Sean Abram & Ors v Union des Associations Européens de Football (UEFA) & Anor

On a jurisdiction application under Civil Procedure Rules 1998 Part 11, the foreign act of state doctrine cannot be treated as applying to every act performed by a foreign public official. The court must identify the relevant state initiative and consider whether the act has the character of an exercise of sovereign executive power. At this preliminary stage, where pleadings and evidence are incomplete, an arguable issue may properly be left for trial.

The doctrine does not prevent the court from establishing that foreign acts occurred, interpreting an international convention, or considering incidental illegality. It applies where the validity or unlawfulness of sovereign acts is itself part of the subject matter and the claim cannot be resolved without determining it.

More than 800 Liverpool supporters claimed damages from UEFA and UEFA Events SA for injuries allegedly suffered during the 2022 UEFA Champions League final at the Stade de France. The claims alleged contractual and tortious breaches concerning event organisation and safety, including crowd management, ticketing, communications, policing and the use of tear gas and pepper spray.

The defendants applied under Civil Procedure Rules 1998 Part 11, contending that the claims engaged the foreign act of state doctrine because they would require adjudication on the lawfulness or validity of acts of French state organs. They also relied on non-justiciability concerning the Saint-Denis Convention. The central issue was whether the doctrine could defeat the claims before fuller pleadings, disclosure and evidence.

1. Application dismissed. The Part 11 application was not a preliminary trial. The court had to focus principally on the Particulars of Claim, while recognising that a pleaded defence might also be relevant where it could engage the doctrine. If it remained arguable that the doctrine would not defeat the claims, the issue could be revisited at a substantive hearing.
2. The foreign act of state doctrine is an exclusionary rule grounded in respect for foreign sovereignty and comity. It prevents adjudication on the lawfulness or validity under its own law of an executive act of a foreign state performed within that state’s territory. However, the doctrine’s precise scope is fact-sensitive.
3. The court rejected the defendants’ broad submission that every act performed by an agent exercising state authority necessarily engages the doctrine. The relevant inquiry cannot be resolved merely by identifying a public official. Greater significance may attach to a state initiative or higher-level exercise of sovereign executive power behind the conduct. On the incomplete pleadings and evidence, it was not possible to identify with confidence which acts, if any, engaged the doctrine.
4. The first exception remained arguable. It applies where the issue is whether foreign acts occurred, without requiring adjudication on their legal effectiveness. Establishing or interpreting the Saint-Denis Convention, or considering the effectiveness of a safety guarantee, did not necessarily involve challenging the validity of an act of state.
5. The second exception also remained arguable. The doctrine does not apply merely because proceedings may incidentally disclose that a foreign state acted unlawfully. It applies only where the invalidity or unlawfulness of sovereign acts is part of the very subject matter of the action and cannot be avoided in resolving it. Alleged illegality by the French police might be ancillary or collateral.
6. The court declined to resolve conflicting French-law expert evidence on a Part 11 application. Even if the defendants’ expert view prevailed, the possible application of the exceptions would remain. The parties were invited to consider further directions, including a further acknowledgment of service, defence and costs.

First-instance decision. No appellate history was stated in the judgment.