Christina Lynn Estrada v Walid Bin Ahmed Abdallah Al-Juffali

JurisdictionEngland & Wales
CourtFamily Division
JudgeMr Justice Hayden
Judgment Date08 February 2016
Neutral Citation[2016] EWHC 213 (Fam)
Date08 February 2016
Docket NumberCase No: FD14F00410

[2016] EWHC 213 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Hayden

Case No: FD14F00410

Between:
Christina Lynn Estrada
Applicant
and
Walid Bin Ahmed Abdallah Al-Juffali
Respondent

Mr. Charles Howard QC, Mr. Tim OwenQC, Mr. Deepak NagpalandMr. Tom Hickman (instructed by Hughes Fowler Carruthers Solicitors) for the Applicant

Mr. Martin Pointer QC, Mr Martin ChamberlainQC andMr Nicholas Wilkinson (instructed by Mishcon de Reya LLP) for the Respondent

Hearing dates: 18 th, 19 th, 20 th, 21 st and 22 nd January 2016

Mr Justice Hayden
1

This hearing has been listed in consequence of an application made on behalf of Christina Estrada (W) for financial relief pursuant to Part III of the Matrimonial and the Family Proceedings Act 1984. Permission to apply was granted by Newton J on the 19 th December 2014. On the 2 nd February 2015 Dr. Walid Al-Juffali made a counter application to strike out his former wife's claim predicated on his assertion of protection from civil action arising from diplomatic immunity.

2

The application was listed for hearing before Holman J on 2 nd June 2015 but shortly before the hearing was due to commence the Judge recognised that the time estimates were wholly unrealistic. The parties were able to refine the issues which they considered required determination and the matter was relisted to be heard the week commencing 18 January 2016. The contemplated scope of the hearing as set out in the recitals to Holman J's order was:

Whether the Respondent (H) is a permanent resident of the United Kingdom for the purposes of the International Maritime Organisation (Immunities and Privileges) Order 2002 (the IMO order).

3

In particular it was recorded that:

Whether or not the Applicant's claim falls within the 'real action' exemption for the purposes of Article 31 of the Vienna Convention on Diplomatic Relations 1961 (VCDR) is not an issue which needs to be determined within these proceedings.

4

On the 14 th December 2015 W parted company with her previous solicitors and instructed those who now act on her behalf. The new legal team took a different view as to the appropriateness of the apparent concessions in the agreed order placed before Holman J. An application was made to reopen the Article 31 issue and to advance two new arguments. The first was that W was seeking claims and declarations within the Part III application that she argued were not directly against H and thus no immunity arose. The second was in relation to Article 39 (1) of the VCDR. H's legal team objected to these courses. Given the nature of H's own arguments and their profound consequences for W if they succeeded, it struck me as essentially unfair to her to deny her the opportunity of putting any arguments that may be at her disposal. There could be no prejudice to H because the arguments under Article 31 had been prepared (and in written form) on his side, for the hearing before Holman J. There is no basis either for shutting out the new argument under Article 39, having regard to the quasi-inquisitorial role of the court in proceedings of this kind: (Parra v Parra [2003] 1 FLR 942; Wyatt v Vince [2015] UKSC 14; [2015] 1 WLR 1228).

5

Both H and W have had the advantage of two leading counsel as well as junior counsel. Mr Howard Q.C. on behalf of W and Mr Pointer Q.C., on behalf of H, have advanced the 'financial arguments' as I can loosely call them, arising from the 'real action' exemption. Mr Owen Q.C. (for W) and Mr Chamberlain Q.C. (for H) have argued the public international law issues surrounding the entitlement to diplomatic privileges and immunity. I am entirely satisfied that the arguments have been fully ventilated on both sides and that there has been no prejudice to H by my decision to revisit the concessions made before Holman J.

6

H, now aged 60, is a Saudi businessman of very considerable wealth. W, aged 53, was a successful model at the time when the parties first met. The couple have a daughter S who is 13 years of age. The parties met in 2000 in London. They commenced a relationship in March 2001. H divorced his then wife in 2001. Those divorce proceedings resulted in litigation in the High Court, reported as Sulaiman v Juffali [2002] 1 FLR 479, to which I will return later in the judgment. On the 18 th December 2001 the parties married in Dubai.

