“For the sake of clarity in the future conduct of the [respondent’s] claim … the [respondent] should, as Mr Lewis QC offered, make it clear in her Particulars of Claim that the acts alleged against General Sanz Roldán are said to be acts of his in his personal capacity, not as head of the CNI or other official capacity.”
“The effect is that a head of state will, under the statute as at international law, enjoy state immunity ratione personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae 'in respect of acts performed [by him] in the exercise of his functions [as head of state], the critical question being 'whether the conduct was engaged in under colour of or in ostensible exercise of the head of state's public authority'... In this context, the contrast is drawn between governmental acts, which are functions of the head of state, and private acts, which are not.”
“There would seem to be two explanations for immunity ratione materiae. The first is that to sue an individual in respect of the conduct of the state's business is, indirectly, to sue the state. The state would be obliged to meet any award of damages made against the individual. This reasoning has no application to criminal proceedings. The second explanation for the immunity is the principle that it is contrary to international law for one state to adjudicate upon the internal affairs of another state. Where a state or a state official is impleaded, this principle applies as part of the explanation for immunity. Where a state is not directly or indirectly impleaded in the litigation, so that no issue of state immunity as such arises, the English and American courts have nonetheless, as a matter of judicial restraint, held themselves not competent to entertain litigation that turns on the validity of the public acts of a foreign state, applying what has become known as the act of state doctrine.”
“These immunities belong not to the individual but to the state in question. They exist in order to protect the sovereignty of that state from interference by other states. They can, of course, be modified or removed by agreement between states or waived by the state in question.”
“The immunity is available whether the acts in question are illegal or unconstitutional or otherwise unauthorised under the internal law of the state, since the whole purpose of state immunity is to prevent the legality of such acts from being adjudicated upon in the municipal courts of a foreign state. A sovereign state has the exclusive right to determine what is and is not illegal or unconstitutional under its own domestic law.”
“4. The [appellant] himself, or by his servants or agents, pursued a course of conduct targeted at the [respondent] which amounts to harassment. … The [appellant] used his agents and those of the Spanish State and/or their contractors to carry out some of the elements of the said course of conduct, as set out further below. … 13. As detailed below, the Claimant was later informed by General Felix Sanz Roldán, the head of the Spanish National Intelligence Agency known as the 'Centro Nacional de Inteligencia’ (‘CNI’), that he had been responsible for deliberately leaking the identity of the Claimant to the media. He did not offer any reasonable explanation as to why he had done so. Thereafter General Sanz Roldán, the Defendant's agents and/or agents or contractors of the CNI acting on the Defendant's instructions placed the Claimant, and others close to her, under physical surveillance which included vehicle and personal surveillance, trespassing onto her property at which she was residing and hacking into her/their telephones and computers. … 16. During April to June 2012 General Sanz Roldán, acting under the direction or with the consent of the Defendant, co-ordinated a covert operation to enter and search the Claimant's office and apartment in Monaco. General Sanz Roldán utilised armed operatives from the Monégasque security company, [X], as a cover for the operation in order to enable a CNI team dispatched from Spain to gain access to her property without her consent. Operatives from [X company] informed the Claimant that 'the Spanish sweeping team' were arriving on 4 June from Madrid and would need five days 'to sweep' her office and apartment. Business and personal documents belonging to the Claimant had been examined and/or copied and some removed during the operation, without her consent. 17. The Claimant was told by the Defendant, and by General Sanz Roldán, that [X company] had been engaged to protect her from the paparazzi and from journalists who might steal documents. However, the true objectives of the Defendant were: to find and remove any documents in her possession related to his business and financial dealings; to ascertain any information about the Claimant which might be used to pressurise her to comply with his wishes; to prevent her from providing information in respect of anything which might incriminate him; and to install surveillance equipment. 18. General Sanz Roldán contacted the Claimant on a number of occasions by email and telephone using the alias 'Paul Bon'. 'Paul Bon' made it clear that he was acting under directions from the Defendant. The Defendant confirmed that this was the position in the course of telephone conversations between the Claimant and the Defendant during the period between April and June 2012. 