Embassy of Brazil v de Castro Cerqueira

Section 12(1) of the State Immunity Act 1978 provides an effective method of serving proceedings against a foreign state in England and Wales. Parliament did not intend that method to require conduct prohibited by the law of the state where service occurs. However, service is not contrary to that law merely because the method is not recognised or permitted by it. The relevant question is whether the acts involved are prohibited. Accordingly, transmission through the Foreign and Commonwealth Office to the foreign state’s Ministry of Foreign Affairs is valid under English law unless the transmission itself contravenes the foreign state’s law.

An employee of the Brazilian Embassy brought claims for unfair dismissal and age discrimination after his employment ended when he reached the age of 70. The employment tribunal accepted that the Embassy had submitted to the jurisdiction under section 2 of the State Immunity Act 1978. It also held that service of the claim form through the Foreign and Commonwealth Office to Brazil’s Ministry of Foreign Affairs was valid.

The Embassy appealed, arguing that section 12(1) was subject to a qualification equivalent to CPR 6.40(4), and that service was invalid because the method was not permitted by Brazilian law. The central issue was the meaning and scope of “contrary to law” in section 12(1).

1. Appeal dismissed. The employment tribunal was correct to find that the claim form had been validly served.
2. Section 12(1) of the State Immunity Act 1978 is not qualified by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 or by the Civil Procedure Rules. The Civil Procedure Rules did not apply to employment tribunal proceedings and could not restrict the language of the Act.
3. Properly construed, section 12(1) did not require service by transmission through the Foreign and Commonwealth Office where that would involve conduct prohibited by the law of the state in which service was effected. Parliament could not have intended British officials to perform acts in another state which contravened that state’s law.
4. “Contrary to law” meant prohibited by the law of the state concerned. It did not mean merely that the method of service was not provided for or permitted by that law, or that it would not constitute effective service under that law.
5. The reasoning in Habib-Bank Ltd v Central Bank of Sudan [2007] 1 WLR 470 and Abela v Baadarani [2013] 1 WLR 2043 supported that distinction. Although Brazilian law did not provide for the method used, the Embassy accepted that there was no evidence that the method was prohibited by Brazilian law.
6. Service was therefore effective for the purposes of the law of England and Wales. It was unnecessary to determine whether the employment tribunal had erred concerning the alleged requirement for a Brazilian Supreme Court grant of exequatur.

• Employment Appeal Tribunal: appeal from the employment tribunal’s judgment dated 4 July 2013 dismissed. The tribunal’s finding that service was valid was upheld.