Dr Saeed Shehabi & Anor v The Kingdom of Bahrain [2023] EWHC 89 (KB)

“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.”

“5. A State is not immune as respects proceedings in respect of – (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.” caused by an act or omission in the United Kingdom.”

“15. The operation of that spyware resulted in the covert and unauthorised accessing by the Defendant of the Claimants’ information stored on, or communicated or accessible via their laptops. This has enabled the Defendant to collect much, if not all, of the data processed on the laptops, including messages, emails, calendar records, instant messaging, contacts lists, browsing history, photos, databases, documents and videos. It has also permitted the Defendant to track the location of the Claimant via their laptops and to intercept calls made on them. It has permitted the surveillance of the Claimants by covert use of the laptops’ microphones and cameras …”

“ … does not engage in any way or require consideration of the merits (if any) of the Claimants’ claims. Accordingly, I do not respond to the substance of those claims, or the Claimants’ evidence in support of them, in this witness statement. However, the Kingdom of Bahrain’s position as regards state immunity and the appropriateness of the EoT [extension of time] Orders is expressly without prejudice to points that The Kingdom of Bahrain may later raise in these proceedings, if contrary to its position the English Court has jurisdiction over the claims, and the Kingdom of Bahrain is required to defend them in due course. In particular, The Kingdom of Bahrain reserves its position as to whether the claims ought to be dismissed or struck out for other reasons, even if the Court has jurisdiction over them.”

“I focus on companies that sell spyware and hacking tools and services directly and exclusively to governments, including GG/FinFisher (based in the UK and Germany), Hacking Team (based in Italy), and Cyberbit and NSO Group (both based in Israel). These companies typically represent that their spyware products are intended to be used by governments for tracking serious organized crime or terrorists.”

“… It is properly to be inferred that this infection was carried out, directed, authorised and/or caused by the Defendant and/or its employees, officials and/or agents acting on its behalf, and that from around September 2011 until a date which is not currently known to the First Claimant, the Defendant and/or its employees, officials and/or agents acting on its behalf: 13.1. Accessed, copied and/or exfiltrated information stored on, available on and/or transmitted by the SS Computer. Such information included the First Claimant’s files, photographs, videos, emails, messages, passwords and other online / web-based information. 13.2. Intercepted in real-time, and/or after-the-event, on textual, audio and/or video communications conducted using the SS Computer. 13.3. Used the SS Computer’s microphone and/or camera to record and surveil the First Claimant (including while he was in his home) as well as other activities and matters occurring within the proximity of the SS Computer.”

“ 41. These proceedings are in respect of personal injury caused by acts or omissions in the UK. Accordingly the Defendant is not immune from jurisdiction as respects the proceedings. The acts in the UK include the following: 41.1. 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. 41.2. Installing FinSpy on the Devices, including by overwriting the hard disk and/or Master Boot Record with malicious code. 41.3. Running the spyware on the Devices. 41.4. Executing FinSpy to the Devices’ Central Processing Units, and reading data to, and writing it from, the Devices’ Random Access Memory. 41.5. Storing information gathered by the spyware on the Devices’ hard disks. 41.6. Using the Devices’ computer network interface controller to send and receive data via a wired or wireless network and telecommunications equipment within the UK. 41.7. Using the Devices’ battery power to transmit and receive data and commands, and to use other hardware components in the Devices. 41.8. Exfiltrating or causing to be exfiltrated information held on, available from and/or transmitted via the Devices. 41.9. Activating or causing to be activated the Devices’ microphones and/or cameras, and recording information with the same. 41.10. Recording and transmitting keystrokes and mouse movements made on the Devices.”

