Aziz v Aziz and Others, Sultan of Brunei intervening
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lawrence Collins,Lord Justice Sedley,Sir Anthony Clarke MR |
| Judgment Date | 11 July 2007 |
| Neutral Citation | [2007] EWCA Civ 712 |
| Docket Number | Case No: A2/2006/0120 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 2007 |
[2007] EWCA Civ 712
Sir Anthony Clarke Mr
Lord Justice Sedley and
Lord Justice Lawrence Collins
Case No: A2/2006/0120
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
MR JUSTICE GRAY AND MR JUSTICE UNDERHILL
HQ05X00091
Sir Frank Berman QC and Mr Neil Hart (instructed by SJ Berwin) and Mr Tim Taylor ( SJ Berwin) for the Intervener/Appellant
Sir Michael Wood (Advocate to the Court) (instructed by HM Treasury Solicitor)
Mr Max Mallin (instructed by Davenport Lyons) for the Claimant
Mrs Aviva Amir in person
Hearing date: June 11, 2007
Judgement
I Introduction
This is an extraordinary case. The claimant, Mariam Aziz, met the tenth (and main) defendant, Mrs Aviva Amir, at a casino in 2003. Mrs Amir is a fortune-teller born in Iraq, but now of Israeli nationality. The claimant came to regard Mrs Amir as a trusted friend and confidant. In early 2004 Mrs Amir purported to introduce the claimant over the telephone to a gentleman called Mr Aziz. The claimant and Mr Aziz never met, but over the following months they developed what appeared to be a close relationship conducted by telephone and text message, and involving exchanges of gifts. Between May and November 2004 the claimant made bank transfers totalling over £1 million which were intended for Mr Aziz, as well as payments of more than £1 million in cash via Mrs Amir's driver. The claimant in the summer of 2004 recorded for Mr Aziz, and had delivered (as she believed) to him, two audio cassette tapes containing material of a confidential nature.
Although Mr Aziz was originally named as first defendant it became the claimant's case that Mr Aziz never existed and that the other party to most, if not all, of her telephone and text message exchanges was in fact Mrs Amir, using an assumed voice on the telephone, and that it was Mrs Amir who had the benefit of the £2 million and who had possession of the cassettes. Mr Aziz was named as first defendant but he has never been traced or served. After a trial in 2006, Underhill J found for the claimant against Mrs Amir, and ordered return of the payments and awarded damages in relation to the value of the gifts.
The second unusual aspect of the case (and which gives rise to the present appeal) is that the claimant is the former wife of HM the Sultan of Brunei (“the Sultan”), from whom she was divorced in February 2003.
The status of the Sultan first arose in connection with a committal application by the claimant against Mrs Amir, which was heard before Gray J in November 2005. Early in the proceedings an order was made anonymising them, and interlocutory orders were made prohibiting Mrs Amir from disclosing the confidential information on the audio cassettes. The claimant alleged (inter alia) that, in breach of these orders, Mrs Amir, in the course of a meeting with the Sultan's representative, Pengiran Yusof (“Mr Yusof”), had disclosed to him information which was likely to lead to the identification of the claimant as a party to the action, and had disclosed to him the nature of the tape recorded information; and also that what was said by Mrs Amir at her meeting with Mr Yusof amounted to improper pressure directed at the claimant to withdraw the proceedings, in particular by threatening to reveal confidential information said to have been supplied by the claimant about her married life with the Sultan.
The Sultan, relying on his status as a foreign head of state, sought directions preventing the publication of his name, or the publication of any matters which could lead to him being identified, in connection with the proceedings.
He relied on the application to a head of state by section 20 of the State Immunity Act 1978 (“the 1978 Act”) of Article 29 of the Vienna Convention on Diplomatic Relations (1961) (“the Vienna Convention”), which is given the force of law by the Diplomatic Privileges Act 1964 (“the 1964 Act”) and which, it is said, requires the United Kingdom (including its courts) to “treat him with due respect and … take all appropriate steps to prevent any attack on his … dignity.”
On November 1, 2005, Gray J refused the relief which the Sultan sought, and following a hearing made a suspended committal order on November 8, 2005. Underhill J gave judgment in January 2007 for the claimant following trial, and committed Mrs Amir to prison following further contempts.
On this appeal the Sultan seeks to reverse Gray J's judgment of November 1, 2005 denying the relief sought as head of state, and seeks redactions to the judgments of Gray J on the committal application and to Underhill J's judgments to remove any material which would lead to him being identified.
II The proceedings
The proceedings were commenced in January 2005. Mr Aziz was named as first defendant. On January 12, 2005 Butterfield J made an order anonymising the name of the claimant and preventing publication of her identity.
On January 18, 2005 Field J gave the claimant permission to join Mrs Amir to the proceedings and enjoined her from “communicating, disseminating, divulging or otherwise disclosing” the audio cassette recordings, and ordered her to deliver them up to her solicitors. He also granted a worldwide freezing injunction.
On April 15, 2005 Roderick Evans J made a further order which restrained Mr Aziz and Mrs Amir from communicating, disseminating, divulging or otherwise disclosing any of the audio cassettes or other recordings referred to in a letter received by the claimant on April 10, 2005. This letter was addressed to the claimant purportedly from Mr Aziz and contained threats to reveal matters of a personal nature about the claimant and the Sultan.
