Apex Global Management Ltd v Fi Call Ltd& Ors

Section 20(1)(b) of the State Immunity Act 1978 gives limited personal immunity to members of a sovereign’s family who form part of the sovereign’s household. An adult family member living separately will qualify only exceptionally, typically where he or she is an heir, regent, or a true full-time assistant exercising the sovereign’s functions on the sovereign’s behalf. Status, diplomatic passports, occasional official engagements and family relationship are insufficient. The commercial-activity exception in article 31(1)(c) of Schedule 1 to the Diplomatic Privileges Act 1964 must, when applied to sovereigns and their families, be modified by removing its territorial limitation. Immunity therefore does not extend to professional or commercial activities exercised outside official functions anywhere in the world.

Apex presented a petition under section 994 of the Companies Act 2006 concerning its shareholding in Fi Call Ltd. Prince Abdulaziz and Prince Mishal challenged the court’s jurisdiction, claiming immunity as members of the family and household of King Abdullah under section 20(1)(b) of the State Immunity Act 1978.

The court considered whether either Prince formed part of the King’s household despite living separately and undertaking some official functions. It also considered whether, if immunity existed, article 31(1)(c) of Schedule 1 to the Diplomatic Privileges Act 1964 excluded claims relating to commercial activities outside the United Kingdom.

1. Applications dismissed. Neither Prince established entitlement to sovereign immunity from Apex’s petition.
2. Section 20(1)(b) of the State Immunity Act 1978 is construed according to ordinary statutory principles. “Household” concerns family and domestic ties. It is not confined to people living under the same roof, but an adult sibling with a separate family and household would not normally also belong to the sovereign’s household.
3. The immunity is functional. An adult family member living apart may qualify in rare cases where he or she is an heir, regent, or a person broadly exercising the sovereign’s functions in a full-time capacity on the sovereign’s behalf. It cannot extend to everyone who assists the sovereign or performs occasional royal, constitutional or representational functions.
4. Neither Prince qualified on the facts. Prince Abdulaziz had no official position in the King’s Government, undertook only occasional official functions and was principally an active businessman. Prince Mishal held an important but intermittent position as Chairman of the Allegiance Council and attended official functions, but was neither heir nor regent and did not exercise the King’s functions full-time. Status and proximity to the King did not satisfy the statutory test.
5. As an alternative ground, the court held that article 31(1)(c) of Schedule 1 to the Diplomatic Privileges Act 1964 required a necessary modification when applied to sovereigns, their families and private servants. The territorial words “in the receiving State” had to be treated as absent. Otherwise sovereigns could enjoy worldwide immunity for private commercial activity, contrary to the commercial exception reflected in sections 3 and 14 of the State Immunity Act 1978.
6. Even if the Princes had qualified under section 20(1)(b), their immunity would not have extended to any action relating to professional or commercial activity exercised outside their official functions anywhere in the world. Ancillary matters were left for further argument.