“42. From about 6 September 2011 until a date which is currently unknown to the Claimants, the Defendant and/or its employees, officials or agents acting on its behalf have engaged in courses of conduct which have been directed at each of the Claimants, which have amounted to harassment of each of them and which the Defendant and/or its employees, officials and/or agents acting on its behalf knew or ought to have known amounted to harassment of each of them, within the meaning of section 3 of the Protection from Harassment Act 1997 (“PHA 1997”). The courses of conduct consisted of the following: 42.1. surreptitiously implanting or installing spyware on the Claimants’ electronic devices; 42.2. exfiltrating or causing to be exfiltrated information from the devices; 42.3. sending messages to third parties falsely purporting to be from the Claimants; 42.4. surreptitiously activating or causing to be activated the devices’ microphones and/or cameras; 42.5. conducting covert audio and/or video surveillance of the Claimants through the devices’ microphones and/or cameras, including while they were in their own homes; and/or 42.6. covertly monitoring the Claimants’ activities on a wide-ranging basis and by highly intrusive means. 43. The courses of conduct were oppressive and unacceptable in that they: 43.1. amounted to an egregious violation of each of the Claimants’ private lives; 43.2. involved a comprehensive and insidious intrusion into each of the Claimants’ communications and personal and work-related information, including their work on highly sensitive political matters in Bahrain; 43.3. were carried out entirely in secret, depriving the Claimants of any knowledge of the information taken from them; and 43.4. have caused severe distress, anxiety and fear to each of the Claimants.”

“The First Claimant 44. By reason of the matters set out at paragraphs 42 to 43 above, the First Claimant has suffered personal injury. Particulars of Personal Injury 44.1. As a result of the infection of the SS Computer with FinSpy, the accessing / exfiltration of his information, and his surveillance, by and/or on behalf of the Defendant, and the First Claimant’s discovery of those matters, the First Claimant developed adjustment disorder. The First Claimant relies on the expert report of Dr Martin Baggaley, Consultant Psychiatrist, dated 18 April 2019. 45. In consequence of his personal injury, the First Claimant has suffered financial loss, as set out in the Schedule of Loss. The Second Claimant 46. By reason of the matters set out at paragraphs 42 to 43 above, the Second Claimant has suffered personal injury. 46.1. As a result of the infection of the MM Computer with FinSpy, the accessing/exfiltration of his information, and his surveillance, by and/or on behalf of the Defendant, and the Second Claimant’s discovery of those matters, the Second Claimant underwent a significant exacerbation of the adjustment disorder from which he suffered. The Second Claimant relies on the expert report of Dr Martin Baggaley, Consultant Psychiatrist, dated 14 April 2019. 47. In consequence of his personal injury, the Second Claimant has suffered financial loss, as set out in the Schedule of Loss.”

“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 occasioned 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.”

“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.”

“(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case - … (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; … (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; ..”

“19. Between around 28 October 2010 and 9 February 2011 the Defendant, and/or agents, employees and/or officials acting on its behalf, acquired from the Gamma Companies various licences to use FinSpy and other similar surveillance/spyware products marketed by the Gamma Companies, including FinSpy USB and FinFly Web. 20. At all material times, a FinSpy command and control server was operated from the IP address 77.69.140.194 which was at the material time allocated to a Bahraini Internet Service Provider known as Batelco. This server was used for the purposes of issuing commands to and receiving information from devices infected with FinSpy. It is to be inferred that this server was operated by the Defendant and/or on its behalf by one or more of its departments, agencies, officials and/or employees.”

“In practice, the term ‘personal injury’ has been generally understood to refer only to ‘physical injury’, thus precluding, for example, claims based on mental injury, hurt feelings, psychological injury, damage to reputation, libel or defamation.”

“9. In August 2014 documents relating to FinFisher, including sales brochures, training manuals and communications between support staff and its customers, were published on the WikiLeaks website online (‘the WikiLeaks Documents’). The documents appeared to show that a number of FinFisher products and licences had been sold to the Respondent. I refer at page 3 of exhibit YIA2 to the documents evidencing those purchases. 10. The WikiLeaks Documents also included a series of messages concerning the use of FinSpy sent between a user of that product and one or more employees of the Gamma companies. The messages from the user included requests for assistance with installing and maintaining FinSpy on targets’ electronic devices, and extracting information from those devices. I refer at pages 4 to 6 of Exhibit YIA2 to those messages. 11. Attached to one of the messages sent by the user was a document referred to as “the Finspy Master the system logs” [sic]. This appears to contain details relating to devices which had been infected with FinSpy and is referred to below as “the Target List”

‘Importantly for present purposes, there is no allegation or inference that any of the persons carrying out the acts which the Claimants say caused their injury were in the United Kingdom at the time’

“The Act was aimed at giving broad effect to (though not following precisely the wording of) the European Convention on State Immunity, 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.”

