SOVEREIGN IMMUNITY

Republic of Yemen v Aziz: [2005] EWCA Civ 745

CA: Pill, Sedley and Gage LJJ: 17 June 2005

The applicant was employed as a member of staff at the London embassy of a foreign state until he was dismissed. He made a complaint of unfair dismissal against his employers. A notice of appearance and grounds of defence were served by solicitors purportedly on behalf of the employers. Before the employment tribunal, counsel for the employers conceded that the entering of the notice of appearance constituted a step taken in the proceedings by the employers within the meaning of section 2(3)(b) of the State Immunity Act 1978, but contended that this had been done in ignorance of facts entitling the employers to immunity so that, by virtue of section 2(5), the employers should not be deemed to have submitted to the jurisdiction of the tribunal and were still entitled to immunity. The tribunal found that the employers had submitted to the jurisdiction, waiving their immunity. The employers appealed on the grounds that they had not taken a step in the proceedings since the entering of the notice of appearance had not been authorised by the ambassador. The Employment Appeal Tribunal admitted evidence from an attaché at the embassy to the effect that he had instructed the solicitors believing that the employment tribunal was a conciliatory body only, and from the ambassador to the effect that, although he had been aware that the attaché had had dealings with the solicitors regarding the applicant's case, he had not authorised the attaché to instruct them. Accepting that evidence, the appeal tribunal found that the employers had not taken a step in the proceedings within the meaning of section 2(3)(b) of the 1978 Act and that they were accordingly immune from the jurisdiction.

The applicant appealed.

The Court of Appeal held:
(1) The principle that the Employment Appeal Tribunal's discretion to allow a new or conceded point of law to be raised before it should only be exercised in exceptional circumstances could not override the right of a state to claim on appeal that it had not submitted to the jurisdiction. Where state immunity was claimed, the appeal tribunal had a duty to inquire and was entitled to consider the available evidence, and the evidence of the ambassador, while important, was not necessarily conclusive of the relevant matters. Whether a state had taken a step in the proceedings for the purposes of section 2(3)(b) and (5) of the State Immunity Act 1978, and thereby submitted to the jurisdiction, could only be decided on a consideration of the evidence.
(2) There could be no submission to the jurisdiction unless it was made by a person with knowledge of the right to be waived and the authority of the foreign sovereign, and to constitute a step taken by a state in proceedings under section 2(3)(b) of the State Immunity Act 1978, action taken by a member of a diplomatic mission or solicitors instructed by the mission had to be taken with the authority of the head of mission or the person for the time being exercising his functions, pursuant to section 2(7). Such authority could be delegated by the head of mission without the need for specific instructions from the state's government and could be conferred on the solicitors indirectly by a member of the mission authorised by the head of mission to do so, but the fact that the step alleged to constitute the waiver had been taken by solicitors instructed by the embassy did not conclude the matter. On the material before the appeal tribunal, there was a real issue as to whether the attaché had been acting with the authority of the ambassador in instructing the solicitors, and the appeal tribunal should have remitted that issue for decision by the fact-finding tribunal.

The appeal was allowed and the issue of immunity remitted to the employment tribunal.

Appearances: James Laddie (Webster Dixon) for the applicant; Martin Westgate (Lloyd & Associates) for the Republic of Yemen.