Kuwait Investment Office v Simon Hard

A separate legal personality under national law does not, of itself, prevent an entity from forming part of a foreign diplomatic mission. Diplomatic status, however, depends upon an express recognition by the United Kingdom executive. A court cannot infer recognition from governmental conduct or ambiguous historic documents.

Where valid diplomatic immunity exists, Article 6 does not override it. Mission documents communicated with authority to third parties lose their immunity in the form communicated, and a tribunal may order a list of recipients. A claimant need not ordinarily plead a formal reply to a respondent’s immunity defence before seeking relevant disclosure.

The claimants brought employment tribunal claims against their former employer. The employer asserted state immunity under the State Immunity Act 1978. Before the substantive jurisdiction hearing, the parties disputed whether the claimants required specific disclosure and whether the employer was entitled to diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961.

The London Central Employment Tribunal refused to require a further pleading from the claimants and ordered specified disclosure. It held that the employer’s separate status prevented diplomatic immunity and that the disclosure was relevant to state immunity. The employer appealed on eight grounds.

The central issue was whether the employer had established that Her Majesty’s Government recognised it as forming part of Kuwait’s diplomatic mission, and whether that prevented the disclosure orders.

1. Appeal allowed in part. Ground 5 succeeded. The Tribunal erred in holding that the employer’s separate legal identity necessarily prevented it from forming part of Kuwait’s diplomatic mission. A diplomatic mission has no personality separate from the sending state in international law, but it does not follow that an entity with separate personality in national law cannot be part of that mission.

2. Ground 4 failed. The one voice doctrine applies to the executive’s recognition of a diplomatic mission. If the executive makes a statement recognising an entity as part of a mission, the court must accept and give effect to it. The employer had produced no certificate under section 4 of the Diplomatic Privileges Act 1964 and none of the Diplomatic List, FCO notes, correspondence, or tax material clearly and unequivocally recognised it as part of the Kuwaiti mission. There is no legal scope for implied recognition: recognition cannot be inferred from HMG’s conduct. In any event, the evidence would not justify that inference.

3. Accordingly, the asserted protections in Articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961 did not arise, and grounds 6 to 8 fell away. The EAT nevertheless observed that Article 27(2) concerns communications intercepted while in transit and was not engaged. Article 24 protection is lost, in the form communicated, where a mission authorises communication of a document to a third party. A tribunal may order a mission to identify such recipients.

4. Article 6 of the ECHR is engaged by disclosure. It cannot, however, override a valid diplomatic immunity reflecting generally recognised public international law. No effective waiver was established on the available evidence.

5. Grounds 1 and 2 failed. The claimants could contest the pleaded immunity defence without a further formal pleading. Ground 3 also failed: the Tribunal made no error in treating the requested material as relevant to the fact-sensitive state-immunity inquiry under section 14(2) of the State Immunity Act 1978.

The Tribunal’s orders therefore remained unchanged.

• Employment Appeal Tribunal: Allowed ground 5 only and otherwise upheld the disclosure and case-management orders of the Tribunal: [2022] EAT 51.
• London Central Employment Tribunal: Following a preliminary hearing, refused the employer’s application for a further pleading and ordered specified disclosure. Its decision was sent to the parties on 18 June 2020.