Harb v HRH Prince Abdul Aziz Bin Fahd Abdul Aziz

JurisdictionEngland & Wales
JudgeMrs Justice Rose
Judgment Date09 June 2014
Neutral Citation[2014] EWHC 1807 (Ch)
Date09 June 2014
CourtChancery Division
Docket NumberCase No: HC09C01992

[2014] EWHC 1807 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Rose

Case No: HC09C01992

Between:
Mrs Janan George Harb
Claimant
and
Hrh Prince Abdul Aziz Bin Fahd Bin Abdul Aziz
Defendant

Lord Pannick QC and Ms Shaheed Fatima (instructed by HowardKennedyFsi LLP) for the Defendant/Applicant

Mr. Edward Fitzgerald QC and Mr Tom Hickman (instructed by Neumans Solicitors LLP) for the Claimant/Respondent

Hearing date: 1 May 2014

Mrs Justice Rose
1

The Defendant ('Prince Abdul Aziz' or 'the Prince') applies under CPR 11.1 for an order declaring that the court has no jurisdiction to try this claim against him on the grounds that the claim is barred by the defence of state immunity under the State Immunity Act 1978.

2

The Claimant ('Mrs Harb') alleges that in March 1968, when she was 19 years old, she was married in secret to the sovereign of the Kingdom of Saudi Arabia, the late King Fahd, Prince Abdul Aziz's father. At the time of the marriage King Fahd was a Prince and Minister of the Interior of Saudi Arabia; he acceded to the throne on 13 June 1982. Mrs Harb says that at some point before 1970 King Fahd promised to provide for her financially for the rest of her life; that he did provide for her from that time until he suffered a stroke in 1995; but that since his stroke he has failed so to provide for her. In May 2003 her solicitors sent to King Fahd in Riyadh a copy of a draft statement on which she said she would rely in proceedings she intended to bring against him in England under section 27 of the Matrimonial Causes Act 1973 ('the matrimonial proceedings'). In response to that letter Prince Abdul Aziz, she says, agreed to meet her in London on 19 June 2003. Mrs Harb alleges that at that meeting Prince Abdul Aziz told her he was prepared to honour the terms of his father's promise to provide for her financially. More particularly Prince Abdul Aziz offered to pay her a lump sum of £12 million and to transfer to her the title to two properties in Central London. She says that accepted that offer in satisfaction of the late King's promises. She also promised Prince Abdul Aziz that she would withdraw certain assertions she had proposed to include in her statement in the matrimonial proceedings and further that she would take steps to preserve the confidentiality of information she had provided to her legal advisers relating to her relationship with the late King. She has, she asserts, fulfilled her side of the bargain but she has not received either the £12 million or the title to the London properties.

3

Mrs Harb launched the matrimonial proceedings against King Fahd in January 2004. The claim was dismissed by reason of state immunity by the President of the Family Division in a judgment dated 15 December 2004. The Court of Appeal gave Mrs Harb permission to appeal but King Fahd died on 1 August 2005, bringing the matrimonial proceedings to an end: see the judgment to that effect in Harb v King Fahd Bin Abdul Aziz [2006] 1 WLR 578.

4

The present claim was issued against Prince Abdul Aziz on 15 June 2009 shortly before the expiry of the limitation period. It was issued by Mrs Harb's trustee in bankruptcy but I shall treat it as having been brought by Mrs Harb as she has subsequently bought the claim from her trustee. The claim form states that the claim arises:

"from a breach of an agreement made between the Defendant and Mrs Janan George Harb in 2003 by which the Defendant agreed to pay Mrs Harb the sum of £12 million and to transfer to her the properties at 108 and 129 Pier House, Cheyne Walk, London ("the Properties")."

5

The relief claimed is an order requiring Prince Abdul Aziz to transfer the Properties to Mrs Harb and to pay damages in the sum of £12 million and/or for the value of the Properties and interest.

6

I emphasise at the outset of this judgment that the Prince has not made any response as regards the accuracy or otherwise of any of the allegations made by Mrs Harb – his submissions have been limited to contesting the jurisdiction of the court. I have seen a letter from the Royal Embassy of Saudi Arabia in London dated 4 May 2010 and addressed to the Prince's solicitors saying that the Kingdom of Saudi Arabia supports the claim for state immunity made by the Prince in these proceedings.

The issues raised by the Prince's application

7

By the time the hearing of the application came before me the issues had been substantially narrowed by the agreement of the parties that the application should proceed on the basis of some important assumptions. These assumptions, both sides stressed, apply solely for the purpose of determining this application and will have no bearing on the proceedings if they go forward. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the Prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the Prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father's estate is entitled to now. I should make clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the Prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.

8

The second assumption is that if Mrs Harb's claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the Prince would have been able to claim sovereign immunity in the English courts to defeat her claim.

9

The sole question for decision in this application is therefore whether when the King ceased to be head of state of Saudi Arabia on his death, his immunity from suit (and hence the Prince's) continued to extend to everything he did when he was head of state, whether of an official or private nature. Counsel for both parties told me that they have been unable to find any legal authority directly on this issue and that there is no commentary in text books and no learned articles considering the question. 1 Their researches have not uncovered any reference to a claim previously having been brought against the estate of a head of state who died in office. Given the calibre of the legal representation in this case, I can be confident that means that there is none to be found.

The relevant domestic and international law instruments

10

The immunity from suit enjoyed by a head of state is conferred by section 20(1) of the State Immunity Act 1978 ('the SIA 1978'). That provides:

" 20. Heads of State.

(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—

(a) a sovereign or other head of State;

(b) members of his family forming part of his household; and

(c) his private servants,

as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants."

11

The SIA 1978 therefore directs us to the Diplomatic Privileges Act 1964 ('the DPA 1964') which by section 2 gives effect in United Kingdom law to certain articles of the Vienna Convention on Diplomatic Relations 1961 ('the Vienna Convention') as set out in a Schedule to the Act. Those articles include article 39 which provides:

"Article 39

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.

4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission."

12

Lord Browne-Wilkinson noted in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147, [1999] UKHL 17 (' Pinochet (No. 3)') that the task of transposing the immunity enjoyed by a head of mission in Article 39 to the position of a head of state under section 20 is not a straightforward one:

"The correct way in which to apply Article 39(2) of the Vienna Convention to a former head of state is baffling. To what "functions" is one to have regard? When do they cease since the former head of state almost certainly never arrives in this country let alone leaves it? Is a former head of state's immunity limited to the exercise of the functions of a member of the mission, or is that...

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  • HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Mrs Janan George Harb
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 May 2015
    ...and the issue before the court 1 This is an appeal from the order and judgment of Rose J dated 9 June 2014, neutral citation number [2014] EWHC 1807 (Ch). The claimant ("Mrs Harb") has brought a claim against HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz, a prince of the Saudi Arabian roya......

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