NOTES OF CASES
| Published date | 01 October 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00144.x |
| Date | 01 October 1949 |
NOTES
OF
CASES
IMMUNITY
OF
FOREIGN
BOVEREIONB
THE
decision of the Court of Appeal in
Krajina
v.
The
Tass
Agency
[1949]
2
All
E.R.
274,
does not establish any new principle of law,
but turns on its facts.
If
it
invites
a
few work of comment,
this
is
on
account of what it does not decide rather than what it does
decide.
The plaintiff claimed damages for libel contained in
The
Soviet
Monitor
which, presumably through their London
office,
the defen-
dants published in England. The defendants claimed to be entitled
to immunity from jurisdiction. The Tass Agency, described in
an uncontradicted certificate issued by the Soviet Ambassador as
a
department of the Soviet State, was formed by a statute according
to clause
1
of which it ‘is the central information organ of the
U.S.S.R.
and is attached to the Soviet of People’s Commissars
of
the
U.S.S.R.’
According to another clause of the same statute
it
shall
‘
enjoy all the rights of a juridical person
’.
In
the absence
of any other material evidence, particularly of legal evidence, the
Court of Appeal found
it
impossible to infer from the latter clause
that the Agency was in fact a corporation having the status of
a
legal entity separate and distinct from the Soviet State. This
conclusion would seem to have been inevitable. As Cohen and
Tucker L.JJ. showed by referring to a number of similar instances
in
English law, there is nothing unusual in the suggestion that
a
government department may enjoy the rights of, yet does not con-
stitute a legal entity. There was indeed a lack of realism in the
emphasis which the plaintiff’s argument put upon the existence
or
non-existence of corporate status, and there is force in Cohen L.J.’s
dictum (p.
280),
concurred in by Tucker L.J. (p.
284),
that even
if
the existence of
a
separate legal entity had been proved,
it
would
not necessarily have followed that
it
would not have been entitled
to
immunity
:
The history of the legislation in this country as regards the
departments of State seems to me to show that it is quite
possible that a State may for certain purposes under its own
legislation give some department
of
State the status and the
rights of a juridical entity without depriving the department
of its general immunity from suit.
The underlying idea would appear to
be
that what really matters
is not the status, but the functional character of the enterprise:
even
if
a corporation has been created, the
fact
that it performs
governmental functions may entitle
it
to immunity.
Would
it
then not be appropriate to hold conversely that where
an enterprise does
not
perform governmental functions, it is not
434
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