Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB)

Case No HQ15X0900[2016] EWHC 212 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/02/2016
Before
THE HON MR JUSTICE BLAKE
Between
FAWAZ AL ATTIYAClaimant/HAMAD BIN-JASSIM BIN-JABER AL THANIDefendant/
MONICA CARRS-FRISK QC and ANDREW SCOTT ; LORD PANNICK QC and SIR DANIEL BETHLEHEM QC assisted in the preparation of the skeleton argument (instructed by MACFARLANES) for DefendantTOM DE LA MARE QC and TOM HICKMAN (instructed by IMRAN KHAN and PARTNERS) for ClaimantHearing Hearing dates: 12-13 January 2016
JudgmentTHE HONOURABLE MR JUSTICE BLAKE:Introduction
[1]The claimant is a member of a prominent family related to the ruling family of the state of Qatar. He was born in London and is a dual British and Qatari national. Since 1993 he has been a salaried member of the Foreign Ministry of Qatar and from July 1998 he held the rank of Ambassador, although he is not accredited to any overseas mission.[2]The defendant is also a member of a prominent Qatari family and since 1989 he has held ministerial office in Qatar. From 1992 to 2013 he was Minister of Foreign Affairs and from 2007 to 2013 he combined this office with that of Prime Minister. He is also a very wealthy man and, along with other members of his family, is the beneficial owner through a chain of holding companies of valuable hotels, property and other assets in the United Kingdom and elsewhere in the world. Press reports value his wealth in the region of £7.8 billion.[3]In June 2013 he resigned from his posts as Foreign Minister and Prime Minister. In May 2014 and June 2015 he participated in public interviews and political debate in which he described himself as a private citizen who no longer represented the government of Qatar. Press reporting and his social media pages present him as having spent much of 2014 and 2015 in recreational and other personal activities in many locations around the world.[4]In August 2015 the claimant issued a claim for damages against the defendant and personally served him in London at one of his properties. The claim is for damages for trespass to land of the claimant’s and to his person. In summary, it is contended: i) In the summer of 1997 the defendant wanted to buy land known as the Al-Rayyan land in Qatar (the land) belonging to the claimant and his family at a price that was not acceptable to the claimant. As a result of this refusal the claimant has been the subject of a sequence of adverse decisions including: pressure on him to resign from the Foreign Ministry and non-payment of his salary and expenses when he took sabbatical leave to study in the United Kingdom. It is further contended that the defendant obtained a prohibitive order preventing the claimant from selling the land on the basis that it was to be acquired by the state. ii) In 2003 the Minister of Municipality instituted compulsory appropriation of the land against the claimant and other land owners for the purposes of building a project known as education city. The claimant was aggrieved at the price paid which was the same as the 1997 offer. He raised a grievance and instituted a series of petitions on the issue. In 2004 the Ministry agreed that a higher price should be paid that the claimant still considered was less than its market value. In June 2007 he was informed by the Acting Minister of Foreign Affairs, who was also the Director of office of the Prime Minister, that the question of compensation and title to the land was exhausted. In 2009 he issued various legal proceedings in Qatar about the land dispute and other matters. iii) On 29 October 2009 the claimant was forcibly removed from Saudi Arabia to Qatar and on arrival in Qatar was detained in government premises. With the exception of a few days when he escaped from custody, he was detained in one place or another until January 2011 when he was released. He was interrogated on a number of occasions throughout his detention; he was accused of disclosing state secrets and making defamatory remarks about the defendant in his texts, petitions and legal proceedings; he was kept in solitary confinement, denied visits from his family or unimpeded access to a lawyer and was made the subject of threats and inducements. iv) The cumulative treatment and its extended duration amounted to torture and has been the subject of an expression of concern by the UN Special Rapporteur for the Prevention of Torture. For some of the period he was remanded in custody by judicial authority, but he continued to be held in detention on executive authority after he had been admitted to bail by the judiciary. At the end of the process no criminal charges were proceeded with and he was released. v) He contends that the confiscation of the land, the removal from Saudi Arabia and the detention in Qatar were all done by others at the instigation of the defendant.[5]In September 2015, whilst disputing much of the factual basis for the claim, the defendant applied for an order that this court has no jurisdiction to entertain the claim for two reasons, that I propose to examine in the following[6]The matter came before Foskett J on 19 October 2015 who gave directions for trial. At that time there were two letters from the protocol department of the Foreign and Commonwealth Office (FCO) both indicating that the defendant was recognised as an accredited diplomat. The status of those letters was in dispute. One of the directions made was that the parties should jointly write to the FCO seeking a certificate under s.4 DPA directed to the following questions:
“Her Majesty’s Government is respectfully requested by the Court to provide such response to the questions below as it considers appropriate and, in particular if and insofar as appropriate, by means of certification under section 4 of the Diplomatic Privileges Act 1964. The Court wishes to consider such response as Her Majesty’s Government provides at a hearing on 11 and 12 January 2016, and respectfully requests that Her Majesty’s Government provides its response as far in advance of that date as it is able to do. 1. Has the Defendant been notified to the FCO as a member of the diplomatic staff of the Mission of the State of Qatar having diplomatic rank; and if so upon what date(s) and in respect of which position(s) was the Defendant so notified? 2. As the date of HMG’s response to this request, has the FCO accepted and/or accredited the Defendant as a member of the diplomatic staff of the mission of the State of Qatar having diplomatic rank; and if so, upon what date(s) and in respect of which position(s) was the defendant so accepted and/or accredited; and is he currently so accredited and/or accepted?”
[7]A joint letter was written on 10 November 2015. On the same date the claimant’s solicitors informed the defendant’s solicitors that it proposed to communicate unilaterally with the FCO. It did so on 16 November 2015, in a letter drawing attention to a number of pieces of information available from public sources about the defendant’s commercial, social and media activities since mid-2013 to date that were said to be inconsistent with diplomatic status. This letter was copied to the defendant’s solicitors on the same day that it was sent.[8]On 15 December the FCO wrote to the claimant’s solicitors inviting their consent for them to supply the letter to the Qatari Embassy in order for its observations to be made as to its contents. Consent was unnecessary given that the letter had already been supplied on 16 November but after some administrative delay in the solicitor’s office, consent was given on 23 December and in a follow up letter on 4 January 2016. It is not known what communication there has been about the 16 November letter between 23 December 2015 and the 4 January 2016.[9]On 4 January 2016 the FCO issued a certificate in the following terms:
“Under the authority of Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me and in accordance with the provisions of Section 4 of the Diplomatic Privileges Act 1964, I, Julian Evans, director of Protocol at the Foreign and Commonwealth Office hereby certify that the appointment of Sheikh Hamad bin Jassim bin Jaber Al Thani as a member of the diplomatic staff of the mission of the State of Qatar in the United Kingdom was notified to the Foreign and Commonwealth Office on 28 August 2013; and on 28 May 2014 his arrival date was notified as 6 November 2013, from which date he has enjoyed the privileges and immunities of a member of the diplomatic staff of a mission.”

