Kuwait Investment Office v Simon Hard [2022] EAT 51

‘11. The First Respondent is part of the state of Kuwait for the purpose of s.14(1) of SIA 1978. This is supported by a certificate from the Embassy of Kuwait dated 23 September 2020 which provides in terms that the KIO is part of Kuwait’s Mission in the United Kingdom and part of the State of Kuwait. 11. 12. In the event the Tribunal does not agree the KIO is part of the State of Kuwait, in the alternative and fFor the purposes of this Assertion only, without admission as to the same, KIO is prepared to proceed on the basis that it would be regarded as a separate entity under s.14(2) of SIA 1978.’; 6.2. make related amendments to its grounds of appeal, should that be necessary; and 6.3. to rely on ‘two very limited and discrete pieces of evidence that were not before the ET, which provide further support [for] the Employment Judge’s initial view that the Respondent is part of Kuwait’s mission in the UK….These documents are important as they go to the question whether the Respondent is part of the Kuwaiti Mission and in respect of the FCO letter whether HM Government recognises it as such Respondent’s skeleton argument, paragraph 86(3). .’

“65. …accepted the Respondent’s submission that the current version of the publicly available London Diplomatic List, listing the Kuwait Investment Office as a representative of the State of Kuwait, created a presumption that the Kuwait Investment Office is part of the Kuwaiti mission. Likewise, correspondence from the FCO to Mr Al-Ateeqi, the President of the KIO, dated 31 October 2019... 66. However, I decided that this presumption was rebutted by the Respondent’s own position in these proceedings. The Respondent is a separate entity distinct from the executive organs of the government of the State and is not a part of its mission.”

‘49. …There are important areas of governmental activity which, today as in the past, are essential to the effective operation of the state and which are not covered, or at least not completely covered, by statute. Some of them, such as the conduct of diplomacy and war, are by their very nature at least normally best reserved to ministers just as much in modern times as in the past… … 52. The fact that the exercise of prerogative powers cannot change the domestic law does not mean that such an exercise is always devoid of domestic legal consequences. There are two categories of case where exercise of the prerogative can have such consequences. The first is where it is inherent in the prerogative power that its exercise will affect the legal rights or duties of others…. 53. The second category comprises cases where the effect of an exercise of prerogative powers is to change the facts to which the law applies… These are examples of where the exercise of the prerogative power alters the status of a person, thing or activity so that an existing rule of law comes to apply to it. However, in such cases the exercise has not created or changed the law, merely the extent of its application. 54. The most significant area in which ministers exercise the Royal prerogative is the conduct of the United Kingdom’s foreign affairs. This includes diplomatic relations, …’

‘33. It seems to me that the analogy with the inviolability and immunity of accredited members of permanent missions and the importance of consent illuminate resolution of the issue as to whether the FCO letter… is conclusive. The acceptance of accreditation to a permanent diplomatic mission is a matter within the discretion of the executive, or, more accurately, the Royal Prerogative….’, going on to hold, at paragraph 34, that ‘facts of state’ were: ‘…facts which the court accepts, not so much because they are within the exclusive knowledge of the UK Government, but because they represent matters which are exclusively for decision by the Government and not for the courts. It is for the UK Government to decide whether to recognise a mission as a special mission, just as it is for the Government to decide whether it recognises an individual as a head of state. As Brooke LJ said in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, para 349: “Her Majesty’s Government has never given up the right to inform the courts as to its recognition or non-recognition of states, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains.’

‘62. That being so, it follows that the English Court would be acting outside its proper constitutional sphere in saying anything which is inconsistent with the statements of HMG’s recognition (or non-recognition) of a foreign government as sovereign, because they are a matter for HMG as the Crown acting in its executive capacity. … it also follows as a matter of principle that the Court must not express a contrary view for any purpose, which would include such contrary view as an essential step of its reasoning. To do so would undermine the very fabric of the doctrine…’

‘There would be real difficulties and uncertainties if the court were to undertake the inquiry that the claimant contends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional enquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.’

‘34. This is consistent with the common law approach to establish entitlement to diplomatic immunity which was authoritatively explained by the House of Lords in Engelke v Musmann [1928] AC 433. As the Attorney General said, at p437: “28… if the court can go behind [a statement made on behalf of the UK Government that a person has or has not been recognised as a member of the diplomatic staff of a foreign ambassador] and themselves seek to investigate the facts, compelling the person on behalf of whom immunity is claimed to submit to legal process for that purpose, it would be impossible for His Majesty to fulfil the obligations imposed on him by international law and the comity of nations, since the steps taken to investigate the claim would in themselves involve a breach of diplomatic immunity which in the event the court might decide to have been established.” This was accepted by the House: see per Lord Buckmaster at pp446—447, Viscount Dunedin at p448 and Lord Phillimore at p455. 35. Mr Hickman submits that the common law is irrelevant because the position is now governed by statute. But it would be surprising if Parliament had intended to effect the fundamental change in the law relating to diplomatic immunity for which Mr Hickman contends. We have seen nothing to indicate that Parliament intended to effect such a change which would potentially hamper the conduct of foreign relations and the work of international organisations. No reason has been advanced to suggest why Parliament would or might have wished to do this.’

‘Protocol Division wishes to confirm, for and on behalf of the Secretary of State for Foreign and Commonwealth Affairs, that under section 1 of the Diplomatic and Consular Premises Act 1987, consent is hereby given for Wren House, Carter Lane, London, EC4V 5EY to be deemed diplomatic premises, to be used for the purposes of the Kuwait Investment Office. This consent is conditional upon the Embassy obtaining the necessary planning permission from the relevant local authorities and may be withdrawn if it is not so obtained.’

