The Federal Republic Of Nigeria v Ogbonna (Jurisdictional Points : State immunity) [2011] UKEAT 0585_10_1207

EAT
The Federal Republic Of Nigeria v Ogbonna (Jurisdictional Points : State immunity)
[2011] UKEAT 0585_10_1207 · 2011-07-12
[1]The Claimant in these proceedings worked in the Nigerian High Commission. Her employer was the Federal Republic of Nigeria. In late 2008 her daughter became ill. She asked for and was granted, though she says only with reluctance and after she had been made to “beg”, time off to look after her. She returned to work in late January 2009 but on 4 February she was summarily dismissed, ostensibly as part of a staff rationalisation. She believed that the real reason for her dismissal was that she had sought time off.[2]The Claimant brought proceedings in the Employment Tribunal against the Republic claiming that she had been unfairly dismissed but also that her dismissal constituted discrimination on the grounds of her daughter’s disability - in other words that this was a case of so‑called “associative discrimination”: see EBR Attridge Law v Coleman (no. 2) [2010] ICR 242 . It is her case that her treatment has caused harm to both her physical and her mental health. So far as the former is concerned, it has, she pleads, caused a recurrence of sciatica from which she has suffered in the past. As for the latter, she says that she developed depression for which she has been treated by sessions of cognitive behavioural therapy. These symptoms and their claimed relationship to her dismissal remain to be proved.[3]The Republic claimed state immunity pursuant to the State Immunity Act 1978 . I should set out the relevant provisions of the Act. They are as follows:
“1 General immunity from jurisdiction (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. (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. […] 4 Contracts of employment (1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. (2) – (4) …. (6) In this section “proceedings relating to a contract of employment” includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee. 5 Personal injuries and damage to property E+W+S+N.I. A State is not immune as respects proceedings in respect of— (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom. […] 16 Excluded matters E+W+S+N.I. (1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and— (a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968; (b) section 6(1) above does not apply to proceedings concerning a State’s title to or its possession of property used for the purposes of a diplomatic mission. (2) – (5) …”
With regard to section 16, it is common ground that the Claimant was a member of a mission within the meaning of the Vienna Convention on Diplomatic Relations .[4]The Republic’s claim to immunity was determined by Employment Judge Walker at a Pre-Hearing Review held in the London Central Tribunal. By a Judgment with written Reasons sent to the parties on 19 July 2010, she held that the Republic was entitled to immunity in relation to the Claimant’s claim of unfair dismissal, which was accordingly dismissed; but that the disability discrimination claim constituted “proceedings in respect of … personal injury” within the meaning of section 5 to the extent of the claims for compensation for her sciatica and her depressive illness, and that state immunity did not apply to that extent. The Republic has appealed against that decision. It has been represented before me by Mr Emeka Pipi of counsel. The Claimant has been represented by Mr Harry Lambert of counsel.[5]The appeal originally came before me on 13 April this year. However, it was adjourned after I drew the attention of the parties to a decision of the Supreme Court of Canada, Schreiber v Canada (Attorney General) (2002) 216 DLR (4 th ) 513, and the international law materials there referred to, which it was agreed needed further research. At this restored hearing I have not in the event needed to hear from Mr Lambert, but I am nonetheless grateful to him for his careful and helpful written submissions and the attached materials.[6]The Judge reached her decision in favour of the Claimant as regards the claim for disability discrimination on the basis that she was bound by the decision of this Tribunal, Keith J presiding, in Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker (EAT/1054/02). I should start by analysing what that case decided.(1) The claimant in Caramba‑Coker was a black employee at the Embassy of the State of Kuwait. He brought proceedings in the employment tribunal for wrongful dismissal and for racial discrimination. The Embassy did not initially make any claim to state immunity but nor did it appear before the Tribunal, which went on to award him the sum of £4,000 for racial discrimination. The Embassy then appealed, explicitly relying on state immunity. The claimant in his turn relied on section 5 of the 1978 Act. Both parties invited this Tribunal on the appeal to decide the issue of whether state immunity did indeed apply to the claim of racial discrimination.(2) In his Judgment, having noted the terms of the Race Relations Act 1976 referring to the award of compensation, and having referred to the decision of the Court of Appeal in Sheriff v Klyne Tugs (Lowestoft) Limited [1999] ICR 1170 , Keith J said this, at paragraph 16:
