Dr Saeed Shehabi & Anor v The Kingdom Of Bahrain [2024] EWCA Civ 1158

‘A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.’

‘40. s.1 Protection from Harassment Act 1997 (“PfHA”) provides, so far as material: “(1) A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (1A) [omitted] (2) For the purposes of this section …, the person whose course of conduct is in question ought to know that it amounts to … harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows – (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.” 41. s.3 provides that any actual or apprehended breach of s.1(1) may be the subject of a civil claim by anyone who is or may be the victim of the course of conduct. Remedies in a civil claim include interim and final injunctions and damages for “any anxiety caused by the harassment and any financial loss resulting from the harassment”: s.3(2). 42. s.7(2) provides: “References to harassing a person include alarming the person or causing the person distress”; and in subsection (3) (b): “A ‘course of conduct’ must involve, in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person.” Conduct can include speech (s.7(4)). 43. A defendant has a defence if s/he shows: (i) that the course of conduct was pursued for the purpose of preventing or detecting crime; and/or (ii) that in the particular circumstances the pursuit of the course of conduct was reasonable (s.1(3)). 44. The principal cases on what amounts to harassment are: Thomas v News Group Newspapers [2002] EMLR 4; Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224; Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46; Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB); Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB); [2012] 4 All ER 717; Hayes v Willoughby [2013] 1 WLR 935; R v Smith [2013] 1 WLR 1399; Law Society v Kordowski [2014] EMLR 2; Merlin Entertainments LPC v Cave [2015] EMLR 3; Levi v Bates [2016] QB 91; Hourani v Thomson [2017] EWHC 432 (QB); Khan v Khan [2018] EWHC 241 (QB); Hilson v Crown Prosecution Service [2019] EWHC 1110 (Admin); and Sube v News Group Newspapers Ltd [2020] EMLR 25. From these cases, I extract the following principles i) Harassment is an ordinary English word with a well understood meaning: it is a persistent and deliberate course of unacceptable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress; “a persistent and deliberate course of targeted oppression”: Hayes v Willoughby [1], [12] per Lord Sumption. ii) The behaviour said to amount to harassment must reach a level of seriousness passing beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody’s day-to-day dealings with other people. The conduct must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability under s.2: Majrowski [30] per Lord Nicholls; Dowson [142] per Simon J; Hourani [139]-[140] per Warby J; see also Conn -v- Sunderland City Council [2007] EWCA Civ 1492 [12] per Gage LJ. A course of conduct must be grave before the offence or tort of harassment is proved: Ferguson v British Gas Trading Ltd [17] per Jacob LJ. iii) The provision, in s.7(2) PfHA, that “references to harassing a person include alarming the person or causing the person distress” is not a definition of the tort and it is not exhaustive. It is merely guidance as to one element of it: Hourani [138] per Warby J. It does not follow that any course of conduct which causes alarm or distress therefore amounts to harassment; that would be illogical and produce perverse results: R v Smith [24] per Toulson LJ. iv) s.1(2) provides that the person whose course of conduct is in question ought to know that it involves harassment of another if a reasonable person in possession of the same information would think the course of conduct involved harassment. The test is wholly objective: Dowson [142]; Trimingham [267] per Tugendhat J; Sube [65(3)], [85], [87(3)]. “The Court’s assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant”: Sube [68(2)]. v) Those who are “targeted” by the alleged harassment can include others “who are foreseeably, and directly, harmed by the course of targeted conduct of which complaint is made, to the extent that they can properly be described as victims of it”: Levi v Bates [34] per Briggs LJ. vi) Where the complaint is of harassment by publication, the claim will usually engage Article 10 of the Convention and, as a result, the Court’s duties under ss.2, 3, 6 and 12 of the Human Rights Act 1998. The PfHA must be interpreted and applied compatibly with the right to freedom of expression. It would be a serious interference with this right if those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that they felt offended or insulted: Trimingham [267]; Hourani [141]. …’ “(1) A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (1A) [omitted] (2) For the purposes of this section …, the person whose course of conduct is in question ought to know that it amounts to … harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows – (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.” i) Harassment is an ordinary English word with a well understood meaning: it is a persistent and deliberate course of unacceptable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress; “a persistent and deliberate course of targeted oppression”: Hayes v Willoughby [1], [12] per Lord Sumption. ii) The behaviour said to amount to harassment must reach a level of seriousness passing beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody’s day-to-day dealings with other people. The conduct must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability under s.2: Majrowski [30] per Lord Nicholls; Dowson [142] per Simon J; Hourani [139]-[140] per Warby J; see also Conn -v- Sunderland City Council [2007] EWCA Civ 1492 [12] per Gage LJ. A course of conduct must be grave before the offence or tort of harassment is proved: Ferguson v British Gas Trading Ltd [17] per Jacob LJ. iii) The provision, in s.7(2) PfHA, that “references to harassing a person include alarming the person or causing the person distress” is not a definition of the tort and it is not exhaustive. It is merely guidance as to one element of it: Hourani [138] per Warby J. It does not follow that any course of conduct which causes alarm or distress therefore amounts to harassment; that would be illogical and produce perverse results: R v Smith [24] per Toulson LJ. iv) s.1(2) provides that the person whose course of conduct is in question ought to know that it involves harassment of another if a reasonable person in possession of the same information would think the course of conduct involved harassment. The test is wholly objective: Dowson [142]; Trimingham [267] per Tugendhat J; Sube [65(3)], [85], [87(3)]. “The Court’s assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant”: Sube [68(2)]. v) Those who are “targeted” by the alleged harassment can include others “who are foreseeably, and directly, harmed by the course of targeted conduct of which complaint is made, to the extent that they can properly be described as victims of it”: Levi v Bates [34] per Briggs LJ. vi) Where the complaint is of harassment by publication, the claim will usually engage Article 10 of the Convention and, as a result, the Court’s duties under ss.2, 3, 6 and 12 of the Human Rights Act 1998. The PfHA must be interpreted and applied compatibly with the right to freedom of expression. It would be a serious interference with this right if those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that they felt offended or insulted: Trimingham [267]; Hourani [141]. …’