The application:

[10]This is the hearing of the defendant’s application for an order that this court has no jurisdiction to hear the claim on the two bases set out at [5] above. There has been filed for the defendant: i) A short witness statement from the defendant dated 18 September 2015 in which he states he is a Minister Counsellor at the Embassy of the State of Qatar in the United Kingdom and he has responsibility for promoting relations between the state of Qatar and the United Kingdom. ii) Two witness statements from Dr Ali Bin Fetais Al Marri, the current Attorney General of Qatar. In the first statement dated 20 September 2015, the defendant’s identity, past offices and current status as a Minister Counsellor is confirmed. Jurisdiction is disputed on the two grounds noted above. The claimant’s allegations about the confiscation of land and the circumstances in which he came to be detained are disputed. The legal basis for continued executive detention after the order of the court admitting the claimant to bail is set out. The second statement dated 11 December 2015 responds to allegations in the claimant’s witness statement. iii) A witness statement from Khalid Bin Mohammed Al-Attiya, the current Minister of Foreign Affairs of Qatar dated 13 December 2015. He is both the cousin and brother in law of the claimant. The claimant’s allegations are denied and the defendant’s diplomatic appointment is confirmed. It is stated that when the defendant retired as prime minister, consideration was given as to how he could continue to promote Qatar’s interests and: “Given the Defendant’s experience and his ties to and string relationship with the UK, it was determined by the Emir that the defendant could serve a valuable role at the Qatari Embassy in London; in particular, in order to promote and develop economic relations between the State of Qatar and the UK”. iv) A witness statement from His Excellency, Yousef Ali Al-Khater, the Qatari Ambassador to the Court of St James, London, that confirms the defendant’s appointment and function in the London Embassy and the recognition of his status as a diplomat by his inclusion in the London Diplomatic List. v) A witness statement dated 11 December 2015 from Fady Bakhos, General Counsel to the defendant’s private office, responding to the claimant’s evidence and stating in summary: a) The defendant is not a director of any English trading company and is not a direct shareholder of any such company. He is a director of Alphastar Limited which acts as a nominee to hold residential property in London. b) The defendant is not the sole beneficiary of the investment assets in question. 15 members of his family are also beneficiaries. The assets are managed on behalf of the beneficiaries, by a private family office in Doha.[11]For the claimant there has been filed: i) Two statements of his own setting out his allegations and information he states he was given about the defendant’s diplomatic status and the reasons for it. ii) A witness statement dated 16 November 2015 from Neil Barnett, an executive officer of a company providing corporate intelligence and investigations services. This outlines the information as to the defendant’s property and corporate portfolio, his wealth, and a time line of activities since resigning as Prime Minister and various attachments from social media and other public sources.

Issue 1: State Immunity

[12]Section 1 of the State Immunity Act 1978 provides:
‘(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Act. (2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.’
It is common ground that none of the exceptions are engaged in the present claim.[13]In the case of Jones v Ministry of the Interior of Saudi Arabia [2006] UKHL 26 [2007] 1 AC 270, the Appellate Committee was concerned with whether there was jurisdiction in an UK court to try a claim brought by British nationals for damages for false detention and assault by means of infliction of torture in Saudi Arabia. The defendants were the Ministry of the Interior of Saudi Arabia and a Lieutenant Colonel in the employment of the state. It concluded that :(i) there was no jurisdiction to bring the claim against either defendant;(ii) a state can claim immunity when directly impleaded by suing a Ministry or indirectly by suing one of its public officials acting as such;(iii) there was no principle of international law providing an additional exception to state immunity from civil proceedings where torture contrary to a norm of international law was alleged;(iv) immunity from suit was not an unjustified and/or disproportionate interference with a right of access to a court for a determination of civil rights within the meaning of Article 6 European Convention on Human Rights (ECHR) where the absence of domestic jurisdiction was to give effect to well established principles of international law.[14]In support of the second proposition Lord Bingham noted:
‘10. While the 1978 Act explains what is comprised within the expression "State", and both it and the 1972 European Convention govern the immunity of separate entities exercising sovereign powers, neither expressly provides for the case where suit is brought against the servants or agents, officials or functionaries of a foreign state ("servants or agents") in respect of acts done by them as such in the foreign state. There is, however, a wealth of authority to show that in such case the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state's right to immunity cannot be circumvented by suing its servants or agents. Domestic authority for this proposition may be found in Twycross v Dreyfus (1877) LR 5 Ch D 605, 618-619; Zoernsch v Waldock [1964] 1 WLR 675, 692; Propend Finance Pty Ltd v Sing (1997) 111 ILR 611, 669; R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)[2000] 1 AC 147, 269, 285-286; Holland v Lampen-Wolfe[2000] 1 WLR 1573, 1583. Courts in Germany, the United States, Canada and Ireland have taken the same view: see Church of Scientology Case (1978) 65 ILR 193, 198; Herbage v Meese 747 F Supp 60 (1990), 66; Jaffe v Miller (1993) 13 OR (3d) 745, 758-759; Schmidt v Home Secretary of the Government of the United Kingdom (1994) 103 ILR 322, 323-325. The International Criminal Tribunal for the Former Yugoslavia has also taken the same view: Prosecutor v Blaskic (1997) 110 ILR 607, 707. In the UN Convention of 2004 already referred to, this matter is expressly addressed in article 2 where "State" is defined in (1)(b)(iv) to mean "representatives of the State acting in that capacity". It is further provided, in article 6(2)(b), that "A proceeding before a court of a State shall be considered to have been instituted against another State if that other State … (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State". 11. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent of the state, had a sufficient connection with the state to entitle it to claim immunity for his conduct. But these are not borderline cases. Colonel Abdul Aziz is sued as a servant or agent of the Kingdom and there is no suggestion that his conduct complained of was not in discharge or purported discharge of his duties as such. The four defendants in the second action were public officials. The conduct complained of took place in police or prison premises and occurred during a prolonged process of interrogation concerning accusations of terrorism (in two cases) and spying (in the third). There is again no suggestion that the defendants' conduct was not in discharge or purported discharge of their public duties. 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.’
[15]Lord Hoffman added at [68]- [69]:
‘State immunity affords individual employees or officers of a foreign state "protection under the same cloak as protects the state itself". But this is a difference in the form of expression and not the substance of the rule. What is important, however, is that, as Lord Diplock said in Alcom Ltd v Republic of Columbia [1984] AC 580, 597, the provisions of the SIA "fall to be construed against the background of those principles of public international law as are generally recognised by the family of nations." That means that "state" in section 1(1) of the SIA and "government", which the term "state" is said by section 14(1)(b) to include, must be construed to include any individual representative of the state acting in that capacity, as it is by article 2(1)(b)(iv) of the Immunity Convention. The official acting in that capacity is entitled to the same immunity as the state itself.’
This conclusion followed even if the state official was abusing his power for reasons of his own and in pursuit of a private grudge (see [77] –[76] and [90]. The other members of the Committee agreed with both judgments.[16]Ms Carrs-Frisk QC for the defendant submits that the claimant’s pleadings make clear that the defendant is being sued for an alleged abuse of power exercised by reason of his being the former Prime Minister of Qatar from 2007 to 2013 and in respect of his senior position in government for any acts committed in the earlier period of the dispute. Applying the principles stated in Jones, the claim should be struck out on state immunity grounds.[17]The defendant supports this contention by an analysis of the claimant’s letter before claim and the particulars of claim dated 24 August 2015. The claimant’s pleading states that the defendant’s official position in government and then refers to him: i) having the ‘direction and control’ of other public servants for whose acts the defendant was accordingly vicariously liable (paragraphs 1, 9, 14, 15); ii) ‘obtaining a prohibitive order’ in respect of the land (paragraph 8); iii) ‘summoning’ the claimant (paragraph 13 and 15); iv) ‘giving instructions that arrangements be made for’ abduction (paragraph 18); v) procuring the instigation of a criminal proceedings by writing to the Attorney General (paragraph 24); vi) securing the claimant’s detention ‘at the behest of the Prime Minister’ (paragraph 33); vii) ‘the defendant abused his office of state’ and his conduct was unconstitutional, entitling the claimant to aggravated/exemplary damages (paragraph 60).[18]Mr De La Mare QC for the claimant recognised that as presently pleaded, the claim alleged abuse of the public power exercisable by the defendant by reason of his high position in government at the material time. He contended however that the claim should not be struck out because: i) The pleadings were capable of radical amendment to confine the allegations to malicious prosecution, malicious abuse of process and conspiracy to injury as a private person; ii) the defendant was wearing two hats: one was as the holder of high office, and the other as a private individual who was a powerful personality in the land by reason of his vast wealth and consequent ability to persuade public officials to do things to suit his purposes; iii) the mere fact that the defendant as a private person was able to induce public officials to act to promote the defendant’s private interests did not mean that the state or its servants were impleaded as such, but the claim could engage the common law doctrine of act of state; iv) the act of state doctrine was subject to an exception in the case of serious abuse of core human rights including peremptory norms of international law such as the use of torture (see Belhaj v Straw [2014] EWCA Civ 1394; [2015] 2 WLR 1105) at [81] to [102] and [114] to [126].[19]In Belhaj v Straw the claimant was suing British defendants including the former Foreign Secretary for their part in the unlawful rendition and ill treatment of the claimant when he was forcibly returned from abroad to Libya from whence he had fled in fear of persecution. The proceedings involved contentions about the acts of officials of other states in either seeking or permitting the extra judicial expulsion to Libya although neither those states nor the officials were being sued and some of the acts took place outside the sovereign territory of those states.[20]The Court of Appeal upheld the decision of Simon J (as he then was) and concluded that sovereignty immunity was not a bar to jurisdiction. It also agreed that the act of state doctrine was engaged in respect of a number of the claims but disagreed that this amounted to a bar to the claim proceeding. By contrast with state immunity, the act of state principle is a common law doctrine that is subject to some exemptions such as where fundamental human rights were said to be breached. This exception arose for consideration in the claim and accordingly there was jurisdiction to proceed to trial to investigate the facts. There is presently an appeal outstanding before the Supreme Court with respect to the Court of Appeal’s decision on state immunity. The claimant contends that it would make sense for an opportunity to amend the pleadings to be deferred until the Supreme Court delivered its decision.

