Attorney General v Nissan
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE WINN |
| Judgment Date | 29 June 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0629-1 |
| Date | 29 June 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0629-1
In The Supreme Court of Judicature
The Court of Appeal
Civil Division.
From Mr Justice John Stephenson
The Master of The Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Winn
MR P. GOODENDAY (instructed by Messrs Edwin Coe & Calder Woods) appeared as Counsel for the Appellant.
MR H.A.P. FISHER, Q.C. and MR NIGEL BRIDGE (instructed by the Treasury Solicitor) appeared as Counsel for the Respondent.
Mr Nissan is a British subject living in Cyprus. From 1958 onwards he has had a luxury hotel on the outskirts of Nicosia. It was called the Comaro Hotel. He ran it himself and had a private flat in it. Towards the end of 1955 there was civil strife in Cyprus between the Greek and Turkish communities. British troops were used to restore peace. They formed part of a "Truce Force". On the 29th December, 1963, a contingent took possession of the Cornaro Hotel (except Mr Nissan's private flat). It was used at first as Headquarters of the Truce Force and later for other British troops. On the 27th March, 1964, the United Nations set up a peacekeeping force in Cyprus. The British troops became part of the "United Nations Force". Thenceforward they occupied the Cornaro Hotel as a contingent of the United Nations Force, On the 5th May, 1964, they were relieved by Finnish troops, and did not occupy it again. Mr Nissan claims that he is entitled to compensation from Her Majesty's Government for the period that the British troops occupied his hotel. He also alleges that in the latter part of their occupation the British troops broke into his private flat and looted its contents. This is denied.
There is one further matter which I must state: Mr Nissan alleges that on the very day when the British troops occupied his hotel, 29th December, 1963, he had an interview with Sir Arthur Clark, the British High Commissioner in Cyprus, and that present at the interview was the Secretary of State for Commonwealth Relations, the Rt. Hon. Duncan Sandys, M.P. Mr Nissan alleges that at that interview the High Commissioner expressly undertook that Mr Nissan would be compensated so that he would suffer no loss in respect of the occupation of his hotel: and that Mr Duncan Sandys acquiesced in what the High. Commissioner saidt Mr Nissan's allegations are denied.
The British Government take exception to all the claims of Mr Nissan. They say that they have no foundation in law. The parties havo agreed that this should be decided as a preliminaryissue before the facts are investigated. I never like deciding points of law before knowing the facts. Experience has taught me that a correct decision of any case depends on a true appreciation of the facts. But there it is. The parties have agreed it: and the Master has ordered it.
The Truce Force
At the time of these events Cyprus was an independent Republic. Prior to 1960 Cyprus was a Crown Colony. But in 1960 the Cyprus Act 1960 declared that "there shall be established in the Island of Cyprus an independent Sovereign Republic of Cyprus and Her Majesty shall have no sovereignty or jurisdiction over the Republic of Cyprus". The Republic became and is a member of the Commonwealth.
In December 1963 there was strife in Cyprus. On the 24th December, 1963, an appeal was made for a cease-fire. It was made by the Governments of the United Kingdom, Greece and Turkey in these terms: "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 Christmas day, 25th December, 1963, the Government of Cyprus accepted that offer and issued this 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".
On Boxing Day, 26th December, 1963, the Truce Force wasestablished under British Command. Its task was to assist the Cyprus Government in its effort to secure the preservation of cease-fire and the restoration of peace. On the 29th December, 1963, British troops took possession of the Cornaro Hotel and used it as headquarters of the Truce Force.
The Crown suggests that, in taking possession, the Truce Force and the British troops therein were agents of the Cyprus Government. I cannot accept this contention. I agree with all the Judge said about it. The British troops were acting in accord with the Cyprus Government, but they were not agents of the Cyprus Government. They were and remained British troops under British Command. They were soldiers of the Queen helping to keep the peace in a country of the Commonwealth.
Act of State
The Crown say that the acts of the British troops are acts of State not cognizable by the English Courts. The words "act of State" are used to denote different things at different times.