“58. In London Steam-Ship Owners' Mutual Insurance Association Ltd v Spain; The Prestige (Nos 3 and 4) [2021] EWCA Civ 1589, [39]-[40], the Court of Appeal (Males, Popplewell and Phillips LLJ) said, summarising earlier high authority: ‘39. We start with some observations on the relationship between the 1978 Act and public international law. The provisions of the Act fall to be construed against the background of the principles of customary international law, which at the time it was enacted, as now, drew a distinction between claims arising out of those activities which a state undertakes jure imperii, i.e. in the exercise of sovereign authority, and those arising out of activities which it undertakes jure gestionis, i.e. transactions of a kind which might appropriately be undertaken by private individuals instead of sovereign states, in particular what is done in the course of commercial or trading activities. The former enjoyed immunity; the latter did not. This came to be known as the restrictive theory of immunity, which had by then been adopted by the common law in this country. See Alcom Ltd. v Republic of Colombia [1984] AC 580 at pp. 597-599, Playa Larga and Marble Island (Owners of Cargo Lately Laden on Board) v I Congreso del Partido [1983] 1 AC 244 at pp. 261-262, and Benkharbouche at [8]. The Act did not, however, merely seek to frame immunity in terms of this binary distinction, choosing instead to formulate the exceptions to immunity in a series of detailed sections, such that the existence of immunity under public international law is not conclusive as to whether immunity has been removed by the 1978 Act. As Lord Diplock observed in Alcom at p. 600, the fact that the bank account of the Colombian diplomatic mission which the respondents in that case sought to make the subject of garnishee proceedings would have been entitled to immunity from attachment under public international law, at the date of the passing of the 1978 Act, was not sufficient to establish that it enjoyed immunity under the Act; it made it highly unlikely that Parliament intended to require United Kingdom courts to act contrary to international law unless the clear language of the statute compelled such a conclusion; but it did not do more than this. ‘39. We start with some observations on the relationship between the 1978 Act and public international law. The provisions of the Act fall to be construed against the background of the principles of customary international law, which at the time it was enacted, as now, drew a distinction between claims arising out of those activities which a state undertakes jure imperii, i.e. in the exercise of sovereign authority, and those arising out of activities which it undertakes jure gestionis, i.e. transactions of a kind which might appropriately be undertaken by private individuals instead of sovereign states, in particular what is done in the course of commercial or trading activities. The former enjoyed immunity; the latter did not. This came to be known as the restrictive theory of immunity, which had by then been adopted by the common law in this country. See Alcom Ltd. v Republic of Colombia [1984] AC 580 at pp. 597-599, Playa Larga and Marble Island (Owners of Cargo Lately Laden on Board) v I Congreso del Partido [1983] 1 AC 244 at pp. 261-262, and Benkharbouche at [8]. The Act did not, however, merely seek to frame immunity in terms of this binary distinction, choosing instead to formulate the exceptions to immunity in a series of detailed sections, such that the existence of immunity under public international law is not conclusive as to whether immunity has been removed by the 1978 Act. As Lord Diplock observed in Alcom at p. 600, the fact that the bank account of the Colombian diplomatic mission which the respondents in that case sought to make the subject of garnishee proceedings would have been entitled to immunity from attachment under public international law, at the date of the passing of the 1978 Act, was not sufficient to establish that it enjoyed immunity under the Act; it made it highly unlikely that Parliament intended to require United Kingdom courts to act contrary to international law unless the clear language of the statute compelled such a conclusion; but it did not do more than this. 40. In the converse situation, however, in which there would be no immunity under customary international law, there is a more direct correlation between immunity under customary international law and the 1978 Act as a result of the enactment of sections 3 and 4 the Human Rights Act 1998 and the application of article 6 ECHR, together with Article 47 of the Charter of Fundamental Rights of the European Union. As explained in Benkharbouche, any immunity granted to a State is necessarily incompatible with Article 6 as disproportionate if and to the extent that it grants to a state an immunity which would not be afforded in accordance with customary international law. Section 3 of the Human Rights Act requires that so far as it is possible to do so, legislation must be given effect in a way which is compatible with the Convention rights. This is an interpretative obligation of strong and far reaching effect which may require the court to depart from the legislative intention of Parliament, in accordance with the principles articulated in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 and Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 AC 264. The alternative remedy of a declaration of incompatibility under section 4 is a remedy of last resort (Ghaidan at [46], Sheldrake at [28]).’ 59. Paragraph 39 accords with the well-understood rule that international law obligations, while relevant in resolving any ambiguity in the meaning of statutory language, are not capable of overriding the terms of a statute which lack such ambiguity: Lesa v AG of New Zealand [1983] 2 AC 20, 33. This was the approach of Lord Porter in Theophile v Solicitor-General [1950] AC 186, (cited in relation to the SIA 1978 in Al-Adsani (No 2), p548), in which the House of Lords had to consider the impact of the law of nations (now generally referred to as customary international law) upon certain provisions of the Bankruptcy Act 1914. At p195 Lord Porter said this: ‘Interpreted in accordance with its strict wording, the latter sub-section applies to British and foreign nationals alike, and unless some principle to the contrary can be established I should so construe it. If I am right in this an invocation of the comity of nations is irrelevant. If the meaning of an Act of Parliament is ambiguous that doctrine may be prayed in aid, but where an English statute enacts a provision in plain terms no such principle applies. Any foreign nation of which the person affected is a member or with which such person is domiciled is free to disregard the provisions of the English enactment, but the person concerned cannot himself take exception to it, though it may be that he will escape from compliance with its terms because he is out of the jurisdiction and cannot be reached by the English process.’”