‘71. Recognition may be either express or implied. This is explained for example in Oppenheim’s International Law, 9th ed (2008), vol 1, at para 50: “Recognition can be either express or implied. Express recognition takes place by a notification or declaration clearly announcing the intention of recognition, such as a note addressed to the state or government which has requested recognition. Implied recognition takes place through acts which, although not referring expressly to recognition, leave no doubt as to the intention to grant it….” 72. One way in which recognition may be implied is the establishment or maintenance of diplomatic relations with the ruler or government of the foreign state. For example, Oppenheim at para 50 refers to “the formal initiation of diplomatic relations” as one of the “legitimate occasions for implying recognition of states or governments”. Such implied recognition is contrasted with a situation where, following a revolutionary change of regime, diplomatic representatives accredited to the previous government are left in place for an interim period and may have unofficial contact with the new regime, which unofficial contact would not amount to implied recognition.’

‘… As it stands, the Convention provides a complete framework for the establishment, maintenance and termination of diplomatic relations. It not only codifies pre-existing principles of customary international law relating to diplomatic immunity, but resolves points on which differences among states had previously meant that there was no sufficient consensus to found any rule of customary international law.’

‘… Nor do I doubt that diplomatic immunity can be abused and may have been abused in this case. The judge can properly regret that it has the effect of putting severe practical obstacles in the way of a claimant’s pursuit of justice, for what may be truly wicked conduct. But he cannot allow his regret to whittle away an immunity sanctioned by a fundamental principle of national and international law. As the fourth recital of the Vienna Convention points out, “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of diplomatic missions as representing states”.’

‘We are not in this appeal in any way concerned with documents held by the I.T.C. Ex hypothesi the categories of documents in the assumed facts are held by third parties. No claim is made against the I.T.C. requiring them to produce documents which they hold. Thus the central question at the heart of the dispute which has to be asked in relation to each category is whether the documents in that category “belong to” the I.T.C.’

‘…the clear and consistent position taken by the courts is that for a claim to immunity to be regarded as a proportionate restriction on the right of access to a court enshrined in Article 6 of the ECHR, it is necessary to do no more than determine whether the grant of immunity reflects generally recognised rules of public international law. This test was developed by the ECHR in the context of State immunity. But its application in the context of diplomatic immunity has been expressly endorsed by the decision of this court in Al-Malki v Reyes (Secretary of State for Foreign and Commonwealth Affairs intervening) [2016] 1 WLR 1785, para 70 where I said: “In short, the court held that compliance with a State’s international law obligations is conclusive on the issue of proportionality. In my view, although there are important differences between State immunity and diplomatic immunity, these differences are immaterial to the point of principle that the court enunciated at para 36 [of the ECHR decision in Fogarty v United Kingdom (2001) 34 EHRR 12]. The central point is that restrictions on the right of access to court which reflects generally recognised rules of public international law cannot in principle be regarded as disproportionate. The court added that this is so even if international practice as to the meaning or scope of an international obligation is inconsistent, provided that the interpretation applied by the state in question is reasonable and falls within currently accepted international standards.”’

‘Section 2(3) [of the SIA] should, however, be read in the light of authority of long-standing establishing the importance of state immunity and the importance of its not being waived except with appropriate authority. The fact that the step in proceedings alleged to constitute the waiver is taken by solicitors instructed by the embassy does not conclude the matter. A solicitor acting without authority cannot waive the immunity. The solicitor’s actions establish a waiver only if they have been authorised by the state, which includes authority exercised or conferred by the head of the state’s diplomatic mission. That would include a step authorised by the head of mission himself or herself. Authority may be conferred on the solicitors either directly or, in my view, indirectly by a member of the mission authorised by the head of mission to do so.’

‘Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was “outside the generous and it within which a reasonable disagreement is possible”…’

‘The defendants are the Kuwait Investment Authority (“KIA”), which may be described as the investment arm of the government of Kuwait, though with a separate legal identity from the government and State.”; 42.4. at paragraphs 11 and 12, it was said: ‘11. For the purposes of this Assertion only, without admission as to the same, KIO is prepared to proceed on the basis that it would be regarded as a separate entity under s.14(2) of SIA 1978. 12. A “separate entity” is immune from the jurisdiction of the Court and Tribunals if (a) the proceedings relate to anything done by it in the exercise of sovereign authority and (b) the circumstances are such that a state would have been immune.’

‘The basis in modern international law for the protection of the documents of a diplomatic mission is article 24 of the Vienna Convention on Diplomatic Relations (1961), which provides that “the archives and documents of the diplomatic mission shall be inviolable at any time and wherever they may be.” Article 27(2) which provides for the inviolability of “the official correspondence of the mission” was added (as part of an article about freedom of communication) in order to deal with the problem of the interception en route of communications not made by diplomatic courier or diplomatic bag, which would not necessarily be part of the mission’s archives or documents at the time of interception… These provisions have the force of law by statute in the United Kingdom, under the Diplomatic Privileges Act 1964.” Whilst the EAT had been taken to Bancoult by the Respondent, in connection with Articles 24 and 27 of the VCDR, the critical paragraph, for current purposes, was paragraph 68 (with emphasis added): ‘A diplomatic mission is not a separate legal entity. Its archives and documents belong to the sending state. But the protection of article 24 is limited to the archives and documents of the mission. It does not extend to those of any other organ of the sending state. The latter may be protected by other rules of law: for example by the criminal law, the law of confidence or the law of copyright. But they are not protected by the Vienna Convention…’

‘[29] Separate juridical status is not however conclusive. An entity’s constitution, control and functions remain relevant: [25], above. But constitutional and factual control and the exercise of sovereign functions do not without more convert a separate entity into an organ of the state. Especially where a separate juridical entity is formed by the state for what are on the face of it commercial or industrial purposes, with its own management and budget, the strong presumption is that its separate corporate status should be respected, and that it and the state forming it should not have to bear each other’s liabilities. It will in the Board’s view take quite extreme circumstances to displace this presumption. The presumption will be displaced if in fact the entity has, despite its juridical personality, no effective separate existence. But for the two to be assimilated generally, an examination of the relevant constitutional arrangements, as applied in practice, as well as of the state’s control exercised over the entity and of the entity’s activities and functions would have to justify the conclusion that the affairs of the entity and the state were so closely intertwined and confused that the entity could not properly be regarded for any significant purpose as distinct from the state and vice versa.’