‘An Act to make new provision with respect to proceedings in the United Kingdom by or against other States; to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention on State Immunity; to make new provision with respect to the immunities and privileges of heads of State; and for connected purposes.’

‘28. Having regard to the way in which both parties presented their cases, it is opportune to say something about the process of statutory interpretation. 29. The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.” (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.” 30. External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole. 31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated: “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning”.’ “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning”.’

‘57. The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality and the jurisdiction which flows from it. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.’

‘39. I do not regard these considerations as decisive of the present issue. No one doubts that as a matter of domestic law, Part I of the State Immunity Act is a complete code. If the case does not fall within one of the exceptions to section 1, the state is immune. But the present question is whether the immunity thus conferred is wider than customary international law requires, and that raises different considerations. In the first place, it is necessary to read the grant of the immunity in article 5 of the United Nations Convention together with the exceptions which follow, as an organic whole. The exceptions are so fundamental in their character, so consistent in their objective and so broad in their effect as to amount in reality to a qualification of the principle of immunity itself rather than a mere collection of special exceptions. …’

‘38. … we were not attracted by Mr Young’s argument that a restrictive interpretation should be put on the scope of the definition within subsection (3)(c) because the structure of the Act was one which provided immunity in section 1 and section 3(1)(a) was an exception, thereby giving rise to a strict interpretation of the exceptions if it was to be removed. We do not accept that the structure of the Act provides any basis for such a restrictive approach to construction of the exception sections, for the reasons articulated by Lord Sumption JSC in Benkarbouche at para 39.’

‘(1) Transmitting executable files for installing FinSpy on the SS Computer and the MM Computer ("the Devices"), which were at all material times located in England. (2) Installing FinSpy on the Devices, including by overwriting the hard disk and/or Master Boot Record with malicious code. (3) Running the spyware on the Devices. (4) Executing FinSpy to the Devices' Central Processing Units, and reading data to, and writing it from, the Devices' Random Access Memory. (5) Storing information gathered by the spyware on the Devices' hard disks. (6) Using the Devices' computer network interface controller to send and receive data via a wired or wireless network and telecommunications equipment within the UK. (7) Using the Devices' battery power to transmit and receive data and commands, and to use other hardware components in the Devices. (8) Exfiltrating or causing to be exfiltrated information held on, available from and/or transmitted via the Devices. (9) Activating or causing to be activated the Devices' microphones and/or cameras, and recording information with the same. (10) Recording and transmitting keystrokes and mouse movements made on the Devices.’

