The Government of the State of KuwaitAppellantDr Lyazid FennicheRespondentMohinderpal Sethi K.C.(instructed by Weightmans LLP) for AppellantNana Prempeh (instructed by Nas & Griffiths Legal Associates) for RespondentAPPEAL FROM REGISTRAR’S ORDERSHearing Hearing date: 19 May 2026JUDGMENT
[1]Each of these appeals is against an Order of the Registrar refusing an application to extend time for the substantive appeal to be brought. The first proposed appeal is against a judgment dated 24 March 2021 on a preliminary issue relating to state immunity (“the Preliminary Hearing Judgment”). That decision having been decided against the appellant, a judgment on liability followed on 19 January 2023 (“the Liability Judgment”). The Liability Judgment is the subject of the second proposed appeal.[2]Both appeals were presented to the Employment Appeal Tribunal on 12 March 2024. The consequence of that, it is agreed, is that the appeal against the Preliminary Hearing Judgment is 1,042 days out of time, and the appeal against the Liability Judgment is 376 days out of time.[3]A third appeal, against a remedy judgment for just over £551,000 (“the Remedy Judgment”) was timeously presented. That appeal is currently stayed by Order of HHJ Tayler dated 8 December 2025 pending the outcome of these two appeals.[4]There are two substantive issues in the proposed appeals. Each concerns the scope of section 5 of the State Immunity Act, 1978 (“SIA”). The first is whether the personal injury exception to state immunity in section 5 is qualified in relation to such embassy employment as would otherwise fall within the scope of state immunity by virtue of sections 4 and 16. The second is a narrower point about whether the section 5 personal injury exception extends to psychiatric injury claims.[5]On the first issue, in Federal Republic of Nigeria v. Ogbonna[2012] ICR 32, the EAT held that sections 4 and 5 of the SIA contain separate and free-standing exceptions to the general rule of state immunity provided by section 1, even in a claim for personal injury by an embassy employee where both sections might be engaged. Section 16(1)(a), which disapplies the section 4 contract of employment exception (and thus re-instates immunity) in respect of certain embassy staff, was held to have no impact upon section 5. Accordingly, sections 4 and 16 did not prevent a claim being brought by a diplomatic mission employee who claimed to have suffered psychiatric injury as a result of unlawful discrimination that was said to have caused psychiatric injury.[6]By sealed Order dated 14 February 2024, Bourne J gave permission to appeal from the Employment Appeal Tribunal to the Court of Appeal in the case of Royal Embassy of Saudi Arabia v. Alhayali [2023] EAT 149; [2024] IRLR 381. Within the recent decision of the Court of Appeal in that appeal (Royal Embassy of Saudi Arabia v. Alhayali [2026] ICR 196), Bean LJ expressed an obiter view that Ogbonna may have been wrongly decided. He noted the apparent anomaly in the conclusion that a relevant employee of an embassy could be prevented by state immunity from bringing any employment claim by virtue of sections 4 and 16 of the SIA, including a claim for compensation for discrimination, but would be allowed to do so if the discrimination in question caused psychiatric injury.[7]The second issue was considered by the Court of Appeal in Shehabi v. Bahrain [2024] EWCA Civ. 1158. The court held that psychiatric injury was indeed “personal injury” for the purposes of section 5 of the SIA. That decision was the subject of a further appeal to the Supreme Court. The appeal to the Supreme Court was heard on 26 and 27 November 2025, and judgment is awaited.[8]Permission has also been given in Kuwait v. Mohamed [2026] IRLR 309 for an appeal on both issues from the Employment Appeal Tribunal (Cavanagh J) to the Court of Appeal. That appeal is due to be heard in April 2027. At an earlier stage in Mohamed, Judge John Bowers KC granted an appeal against a Registrar’s Order in a very similar situation to that in these two appeals, with a similar period of delay to that in the Liability Judgment appeal.