‘One Voice 91. When a question arises whether HMG recognises a state, ruler or government, the usual practice is for the court to seek a formal statement of HMG’s position. The practice was described by Viscount Finlay in Duff Development Co Ltd v Government of Kelantan [1924] AC 797, 813-814: “It has long been settled that on any question of the status of any foreign power the proper course is that the court should apply to His Majesty’s Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his ministers upon the matter which is peculiarly within his cognizance…” 92. Although such a letter is often referred to as a “certificate”, no particular form is required… Indeed the letters relied on in Mohamed v Breish [2020] EWCA Civ 637 were addressed to and to be procured by one of the parties rather than the court, but what mattered was that the FCO knew that the letters were intended to be produced and that they contained the carefully considered views of HMG for use in a public forum (see per Popplewell LJ at para 37).’

‘The KIO currently has 23 Kuwaiti staff who are seconded from Kuwait and have diplomatic status. There are a further 4 vacancies for Kuwaiti staff, these are replacements for Kuwaiti employees who have left and are not new appointments’

‘…No-one doubts that if the document has been communicated to a third party with the actual or ostensible authority of the responsible personnel of the mission, any immunity in respect of it is lost. In the form communicated, it is no longer the mission’s document: Shearson Lehman Brothers Inc v McLaine Watson & Co Ltd (International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27-28.’

‘The parties shall exchange all documents in their possession relevant to the issue of state/diplomatic immunity by no later than…’

‘53. As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune. It is not always easy to determine which aspect of the facts giving rise to the claim are decisive of its correct categorisation, and the courts have understandably avoided over-precise prescription. The most satisfactory general statement is that of Lord Wilberforce in The I Congreso, at p 267: “The conclusion which emerges is that in considering, under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental activity.” 54. In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform.’

‘The distinction between a state organ and a separate or distinct entity is not concluded by determining whether the separate entity has separate legal personality. That was held in Baccus SRL v Servicio Nacional del Trigo [1956] 3 All ER 715, 1 QB 438 and assumed in the Trendtex Trading case, where the Central Bank was a separate legal entity, and it continues to be the position. The 1978 Act makes this clear by providing that a separate entity must be ‘distinct from the executive organs of the government of the state’ as well as ‘capable of suing or being sued’

‘[Counsel for the applicant] submits that there is a way round the question of inviolability because statements could be obtained directly from the bank which holds the accounts without any need to access the High Commission's archives. There is no application against the bank for disclosure of such documents as it may hold, but what [Counsel for the applicant] submits is that effectively the second defendant could be directed to instruct the bank to provide further copies of the statements. It seems to me that that would not be a way round the problem of inviolability at all because, if one assumes that that were to happen, the documents which were then produced to the High Commission by the bank would themselves fall into the scope of protection under Article 24. But in any event, the application is for documents as they currently exist and, in my judgment, those are immune from disclosure pursuant to Article 24. So that application is dismissed.’

‘The same approach to the inviolability of diplomatic archives was taken by the US State Department in the context of a case where they were not prepared to support a claim to state immunity — Renchard v Humphreys & Harding Inc. In a letter to the court, the State Department said that in declining to recognize and allow sovereign immunity in a suit for damage to neighbouring property caused by excavations and construction on the Embassy of Brazil, they did not intend to imply that Article 24 could not be used to resist discovery of relevant documents: “Thus, while it is the position of the Department of State that the Government of Brazil does not enjoy immunity from suit in the courts of the United States in the subject litigation, involving the construction of the chancery building in Washington, it is also the position of the Department of State that the documents and archives of the Embassy are inviolable under the Vienna Convention as against any order of a United States court.” The same distinction was upheld in the case of Mission of Saudi Arabia to the United Nations v Kirkwood Ltd in which a US court confirmed that the Saudi Mission did not lose the separate inviolability of its archives (conferred under the Host State Agreement between the United States and the United Nations) by instituting legal proceedings.’

‘We refer to the FCO Note dated 14 November 2005… (the “FCO Note”) a copy of which is enclosed for convenience. As was discussed at the hearing, the FCO Note refers in terms to a Kuwaiti Embassy Note dated 4 October 2005 (the “Embassy Note”). The Appellant apologises that it was not in a position to have voluntarily provided a copy of this document previously; however, the Appellant has only recently located a copy. A copy of the Embassy Note and accompanying TX19 Exemption from General Rates form are voluntarily enclosed with this letter. The terms of these documents are self-explanatory. Specifically, the premises were “to be used for mission purposes. The building will be used exclusively by the Kuwait Investment Office”. That is also reflected in the information that was set out in the enclosed TX19 form, in particular at entries at questions 2 and 4.a. The Appellant does not advance any submissions in respect of these documents (though if the Tribunal would be assisted by any further submissions, it would, of course, provide them). The Appellant respectfully requests that when considering the FCO Note, the Tribunal consider these documents given: i. the heavy emphasis during the hearing that the [Claimants] placed on the absence of the Embassy Note when considering the FCO Note; and ii. the importance of the Tribunal having relevant evidence available to determine the Appellant’s diplomatic immunity. For the avoidance of doubt, the KIO’s position on immunity in these proceedings remains as previously stated. The KIO does not submit to the jurisdiction of the Tribunal and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the KIO or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities.’