“Two consequences follow from that statement of the law. First, if the only claim for non‑pecuniary loss which Mr Caramba‑Coker made in his complaint of race discrimination was for injury to his feelings, that would not amount to a claim for compensation for personal injury. (Ms Cunningham argued otherwise. The fact that personal injury and injury to feelings are different concepts did not mean, so she contended, that personal injury could not include injury to feelings. We disagree. If injury to feelings cannot be claimed at common law save in actions for defamation or false imprisonment, whereas personal injury can be claimed, it follows that injury to feelings is not to be regarded as a species of personal injury.) Secondly, if Mr Caramba‑Coker was in fact claiming in his complaint of race discrimination damages for personal injury (as opposed to injury to feelings) such a claim comes within s.54(4) and would of course come within s.5 of the Act.” (The distinction there endorsed between personal injury on the one hand and injury to feelings on the other now has the authority of several decisions of this Tribunal and indeed the Court of Appeal.) (3) Keith J went on at paragraph 17 to read a passage from the statement annexed to the Claimant’s ET1, which read: “As a result of all this treatment I developed a medical condition which necessitated consulting my GP. The doctor said that I was under stress and he told me to take seven days sick leave starting on 27 September and thereafter he told me to get another two weeks off. Also as a result of this I developed irregular heartbeat, loss of sleep and total lack of confidence. I sent the medical certificates to the Chief of Military Affairs’ office which he did receive on regular intervals during my illness prior to the termination date. I confirmed that the medical certificates were received on time throughout.” (4) He then continued: “Thus, if his originating application was anything to go by his claim was not a claim for injury to feelings, i.e. the hurt which he felt about being treated differently from other employees because he was black. Mr Caramba‑Coker was claiming that he developed ‘a medical condition’ as a result of his treatment and a subsequent physical symptom was an irregular heartbeat. He was therefore claiming that he had suffered physical injury as a result of his treatment. He was also claiming that he was under stress which manifested itself in loss of sleep and loss of confidence. It is well established that personal injury encompasses psychiatric harm and Mr Caramba‑Coker was therefore claiming that he suffered psychiatric injury as a result of his dismissal. Accordingly it is said that Mr Caramba‑Coker’s complaint of race discrimination amount to ‘proceedings in respect of […] personal injury.’” (5) At paragraph 18, Keith J addressed an argument by counsel for the Embassy that “section 5 does not apply to causes of action in which personal injury is only an incidental consequence”, as opposed to a case where personal injury is “a direct consequence of the conduct complained of”, as in the case of a road traffic accident. As to that, he said “we see no warrant for putting that gloss on the plain language of section 5”. (6) That, however, was not the end of the matter. The tribunal’s award of £4,000 was for non‑pecuniary loss, but because it had not had in mind section 5, or indeed the issue of state immunity at all, it had made no distinction between personal injury, i.e. injury to physical or mental health, on the one hand and injury to feelings on the other. The relevant paragraphs of the Reasons were loosely worded and could be taken to apply to either or both. Thus, at paragraph 20 of his Judgment, Keith J said this: “20. We do not know what Mr Caramba-Coker’s evidence in the tribunal was. Thus, we do not know whether the award for injury to feelings was made because Mr Caramba-Coker’s evidence (as opposed to what he had said in the statement annexed to the originating application) related to the hurt he felt rather than the physical and psychiatric consequences of his treatment, or whether Mr Caramba-Coker’s evidence was consistent with what he had said in the statement annexed to his originating application, so that the tribunal wrongly applied the label “injury to feelings” to that evidence. So far as Mr Caramba-Coker’s physical condition is concerned, we cannot tell whether the tribunal found that the ill health which Mr Caramba-Coker suffered from (“blood pressure and heart condition”) was a consequence of the treatment he had received or was a pre-existing condition unrelated to the treatment which he had received. So far as his mental state is concerned, we cannot tell whether the tribunal considered whether the “emotional shock” which he experienced and the “unpleasant memories and emotional upset” which he underwent as a result of his treatment amounted to psychiatric harm or injury to feelings. This last point is not surprising. If the tribunal was not considering the issue of state immunity, it would not have had its attention brought to section 5 of the 1978 Act, and the need to distinguish between personal injury and injury to feelings.” (7) Accordingly it was judged necessary to remit the case to the Employment Tribunal in order to decide, as it is put at paragraph 26 of the Judgment: “…whether Mr Caramba‑Coker’s complaint of race discrimination amounted to ‘proceedings in respect of […] personal injury’ within the meaning of s.5 of the 1978 Act.”
