Mohamed v Breish & Ors

The one voice doctrine requires the English court to determine which body represents the government of a foreign state under English law where the United Kingdom Government has unequivocally recognised that body. The court does not then investigate whether the recognised government was lawfully constituted or authorised under the foreign state's constitutional law. A declaration should not determine a hypothetical issue whose relevance depends on the case a party may later plead. The effect of a prior determination must be assessed in light of the concessions and issues actually made or raised.

This judgment supplemented the court's earlier judgment of 14 February 2019, [2019] EWHC 306 (Comm), concerning Dr Mohamed's claim to be the validly appointed Chairman of the Libyan Investment Authority. The earlier judgment determined that, under English law and the one voice doctrine, the Government of National Accord and the Presidency Council represented the executive authority and Government of Libya from at least 19 April 2017.

Mr Breish applied for a supplementary declaration concerning whether the earlier declarations left open the question whether the Government of National Accord and the Presidency Council had power under Libyan law, including the Libyan Political Agreement, to appoint the Authority's Board of Trustees under Article 6 of Law No. 13. The central issue was whether that question arose on the pleaded and conceded issues.

1. Application refused. The court declined to grant either proposed supplementary declaration. The earlier declarations were clear, and it was inappropriate to answer by declaration a presently hypothetical question.
2. The question of which body represents the executive authority and Government of Libya, if it arises before the English court, is determined under English law. Where HMG has unequivocally recognised a particular body as the government, the one voice doctrine prevents the court from investigating whether that body was lawfully constituted or authorised under foreign law.
3. The earlier determination did not decide every possible issue under Article 6 of Law No. 13. If that provision required both governmental status and a vote of confidence from the House of Representatives, those questions would not have been answered by the preliminary issues or by the one voice principle.
4. However, Mr Breish had conceded that references in Law No. 13 to the General People's Committee were to be read as references to the executive authority and Government of Libya from time to time. On that concession, the question whether the GNA and PC had appointment power became the question whether they were the government's executive authority, which had already been answered affirmatively.
5. The earlier judgment resolved that the identity of the government did not depend on Libyan law, but did not resolve whether the conceded statutory reading applied or whether Dr Mohamed was validly appointed. The relevance of any constitutional issue depended on any amended case Mr Breish might seek to plead. No further declaration was therefore made.

First-instance consequential application following the court's preliminary-issues judgment of 14 February 2019, [2019] EWHC 306 (Comm). The present application for clarification or an additional declaration was refused.