7

On the 13 th August 2013 W issued, but did not serve, divorce proceedings in England and Wales alleging H's adultery. In April 2014 H was appointed Permanent Representative of St. Lucia to the International Maritime Organisation (IMO). On the 15 th October 2014, W was served with confirmation of a Saudi divorce, consequent on the third pronouncement of Talaq. On 1 st November 2014 T was born in London to H and his third wife. On 7 th January 2015 H's solicitors contacted W's solicitors raising, for what appears to be the first time, the question of H's diplomatic immunity. On the 2 nd February 2015 H issued his application to strike out W's Part III claim, pursuant to Rule 4.1 of the Family Procedure Rules 2010.

8

On the 20 th February 2015 Peter Jackson J listed the dismissal application to be heard as a preliminary issue reciting: 'The Respondent having applied to dismiss the application on the basis that he has diplomatic immunity by virtue of his appointment as the St. Lucian Permanent Representative to the IMO based in London' (which direction led to the listing of the hearing before Holman J). I have kept my summary of the background history to those matters which seems to me to be factually uncontroversial.

Article 39 of the VCDR

9

Though this is, chronologically, the second point to be raised on behalf of W it requires, for reasons that will become obvious below, to be addressed first. Article 39 (1) of the VCDR provides:

"Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed."

10

Messrs Owen and Hickman raise 3 principal arguments on this issue:

i) The Court must consider whether a person claiming diplomatic immunity enjoys that immunity at the time of the court's determination and not before. These arguments are rooted in the judgments in Empson v Smith [1966] 1 QB 426;

ii) Article 39 (1) and (2) require evidence that a post has been 'taken up' and that diplomatic functions have been undertaken in order to benefit from immunity under the Diplomatic Privileges Act 1964;

iii) Whilst in most cases an assertion by a 'sending' State that a person performs a diplomatic function will carry great weight as to the true position, this is not to be regarded as inviolable.

11

On the 10 th February 2015 the Protocol Directorate at the Foreign and Commonwealth Office (Diplomatic Missions Unit) issued a letter which confirmed that H is 'the Permanent Representative to the International Maritime Organisation of St. Lucia in London'. It also confirmed that H was 'accepted as an accredited diplomat under the Vienna Convention on Diplomatic Relations 1961, by the Foreign and Commonwealth Office on 14 th April 2014':

12

The Diplomatic Privileges Act 1964 identifies the evidence required to satisfy entitlement to privilege or immunity. Section 4 provides:

"4. Evidence.

If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."

An identical provision is contained in section 8 of the International Organisations Act 1968 which applies in the present case.

13

Mr Owen made something of the fact that a certificate had not been received (or indeed requested) in this case, as a premise to open up any power this Court might have to investigate the validity of the asserted immunity. I am bound to say that the artificiality of that situation struck me as unsustainable and, on the 20 th January 2016, I made a request to the FCO for a certificate. It arrived the following day in the format required (a Section 8 certificate), confirming H's appointment as 'a Permanent Representative of St Lucia to the International Maritime Organisation'. It also confirmed that such was notified to the FCO on the 18 th August 2014 and that his arrival date was notified as 14 th April 2014, from which date he has enjoyed the privileges and immunities as a member of the diplomatic staff of a mission. On the face of it therefore the certificate is 'conclusive' evidence of the stated fact i.e. the appointment.

14

It is convenient here to set out the Articles of the VCDR which provide the framework for immunity:

Article 38

1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the...

To continue reading

Request your trial
3 cases
  • Estrada v Al-Juffali (Secretary of State for Foreign and Commonwealth Affairs intervening)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 March 2016
    ...... Between: Walid Ahmed Al-Juffali Appellant and Christina Estrada Respondent and ......
  • James William Murray Guthrie v Irene Elizabeth Guthrie
    • Bahamas
    • Court of Appeal
    • 11 February 2019
    ...2015 considered Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) mentioned Dean v. Dean (1991) BHS J. No. 164 mentioned Estrada v Al-Juffali [2017] 1 FLR 669 mentioned Fitzgerald (by his Receiver Jerome K. Fitzgerald) v. Fitzgerald [2015] 2 BHS J. No.33 considered G v. G (Minors: Custody Appeal) ......
  • Juffali v Juffali
    • United Kingdom
    • Family Division
    • Invalid date
    ...it contains a summary of the journey which the litigationhad taken to that point in time. It is reported as Estrada v Al-Juf‌fali [2016] EWHC 213 (Fam).In the course of his judgment, Hayden J found as a fact that the respondent “has sought andobtained a diplomatic appointment with the sole ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT