Kuwait Investment Office v Mr S Hard
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Ellenbogen |
| Neutral Citation | [2022] EAT 51 |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 30 March 2022 |
Judgment approved by the court for handing down KUWAIT INVESTMENT OFFICE v MR S HARD
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Neutral Citation Number: [2022] EAT 51
Case No: EA-2020-000380-JOJ
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 30 March 2022
Before :
THE HONOURABLE MRS JUSTICE ELLENBOGEN DBE
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Between :
KUWAIT INVESTMENT OFFICE Appellant
- and -
Mr SIMON HARD Respondent
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Professor D Sarooshi QC and Mr P Webster (instructed by Bates Wells) for the Appellant
Mr J Laddie QC and Mr N Roberts (instructed, respectively, by Judge Sykes Frixou and Shepherd
and Wedderburn LLP) for the First and for the former Second Respondent
Hearing date: 3 & 4 February 2021
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JUDGMENT
Judgment approved by the court for handing down KUWAIT INVESTMENT OFFICE v MR S HARD
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SUMMARY
JURISDICTIONAL POINTS, PRACTICE AND PROCEDURE
In advance of a preliminary hearing to determine whether the Appellant benefited from state
immunity under the State Immunity Act 1978, the First Respondent and the former Second
Respondent (whose claim has since been withdrawn) sought an order for specific disclosure,
following the standard disclosure previously given by the Appellant. The Appellant sought orders (1)
debarring the Respondents from advancing any positive factual case on state immunity unless that
case were first set out in a pleading, to which it would then be given the opportunity to respond, and
(2) deferring consideration of the Respondents’ application for specific disclosure, pending
completion of that process. In any event, the Appellant asserted that (1) it could not be compelled to
give the disclosure sought, because it formed part of the Kuwaiti diplomatic mission in the UK and,
accordingly, benefited from diplomatic immunity under the Vienna Convention on Diplomatic
Relations 1961 (‘the VCDR’), which it had not waived; and (2) the specific disclosure sought was
irrelevant to the issues arising for consideration in relation to its plea of state immunity.
The employment tribunal refused the Appellant’s application and went on to determine the
Respondents’ application for specific disclosure. It held that, as a separate entity from the state of
Kuwait, the Appellant could not benefit from diplomatic immunity and that the documentation sought
by the Respondents was relevant to the issue of state immunity and disclosable (in certain cases,
without a right of inspection).
The Appellant appealed from the above orders, contending that the employment tribunal had erred in
its conclusions as to diplomatic immunity; in particular (1) having concluded that certain
documentation created a rebuttable presumption of diplomatic immunity, in going on to conclude that
the Appellant’s status as a separate entity necessarily precluded such immunity (ground 5), and (2) in
Judgment approved by the court for handing down KUWAIT INVESTMENT OFFICE v MR S HARD
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failing to defer to the executive’s alleged recognition of the Respondent as forming part of the Kuwaiti
diplomatic mission in the UK, in breach of the ‘one voice’ doctrine (ground 4). Three further grounds
of appeal (6 to 8) related to the asserted consequences of its diplomatic immunity. In any event, the
Appellant maintained its position on the need for a further pleading by the Claimants (grounds 1 and
2) and on the irrelevance to the substantive preliminary issue of the disclosure sought (ground 3).
The EAT allowed ground 5 and dismissed grounds 1 to 4 of the appeal. In consequence of its
conclusions on ground 4, grounds 6 to 8 fell away. The employment tribunal had erred in concluding
that, as a matter of principle, a separate entity could not benefit from diplomatic immunity.
Nevertheless, on the available evidence, Her Majesty’s Government had not expressly recognised the
Appellant as forming part of the Kuwaiti diplomatic mission, such that the one voice doctrine was
not engaged. As a matter of law, there was no scope for implied recognition, but, in any event, the
available evidence would not have supported such an inference. The EAT made observations
regarding (1) the relationship, where diplomatic immunity exists, between a claimant’s Article 6
ECHR rights and a respondent’s rights under Articles 24 and 27(2) of the VCDR; and (2) the scope
and effect of the latter articles. The employment tribunal had made no error of law in refusing to order
a further pleading by the Respondents, or in its approach to determining the relevance of the specific
disclosure which it had ordered the Appellant to give.
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