Wokuri v Kassam [2012] EWHC 105 (Ch)

[2012] EWHC 105 (Ch)Case No HC11C01460IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONVenue The Rolls Building, Royal Courts of Justice,, 7 Rolls Buildings, London EC4A 1NLDate 30/01/2012
Before
MR JUSTICE NEWEY
Between
MS DAPHINE WOKURIClaimantMS MUMTAZ KASSAMDefendant
Mr Arfan Khan (instructed by C.T. Emezie Solicitors) for ClaimantProfessor Dan Sarooshi (instructed by Hugh Cartwright & Amin) for DefendantHearing Hearing date: 17 January 2012
Judgment

Introduction

[1]This case concerns the circumstances in which diplomatic immunity can be claimed in answer to a claim by an employee.[2]The proceedings were issued last year. In them, the Claimant, Ms Daphine Wokuri, alleges that she was employed by the Defendant, Ms Mumtaz Kassam, as a chef and general domestic servant. One of the complaints advanced is that Ms Kassam failed to provide Ms Wokuri with a copy of her contract of employment, as required by section 1 of the Employment Rights Act 1996. The thrust of the claim, however, is to the effect that Ms Kassam has failed to pay Ms Wokuri’s salary in full Ms Wokuri has made further allegations in a witness statement, but I do not think I should attach any significance to these for present purposes. The focus must be on whether diplomatic immunity provides an answer to the claims put forward in the Particulars of Claim. .[3]In response to the claim, Ms Kassam invoked diplomatic immunity. It was said on her behalf that, although she had previously employed Ms Wokuri as her chef and housekeeper in Uganda, the earlier arrangements had been superseded by a written contract Ms Wokuri had entered into in October 2006. By that juncture, Ms Kassam had become Deputy Head of Mission at the Ugandan High Commission in London. The alleged contract provided for Ms Wokuri’s appointment as “House Keeper at the DHM’s [i.e. Deputy Head of Mission’s] Residence” and for her duties to include “House keeping and catering at the Residence of the Deputy Head of Mission”. It was suggested on Ms Kassam’s behalf that, from this point, Ms Wokuri was employed by the High Commission rather than by Ms Kassam personally. Supposing, however, that Ms Kassam had herself engaged Ms Wokuri on the terms of the alleged contract, she would have done so (it was submitted) in the exercise of her functions as a member of the Ugandan Mission to the United Kingdom and so been entitled to diplomatic immunity.[4]The case came before me on 4 October 2011. By then, it had become apparent that Ms Wokuri denied signing the alleged 2006 contract. That being so, counsel then appearing for Ms Kassam argued that, unless I was willing to proceed on the basis that the dispute was governed by the alleged 2006 contract, the matter should be adjourned so that questions as to the validity of that contract could be addressed. After argument, I gave each party permission to file further evidence (including from handwriting experts) and directed that the matter be re-listed for a day no earlier than the beginning of this term.[5]Following a change of legal team, Ms Kassam now seeks to short-circuit matters. By an application notice dated 25 November 2011, she asks that I discharge my order of 4 October 2011 and declare that the English Courts have no jurisdiction. Her position is essentially that Ms Wokuri’s claim is barred regardless of whether the 2006 contract was entered into. The skeleton argument in support of the application summarises the point in these terms:
“[E]ven were the Claimant employed directly by the Defendant this relationship falls within the Defendant’s ‘functions’ as a ‘member of the Ugandan mission’ in the UK, and as such the Court has no jurisdiction to hear the present case pursuant to the continuing immunity of the Defendant pursuant to Article 39(2) of [Schedule 1 to the Diplomatic Privileges Act 1964]”
. Schedule 1 to the Diplomatic Privileges Act 1964 contains Articles from the Vienna Convention on Diplomatic Relations (“the Vienna Convention”).[6]The evidence before me includes a certificate from the Foreign & Commonwealth Office confirming that Ms Kassam was a member of the High Commission of Uganda to the United Kingdom between April 2005 and March 2011. A letter from the Foreign & Commonwealth Office indicates that Ms Kassam was a Counsellor before becoming Deputy High Commissioner.[7]Ms Kassam was transferred to Rome in 2011. Ms Kassam has explained in a witness statement that she became Deputy Head of Mission at the Ugandan Embassy in Rome in May 2011.