19. In early May 2012 the Defendant told her that General Sanz Roldán would be arriving in London in order to meet with her in person, in terms that made it clear that he required her to meet with the General. The Claimant and General Sanz Roldán met in the Claimant's hotel room at the Connaught Hotel on5 May 2012 at the Defendant's insistence. During the meeting he threatened the Claimant and her family by stating that he could 'not guarantee her physical safety or that of her children' unless she complied with what he described as 'recommendations' but which were, in fact, orders. This threat reasonably made the Claimant fear for her life and that of her children. The words themselves were clear and sinister but they were made all the more so by the fact that they were made by the head of the CNI on the Defendant's behalf in the United Kingdom, and whilst the Monaco operation was ongoing. 20. The Claimant travelled the same day to her apartment in Villars, Switzerland to visit her son. On arrival, the Claimant found that papers had been disturbed within her apartment and a copy of a book on the death of Princess Diana had been left on a coffee table (which, for the avoidance of doubt, did not belong to the Claimant and had not been there before). The book was entitled 'Princess Diana: The Hidden Evidence, How MI6 and the CIA were involved in the death of Princess Diana'. That evening she received a telephone call from an unknown person who said, in Spanish, that 'there are many tunnels between Monaco and Nice' – it is averred that the telephone call and placement of the book are obviously connected. 21. On17 May 2012 , 'Paul Bon' (i.e. General Sanz Roldán) sent the Claimant an email stating that the 'services' that had been provided to her at her Monaco home and office were no longer necessary and that he would let [X company] know that going forward the Claimant or any person she designated would be exclusively dealing with her security. Mr 'Bon' added one 'last recommendation'. He said that it was 'advisable' for the Claimant to keep a security guard at her premises 'until the moment you send the black boxes with the documents to the place of your chose [sic].' Mr 'Bon' expressly stated that the Defendant had been informed of ‘this intention’. The Claimant reasonably construed this as a threat to her person. 22. In one telephone call General Sanz Roldán threatened the Claimant that there would be consequences if she did anything against the Defendant's interests. The Claimant telephoned the Defendant in Madrid about this threat and on18 May 2012 ‘Paul Bon’ responded by email stating that there had been a misunderstanding. 23. On11 June 2012 , the Claimant received a further email from ‘Paul Bon’ referring to a number of matters which made allegations which were inculpatory of the Claimant and her business or financial affairs. The allegations were false and were partly based on documents which had been stolen and/or information obtained from her office/apartment in Monaco in April/May. The email said: ‘Any leak of this information would have a devastating effect at this moment for the Institution and Your image’. The email was reasonably construed by the Claimant as a threat that these allegations would be leaked to the media if the Claimant failed to co-operate with the Defendant and General Sanz Roldán.”
“67. The boundary between a private act and a sovereign/public act is not always easy to draw. On the authority of I Congreso the Court is required to focus on "the relevant act which forms the basis of the claim". The claim is for harassment. The acts in respect of which functional immunity is claimed by the Defendant form only part of the alleged course of conduct relied upon by the Claimant. My task is to consider "the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s)... should, in that context be considered as fairly within an area of activity… of a private law 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 or sovereign activity": I Congreso (see [49] above); and that I should "identify the character of the act considered in its context": Surkis -v- Poroshenko [53]. 68. Applying that test, the outcome would be clear. The claim for functional immunity would fail. The claim for harassment, made up of several constituent elements alleged against the Defendant, is not (even arguably) within the sphere of governmental or sovereign activity. The alleged course of conduct amounting to harassment is not "of its own character a governmental act": Kuwait Airways (see [50] above). On the contrary, harassment is an act that any private citizen can perform. 69. Can functional immunity nevertheless be claimed in respect of individual acts relied upon as part of the course of conduct amounting to harassment? From the submissions of the parties, it appears that they are agreed that a claim for immunity can be maintained in respect of individual acts relied upon by the Claimant to support her claim for harassment. However, one of the difficulties of approaching that issue is that, in her Particulars of Claim, the claim is pleaded on several bases as to who it was that actually carried out the acts said to amount to harassment. 