Fayed v Al-Tajir
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE KERR |
| Judgment Date | 19 February 1988 |
| Judgment citation (vLex) | [1987] EWCA Civ J0219-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0192 |
| Date | 19 February 1988 |
[1987] EWCA Civ J0219-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(LORD JUSTICE STOCKER, SITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Croom-Johnson
And
Lord Justice Mustill
87/0192
1983 F.No.596
MR. DAVID EADY Q.C. and MR. STEPHEN SUTTLE (instructed by Messrs. McKenna & Co., Solicitors, London WC2R OHF) appeared on behalf of the Plaintiff (Appellant).
MR. EDWARD EVANS-LOMBE and MR. GEOFFREY SHAW (instructed by Messrs. Fox & Gibbons, Solicitors, London W1X 2QA) appeared on behalf of the Defendant (Appellant).
This curious case springs from a dispute within the London Embassy of the United Arab Emirates.
The defendant is Mr. Muhammed Mahdi al-Tajir. For some years he was Ambassador of the United Arab Emirates (hereafter "the Emirates") to the Court of St. James. The Emirates are a federation of Arab states, one of which is the Emirate of Dubai. At the material time, H.H. Sheikh Rashid was Ruler of Dubai and Vice-President of the Emirates. During August 1982 the defendant resigned as Ambassador of the Emirates in London, for reasons which suggest that it was contemplated throughout that in due course he would resume his office. For about the next twelve months he continued to concern himself with the affairs of the Emirates in two ways. First, he maintained his position as adviser to the Ruler of Dubai, a role which he had performed for many years. Second, he appears to have acted for internal purposes as de facto head of mission. During this period there was no person occupying the office of Ambassador. Although, upon the defendant's resignation as Ambassador, he ceased to be on the list of those recognised as diplomats accredited to the Court of St. James, his status was such that, in the words of the trial judge, he was regarded both by the Foreign Ministry in the United Arab Emirates and by the staff at the Embassy in London as having authority. On 15th November 1983 the defendant was re-appointed as Ambassador in London, and he continued to hold that post until November 1986, when he once more resigned: an event which occurred after the trial of the present action but before the argument of the appeal.
During the interregnum between the resignation of the defendant in August 1982 and his re-appointment in November 1983 there was no ambassador in post. The senior official in the Embassy and formal chef de mission was Mr. Mirza-al-Sayegh, the Charge d'Affaires. The second in command was the Counsellor, Mr. Nabil Hijazi. The Third Secretary was Mr. Al Hashimi.
The plaintiff, Mr. Muhammed al-Fayed, is a businessman with substantial interests in the United Kingdom. He had for a number of years been prominent in the affairs of the Emirates, and had been on close terms with the defendant. One of the fruits of this relationship had been the procurement by the defendant on his behalf of certain privileges at Heathrow Airport, notably concerning the use of the VIP lounge, and access for his limousines to various restricted areas. These privileges had been renewed for him from year to year through the intermediacy of Mr. Nabil Hijazi.
In course of time the relationship between the plaintiff and the defendant took a turn for the worse: so much so that on 7th September 1982, during the interval between the resignation of the defendant as Ambassador and his subsequent re-appointment, a memorandum came into existence in terms sharply critical of the plaintiff. I return at a later stage to the circumstances in which this document came to be written. It is sufficient for present purposes to say that it was addressed to Mr. Nabil Hijazi (the Counsellor), with copies to Mr. Mirza al Sayegh (the Charge d'Affaires) and to the Ministry of Foreign Affairs in Abu Dhabi. The document was subscribed with the word "Ambassador" followed by the Arabic equivalent of "per pro", then the signature of Mirza al Sayegh, and finally the name of the defendant.
