Dr Saeed Shehabi & Anor v The Kingdom of Bahrain

Section 5 of the State Immunity Act 1978 applies where at least one act or omission in the United Kingdom is more than minimally causative of death, personal injury or property damage. The provision does not require the state actor to be physically present in the United Kingdom, nor that every causative act occur there. Remote manipulation of a computer situated in the United Kingdom is an act in the United Kingdom. The statutory expression personal injury includes a recognised psychiatric injury. The court therefore rejected immunity where spyware installed from abroad caused adjustment disorder in claimants whose computers were in the United Kingdom.

The claimants sued Bahrain for damages for psychiatric injury allegedly caused by the infection of their computers with FinSpy spyware while the computers were in the United Kingdom. Bahrain applied for a declaration of state immunity under section 1(1) of the State Immunity Act 1978, alternatively seeking to set aside orders permitting service out of the jurisdiction.

The issues were whether section 5 required the relevant state actor to be present in the United Kingdom; whether all causative acts had to occur there; whether remote infection of a United Kingdom computer was an act in the United Kingdom; whether the claimants had proved infection and attribution on the balance of probabilities; and whether psychiatric injury constituted personal injury.

1. The application was dismissed. Bahrain was not entitled to immunity because the claimants’ proceedings fell within section 5 of the State Immunity Act 1978.

2. The burden lay on the claimants to establish the applicability of the exception on the balance of probabilities. A good arguable case was insufficient at this preliminary stage.

3. Section 5 contains no requirement that the state actor be present in the United Kingdom. The omission of such a condition was deliberate. The treaty provisions relied upon by Bahrain, including article 11 of the Basle Convention and article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, could not add a condition absent from the clear statutory language.

4. The reference to an act or omission means that it is sufficient for one act or omission in the United Kingdom to be more than minimally causative of the relevant injury. Section 5 does not require every causative act to occur in the United Kingdom. The court followed its reasoning in Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB) and declined to apply the different statutory approach developed under the United States Foreign Sovereign Immunities Act.

5. Where a computer situated in the United Kingdom is remotely manipulated from abroad, the relevant act occurs in the United Kingdom. The court applied the reasoning in Ashton Investments Ltd v OJSC Russian Aluminium (RUSAL) [2007] 1 All ER (Comm) 857 and R v Governor of Brixton Prison, ex parte Levin [1997] QB 65.

6. On the evidence, the claimants had proved on the balance of probabilities that their computers had been infected with spyware by Bahrain’s agents. Their pleaded adjustment disorders were recognised psychiatric illnesses. Following Military Affairs Office of the Embassy of Kuwait v Caramba-Coker [2003] UKEAT 1054_02_1004 and Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139, psychiatric injury was personal injury within section 5.

7. The alternative Article 6 argument under the ECHR did not arise.