70. In paragraph 13 of the Particulars of Claim (see [8] above), it is alleged that: "General Sanz Roldán, the Defendant's agents and/or agents or contractors of the CNI acting on the Defendant's instructions placed the Claimant… under physical surveillance which included vehicle and personal surveillance, trespassing onto her property… and hacking into her/their telephones and computers". It is of some significance, for the claim to state immunity, whether the acts of surveillance and physical intrusion onto the Claimant's property were done by agents of CNI or other "contractors". No state immunity could be claimed in respect of the latter. Some acts of surveillance can only be carried out by state operatives, others can be carried out by well-resourced and skilled civilians. 71. In respect of the alleged targeting of the Claimant's home (see Paragraph 16 of the Particulars of Claim), the operation is said to have been directed by General Sanz Roldán ("under the direction or with the consent of the Defendant") utilising "armed operatives from a Monégasque security company". The precise circumstances of this alleged trespass into the Claimant's property are, at the moment, unclear. For a claim to state immunity, there is a big difference between a mission to gain access to the Claimant's property which was authorised, directed, and executed by CNI operatives, and a mission that was carried out by "contractors", with which the Spanish state had no involvement. Both could have been "directed" by the Defendant, but only in respect of the former could there be any conceivable claim to functional immunity. 72. I do not have enough information – or evidence – about the alleged operation which targeted the Claimant's Monaco home to resolve the question of functional immunity in respect of this alleged incident. I am not satisfied, on the pleaded case, that it raises an obvious claim to state immunity. Whether such a claim could be maintained, and on what basis, would require further investigation of the factual circumstances and who, precisely, carried out the operation and in what capacity. If, for example, credible evidence emerges that the operation to gain entry to the Claimant's home was a state-sanctioned mission conducted by CNI operatives (or under their supervision), then the point can be revisited later in the proceedings. As matters stand, I am very far from convinced that there could be any claim to functional immunity on the grounds advanced by the Defendant. If the Spanish state wishes to step forward and to maintain that the trespass onto her property in Monaco (or other acts of covert surveillance) are protected by state immunity, then it will have an opportunity to do so. In reaching this conclusion, I have taken into account that the claim will be continuing in any event. The point in dispute here relates to one incident relied upon by the Claimant as an alleged act of harassment. Even if upheld, the immunity claim cannot dispose of the Claimant's claim. 73. Mr Lewis QC's further point that the trespass into the Claimant's Monaco home was an act that took place outside Spain (see [54] above) is not one that I need to resolve, but had it been material, this objection appears to be well-founded. 74. In my judgment, the remaining pre-abdication acts of alleged harassment (Paragraphs 19-23 of the Particulars of Claim) cannot attract any functional immunity. Apart from the suspicious circumstances in which the Claimant discovered the book about Princess Diana left in her apartment in Switzerland, and the telephone call she received later that evening (neither of which is directly attributed to state actors), the only connection to the Spanish state in relation to the remaining acts is that they are alleged to have been carried out by General Sanz Roldán. But the making of allegedly harassing threats, by email or by telephone, by a high-ranking state official does not, without more, make them state acts. Mallén -v- United States (cited by Calver J in Surkis -v- Poroshenko) usefully demonstrates the difference. The assault of the Mexican consul by a US deputy constable in the street on a Sunday night, while on a private outing was held to be "a malevolent and unlawful act of a private individual who happened to be an official; not the act of an official". A later incident, when the constable was on duty, in which he boarded a vehicle in which the consul was travelling and assaulted him was, by contrast, properly to be regarded as a "public act". The recent case of Fernando -v- Sathananthan[2021] EWHC 652 (Admin) [37]-[40] also helpfully analyses the difference "between acts performed qua diplomat and acts performed in a personal capacity". 75. For the sake of clarity in the future conduct of the Claimant's claim, I consider that the Claimant should, as Mr Lewis QC offered, make it clear in her Particulars of Claim that the acts alleged against General Sanz Roldán are said to be acts of his in his personal capacity, not as head of the CNI or other official capacity.”
“4. The Defendant used his agents [with the original words, and those of the Spanish statered-lined through] and/or their contractors to carry out some of the elements of the said course of conduct, as set out further below.”
“13. … General Sanz Roldán acted in his personal capacity on behalf of the Defendant and not in any official capacity in respect of this and every other allegation involving him made in these Amended Particulars of Claim. Thereafter General Sanz Roldán, and/or other ofthe Defendant’s agents [with the original words, and/or agents or contractors of the CNIred-lined through] acting on the Defendant’s instructions placed the Claimant, and others close to her, under physical surveillance …”
“12. International law does not require, as a condition of a state’s entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority. A state may claim immunity for any act for which it is, in international law, responsible save where an established exception applies. …”
“A particular problem is to determine whether a person who is a state organ acts in that capacity. It is irrelevant for this purpose that the person concerned may have had ulterior or improper motives or maybe abusing public power. Where such a person acts in an apparently official capacity, or under colour of authority, the actions in question will be attributable to the state.”
“This indicates that the conduct referred to comprises only the actions and omissions of organs purportedly or apparently carrying out their official functions, and not the private actions or omissions of individuals who happen to be organs or agents of the state. In short the question is whether they were acting with apparent authority.”
“78. It seems thus clear that a state will incur responsibility in international law if one of its officials, under colour of his authority, tortures a national of another state, even though the acts were unlawful and unauthorised. To hold that for the purposes of state immunity he was not acting in an official capacity would produce an asymmetry between the rules of liability and immunity.”
“25. …It is difficult to see how the two hats can be severed and how the alleged private motive in inducing the torts can be separated from the public office that gave the defendant the status and the ability to direct others and issue instructions. 26. The fact that the claimant contends that the dispute with the defendant arose as a purely personal matter in 1997, is irrelevant…”
“If the test is whether the acts were done ‘in an apparently official capacity or under colour of authority’ then my findings were that they were not”
“7. The course of conduct which constitutes the Defendant's harassment has run consistently from about 2012 to the present time and has resulted in serious consequences: 7.1. with regard to the Claimant's health, it has undermined her sense of wellbeing. Her lifestyle has been drastically affected. She has suffered great distress, anxiety, sleep deprivation, and concern about her own physical safety and that of her children. She has been subject to a continuing threat of physical harm, trespass and surveillance. The Defendant has sought to disaffect her own children, has systematically sought the breakdown of many of the Claimant's close friendships and professional associations, and has sought to destroy her reputation and livelihood by spreading defamatory remarks and by vilification in the media; …”
“56.1 The Defendant’s harassment of the Claimant has undermined and continues to undermine her sense of wellbeing. She suffers from sleep deprivation and has frequent nightmares arising out of the threat to her personal safety. Her lifestyle has been drastically affected. She is rarely invited out to social occasions anymore and she hardly goes out at all. When she does go out, she almost always travels by car, and before leaving her home she checks first with Grosvenor Estate security and/or her driver that it is safe to do so. When she does attend social events, she is unable to fully enjoy them due to her concern that people are talking about her behind her back. By reason of the Defendant’s harassment of the Claimant, her son has become fearful and stressed and was bullied at school, all of which has added to the Claimant’s distress. … 56.3 The defamatory remarks made by the Defendant to the Claimant’s family, friends and business associates have caused the Claimant emotional and psychological distress and depression. She has suffered the mistrust of her children and estrangement from Nastassia. She has lost a number of close personal friends and business associates. …”
“76. Although, based on my decision, the point does not arise, I should deal, finally, with the submission that, had an immunity subsisted, the Claimant's claim could nevertheless continue on the basis of s.5 SIA. I would have rejected that argument. The Claimant's claim is for pure harassment. The loss she claims does not include a claim for any recognised psychiatric injury (see [10] above). As such, I do not accept that the Claimant's claim is, or includes, a claim for personal injury. A claim for distress and anxiety arising from an alleged course of conduct amounting to harassment is not, without more, a personal injury claim. Neither of the authorities relied upon by Mr Lewis QC assists the Claimant. The claimant in Jones -v- Ruth was pursuing a claim for psychiatric injury (i.e. a claim for personal injury). Nigeria -v- Ogbonna is authority only for the proposition that "personal injury", as used in s.5 SIA, should be given its normal meaning in domestic law; i.e. to include a claim for a recognised psychiatric injury (see [27] per Underhill J). The short point is that, in her Particulars of Claim, the Claimant makes no claim that she has been caused a recognised psychiatric injury by the alleged harassment. Her claim is therefore not a claim for personal injury within the terms of s.5 SIA; it is a claim for distress caused by the alleged harassment.”