London Branch Of Nigerian Universities Commission v Bastians [1994] UKEAT 143_94_0610

EAT
London Branch Of Nigerian Universities Commission v Bastians
[1994] UKEAT 143_94_0610 · 1994-10-06
MR JUSTICE MUMMERY (PRESIDENT) Questions of state, international organisation and diplomatic immunity crop up surprisingly often in employment and discrimination cases, particularly before Industrial Tribunals held in London. This appeal raises unusual points on the question of submission to the jurisdiction in the context of a potential claim to state immunity by the Respondent, The London Branch of the Nigerian Universities Commission ("The Universities Commission") in proceedings for unfair dismissal and redundancy payment brought by Mr Noel Bastians, formerly employed with the Universities Commission as an accountant from June 1988 until he was dismissed on 31st October 1992.The Industrial Tribunal held at London (North) on 20th October 1993 decided that the Universities Commission, which claims to be a unit of the High Commission of the Federal Republic of Nigeria, had submitted to the jurisdiction of the Tribunal which was, therefore, entitled to hear Mr Bastians' complaint. Full Reasons were notified to the parties on 18th November 1993. By a Notice of Appeal dated 26th January 1994, the Universities Commission appeals against that ruling.

It is common ground that

(1) If this appeal fails, the Industrial Tribunal is entitled, subject to any further appeal, to proceed to hear Mr Bastians' complaints on the merits:(2) If the appeal succeeds, it is still open to Mr Bastians to take the point, which has been raised on his behalf but is disputed, that the Universities Commission is not a body entitled to immunity under the provisions of the State Immunity Act 1978.(3) The references in the correspondence and other documents, including the Tribunal decision, to "diplomatic immunity" are misconceived and irrelevant. The only possible immunity claim in this case is for State Immunity under the 1978 Act.

The Facts

The primary facts which appear from the decision of the Industrial Tribunal, as amplified in bundles of documents placed before this Tribunal, must be examined in detail to determine whether the Tribunal misapplied the law relating to State immunity when it held that the Universities Commission had submitted to the jurisdiction and waived immunity by entering a Notice of Appearance and by taking a step in the proceedings. The relevant facts may be summarised as follows:-(1) A copy of the Originating Application, presented to the Tribunal by Mr Bastians on 20th January 1993, was sent to the "Universities Commission, the Nationality and Treaty Department, Foreign and Commonwealth Office". It was explained on an enclosed form IT2 that the Rules of Procedure required the Universities Commission to enter an appearance within two months and 14 days of receiving a copy of the application. This could be done either by filling in and sending to the Regional Office of Industrial Tribunals at London (North) the attached form or by sending a letter giving the information asked for on the form. It was also stated that, if the form or a letter as requested was not sent to the Regional Office, the Universities Commission would not be entitled to take any part in the proceedings and a decision might be given against it in its absence. A copy of the form IT3 was attached.(2) As evidenced by a certificate dated 1st April 1993 given by the British High Commission in Abuja, the documents sent to the Foreign and Commonwealth Office by the Regional Office were served on the deputy Assistant Director-General at the Ministry of Foreign Affairs of the Federal Government of Nigeria by an assistant of the British High Commission. The time for entering a Notice of Appearance was two months and 14 days from 1st April 1993, the date of service. There is no evidence of any further communication between, on the one hand, the Nigerian Ministry of Foreign Affairs, and, on the other hand, the Foreign and Commonwealth Office, the Nigerian High Commission or the Regional Office of Industrial Tribunals.(3) In the meantime, the Foreign and Commonwealth Office sent to the Nigerian High Commission a Note Verbale (NTL 376/310/101 dated 11th March 1993) enclosing "For Information Only" a copy of the Originating Application which was being served on the Ministry of Foreign Affairs under S.12 of the State Immunity Act.(4) On 13th April 1993, the Nigerian High Commission sent a Note No.164/93 to the Foreign and Commonwealth Office with reference to the latter's Note Verbale of 11th March 1993. There was enclosed with the Note a copy of the form IT3 which remained uncompleted, undated and unsigned. The Foreign and Commonwealth Office forwarded those documents to the Regional Office. As the documents forwarded by the Foreign and Commonwealth Office are relied on by Mr Bastians as constituting a Notice of Appearance and the taking of a step in the proceedings, the contents of the Note 164/93 are important. In the first paragraph the High Commission presented its compliments to the Foreign and Commonwealth Office and stated that, with reference to the Note of 11th March 1993, the Commission had "the honour to state the following for transmission to the appropriate authority." The Note continued -
"The High Commission wishes to state that Mr N S Bastians' appointment as an accountant with the Nigerian Universities Office, which is a unit of this High Commission, was terminated due to the following reasons"

