Ghanem Al-Masarir v Kingdom of Saudi Arabia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 19 August 2022 |
| Neutral Citation | [2022] EWHC 2199 (QB) |
| Docket Number | Case No: QB-2019-003909 |
| Court | Queen's Bench Division |
[2022] EWHC 2199 (QB)
Mr Justice Julian Knowles
Case No: QB-2019-003909
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hermer QC, Ben Silverstone and Professor Philippa Webb (instructed by Leigh Day) for the Claimant
Antony White QC and Michelle Butler (instructed by RPC) for the Defendant
Hearing dates: 15–16 June 2021
Judgment Approved by the court for handing down (subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
Introduction
Suppose, to take a not entirely theoretical example, a foreign state (not, I emphasise, the Defendant) sends two agents to the UK to kill a dissident opponent by poisoning him. The operation is planned abroad. The radioactive poison is made abroad. The operatives bring the poison into the UK from abroad. They meet with the dissident in a London hotel, poison his tea, and he dies. The foreign state's responsibility is clearly established by the evidence. Can the dissident's representatives sue the foreign state in the High Court for damages for his wrongful death ? Or is the responsible foreign state immune from civil proceedings by virtue of the State Immunity Act 1978 (SIA 1978)?
To take another example, suppose agents of a different foreign state kidnap a dissident off the streets of London, hold him captive there, and torture him. Is the foreign state liable to a claim for damages for personal injury by the victim, or is it immune under the SIA 1978?
These scenarios involve some of the issues raised by this case. There are others.
In the case before me the Claimant, a critic of the Kingdom of Saudi Arabia (KSA/the Defendant), sues it for damages for personal injury. He obtained permission to serve the claim form outside the jurisdiction from the Master on an ex parte basis. The KSA now applies, in effect, for a declaration that it is immune under the SIA 1978, and to set aside the order for service out on that basis.
I will need to consider the SIA 1978 in detail later, but for now it is sufficient to explain that s 1(1) provides for a general immunity from jurisdiction. It states:
“A State is immune from the jurisdiction of the courts of the UK except as provided in the following provisions of this Part of this Act”.
The effect of this provision is that in order for a state to be subject to the jurisdiction of the courts of the UK, the proceedings must be of a kind specified in the exceptions to immunity listed at ss 2 to 11 of the SIA 1978. If none of those exceptions apply then the court lacks jurisdiction: Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270, [9]; Benkharbouche v Embassy of the Republic of Sudan [2019] AC 777, [39].
The exception relied upon by the Claimant in this case is s 5, which provides:
“5. Personal injuries and damage to property.
A State is not immune as respects proceedings in respect of –
(a) death or personal injury; or
(b) damage to or loss of tangible property,
caused by an act or omission in the United Kingdom.”
It is common ground that the burden of proving that the claim falls within s 5 as one of the exceptions to the general immunity provided by s 1 lies on the Claimant and not the Defendant. It will not suffice for the Claimant to show a ‘good arguable case’ that the claim falls within one of the exceptions. The question of whether the case falls within one of the exceptions is to be determined on the balance of probabilities as a preliminary issue: JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch 72, 193–194 (Kerr LJ) and 252 (Ralph Gibson LJ), applied in London Steam Ship Owners' Mutual Insurance Associated Limited v Kingdom of Spain [2020] 1 WLR 4943, 4956 at [30] per Henshaw J.
At the heart of this case is the alleged infection of the Claimant's iPhones with surveillance software – or spyware – by persons acting on behalf of the Defendant. Dr Bill Marczak, the expert on whom the Claimant relies, has made three witness statements (Marczak 1, Marczak 2 and Marczak 3), dated 10 December 2019, 24 March 2021 and 14 June 2021 respectively. In Marczak 1 at [4] he says that spyware is:
“… any software or hardware component that is installed on a target's electronic device, without their consent, to facilitate third-party access to data stored on the device, or to the device's functions (eg, turning on the device's microphone to record audio in the device's vicinity).”