‘143. I do not consider there is any meaningful distinction between the facts of Levin, where there was nefarious real time manipulation from Russia of a computer in the US, and this case of a spyware attack implanting software from abroad by trickery onto a device in the UK, which then, at regular intervals under the control of the spyware program, sends data back to a C&C server abroad. The technicalities may be different, but the principle is the same. In both cases a foreign entity has taken control of a computer located in the UK in order to obtain data. 144. I therefore conclude that infecting a computer located in the UK with spyware from abroad is an act done in the UK for the purposes of s 5.’

‘For the reasons we have already indicated, the operation of the keyboard by a computer operator produces a virtually instantaneous result on the magnetic disk of the computer even though it may be 10,000 miles away. It seems to us artificial to regard the act as having been done in one rather than the other place. But, in the position of having to choose on the facts of this case whether, after entering the computer in Parsipenny, the act of appropriation by inserting instructions on the disk occurred there or in St Petersburg, we would opt for Parsipenny. The fact that the applicant was physically in St Petersburg is of far less significance than the fact that he was looking at and operating on magnetic disks located in Parsipenny. The essence of what he was doing was done there. …’

‘62. Ashton’s computer server was in London. That is where the confidential and privileged information was stored. The attack emanated from Russia but it was directed at the server in London and that is where the hacking occurred. In my view, significant damage occurred in England where the server was improperly accessed and the confidential and privileged information downloaded. The fact that it was transmitted almost instantly to Russia does not mean that the damage occurred only in Russia. If a thief steals a confidential letter in London but does not read it until he is abroad, damage surely occurs in London. It should not make a difference that, in a digital age of almost instantaneous communication, the documents are stored in digital form rather than hard copy and information is transmitted electronically abroad where it is read. The removal took place in London. … 63. I also consider that substantial and efficacious acts occurred in London, as well as Russia. That is where the hacking occurred and access to the server was achieved. This may have been as a result of actions taken in Russia but they were designed to make things happen in London, and they did so. Effectively the safe was open from afar so that its contents could be removed. It would be artificial to say that the acts occurred only in Russia. On the contrary, substantial and effective acts occurred in London.’

‘93. … Although there are important differences between electronic communications, for the purposes of Article 8 of the Convention, and possessions, for the purposes of Article of Protocol No. 1, it is nevertheless the case that an interference with an individual’s possessions occurs where the possession is interfered with, rather than where the owner is located (see, for example, Anheuser-Busch Inc v Portugal [GC], no. 73049/01, ECHR 2007-I). Similarly, in the specific context of Article 8, it could not seriously be suggested that the search of a person’s home within a Contracting State would fall outside that State’s territorial jurisdiction if the person was abroad when the search took place. …’

‘A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasion the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’

‘97. In my judgment, the grammatical meaning of s 5, and in particular the use of the indefinite article (death or personal injury caused by 'an act or omission') (emphasis added) means what it says. There has to be an act or omission in the UK which is causative of the requisite damage on a more than de minimis basis. Parliament did not say ‘the act or omission’, still less, ‘acts or omissions occurring entirely within the UK’, both of which would have been more supportive of the Defendant's interpretation of s 5. This suggests the Claimants’ contention is the correct one.’

‘This Clause implements Article 11 of the Convention. As paragraph 47 of the Explanatory Report points out the necessary jurisdictional links in this context were based on Article 10(4) of the Convention of the 1st February 1971 on the Recognition and Enforcement of Foreign judgments in Civil and Commercial Matters. The Report on that Convention indicates the intention that a court should have jurisdiction for the purpose of the Convention in respect of a death or personal injury or damage to tangible property which occurs outside the territory of the court, provided that it was caused by an act or omission in the territory of the forum and the person who was responsible for the act or omission was present in the territory when the act or omission occurred. Thus if a motor vehicle was negligently repaired in United Kingdom by the servant of a foreign State and as a result of that negligence an accident occurred in the territory of another State which caused death, personal injury, loss of or damage to tangible property it would be possible to take proceedings against the State in the appropriate court of the United Kingdom and the State would not be immune from the jurisdiction. Article 11 of the Convention requires the author of the injury or damage to be present in the territory at the time when the facts which occasion the injury or damage occurred. These words have not been repeated in the Bill because it is difficult to imagine circumstances when Clause 5 would apply when the person responsible for the act or omission was outside the United Kingdom.’

