Engelke v Musmann
| Jurisdiction | England & Wales |
| Judge | Lord Warrington of Clyffe,Lord Phillimore,Lord Buckmaster,Viscount Dunedin,. |
| Judgment Date | 18 July 1928 |
| Judgment citation (vLex) | [1928] UKHL J0718-2 |
| Court | House of Lords |
| Docket Number | Case No. 245 |
| Date | 18 July 1928 |
[1928] UKHL J0718-2
Lord Buckmaster.
Viscount Dunedin.
Lord Phillimore.
Lord Blanesburgh.
Lord Warrington of Clyffe.
House of Lords
Whereas Thursday, the 14th day of June last, was appointed for hearing Counsel, upon the Petition and Appeal of Hermann Gustav Constantine Engelke, of 8, Carlton House Terrace, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 23d of June 1927, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Ernest Otto Paul Musmann, lodged in answer to the said Appeal; in which said Appeal it was Ordered, by an Order of this House of the 12th day of December last, that the Attorney-General should have leave to intervene as a Respondent, and to lodge a printed Case, and that Counsel on behalf of the Respondent, the said Ernest Otto Paul Mussman, should be allowed to be heard on his objection to the said intervention, as a preliminary point on the hearing of the Appeal at the Bar: Counsel were accordingly called in; and Counsel were heard on behalf of the said Appellant as well on Thursday the 14th, as on Friday, the 15th, days of June last: and Counsel for the said Respondent Ernest Otto Paul Musmann having been heard to raise an objection to the intervention of the Attorney-General, the Attorney-General was heard thereon; and his Case as Intervener having been admitted, but he not having been called upon to argue the same, Counsel were further and fully heard on the said 15th day of June last; and due consideration being had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 23d day of June 1927, complained of in the said Appeal, be, and the same is hereby, Reversed; And it is hereby Declared, That the Appellant is entitled to diplomatic privilege; And it is further Ordered, That each party do bear and pay his own Costs both here and below: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant is Defendant in an action brought against him by the Respondent Musmann for the recovery of rents received and damages for breach of covenants contained in a lease dated the 18th August, 1924, made between the Respondent of the one part and the Appellant of the other part of certain premises at Hampstead.
The Appellant having entered a conditional appearance applied to have the writ and all subsequent proceedings set aside on the ground that he is a Consular Secretary on the Staff of the German Embassy and, therefore, entitled to immunity from civil proceedings.
In support of this application he filed affidavits stating the nature of his employment and making the claim to immunity.
On the 4th March, 1927, Shearman J., on an appeal from a decision of Master Moseley, given in Chambers on the 15th February, 1927, ordered the Appellant to attend for cross examination, but gave leave to appeal.
The Appeal came before the Court of Appeal on the 12th of April and the 30th and 31st of May, 1927. The Attorney-General attended and at the request of the Court informed them that the Appellant had been appointed a member of the Staff of the German Embassy, under the style of Consular Secretary, and had been received in that capacity by the British Government, that his name had been submitted to the Foreign Office by the German Ambassador in the usual way, and that his position as a member of the Embassy was and had been since December, 1920, recognised without reservation or condition of any sort. He gave the Court certain further information as to the particulars of the Appellant's employment which it is not necessary to state in detail, and stated that he gave the information both on the instructions of the Foreign Office and on his own responsibility as Attorney-General.
On the 23rd June, 1927, the Court of Appeal by a majority Scrutton and Sargant L.J. (the Master of the Rolls dissenting) made an order affirming the order of Shearman J. This is an appeal from that order.
On the 25th November, 1927, the Attorney-General lodged a Petition to this House praying leave to intervene in this appeal and to lodge a case and to be heard thereon. The prayer of this petition was granted by the Appeal Committee, reserving to the Respondent Musmann the right to take on the hearing of the appeal such preliminary objection to the Attorney-General being heard as he might be advised.
The Attorney-General accordingly lodged a case and appeared before your Lordships, but the Respondent objecting to his being heard, and the Attorney-General stating that the printed case contained all that he desired to say, he did not address any argument to your Lordships.
The real question, therefore, and it is an important one, is whether in such a case information given by the Attorney-General under the circumstances stated above as to the diplomatic status of a person claiming immunity from civil process is conclusive as to the fact of such status. If it is, then cross examination on an affidavit with the object of displacing the effect of the information, would be irrelevant and useless and ought to be refused.
It must be borne in mind that all that is directly in issue is the fact of the Appellant's status. Whether, that fact being established, a Defendant is entitled to the immunity he claims is a further question, which might have to be determined by the Court. In the present case, however, it does not appear that there is in issue any question of law or fact other than that of status.
It is now well settled that in certain matters connected with our relations with Foreign States it is for the Court to take judicial notice of the facts relating thereto, and further that in all matters of which the Court takes judicial cognizance the Court may have recourse to any proper source of information, and there is no question that in such a case as the present the source of information actually applied to was the proper source.
The information so obtained is not in the nature of evidence: it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance, and the Court is bound to act on such a statement. (See the opinion of Lord Finlay in Duff Development Coy. v. Kelantan Government, 1924 A.C. 797, p. 813.)
It is admitted that amongst the matters of which the Court is bound to take judicial cognizance are the status of an Ambassador himself and even that of a mere chargé d'affaires. In the case of Macartney v Garbutt, 24 Q. B. D. 368, it would seem, though it is not quite clear, that the Court acted on information obtained from a Government Department, in that case the Home Secretary, as to the status of the English Secretary of the Chinese Embassy. But once it is established, and I think it is, that the Court takes judicial cognizance of the status of any member of a Foreign Embassy it is impossible on any principle to draw a distinction between one class of member and another and to say that the rule applies to the first and not to the second.
The Attorney-General states explicitly in para. 26 of his case that it is a necessary part of His Majesty's prerogative in His conduct of foreign affairs and His relations with foreign states and their representatives to accord or refuse recognition to any person as a member of a foreign ambassador's staff exercising diplomatic functions. The fact of recognition is of course peculiarly within the knowledge of the Department according it, and a statement by or on behalf of the Department that it has been accorded to any person must in my opinion come within the principles above referred to and be conclusive as to the status of that person.
It may be added that the Attorney-General states in his printed case that, for the purpose of obtaining recognition of the members of an ambassador's staff exercising diplomatic functions, a list of such members is furnished from time to time to the Secretary of State by every ambassador. The list is not accepted as of course on behalf of His Majesty, and after investigation it not infrequently happens that recognition is withheld from a person whose name appears upon the furnished list, either because his diplomatic status is in doubt, or because the number of persons for whom status is claimed appears to the Secretary of State to be excessive.
I have not thought it necessary to discuss the many cases which were cited in this House. It is enough to say that some of them support and no one of them is opposed to the views I have above expressed.
I have also thought it unnecessary to say anything about the Statute of Anne. It is well settled that the questions we have been discussing do not depend on the statute but are principles of Common Law having their origin in the idea of the comity of nations.
For the reasons above expressed I am of opinion that this appeal should succeed and the orders of the Court of Appeal and Shearman J. should be discharged and a declaration made as proposed from the Woolsack. The appellant does not ask for costs and the order will therefore be without costs here or below.
My Lords,
The Plaintiff in this case brought an action...
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