“6. The issue which may arise under the State Immunity Act is whether section 5 would apply if this were a case which arose in the United Kingdom. By way of analogy, the question will become whether the death or personal injury had been caused 'by an act or omission in the United States'. 7. The essential submission for the claimants at this stage is that there is a good arguable case that there would be jurisdiction if a similar action were to arise in the United Kingdom, on the basis of a conspiracy being regarded as a composite act. It is said that the conspiracies concerned could properly be regarded as being conspiracies not just against those individuals but their relatives and indeed the public more generally in the United Kingdom. So, by way of analogy, it is said in the present cases conspiracies can be analysed as being conspiracies not just to cause injury or death to American citizens, but also to damage their families and also to damage the public in the United States more generally. That, it is submitted, is one of the inherent features of the scourge of international terrorism, as it has been described by courts both in this country and elsewhere. In some of the other cases the analysis of the American court was to the effect that the material assistance knowingly provided to terrorist organisations which caused the death or injury in question. Again it is submitted on behalf of the claimants that it is at least arguable at this stage that section 5 of the State Immunity Act would not preclude an action in the United Kingdom if similar proceedings were brought here. I accept those submissions.”

“147. the Claimants say that section 5 encompasses a composite act or omission i.e. an act occurring partly inside and partly outside the forum state. It is said that in other contexts it is well established that an act done outside the territory which has harmful consequences inside the territory should in law be treated as an act in the territory. Examples are given such as shooting a gun across a border, planting a bomb on a train which will cross a border and explode in another country, or sending a letter or making a telephone call across state frontiers. At the without notice hearing before Singh J the Claimants gave the example of a dirty bomb detonated outside UK territorial waters which caused death and personal injury in the UK. They submitted it would be absurd if section 5 were to be construed in a way that conferred immunity in those circumstances, simply because the explosion took place outside territorial limits. The Claimants say that all such cases would be within section 5 as being acts "within the United Kingdom", even though the person responsible for the act is not physically present in the United Kingdom and the initiating steps take place outside the United Kingdom. The act is completed in the United Kingdom and that suffices. So, for example, under the old test of jurisdiction, English Courts had jurisdiction for an action ‘founded on a tort committed within the jurisdiction’. A misrepresentation made by telex sent from outside the jurisdiction, but received and acted upon within the jurisdiction, or a telephone call from outside the jurisdiction but answered within the jurisdiction, led to the court finding that the substance of the tort was committed where the representation was received and acted upon – Diamond v Bank of London and Montreal [1979] 1 QB 333. 148. The difficulty with this submission is that section 5 of the 1978 Act is not concerned with where the substance of the tort is committed. Its concern is where the act or omission causing the death, personal injury or damage occurred. In this case, did it occur in the United States? Here, apart from the Acosta case, all relevant acts or omissions occurred in Middle Eastern states. The fact that either primary victims continued to suffer injury on return to the United States or that secondary victims never left the United States does not assist the Claimants. Section 5 does not permit eliding the act or omission causing the personal injury with where the personal injury occurs. I do not accept that section 5 can be construed with such flexibility as to permit the Claimants' submission to succeed.”