‘1. By 4:00pm today, 11 February 2021, the Appellant shall notify the EAT and the Respondents, in writing, of: a. the date on which it first looked for the original, or a copy (as the case may be) of: (1) the Embassy Note; and (2) the TX19 form; b. the date on which it first located each such document; c. if (either of) the date(s) at (b) above fell on or before the date of the hearing of the appeal, why it is that the relevant document(s) was/were not produced at or before that hearing; and d. if (any of) the date(s) at (a) or (b) above fell after the hearing of the appeal, why it was that the efforts subsequently made to locate the relevant document(s) had not been made at an earlier stage, in order that they could be considered at that hearing. 2. By 4:00pm on Friday 12 February 2021, the Respondents shall notify the EAT and the Appellant, in writing, of any response to the Appellant’s letter of 10 February 2021 and/or to the information provided in response to my directions at paragraph 1 above.’

‘We refer to Mrs Justice Ellenbogen’s directions … and have set out the Appellant’s response below which is provided on a voluntary basis and is not being done pursuant to any order. For the avoidance of doubt, the KIO's position on immunity in these proceedings remains as previously stated. The KIO does not submit to the jurisdiction of the Tribunal and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the KIO or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities or a waiver of legal privilege. A. The date on which it first looked for the original, or a copy (as the case may be) of: (1) the Embassy Note; and (2) the TX19 form The Appellant conducted a general search for relevant documents within the archives of the Mission of the State of Kuwait prior to the commencement of these proceedings. It also conducted searches at other points during the proceedings. During the course of these searches, it located a Note from the FCO dated 14 November 2005 (the "FCO Note"). Given that the FCO Note refers to a note by the Embassy dated 4 October 2005 (the "Embassy Note"), the Appellant conducted further specific searches in an attempt to locate a copy of the Embassy Note. This was before January 2021. In light of the decision to seek to adduce the FCO Note in evidence before the EAT (in respect of which, for the avoidance of doubt, privilege is not waived), searches were again conducted to locate a copy of the Embassy Note to which reference is made in the FCO Note. These searches were carried out in the period following 14 January 2021. These searches were conducted electronically because Wren House was physically closed to members of the Mission with effect from 21 December 2020 until further notice, owing to the COVID 19 pandemic. Wren House has been and remains physically closed due to COVID 19 and the latest guidance. Unfortunately, no copy of the Embassy Note was located by the electronic searches conducted. At 16:23 on 15 January 2021, the Appellant wrote to the Claimants notifying them that it would seek to adduce the FCO Note as evidence in the EAT hearing. B. The date on which it first located each such document On Tuesday 10 February 2021, an employee of the KIO attended Wren House by car in order to carry out a physical search. The Embassy Note along with the TX19 Form were first located in hard copy in the Mission's archives on 10 February 2021 by the employee who had attended Wren House to conduct a search. The Appellant sought to provide a copy to the Tribunal and the Respondents without delay given the importance of these documents. The Appellant provided the documents by way of email sent at 22:44 on 10 February 2021, the same day on which the documents were located. C. If (either of) the date(s) at (b) above fell on or before the date of the hearing of the appeal, why it is that the relevant document(s) was/were not produced at or before that hearing Not applicable. D. If (any of) the date(s) at (a) or (b) above fell after the hearing of the appeal, why it was that the efforts subsequently made to locate the relevant document(s) had not been made at an earlier stage, in order that they could be considered at that hearing. As explained above, the Appellant conducted various searches for relevant documents within the archives of the Mission of the State of Kuwait prior to and during the proceedings, which unfortunately did not result in a copy of the Embassy Note and the TX19 form being found. After it was decided to seek to rely on the FCO Note, as explained above, further searches were conducted but, as also explained above, given that Wren House has been physically closed to employees with effect from 21 December 2020 during the lockdown, it was considered reasonable to rely on electronic searches. However, due to the heavy emphasis during the hearing that the Respondents placed on the absence of the Embassy Note when considering the FCO Note, a decision was subsequently made that someone would attend Wren House by diplomatic vehicle in order to conduct a further physical search for the document in the Kuwaiti Mission's archives. The Appellant hopes that the above answers the Tribunal's questions. It also takes this opportunity to apologise again to the Tribunal that this document was not before it during the hearing, and respectfully requests that it nonetheless be considered given its importance to the Tribunal’s determination on appeal of the Appellant’s diplomatic status, immunities and inviolabilities under the Diplomatic Privileges Act 1964…’

‘What mattered was that the FCO knew that the letters were intended to be produced to the court and that they contained the carefully considered views of HMG for use in a public forum.’). In common with all of the FCO documentation relied upon by the Respondent, the further disclosure invited further questions. From the October letter, it appeared that the FCO had previously recognised the premises used by the Respondent as having diplomatic status and the 2005 letters related only to a change of address. Thus, new questions arose, including: what the FCO had recognised previously; in what circumstances; on what conditions; and based upon what representations; and why there was no evidence post-dating 2005 casting light upon FCO’s/FCDO’s view of the Respondent’s status as at 2020 or 2021. 77.3. The explanation provided for late disclosure was not accepted. When the Claimants had sought disclosure of the October letter, the Respondent had asserted that it would not be disclosed on grounds of ‘immunity and inviolability’

‘My client, the Foreign, Commonwealth and Development Office (FCDO), have been informed that “FCDO Certificates” have been provided to the Employment Tribunal, confirming the recognition of the Kuwait Investment Office (KIO) as part of the Mission of the State of Kuwait to the Court of St James’s. We understand these were provided by the Claimant to the court, in relation to the case EAT/0131/20/JOJ Kuwait Investment Office v 1) Mr S Hard 2) Ms A Locke. We should be grateful if you could provide copies of the FCDO Certificates that have been received in relation to these proceedings. We understand a new request has been made for the Certificates and is due for filing with the court on 22 March 2021, though we have not had sight of any court documents referencing this 22 March 2021 deadline. Can you please provide all court documents in relation to the case … and please confirm if any “FCDO Certificates” as described have been filed. We should be grateful if you could provide any clarity on this matter and existing or related proceedings.’

