HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Harb

A former head of state’s personal immunity ends when office ends, whether by resignation, expiry, removal or death. The estate of a head of state who dies in office therefore has no immunity from civil proceedings concerning private acts performed during office, although immunity continues for official acts. Under the State Immunity Act 1978, this result follows by applying the Diplomatic Privileges Act 1964 and the Vienna Convention on Diplomatic Relations 1961 with necessary modifications, consistently with customary international law. Functional considerations, comity and public policy do not justify an additional post-death immunity. Article 6 of the European Convention on Human Rights does not make a claim justiciable where the statutory restriction reflects generally recognised international law. The appeal was dismissed.

Mrs Harb claimed damages from the Prince for breach of an alleged oral contract made in June 2003. The Prince applied to strike out the claim, asserting that he had acted solely as agent for his late father, King Fahd, and that the claim was effectively against the King’s estate, which enjoyed sovereign immunity under section 20(1) of the State Immunity Act 1978.

Rose J rejected the immunity argument in [2014] EWHC 1807 (Ch). On appeal, the parties accepted assumptions that the Prince had acted only as agent and that the claim could be treated as one against the estate. The central issue was whether immunity for private acts survived the death in office of a head of state. An Article 6 argument was considered in the alternative.

The judgment of Aikens LJ, with which Pitchford and Bean LJJ agreed, dismissed the appeal.

1. Basis for decision. Although the claim as pleaded was against the Prince personally and did not allege agency, the court decided the immunity issue on the agreed assumptions. It did so despite the fact that any later claim against the late King’s estate would be time-barred.
2. Statutory construction. Section 20(1) of the State Immunity Act 1978 is the relevant source of English law on immunity for heads and former heads of state. It applies the Diplomatic Privileges Act 1964 and the Vienna Convention on Diplomatic Relations 1961 with necessary modifications. The court adopted a two-stage approach: construe Article 39(2) with those modifications, then test the result against customary international law and relevant authorities.
3. Effect of Article 39(2). A serving head of state enjoys immunity from the criminal, civil and administrative jurisdiction of the United Kingdom, subject to the exceptions in Article 31(1)(a)–(c). When the head ceases to hold office, personal immunity ends, but immunity continues for official acts performed during office. Article 39(2) draws no distinction between a head of state who leaves office alive and one who dies in office.
4. Deceased head of state. The estate of a deceased head of state no longer personifies the state and cannot claim immunity for private acts performed during the head’s period in office. The functional rationale of immunity, and considerations of public policy, comity and international co-operation, do not justify extending immunity to such private claims. An inquest into the death of a head of state may engage immunity because it concerns official interference with the affairs of another state, but that does not support immunity for private acts.
5. Article 6. The right of access to a court under Article 6 of the European Convention on Human Rights does not override a restriction reflecting generally recognised rules of public international law on state immunity. The point was alternative because the main issue had been resolved.
6. Disposition. State immunity did not arise on the pleaded claim against the Prince. Even if the claim became one against the King’s estate, the estate could not claim immunity. The appeal was dismissed.

• Court of Appeal (Civil Division) In [2015] EWCA Civ 481, the court dismissed the appeal from Rose J’s refusal to grant an order declaring that the claim was barred by state immunity.
• High Court (Chancery Division) In [2014] EWHC 1807 (Ch), Rose J rejected the Prince’s state-immunity challenge on the assumed basis that the claim was effectively against the estate of the late King Fahd.