The Vienna Convention

[8]Section 2 of the Diplomatic Privileges Act 1964 provides for the Articles of the Vienna Convention set out in Schedule 1 to the Act to have the force of law in the United Kingdom. The Articles to be found in Schedule 1 include Articles 31 and 39.[9]Article 39(2) is of central importance in the present case. It states as follows:
“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”
[10]The other provision of the Vienna Convention of particular relevance is Article 31(1). This is in these terms:
“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”

The parties’ positions

[11]Professor Dan Sarooshi, who appeared for Ms Kassam, submitted that Ms Kassam enjoyed immunity under Article 31 while she was a member of the High Commission and that, having left the High Commission, she has immunity under Article 39(2). Professor Sarooshi argued that Ms Wokuri’s claims relate to “acts performed by [Ms Kassam] in the exercise of [her] functions as a member of the mission” within the meaning of Article 39(2) and, hence, that the immunity to which Ms Kassam had formerly been entitled had “continue[d] to subsist”. Professor Sarooshi further sought to link Article 39(2) and Article 31(1)(c). He contended that a diplomat acting within his “official functions” (within Article 31(1)(c)) will also be acting “in the exercise of his functions as a member of the mission” (for the purposes of Article 39(2)).[12]In contrast, Mr Arfan Khan, who appeared for Ms Wokuri, disputed Ms Kassam’s claim to immunity. He pointed out that, having left the United Kingdom, Ms Kassam has immunity only in respect of “acts performed ... in the exercise of functions as a member of the mission”, and he denied that Ms Wokuri’s claims arise from such acts. He also argued that Ms Kassam never enjoyed immunity under Article 31 – on the basis that the exception for which Article 31(1)(c) provides was applicable.