‘1. What specific documents you require • All court documents filed by the Kuwait Investment Office in relation to the case of EAT/0131/20/JOJ Kuwait Investment Office v 1) Mr S Hard 2) Ms A Locke. • Specifically any documents, which have originated from the Foreign Commonwealth and Development Office. We understand “FCDO Certificates” were filed by the Claimant in this case which state the status of the Kuwait Investment Office and the Kuwait Embassy. 2. Why you need these documents • The Kuwait Embassy have contacted my client, the FCDO, to request that the FCDO urgently provide a certificate confirming the recognition of the Kuwait Investment Office (KIO) is part of the Mission of the State of Kuwait to the Court of St James’s for separate Employment Tribunal Proceedings (possibly the appeal to this case but this has not been confirmed by the Embassy). They state that the same FCDO Certificates have already been considered in the case of EAT/0131/20/JOJ and had been provided by the Claimant. They state this certificate is needed for an urgent court deadline. • My client is unaware of such a certificate and therefore wishes to obtain this document and understand the context of these proceedings. 3. On what basis are these documents requested • The FCDO is understood to be the author of these documents. • To facilitate the Kuwait Embassy’s ability to meet court deadlines.’

‘Thank you very much for sending across this attachment, which has shed some useful light on these proceedings for my client. Documents sought 1. Copies of the Written Reasons issued subsequent to the 3 June 2020 Case Management hearing and ET Judge Brown’s Orders of 17 June 2020. 2. Any documents, which have originated from the Foreign Commonwealth and Development Office, specifically regarding the status of the Kuwait Investment Office and diplomatic immunity of its employees. Reason for seeking these documents 3. The Kuwait Embassy have contacted my client, the FCDO, to request that the FCDO urgently provide a certificate confirming the recognition of the Kuwait Investment Office (KIO) is part of the Mission of the State of Kuwait to the Court of St James’s for separate Employment Tribunal Proceedings. They state that “FCDO Certificates” have already been considered in the case of EAT/0131/20/JOJ and had been provided by the Claimant. They state this certificate is needed for an urgent court deadline of 22 March, but further queries to the Kuwait Embassy about this court deadline have not been answered. 4. My client has approached the Embassy for the related ET orders/judgments without any success. I have also contacted the clerk of Professor Dan Sarooshi, counsel for the Kuwait Investment Office, also without success.’

‘My client has asked me to specifically request the following documents as a matter of urgency. • The Written Reasons issued subsequent to the 3 June 2020 Case Management hearing; • ET Judge Brown’s Orders of 17 June 2020; and • Details of exactly what the disclosure sought, and resisted by the Kuwaiti Embassy/KIO, goes to. We are continuing to request the same from the Embassy of Kuwait…’

‘[The GLD’s] correspondence constitutes, in part, a request for documents under paragraph 6.4 of the 2018 EAT Practice Direction, as to which each party to this appeal should be consulted in accordance with that paragraph. The parties are directed to set out their respective positions in response to each request made in [the GLD’s] e-mails, respectively dated 16 April 2021 (16:51); 29 April 2021 (16:23); and 12 May 2021 (15:49). In the course of so doing, each party should identify the documents which it contends to fall within numbered paragraph 2 of the 29 April e-mail and within the second bullet point inserted under numbered paragraph 1 in the 16 April e-mail. The KIO is further directed to comment on the matters set out in the two bullet points inserted underneath numbered paragraph 2 of the President’s request by [the GLD], in her e-mail of 16 April 2021 (16:51), and on numbered paragraphs 3 and 4 of [the GLD’s] e-mail of 29 April, and to state: 1. whether the KIO was a, or the, source of the information relayed to the FCDO by the Kuwait Embassy; 2. which documents are said to constitute the ‘FCDO certificates’ provided by either Claimant (or any other party) in this appeal; 3. what the ‘urgent court deadline’ of 22 March 2021 was and by which court or tribunal it was imposed. (See, further in this respect, [the GLD’s] email of 19 March 2021 (12:51).); 4. what the urgent court deadline was, as at 16 April 2021, and by which court or tribunal it was imposed; and 5. whether, to the knowledge of the KIO, there remains outstanding any court deadline in respect of this matter and, if so, by which court or tribunal it was imposed and what that order requires.’

