Fawaz Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 15 February 2016 |
| Neutral Citation | [2016] EWHC 212 (QB) |
| Docket Number | Case No: HQ15X0900 |
| Court | Queen's Bench Division |
| Date | 15 February 2016 |
[2016] EWHC 212 (QB)
The Hon Mr Justice Blake
Case No: HQ15X0900
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Monica Carrs-Frisk QC and Andrew Scott; Lord PannickQC andSir Daniel BethlehemQC assisted in the preparation of the skeleton argument (instructed by MACFARLANES) for the Defendant
Tom De La Mare QC and Tom Hickman (instructed by IMRAN KHAN and PARTNERS) for the Claimant
Hearing dates: 12–13 January 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimant is a member of a prominent family related to the ruling family of the state of Qatar. He was born in London and is a dual British and Qatari national. Since 1993 he has been a salaried member of the Foreign Ministry of Qatar and from July 1998 he held the rank of Ambassador, although he is not accredited to any overseas mission.
The defendant is also a member of a prominent Qatari family and since 1989 he has held ministerial office in Qatar. From 1992 to 2013 he was Minister of Foreign Affairs and from 2007 to 2013 he combined this office with that of Prime Minister. He is also a very wealthy man and, along with other members of his family, is the beneficial owner through a chain of holding companies of valuable hotels, property and other assets in the United Kingdom and elsewhere in the world. Press reports value his wealth in the region of £7.8 billion.
In June 2013 he resigned from his posts as Foreign Minister and Prime Minister. In May 2014 and June 2015 he participated in public interviews and political debate in which he described himself as a private citizen who no longer represented the government of Qatar. Press reporting and his social media pages present him as having spent much of 2014 and 2015 in recreational and other personal activities in many locations around the world.
In August 2015 the claimant issued a claim for damages against the defendant and personally served him in London at one of his properties. The claim is for damages for trespass to land of the claimant's and to his person. In summary, it is contended:
i) In the summer of 1997 the defendant wanted to buy land known as the Al-Rayyan land in Qatar (the land) belonging to the claimant and his family at a price that was not acceptable to the claimant. As a result of this refusal the claimant has been the subject of a sequence of adverse decisions including: pressure on him to resign from the Foreign Ministry and non-payment of his salary and expenses when he took sabbatical leave to study in the United Kingdom. It is further contended that the defendant obtained a prohibitive order preventing the claimant from selling the land on the basis that it was to be acquired by the state.
ii) In 2003 the Minister of Municipality instituted compulsory appropriation of the land against the claimant and other land owners for the purposes of building a project known as education city. The claimant was aggrieved at the price paid which was the same as the 1997 offer. He raised a grievance and instituted a series of petitions on the issue. In 2004 the Ministry agreed that a higher price should be paid that the claimant still considered was less than its market value. In June 2007 he was informed by the Acting Minister of Foreign Affairs, who was also the Director of office of the Prime Minister, that the question of compensation and title to the land was exhausted. In 2009 he issued various legal proceedings in Qatar about the land dispute and other matters.
iii) On 29 October 2009 the claimant was forcibly removed from Saudi Arabia to Qatar and on arrival in Qatar was detained in government premises. With the exception of a few days when he escaped from custody, he was detained in one place or another until January 2011 when he was released. He was interrogated on a number of occasions throughout his detention; he was accused of disclosing state secrets and making defamatory remarks about the defendant in his texts, petitions and legal proceedings; he was kept in solitary confinement, denied visits from his family or unimpeded access to a lawyer and was made the subject of threats and inducements.
iv) The cumulative treatment and its extended duration amounted to torture and has been the subject of an expression of concern by the UN Special Rapporteur for the Prevention of Torture. For some of the period he was remanded in custody by judicial authority, but he continued to be held in detention on executive authority after he had been admitted to bail by the judiciary. At the end of the process no criminal charges were proceeded with and he was released.
v) He contends that the confiscation of the land, the removal from Saudi Arabia and the detention in Qatar were all done by others at the instigation of the defendant.