After setting out the reasons it is stated that

"The High Commission wishes to reiterate that Mr Bastians' appointment was terminated due to incompetence and lack of requisite qualification during a routine reorganisation in the office. The issue of redundancy does not arise at all. His claim of unfair dismissal and that no reason was given to him is grossly incorrect."
No claim to immunity is mentioned.(5) On 19th July 1993, the Nigerian High Commission sent a further Note No.387/93 to the Foreign and Commonwealth Office with reference to the earlier Note of 13th April 1993 and forwarded correspondence from the Regional Office proposing to list Mr Bastians' application for hearing in February 1994. The High Commission restated the position set out in the earlier Note and added
"The High Commission believes that this case is not a subject of arbitration or litigation. It will therefore be appreciated if the Foreign and Commonwealth Office can inform the Industrial Tribunal accordingly."
(6) A similar point was made by the Nigerian High Commission in a letter of 12th August 1993 sent direct to the Regional Office in response to a letter of 9th August which was apparently concerned with the listing of the case for hearing. The letter states
"It appears from our previous responses of 13th April and 19th July 1993 respectively to the Foreign and Commonwealth Office on the subject have not been communicated to you."
The letter then sets out the position as stated in the Note of 13th April and concludes
"I am to state that this is not a case which is a subject of arbitration or litigation. It will therefore be appreciated if you consider it so."
That letter elicited a response from the Regional Office on 19th August informing the Nigerian High Commission that the letter had been referred to a Chairman of Tribunals "who asks me to enquire whether you are seeking diplomatic immunity". The reply from the Nigerian High Commission on 24th August 1993 was in the following terms
"I am directed to refer to your letter ... dated 19th August 1993 on the above subject to confirm that we are seeking diplomatic immunity in this case.
2. I am also to reiterate that Mr Bastians' appointment terminated in accordance with our conditions of service. The issue therefore is not a subject of arbitration or litigation."

The Tribunal Decision

The Tribunal's Reasons for its decision on the preliminary issue that it had jurisdiction to hear the application may be summarised as follows:-(1) Immunity had been waived by the taking of a step in the proceedings namely, "by reason of the submission of a notice of appearance". The notice of appearance consisted of the documents forwarded to the Regional Office by the Foreign and Commonwealth Office at the request of the Nigerian High Commission in the Note dated 13th April 1993.(2) It was immaterial that the documents had not been sent to the Regional Office by the Universities Commission or the High Commission. It had been stated in the Note from the High Commission dated 13th April that the matters stated in the Note were "for transmission to the appropriate authority". That was sufficient authority for the Foreign and Commonwealth Office to forward the documents to the Regional Office on behalf of the Nigerian High Commission.(3) The Notice of Appearance forwarded by the Foreign and Commonwealth Office did not contain any claim to "diplomatic [sic] immunity". No point on immunity was taken until 12th August by which time it was too late because immunity had by then already been waived.The Tribunal made it clear in the concluding paragraph of the decision that other points were raised, including the point whether the Universities Commission was part of the High Commission and therefore enjoyed State immunity. The Tribunal did not consider any of the further points because counsel for the Universities Commission informed the Tribunal that he did not wish the Tribunal to consider any other issues.