Authorities

[13]It was common ground between counsel that there is no English authority of much assistance with the question I have to decide. I was, however, taken to three American cases in which the Vienna Convention has been considered.[14]The earliest of these is Tabion v Mufti 73 F.3d 535, a 1996 decision of the United States Court of Appeals, 4th Circuit. The issue there was whether Article 31(1)(c) of the Vienna Convention precluded a domestic servant from bringing a claim against her diplomat employer. The Court held that it did. The Court observed that, to resolve the dispute, it was necessary to determine the meaning of the phrase “commercial activity” used in Article 31(1)(c) (paragraph 6 of the Court’s opinion). The Court concluded that, when examined in context, “the term ‘commercial activity’ does not have so broad a meaning as to include occasional service contracts … , but rather relates only to trade or business activity engaged in for personal profit” (paragraph 8). The Court said (in paragraph 8): “Accepting the broader meaning fails to take into account the treaty’s background and negotiating history, as well as its subsequent interpretation. It also ignores the relevance of the remainder of the phrase – ‘outside his official functions’”.[15]In subsequent paragraphs of its opinion, the Court noted, among other things, that the drafters of the Vienna Convention had recognised that “a diplomat’s engaging in professional or commercial activity in the receiving state had always been contrary to international standards of conduct” (paragraph 9), that the US State Department had “concluded that the term ‘commercial activity’ as used in the [Article 31(1)(c)] exception ‘focuses on the pursuit of trade or business activity’ and ‘does not encompass contractual relationships for goods and services incidental to the daily life of the diplomat and family in the receiving State’” (paragraph 10) and that legal commentators “similarly characterize the exception as covering only a diplomat’s participation in trade or business, and not his everyday transactions” (paragraph 11). In paragraph 13, the Court said this: “It is evident from the foregoing authorities that the phrase ‘commercial activity’, as it appears in the Article 31(1)(c) exception, was intended by the signatories to mean ‘commercial activity exercised by the diplomatic agent in the receiving State outside his official functions’. Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them”.[16]The next case is Baoanan v Baja 627 F.Supp.2d 155, decided by the United States District Court for the Southern District of New York in 2009. This case was concerned with a claim against a former diplomat (Mr Baja) and therefore with Article 39(2) of the Vienna Convention. The plaintiff (Ms Baoanan) claimed to have been forced to work as a domestic servant for Mr Baja and his wife. The Bajas argued that they had diplomatic immunity, but the Court decided otherwise. The Court took the view (at page 164) that “acts allegedly committed by Baja that were performed in furtherance of his diplomatic functions such that they are ‘in law the acts of the sending State’ (Denza, Diplomatic Law 439) are official acts; all other acts are private acts for which residual immunity [under Article 39(2)] is not available”. The Court rejected a suggestion that “a diplomatic agent’s employment of a domestic worker is always an official act encapsulated by Article 39(2)” (page 165). It said (at page 165):
“Functionally, not all domestic workers hired by diplomats are necessarily alike. While undoubtedly many are routinely employed and assigned to provide services related solely to the official functions of the mission, it does not follow that all such workers are always hired only for such purposes. A diplomat could also employ and pay staff to perform personal or private tasks for the diplomat or the diplomat’s family that the sending State would not recognize as ordinary or necessary to the official functioning of the mission and for which it would not provide compensation”
. On the facts, the Court took the view (at page 169) that “Baoanan’s employment was personal to Baja, pertaining predominantly to the private needs of the Baja family and only tangentially to the benefit of the Philippine Mission itself”. The Court concluded (at page 170) that “Baja’s employment of Baoanan as a domestic worker in his residence at the Philippine Mission was a private act for which Baja cannot avail himself of residual immunity pursuant to Article 39(2)”.[17]The last of the American cases is Swarna v Al-Awadi 622 F.3d 123, a 2010 decision of the United States Court of Appeals, 2nd Circuit. In this case too, a former diplomat (here, Mr Al-Awadi) invoked Article 39(2) of the Vienna Convention in answer to a claim by a domestic servant (Mrs Swarna). The Court decided that the Vienna Convention did not preclude the claim.[18]In the course of its judgment, the Court observed that “[s]itting diplomats are accorded near-absolute immunity in the receiving state to avoid interference with the diplomat’s service for his or her government” (page 137), but “diplomats lose much of their immunity following the termination of their diplomatic status” (page 133). It explained (at page 134): “Article 39(2) of the Vienna Convention … provides for so-called ‘residual’ immunity, which is a less expansive immunity that remains with the former diplomats for certain acts committed during their occupation of the diplomatic station. Specifically, once a diplomat becomes a ‘former’ diplomat, he or she is not immune from suit for prior acts unless those acts were performed ‘in the exercise of [the former diplomat’s] functions as a member of the mission’ …”.[19]The Court was not prepared to accept that “the employment of private servants is necessarily an official act” (see page 139). At pages 134-135, it said this: “[W]e find it significant that Article 39(2) does not immunize acts that are ‘incidental to’ the exercise of … functions as a member of the mission. Residual immunity, as consistent with the Vienna Convention’s purpose of ‘not benefit[ting] individuals but … ensur[ing] the efficient performance of the functions of diplomatic missions,’ Vienna Convention [preamble], cl 4, is limited to a narrow set of acts that are committed ‘in the exercise of his functions as a member of the mission,’ Vienna Convention art. 39(2) (emphasis added). ‘[M]odern international law has adopted diplomatic immunity under a theory of functional necessity.’ 767 Third Ave. Assocs. v. Permanent Mission of the Republic of Zaire, 988 F.2d 295, 300 (2d Cir.1993). Accordingly, a diplomat enjoys broad personal immunity from civil and criminal jurisdiction while performing the functions of a member of a diplomatic mission …. This immunity exists ‘not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.’ Vienna Convention [preamble] cl. 4. For this reason, while residual diplomatic immunity applies to the ‘acts performed by such a person in the exercise of his functions as a member of the mission,’ Vienna Convention art. 39(2), it does not apply to actions that pertain to his household or personal life and that may provide, at best, ‘an indirect’ rather that a ‘direct … benefit to’ diplomatic functions. Park v. Shin, 313 F.3d 1138, 1142 (9th Cir.2002) …. Although Al-Awadi asserts at one point that residual immunity encompasses all acts that are incidental and indispensable to diplomatic activities, acts incidental and indispensable to diplomatic activities include, in this context, only such acts as are directly imputable to the state or inextricably tied to a diplomat’s professional activities”.[20]Of Tabion v Mufti, the Court said this (at pages 138-139): “Al-Awadi relies on Tabion v. Mufti … , a case in which the Fourth Circuit stated that ‘[d]ay-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions … [b]ecause these services are incidental to daily life.’ But that statement was made in the context of considering whether a sitting diplomat’s hiring of a domestic servant fell within the ‘commercial activity’ exception to diplomatic immunity under Article 31(1)(c) …. The Tabion court agreed with the U.S. Department of State that the term ‘commercial activity’ in Article 31(1)(c), as modified by its latter phrase ‘outside his official functions,’ ‘focuses on the pursuit of trade or business activity; it does not encompass contractual relationship for goods and services incidental to the daily life of the diplomat and family in the receiving State.’ … Thus, Tabion articulates the scope of acts as they relate to the term ‘commercial activity’ under Article 31(1)(c) for sitting diplomats; Tabion does not define ‘official functions,’ much less define the official acts that are accorded perpetual immunity under Article 39(2) to former diplomats”.[21]As to whether, on the facts, the defendant’s “employment and treatment of Swarna constituted official acts”, the Court observed that its “consideration is a functional one” (page 137). It said that the alleged facts showed that the plaintiff “was employed to meet Al-Awadi’s and his family’s private needs and not any mission-related functions” and that “[a]lthough Swarna also cooked and served guests at official functions from time to time and taught other servants how to cook Kuwaiti dishes, these duties were incidental to her regular employment as Al-Awadi’s personal servant” (page 138). Among other matters, it also noted that the fact that Mrs Swarna was paid out of Mr Al-Awadi’s private funds indicated that she was employed by Mr Al-Awadi and not by the Mission (page 138).