Legal principles
[9]The case of United Arab Emirates v. Abdelghafar [1995] ICR 65 is often cited for the proposition that, in general, time limits are strictly enforced in the Employment Appeal Tribunal. In a less frequently cited passage of the Judgment at page 73F-74B, however, Mummery J commented upon the exceptional feature of state immunity cases: “State immunity is a doctrine of public international law now incorporated in the domestic law of the United Kingdom by the State Immunity Act 1978. The doctrine recognises that there may be real difficulties and serious objections in tribunals in the United Kingdom conducting investigations into the internal affairs of the embassy of a foreign state. For present purposes the important point on state immunity is that it is provided by section 1 (2) of the State Immunity Act 1978 that the court itself has a positive duty to give effect to the immunity conferred by the Act, even in cases where the state does not appear in the proceedings in question. Section 1(2) is in these terms: ‘A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.’ … If the court has a duty under statute to give effect to the immunity conferred, even though the state does not appear to claim it, that duty may be all the greater in a case where the foreign state has, as here, expressly taken the point of immunity. The overriding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the State Immunity Act 1978. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings. If the tribunal in the original proceedings has not given effect to the immunity conferred by the Act, then it must be the duty of the appeal tribunal to give effect to it by correcting the error. The alleged error of the tribunal cannot be corrected in this case unless an extension of time to appeal is granted to the employers. The employers have shown that there is a reasonably arguable case that the industrial tribunal failed to apply the law of state immunity correctly. That makes this an exceptional case for an extension of time.[10]The quoted passage from Abdelghafar was referred to with approval by the Supreme Court in Saudi Arabia v. Costantine [2025] ICR 768 at paragraph 45. Costantine, therefore, confirms that an appellate court must do what it can to take notice of the principle of state immunity, and take such steps as are necessary to ensure that the principle is properly applied.[11]The circumstances of this case are indistinguishable from Mohamed in which, as I have already noted, Judge Bowers KC granted an extension of time. In light of Abdelghafar and Costantine, he was plainly right to do so. Similarly, that is the correct course in these two appeals, for essentially the same reasons.[12]The rather longer period of delay in bringing the appeal against the Preliminary Hearing Judgment does not affect that conclusion. I respectfully adopt the observations on the issue of litigation finality made by Judge Bowers KC in Mohamed at paragraph [25]. I do not, therefore, rule out the possibility that there may be cases involving state immunity where the whole circumstances are such that discretion to extend time should not be exercised. This is not, however, such a case. The underlying claim is still live, at least to the extent that there is an in-time appeal against the Remedy Judgment, and I do not consider that there has been prolonged and serious default on the part of the appellant of the sort referred to by Lord Lloyd-Jones in Costantine at paragraph [49]. The appellant took steps to institute these appeals very shortly after permission to appeal was granted by the Employment Appeal Tribunal in Alhayali.[13]I will, therefore, allow both appeals against the Registrar’s Orders of 31 January 2025, and extend the time for bringing the appeals to 12 March 2024 in terms of rule 37 of the Employment Appeal Tribunal rules.
Further procedure
[14]For reasons that are entirely understandable, parties are anxious to make progress with this case, notwithstanding the pending appeals in the other cases which raise similar issues. Whilst, therefore, there might have been something to be said for these appeals being stayed to await the outcome of Shehabi in the Supreme Court and Mohamed in the Court of Appeal, I am persuaded that there is good reason why that should not happen. The current listing backlog for full hearings in the Employment Appeal Tribunal is a strong factor against a stay. The sum involved in this case is substantial, and the case has been ongoing since November 2019. I do not consider, however, that there would be any significant advantage to these appeals being determined ahead of Mohamed in the Court of Appeal.[15]Adopting the same approach as that of Judge Bowers KC in Mohamed, and on the joint application of the parties, I will sift both appeals to a full hearing on the basis that they raise arguable points of law. I will not currently order expedition. Parties are, however, at liberty to make such an application if, for example, a date for a hearing can be identified in mid-2027, by which stage the decision of the Court of Appeal in Mohamed is likely to be available.