Al-Kadhimi and Others v Saudi Arabia
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANTELL,LORD JUSTICE SIMON BROWN |
| Judgment Date | 19 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1689,[2003] EWCA Civ 1495 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 2003 |
| Docket Number | A1/2003/1858 |
[2003] EWCA Civ 1495
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
APPLICATION FOR PERMISSION TO APPEAL AND AN EXTENSION OF TIME
Lord Justice Mantell
A1/2003/1858
The Appellant was not represented and did not attend. Mr Savage attended to explain absence of appellant
The Respondent was not represented and did not attend
ORDER
Mr Savage, you carry back the information: adjournment 14 days granted, not to be re-listed for 14 days, I had better say within the next 14 days. Any further application to adjourn on the grounds of ill health to be supported by a medical certificate otherwise, you may tell him, he runs the risk —it is not my decision but whoever it comes before —of his application being refused without more.
MR SAVAGE: I do not think there will be any problem there.
[2003] EWCA Civ 1689
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Simon Brown
A1/2003/1858
The Applicant MR HASSAN appeared on his own behalf
The Respondent did not appear and was not represented
The applicant is an Egyptian national who has lived in this country since July 1988. In July 1989 he became employed by the Government of the Kingdom of Saudi Arabia, the respondents to this application, as an interpreter in the Military Attache's Department at the respondent's embassy in London. On 4th March 1991 he signed a contract of employment. He was dismissed with effect from 4th March 1999 and two days before that, on 2nd March, he presented an originating application to the Employment Tribunal. In common with a number of others employed in the respondent's embassy he claimed constructive unfair dismissal because of their refusal to sign new contracts which the respondents had sought to impose on them in 1998, under which they would have had to bear the obligation to pay income tax and national insurance, terms less favourable than under their 1991 contracts.
The complaints of Mr Hassan and nine others were the subject of a preliminary hearing before the Central London Employment Tribunal which sat on 10th and 11th October 2001, followed by a chambers meeting on 12th October, and which concluded that the complaints necessarily failed because of the effect of the State Immunity Act 1978. Section 16 of that Act disapplied section 4 of the Act, which would otherwise have provided that the respondents were not immune from proceedings under these particular contracts of employment.
The applicant and a number of others appealed against the Employment Tribunal's ruling to the EAT which, on 8th July 2003, heard the appeal and on 11th July ordered as follows:
"(1) that where the appellants' claims are based on whether compensation for personal injuries consequential upon an unfair dismissal can be claimed, that matter be adjourned generally, with liberty to apply should the higher courts reverse the judgment of the EAT in Dunnachie v Kingston upon Hull City Council EAT/0726/02 and …
(2) that the appeal be otherwise dismissed, in accordance with the written judgment of this Tribunal."
The Tribunal further directed that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the sending of that judgment to the parties. This applicant was in fact a day late in complying with that direction and now therefore needs and requests an extension of time. Let me make plain at once, this is not his real difficulty and that extension I would readily give.
I turn then to the judgment of the EAT, which was presided over by His Honour Judge Prophet. Many of the complainants, I should note, had been represented before both the Employment Tribunal and the EAT by counsel, Mr Westgate, although others, including this applicant, had not been so represented but had adopted counsel's arguments and then advanced additional arguments of their own.
It is convenient at this stage to read into this judgment the determinative parts of the EAT's judgment, namely paragraphs 11 to 16 inclusive:
"11. And so we turn to the part of the appeal to which we have had to give most of our attention today. Put in a nutshell, Mr Westgate and the unrepresented appellants say that the ET was wrong in law to conclude that the Respondent was not estopped from asserting State Immunity. That raises the legal issue of whether the doctrine of estoppel can ever apply in such a situation. We have been presented with a sustained submission by Mr Westgate of Counsel in support of the proposition that it can and we have endeavoured to take account of all that he has said. If we do not record each and every part of his submission and the authorities to which he has referred, we trust that he will accept that we have not overlooked any essential part of it. Also one of the unrepresented appellants, Mrs Taja has submitted a note on the estoppel point which we have considered.
12. Mr Westgate has, on the face of it, to surmount an initial hurdle in advancing his proposition that estoppel could be drawn in aid. In the case of Ahmed v The Government of the Kingdom of Saudi Arabia [1996] ICR 25, where matters were very similar to our case, the issue of estoppel was mentioned by Peter Gibson LJ in the Court of Appeal. He said this (at page 33):
'The point on estoppel...
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