‘…Thank you for giving us the opportunity to comment on the requests for correspondence made by the GLD on behalf of the FCDO. Before we set out those comments, we should place on record that we would have preferred to provide this response with sight of the correspondence between the KIO and/or the Kuwaiti embassy and the FCDO which apparently prompted this request for documentation. The GLD’s emails to the EAT, if they accurately reflect the communications from the KIO/embassy, cause us disquiet as to what the GLD/FCDO have been told as the suggestion that the Claimants have provided any FDCO certificates is clearly untrue. Furthermore, it is far from clear why the KIO has failed to notify either the EAT or our clients that it is seeking urgent certification (not least in circumstances where its case on the appeal was that no such certification was required). The Claimants’ position as set out below is without prejudice to the above observations. As to the specific document requests in the GLD correspondence, we have copied the requests in italics and our responses below them: 16 April 2021 … Specifically any documents which have originated from the Foreign Commonwealth and Development Office. We understand “FCDO Certificates” were filed by the Claimant in this case which state the status of the Kuwait Investment Office and the Kuwait Embassy. There are a number of difficulties with this request which we appreciate arise from the confusion caused by the KIO/embassy. First, we are surprised that the FCDO is asking for copies of its own documents. Presumably, if the documents existed, the FCDO would have them. Second, if the genesis of this request is the KIO’s own attempt to obtain ex post facto certification, why has the KIO/embassy not sent to the FCDO the FCDO’s own documents allegedly supporting the existence of certification? Third, why has the KIO/embassy apparently told the FCDO that there are FCDO certificates “filed by the Claimant[s] in this case”? The short answer is that no such certificates have been filed by either party. 29 April 2021 … Any documents, which have originated from the Foreign Commonwealth and Development Office, specifically regarding the status of the Kuwait Investment Office and diplomatic immunity of its employees. This would appear to constitute a request for items … of the Supplemental Bundle, and a request for the document disclosed on 10 February 2021 by the KIO (a letter dated 4 October 2005). Please see our response under 16 April 2021, para. 2, above. Further, any diplomatic immunity of individual employees of the KIO is also not in issue in this appeal and there is no FCDO document (still less any certificate) indicating that the KIO itself has diplomatic status. That is unsurprising, since as explained during the appeal, the KIO has separate legal personality from the Kuwait Embassy and is thus necessarily not part of the diplomatic mission. We are bound to observe that given the unsatisfactory way in which the KIO has produced documentation at various stages in the litigation, we are far from confident that this is comprehensive record of the correspondence. This was raised most recently in the Claimants’ response of 15 February 2021 to the KIO’s disclosure of further documentation after the conclusion of the hearing before Mrs Justice Ellenbogen. ... Further Observations We further note that in both the 29 April and 12 May 2021 emails, Ms Claydon refers to the GLD having sought the documents from the Kuwait Embassy and from Professor Sarooshi (leading counsel for the KIO) but had received no response. We respectfully suggest that, in addition to the supplemental questions that the EAT has asked the KIO to answer, the KIO should also provide a comprehensive explanation for why, having sought certification from the FCDO on an urgent basis, it has apparently failed to respond to FCDO communications for a number of weeks. Finally, the Claimants contend that the FCDO should not be invited to provide certification on a unilateral basis and that [it] is highly regrettable that the KIO/embassy has apparently approached the FCDO for some form of certificate between the close of argument and the handing down of judgment. We await a full explanation from the KIO, but absent any application by either party, consider that the appeal should be determined on the basis of the materials placed before Mrs Justice Ellenbogen at the February hearing; 84.2. a letter from the Respondent’s solicitors, as follows: ‘1. We refer to Mrs Justice Ellenbogen's directions of 14 May 2021 inviting the parties' positions regarding a request for documents under paragraph 6.4 of the EAT Practice Direction and further directing our client to provide additional comments and responses to certain items numbered (1) to (5) therein. 2. We have set out the Appellant's response below which is provided on a voluntary basis and is not being done pursuant to any order or direction. For the avoidance of doubt, the KIO's position on immunity in these proceedings remains as previously stated. The KIO does not submit to the jurisdiction of the Tribunal and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the KIO or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities or a waiver of legal privilege. 3. ... 4. On the particular questions posed to the Appellant by the EAT, the Appellant means no disrespect in any way but since the KIO is only one part of Kuwait's Diplomatic Mission in the UK (the "Mission") it would not be appropriate for the Appellant to comment on diplomatic communications between any other part of the Mission and any government department of its host state. To the extent the FCDO has queries arising in relation to any communications said to have occurred, such queries would best be resolved through diplomatic channels in the usual way. Moreover, it is not appropriate for the Appellant to comment on internal diplomatic communications within or between different parts of the Mission, of which it is part. 5. Consistent with this position and with the FCDO's longstanding dealings with the KIO as part of the Mission, the Appellant hopes the EAT will appreciate that no disrespect is intended by the Appellant in declining to comment on diplomatic communications said to have occurred between the Kuwaiti Embassy and the FCDO or within or between different parts of the Mission.’

‘… 2. On Monday, 24 May 2021, the attached document dated 23 July 2020 (the “HMRC Letter”) came to the attention of those involved in instructing counsel and solicitors in the above captioned case. The document speaks for itself: it is a short, two-sentence letter from Her Majesty’s Revenue and Customs addressed to KPMG that confirms in categorical terms that according to Her Majesty’s Government (“HMG”) the “earliest available records show that Sovereign Immunity for the Kuwait Investment Office was in place in 1975” and that the KIO is “accorded Sovereign immunity from UK direct taxation”. 3. Had the HMRC Letter been known to those involved in instructing counsel and solicitors in the above captioned case prior to the hearing, it would have been voluntarily provided at that time. The Appellant apologises unreservedly to the EAT that it is only now in a position to be able to send this to the EAT. Given the importance and relevance of the HMRC Letter, the Appellant considered that it should nonetheless provide a copy to the EAT in order that it is before the EAT when reaching its decision. 4. Given the stage of proceedings, the Appellant makes no detailed submissions in relation to the HMRC letter (though would do so, if the EAT considered that that would be of assistance). The Appellant simply notes that: a. It has consistently maintained it enjoys both State (Sovereign) and diplomatic immunity; b. These immunities have long been recognised by HMG, and pursuant to the one-voice doctrine it is established (respectfully), that recognition is a matter for the executive not the judiciary; and c. In respect of State (Sovereign) immunity, the HMRC Letter provides further evidence, in terms that its: “earliest available records show that Sovereign Immunity for the Kuwait Investment Office was in place in 1975”. 5. For the avoidance of doubt, the Appellant’s position on immunity in these proceedings remains as previously stated. The Appellant does not submit to the jurisdiction of the EAT and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the Appellant or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities.’

