Privinvest Shipbuilding SAL (Holding) & Ors v Filipe Jacinto Nyusi

For service of an English claim in a Commonwealth state that is not party to the Hague Convention, CPR 6.42 and Practice Direction 6B must be read together. Where the foreign judicial authorities require service through them, that is the only valid method. A formal information list is not a precondition.

Under section 20(1) of the State Immunity Act 1978, the diplomatic commercial-activity exception remains territorially limited to activity in the receiving state. Removing that limitation would be permissible only if necessary. It was not necessary, so a sitting head of state retained immunity for alleged commercial activity outside the United Kingdom.

The appellants, defendants in proceedings concerning alleged fraud and bribery, brought a Part 20 claim against the President of Mozambique for contribution, indemnity and deceit. The claim concerned alleged conduct outside the United Kingdom and outside his public capacity.

Permission had been granted for service in Mozambique. Documents were left with security personnel at presidential premises in October 2021, but were later served through the Mozambique courts in April 2023. The Commercial Court declared that the earlier service was invalid and that the respondent had immunity under section 20 of the State Immunity Act 1978: [2023] EWHC 2215 (Comm). The appeal concerned the validity of service and the scope of head-of-state immunity.

1. Appeal dismissed. The Court of Appeal unanimously upheld the order that the respondent was not effectively served in October 2021 and had immunity from the jurisdiction of the English courts.
2. CPR 6.42 and Practice Direction 6B had to be read together. CPR 6.42(3) ordinarily provides for direct service in a non-Hague Commonwealth state, unless Practice Direction 6B provides otherwise. Paragraph 5.1 of the Practice Direction uses the mandatory word “require”. Where the judicial authorities of the relevant country require service through them, service through those authorities is the only permitted method.
3. The Foreign Process Section’s email was categorical: the only available method in Mozambique was agent-to-agent service through judicial channels. It gave detailed instructions for that process and was ample evidence that Mozambique fell within paragraph 5.1. The absence of a formal list was immaterial. The list was merely an information source and was not a precondition to the operation of the paragraph.
4. Service therefore took effect only when the respondent was served through the Mozambique courts in April 2023. The October 2021 delivery to security personnel was ineffective. Since no order for alternative service under CPR 6.15 had been sought, it was unnecessary to decide whether that method would have contravened Mozambique law under CPR 6.40(4). It was also unnecessary to decide what forms of service could constitute “service direct” under CPR 6.42(3).
5. On that last issue, the Chancellor considered the reasoning in FBN Bank (UK) Ltd v Mansell (Ghana) Ltd [2019] EWHC 2833 (Comm) to have force, but left the question open. Lord Justice Underhill considered “service direct” to contrast with service through judicial, governmental or consular intermediaries, without prescribing its form. Lord Justice Phillips also saw much force in the approach.
6. Under section 20(1) of the State Immunity Act 1978, the Diplomatic Privileges Act 1964 and the Vienna Convention applied to a head of state subject to necessary modifications. Article 31(1)(c) did not remove immunity because the alleged commercial activity had not occurred in the United Kingdom as receiving state. Deleting the words “in the receiving state” was not a necessary modification. The Court preferred the reasoning of Briggs LJ in Apex Global Management Ltd v Fi Call Ltd and Others [2013] EWCA Civ 642, rather than the contrary approach of Vos J at first instance.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the declarations on service, timeliness and state immunity: [2024] EWCA Civ 184.
2. Commercial Court (KB) declared that service in October 2021 was invalid, that the respondent had immunity under section 20 of the State Immunity Act 1978, and that the court had no jurisdiction over the Part 20 claim: [2023] EWHC 2215 (Comm).