Intpro Properties (UK) Ltd v Sauvel

JurisdictionEngland & Wales
JudgeLORD JUSTICE MAY,LORD JUSTICE WATKINS
Judgment Date29 March 1983
Judgment citation (vLex)[1983] EWCA Civ J0329-3
CourtCourt of Appeal (Civil Division)
Docket Number83/0155
Date29 March 1983

[1983] EWCA Civ J0329-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE BRISTOW)

Royal Courts of Justice,

Before:

Lord Justice Watkins

Lord Justice May

83/0155

1982 I No. 6441

Intpro Properties (U.K.) Limited
and
Sauvel and Others

MR GEORGE NEWMAN, Q.C., and MR E. CONTRAN (instructed by Messrs. Philip Conway Thomas & Co.) appeared on behalf of the Appellants.

The Respondents were not present nor represented.

LORD JUSTICE MAY
1

This appeal raises a question about the extent of the immunity of a foreign State to proceedings in the English Courts. The matter comes before us by way of an appeal from the judgment and Order of Bristow, J. of the 26th November, 1982 dismissing the plaintiffs' action against the defendants. The learned Judge held the first and second defendants to be immune from the civil jurisdiction of our Courts by virtue of Article 31 (1)(a) contained in Schedule 1 to the Diplomatic Privileges Act, 1964. In so far as the third defendant is concerned, The Republic of France, the learned Judge held that that State in its turn was immune from the civil jurisdiction of our Courts by virtue of Section 1 of the State Immunity Act, 1978: although Section 6 (1) of that Act does in certain circumstances permit actions to be brought against a foreign State, Bristow, J. held that that sub-section did not apply to the present proceedings by virtue of Section 16 (1) of the same Act. I shall refer to the statutory provisions in more detail hereafter.

2

The action was begun by a Writ issued on the 4th November, 1982, originally against the first two defendants only. After an ex parte application for interlocutory injunction, the details of which are no longer material, the first and second defendants issued a summons on the 10th November, 1982 asking for Orders to discharge it and to set aside the Writ and its Service upon them, and also for a declaration that the Court had no jurisdiction over them by virtue of the various provisions contained in Schedule 1 to the Diplomatic Privileges Act, 1964.

3

This came before Comyn, J. on the 11th November, when he stayed the injunction until after the further hearing of the Summons and gave the plaintiffs leave to join the Republic of France as third defendant. He ordered Service on this defendant to be by way of service on the Consul-General and gave the latter liberty to apply to set this aside on 12 hours' notice.

4

On the 18th November, 1982 Service was acknowledged on behalf of the French Government, who gave notice of their intention to contest the proceedings, so taking the first step under Order 12, Rule 8 of the Rules of the Supreme Court of the new procedure to set aside a Writ and its Service on the ground that the English Court has no jurisdiction in the suit.

5

When the Summons then came on for full hearing by Bristow, J. on the 26th November, 1982, Counsel who had earlier represented the first two defendants before Comyn, J. told the learned Judge that he no longer had instructions from them and that they were not present in person. Further, no-one was instructed to appear on behalf of the third defendant. By virtue of Section 1 (2) of the State Immunity Act, 1978, to which I shall refer in detail hereafter, it thus became necessary for the Court to examine the jurisdiction point of its own motion, although it was able to enlist the aid of Counsel who had previously been acting for the first two defendants as amicus curiae. In the event, as I have said, the learned Judge held all three defendants to be immune from the civil jurisdiction of our Courts by virtue of the 1964 and 1978 Acts respectively. It is from this decision that the plaintiffs now appeal.

6

The plaintiffs' claim in this action is based upon a lease dated the 8th August. 1979 and made between them as landlord and the French Government as tenant. For reasons which will appear, the plaintiff appellants no longer seek any relief in the action from the first two defendants. Nevertheless they contend that they are entitled to continue to prosecute it against the third defendant from whom they claim damages for alleged breaches by the latter of covenants in the lease to which I have referred.

7

By that lease the landlord let and the tenant took the house and garden known as 19, Pelham Crescent, London S. W. 7., together with the fixtures, furniture and household and other effects in or upon those premises, more particularly specified in an inventory which was signed by the parties, for a term of four years from the 8th August, 1979 at a rent of £23,400 for the first year and increasing thereafter to a rent of £31,145 for the fourth year of the term.