[7]It is perfectly clear from that reasoning taken as a whole that this Tribunal in Caramba‑Coker decided as a matter of ratio(a) that any claim for compensation for personal injury fell within the terms of section 5 notwithstanding that it was consequent on a discrimination claim, and(b) that in this context a claim of mental ill-health caused by the discrimination complained of constituted a claim for “personal injury”. The decision would seem therefore on its face clearly to apply to the circumstances of the present case. The Judge was right to hold that she was bound by it. I am of course not so bound, and Mr Pipi submitted that the section 5 point was only fairly briefly dealt with in Keith J’s Judgment and that it did not seem that it had been very fully argued. I accept that; but my starting-point must nevertheless be, on ordinary principles, that I should not depart from Caramba‑Coker unless I am satisfied that it was wrong.[8]I turn to consider the Republic’s grounds of appeal. There were originally two grounds pleaded, but Mr Pipi has applied to add a third as a result of consideration of the decision in Schreiber to which I have already referred. In his succinct and clear oral submissions he has reformulated his points under six headings, but I think it is best to stick to the pleaded formulation though I will ensure that in addressing that I cover the points which he made orally.[9]I should first deal with a point which he made by way of preliminary, describing it as his over-arching submission, namely that section 5 of the 1978 Act should be interpreted so as to be in harmony with, and achieve the purpose and rationale of, state immunity under international law. He referred in particular to the cases of Sengupta v Republic of India [1983] ICR 221 and Republic of Yemen v Aziz [2005] EWCA Civ 745 , which he said established the principle that:
“Any investigation by the Employment Tribunal whether in relation to unfair dismissal, unlawful discrimination or anything else which involves investigation into the internal workings or management of a mission is disrespectful to the mission and therefore ought to be protected by state immunity”
. But the position is that the general immunity granted under the 1978 Act is on any view subject to the exceptions provided for in sections 4 and 5, and to the extent that those exceptions apply Mr Pipi’s over-arching submission cannot supply the answer to the case.[10]I turn then to the first ground of appeal, which is that Caramba‑Coker is not in truth authority for any general proposition of law, because the case was not decided by this Tribunal but was remitted to the employment tribunal for determination of the issue specified. With respect, that submission misunderstands the basis on which remittal was ordered. As I have made clear above, the case was remitted to the tribunal because it was unclear from its reasoning whether it had in truth intended to find that the claimant had suffered an injury to his health (mental or physical) or only that he had suffered injury to his feelings. So far from undermining the proposition that section 5 applies to claims for injury to mental health, that reasoning is in fact a particularly clear illustration of its effect.[11]The second ground of appeal seems on analysis to have two limbs to it, which I will consider in turn.[12]The first point, as helpfully elucidated by Mr Pipi in his skeleton argument and oral submissions, is that the effect of sections 4 and 16 taken together is that a state enjoys absolute immunity in respect of “proceedings relating to a contract of employment” - which includes a claim of infringement of statutory rights: see section 4 (6) - in the case of employees who are members of a mission, and that section 5 has no application in such a case. I cannot accept this submission. Sections 4 and 5 are separate and freestanding exceptions to the general rule of state immunity provided by section 1: that is so even though on the facts of a particular case, and specifically in a case of a claim for personal injury by an employee, both exceptions might be engaged. Section 16 (1) (a) expressly qualifies that exception as regards section 4 but it has no impact on section 5.