“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.” 17. The explanation for this was given by Lord Phillips in Pinochet No3 at 286A: “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.” 18. The immunity is that of the state. It can therefore only be waived by the state itself. As Lord Saville explained in Pinochet No3 at 265: “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.” 19. Moreover, it is not open to this court to adjudicate upon the legality of the foreign state’s acts. As Lord Millett said in Pinochet No3 at p. 270: “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.” 20. Where a claim is brought against officials, servants or agents of a foreign state in respect of acts done by them, the foreign state is entitled to claim immunity for its servants or agents as it could if sued itself. 21. If state immunity is established, it is for a claimant to establish, to the civil standard, an exemption to that immunity (for example, under section 5 SIA). 22. Whenever the question arises under the SIA as to whether a state is immune by virtue of section 1 or not immune by virtue of one of the exceptions, the question must be decided as a preliminary issue in favour of the claimant, in whatever form and by whatever procedure the court may think appropriate, before the substantive action can proceed: J.H. Rayner Ltd. v. Department of Trade[1989] Ch 72 per Kerr LJ at 194 and Ralph Gibson LJ at 252. If there are disputed matters of fact upon which the claim for immunity would depend, then the court can direct the trial of those matters as a preliminary issue: Al-Adsani v Government of Kuwait (1996) 107 ILR 536, at 550-551, per Ward LJ. Before taking that course, the court assumes the facts pleaded in the claimant’s statement of case to be true, and determines whether they would give rise to immunity if true: Jones v Ministry of the Interior of Saudi Arabia[2006] UKHL 26 ,[2007] 1 AC 270 per Lord Bingham at [13]; Belhaj v Straw[2017] AC 964 per Lord Sumption JSC at [179]. … 36. The test under section 14(1) SIA requires consideration of whether the appellant, at a time when he remained the sovereign, was acting in a private or public capacity. 37. Clear guidance on the correct approach to questions of functional immunity was given in Jones v Ministry of Interior of Saudi Arabia, where the claimants alleged that they were tortured by members of the Saudi Arabian police. They brought civil proceedings against both the responsible officers and the Kingdom of Saudi Arabia itself. This court held that the Kingdom was protected by state immunity but because torture cannot constitute an official act, the officers’ conduct fell outside the scope of their official activity, and they were not therefore protected by the immunity. The House of Lords (in speeches of Lord Bingham of Cornhill and Lord Hoffmann with whom the other members of the committee agreed) held that both were protected. 38. At [12] Lord Bingham explained: “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 may be 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.” 39. He said that state immunity is a procedural rule going to the jurisdiction of the national court – where it applies, the national court has no jurisdiction to exercise. It is an absolute preliminary bar, precluding any examination of the merits: “A state is either immune from the jurisdiction of the foreign court or it is not. There is no half-way house and no scope for the exercise of discretion.”: [33]. 40. Lord Hoffmann started with the proposition that, as a matter of international law, the same immunity that protects the state against suit in a foreign domestic court, also protects the individuals for whom the state is responsible: [66]. The acts for which the state is responsible are “acts done under colour of public authority, whether or not they are actually authorised or lawful under domestic or international law.”: [74]. Ulterior or improper motives of the person concerned, or where the person may be abusing public power, are all irrelevant: [76]. At [78] Lord Hoffmann held: “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.” 41. This was the approach correctly applied to uphold the immunity of the former President of Ukraine under section 14 SIA in Surkis where Calver J rejected the argument that the alleged conduct was undertaken for private purposes, holding that it arose out of the President's position and his ability through that position to exert influence over other public officials. The fact that the President was said to be abusing his power for reasons of his own was held to be irrelevant. Similarly in Fawaz Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani[2016] EWHC 212 (QB) , a claim against a former senior public official of Qatar who allegedly had a private grievance against and induced other public officials to take detrimental action against the claimant, Blake J (at [25]) found it 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.” 42. Having identified the approach, and notwithstanding the amended pleadings in this case, it is appropriate to start my consideration of the claim to functional immunity by reference to the case as originally pleaded in the Particulars of Claim, which is assumed for these purposes to be true. “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.” “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 may be 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.”
“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 and to the extent that the inference pleaded at paras 5-6 above is not accepted by the court, the claimants will advance their claims against all defendants save for ... the ‘Excluded Defendants’”
‘These amendments do not rely on any further facts, and will be addressed by my lawyers in submissions.’