Empson v Smith

I doubt the wisdom of this appeal for success means that the plaintiff's case will be heard and the claim seams to present difficulties for her. It depends solely on whether the defendant can establish, if he is called upon to defend, what he has sworn by affidavit, namely that when he gave notice to terminate the tenancy he had been officially ordered by his Government to duty outside the Metropolitan area of London. The plaintiff conducted her own appeal and, although discouraged by the Court, she pressed for a decision in her favour in respect of the claim for diplomatic immunity from being sued in cur courts made by or on behalf of the defendant.

As I am in entire agreement with the judgments prepared by both my brethren dealing fully with this issue I will not retrace all the ground.

The plaintiff is entitled to succeed to the extent of having the matter heard by the County Court first to consider whether the stay should be removed on the ground that the defendant has not been entitled to diplomatic immunity in respect of his liability under his tenancy agreement with the plaintiff since the Diplomatic Privileges Act, 1964, came into force on the 1st October, 1964, and second, if that is so, to hear the claim on its merits.

The action was originally stayed on the 26th April, 1963. The stay remained after applications by the plaintiff for its removal before Judge Leon on the 22nd October, 1964, and Judge Edgedale on the 10th November, 1964, and the action subsisted, though stayed, until the 15th December, 1964, when it was struck out by the order from which this appeal now comes.

At any time while the action remained subsisting if the immunity claimed had been waived the stay could have been lifted and the action allowed to proceed to trial. A waiver in such circumstances follows and does not precede the writ or summons. Removal from the diplomatic employment occasioning the immunity would likewise remove the immunity in respect of acts done in apersonal capacity and a subsisting action could proceed. A change in the law, as here, similarly in my view permits the action to proceed if it removes the immunity previously granted. It would be idle to require a fresh writ or summons when a sufficient one is before the court. The defendant did not previously apply to have the action struck out as a, nullity. He is too late now if, as seems probable, he is no longer entitled to immunity in respect of this present claim before the court

.I would allow the appeal accordingly.

On the 17th October, 1961, the plaintiff, Mrs. Empson, by a tenancy agreement let No. 32, The Vale, Golders Green, furnished, to the defendant, Clarence Burton Smith, for a term of one year certain from the 17th October, 1961, less one day, at a rental of 19 guineas a week. As the defendant was an administrative officer in the employment of the Government of Canada, a special clause was incorporated in the tenancy agreement, as follows: "In the event of the Tenant being officially ordered by his Government to duty outside the Metropolitan area of London or is ordered to return to Canada or leaves the Service of his Government for any reason and the Land lord is duly notified thereof in writing by the Tenant then in that event this Agreement shall cease and terminate three calendar months after the date of delivery of such notice to the Landlord."

On the 4th December, 1961, the defendant was officially ordered to proceed for a tour of duty on the Continent of Europe and gave a notice dated the 12th December, 1961, to determine tin tenancy agreement. The defendant left the premises, it appears, some time in March, 1962.

The plaintiff thereupon began proceedings in the County Court in which she claimed damages for breach of the tenancy agreement. A letter dated the 19th April, 1963, from the Commonwealth Relations Office enclosing a certificate issued under section 1 (3) of the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act, 1952, was sent to theCounty Court Registrar. That certificate was in these terms: "By direction of Her Majesty's Principal Secretary of State for Commonwealth Relations, it is hereby certified under sub-section (3) of section 1 of the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act, 1952, that MR. C. B. Smith became in September, 1961, a member of the official staff of the High Commissioner recognised by Her Majesty's Government in the United Kingdom as the chief representative in the United Kingdom of Canada, and he is still a member of the official staff of the His Commissioner and as such member he performs functions corresponding to those performed by members of the official staff of an envoy of a foreign sovereign Power".

The matter then came before the Registrar on the 26th April, 1963. The plaintiff's solicitor was present but, though the defendant did not appear, the Registrar ordered the action to be stayed.

On the 31st August, 1964, the plaintiff applied for an order that the action be restored and the stay be removed. After several adjournments before Judge Leon on the 22nd October, 1964, and before Judge Edgedale on the 10th November, 1964, the matter came before Deputy Judge Granville Slack on the 15th December, together with an application by the defendant dated the 4th November, 1964, for an order that the action be dismissed on the ground that the proceedings were a nullity. The Deputy Judge ordered that the plaintiff's application be dismissed, and that her action be struck out.

The relevant statues at the date when the proceedings were begun were the Diplomatic Privileges Act, 1708 (7 Anne, Chapter 12), and the Act of 1952, which has been already mentioned. The Act of Anne, which was passed as the result of the arrest of the Russian Ambassador in his coach and his detention in custody for several hours, is regarded as declaratory of the existing position at common law. Section 3 declares as follows: "All process against ambassadors void. And to prevent the like insolences for the future be it further declared by the authority aforesaid thatall writs and processes that shall at any time hereafter be sued forth or prosecuted whereby the person of any ambassador or other publick minister of any foreign prince or state authorized and received as such by Her Majesty her heirs or successors or the domestick or domestick servant of any such ambassador or other public minister may be arrested or imprisoned or his or their goods or chattels may be distained seized or attached shall be deemed and adjudged to be utterly null and void to all intents constructions and purposes whatsoever".

The Act of 1952 provides, by section 1 (l): "Subject to the provisions of this section" (then omitting (a)) (b) such members of the official staff of a chief representative as are performing duties substantially corresponding to those performed by members of the official staff of an envoy of a foreign sovereign Power shall be entitled to the like immunity from suit and legal process as is accorded to members of the official staff of such an envoy"; and by sub-section (3) provides that: "If in any proceedings any question arises whether or not any person is entitled to immunity from suit and legal process under any provision of this section or of any Order in Council made thereunder, a certificate issued by or under the authority of the Secretary of State stating any fact relevant to that question shall be conclusive evidence of that fact".

That last sub-section is, of course, the basis of the certificate which was given in the present case.

Since the beginning of the action, however, on the 1st October, 1964, the Diplomatic Privileges Act, 1964, came into force, and this Act draws a distinction between the immunity which is given to a "diplomatic agent" and the "Members of the Administrative and Technical Staff" of a Mission.Article 31 provides: "1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holdsit On behalf of the sending State for the purpose of the mission".Article 37 provides, inter alia: "2. Members of the administrative and technical staff of the mission. shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties".

A further certificate has been given by the Secretary of State as follows: "By the direction of Her Majesty's Principal Secretary of State for Commonwealth Relations it is hereby certified under section 4 of the Diplomatic Privileges Act, 1964, that MR. C. B. Smith was on the 1st October a member of the Administrative and Technical staff of the Diplomatic Mission of Canada in the United Kingdom, that he has since that date continued to be a member of the said Administrative and Technical staff and he is now such a member".

Consequently, it appears that the position of the defendant may have been altered...