This case involves a considerable quantity of technical material relating to computers and the internet. The legal issues are not straightforward either. The papers run to well over 3000 pages, and I was taken to a large body of international and comparative law, as well as much domestic authority. The Skeleton Arguments are very lengthy. All of this has taken some time to analyse. I am grateful to both legal teams for their assistance on a complex matter.
The issues
The parties are agreed that this case raises the following issues. The overarching issue is whether the Claimant has established, to the requisite evidential standard, that the s 5 exception is applicable to his claim. In particular:
a. Does the claim relate to alleged acts which are inherently sovereign or governmental in nature, and thus fall outside the scope of s 5 of the SIA 1978, or does s 5 encompass such acts?
b. Does the claim fail to meet the requirements of s 5 because the alleged personal injury resulting from the spyware claims was not caused entirely by acts or omissions in the UK?
c. Does the claim fail to meet the requirements of s 5 because there is insufficient evidence of the Defendant's responsibility for the persons responsible for the alleged spyware?
d. Does the claim fail to meet the requirements of s 5 because there is insufficient evidence of the Defendant's responsibility for the persons responsible for the assault on the Claimant?
e. Does the evidence relied upon by the Claimant provide no coherent or realistic basis on which to advance the Claimant's pleaded case such that the Court should take steps to halt the proceedings in any event?
The claim in summary
The Claimant's Particulars of Claim (POC) and Skeleton Argument summarise his claim in the following terms. As is normal in this kind of case, the Defendant has not filed a Defence. The following is obviously not agreed.
The Claimant is a satirist and human rights activist. He has resided in England since 2003 and has been prominently involved in campaigning for political reform and human rights in Saudi Arabia. He was granted asylum in October 2018 following an appeal to the First-tier Tribunal (Immigration and Asylum Chamber).
He claims that malicious text messages were sent to two of his iPhones by or on behalf of the Defendant and that, after he clicked on links contained within those messages, spyware known as ‘Pegasus’ was installed on his devices. This software was developed and is marketed by an Israeli company called NSO Group (NSO).
The operation of the Pegasus spyware resulted in the covert and unauthorised accessing by the Defendant of the Claimant's information stored on, or communicated or accessible via, his iPhones. As set out in NSO's ‘Pegasus – Product Description’ document, among Pegasus' functions are: the extraction and ongoing collection of all data stored on or by an infected device; location tracking of the device; interception and recording of voice calls on the device; real-time interception and recording of sounds in the vicinity of the device (by covert activation of the in-built microphone); and real-time interception and recording of images in the vicinity of the device (by covert activation of the in-built camera).
In addition, on 31 August 2018, the Claimant was followed and attacked in Knightsbridge, London. He claims this assault was instigated, directed, authorised and/or ratified by the Defendant and/or its employees, officials and/or agents acting on its behalf.
The Claimant and his iPhones were located in England at all material times during which the alleged wrongs and personal injury occurred.
The claim is brought in misuse of private information; harassment; trespass to goods; and assault.
In overview, the claim in misuse of private information is based on the covert and unauthorised collection, accessing, retention, disclosure, transfer and use of the Claimant's private information stored on or communicated or accessible via the iPhones. The harassment claim is founded on a course of conduct which included each or all of the following: the sending of the malicious text messages; the infection of the iPhones with Pegasus; the surveillance of the Claimant; and the attack on the Claimant in Knightsbridge (which latter event also forms the basis of the assault claim). The claim in trespass to goods is premised on the direct and unauthorised interference with the Claimant's iPhones, which altered their functioning, configuration and hardware in numerous ways.
The claim is for damages for personal injury (and loss consequential on that injury) in the form of psychiatric injury suffered by the Claimant as a result of learning that: (a) the text messages were malicious messages sent by or on behalf of the Defendant; (b) learning that he had been subject to surveillance; and (c) the attack in Knightsbridge; and the physical damage suffered as a result of the Knightsbridge attack.
The Claimant alleges that the Defendant is not immune in respect of the claim because the exception to sovereign immunity under s 5 of the SIA 1978 is applicable, in that...
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