Al Attiya v Bin-Jassim Bin-Jaber Al Thani

A foreign state may claim immunity where proceedings against its public official, although framed against the individual, in substance challenge acts performed under public authority. The court determines state immunity from the pleadings at a preliminary stage.

For diplomatic immunity, the question whether a person is a diplomatic agent is one of law for the court. A certificate under section 4 of the Diplomatic Privileges Act 1964 is conclusive as to certified facts, but not as to legal conclusions. For a member of diplomatic staff other than a head of mission, notification and acceptance of accreditation are strong evidence of membership. A separate judicial inquiry into the person’s actual performance of diplomatic functions is not required while the accreditation remains effective.

The claimant brought proceedings for trespass to land and person, alleging that the defendant, a former Qatari Foreign Minister and Prime Minister, had procured public acts including compulsory acquisition of land, removal from Saudi Arabia, detention and prosecution in Qatar.

The defendant applied for an order that the court had no jurisdiction, relying on state immunity and diplomatic immunity. The claim was considered on the pleadings and documentary evidence. The Foreign and Commonwealth Office certified that the defendant’s appointment to the diplomatic staff of the Qatari mission had been notified and that he had enjoyed diplomatic privileges and immunities from 6 November 2013.

The central issues were whether the claim indirectly impleaded Qatar and whether the defendant was entitled to diplomatic immunity despite evidence concerning his private activities.

1. State immunity. The claim was struck out for want of jurisdiction. Under section 1 of the State Immunity Act 1978, immunity cannot be circumvented by suing a public official individually where the substance of the claim concerns acts performed in, or purportedly in, the discharge of public duties. The allegations that the defendant directed public servants, procured detention and prosecution, and obtained a land confiscation order directly challenged the exercise of Qatar’s public authority.
2. The issue was properly determined from the pleadings at a preliminary hearing. The claimant had had ample opportunity to reformulate the claim as one against the defendant in a purely private capacity, but no amendment or draft pleading had been supplied. The proposed distinction between the defendant’s public and private capacities could not be made on the pleaded case. The claim would still have engaged state immunity because adjudication would challenge the good faith of Qatari public officials and affect Qatar’s property, rights, interests or activities.
3. Diplomatic immunity. The court also held, in the alternative, that the defendant was immune as a diplomatic agent. Section 4 of the Diplomatic Privileges Act 1964 makes a certificate conclusive evidence of facts stated in it. It does not bind the court on questions of law.
4. The legal question was whether the defendant was a member of the diplomatic staff of the Qatari mission within Articles 1 and 3 of the Vienna Convention on Diplomatic Relations. For diplomatic staff other than a head of mission, the sending state has freedom of appointment, subject to notification and the receiving state’s response. Accreditation and its acceptance are evidence of membership. The court need not conduct a fact-finding inquiry into the extent to which the diplomat has actually performed diplomatic functions.
5. The purpose of diplomatic privileges is to secure the effective performance of missions, not to benefit individuals. Nevertheless, any abuse of diplomatic status, including private commercial activity contrary to Article 42, is principally addressed through the mechanisms available to the Foreign and Commonwealth Office, including representations, waiver or persona non grata procedures. The defendant remained an accredited diplomat when the application was determined.
6. The restrictions on jurisdiction were compatible with Article 6 of the European Convention on Human Rights because they gave effect to established principles of international law. The court therefore had no jurisdiction on either ground.

The judgment records that Foskett J gave directions on 19 October 2015. This was a first-instance determination of the defendant’s jurisdictional application. Mr Justice Blake held that the court had no jurisdiction on both state-immunity and diplomatic-immunity grounds.