[13]The second limb of the second ground in the Notice of Appeal is that the Claimant’s claim for personal injury is “ancillary to” her claim of disability discrimination and can thus only be advanced if and to the extent that that claim is not caught by state immunity, which Mr Pipi submits it plainly is because she was a member of a mission and so fell within the terms of section 16 (1) (a). This argument seems to be in substance the same as that which was considered and rejected by this Tribunal in Caramba‑Coker : see paragraph 18 of the judgment, quoted at paragraph 6 (5) above. I should therefore reject the submission unless I am sure it is right. That is not the case. I am in fact not sure what “ancillary” means in this context. “Personal injury” is not the name of a discrete wrong or cause of action (indeed Mr Pipi himself made that point in a different context); rather, it is a description of one of the kinds of harm that may be done by a number of different kinds of unlawful act, such as negligence, breach of contract, breach of statutory duty or discrimination. (I note in passing that that is why the heading of section 11 of the Limitation Act 1980 - “Actions in respect of personal injuries” - has to be spelt out in the text of the section as “any action for damages for … [various specified wrongs] … where the damages claimed … consist of or include damages in respect of personal injuries …”.) I accept that in a discrimination claim personal injury is not a necessary - or even, it may be, a particularly typical - part of the claim: the most typical consequences of acts of unlawful discrimination are injury to feelings and/or pecuniary loss. But I do not see why, when personal injury occurs, it is to be regarded as “ancillary”, rather than simply being the form, or one of the forms, which the loss caused by the discrimination has taken in that particular case.[14]I turn to the Republic’s third ground of appeal. This is that, whatever might be its meaning in a purely domestic context (where Mr Pipi sensibly conceded that it was apt to cover cases of injury to mental health), the phrase “personal injury” should be interpreted as it would be understood as a matter of international law; and that as matter of international law a claim for compensation for harm to a claimant’s mental health would be regarded as a claim for personal injuries if, but only if, it was consequent on a physical injury in the sense of some damage to the body as opposed to the mind. Mr Pipi says that that is what was decided by the Supreme Court of Canada in Schreiber and that the Court expressly based its conclusion, at least to some extent, on the international jurisprudence. 15. I have no difficulty with the proposition that the 1978 Act generally, and section 5 in particular, should be construed so far as possible to conform to any recognised international norm. That is because, although the Act was not passed specifically to give effect to a treaty obligation, it was nevertheless, as appears from the speech of the Lord Chancellor introducing the bill in the House of Lords, intended to conform, at least in the relevant respects, to the terms of the European Convention on State Immunity (which was opened for signature in 1972, albeit not signed by the United Kingdom at that time). In fact the point goes further, in that in the relevant respects the terms of the Convention were subsequently adopted by the United Nations Convention on Jurisdictional Immunities of States and their Property . But the question is whether the relevant Conventions or the commentaries on them give any support for the construction of the phrase “personal injuries” which Mr Pipi advances. I do not believe that they do. I will take the relevant materials in turn.[16]I start with article 11 of the European Convention. That reads simply as follows:
“A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasion the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.”
That provision by itself seems to me to cast no relevant light on the question before me. The phrase “injury to the person”, or “ préjudice corporel ” in the French text (which is of equal authority), seems to me perfectly apt to cover cases of injury to mental health, though I accept that it does not necessarily do so.[17]I turn to the explanatory report on the European Convention promulgated by the Council of Europe. Article 11 is the subject of paragraphs 47-49 of the commentary. I need only quote paragraph 48, which reads as follows:
“Where there has been injury to the person or damage to property, the rule of non‑immunity applies equally to any concomitant claims for non‑material damage resulting from the same acts, provided of course that a claim for such damage lies under the applicable law (e.g. in respect of pretium doloris ). Where there has been no physical injury and no damage to tangible property the Article does not apply. This is the case, for example, as regards unfair competition […] or defamation.”
