Attorney General v Nissan
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Wilberforce,Lord Pearson |
| Judgment Date | 11 February 1969 |
| Judgment citation (vLex) | [1969] UKHL J0211-1 |
| Court | House of Lords |
| Date | 11 February 1969 |
[1969] UKHL J0211-1
Lord Reid
Lord Morris of Borth-y-Gest
Lord Pearce
Lord Wilberforce
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Attorney-General against Nissan, et è contra, that the Committee had heard Counsel, as well on Monday the 28th, Tuesday the 29th and Thursday the 31st, days of October last, as on Monday the 4th, Tuesday the 5th, Wednesday the 6th, Thursday the 7th and Monday the 11th, days of November last, upon the Petition and Appeal of Her Majesty's Attorney-General, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 29th of June 1967, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of Naim Nissan, of Famagusta, Cyprus, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 29th of June 1967, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be varied or altered, and that the Petitioner might have the relief prayed for in the Cross Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Naim Nissan; and also upon the Case of Her Majesty's Attorney-General, lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Original Petition and Appeal be, and the same is hereby Dismissed this House: And it is further Ordered, That the Appellant in the Original Appeal do pay, or cause to be paid, to the said Respondent in the Original Appeal the costs incurred by him in respect of the said Original Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is further Ordered, That that part of the said Order of Her Majesty's Court of Appeal, of the 29th day of June 1967, complained of in the said Cross Appeal, be, and the same is hereby, Reversed: And it is hereby Declared, That ( First) upon the facts pleaded in paragraph 5 and the first sentence of paragraph 6 of the Defence the last sentence of the said paragraph 6 does not disclose a defence to any of the claims and causes of action pleaded by the plaintiff in respect of events occurring on and after the 27th day of March 1964; but that ( Second) upon the facts so pleaded, and the admitted facts that the hotel was evacuated by the British forces on the 5th day of May 1964, and was from that date onwards occupied by Finnish and other non-British forces, unless the plaintiff is able to establish a contractual liability. Her Majesty's Government has no liability to the plaintiff in respect of the continued occupation and use of the hotel and its equipment and stores from the 5th day of May 1964 onwards: And it is further Ordered, That the Respondent in the Cross Appeal do pay, or cause to be paid, to the said Appellant in the Cross Appeal the Costs incurred by him in the Court of Appeal and also the Costs incurred by him in respect of the said Cross Appeal to this House, the amount of such last mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.
My Lords,
The Respondent is a British subject being a citizen of the United Kingdom and Colonies. In 1963 he was the tenant of the Cornaro Hotel near Nicosia in Cyprus. On 29th December 1963 British forces then operating in Cyprus took possession of his hotel. The British Government have refused to pay him compensation and he has brought the present action. The parties agreed that an Order should be made for the decision of questions of law as a preliminary issue before the trial. On 27th October 1966 an Order was made as follows:
"1. That the following questions of law raised by the pleadings herein be decided as a preliminary issue before the trial of the action:—
( a) Whether, upon the facts pleaded in paragraphs 3 and 5 and in the first sentences of paragraphs 4 and 6 respectively of the Defence, all or any, and if some only which, of the claims and causes of action pleaded in the Statement of Claim are sustainable in law;
( b) Whether, upon the facts pleaded in paragraph 3 and the first sentence of paragraph 4 of the Defence, the last two sentences of the said paragraph 4 disclose a good defence in law to all or any, and if to some only then to which, of the claims and causes of action pleaded by the Plaintiff in respect of events occurring between the 26th December 1963 and the 27th March 1964; and
( c) Whether, upon the facts pleaded in paragraph 5 and the first sentence of paragraph 6 of the Defence, the last sentence of the said paragraph 6 discloses a good defence in law to all or any, and if to some only then to which, of the claims and causes of action pleaded by the Plaintiff in respect of events occurring on and after the 27th March 1964.
2. That the Defendant in the action be plaintiff in the Preliminary issue."
The parts of the defence referred to in the Order are as follows:
"3. As a result of civil strife between the Greek and Turkish communities in the Republic of Cyprus in December 1963 the Governments of the United Kingdom, Greece and Turkey on the 24th December 1963 addressed the following appeal and offer of good offices to the Cyprus Government.
"The British, Greek and Turkish Governments, as signatories of the Treaty of Guarantee of 1960, jointly appeal to the Government of Cyprus and to the Greek and Turkish communities in the Island to put an end to the present disorders. They appeal to the Cyprus Government to fix a suitable hour this evening for a cease-fire and to call upon both communities to observe it.
The three Governments mindful of the rule of law further offer their joint good offices with a view to helping to resolve the difficulties which have given rise to the present situation."
On the 25th December 1963 the Cyprus Government issued the following communique:
"The Government of the Republic of Cyprus has accepted an offer that the forces of the United Kingdom. Greece and Turkey, stationed in Cyprus and placed under British command, should assist it in its effort to secure the preservation of cease-fire and the restoration of peace."
4. The relevant British forces operating in the Republic of Cyprus between the 26th December 1963 and the 27th March 1964 were part of the force under British command assisting the Cyprus Government in its effort to secure the preservation of cease-fire and the restoration of peace pursuant to the agreement recorded in the said communique, which is hereinafter referred to as 'The Truce Force'. In the premises the Truce Force and the British elements comprised therein were agents of the Cyprus Government and the actions of the Truce Force were Acts of State of the Cyprus Government which are not cognizable by this Honourable Court. Alternatively the actions of the British element were Acts of State of Her Majesty on the territory of an independent sovereign power performed in pursuance of an agreement between Her Majesty and the said power which equally are not so cognizable.
5. On the 4th March 1964 the Security Council of the United Nations recommended the creation, with the consent of the Cyprus Government, of a United Nations Peace-Keeping Force in Cyprus. By a letter of the 4th March 1964 the Foreign Minister of Cyprus informed the Secretary General of the consent of the Cyprus Government to the creation of the said Force. The said Force was established on the 27th March 1964. The terms of an Agreement concerning the Legal Status of the said Force were set out in a letter from the Secretary General to the Foreign Minister of Cyprus dated the 31st March 1964. The Agreement was by its terms deemed to have taken effect from the date of the arrival of the first element of the said Force in Cyprus (27th March 1964) and was ratified by Law No. 29 of 1964 of the Republic of Cyprus. The Defendant will refer to the Agreement for its full term and effect.
6. The British forces operating in the Republic of Cyprus from and after the 27th March 1964 were contingents of the United Nations Force aforesaid. In the premises no action lies against the Crown in respect of any of the actions of the said forces."
The first question which arises is whether these facts show that the British forces were acting as agents of the Cyprus Government when they took possession of the Respondent's hotel, so as to make their action the act of the Cyprus Government. I do not think that that is a necessary or even a reasonable inference from these facts. The Cyprus Government did not ask the British Government to send military aid. The British Government offered to send their forces and the Cyprus Government accepted that offer. The British forces were to act under British Command, and there is no suggestion that the Cyprus Government had any control over them, or responsibility for them, or were under any obligation to pay for their services. They were to assist the Cyprus Government, so no doubt there would be consultation as to the best manner of rendering assistance. But the British Government had their own interest in...
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