and in Libya, and were attributed principally to foreign state agents.

The court determined two preliminary issues: whether parts of the claim should be dismissed under CPR 3.1(2)(l) for lack of jurisdiction or non-justiciability, and which law governed the causes of action. The central questions were whether the foreign states were indirectly impleaded, whether the act of state doctrine applied, and whether foreign or English law governed the alleged torts.

1. State immunity. The State Immunity Act 1978 imposes an absolute jurisdictional bar where applicable. State immunity extends to official acts of state agents and prevents indirect impleading where the foreign state must defend itself or suffer a judgment affecting its legal rights or interests. The present claims did not place China, Malaysia, Thailand, the United States or Libya in that position. Factual findings about foreign conduct, without a claim against the state or its agents and without binding legal consequences for the state, did not themselves engage the doctrine. The state-immunity objection therefore failed.
2. Act of state. The relevant strand is a domestic rule of judicial restraint concerning adjudication upon foreign sovereign transactions. It is ordinarily directed to acts within the foreign state’s territory. The doctrine is shaped by its limitations, including established international-law or public-policy exceptions, judicial acts, commercial activity and the Kirkpatrick distinction between proving the existence of an act and adjudicating upon its legal validity.
3. For the alleged detention and transfer by Chinese, Malaysian, Thai and Libyan officials within those states, the claim required the court to decide unlawfulness by reference to foreign law. The claimants had identified the relevant places of detention and could plead the applicable law. In the absence of clear judicial or manageable standards, the act of state doctrine applied to those parts of the claim.
4. The position concerning the US-operated black site in Thailand and transit to Libya was less clear because the conduct was outside US sovereign territory and grave human-rights breaches could engage the public-policy limitation. Nevertheless, the pleaded case required a determination that US officials had acted unlawfully, while the facts were disputed and the evidence showed serious risks to international relations and national security. With hesitation, the court held that Rahmatullah supported declining that inquiry. The act of state doctrine therefore barred the non-negligence claims.
5. Applicable law. Under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the law of the place where the tort occurred governed, unless it was substantially more appropriate to apply another law. The burden of displacing the general rule lay on the claimants, and it was not easily displaced. The alleged detention and injuries occurred overseas, with no sufficient connection making English law substantially more appropriate. The parties were required to plead the applicable foreign law; they could not rely indefinitely on the presumption that foreign law was the same as English law.
6. The claims were struck out as non-justiciable under CPR 3.1(2)(l), save to the extent that they relied on negligence.