Conclusions as to the law

[22]I have arrived at the following conclusions as to the relevant law.[23]A diplomatic agent who has left a Mission continues to enjoy immunity, under Article 39(2) of the Vienna Convention, “with respect to acts performed by [him] in the exercise of his functions as a member of the mission”. This immunity reflects the fact that acts so performed are in law the acts of the sending state. Denza, “Diplomatic Law”, 3rd edition, explains the position as follows (at 439): “The acts of a diplomatic agent in the exercise of his official functions are in law the acts of the sending State. It has therefore always been the case that the diplomat cannot at any time be sued in respect of such acts since this would be indirectly to implead the sending State”.[24]The residual immunity under Article 39(2) is, however, less extensive than that enjoyed by a serving diplomat. As was said in Swarna v Al-Awadi, “diplomats lose much of their immunity following the termination of their diplomatic status”.[25]A former diplomat will not necessarily have immunity in relation to claims by employees carrying out domestic duties. That view is supported by both Baoanan v Baja and Swarna v Al-Awadi. The Court in Swarna v Al-Awadi was, as it seems to me, right to consider that the residual immunity “does not apply to actions that pertain to [a diplomat’s] household or personal life and that may provide, at best, ‘an indirect’ rather than a ‘direct ... benefit to’ diplomatic functions”. Such actions do not “indirectly … implead the sending State” (to use words from Denza, “Diplomatic Law”). Neither do they relate to “acts performed ... in the exercise of [the diplomat’s] functions as a member of the mission” (within Article 39(2)).[26]Professor Sarooshi placed particular reliance on the passage in Tabion v Mufti in which the Court said:
“Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them.”
However, in Tabion v Mufti the Court’s concern was essentially as to the meaning of “commercial activity” in Article 31(1)(c) (see paragraphs 14 and 15 above). As was pointed out in Swarna v Al-Awadi (see paragraph 20 above), Tabion v Mufti “articulates the scope of acts as they relate to the term ‘commercial activity’ under Article 31(1)(c) for sitting diplomats” and “does not define ‘official functions,’ much less define the official acts that are accorded perpetual immunity under Article 39(2) to former diplomats”.

The present case

[27]The available materials do not enable me to be satisfied that diplomatic immunity exists in the present case. My reasons include these: i) There is, as I understand it, no dispute but that the parties entered into a written contract in 1998. The contract provided for Ms Wokuri to be employed by Ms Kassam as a chef and to perform such other housekeeping duties as might be assigned to her. At this stage, Ms Kassam was not yet a diplomat (she confirms in a witness statement that she has been a diplomat since 2003). There can therefore be no question of Ms Kassam having entered into this contract “in the exercise of … functions as a member of” the High Commission of Uganda to the United Kingdom (or any other diplomatic Mission). In fact, Ms Wokuri appears to have worked for Ms Kassam for a number of years in Uganda; ii) Ms Kassam was presumably based in the United Kingdom by April 2005, and at some point Ms Wokuri evidently came here too. As matters stand, however, it has not been established that the contract pursuant to which she had previously been working for Ms Kassam was replaced or even varied. As Professor Sarooshi accepted, I must at present proceed on the basis that Ms Wokuri continued to be employed pursuant to the 1998 contract and that the alleged 2006 contract never took effect; iii) It has not been demonstrated that the nature of Ms Wokuri’s job changed in any significant way when she came to London. There is, in particular, no evidence that Ms Wokuri carried out work for the High Commission as such. Ms Wokuri has referred to working at the house of a cousin of Ms Kassam, but the cousin apparently had nothing to do with the High Commission; iv) Professor Sarooshi made much of a circular from the Ugandan Ministry of Foreign Affairs which was apparently distributed to all Ugandan Missions abroad in August 2006. This stated:
“In order to promote conducive working conditions in our Missions abroad, it has been decided that a provision of a Housekeeper/Cook be made to each appointed Deputy Head of Mission at their respective residences. In order to operationalise this arrangement, the Housekeeper/Cook should be locally recruited and the monthly emoluments met by the Missions”
. Professor Sarooshi argued that this confirmed the importance to Ms Kassam’s work of her receiving domestic help. However, the circular has not been shown to have had any impact on either the contract under which Ms Wokuri was employed or the nature of her job. Further, although the circular spoke of emoluments being “met by the Missions”, according to the Particulars of Claim Ms Wokuri continued to be paid by Ms Kassam rather than the High Commission until late 2010. Moreover, the provision of a housekeeper/cook “to promote conducive working conditions” could, potentially, be consistent with such provision being thought to be of indirect rather than direct benefit to diplomatic functions; v) In all the circumstances, I cannot be satisfied from the materials before me that Ms Wokuri’s claims arise out of “acts performed ... in the exercise of [Ms Kassam’s] functions as a member of the mission”.

Result

[28]I shall dismiss Ms Kassam’s application for my order of 4 October 2011 to be discharged.

Cited in 5 later judgments