Conclusions on State Immunity:

[21]In my judgment, the defendant’s submissions on this issue are well-founded and the claim should be struck out for want of jurisdiction.[22]It is plain from the judgments in both Jones and Belhaj that a decision whether state immunity is a bar to jurisdiction is made on the pleadings at a preliminary hearing in advance of trial.[23]The claimant has had notice of the defendant’s intended application for some four months, and has been afforded ample opportunity to have re framed the case as outlined in Mr de La Mare’s oral submissions. Despite this, there has been no application to amend the pleadings and no draft amended pleadings suing the defendant in a purely private capacity have been supplied to the court.[24]The response to the defendant’s application that is now advanced was not intimated in correspondence or the detailed skeleton argument that was lodged pursuant to directions on 6 January 2016. It appears to have been developed ex improviso during the course of the proceedings. It is far too late in the life of this application to now permit the claimant to fundamentally reformulate the claim in an endeavour to avoid the application of state immunity bar to jurisdiction.[25]There is no judicial authority on how a former Prime Minister of a sovereign state could be sued in a private capacity for inducing breaches of duty by other public officials resulting in torts being committed against a claimant. 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 to the application of the act of state principle as the judgments in Jones make clear and in particular the concurring judgment of Lord Hoffman.[27]Even if it were possible to sue the defendant for malicious abuse or abuse or malicious prosecution, applying the law of Qatar, it seems to me that any adjudication on any amended claim would still engage state immunity. Any determination of the claim would directly challenge the good faith of both the Minister of Municipality in promoting compulsory purchase of the claimant’s land and the Attorney General in seeking the return of the claimant from Saudi Arabia, detaining him and prosecuting him. This is not a case where the acts of a foreign state under challenge are the unwitting outcome of a malicious use of process by a powerful citizen of that state.[28]In the course of his judgment in Jones, Lord Bingham referred to the United Nations Convention of Jurisdictional Immunities of states and their Property June 2004. Article 6(2) of that Convention states:
‘A proceeding before a court of a state shall be considered to have been instituted against another state if that other state (a) is named as a party to the proceeding; or (b) is not named as a party to the proceeding but the proceeding seeks to affect the property, rights, interests or activities of that other state.’
[29]In my judgment, a contention that a property confiscation order was made for an improper purpose and that a criminal investigation, extradition request, detention and charge brought under the authority of the Attorney General all affect the property rights interest or activities of that state.[30]I recognise that this Convention was also cited in the Court of Appeal judgment in Belhaj but there are significant factual differences between that case and the present. The defendants are British officials who are subject to the jurisdiction of the English courts and the acts of foreign officials may be only incidental to the causation of loss. By contrast, the direct focus of the claim in the present case is the acts of foreign public officials dozen in pursuance of their public authority in Qatar and under the laws of Qatar.[31]I do not consider that the present application needs to await the outcome of the defendant’s appeal to the Supreme Court in Belhaj. Whatever the final parameters of the state immunity principle turn out to be, I can proceed in the present case, by applying the Court of Appeal decision, albeit distinguishing it on the facts.

