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

Functional state immunity depends on the capacity in which the former head of state or state agent acted. The court must examine the individual acts pleaded and determine whether they were performed under colour of public authority. A private motive, abuse of power, unlawfulness, or extra-territorial conduct does not prevent attribution to the state.

State immunity is an absolute preliminary bar to jurisdiction. It must be determined on the pleaded case, ordinarily before merits are examined. A claim for distress, anxiety or depression is not a section 5 personal-injury claim without a pleaded recognised psychiatric injury.

The respondent alleged a pre- and post-abdication course of harassment by the former King of Spain. The pre-abdication allegations included surveillance, covert searches and threats said to have involved the Director and operatives of the Spanish intelligence service.

Nicklin J dismissed the appellant’s state-immunity application: [2022] EWHC 668 (QB). He held that the pre-abdication conduct was private, permitted amendments which characterised the intelligence director as acting personally, and rejected the section 5 exception because no recognised psychiatric injury had been pleaded.

The appeal concerned whether the original pleading established functional immunity under State Immunity Act 1978, whether the amendment had been permissibly allowed, and whether section 5 nevertheless applied.

1. Appeal allowed unanimously. Simler LJ, with whom Popplewell and King LJJ agreed, held that the appellant had established functional immunity under section 14(1) of the State Immunity Act 1978 in respect of the pleaded pre-abdication acts.

2. The correct inquiry was not whether harassment, as a domestic cause of action, could be committed by a private person. It was whether the particular acts were undertaken in a public or private capacity: namely, under colour of, or in ostensible exercise of, public authority. A state is responsible for acts of its organs, agents and contractors acting in that capacity, even if their conduct was unauthorised, unlawful, abusive or privately motivated.

3. On the original Particulars of Claim, assumed true, the alleged conduct was expressly attributed to the Director and operatives of the Spanish intelligence service. The pleaded surveillance, covert operations and threats therefore alleged acts undertaken through state actors. The appellant’s position as sovereign gave him the status and ability to procure that conduct. The judge had wrongly treated the availability of similar conduct to a private person, and the alleged private motive, as determinative.

4. State immunity is an absolute preliminary jurisdictional bar. The judge should have determined it on the pleaded case. If a material factual dispute arises as to whether conduct was purely private, it may be tried as a preliminary issue; the court cannot defer the immunity question to the substantive trial. The judge was also wrong to suggest that unlawful acts abroad could not attract immunity in civil proceedings.

5. The amendments removing allegations of intelligence-service involvement should not have been permitted informally. A party seeking to amend in this context ordinarily requires a formal application, draft pleading and evidence showing that the proposed case has a real prospect of success. The unexplained and inconsistent proposed changes required scrutiny.

6. The section 5 exception did not apply. The pleaded claim sought damages for distress, anxiety and depression, but did not allege a recognised psychiatric injury or claim personal-injury damages. Any further amendment or fresh-evidence application had to be made and determined under the applicable procedural rules.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal and held the pre-abdication allegations immune from jurisdiction under section 14(1) of the State Immunity Act 1978: [2022] EWCA Civ 1595.
• High Court (King’s Bench Division): Dismissed the appellant’s state-immunity application, permitted amendments to the Particulars of Claim, and rejected the section 5 exception: [2022] EWHC 668 (QB).