Mr Pipi relies on the statement that “where there has been no physical injury … the Article does not apply”, but I cannot place any real weight on that statement in the context in which it appears. I am ready to accept that the phrase “physical injury”, read literally, refers more naturally to bodily than mental harm, but it does not appear that the authors were concerned with the distinction between injury to physical and mental health. Rather, as is clear from the concluding sentence, they were concerned with the distinction between injury to the person on the one hand and such other forms of injury as damage to economic interests or to reputation on the other.[18]The next item to which Mr Pipi refers consists of the Report of the International Law Commission on the work of its 43 rd session, which laid the foundations for the United Nations Convention. Article 12 of that Convention is in substantially the same terms as article 11 of the European Convention. In its commentary on article 12 the Report says at paragraph (5):
“Article 12 does not cover cases where there is no physical damage. Damage to reputation or defamation is not personal injury in the physical sense, nor is interference with contract rights or any rights including economic or social rights damage to tangible property.”
I would make the same observations about that passage as I do about the commentary on article 11 in the explanatory report on the European Convention: see above.[19]Mr Pipi also relied on two passages from The Law of State Immunity by Lady Fox. He referred me to passages in the second edition at pages 281 and 577. At page 281 Lady Fox says, by reference to section 5 of the 1978 Act:
“The limitation to torts causing physical damage reflects the general reluctance of states to adjudicate on statements made by other states where and however published and whether malicious or negligent.”
The passage at page 577, commenting on article 12 of the United Nations Convention, says this:
“The tortious conduct covered by this exception is confined to acts causing physical damage to the person or property; damage resulting from words spoken or written remains immune.”
But, again, Lady Fox was concerned there to draw a distinction between physical damage on the one hand and damages, to other interests, in particular to reputation, on the other. She was not addressing the question of whether personal injury could include damage to mental health, and the use of the phrase “physical injury” cannot fairly be read to be expressing a view on that question.[20]I should, though it is a slight digression, refer here to a point made by Mr Lambert in his skeleton argument where he quotes another passage from Lady Fox’s work in which she says at page 572, in relation to the United Nations Convention:
“Mental pain and suffering is not expressly mentioned as included in the injury recoverable under this exception. Its including would depend on the scope of the municipal law cause of action relied on the civil proceedings rendered non‑immune by the exception.”
That also, however, seems to me to be addressing a separate point - namely whether, if a “non‑immune” claim is successful, mental pain and suffering - which I understand her to be distinguishing from physical or mental injury - can be recovered for as part of the consequences of that claim. What she says seems, with respect, to be entirely right, but it is not central to the issue before me.[21]In sum, I find nothing in the international law materials which supports Mr Pipi’s submission that there is a recognised meaning in international law to the phrase “personal injury” which is more limited than the natural meaning of those words in domestic law.[22]Having reached that point, the decision of the Supreme Court of Canada in Schreiber is of essentially secondary interest: it was primarily useful as a way in to the international materials. However, Mr Pipi says that the decision of the Court is itself, insofar as it is based on a view of the effect of international law, a source of that law and that I should take it into account. I should therefore say a little about it.[23]The plaintiff in Schreiber was arrested by the Canadian police and detained for over a week under a warrant issued in accordance with the extradition treaty in force between Canada and the Federal Republic of Germany. It was his case that there was no proper basis for the issue of the warrant. He brought proceedings against Germany in the courts of Ontario alleging various causes of action and claiming that he had suffered “mental distress, denial of liberty and damage to reputation” (see paragraph 28), which were collectively characterised as “personal injury” (see paragraph 4). The relevant Canadian statute, the State Immunity Act, contained a provision, section 6, disapplying the normal immunity rule in the case of “any proceedings that relate to … any death or personal