Diplomatic immunity

[32]Although the conclusion I have reached on the issue of state immunity is sufficient to grant the relief the defendant seeks without consideration of the question of diplomatic immunity, I go on to consider the further issue of diplomatic immunity in case subsequent developments demonstrate that I am wrong on the first question.[33]If the defendant’s contentions are correct, in the absence of a change of present circumstances, he would be immune from any civil or criminal proceedings in respect of any matter, save to the extent as permitted under Article 31 (1) of the Vienna Convention on Diplomatic Relations 1961 (VCDR) incorporated into law by the Schedule to the DPA.[34]It is common ground that if the defendant is a diplomatic agent, then he is immune from this suit. It is not contended that it falls within the three exceptions spelt out in Article 31 of the VCDR. What is in dispute is whether he is a diplomatic agent within the meaning of Article 1 when taken together with Article 3.[35]In substance, the rival submissions of the parties may be summarised as follows. The claimant contends that: i) A person is only a diplomatic agent if at the relevant time (January 2016 when the issue is being determined) he exercises the function of such an agent at the London Embassy (the functionalist approach). This corresponds with the preamble of the VCDC which is an aid to construction of its meaning. ii) Whether he does exercise such functions and accordingly has immunity from suit is ultimately a question of fact for the court having determined what the law is. It will usually be assisted by a certificate issued by the FCO under s.4 of the DPA ‘stating any fact’ related to the question of diplomatic immunity and any fact stated in such a certificate shall be conclusive. iii) In the absence of any conclusive fact provided by the FCO in a certificate or otherwise, the court must examine the other evidence related to the question and determine whether the burden of establishing the facts that would result in the immunity has been discharged by the defendant on the civil balance. A statement made on behalf of the receiving state would normally be conclusive without the need for further inquiry but this is not a normal case and there is positive evidence that the defendant is not exercising a diplomatic function. iv) On a proper construction of the DPA and the VCDR to which the DPA gives effect in part, neither the FCO nor the Qatari government have exclusive jurisdiction to determine whether the defendant is entitled to immunity. The question of immunity is a matter of law for the court that must first determine what the law requires and then assess the facts presented in the application against those criteria. v) If, contrary to this submission, an FCO certificate was to be considered determinative of the issue of immunity when there was no evidence that the propositus was exercising diplomatic function, the effect of the law would be to create a procedural bar to access to a court for the determination of a civil claim that did not pursue a legitimate and/or was not proportionate to the issue and thus the issue of the certificate would lead to a contravention of Article 6 ECHR.[36]It is central to Mr De La Mare’s submissions on this issue that the present case is not ‘a normal case’ given the status of the defendant and the information about his activities since November 2013: i) First, there are at least two occasions since his retirement from public office when the defendant has publicly stated he is a private person who no longer represents the interests of the state of Qatar and is able to give personal opinions on issues of political controversy in the realm of foreign affairs. It is said that such statements are inconsistent with diplomatic practice. This is reinforced when he states positively that he no longer has a role representing the government of Qatar. He could not have said that had he truly been performing the functions of a Minister Counsellor at the Embassy. ii) Second, there is positive evidence that since June 2013 the defendant has been actively concerned in acquiring further very substantial assets by way of property, investments and acquisition of shares in public companies, of which he and his family are the ultimate beneficial owner. Such activities are both inconsistent with diplomatic functions and the time spent on them would prevent him exercising such functions. iii) Third, the defendant’s social media pages as well as press reporting demonstrate that since November 2013, he has been out of the UK on a very large number of holidays and other personal activities that would have prevented him undertaking the function of Minister Counsellor at the London Embassy. iv) Fourth, despite his very high profile as a former Prime Minister and one of the world’s wealthiest individuals, no evidence at all has been presented by the government of Qatar or the FCO that the defendant has ever undertaken any function as a diplomatic agent in the UK since November 2013. v) Fifth, the claimant says that he has been told personally by his relative, the current Foreign Minister of Qatar that the defendant was concerned that when he left public office in Qatar he would be vulnerable to civil and /or criminal process and that he wanted diplomatic immunity to protect him from suit when out of the territory of Qatar; in effect the appointment is a sham for his personal benefit. vi) Sixth, it is contended that although the defendant may no longer hold office, his enormous wealth and connections with the head of state of Qatar would enable him to influence relevant public officials in that state to secure a titular appointment as a diplomat for the purpose of acquiring immunity from suit, but such a purpose is outside and/or contrary to the proper purposes of the Diplomatic Convention that governs directly or indirectly the proper interpretation of the law.[37]The defendant submits:(i) There is no functional test to be applied for diplomatic immunity. A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the competent authority of the receiving state, here the FCO.(ii) The terms of the FCO certificate are conclusive as to the fact of the defendant’s appointment as diplomatic agent and the recognition of that appointment by the FCO. It thus certifies a fact that is binding on the court when it considers whether the immunity claimed exists.(iii) In any event, the evidence from the Qatari government is clear and cannot be rejected as lacking credibility.(iv) Recognition of diplomatic status is a prerogative function of the Crown exercised by the FCO. It is accordingly a fact of state binding on the court without further inquiry. It is an aspect of the common law principle that the state should speak with one voice on matters of foreign affairs, including recognition of diplomatic agents;(v) The claimant’s assertions that the Minister for Foreign Affairs had confided in him that the defendant was anxious to obtain immunity from suit is wholly without foundation as are a great many of his factual assertions in the pleadings and witness statements. The state of Qatar does not condescend to address the allegations arising from the public and social media reporting of the defendant’s statements and activities. Precisely, how he has been spending his time since his appointment is irrelevant to the issue before the court.(vi) The court does not have the task of inquiry into whether a diplomatic appointment is a sham. The mechanism for ensuing proper compliance with the VCDR is the ability of the FCO pursuant to Article 9 of the Convention to declare a member of a mission persona non grata and no longer acceptable. In such case the person concerned must either be recalled or ‘terminate his functions with the mission.’ Here it is clear that the FCO have not exercised such a power as of 4 January 2016 despite having notice of all the material on which the claimant relies before this court as to acts said to be inconsistent with the status of a diplomatic agent.[38]These are all formidable submissions. Although there are many cases concerned with diplomatic immunity and prerogative acts of the Crown with respect to foreign affairs, there is nothing that directly decides the issue in dispute. It accordingly falls to me to determine the question applying the provisions of the DPA and any relevant guidance given by the VCDR and applicable principles of international law, as well as the line of authorities touching on the subject to which I was referred.[39]As the DPA and the DC are central to the analysis, I set out the relevant parts in Annexes 1 and 2 to this judgment. Whilst I am aware that in the case of R v Governor of Pentonville Prison ex p Teja [1971] 2 QB 274 (Teja), to which further reference will be made, Parker CJ (at 283 A) expressed doubt as to whether it was possible to construe the Act or the terms of the VCDR incorporated into domestic law by the Act with reference to provisions of the Convention that were not so incorporated, in the later case of Propend Finance v Singh and others (111) ILR 611 (1996) Laws J (as he then was) concluded that such a course was ‘clearly right’ (at 635). It seems to me that this accurately states the position and both sides in the course of their submissions have referred me to provisions of the VCDR that are not contained in the schedule to the DPA.

