Corinna Zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Victor Maria de Borbón y Borbón

Statutory immunity for a head-of-state’s family member under the State Immunity Act 1978, section 20(1)(b), depends on being part of the head of state’s household. Family relationship, constitutional status, or possible damage to royal dignity cannot alone expand that language. The term may arguably extend beyond co-residence to immediate family sharing or assisting in the head of state’s functions, but a person who neither lives with the head of state nor supports those functions cannot realistically qualify. At the permission stage, allegations that a head of state procured harassment through state security services were arguable as conduct in a public capacity. Permission was therefore granted for a full appeal on that issue, but refused on the household-immunity ground.

The claimant alleged that the defendant, a former Spanish king, had harassed her from 2012 and sought damages and injunctive relief under the Protection from Harassment Act 1997. The defendant sought declarations that the court lacked jurisdiction because he was immune under the State Immunity Act 1978 and the Diplomatic Privileges Act 1964 as extended by section 20 of the 1978 Act.

Nicklin J dismissed the immunity application and refused permission to appeal: [2022] EWHC 668 (QB). The defendant applied to the Court of Appeal. The central issues were whether pre-abdication acts could arguably have been performed in a public capacity, and whether the defendant was a family member forming part of the current King’s household.

1. Disposition. Permission to appeal was granted on grounds 1, 2 and 4, concerning functional immunity for alleged pre-abdication acts. Permission was refused on ground 3, concerning family-member household immunity under section 20(1)(b) of the State Immunity Act 1978, and on ground 5, which relied on the wider importance of the issue and comity.
2. Functional immunity. It was arguable that the original pleading, alleging that the head of state had procured the head of the state security service to organise harassment, necessarily alleged conduct in a public capacity, even if abusive. The issue could not be resolved simply by a late amendment stating that the agents acted privately. The Court expressed no positive view on the merits, but considered the issue sufficiently unclear and important for determination on a full appeal. It might ultimately be impossible to resolve the immunity question at the preliminary stage.
3. Household immunity. Mere membership of the immediate or core Royal Family, constitutional status, or the risk of injury to the dignity of the monarchy did not satisfy the statutory requirement of forming part of the head of state’s household. The statutory language had to be given effect and could not be expanded to cover every family member whose involvement in proceedings might affect the head of state.
4. The Court considered Al Saud v Apex Global Management Ltd [2013] EWCA Civ 642, [2014] 1 WLR 492. Even assuming that “household” could extend beyond the domestic sense to family members assisting with the head of state’s functions, the defendant neither lived with the King nor assisted his work. He therefore had no real prospect of qualifying under any arguable approach. The phrase concerning necessary modifications in section 20(1) did not alter that conclusion, and the Spanish description “Royal House” was irrelevant to the meaning of the UK statute.
5. The absence of evidence or an immunity claim from the King or Spain, and the absence of a certificate under section 21, were not part of the operative reasoning. They were merely prefatory matters. Comity did not justify permission on a ground which had no real prospect of success on the facts, particularly given the resulting costs and delay.

The stay relating to the remaining claim was to continue pending an early appeal.

• Court of Appeal (Civil Division): Permission to appeal granted on grounds 1, 2 and 4, and refused on grounds 3 and 5: [2022] EWCA Civ 1052.
• Queen’s Bench Division: Nicklin J dismissed the defendant’s statutory-immunity application and refused permission to appeal: [2022] EWHC 668 (QB).