‘55. In my judgment, notes on clauses (as distinct from published explanatory notes) are not a proper aid to the interpretation of an Act of Parliament, whether they are circulated to MPs (as happened in relation to the 1990 Act) or not (as in relation to the 1972 Act). Although in the former case, unlike the latter case, it might be argued that there are some grounds for saying that the notes on clauses form part of the contextual background against which the Bill was passed by Parliament as a collective body, so that they should be taken to have an interpretive role and status analogous to that of statements in a White Paper proposing legislation, or in clear statements by a promoter of a Bill in Parliament or in modern form Explanatory Notes, I think that there is an important difference from all these cases. Notes on clauses when not cited in debate are private documents not available to the public at large, unlike White Papers, statements reported in Hansard and published Explanatory Notes. An Act of Parliament creates law applicable to all citizens. In my judgment, it is fundamental that all materials which are relevant to the proper interpretation of such an instrument should be available to any person who wishes to inform himself about the meaning of that law. That is not the position in relation to notes on clauses and for that reason I do not consider they are a legitimate aid to construction of an Act of Parliament. …’

‘26. We do not, however, attach particular weight to the Notes on Clauses. The document was drafted by government officials and has no endorsement by the United Kingdom Parliament. It is much less significant than the language carefully chosen by the parliamentary drafter and enacted by Parliament.’

‘10. The Act was aimed at giving broad effect to (though not following precisely the wording of) the European Convention on State Immunity (Basle, 16 May 1972; Misc 31 (1972); Cmnd 5081), which was agreed under the aegis of the Council of Europe at Basle on 16 May 1972 and which entered into force on 11 June 1976.’

‘72. By contrast an interpretation of s. 6(a) that requires the tort causing the personal injury or death to have occurred in Canada upholds the purposes of sovereign equality without leading to absurd results. It accords with the theory of sovereign equality to allow foreign states to be sued in Canada for torts allegedly committed by them within Canadian boundaries. As explored above, sovereignty is intimately tied to independence. State independence relates to the “exclusive competence of the State in regard to its own territory” (Island of Palmas Case (or Miangas), United States of America v Netherlands, Award (1928), II R.I.A.A. 829 at p. 838; Fox & Webb, at p. 74). If a foreign state is committing torts within Canadian controlled boundaries, Canada has the competence (derived from its independence) to bring the foreign state within Canada’s adjudicative jurisdiction. There would thus be a sufficient connection with the forum state to justify bringing the foreign state’s actions under Canadian scrutiny. In this way, the territorial tort exception to state immunity maintains an appropriate balance between “the principles of territorial jurisdiction and state independence” (Laroque, Civil Actions for Uncivilised Acts, at p.258. It enables a forum state to exercise jurisdiction over foreign states within its borders without allowing the forum state to “sit in judgment of extraterritorial state conduct” (ibid.). …’

‘Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.’

‘The legislative history makes clear that for the exception of 1605(a)(5) to apply “the tortious act or omission must occur within the jurisdiction of the United States”.’

‘Where there has been injury to the person or damage to property, the rule of non-immunity applies equally to any accompanying claim for non-material damage resulting from the same acts, e.g. a claim for damages for pain and suffering or for mental shock.’

‘27. It is clear that the modern approach to statutory interpretation in English (and UK) law requires the courts to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision: see, eg, Quintavalle, para 8 (per Lord Bingham); Uber BV v Aslam [2021] UKSC 5; [2021] ICR 657, para 70; Rittson-Thomas v Oxfordshire County Council [2021] UKSC 13; [2022] AC 129, para 33; R(O) v Secretary of State for the Home Department [2022] UKSC 3; [2022] 2 WLR 343, paras 28-29. 28. Within that modern approach, it is also a well-established principle of statutory interpretation that, in general, a provision is always speaking: see, eg, Royal College of Nursing of the United Kingdom v Department of Health and Social Security (“Royal College of Nursing”) [1981] AC 800; R v Ireland [1998] AC 147, 158-159 ; Quintavalle; Owens v Owens [2018] UKSC 41, [2018] AC 899 (approving [2017] EWCA Civ 182, [2017] 4 WLR 74); Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47, [2022] AC 1. See also Craies on Legislation (ed Daniel Greenberg), 12th ed, (2022) ch 21; and Bennion, Bailey and Norbury on Statutory Interpretation 8th ed, (2020) ch 14. 29. What is meant by the always speaking principle is that, as a general rule, a statute should be interpreted taking into account changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and changes in the law. Very importantly it does not matter that those changes could not have been reasonably contemplated or foreseen at the time that the provision was enacted. Exceptionally, the always speaking principle will not be applied where it is clear, from the words used in the light of their context and purpose, that the provision is tied to an historic or frozen interpretation. A possible example (referred to by Lord Steyn in R v Ireland at p 158) is The Longford (1889) 14 PD 34 where the word “action” in a statute was held not to be apt to cover an Admiralty action in rem: at the time the statute was passed, the Admiralty Court “was not one of His Majesty’s Courts of Law” (p 38). 30. The great merit of the always speaking principle is that it operates to prevent statutes becoming outdated. It would be unrealistic for Parliament to try to keep most statutes up to date by continually passing amendments to cope with subsequent change.’