Since this memorandum is the document in suit in the present action I must set out its text in full. In translation, it read as follows:
"EMBASSY OF THE UNITED ARAB EMIRATES
Inter-Departmental Memorandum
From: H.E. The Ambassador
To: Counsellor Nabil Hijazi
Ref:
Date 7/9/1982
Greetings,
I was dismayed to learn that you have contacted the airport authorities for the purpose of granting Mr. Muhammed Fayed two passes to enter Heathrow Airport in his car in the name of the Embassy. I was extremely annoyed to receive such a report as I have personally warned you of the consequences of having any dealings with that person under the name of the Embassy. You have promised to cancel all the arrangements made by the Embassy in his favour. You made that promise several weeks ago in the presence of Mr. Mirza Al-Sayegh. However, this has not been fulfilled. I was surprised to learn from my colleagues in the Embassy that Mr. Fayed started to use the VIP Lounge at the airport impersonating the identity of the adviser of Sheikh Zayed. In addition he used two car passes. This has caused great embarrassment to me and to the Embassy staff, as it happened without their knowledge. The matter has come to the notice of the British Foreign Office and also to the notice of the Ministry of Foreign Affairs in ABU DHABI. We have rectified the situation by withdrawing the above status and cancelling the tickets. You are well aware of the outcome if Mr. Fayed had managed to enter prohibited goods into this country using the above capacity and in the name of the Embassy. This could have caused deterioration in the relationship between the Embassy and the authorities concerned, relationships which we were able to strengthen since the establishment of this Embassy till the present, let alone the deterioration of the relationship between the Embassy and H.H. Sheikh Zayed as a result of impersonating the identity of the adviser of His Highness by an unknown person.
"Therefore, I have decided to transfer you to the Head Office of the Ministry of Foreign Affairs in ABU DHABI, referring the whole matter to the Ministry to take whatever action they deem necessary. I have informed the departments concerned in the Embassy that your diplomatic status has now been withdrawn and instructed them to claim any possessions under your charge which are the property of the Embassy, such as the car and the house leased for your use.
"This takes effect from today's date.
"I have also notified the British Foreign Office of this action.
"Finally, would you please accept my sincere thanks and appreciation of your previous service in this Embassy which I hope will continue in the Ministry of Foreign Affairs in the future.
AMBASSADOR
p.p. (Signature)
MAHDI AL TAJIR
"Copy to Mr. Mirsa Sayegh, Charge d'Affairs to put this into effect and then take full charge of the responsibilities of Mr. Nabil Hijasi. Copy to the Ministry of Foreign Affairs in ABU DHABI to complete the arrangements of transfer in accordance with normal procedure."
As contemplated by its terms, this document was delivered to and read by Mr. Nabil Hijazi, and also by certain officials in the Ministry at Abu Dhabi. This led to the temporary recall of Nabil Hijazi for discussions, but ultimately he returned to his post as Counsellor in London. Meanwhile, Nabil Hijazi had shown the memorandum to the plaintiff. His motives for doing so were controversial, but there is no suggestion that his act was the consequence of any express authorisation by the defendant or anyone else.
On 3rd May 1983, the plaintiff issued the writ in the present action, claiming damages for libel contained in the memorandum, and alleging publication to Nabil Hijazi. An injunction was also claimed. The writ was followed on 27th May 1983 by a statement of claim also alleging that the defendant wrote and published the letter to Nabil Hijazi or caused it to be so written and published. It was pleaded that the plain and ordinary meaning of the words was that:
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"(i) The Plaintiff had obtained two passes to enter Heathrow Airport in his car under false pretences, that is to say by pretending to be acting on behalf of the Embassy of the United Arab Emirates.
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(ii) The Plaintiff had impersonated the identity of an adviser Sheikh Zayed in the VIP Lounge at Heathrow Airport.
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(iii) The Plaintiff had been using these devices with a view to importing unlawfully prohibited goods into the United Kingdom."
Next, on 28th June the defendant swore an affidavit setting out that he had in the past resigned as Ambassador, but that his re-appointment was awaiting confirmation from the United Kingdom authorities. He went on to summarise his relationship with the Ruler. He concluded
"10. It will be observed from the Statement of Claim that the Plaintiff complains of a document purporting to be an interdepartmental memorandum published within the U.A.E. Embassy and dated 1st September 1982. At that date I was no longer Ambassador and had left the country the previous month to return to Dubai, and I was at that time visiting Germany with H.H. Sheikh Rashid who was undergoing medical treatment in Baden Baden. I neither wrote nor signed the memorandum. I have no knowledge of the circumstances in which it came to be written.
11. I am advised that, since I have arrived in this country to take up my appointment as Ambassador, the Foreign Office having been notified of my appointment, I am immune from the Jurisdiction of this Honourable Court.
13. In any event it is my respectful submission that this...
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