In September 2015, whilst disputing much of the factual basis for the claim, the defendant applied for an order that this court has no jurisdiction to entertain the claim for two reasons, that I propose to examine in the following order:
i) The substance of the claim is an allegation of abuse of public power by a public official of Qatar (the Minister of Foreign Affairs who was also from 2007 the Prime Minister of Qatar) and thus the claimant indirectly impleads the state of Qatar. In response, Qatar claims sovereign immunity in respect of the subject matter of the claims under the provisions of the State Immunity Act 1978.
ii) The defendant is an accredited member of the Qatari Embassy in London and was therefore entitled to immunity from suit under the Diplomatic Privileges Act 1964 ( DPA).
The matter came before Foskett J on 19 October 2015 who gave directions for trial. At that time there were two letters from the protocol department of the Foreign and Commonwealth Office (FCO) both indicating that the defendant was recognised as an accredited diplomat. The status of those letters was in dispute. One of the directions made was that the parties should jointly write to the FCO seeking a certificate under s.4 DPA directed to the following questions:
"Her Majesty's Government is respectfully requested by the Court to provide such response to the questions below as it considers appropriate and, in particular if and insofar as appropriate, by means of certification under section 4 of the Diplomatic Privileges Act 1964. The Court wishes to consider such response as Her Majesty's Government provides at a hearing on 11 and 12 January 2016, and respectfully requests that Her Majesty's Government provides its response as far in advance of that date as it is able to do.
1. Has the Defendant been notified to the FCO as a member of the diplomatic staff of the Mission of the State of Qatar having diplomatic rank; and if so upon what date(s) and in respect of which position(s) was the Defendant so notified?
2. As the date of HMG's response to this request, has the FCO accepted and/or accredited the Defendant as a member of the diplomatic staff of the mission of the State of Qatar having diplomatic rank; and if so, upon what date(s) and in respect of which position(s) was the defendant so accepted and/or accredited; and is he currently so accredited and/or accepted?"
A joint letter was written on 10 November 2015. On the same date the claimant's solicitors informed the defendant's solicitors that it proposed to communicate unilaterally with the FCO. It did so on 16 November 2015, in a letter drawing attention to a number of pieces of information available from public sources about the defendant's commercial, social and media activities since mid-2013 to date that were said to be inconsistent with diplomatic status. This letter was copied to the defendant's solicitors on the same day that it was sent.
On 15 December the FCO wrote to the claimant's solicitors inviting their consent for them to supply the letter to the Qatari Embassy in order for its observations to be made as to its contents. Consent was unnecessary given that the letter had already been supplied on 16 November but after some administrative delay in the solicitor's office, consent was given on 23 December and in a follow up letter on 4 January 2016. It is not known what communication there has been about the 16 November letter between 23 December 2015 and the 4 January 2016.
On 4 January 2016 the FCO issued a certificate in the following terms:
"Under the authority of Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me and in accordance with the provisions of Section 4 of the Diplomatic Privileges Act 1964, I, Julian Evans, director of Protocol at the Foreign and Commonwealth Office hereby certify that the appointment of Sheikh Hamad bin Jassim bin Jaber Al Thani as a member of the diplomatic staff of the mission of the State of Qatar in the United Kingdom was notified to the Foreign and Commonwealth Office on 28 August 2013; and on 28 May 2014 his arrival date was notified as 6 November 2013, from which date he has enjoyed the privileges and immunities of a member of the diplomatic staff of a mission."
The application:
This is the hearing of the defendant's application for an order that this court has no jurisdiction to hear the claim on the two bases set out at [5] above. There has been filed for the defendant:
i) A short witness statement from the defendant dated 18 September 2015 in which he states he is a Minister Counsellor at the Embassy of the State of Qatar in the United Kingdom and he has responsibility for promoting relations between the state of Qatar and...
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