“6. In any Act, unless the contrary intention appears, - … (c) words in the singular include the plural and words in the plural include the singular.”

“3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where – … (9) A claim is made in tort where – (a) damage was sustained, or will be sustained, within the jurisdiction; (b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”

“… at least a portion of Ethiopia's alleged tort occurred abroad … … whether in London, Ethiopia or elsewhere, the tortious intent aimed at Kidane plainly lay abroad and the tortious acts of computer programming likewise occurred abroad. Moreover, Ethiopia's placement of the FinSpy virus on Kidane's computer, although completed in the United States when Kidane opened the infected e-mail attachment, began outside the United States. It thus cannot be said that the entire tort occurred in the United States. … Without the software's initial dispatch or an intent to spy – integral parts of the final tort which lay solely abroad – Ethiopia could not have intruded upon Kidane's seclusion under Maryland law …”

“Plaintiffs argue the tort may occur, in whole or in part, in the United States, and that the tort occurs in the United States if the acts or omissions directly affect this country. This argument may be correct in other circumstances, see Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 258 (1971); however, legislative history appears to reject this theory with respect to the FSIA. In describing the purpose of § 1605(a)(5), the House Committee Report accompanying the House Bill, which ultimately became the FSIA, states: 'It denies immunity as to claims for personal injury or death, or for damage to or loss of property caused by the tortious act or omission of a foreign state or its officials or employees, acting within the scope of their authority; the tortious act or omission must occur within the jurisdiction of the United States … ‘ House Report, supra at 6619 (emphasis added). The primary purpose of this exception is to cover the problem of traffic accidents by embassy and governmental officials in this country. Id.”

“This requirement of a territorial connection has, in fact, turned out to be the most limiting factor in the application of the torts exception. The new codifications of immunity law invariably require the tort be committed inside the forum State. The European Convention is particularly explicit on this point in that it requires that ‘facts which occasioned the injury or damage occurred in the territory of the State of the forum, and… the author of the injury or damage was present in that territory at the time when those facts occurred’. The British Act simply refers to ‘an act or omission in the United Kingdom’. The Australia Act is very similar on this point. The International Law Association’s Draft requires that the ‘act or omission… occurred wholly or partly in the forum State’ while the ILC Draft [which became the 2004 Convention] adds that the ‘author of the act or omission was present in that territory at the time of the act or omission’. Curiously, the United States Act is somewhat vague on this point in that it only refers to the resulting damage as ‘occurring in the United States’. However, the House Report emphasizes that the tortious act or omission must occur within the jurisdiction of the United States. All this makes it clear that the torts exception to sovereign immunity will not only be unavailable to torts committed abroad but also to long distance torts like letter bombs, trans-frontier pollution and most probably also illegal acts committed by way of international channels of communication such as telephone lines or computer links.”