8

The lease was in an entirely usual form. It contained covenants by the tenant duly to pay the rent, to keep the interior of the premises and their contents in good repair and condition; to replace articles damaged with articles of a similar kind; and to deliver up to the landlord the premises and their contents in such good condition and complete repair on the expiration or sooner determination of the lease. In addition, it contained usual covenants on the part of the tenant to permit the landlord and his agent to enter the premises for the purpose of examining their state and condition and that of the contents and also for the purpose of carrying out any repairs that were found to be necessary. Finally, there was a covenant not to use the premises for any other purpose than that of a private dwelling house in the occupation of the first defendant and his family.

9

At all material times Monsieur Sauvel, the first defendant, has been the Financial Counsellor, at the French Embassy in London. The demised premises were taken for occupation by him and his' family so long as he remained in London. If he ceased to be employed within the Greater London area at any time after the end of the first year of the term, the lease contained a provision whereby on not less than five months' previous notice in writing the tenant could determine the term.

10

Very early in 1982 an outbreak of dry rot was discovered on the premises. It is unnecessary to go into any detail except to say that a number of attempts, some successful, others not, were made to obtain entry for the plaintiffs' contractors to the premises in order to inspect them, to provide estimates for the work of repair, and then to do the necessary work once their estimate had been accepted. In the event, the plaintiffs were unable to obtain entry for themselves or their contractors for these purposes for a considerable period and they accordingly started these proceedings.

11

At the start of the hearing of this appeal Mr. Newman showed us a latter from the French Embassy dated the 25th January, 1983. From this it appears that the first and second defendants gave up their occupation of the premises on the 26th November, 1982. The third defendant has also delivered up the keys to the plaintiffs' managing agents, but its representatives have been told that these keys are being held by those agents as trustees, that no surrender of the lease has been accepted and that the plaintiffs' rights there under remain unaffected. In addition, there are some arrears of rent which have not yet been paid. The amount of the arrears has been tendered, but only on the basis that it must be accepted in full and final settlement of the plaintiffs' claims and therefore it has been refused.

12

In all these circumstances the present relief sought by the plaintiffs against the third defendant alone is damages for the loss which they have sustained as a result of the third defendant's refusal to permit the landlord's contractors entry to the premises. The plaintiffs have already received claims from their contractors for abortive visits to the site. Further, the plaintiffs contend that as the result of the refusal by the third defendant to allow the plaintiffs' contractors to do the necessary work, the dry rot has spread and that the cost of remedying it has consequently increased by some £2,500. In addition, the plaintiffs are contending that on delivery up of the premises by the Sauvels there are certain items, particularly of furniture and paintings, missing from the premises. There is also the question of dilapidations as a result of the defendant's failure to comply with the repairing covenants in the lease. These last claims may have to be made in further proceedings started after the first two defendants moved out of the premises. Nevertheless, Mr Newman submits that the Court's decision on the points which already arise in the existing litigation will cover similar points which may arise in that further litigation.

13

As was the situation when this matter was before the learned Judge below, no-one appeared before us on the hearing of this appeal on behalf of the third defendant to argue the various points which arise. I think that this was unfortunate. The result has been that we too have had to examine the question of jurisdiction of our own motion without the benefit of...

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4 cases
  • Re B (A Child) (Care Proceedings: Diplomatic Immunity)
    • United Kingdom
    • Family Division
    • 30 July 2002
    ... ... Intpro Properties (UK) Ltd v Sauvel [ 1983 ] QB 1019 , CA, In re P ... ...
  • HM The Queen in right of Canada; Village Holdings Sdn Bhd
    • Malaysia
    • High Court (Malaysia)
    • 1 January 1988
  • Christina Lynn Estrada v Walid Bin Ahmed Abdallah Al-Juffali
    • United Kingdom
    • Family Division
    • 8 February 2016
    ...v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR. Gulbenkian v Gulbenkian [1937] 4 All ER 618. Intpro Properties (UK) Ltd v Sauvel [1983] 2 All ER 495, [1983] QB 1019, [1983] 2 WLR 908, CA. Jimenez v IRC [2004] STC (SCD) 371. Jones v UK (2014) 36 BHRC 81, ECt HR. Kalogeropoulou v Greece ......
  • Village Holdings v HM the Queen
    • Malaysia
    • High Court (Malaysia)
    • 7 January 1987
    ...of costs. Writ and service thereof set aside. 1 [1894] 1 QB 149. 2 (1875) 1 CPD 567. 3 [1977] 1 All ER 881; [64 ILR 111 at 122]. 4 [1983] 2 All ER 495; [64 ILR 5 [1983] 1 AC 244; [64 ILR 307 at 308.] [6Ibid. at 312.] 7 [1894] 1 QB 149. 8 [1924] AC 797; [2 Ann Dig 124]. 9 [1894] 1 QB 149. 10......

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