Diplomatic Law

[40]The fourth holding of the preamble to the VCDR states ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States’. There are numerous other references to ‘function’ in the text of the VCDR in the context, for example, as to when immunities begin and end (see Articles 39 and 43).[41]The functions of a mission are not exhaustively defined, but include the purposes set out in Article 3 which at (e) refers to ‘developing economic relations between states’. Developing economic relations between states is distinct from a diplomatic agent undertaking professional or commercial activity for personal profit, an activity prohibited by Article 42. Although neither Article 3 nor 42 is expressly incorporated into domestic law by the schedule to the DPA, they form part of the principles of international law and can be relied on to ascertain the meaning of terms that are part of domestic law.[42]The VCDR encapsulates a wide variety of personnel from the head of mission, diplomatic agents, technical and administrative staff, private servants, family members and others. The proposed accreditation of a head of a mission requires the agreement of the receiving state. The members of the staff of the mission are distinguished as to status and immunity according to whether they have diplomatic rank or are the technical and administrative staff of the mission.[43]The sending state may freely appoint the members of staff of the mission. Save in the case of military attaches, there is no requirement for prior approval of the receiving state (VCDR Article 7). Although the freedom to appoint members of staff is primarily about the identity of the people chosen to be a member of staff, the rank assigned to that member of staff is generally a matter for the sending state alone. Thus the level of appointment and the consequential diplomatic rank is a matter for that state.[44]It is the sending state that accredits its head of mission or diplomatic staff of the mission to the receiving state (see Article 5, 6 and 14). Save in specific circumstances where the VCDR requires prior approval, accreditation is by notification to the relevant authority, here the FCO. If the receiving state takes issue with the accreditation, it can communicate with the sending state and if necessary may make an Article 9 notification.[45]The DPA and the VCDC replace the previous common law and statutory provisions dating back to the statute of Queen Anne in 1708 that gave more extensive immunity to diplomats. There have been a number of judicial decisions on diplomatic immunity under the DPA, most often in connection with criminal liability and exemption from immigration control.[46]In Teja an Indian national wanted for suspected commercial fraud claimed to be immune as a member of a diplomatic mission of Costa Rica. He relied on letters to that effect issued on behalf of the government of that country. There was a certificate before the court from the FCO stating that the applicant ‘has not been accredited to the Court of St James as a diplomatic agent’. The issue was whether he was nevertheless entitled to such immunity. The Divisional Court was satisfied that he was not, concluding: i) The whole basis of diplomatic relations was consent (283 B); ii) Approval by notification and acceptance was thus required for all diplomats claiming immunity (282 F) ; iii) An unilateral claim to immunity made by a foreign country would have alarming consequences for public policy (282 A) ; iv) The applicant could only claim to be immune as the head of a special mission as opposed to the permanent mission of Costa Rica to the Court of St James; an ambassador or head of a special mission had to be specially approved before his appointment was accepted (283 D-E); v) In the course of the proceedings there was communication between Costa Rica and the FCO and the government of Costa Rica sent a telegram to London stating that the applicant ‘is on a special mission on behalf of the Government of Costa Rica and is duly accredited to the Costa Rica mission in London’ which caused Parker CJ to observe (at 284 F) ‘if that was right in the sense that he had been appointed a member of the diplomatic staff of the Costa Rican Embassy in London then, of course, he would be entitled to diplomatic immunity’ vi) In addition, Parker CJ made an observation (at 283 F-G) on which Mr De La Mare placed emphasis, that in any event: ‘it is almost impossible to say that a man who is employed by a government to go to foreign countries to conclude purely commercial agreements and not negotiate in any way or have contact with the other government, can be said to be a diplomatic agent at all. He was there purely as a commercial agent of the government. He was not there representing his state to deal with other states’.[47]Teja was influential in a number of subsequent extradition cases and the second holding above was applied in In re Osman (1988) 88 ILR 378 DC and ex p Yusufu [1985] Crim LR 510 DC. In addition, it was followed in a number of immigration cases with the consequence that date stamps placed in passports tendered by those coming to take up a post at a diplomatic mission were held to amount to leave to remain as it was understood that exemption from immigration control did not begin until the appointment had been notified and accepted by the FCO.[48]R v Secretary of State for the Home Department ex p Bagga [1991] QB 485 CA was an immigration case where the second holding in Teja was held to be wrong (at [45] (ii) above). Ambassadors and heads of mission were special cases and in general Article 39 of the VCDR made clear that immunity attached from the moment a person entered the country to take up a diplomatic post whether there had been notification or not (per Parker LJ at 495 F and 496 E). As far as exemption from immigration control was concerned the Home Office was not concerned with the diplomatic niceties of notification but simply with whether a mission is a member of a mission (at 496 F). Teja was correct in its conclusion on its own facts that depended on the claim to immunity by reason of a claim to be heading a special mission, but the broader proposition was overruled and so was the reasoning in the subsequent cases relying on it although they reached the right conclusions on the facts (see pp 497 E, 498 B, 499 C, 506 F).[49]Despite its status as an authority for the broader proposition of law, the case of Osman remains of some interest having regard to the terms of the certificate issued in that case that the claimant ‘is not and has not been accepted or received as a member of the diplomatic staff of the Embassy of the Republic of Liberia’ (of which he claimed to be a diplomatic agent). Mustill LJ held that the certificate was conclusive of the facts stated although not exclusive as to the means by which the facts could be proved (p. 396). Further the function of the certificate was that: ‘the Secretary of State is empowered to supply the courts with an answer to a question of fact relating to diplomatic privileges but is not empowered to bind the court by his opinion on any question of law which may be entrained in a decision on whether diplomatic privilege is due’.[50]McGowan J concurring (at p.402) observed that the applicant had not established that he was immune by demonstrating that he had been appointed as a member of the diplomatic staff of a mission.[51]In Propend the court was concerned with whether a police officer who exercised the function of police liaison officer at the Australian High Commission was liable to process for contempt of court in respect undertaking given in the course of litigation about a search warrant. The issue was whether an Article 31 (1) (c) exemption to immunity arose because the officer was carrying out a professional activity. Laws J held it did having regard to the provisions of Article 42 and the preamble demonstrating what the purpose of the immunity was (p633 and 635). The precise terms of the certificate were not reproduced in the judgment but it is sufficient to note that it satisfied the court that immunity attached because the police office had been a diplomatic agent accredited to the UK (612).[52]Khurts-Bat v Investigating Judge of the Federal Court of Germany [2011] EWHC 2029 (Admin) [2013] QB 349 was another extradition case where the applicant claimed immunity on the basis that he was on a special mission for which there had been no consent and approval by the FCO. The claim was rejected (as in Teja) Moses LJ further reviewed the state of the law as follows:33. It seems to me that the analogy with the inviolability and immunity of accredited members of permanent missions and the importance of consent illuminate resolution of the issue as to whether the FCO letter dated 12 January 2011 is conclusive. The acceptance of accreditation to a permanent diplomatic mission is a matter within the discretion of the Executive, or, more accurately, the Royal Prerogative. Oppenheim's International Law (9th edition, Vol. I, 1048-9) identifies a list of eight topics in respect of which Foreign Office Certificates have been issued. One of them (g) is the question whether a person is entitled to diplomatic status. All of them, as Sir Elihu submitted, relate to matters which are either for the Royal Prerogative or express a view held by the Foreign Office (whether a state of war exists with a foreign country or between two foreign countries). As Vallat points out in International Law and the Practitioner, the list is not exhaustive.34. The list relates to matters which in Halsbury's Laws of England (5th edition, 61, paragraph 15) are called "Facts of State". They are facts which the court accepts, not so much because they are within the exclusive knowledge of the UK Government, but because they represent matters which are exclusively for decision by the Government and not for the courts. It is for the United Kingdom Government to decide whether to recognise a mission as a Special Mission, just as it is for the Government to decide whether it recognises an individual as a Head of State. As Brooke LJ said in Kuwait Airways Corporation v Iraqi Airways (nos. 4 and 5 [2002] AC 883:- "Her Majesty's Government has never given up the right to inform the courts as to its recognition or non-recognition of States, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains." (paragraph 349)35. Brooke LJ was referring to the speech of Lord Atkin in the Arantzazu Mendi [1939] AC 256:- " Our State cannot speak with two voices on such a matter (viz. State Sovereignty and matters deriving from it), the judiciary is saying one thing, the Executive another. Our Sovereign has to decide whom he will recognise as a fellow Sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone." (page 264)36. These authorities were cited by the Court of Appeal in The Queen on the Application of HRH Sultan of Pahang v SSHD[2011] EWCA Civ 616 when it regarded the Certificate that the Sultan was not the Head of State of Malaysia as conclusive for the purposes of deciding whether the Sultan enjoyed State immunity.37. I can see no rational basis for distinguishing between the effect of a Certificate in relation to whether the United Kingdom consented to the visit of Mr Khurts Bat as a Special Mission and from other factual circumstances which give rise to immunity. It is true that the conclusive effect of a Certificate in relation to those identified in Schedule 1 Article 1 of the Diplomatic Privileges Act 1964 is enshrined in S.4 of that Act. But since the essential question is whether the British Government recognised Mr Khurts Bat's visit as a Special Mission with the immunities which flow from such recognition, it seems to me just as much a matter for the Executive as recognition of an Ambassador or a member of an Ambassador's staff, a matter properly the subject of a conclusive statement long before the 1964 Act (see, e.g., Engelke v Musmann [1928] AC 433).38. It is true that the Protocol letter said that the question whether Mr Khurts Bat came to the UK on 18 September 2010 on a Special Mission was a question of law for the court to determine but that, in my judgement, was no more than a proper and respectful acknowledgement that the consequences of absence of consent to Mr Khurts (thus) visit as a Special Mission were a matter for the court. Exactly the same problem arose in the letter discussed in the Aranzazu Mendi in relation to whether the nationalist Government was recognised by the UK as exercising de facto control over the larger portion of Spain. The letter concluded:- "The question whether the nationalist Government is to be regarded as that of a foreign sovereign State appears to be a question of law to be answered in the light of the preceding statements (that HMG did recognise that Government) and having regard to the particular issue or circumstances with respect to which the question is raised." (258) Lord Wright concluded that the difficulty was more apparent than real:- "The Foreign Office stated the precise facts as then existing in regard to recognition by His Majesty's Government, by the decision of which recognition is given or withheld. The question of law left to the court is what was the effect of these facts on the issues before the court?" (268)39. In just the same way, the consequences of the fact that the United Kingdom Government did not recognise Mr Khurt's visit as a Special Mission is a matter for the court. Whether or not the United Kingdom Government chose to consent to Mr Khurts Bat's visit as a Special Mission was exclusively a matter for the Government and not for the court. The letter of 12 January 2011 conclusively establishes that the United Kingdom did not consent to the visit as a Special Mission.40. I recognise that the Government of Mongolia takes a different view and contends that the United Kingdom, through its Ambassador in Mongolia, did consent to the mission as a Special Mission. It seems to me that that controversy underlines the need for the courts not to question that which the Government chooses to recognise and that which it does not. Recognition is a matter, as it seems to me, of foreign policy which is unsuitable for discussion or a view in the courts. Whether or not the purpose of Mr Khurt's visit and that which the Government of Mongolia hoped to achieve by the visit, was or was not capable of constituting a Special Mission, is beside the point. It was for the FCO to decide whether it would choose to recognise that visit as a Special Mission or not.[53]In British Arab Commercial Bank PLC v National Transitional Council for the State of Libya [2011] EWHC 2274 (Comm) Mr Justice Blair had to decide who was the recognised government of Libya and whether a bank account in London under the control of the Libyan Embassy in London could now be controlled by the successor government to the Gaddafi regime. There was a certificate from the FCO that the defendant was considered the recognised government and the decision in Khurts-Bat was noted and applied. I do not consider that this decision gives any further assistance to the issue before me.[54]The death of WPC Fletcher at the hands of someone from within the Libyan Embassy in London led to an investigation by the Foreign Affairs Committee of the House of Commons as to Diplomatic Immunities and Privileges in 1984. The evidence from the FCO (20 June 1984) revealed in response to question 22:
‘HMG do not accord diplomatic status. This is done by the sending State pursuant to its right under article 7 of the Convention freely to appoint the members of the staff of the mission. There is no obligation to notify appointments in advance (except for the Head of Mission) and advance notifications are not usual except where a visa is required. Where we are notified in advance of a nomination through the visa system, we refuse to grant the visa in cases where the nominated person is regarded as unacceptable. We also sometimes try informally to persuade Missions to withdraw a nomination in cases where the appointee is clearly fulfilling an administrative and technical rather than a diplomatic function; or is not carrying out the functions of the mission as described under Article 3 of the Convention. We have also pressed successfully for withdrawal of notification in a very few cases where criminal charges are pending.’
[55]In its response to the Committee’s report (April 1985 Cmnd 9497) the government observed at [21]:
‘Since the Vienna Convention contains no objective definition of staff categories, checks carried out after notification usually relate to questions of nationality, designation, residence or family status. Doubts about official status or duties are rarely apparent from the notification form and it is virtually impossible in most cases for the FCO to tell whether a person should more properly be described as a diplomat or as a member of the administrative and technical staff or indeed as a member of a mission at all. In certain cases we refuse to accept notifications and they are withdrawn by the mission concerned. The persona non grata sanction is exercised where there is good reason to do so.’
[56]In Al Maliki v Reyes [2015] ICR 931 [2015] EWCA Civ 32, the Court of Appeal had to decide whether engaging domestic staff was an activity incidental to diplomatic functions and thus well within immunity from suit or was subject to an Art 37 exemption from immunity. It upheld the claim for immunity but there was (at [20] and following) a wide ranging consideration of the object and purpose of the VCDR derived from the preamble, drafting history and state practice.[57]In the materials provided to me by the parties is an extract from Diplomatic Law by Eileen Denza (Third Edition) OUP from which the following information can be abstracted:- i) US State Department policy was ‘to be recognized as a diplomatic agent, a person must possess a recognized diplomatic title and perform duties of a diplomatic nature’ (original emphasis p. 19); ii) Doubt was expressed as to whether the term ‘outside his official functions’ in Article 31 (1) (c) could be interpreted by reference to Article 3 because: ‘there may sometimes be difficulties in determining the limits of diplomatic functions and the boundaries between diplomatic and commercial and diplomatic and consular functions. It is suggested that these issues should be determined by consultation between sending and receiving States. A diplomat who is instructed to undertake an activity such as export promotion or assistance to businessmen, which could be argued to be commercial …is acting within his official functions and should be entitled without question to personal diplomatic immunity. If the receiving State takes the general view that certain of these activities are not properly diplomatic …this may require resolution…This should not, however, expose a diplomat carrying out instructions - unless these clearly exceeded the bounds of proper activity- to the risk of personal suit.’ iii) Certificates under the DPA are rigorously confined to questions of fact within the special knowledge of the FCO such as notification of appointments of members of diplomatic missions. They do not address issues of law.[58]There is also helpful information about the practice in issuing executive certificates in foreign affairs in an article written by Elizabeth Wilmshurst (the former senior legal officer to the FCO) in the ICLQ (1986) 157.[59]I accept from this summary of the law that:(i) questions of whether a state or a head of state or a government of a state is recognised are matters within the exclusive jurisdiction of the FCO and the information provided must be acted on by the court as a fact of state as the UK cannot speak with two voices on the same question;(ii) the recognition of foreign diplomats is also a prerogative function of the FCO as an aspect of the conduct of foreign relations;(iii) whether immunity attaches to a diplomat or a person claiming to be a diplomat is a matter of law for the court to determine;(iv) the facts contained in a s.4 DPA certificate are conclusive evidence of the certified facts in the proceedings before the court and any other expression of a question of fact that is within the exclusive competence of the FCO (such as approval of a special mission) may be treated similarly as a fact of state;(v) diplomatic status is not something created for the benefit of individuals but the freedom of states to conduct relations with a host state; a broad meaning of diplomatic function is to be given although there are some activities that clearly fall beyond this description.