“Non-exercise of jurisdiction in such a case may result in a vacuum. Not only will there be a shortage of a more appropriate law to be applied, but also a more suitable court of competence will not easily be found to try the case, which may be falling between two stools. The absence of competent judicial authority and lack of applicable law would leave the injured party remediless and without adequate relief or possible recourse, except at the mercy of the foreign State, which might or might not feel obliged to pay compensation, either on a voluntary basis or ex gratia. In the interests of the rule of law and of justice, normal legal remedies should continue to be available, regardless of the public or private character of the defendant.”

“120. … 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 Claimant's contention is the correct one.”

“[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 was viewed and 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. I also emphatically reject the proposition that the damages claimed are so trivial that the court should decline to bother the defendants with the claim. On the contrary, if the claimants make good the pleaded allegations at trial, then I think this is a very serious and substantial case indeed, with considerable potential ramifications. The cost of replacing the computer and the investigation/consultancy costs may not be very great, but the court will also have to consider what damages and other relief it should grant for the substantial injury caused—viz the improper obtaining of confidential and privileged information. [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 opened 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.”

“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 [New Jersey], 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. Until the instruction is recorded on the disk, there is in fact no appropriation of the rights of Bank Artha Graha … In the case of a virtually instantaneous instruction intended to take effect where the computer is situated it seems to us artificial to regard the insertion of an instruction onto the disk as having been done only at the remote place where the keyboard is situated.”

“It is well established that personal injury encompasses psychiatric harm, and Mr Caramba-Coker was therefore claiming that he suffered psychiatric injury as a result of his dismissal.”

“7. It is perfectly clear from that reasoning taken as a whole that this Tribunal in Caramba-Coker decided as a matter of ratio (a) that any claim for compensation for personal injury fell within the terms of section 5 notwithstanding that it was consequent on a discrimination claim, and (b) that in this context a claim of mental ill-health caused by the discrimination complained of constituted a claim for ‘personal injury’. The decision would seem therefore on its face clearly to apply to the circumstances of the present case. The [ET judge] was right to hold that she was bound by it. I am of course not so bound, and [counsel for the Republic] submitted that the section 5 point was only fairly briefly dealt with in Keith J’s judgment and that it did not seem that it had been very fully argued. I accept that; but my starting-point must nevertheless be, on ordinary principles, that I should not depart from Caramba-Coker unless I am satisfied that it was wrong.”

“15. I have no difficulty with the proposition that the 1978 Act generally, and section 5 in particular, should be construed so far as possible to conform to any recognised international norm. That is because, although the Act was not passed specifically to give effect to a treaty obligation, it was nevertheless, as appears from the speech of the Lord Chancellor introducing the bill in the House of Lords, intended to conform, at least in the relevant respects, to the terms of the European Convention on State Immunity (which was opened for signature in 1972, albeit not signed by the United Kingdom at that time). In fact the point goes further, in that in the relevant respects the terms of the Convention were subsequently adopted by the United Nations Convention on Jurisdictional Immunities of States and their Property. But the question is whether the relevant Conventions or the commentaries on them give any support for the construction of the phrase ‘personal injuries’ which [counsel for the Republic] advances. I do not believe that they do. I will take the relevant materials in turn.”

“The tortious conduct covered by this exception is confined to acts causing physical damage to the person or property; damage resulting from words spoken or written remains immune.”

“24. I do not believe that the Supreme Court in Schreiber was in fact concerned with the same question as arises on this appeal. As I have noted, the ‘personal injuries’ claimed by the plaintiff consisted of “mental distress, denial of liberty and damage to reputation”

“27. I therefore agree, even after the fuller argument with which I have been favoured, with the conclusion of this Tribunal in Caramba-Coker that there is no reason why the phrase ‘personal injury’ should not be given its normal meaning in domestic law, which, as it is well recognised, is apt to cover cases of psychiatric as well as physical injury. Since that point is uncontroversial I need not refer to extensive authority. I mention only one of the cases cited by [counsel for the claimant], R v Dhaliwal [2006] 2 Cr App R 24, which reviews the authorities as regards both civil and criminal claims. 28. This is a result which I am glad to reach. Not only is the distinction urged on me by [the Republic] 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 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.”