Mrs Amir refused to deliver up the audio cassettes, and the claimant applied by notice dated August 12, 2005 for her committal.
Shortly before the application to commit her for contempt was to be heard, Mrs Amir applied to discharge the anonymity order. On the claimant's application and Mrs Amir's application, Sir Franklin Berman QC appeared on behalf of the Sultan, on the basis that the Sultan had an interest in the preservation of the claimant's anonymity and in ensuring the privacy of the proceedings.
Sir Franklin Berman QC sought on behalf of the Sultan orders that the evidence on the committal application should be taken in private; that legal submissions be subject to an express prohibition on any reference to the name of the Sultan or any matter which could lead to his identification; and that directions be given preventing the publication of his name in connection with the proceedings and preventing the publication of any matters which could lead to his being identified in connection with the proceedings. Those orders were sought on the footing that there would be continued anonymity for the claimant herself.
In his judgment, on November 1, 2005, Gray J said that he was not persuaded that it would be right to rule that the committal proceedings should in their entirety be private and permanently remain so. In particular he said that he did not think he would be justified in taking the exceptional course of directing, pursuant to CPR 39.2(4), that the identity of the claimant should not be disclosed, nor that information that she was the former wife of the Sultan should be withheld.
The judge accepted that particular care needed to be taken to ensure that third parties to litigation were not inappropriately injured by the fact that proceedings took place in public. But he held that the Sultan did not have, independently of the claimant, a right as head of state to insist that no mention be made in public of the fact that the claimant was his former wife. As a practical matter he decided that the balance between privacy and publicity for the committal proceedings should be achieved by directing that the whole of the hearing would be in private, and that at the conclusion of the hearing he would be able to give a direction, pursuant to section 11 of the Contempt of Court Act 1981, as to those matters publication of which would be prohibited.
The committal application was heard on November 1 to November 4, 2005, and on November 8, 2005 Gray J delivered judgment, and held Mrs Amir in contempt. He decided in particular that Mrs Amir had breached the anonymity order in that, in the course of a meeting with Mr Yusof, she had disclosed to him information which was likely to lead to the identification of the claimant as a party to the action, and she had also disclosed to him the nature of the tape recorded information in breach of the order of Roderick Evans J. She had also attempted by threats and/or other forms of improper persuasion directed at the claimant to influence her to withdraw the proceedings and/or to discharge the freezing order and/or to discharge other injunctions made against Mrs Amir by threatening to disclose the information, and the disclosure of the Aziz letter, in conjunction with what was said by Mrs Amir at her meeting with Mr Yusof, amounted to further threats or other improper pressure directed at the claimant.
Gray J committed Mrs Amir to prison for three months, suspended for twelve months. He also ordered Mrs Amir not to communicate in any way with the claimant except through her solicitors.
Following the committal application an order was made, pursuant to section 11 of the Contempt of Court Act 1981, prohibiting publication of those parts of the...
To continue reading
Request your trial
-
Sayn-Wittgenstein-Sayn v Borbon y Borbon
...of the assistants themselves, rather than of the head of state. But, as is clear from Lawrence Collins LJ's analysis in Aziz v Aziz (Sultan of Brunei intervening) [2008] 2 All ER 501, the extension of immunity beyond ambassadors to close members of their family was never designed for any s......
-
Harb v HRH Prince Abdul Aziz Bin Fahd Abdul Aziz
...was 'laid down absolutely and without any qualification'. 15 If more recent authority is sought, it can be found in Aziz v Aziz and ors (Sultan of Brunei intervening) [2007] EWCA Civ 712 (' Aziz'). The Court of Appeal was considering the relevance of the Sultan of Brunei's status as head of......
-
HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud and Another v Apex Global Management Ltd
...in his personal capacity, rather than merely in his official capacity ( ratione materiae): see per Lawrence Collins LJ in Aziz v Aziz (Sultan of Brunei intervening) [2007] EWCA Civ 712, at paragraph 56, following and applying Mighell v Sultan of Johore [1894] 1 QB 149, at 16 Secondly, the......
-
Apex Global Management Ltd (Petitioner) v Fi Call Ltd and Others
...of a governmental nature, and that the doctrine of stare decisis did not apply where principles of international law were concerned. Aziz v. Aziz 79 In Aziz v. Aziz and others (Sultan of Brunei intervening) [2008] 2 All ER 501, the Court of Appeal had to consider the nature of the immunit......
-
Invasion of Privacy/Misuse of Private Information
...Ltd, [2008] EWCA Civ 446 Mosley v. News Group, [2008] EWHC 1777 (QB) T v. BBC, [2007] EWHC 1683 (QB) at para. 15 Aziz v. Aziz & Ors, [2007] EWCA Civ 712, [2008] 2 All E.R. 501 Browne v. Associated Newspapers Ltd. Rev 1, [2007] EWCA Civ 295 Douglas & Ors v. Hello! Ltd. & Ors, [2007] UKHL 21 ......
-
Table of Cases
....220 Aziz v Aziz & Ors, [2007] EWCA Civ 712, [2008] 2 All E.R. 501.................................... 400, 401 Bahlieda v. Santa, 2003 CanLII 2883 (ON C.A.).............................................................. 14, 79– 80 Bai v. Sing Tao Daily Limited, [2003] O.J. No. 1917, 226 D.L......