HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Mrs Janan George Harb
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Pitchford,Lord Justice Bean |
| Judgment Date | 13 May 2015 |
| Neutral Citation | [2015] EWCA Civ 481 |
| Docket Number | Case No: A3/2014/2316 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 May 2015 |
[2015] EWCA Civ 481
Lord Justice Aikens
Lord Justice Pitchford
and
Lord Justice Bean
Case No: A3/2014/2316
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISON
MRS JUSTICE ROSE
HC09C01992
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Pannick QC and Shaheed Fatima (instructed by Howard Kennedy) for the Appellant
Tim Owen QC and Ian Clarke (instructed by Hughmans Solicitors) for the Respondent
Hearing dates: 20/02/2015
The case in outline and the issue before the court
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 royal family ("the Prince") for damages for breach of an oral contract which Mrs Harb claims was concluded between her and the Prince on about 19 June 2003. The Prince has yet to plead a defence to the claim. Instead he applied to strike it out on the ground that the English court had no jurisdiction to decide the claim. The basis for this is that the Prince asserts that if any contract was concluded between him and Mrs Harb in June 2003, he, the Prince, was acting as the representative and agent of his father, then King Fahd of Saudi Arabia ("King Fahd"). King Fahd died on 1 August 2005. The Prince asserts that the claim is, in truth, one against the estate of the late King Fahd and that it is barred by the defence of sovereign immunity pursuant to section 20 of the State Immunity Act 1978 ("the SIA"). Rose J rejected that plea, but gave the Prince permission to appeal to this court.
Before us, Lord Pannick QC accepted that the claim, as currently formulated, is against the Prince alone. He also accepted that the Prince could not, in his own right, assert state immunity in respect of the claim of Mrs Harb. But he invited this court to assume, as effectively Rose J had done, that the Prince was at all times in the position of being the agent of King Fahd and that the claim is for damages for breach of a contract concluded between Mrs Harb and the Prince as agent only for his father King Fahd. Lord Pannick accepted that the acts of the Prince, whether performed on his own behalf or on behalf of his father, King Fahd, were of a private nature and were not acts of an official nature. Therefore, effectively, we were asked to assume that the claim is one against the estate of the late King, in respect of a contract that was made in the King's private, not official, capacity. Lord Pannick's argument is that the estate of the late King can assert sovereign immunity to bar the claim, because the immunity from suit of the King as head of state, which during his lifetime extended to everything that he did, whether of an official or private nature, continued to the same extent even after his death, and so applies to a claim against King Fahd's estate for breach of a contract made in the King's private (as opposed to official) capacity.
Rose J rejected that argument. The issue before this court is whether Rose J was correct to do so.
The assumed facts
The hearing before Rose J and before us was conducted on assumed facts. These can be taken from the draft amended Particulars of Claim. 1 Mrs Harb is the widow of the late King Fahd whom she married in 1968 when he was Prince Fahd Bin Abdul. He became King of Saudi Arabia in 1982. Sometime before 1970 King Fahd promised Mrs Harb that he would provide for her financially and in a manner fitting for his wife. The King repeated these assurances and did provide finance from then on until
he suffered a stroke in 1995. Thereafter the finance stopped. On 7 May 2003 Mrs Harb's solicitors at the time sent a letter to the King enclosing a copy of a draft statement upon which Mrs Harb intended to rely in proposed proceedings against King Fahd under the Matrimonial Causes Act 1973, claiming proper financial provision from the King. 2On 19 June 2003 Mrs Harb, together with a friend, met the Prince at the Dorchester Hotel. The Prince stated that he was willing to honour the terms of King Fahd's promise to provide financially for Mrs Harb for the rest of her life. He therefore offered to pay to Mrs Harb the sum of £12 million and to procure the transfer to her of two properties in central London. The offer was made in order to satisfy the promises and assurances that King Fahd had made to Mrs Harb to provide for her financially for the rest of her life and also in return for Mrs Harb agreeing to withdraw and then actually withdrawing certain factual assertions that she had made about King Fahd. Mrs Harb accepted this offer. Thereafter, at the request of the Prince, Mrs Harb made a statutory declaration dated 20 June 2003 in which she withdrew the factual assertions made in the draft statement to which the Prince and King Fahd had taken exception. Mrs Harb also obtained statements from her legal advisers in which they undertook to keep confidential information that they had obtained about King Fahd whilst they were acting for Mrs Harb. These referred to the meeting and agreement of 19 June 2003.
Mrs Harb arranged for a formal written document to be prepared, entitled "contractual agreement", which was to be signed by the Prince and Mrs Harb. It set out the agreement made on 19 June 2003 and dealt with various practicalities that would follow from it. Mrs Harb met the Prince at the Dorchester Hotel on 22 June 2003 and provided him with copies of the statements and the contractual agreement. There were further discussions and another meeting between Mrs Harb and the Prince on 31 August 2003. However, Mrs Harb was not paid £12 million, nor were the properties transferred to her.
The proceedings
The present proceedings were issued by Mrs Harb's trustee in bankruptcy on 15 June 2009, that is shortly before the expiry of the limitation period of 6 years. The Prince's application notice challenging the court's jurisdiction on the basis of state immunity was issued in January 2010. We asked counsel why there had been what appeared to be a very long period of inactivity between the issue of the application and the hearing before Rose J in May 2014. Counsel provided us with an agreed chronology. There was in fact a dispute between the current claimant, Mrs Harb, and her trustee in bankruptcy, after the latter gave notice of discontinuance of the action on 14 June 2010. Mrs Harb intervened to set that notice aside. The action was stayed in the meantime. The discontinuance issue was dealt with finally when, as is recorded in the draft amended Particulars of Claim, on 8 August 2012 Mrs Harb took an assignment from her trustee in bankruptcy of the causes of action pleaded. The leisurely progress of the action continued. On 20 November 2013, Mrs Harb
was substituted as claimant in the action and the stay on the action was lifted. Thereafter preparations were made for the hearing of the Prince's application which was heard by Rose J on 1 May 2014.Mrs Harb continues to allege that there was an oral contract made between Mrs Harb and the Prince on 19 June 2003, which is evidenced by the subsequent "contractual agreement". There is no suggestion in the current pleading that the prince acted as agent for his father, King Fahd, in concluding the agreement with Mrs Harb. The estate of King Fahd is not a party to the proceedings.
The decision of Rose J
Rose J considered the claim for state immunity on the basis of two assumptions, which are set out at [7] and [8] of her judgment. Rose J emphasised the assumptions were made solely for the purpose of determining the application and would have no bearing if the case proceeded. She said:
"[7]. 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 it 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."
Rose J characterised the sole question for determination to be: "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".
Rose J concluded: (1) the rationale for granting a head of state immunity from suit whilst in office is that he is "the personal embodiment of the state"; 3 (2) once a head of state no longer embodies the state he merits no particular privileges or immunities as a person, although his official acts (when he was head of state) still attract immunity from suit; 4 (3) Pinochet No 3 established that a living former head of state retained immunity from suit only in respect of official actions...
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