The Submissions of the Universities Commission

The submissions on behalf of the Universities Commission on this appeal may be summarised as follows:-(1) No Notice of Appearance within the meaning of Rule 3(3) of the Rules of Procedure then in force (the 1985 Rules) had been given by or on behalf of the Universities Commission. The document relied on as constituting a Notice of Appearance or a step in the proceedings (the Note of 13th April 1993) was, like the Note from the Foreign and Commonwealth Office to which it responded, for information only.(2) In any case, the Foreign and Commonwealth Office had no authority to act as agent for the Nigerian High Commission or the Universities Commission for the purposes of entering a Notice of Appearance or taking a step in the proceedings.(3) There could be no waiver of immunity unless what was done was with full knowledge of all the relevant circumstances and no such knowledge could be attributed to the Government of Nigeria or its representatives.A further point based on a claim of public interest immunity for diplomatic communications was not pursued on the appeal.

Submissions for Mr Bastians

On behalf of Mr Bastians, Mr Lewis supported the decision of the Industrial Tribunal on a number of grounds based on the provisions of the State Immunity Act 1978, the 1985 Rules of Procedure and the findings of fact made by the Tribunal. He submitted that the Tribunal correctly held that a Notice of Appearance had been entered, that that was a step in the proceedings and that any State immunity which might exist had been waived. He made the following particular points:-(1) If immunity was to be claimed, it was unnecessary for the Universities Commission or High Commission on its behalf to respond to the proceedings in any way, save only for the purpose of claiming immunity.(2) A response was in fact submitted to the Regional Office within the relevant time limits which are agreed to be 2 months and 14 days after 1st April 1993, as required by S.12 of the State Immunity Act 1978.(3) The fact that the printed form IT3 was not completed or signed does not prevent the response in fact made by the Nigerian High Commission from being a Notice of Appearance or a step in the proceedings. A response was made on the merits in the Note to the Foreign and Commonwealth Office "for transmission to the appropriate authority". That could only be the Regional Office. The response set out particulars of the substantial reason why it was contended by the Nigerian High Commission that there had been no unfair dismissal. That was a challenge to the merits of Mr Bastians' case made without any objection to the jurisdiction of the Tribunal or any assertion of State immunity.(4) The Note of 13th April set out particulars of the grounds on which Mr Bastians claim would be resisted, in particular why there was no redundancy and no unfair dismissal. The assertion that the Note which contained these statements was "for information only" did not prevent it from being a document which gave particulars of the respects in which Mr Bastians' claim was challenged. That was a Notice of Appearance. The sending of it to the Regional Office was a step in the proceedings. The only reason why the Foreign and Commonwealth Office had stated in its Note of 11th March was "for information only" was that the Originating Application was in fact being served in Nigeria on the Nigerian Ministry of Foreign Affairs, not on its representative in London, The Nigerian High Commission. It was clear from S.2(7) of the State Immunity Act that the Nigerian Ministry of Foreign Affairs could, in responding to the case, act by the Diplomatic Head of the Mission in London.(5) No question arose as to the power of the Foreign and Commonwealth Office to act as agent for a foreign State in litigation in England. The Industrial Tribunal found as a fact that it was apparent from the document of 13th April that the Foreign and Commonwealth Office was acting, at the request of the Nigerian High Commission, as a conduit for passing on information to the appropriate authority, ie the Regional Office. The Foreign and Commonwealth Office duly acted as requested by forwarding the documents to the Regional Office. That was a submission to the jurisdiction.Mr Lewis raised a further point, which does not appear to have been raised before the Tribunal: that in the further correspondence between the Nigerian High Commission and the Regional Office directly in August 1993, the High Commission had taken a step in the proceedings and thereby submitted to the jurisdiction if they had not already done so.

Conclusions

For the reasons stated below, we have reached the conclusion that the Industrial Tribunal erred in law in holding that the Universities Commission had submitted to the jurisdiction by entering a Notice of Appearance and taking a step in the proceedings. The Tribunal misapplied to the facts of the case the provisions of Rule 3 of the Rules of Procedure and of sections 2(1) and 2(3)(b) of the State Immunity Act 1978.

Rule 3(1) provides -

"A respondent shall within 14 days of receiving the copy of originating application enter an appearance to the proceedings by presenting to the Secretary of the Tribunals a written notice of appearance setting out his full name and address and stating whether or not he intends to resist the application and, if so, setting out sufficient particulars to show on what grounds. ..."
Section 2 of the State Immunity Act 1978 deals with submission to the jurisdiction. The material parts provide as follows:-
"(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
...

