Holland v Lampen-Wolfe
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE HUTCHISON,SIR JOHN BALCOMBE |
| Judgment Date | 30 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0730-20 |
| Docket Number | QBENI 98/0085/1 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1998 |
[1998] EWCA Civ J0730-20
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
(Mr J Mitting QC, sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London WC2
Lord Justice Nourse
Lord Justice Hutchison and
Sir John Balcombe
QBENI 98/0085/1
LORD LESTER OF HERNE HILL QC and MR P SAINI (instructed by Messrs Mishcon de Reya, London WC1) appeared on behalf of the Appellant Plaintiff.
MR C GREENWOOD (instructed by Messrs Nabarro Nathanson, London W1) appeared on behalf of the Respondent Defendant.
Thursday, 30th July 1998
This is a libel action in which the defendant's plea of state immunity has succeeded before the master and the judge. With the leave of the judge, the plaintiff brings a further appeal to this court.
The plaintiff, Dr Carolsue Holland, is a citizen of the United States of America and a professor of international relations at Troy State University ("TSU"), a campus university based in America which also provides courses at a number of United States bases in Europe and Asia, including Menwith Hill RAF Station in North Yorkshire. Menwith Hill is one of the military bases operated and maintained in the United Kingdom by the United States of America as part of its functions as a member of the NATO alliance. The units stationed at Menwith Hill are responsible, amongst other things, for the coordination of education and training for United States military personnel in the United Kingdom, Denmark and Norway and for certain associated civilian personnel in the United Kingdom. The United States Government has a contract with TSU, under which TSU provides certain courses as part of these education and training programmes. Overall responsibility for the administration of the courses is vested in TSU's European regional office, which is situated at a United States Air Force base in Germany.
The defendant, James Lampen-Wolfe, is also a citizen of the United States of America. On his assignment to the United Kingdom in February 1995 he was employed by the United States Department of Defence as educational services officer at Menwith Hill, in which post his responsibilities included the planning, development and implementation of the education and training programmes provided from that base. Owing to an administrative error, his passport did not at that time contain the entry and note of recognition which, by paragraphs (b) and (c) respectively of section 10(1) of the Visiting Forces Act 1952, are made prerequisites to his being a member of a civilian component of a visiting force for the purposes of that Act. The error was not corrected until July 1997, after the acts complained of in this action.
In 1997 the plaintiff, as part of her employment with TSU, was teaching research methods in international relations at Menwith Hill. She had the status of a technical representative, which means that she had been admitted to the United Kingdom and permitted to work here without having to comply with the normal immigration and work permit requirements. She also enjoyed various privileges extended to members of the US forces at Menwith Hill.
On 27th March 1997 the defendant, in his capacity as education services officer, wrote a memorandum to TSU's European programme director at its European regional office in Germany under the heading "Unacceptable Instructor Performance Dr Carolsue Holland". In it the defendant listed seven complaints about the plaintiff's conduct which he had received from a number of her students. He said that he was deeply disturbed about these events and that he had never before written such a letter regarding an instructor. He added:
"With deep regret I officially request that another instructor be assigned to complete the current class at Menwith Hill Station."
The defendant has said in an affidavit that he had been instructed to take action regarding the complaints by his immediate superior. He added:
"I therefore contacted Dr Philip Wittenburg at TSU's European Regional Office and orally reported the complaints. He asked me to confirm in writing the complaints which had been received so he could more fully consider them. This I did. The memorandum was written further to complaints which had been made to me, and in pursuance of my duties as Educational Services Officer. Throughout this matter, I acted in the course of my duties as Educational Services Officer."
The plaintiff having complained that the defendant's memorandum had defamed her, the writ in this action was issued on 6th May 1997. The statement of claim was served on 9th June 1997. On 26th June 1997 the defendant issued a summons seeking to have the writ and service thereof set aside pursuant to RSC O.12, r.8(1)(g) and (h). The summons came before Master Trench who, on 19th December 1997, granted the relief sought and dismissed the action with costs. The plaintiff appealed to the judge. Her appeal came before Mr John Mitting QC, sitting as a deputy judge of the Queen's Bench Division, who, on 16th January 1998, dismissed it. He gave the plaintiff leave to appeal to this court.
State immunity can arise either under the State Immunity Act 1978 or at common law. But section 16(2) of the 1978 Act provides:
"This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State whilst present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952."
So the first question is whether the defendant's writing and publication of the memorandum was something done by or in relation to the armed forces of the United States of America. If it was, the defendant's claim for immunity must be dealt with under the common law.
In Littrell v United States of America (No 2) [1995] 1 WLR 84 the plaintiff claimed damages for personal injuries arising out of allegedly negligent medical treatment which he had received at the United States military hospital at Lakenheath while serving in the United States Air Force...
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