‘… 8) The Latest Disclosure says nothing about the alleged diplomatic status of the KIO or the KIA, let alone whether they are part of the Kuwaiti diplomatic mission. Rather, it refers to “Sovereign Immunity from UK direct taxation”. This appeal is not about state immunity. State immunity is the substance of the main issue between the parties, which has yet to be determined. 9) The Latest Disclosure is a letter from a non-ministerial government department to accountants. It is not a letter that “leaves no doubt” as to the UK Government’s position on whether the KIO/KIA is part of a diplomatic mission, let alone is it a document that was “intended to be produced to the court” or contains “the carefully considered views of HMG for use in a public forum”. See authorities in the Claimants’ supplementary note of 15 February 2021. 10) We note that, by the FCDO’s application disclosed to us on 14 May 2021, the Respondent, or someone on its behalf, has apparently approached the FCDO for a certificate. We note that no certificate has been produced. We also note the Respondent has unacceptably refused to provide information to the EAT about, or related to, this request. Conclusion The Respondent’s conduct underscores three particular features of this appeal. First, the Respondent considers itself entirely unbound by rules of procedure or a fair conduct. Second, the Respondent’s selective and opaque approach to disclosure emphasises why its principal case, that it should be permitted to cherry pick what documents it discloses, should not be accepted by the EAT. It is clear that if the Respondent has documents that assist the Claimants both in this appeal and in the underlying litigation, it will choose not to disclose them. This is an affront not only to the Claimants but to the Employment Tribunal and the EAT. Third, it is notable that the Respondent is unable to produce any clear or cogent evidence that it is part of the diplomatic mission of Kuwait. That is unsurprising because, in English law, it cannot be recognised as such. Rather, it has resorted to piecemeal and partial disclosure of documents that, if anything, only raise more questions than answers…’

‘… 2. On Tuesday, 6 July 2021, the attached correspondence came to the attention of those involved in instructing counsel and solicitors in the above captioned case. It was found in hard copy by an individual who had previously been asked to conduct a search for relevant documents. 3. The correspondence speaks for itself: it is a short note from the Foreign and Commonwealth Office (“FCO”) sent to the Embassy of Kuwait dated 23 February 2006 (“2006 FCO Note”) which states in full: “Note Number TXA110/06 Protocol Division of the Foreign and Commonwealth Office presents its compliments to the Embassy of Kuwait and has the honour to advise that the Division is in the process of updating all records concerning Diplomatic Missions in London. The Division would therefore be grateful if the Embassy of Kuwait could provide a list of all staff presently working at the Kuwait Investment Office. Protocol Division also requests that in future all new members of staff appointed to the Investment Office stipulate this in their TX9 appointment forms. This should be done by stating in the ‘Name of Mission’ section of the TX9: ‘Kuwait – Kuwait Investment Office’

‘First, we note this documentation (like all disclosure from the Respondent) is incomplete. It is an isolated communication that is clearly part of a broader exchange and which is very difficult to understand. Second, the 2006 Document is clearly not purporting to state a position on the specific question of whether the KIO or the KIA, as separate legal entities, are part of the diplomatic mission of Kuwait. Rather, it is a letter apparently aimed at updating records on “staff”. The Claimants have accepted that the Government has recognised some individual people who do work for the KIO as having diplomatic status. The letter, in explaining how an (undisclosed) form apparently relating to staff should be filled out is clearly not aimed at recognising the diplomatic status of the KIO or the KIA. Third, we note the document is apparently addressed to the embassy and not to the Respondent or the KIA. Fourth, we note the document is over 15 years old. Given the Respondent’s apparently deliberately partial approach to disclosure, if its best evidence is a 15-year-old letter concerning a different issue, that speaks for itself. Fifth, we repeat a point that we have made on a number of occasions already: this documentation comes nowhere near a certificate or letter that “leaves no doubt” as to the UK Government’s position on whether the KIO/KIA is part of a diplomatic mission, let alone is it a document that was “intended to be produced to the court” or contains “the carefully considered views of HMG for use in a public forum”. See the authorities in the Claimants’ supplementary note of 15 February 2021. Sixth, what is strikingly absent, despite it being 2 years since this claim was first brought, over a year since the employment tribunal proceedings and judgment, and six months after the EAT hearing, is a certificate or even a letter from the FCDO recognising the KIO or KIA as part of the diplomatic mission of Kuwait. This is apparently despite the Respondent (or someone on its behalf) directly contacting the FCDO and requesting such certification. Seventh, this reinforces the Claimants’ clear, straightforward and accurate position: in law, the Respondent is not, and cannot, form part of the mission of Kuwait. If the FCDO had issued a certificate in connection with these proceedings recognising the Respondent as part of a diplomatic mission that might represent a conflict of legal principles; but in this case, there is no such conflict…’

