Royal Embassy of Saudi Arabia (Cultural Bureau) v Antoinette Costantine

The Court of Appeal dismissed the appellant's appeal for non-appearance and because there was no formal, evidenced application to adjourn. The underlying appeal concerned whether the appellant enjoyed state immunity under the State Immunity Act 1978 (notably ss.4 and 16) by virtue of the claimant's status as a member of a diplomatic mission; the Employment Tribunal had held that state immunity did not apply and that decision was upheld by the Employment Appeal Tribunal. The Court concluded that any adjournment would cause serious prejudice to the claimant given the long delay in obtaining a substantive hearing and that the appellant had no adequate excuse for its lack of representation, having had ample notice to secure replacement lawyers or to make a properly supported application for an adjournment.

Background and parties: The claimant was employed in an administrative capacity in the Cultural Bureau of the Royal Embassy of Saudi Arabia. She brought Employment Tribunal proceedings on 19 March 2018 alleging discrimination and harassment contrary to Part 5 of the Equality Act 2010. The appellant (the Cultural Bureau) alleged state immunity.

Procedural history: The Employment Tribunal (decision communicated 30 June 2021) rejected the state immunity defence. The appellant appealed to the Employment Appeal Tribunal; an initial paper rejection under rule 3(7) was recorded and the appeal was dismissed by His Honour Judge Barklem on 23 November 2022. Permission to appeal to the Court of Appeal was granted by Bean LJ on 8 August 2023. The appeal was listed for hearing on 13 March 2024.

Nature of the appeal and applications: The substantive appeal concerned whether the appellant enjoyed state immunity under the State Immunity Act 1978 (s.4 disapplied by s.16 where an employee is a member of a mission as defined by the Vienna Convention on Diplomatic Relations). In advance of the hearing RPC applied to cease acting for the appellant in this Court and the firm was removed from the record. Shortly before the hearing the Embassy had not arranged replacement representation and no formal application to adjourn, supported by evidence, was before the Court.

Issues for the Court:

• Whether the Court should adjourn the appeal to enable the appellant to obtain representation or to have RPC resume instructions; and
• Whether, in the absence of representation or an evidenced adjournment application, the appeal should be dismissed for non-appearance.

Reasoning and decision: The Court would not have granted an adjournment on the material before it for two principal reasons. First, an adjournment would have caused serious prejudice to the claimant, who has waited many years for a hearing and who faces further lengthy delay (including partial hearings limited to claims not affected by immunity under s.5 of the 1978 Act). Second, there was no adequate excuse for the appellant's predicament: the Embassy had long notice of RPC's intention to cease to act and ample time to make internal arrangements, to pay outstanding fees, or to instruct other solicitors. The Court also offered a limited 24-hour postponement, but that would not have cured the absence of a formal application and would have conflicted with the respondent's counsel's availability. For those reasons the appeal was dismissed for non-appearance.

The appeal is dismissed. The Court dismissed the appeal because the appellant failed to appear and there was no formal, properly evidenced application for an adjournment; the dismissal was justified by the serious prejudice that further delay would cause the claimant and the absence of any adequate excuse given the appellant's long notice and opportunity to secure representation.

Employment Tribunal decision (notice sent 30 June 2021) rejecting state immunity; appeal to the Employment Appeal Tribunal initially rejected on the papers (rule 3(7) EAT Rules) and upheld by His Honour Judge Barklem on 23 November 2022; permission to appeal to the Court of Appeal granted by Bean LJ on 8 August 2023; appeal heard in the Court of Appeal, [2024] EWCA Civ 332 (13 March 2024).