Corinna Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria de Borbón y Borbón
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Underhill |
| Judgment Date | 26 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1052 |
| Docket Number | Case No: CA-2022-001029 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1052
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
and
Lord Justice Peter Jackson
Case No: CA-2022-001029
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Nicklin
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Otty QC and Paul Luckhurst (instructed by Clifford Chance LLP) for the Applicant
James Lewis QC (instructed by Kobre & Kim (UK) LLP) for the Respondent
Hearing date: 11 July 2022
Approved Judgment
The Defendant in these proceedings is the former King Juan Carlos II of Spain and father of the present King, Felipe VI. He abdicated on 18 June 2014 although he remains entitled to use the title King and the style “His Majesty”. He formally retired from public life on 2 June 2019 and from August 2020 has lived in Abu Dhabi.
The Claimant and the Defendant were in an intimate relationship from 2004 to 2009. The Claimant alleges that from 2012 the Defendant has engaged in a course of conduct towards her which constitutes harassment in breach of the Protection from Harassment Act 1997. Her claim form was issued on 16 October 2020. In her Particulars of Claim she seeks damages and injunctive relief.
On 18 June 2021 the Defendant issued an application seeking an order declaring that the Court had no jurisdiction to try the claim because he was entitled to immunity under the State Immunity Act 1978 and/or the Diplomatic Privileges Act 1964 as extended by the 1978 Act. That application was dismissed by Nicklin J by an order dated 29 March 2022, giving effect to a judgment handed down on 24 March.
The Judge refused the Defendant permission to appeal against that decision. By an Appellant's Notice filed on 24 May 2022 he has applied to this Court. By an order dated 15 June 2022 I directed an oral hearing of both applications. The application was first listed on 11 July but had to be adjourned and took place before myself and Peter Jackson LJ on 18 July. The Defendant was represented before us by Mr Timothy Otty QC leading Mr Paul Luckhurst and the Claimant by Mr James Lewis QC.
At the conclusion of the hearing we indicated that we would refuse permission to appeal on two of the five grounds but grant it on the remaining three and that we would give our reasons later. These are my reasons for that decision.
Given the nature of the application to this Court I need give no more detail of the claims or of Nicklin J's judgment than is necessary to explain my reasons. Those wanting further detail can find it in the judgment of Nicklin J which is available online with the reference [2022] EWHC 688 (QB). I should emphasise that at this stage there has been no decision about whether the Claimant's allegations are true and the Defendant emphatically denies any wrongdoing.
We are concerned with two species of statutory immunity, which I take in turn.
First, Part I of the 1978 Act is concerned with “Proceedings in the United Kingdom by or against Other States”. Section 1 reads:
“(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.”
Section 14 (1) (a) provides that “references to a State include references to … the sovereign or other head of that State in his public capacity”. Immunity on the basis that a head of state was acting “in [their] public capacity” was described before us as “functional immunity”.
Second, the 1964 Act gives effect in UK law to articles of the Vienna Convention on Diplomatic Relations granting immunity to diplomats and some of their family members, including (by article 31) immunity from civil jurisdiction. Section 20 of the 1978 Act, which falls within Part III (“Miscellaneous and Supplementary”), extends that immunity, broadly speaking, to heads of state. It reads (so far as material for our purposes):
“(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to —
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.
…
(5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity.”
The Defendant claims both immunity under Part I as regards certain acts alleged against him prior to his abdication and immunity under the 1964 Act, as extended by section 20 of the 1978 Act, as regards the entirety of the claim. Since the main ground on which we have refused permission, ground 3, concerns the latter I will take that first.
Although before the Judge the Defendant asserted that even since his abdication he remains a “sovereign” within the meaning of section 20 (1) (a), that claim is not now pursued, and he advances only an alternative contention that he is a member of the family of his son and his successor, King Felipe VI, “forming part of his household” within the meaning of section 20 (1) (b).
As to that, Mr Otty relied principally on evidence contained in a Joint Memorandum from two expert witnesses on “the Constitutional and Legal Status in Spanish Law of His Majesty King Juan Carlos de Borbón y Borbón”. The essential part of the Joint Memorandum for the purposes of his argument is the statement that:
“The Defendant is a member of the Spanish Royal Family, according to the provisions of Royal Decree 2917/1981; being an ascendant in the first degree of King Felipe VI. The members of the Royal Family of Spain changed after King Felipe VI was proclaimed the King. … Once King Felipe VI became King, the members of the Royal Family of Spain became: King Felipe VI; Queen Doña Leticia; the King's daughters, Princess of Asturias Doña Leonor and infanta Doña Sofia; and the King's parents, the Defendant and Doña Sofia.”
Mr Otty emphasised that the Royal Family so defined constituted a very tight group of those most closely connected to the King – his spouse, his parents and his children – referred to in the argument before us as “the core Royal Family”.
The expert evidence also established:
(a) that the core Royal Family was also known as “the King's House” (“ Casa de Su Majestad El Rey”); and
(b) that the Constitution provides for a separate body, to which the Defendant has not belonged at least since 2019, known as “the Royal Household” whose purpose is “to serve as support for the King in all the activities derived from the exercise of his functions as head of state”.
The Judge rejected the claim to immunity under section 20 at paras. 61–64 of his judgment. I can summarise his reasoning as follows.
At para. 61 he notes, while saying that it was “not determinative”, that the evidence filed by the Defendant did not state that he was a member of King Felipe's household. He also noted that there was no evidence filed on behalf of King Felipe or the Spanish state and no claim to state immunity by either; also that no certificate had been provided by the Secretary of State under section 21 of the 1978 Act.
At para. 62 the Judge says:
“Whether the Defendant does fall within the definition of ‘household’ is a matter of the proper construction of s. 20(1)(b). The substance of Sir Daniel's arguments focused, again, on the special – even unique – position that the Defendant enjoys under the Constitution following his abdication. There is no doubt that he remains a member of the Spanish Royal Family, as an ascendant in the first degree of the current King. The real issue is whether the Defendant is, now, a member of the King's household so as to bring him within s.20(1)(b). I am satisfied that he is not and does not.”
(The reference to “Sir Daniel” is to Sir Daniel Bethlehem QC, who was leading counsel for the Defendant before the Judge.)
At para. 63 the Judge says that, although the question whether the Defendant was a member of the King's “household” was one of fact, the factual assessment had to be conducted in accordance with the principles identified by this Court in Al Saud v Apex Global Management Ltd [2013] EWCA Civ 642, [2014] 1 WLR 492. The issue in that case was whether two Saudi princes – one the half-brother of the King and the other his nephew – were members of his household within the meaning of section 20 (1) (b). This Court upheld the decision of the High Court that they were not. Its essential reasoning is summarised in the WLR headnote as follows:
“… [T]he phrase ‘members of his family forming part of his household’ … was restricted to spouses, civil partners, dependent children and dependent relatives; that, therefore, the princes, both of whom were adults living apart from the King with households of their own, were not members of the Saudi Arabian King's ‘household’.”
That involved taking the same approach to the meaning of “household” in the case of a monarch as was established in the case of a diplomat. In a published lecture entitled The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers the late Sir Arthur Watts KCMG QC had suggested that that was the wrong approach and had said:
“In the circumstances of a diplomatic mission membership of an ambassador's household may be thought to require an...
To continue reading
Request your trial