‘ … the distinction between physical and mental injury is by no means clear cut. … But I would go further and point out that although out of considerations of piety we frequently refer to the actual intention of the draftsman, the correct approach is simply to consider whether the words of the Act of 1861 considered in the light of contemporary knowledge cover a recognisable psychiatric injury. It is undoubtedly true that there are statutes where the correct approach is to construe the legislation "as if one were interpreting it the day after it was passed:" The Longford (1889) 14 PD 34. Thus in The Longford the word "action" in a statute was held not to be apt to cover an Admiralty action in rem since when it was passed the Admiralty Court "was not one of His Majesty's Courts of Law:" (see pp. 37, 38.) Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. Recognising the problem Lord Thring, the great Victorian draftsman of the second half of the last century, exhorted draftsmen to draft so that "An Act of Parliament should be deemed to be always speaking": Practical Legislation (1902), p.83; see also Cross, Statutory Interpretation, 3rd ed. (1995), p.51; Pearce & Geddes, Statutory Interpretation in Australia, 4th ed. (1996), pp.90-93. In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the "always speaking" variety: see Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] AC 800 for an example of an "always speaking" construction in the House of Lords. The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the Act 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant enquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the "always speaking" type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.’

‘28. … Not only is the distinction urged on me by Mr Pipi [counsel for Nigeria] one which would mean that the concept of personal injury in section 5 of the Act was different from its meaning elsewhere in English law but it would give rise to what would frequently be difficult, and frankly artificial, debates about the extent to which a particular injury in respect of which a claim was made was physical or mental. The whole trend of recent authority has been to recognise that these kinds of distinction are difficult both conceptually and evidentially.’

‘51. The questions at stake fall within the purview of the domestic legislation. Indeed, it can be argued that the domestic legislation is more specific than the rules set out by the international legal principles and as such, there would be little utility in examining international legal principles in detail. In other cases, international law principles and the disposition of the matter might turn on their interpretation and application. In this appeal, the case turns on the interpretation of the bilingual versions of s.6(a) of State Immunity Act, discussed below, rather than the interpretation of international law principles.’

‘56. A principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a priori be preferred. … Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning.’

‘65. Based on the provisions of the C.C.Q. [Civil Code of Quebec] and the relevant case law and doctrine set out above, I believe that the civil law concepts of “préjudice corporel – bodily injury”, despite their flexibility, incorporate an inner limitation to the potential ambit of s. 6(a) of the Act, requiring some form of interference with physical integrity. Although the terms “death” or “personal injury” found in the English version allow the possibility of non-physical injury to be captured within the s. 6(a) exception, the civil law concept of “dommages corporels” found in the French version of s. 6(a) does not. As the French version is the clearer and more restrictive version of the two, it best reflects the common intention of the legislator found in both versions. …’

‘74. However, even if the alternative interpretation of s. 6(a) were accepted, Mr Hashemi’s circumstance would still not fall within the exception to state immunity. The “personal bodily injury” exception to state immunity does not apply where the alleged injury does not stem from a physical breach of personal integrity. 75. In Schreiber, our Court confirmed that “the scope of the exception” in s. 6(a) is limited to instances where mental distress and emotional upset were linked to a physical injury” (para 42). Only when psychological distress manifests itself after a physical injury will be exception to state immunity be triggered. In other words, “some form of a breach of physical integrity must be made out” (para 62).’