(3) A State is deemed to have submitted

(b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings."(7) The Head of a State's Diplomatic Mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings ..."The Industrial Tribunal misapplied those provisions in the following respects.(1) Submission to the jurisdiction may take place in two ways: first, by express submission, such as where the foreign State serves a defence in civil proceedings or enters an unconditional notice of appearance in proceedings before an Industrial Tribunal making no objection to the jurisdiction on the grounds of State immunity. Submission to the jurisdiction may also occur if the foreign State takes any step in the proceedings, save for the purpose of claiming immunity from them. The service of a defence or the taking of any other steps to defend the case on the merits would normally be construed as a submission to the jurisdiction.(2) The main act relied upon to constitute a submission to the jurisdiction is the sending by the Foreign and Commonwealth Office to the Regional Office of the blank IT3 and the Note of 13th April sent by the Nigerian High Commission to the Foreign and Commonwealth Office "for transmission to the appropriate authority." We are unable to agree with the Industrial Tribunal that these documents constituted a Notice of Appearance or that the sending of them was a step in the proceedings. The form IT3 returned by the Nigerian High Commission to the Foreign and Commonwealth Office was left as blank as when originally sent by the Regional Office to the Foreign and Commonwealth Office. It is true that it is not necessary, in order to comply with the Rules of Procedure, to use the printed form IT3. But a Notice of Appearance, in order to comply with Rule 3(1), must have certain characteristics. It must be in writing, set out the respondent's full name and address, state whether or not he intends to resist the application and, if so, set out sufficient particulars to show on what grounds. The Note sent by the Nigerian High Commission to the Foreign and Commonwealth Office and then forwarded to the Regional Office does not give the address of the Nigerian High Commission or the Universities Commission and, more important, it does not state whether the Universities Commission or the High Commission intends to resist the application. It is true that the Note contains a statement of the reasons why Mr Bastians' appointment as an accountant was terminated and the comment that his claim of unfair dismissal for no reasons given is "grossly incorrect". This is, however, a diplomatic communication between representatives of sovereign States in which the representative of one State explains to the other the conduct of which complaint has been made. The Note does not read as a statement of grounds of intended resistance to a claim made in legal proceedings. The fact that the Note is "for transmission to the appropriate authority" does not, in our view, change what is essentially a diplomatic communication into a notice of appearance which satisfies the requirements of Rule 3(1) of the Rules of Procedure or make it otherwise a submission to the jurisdiction. A communication of this kind through diplomatic channels does not become a notice of appearance presented to the Secretary of Tribunals simply because it contains comments on the allegations in the Originating Application. It is true that a person may enter a notice of appearance to the Industrial Tribunal on behalf of another but, in our view, the Foreign and Commonwealth Office, in forwarding the blank IT3 and a copy of the Note was neither entering a notice of appearance to the Tribunal on behalf of the Universities Commission nor was it taking any other steps in the proceedings on its behalf. The Foreign and Commonwealth Office was transmitting the Note as requested.(3) We also reject the alternative argument advanced on the appeal, though not before the Industrial Tribunal, that, if there was no submission to the jurisdiction when the Note was forwarded to the Regional Office, there was submission to the jurisdiction by the Nigerian High Commission in its correspondence directly with that office in August 1993. When that correspondence is read as a whole, it becomes clear that the purpose and effect of the relevant letters was to inform the Industrial Tribunal, when it was attempting to list the case for hearing, that an objection was taken to jurisdiction of the Tribunal on the grounds of immunity. The relevant letters could have been worded more carefully, but, in our view, the purpose and meaning of them is clear: the jurisdiction of the Industrial Tribunal was challenged on immunity grounds.We understand the reasons why the Tribunal came to its decision. We recognise that, in this difficult area of law, there was much to be said on each side. We have, however, reached the clear conclusion that it is not legally correct to conclude that the Universities Commission submitted to the jurisdiction. The appeal will therefore be allowed and the matter is remitted to the Industrial Tribunal to hear the arguments as to whether the Universities Commission is entitled to rely on State immunity.