“The crude view that the law should take cognisance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one.”

“… the phrase ‘actual bodily harm’ is capable of including psychiatric injury. But it does not include mere emotions … nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase ‘state of mind’ is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused …”

“There is no justification for regarding physical and psychiatric injury as different ‘kinds of damage’ … a defendant who is under a duty of care to the plaintiff … is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness”

“The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the Act of 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 inquiry 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. For these reasons I would, therefore, reject the challenge to the correctness of R v Chan-Fook[1994] 1WLR689. In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that “bodily harm” in sections 18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness.”

“On the other hand, psychiatric harm is usually treated as a species of personal/physical injury: Military v. Caramba-Coker, England, 2003 WL 1610407, paras 16, 17 and 20.”

“For the exception to immunity from jurisdiction specified in Article 12 to apply, the pecuniary compensation sought in the proceedings against the State must be for ‘death or injury to the person’ or for ‘damage to or loss of tangible property’. Claims alleging, for example, damage to reputation, loss of amenity, interference with privacy, or economic loss not consequential upon death or personal injury or damage to or loss of tangible property do not fall within Article 12. As a result, as far as Article 12 goes, a State remains immune from foreign proceedings alleging, for example, defamation, nuisance, misrepresentation, or interference with contractual rights, incorporeal hereditaments, or choses in action. At the same time, it is important to highlight that the ILC commentary may be misleading when it states, in relation specifically to injury to the person, that ‘Article 12 does not cover cases where there is no physical damage’. There is no clear warrant for this assertion in the text of Article 12, which refers simply to ‘injury to the person’. … Whether a claim for pecuniary compensation is considered to be one for ‘injury to the person’, a term not defined in the Convention, will probably depend on the applicable domestic law. In many jurisdictions, the development of a recognized psychiatric illness as a result of another’s act or omission is deemed in and of itself to constitute injury to the person, while in other jurisdictions it may not be. Conversely, while in many jurisdictions mere pain and suffering or emotional distress not amounting to a recognized psychiatric condition are not compensable unless consequential upon some form of physical injury, other jurisdictions may class these things as injury to the person in their own right. Article 12 does not on its face dictate such legal characterizations of fact. The same goes, mutatis mutandis, for whether the proceedings against the State relate to damage to or loss of ‘tangible property’.”

“Dr Shehabi has a long history of political activism in relation to opposition to the current Bahraini regime. He discovered that his electronic devices had been targeted by the FinFisher software. He felt shocked and was very concerned that he had betrayed many friends colleagues and family in Bahrain and elsewhere and caused their personal safety and security to be compromised. He has developed symptoms of a recognisable psychiatric illness, an adjustment disorder. He would benefit from a course of cognitive behavioural therapy. I am guarded about the prognosis.”

“Diagnosis. Dr Shehabi described experiencing a number of symptoms of insomnia, anxiety, paranoid thoughts, intrusive distressing thoughts of the situation and low mood which would be best classified as an adjustment disorder F43.2 in the International Classification of Diseases Version 10 (ICD-10). In my opinion this is of moderate severity.”

“Summary. Mr Mohammed become politically active from a young age. He was imprisoned and tortured on a number of occasions as a young man in Bahrain. He came to the UK and was treated by the Medical Foundation for the Care of Victims of Torture (now known as Freedom from Torture). He began to become concerned that his electronic devices and social media sites were being hacked into from approximately 2011. He learnt that his devices had been infiltrated by FinFisher in August 2014. He has developed a chronic adjustment disorder. This is liable to run a continuing chronic course. He might benefit from some cognitive behavioural therapy but it would be a challenge to find a suitable therapist.”

“Diagnosis. Mr Mohammed presented with variety of symptoms including disturbed sleep, low mood, anxiety and poor concentration. I believe that the symptoms are best categorised as an Adjustment Disorder (a prolonged depressive reaction), F43.21 in the International Classification of Diseases Version 10 (ICD-10). The disorder is of moderate severity and has been present since 2011.”