injury … that occurs in Canada”. One of the issues before the Court was whether that provision applied to injuries of the kind pleaded by the plaintiff. The Supreme Court upheld the decision of the Court of Appeal for Ontario that they did not, and specifically that “the scope of the exception … is limited to instances where mental distress and emotional upset were linked to a physical injury” - see paragraph 42. Mr Justice Le Bel, who gave the Judgment of the Court, relied to a considerable extent on Canadian case law, which appears, unlike English law, to treat the phrase “personal injury” as referring only to bodily injury. He did, however, say that his conclusion was consistent with “international law sources”, and at paragraph 47 of his Judgment he drew attention to the passages from the Year Book of the International Law Commission and the explanatory report on the European Convention to which I have already referred above.[24]I do not believe that the Supreme Court in Schreiber was in fact concerned with the same question as arises on this appeal. As I have noted, the “personal injuries” claimed by the plaintiff consisted of “mental distress, denial of liberty and damage to reputation”. The latter two components are on any view irrelevant; and the first, “mental distress”, naturally connotes distress or injury falling short of, and distinct from, any psychiatric injury. The Court was not therefore faced with a case like the present, where the claimant asserts that the state defendant has injured his or her mental health. The decision that a claim of personal injury required a physical injury must be read in that light. There are in fact some indications - falling short, I accept, of any ruling - that the Court would have regarded “physical injury” as extending at least in some circumstances to an injury to mental health. I have in mind in particular paragraph 60: in a passage discussing the effect of the French text of the statute, which, like article 11 of the European Convention uses the phrase “ préjudice corporel ”, Mr Justice Le Bel says “this type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress”.[25]Even if, contrary to that view, Schreiber is to be read as excluding from the definition of personal injury in section 6 of the Canadian State Immunity Act any psychiatric injury which is unaccompanied by physical injury, I cannot regard that as persuasive authority, still less binding. The international materials referred to were only a small part of the Court’s reasoning for its conclusion; and for the reasons already given I do not believe that they justify the conclusion that the phrase “personal injury” has a recognised meaning in international law which would exclude psychiatric injury. Once that point is recognised, the decision is essentially one based on the Canadian case-law.[26]The point based on Schreiber was, as I have said, not part of the original Notice of Appeal and is sought to be introduced by way of amendment. This Tribunal has a strict approach to allowing new points, even points of pure law, to be taken for the first time on appeal, and if I thought that the point was a good one it might have been a nice question whether I should nevertheless have allowed permission to amend. In the event I do not regard it as a good point, and I refuse permission to amend on that basis.[27]I therefore agree, even after the fuller argument with which I have been favoured, with the conclusion of this Tribunal in Caramba‑Coker that there is no reason why the phrase “personal injury” should not be given its normal meaning in domestic law, which, as it is well recognised, is apt to cover cases of psychiatric as well as physical injury. Since that point is uncontroversial I need not refer to extensive authority. I mention only one of the cases cited by Mr Lambert, R v Dhaliwal [2006] 2 Cr App R 24, which reviews the authorities as regards both civil and criminal claims.[28]This is a result which I am glad to reach. Not only is the distinction urged on me by Mr Pipi one which would mean that the concept of personal injury in section 5 of the Act was different from its meaning elsewhere in English law but it would give rise to what would frequently be difficult, and frankly artificial, debates about the extent to which a particular injury in respect of which claim was made was physical or mental. The whole trend of recent authority has been to recognise that these kinds of distinction are difficult both conceptually and evidentially.[29]I accordingly dismiss this appeal.[30]I should note for completeness that in the interval between my decision and my correction of the transcript of the judgment, the judgment of the Grand Chamber of the European Court of Human Rights in Sabeh Leil v France [2011] IRLR 781 has been reported. That might possibly have provided additional grounds for dismissing the appeal, but I have taken no account of it.