The FCO certificate

[60]The claimant does not seek to contradict the terms of the FCO certificate (set out at [9] above). It is contended that the last sentence however, should be disregarded in so far as it purports to be a legal conclusion rather than a statement of fact. The FCO practice reflected in the views of such commentators as Denza and Wilmshurst is that a certificate is directed to facts for the assistance of the court but the conclusions of law are for the court alone. The understanding of the courts and indeed the terms of DPA s.4 are to similar effect. It may well be that a certificate is based on an understanding of the law, and the FCO understanding of the legal basis for any facts may itself be a source of information to the court’s decision, but I agree with the claimant that I am not bound by a certificate that purports to go beyond its function under the statute.[61]The information supplied by the FCO to the parties has not been entirely consistent as to the relevant dates. On 4 September 2015 a letter was issued indicating that the defendant was recognised as a Minister Counsellor on 6 November 2013. In a letter to the claimant’s solicitors dated 5 October 2015, it states that it was notified by the Qatari Embassy of an in intention to appoint the defendant to its diplomatic staff and was accredited with diplomatic status in October 2014. The certificate itself explains that notification took place on 28 August 2013 and on 28 May 2014 the defendant’s arrival date was notified as 6 November 2013. The reference to the 6 November in the earlier letter thus appears to be the date from which accreditation to the diplomatic staff of the Embassy has been considered effective. The last sentence in the certificate is, in my view, based on a view of the law that arrival to take up a diplomatic post followed by the absence of any objection by the receiving state together results in membership of diplomatic staff with the consequent immunity. The letter to the defendant’s solicitors with the certificate observes that the agreement of the receiving state is not necessary in the case of a member of diplomatic staff other than a head of a mission.[62]The claimant points out that not every view of the FCO as to the meaning of legal terms has been accepted by the courts as accurate. In the case of Apex Global Management Limited [2013] EWHC 587 (Ch) Mr Justice Vos, as he then was, had to decide whether two Saudi princes were immune from the jurisdiction of the English court in relation to a commercial dispute because they were members of the family of a sovereign or other head of state ‘forming part of his household’ within the meaning of s.20 State Immunity Act seeking to apply Article 37 of the VCDR as incorporated by the DPA. The court had drafted a series of questions for the FCO to assist in deciding that fact. The response indicated that the FCO was not in a position to certify any relevant fact that would assist the court in its inquiry, but did provide some material where a prominent expert in this field Sir Arthur Watts had expressed views as to the wide meaning of ‘membership of a household’.[63]In the end the judge took a different and narrower view as to membership of a household and was distinctly unimpressed with the assertions of fact made in a number of witness statements of Saudi officials on behalf of the defendant in this case. His conclusion was upheld by the Court of Appeal on different grounds taking an even narrower view of ‘membership of a household’.

The evidence as to performance of a function

[64]If Mr de la Mare is correct in his central contention of law that it is for the defendant to prove that he has the status of a diplomatic agent by establishing on a civil balance of probabilities that he is actually exercising diplomatic functions within the meaning of Article 3, I would not be satisfied on the evidence before me that this burden had been discharged.[65]I recognise that the defendant’s very extensive business interests would make him well qualified to undertake the diplomatic function of improving economic cooperation between the receiving and sending states, and that there is evidence that he was appointed in August 2013 to come to the UK to undertake such a function.[66]The difficulty with the defendant’s evidence is its essential silence on whether he has ever performed this function since he arrived in the UK or performs it now in 2016. There is material in the public domain compiled in Mr Barnett’s witness statement of 16 November 2015 to support the proposition that since November 2013 the defendant has been in Morocco (December 2013), USA (February 2014), India (February 2014), Morocco, Tanzania, Maldives (April 2014), Switzerland ( May 2014), Greece, USA, France and Kuwait ( June 2014), Hungary (November (2014), Oman, Russia, Belize, Mexico, Panama, and Cuba (December 2014), Saudi Arabia (January 2015). India and Germany (February 2015), Hungary (May 2015), Austria (June 2015), Saudi Arabia (July 2015), Greece (August 2015) and Morocco (October 2015). Each of these visits appears to have been for personal purposes wholly unrelated to functions as a member of a mission in London. In addition, there are the two public statements during the period that he is a private person and not representing the government of Qatar and significant evidence of business transactions in the UK and elsewhere concerned solely with the acquisition of assets of which he and his family are beneficial owners. It is difficult to understand how a person could make such a statement if he regarded himself as an a charged with the task of representing the interests of Qatar in the United Kingdom.[67]I accept that the performance of some private commercial activity within the meaning of Article 42, although contrary to diplomatic status, does not of itself mean that the person concerned loses immunity generally as a diplomat. Such acts may be waived by the receiving state and in any event there may be policy reasons why the receiving state would not wish to declare someone persona non grata. Article 31 recognises that one can be both a diplomat and entitled to general immunity and be exempt from immunity and subject to the jurisdiction of the civil courts for disputes arising from commercial activity.[68]I further accept that as Ms Denza states (see [57 (ii)] above) there may be borderline cases of commercial activity and diplomatic functions, but if the defendant has been devoting most of his time to being concerned in acquiring the equity of a chain of Spanish stores, an oil company and other assets such as is indicated in the Barnett material, in my judgment this would be activity wholly outside his diplomatic functions however broadly they be conceived within Article 3 or otherwise.[69]There is no evidence from the defendant to rebut or explain his public statements or the visits and acquisitions described by Mr Barnett. It may be undisputed that he is not the director of any UK based trading company, as Mr Bakhos states, but equally it is not disputed that he is the beneficiary of a portfolio of UK assets of an unimaginable value and that portfolio has grown since November 2013.[70]The evidence from the Qatari Ambassador and Foreign Minister does not tell the court what the defendant has actually been doing. The claimant does not challenge the fact that the defendant has been appointed to the London Embassy and his appointment and the capacity in which it was made has been notified to the FCO, but that does not tell the court what he has actually been doing. It is one thing to query diplomatic functions at the start of a tour of duty when nothing is known as to what functions he will actually undertake and review the evidence of functions after 26 months. There is strength in the claimant’s statement that as a very high profile businessman and former Prime Minister any function he has had of representing the interests of Qatar to HMG would have been known by the FCO but there is nothing in the factual information provided to suggest that he has ever undertaken any such function.[71]The court is not bound by comity or any other principle to accept without more what the state of Qatar has said through its representatives and the law reports are full of examples ( such as Teja and Apex) where the court has been unable to accept assertions made by such representatives whether in letters or witness statements. In reaching this conclusion, I attach no weight to the fact that there has been no cross examination of the defendant’s witnesses, although the claimant extended an invitation for them to attend. This is an application rather than a trial and such applications are normally heard on documentary evidence; the claimant has not sought an order for cross examination and it may well be that a state disputing jurisdiction would be unwilling for its Ambassador and other holders of public office to attend court.[72]It is sufficient to note that the evidence simply does not address this issue and it cannot be implied that simply because he was appointed to promote economic cooperation as a diplomatic function that is what he has been doing. It appears from the example of the claimant’s own status as ambassador that the state of Qatar may have a very broad view of what diplomatic functions are and who is entitled to be accredited to undertake them. If the functional analysis is correct, then the assertions made by Qatar may be based on a differing view of the law to the one that the court may conclude is appropriate.

