A v B

Permission to appeal requires realistic prospects of success on an identified ground, or some other compelling reason. A proposed appeal has no realistic prospect where the relevant issue is governed by binding authority and the suggested challenge depends on an untenable construction of an international instrument. A certificate under section 12 of the Administration of Justice Act 1969 additionally requires a sufficient case for an appeal to the Supreme Court, not merely a point of general public importance. A stay of related proceedings should ordinarily remain in place while an application for permission to appeal, or any resulting appeal, remains outstanding, where lifting it would expose defendants to parallel litigation.

The claimants applied for permission to appeal to the Court of Appeal and for a certificate under section 12 of the Administration of Justice Act 1969 following an earlier ruling that the State Immunity Act barred claims against the defendants. The proposed appeal concerned state conduct, United Nations Security Council Resolution 1373 of 2001, article 6, the commercial-transaction exception and a proposed amendment. The claimants also sought to lift a stay affecting related proceedings based on alleged private conduct. The central questions were whether the proposed appeal had realistic prospects, whether the statutory conditions for a Supreme Court certificate were met, and whether the stay should continue.

1. Permission to appeal. The court applied the familiar test of whether the appeal had realistic prospects of success on the grounds advanced, or whether some other reason justified permission. Permission to the Court of Appeal was refused.
2. The governmental-action challenge had no realistic prospect. State-funded or state-sponsored terrorist activity was, by definition, state conduct and an exercise of sovereign authority. The United Nations issue was also unarguable. Resolution 1373 did not address civil jurisdiction by one state over another or require states to deny immunity to another state. Paragraph 2(e) concerned legislative measures criminalising terrorist financing, not civil jurisdiction or sovereign immunity.
3. Although state immunity is capable of qualification by other established rules of international law, a countervailing rule of customary international law must be established through recognised methods. Assertion, or domestic legislation enacted by particular states, was insufficient. The article 6 argument depended on the rejected construction of the Resolution and therefore had no reasonable prospect.
4. The commercial-transaction issue was governed by the principles identified by Lord Millett in Holland v Lampen Wolfe, [2001] WLR, 1573. Although that analysis had been obiter in Holland, it had been consistently followed in later decisions and was consistent with the statutory language. There was no realistic prospect that the Court of Appeal would depart from it.
5. The proposed amendment was also unarguable. It would require the court to try the claimants’ primary case in a manner engaging the state-immunity issue before determining whether immunity applied. That was impermissible. Permission was therefore refused on all grounds.
6. Section 12 certificate. The statutory conditions include a point of law of general public importance and a sufficient case for an appeal to the Supreme Court. Even if the Court of Appeal would be bound by existing authority, there was no realistic prospect that the Supreme Court would qualify or overturn that authority on these issues. The certificate was refused.
7. Stay. The related proceedings were to remain stayed while the time for applying to the Court of Appeal expired and, if an application or appeal was pursued, until its final determination. Liberty was given to apply to the Court of Appeal for variation.

The ruling concerned applications arising from an earlier first-instance decision on the application of the State Immunity Act. Permission to appeal to the Court of Appeal was refused, as was a certificate under section 12 of the Administration of Justice Act 1969.