Kuwait Investment Office v Hard
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] EAT 51 |
| Court | Employment Appeal Tribunal |
2021 Feb 3, 4; 2022 March 30
Conflict of laws - Sovereign immunity - Diplomatic immunity - Investment office of foreign state pleading state immunity in response to discrimination claims - Claimants applying for specific disclosure of documents - Office asserting membership of state’s diplomatic mission - Whether assertion inconsistent with claim as separate entity for purposes of state immunity - Whether office entitled to diplomatic immunity in respect of documents -
The claimants presented claims of discrimination against the respondent, their former employer, the Kuwait Investment Office, which claimed state immunity, pursuant to section 14(2) of the State Immunity Act 1978F1. At a preliminary hearing of applications by the claimants for specific disclosure, the respondent sought an order requiring the claimants first to set out in a pleading, to which the respondent would be given the opportunity to respond, their factual case on the issue of state immunity. The employment tribunal refused that application, holding that further formal pleadings were not required and the issue was clear. The respondent resisted the claimants’ applications on the ground that it could not be compelled to give the disclosure sought because the respondent formed part of the Kuwaiti state diplomatic mission and, therefore, had diplomatic immunity in respect of its documents and correspondence by virtue of articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations (1961), as scheduled to the Diplomatic Privileges Act 1964F2. The tribunal held that, while the listing of the respondent in the London Diplomatic List as a representative of the State of Kuwait created a presumption that it was part of the Kuwaiti mission, its assertion that it was part of the diplomatic mission was inconsistent with its claim to be a separate entity for the purposes of section 14(2) of the State Immunity Act 1978. The tribunal granted the applications for specific disclosure, holding that documents showing the nature of the respondent’s activities were relevant and necessary to a fair determination of the issue of state immunity and that permitting the respondent to give selective disclosure would be inconsistent with article 6 of the Convention for the Protection of Human Rights and Fundamental FreedomsF3.
On an appeal by the respondent, contending, inter alia, that the tribunal had erred in concluding that the respondent’s status as a separate entity necessarily precluded its diplomatic immunity and in failing to defer to the executive’s recognition of the respondent as forming part of the Kuwaiti mission in breach of the “one voice” doctrine—
Held, dismissing the appeal, (1) that the employment tribunal had been wrong to conclude that the respondent’s status as an independent legal entity under national law itself prevented it from forming part of the Kuwaiti mission and that, as a matter of principle, the respondent could not benefit from diplomatic immunity; that, if there was before the appeal tribunal a statement of recognition of the respondent’s membership of the Kuwaiti diplomatic mission, the appeal tribunal would have to accept it as conclusive evidence of the fact, interpreting and giving effect to it in accordance with the one voice principle; that, however, the respondent’s inclusion in the London Diplomatic List was not conclusive of that status, and none of the documents relied on by the respondent had been produced by the Foreign and Commonwealth Office, or the Foreign, Commonwealth and Development Office, in the knowledge that it was intended to be produced to the tribunal, containing the carefully considered views of Her Majesty’s Government, and they did not, therefore, constitute express recognition of the respondent’s membership of the mission; that, as a matter of law, there was no scope for implied recognition, but, in any event, no such inference would have been warranted in the circumstances; that it followed that there was no basis on which article 24 and/or 27(2) of the Vienna Convention applied, respectively, to the respondent’s archives and documents, or official correspondence; and that the tribunal had not erred in its assessment of the relevance of the disclosure sought and ordered (post, paras 97, 102, 104, 106, 107, 110, 113, 115, 118, 125).
(2) That there was no express provision for the service of pleadings subsequent to the response form in the employment tribunal, and it was clear, from correspondence, that the plea of state immunity was contested and the respondent was put to proof of each matter on which it relied for its plea; and that, as no amendment to the claimants’ pleaded case, or service of a further pleading, was required, the tribunal made no error of law in proceeding to consider the claimants’ application for specific disclosure without them (post, para 119).
Per curiam. As a matter of principle, article 6 of the Human Rights Convention is engaged in relation to disclosure in connection with proceedings to which that article relates. Nevertheless, if it is the case that the respondent benefits from diplomatic immunity, article 6 will not itself operate to override or qualify that immunity and does not exist in a vacuum. That position is not altered by any decision by the respondent to give selective disclosure, and to withhold unfavourable material on the basis of diplomatic immunity (post, paras 118.5–118.7).
The following cases are referred to in the judgment:
Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani
Al-Malki v Reyes
Apex Global Management Ltd v Fi Call Ltd
Arab Republic of Egypt v Gamal-Eldin [
Baccus SRL v Servicio Nacional del Trigo [
Benkharbouche v Embassy of the Republic of Sudan
Byrne v Financial Times Ltd [
Central Bank of Venezuela v Governor and Company of the Bank of England
Chandhok v Tirkey [
Duff Development Co Ltd v Government of Kelantan [
Estrada v Al-Juffali
Harrods Ltd v Times Newspapers Ltd
Khurts Bat v Investigating Judge of the Federal Court of Germany
La Générale des Carrières et des Mines v FG Hemisphere Associates LLC
Ladd v Marshall [
McGinley v United Kingdom (Application Nos 21825/93 and 23414/94) (
Mid-East Sales Ltd v United Engineering & Trading Co (PVT) Ltd
Mohamed v Breish
Noorani v Merseyside TEC Ltd [
Playa Larga (Owners of cargo lately laden on board) v I Congreso del Partido [
Polkey v AE Dayton Services Ltd [
Propend Finance Pty Ltd v Sing (
R v Governor of Pentonville Prison, Ex p Teja [
R v Secretary of State for the Home Department, Ex p Bagga [
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3)
R (Charles) v Secretary of State for Foreign and Commonwealth Affairs
R (Miller) v Secretary of State for Exiting the European Union
Rayner (JH) (Mincing Lane) Ltd v Department of Trade and Industry (
Sarrio SA v Kuwait Investment Authority [
Serco Ltd v Wells [
Shearson Lehman Bros Inc v Maclaine, Watson & Co Ltd (No 2) [
Somalia (Republic of) v Woodhouse Drake & Carey (Suisse) SA [
Trendtex Trading Corpn v Central Bank of Nigeria [
United Arab Emirates v Abdelghafar [
Yemen (Republic of) v Aziz
APPEAL from an employment tribunal sitting at London Central
By a decision sent to the parties on 18 June 2020, the employment tribunal (Employment Judge Brown sitting alone) allowed applications for specific disclosure by the claimants, Mr S Hard and Ms A Locke, in proceedings relating to their claims of discrimination against the respondent, the Kuwait Investment Office. The tribunal rejected the respondent’s assertion of diplomatic immunity, deciding that it could not at one and the same time contend that it was a separate entity distinct from the State of Kuwait and entitled to state immunity under section 14(2) of the State Immunity Act 1978, while asserting that it was part of the Kuwaiti mission protected under the Vienna Convention on Diplomatic Relations (1961); that permitting the respondent to give selective disclosure would be inconsistent with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the principles of natural justice and the overriding objective, so as to...
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Kuwait Investment Office v Mr S Hard
...approved by the court for handing down KUWAIT INVESTMENT OFFICE v MR S HARD 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 -----......