‘Nor does this case involve any accredited representative of a foreign state in this country. Different considerations would arise if it did, since it would be contrary to public policy for the court not to recognise as a qualified representative of the head of state of the foreign state the diplomatic representative recognised by Her Majesty's Government.’; 89.4.3. Thus, it remains open to the court to have regard to other evidence from HMG, in addition to its express statements (being the FCO’s notes dated 7 November 2005 and 23 February 2006 and the London Diplomatic List), in order to ascertain, as a fact of state, whether HMG affords diplomatic status to an entity as part of a foreign state’s diplomatic mission in the UK; 89.4.4. Without prejudice to that position, and having regard to the absence of any evidence to contradict the position that the Respondent is part of Kuwait’s diplomatic mission (nor could any such evidence be admissible: Central Bank of Venezuela [93-94]); there is other cogent corroborative evidence to which the EAT has been referred which indicates that HMG considers the Respondent to be part of Kuwait’s diplomatic mission, including the FCO’s letters dated 31 October 2019 and 4 February 2020, and HMRC’s letter dated 23 July 2020, which, individually and in combination, indicate that HMG recognises the Respondent as part of the Kuwait’s diplomatic mission in the UK. The Claimants 89.4.5. The central issue in Central Bank of Venezuela was the identity of the Head of State/Government of Venezuela. Within the proceedings, the FCO had produced a ‘written certificate’ to the court in answer to questions as to whom the FCO recognised as such — Nicolás Maduro or Juan Guaidó [42-43]. At first instance, the Head of State issue had been resolved in favour of Mr Guaidó (or, to be precise, the Board appointed by him), in reliance upon the written certificate, which was considered to be dispositive of the issue overall [49-50]. Allowing the appeal, the Court of Appeal had considered that further questions ought to be asked of the FCO, as to whether it recognised Mr Guaidó ‘for all purposes’ and as being ‘entitled to exercise all the powers of the President’ [52]. On the point in question, the Supreme Court had allowed the Board’s appeal. It distinguished its reasoning from that of the Court of Appeal, from [90] onwards, holding that (1) the certificate produced by the FCO had not been ambiguous, or less than unequivocal [92]; (2) the Court of Appeal had been wrong to have looked at facts beyond the terms of the certificate (by reference to ‘extrinsic evidence’) in order to found an argument that the certificate was ambiguous — it was not appropriate to adopt an ‘interpretative approach which has regard to HMG’s wider conduct’ [93]; and (3) the court should not have engaged in an exercise of ‘implied recognition’, absent an express statement of recognition by the FCO [96]; it is not permissible to ‘infer recognition from the conduct of HMG’ [98]; 89.4.6. In passing, the Supreme Court had considered the Court of Appeal’s decision in Breish, on which heavy reliance is placed by the Respondent in this case, but which must now be regarded as having been wrongly decided, in so far as it held that the FCO’s position could be inferred [95-96]; 89.4.7. The Supreme Court considered the certificate to be an ‘unambiguous and unqualified statement by the executive that it recognises Mr Guaidó as interim President of Venezeula’

‘..Especially where a separate juridical entity is formed by the State for what are on the face of it commercial or industrial purposes, with its own management and budget, the strong presumption is that its separate corporate status should be respected, and that it and the State forming it should not have to bear each other's liabilities. It will in the Board's view take quite extreme circumstances to displace this presumption. The presumption will be displaced if in fact the entity has, despite its juridical personality, no effective separate existence. But for the two to be assimilated generally, an examination of the relevant constitutional arrangements, as applied in practice, as well as of the State's control exercised over the entity and of the entity's activities and functions would have to justify the conclusion that the affairs of the entity and the State were so closely intertwined and confused that the entity could not properly be regarded for any significant purpose as distinct from the State and vice versa…’

‘As the International Court of Justice has pointed out (Democratic Republic of the Congo v Belgium (Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3 , at paras 59-61), diplomatic immunity is not an immunity from liability. It is a procedural immunity from the jurisdiction of the courts of the receiving state. The receiving state cannot at one and the same time receive a diplomatic agent of a foreign state and subject him to the authority of its own courts in the same way as other persons within its territorial jurisdiction. But the diplomatic agent remains amenable to the jurisdiction of his own country's courts, and in important respects to the jurisdiction of the courts of the receiving state after his posting has ended. I do not under-estimate the practical problems of litigating in a foreign jurisdiction, .... Nor do I doubt that diplomatic immunity can be abused and may have been abused in this case. A judge can properly regret that it has the effect of putting severe practical obstacles in the way of a claimant's pursuit of justice, for what may be truly wicked conduct. But he cannot allow his regret to whittle away an immunity sanctioned by a fundamental principle of national and international law. As the fourth recital of the Vienna Convention points out, "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of diplomatic missions as representing states”.’

‘…The defendants are the Kuwait Investment Authority (“KIA”), which may be described as the investment arm of the government of Kuwait, though with a separate legal identity from the government and State. Its head office is in Kuwait and it is domiciled there, but it has a long-established branch office in London where it operates under the style of Kuwait Investment Office ( “KIO” )…’

‘It is common ground that the defendants KIA/KIO have a legal identity conferred by and under the laws of Kuwait. It has been described as “the external treasury of the Kuwaiti Government” and “the investment arm of the State of Kuwait”, both of which it accepts as accurate. Its offices in London are treated as part of the Kuwaiti Embassy and they enjoy diplomatic immunity. Its employees are civil servants of the Kuwaiti Government. It is a public authority established by decree in accordance with the Constitution and as such it can sue and be sued. But it holds no assets and manages no business for its own account; the assets and business are the State's. It is funded by an allocation of a budget by the State, which forms part of the State budget; and its budget and accounts are subject to the control of the National Assembly. Its “Board of Directors” includes the Minister of Finance, the Minister of Oil, the Under-Secretary at the Ministry of Finance and the Governor of the Central Bank.’

‘The [Respondent] manages funds which are beneficially and wholly owned by the State of Kuwait’

‘if, and only if— (a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State…would have been so immune.’