First:
When British troops act as the servants or agents of a foreign power, they are protected in our Courts by the defence of an act of State, i.e. that of the foreign State. Thus, when Admiral Napier was in the service of the Queen of Portugal, and seized a British ship - and it was lawfully condemned as prize by the Courts of Portugal - he was held not to be liable in the English Courts for his actions, see Dobree v. Napier (1836) 2 Bing. N.C. p. 781. And when Captain Carr of N.H.S. "Lapwing" stopped a British ship in the territorial waters of Muscat and seized munitions of war - and his action was proclaimed lawful by the Sultan of Muscat - Captain Carr was held not liable in these Courts, see Carr v. Francis Times, 1902 A.C. p. 176. Those cases are applicable here if and in so far as the British troops were acting as agents of the Cyprus Government or of the United Nations.
Second: When the British Government acquires property or territory by treaty,by treaty, annexation or conquest, it cannot be made liable for the consequences. If anyone seeks to sue the British Government and has to rely on the treaty, annexation, or conquest to found his cause of action, he fails on the simple ground that; it is an act of State not cognizable in the Municipal Courts. Thus, in Cook v. Sprigg, 1899 A.C. p. 572, a British subject had a concession from the ruler of Pondoland. That territory was annexed by South Africa on behalf of the Crown. He sued the Premier of South Africa claiming that the concession was binding on the Crown. He failed because the annexation was an act of State, Likewise the cases where peop'e have laid claims to funds received by the Crown under treaty. Their claims have been rejected because they are not cognizable in the Courts, see Rustomjee v. The Queen (1876) 2 Q.B.D. p. 69, Civilian War Claimants v. The King, 1932 A.C. p. 14. Those cases have no application here because Mr Nissan does not base his claim - he does not need to base it - on any treaty or the like. He bases it simply on a taking by British troops.
Third: When British troops take or destroy the property of a foreigner in a territory outside Her Majesty's Dominions, the foreigner cannot sue for damages in the English Courts. He must seek redress through his own Government by diplomatic channels. That was established by the celebrated case of Buron v. Penman, (1848) 2 Exch. p. 167. Commander Denman of the Royal Navy (the son of Lord Denman, Chief Justice) was engaged in putting down the slave trade. He landed at the Gallinas with an armed force. He set fire to the property of Senor Buron, a Spaniard, and freed the slaves. Senor Buron sued Commander Denman for trespass. Baron Parke said (at page 190) that "The seizure of the slaves and goods by the defendant is a seizure by the Crown and an act of State for which the defendant is irresponsible".
That case is not applicable here. Mr Nissan was not a foreigner like Senor Buron. He was a British subject. As such he had rights equal to those of anyone born in England ofancient stock. He owed allegiance to the Crown: and correspondingly was entitled to the protection of the Crown, wherever he might be. If injured by the Crown or its servants, he was entitled to seek redress in the Queen's Courts without being met by the defence of act of State. That was stated explicitly by Sir James Fitzjames Stephen in his History of the Criminal Law, Vol.11, p. 65: "As between the Sovereign and his subjects there can be no such thing as an act of State". This proposition was accepted in Walker v. Baird, 1892 A.C. p. 491. Captain Walker, R.N., of H.M.S. "Emerald", was on fishery patrol on the Newfoundland fisheries. He seized Baird's lobster factory and the gear in it. He set up the defence of act of State. But Baird was a British subject. The Privy Council said that the suggestion that the act of Captain Walker could be justified as act of State "is wholly untenable". Following that case, the House of Lords in Johnstone v. Pedlar, 1921, 2 A.C., p. 262, declared emphatically that. "This doctrine (of act of State) has no application to any case where the plaintiff is a British subject", see by Viscount Finley at p. 272 and by Lord Phillimore at p. 295. The authorities are summarised in Salmond on Torts, 14th Edition at p. 607, in these words: "A British subject owes allegiance to the Crown in whatever...
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