Conclusions on diplomatic immunity

[73]However, although a case for a functional requirement can be made by reference, the object and purpose of the Convention, US state practice and a few observations in the case law, I conclude that it does not provide the test to be applied by this court in determining whether someone is a diplomatic agent.[74]In the previous cases where a FCO certificate or letter has been issued, the court has treated the question of whether a person is a diplomatic agent as settled by the question of whether the receiving state has accepted the accreditation of the sending state or not. Whilst acceptance is not an act that itself affords the immunity, it is regarded by the courts as good evidence of the fact of membership of diplomatic staff. The fact that the courts have not previously asked more searching questions and sought evidence of the precise activity that has been performed suggests that such an inquiry was considered unnecessary.[75]There would be real difficulties and uncertainties if the court were to undertake the inquiry that the claimant contends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional inquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.[76]If the FCO has good reason to believe that the status of diplomat and membership of the staff of a mission is being abused by the sending state to promote the personal convenience of the propositus, there may be representations made that immunity is waived by the sending state or that the person ceases to be a member of a mission. In the last resort, a person may be declared persona non grata, but even in those circumstances I anticipate that in the light of VCDR Art 9 (2) and 39 (2) some time to leave the country would be afforded before any immunity ceased.[77]Leaving the control mechanism for termination of an appointment in the hands of the FCO, if it considers appropriate, avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry. The prerogative power of conducting foreign relations is exercised by the executive through the FCO and not by the courts; that power includes the exercise of waiver where considered expedient. If private commercial activity by a member of the diplomatic staff of a mission has been taking place in breach of Article 42,that may be the subject of waiver by the receiving state. Equally a receiving state may be content to accept a member of diplomatic staff even if that person is not engaged in such a function full time.[78]The sending state’s freedom of appointment under Article 7 goes beyond the identity of the appointee and extends to the rank to which the person is appointed, as well as the instructions as to the activity to be appointed to and the degree of time spent on it. If both the receiving and sending state are aware that a diplomat is spending significant periods of time on other matters, that may be a reason to terminate the appointment but it does not follow that immunity does not apply while the person remains an accredited diplomat.[79]If any of the matters presented in the claimant’s evidence cause the FCO concern as to the defendant’s current functions in the Qatar Mission or private acts in the UK or elsewhere, it can take such action is it deems appropriate. It is unclear whether there has been inquiry into them, but it is plain that the FCO was willing to issue the 4 January certificate despite the information contained in the 16 November letter.[80]I am not persuaded by any of the cases cited by Mr De La Mare, that this court must decide for itself who is exercising the function of a diplomat where there has been accreditation as such by the FCO. Teja, Osman and Khurts Bats were all claims to diplomatic immunity by people who claimed to be on special missions where there had been no communication to or acceptance by the FCO of such people as a head of a mission. Propend and Al Maliki were both concerned with whether the exemption to immunity applied or not on the basis that the activity in question (ie conducting police inquiries or hiring domestic staff) was a personal, commercial or professional one outside of diplomatic functions. There was no examination by the court of whether a person was a diplomat in the first place. In Apex the question was whether a person was a member of the household of the head of state. That issue was in turn partly dependent on the breadth to be ascribed to the term household and the ascertainment of what the domestic arrangements were. It was not a matter on which the FCO had any knowledge and did not express an opinion. It is not a matter within its specialist expertise or prerogative power by contrast to the question of who the head of state was.[81]In the case of diplomats other than a head of a mission, Bagga demonstrates that immunity attaches from the moment the person enters the country to assume the function and prior approval is not necessary. This does not mean that the certificate of the FCO as to the facts as to whether there has been notification subsequent to arrival is irrelevant. Whilst acceptance of a diplomat is not the source of the immunity, it is evidence that the person is a member of the mission, which is the central fact for assessing whether it exists. There needs to be some certainty whether a person is a diplomat and this would be impossible to achieve if the acceptance by the receiving state of the accreditation offered by the sending state were not sufficient.[82]This conclusion is not incompatible with the right of access to a court for the purpose of Article 6. Putting aside any doubts expressed by British judges at the developing principles of the Strasbourg case law, it is clear from decisions such as Al Adsani v United Kingdom (2002) 34 EHRR 11 and Fogarty v United Kingdom (2022) 34 EHRR 12, that a restriction on jurisdiction is considered relevant, necessary and proportionate if it is to give effect to international law principles including the VCDR and state immunity. Benkharbouche v Embassy of the Republic of Sudan [2015] 3 WLR 301 points out that the immunity should go no further than international law require in order to be compatible but in my view, the current state of the law does not grant more extensive immunity than the VCDR envisages. It is open to the receiving state to require that accredited diplomats should devote themselves full time to their official functions and not be party to any private acquisition of assets in the receiving state, but nothing in the VCDR or other provisions of international law require it.[83]I have not been compelled to decide a question of law a certain way by the terms of the FCO certificate and its last sentence. I have reached my independent conclusion as to what a member of a diplomatic mission means in domestic and international law. If ultimately it is a question whether a sending state has appointed such a person to its mission and that appointment has been consented in by the receiving state, then the terms of the certificate are conclusive evidence of the facts.

Conclusions

[84]For these reasons I am satisfied that on both grounds the court has no jurisdiction to hear this case.

order

i) The substance of the claim is an allegation of abuse of public power by a public official of Qatar (the Minister of Foreign Affairs who was also from 2007 the Prime Minister of Qatar) and thus the claimant indirectly impleads the state of Qatar. In response, Qatar claims sovereign immunity in respect of the subject matter of the claims under the provisions of the State Immunity Act 1978. ii) The defendant is an accredited member of the Qatari Embassy in London and was therefore entitled to immunity from suit under the Diplomatic Privileges Act 1964 (DPA).

Cited in 12 later judgments

and 3 more of the most senior