NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1969.tb01226.x
Date01 July 1969
Published date01 July 1969
NOTES
OF
CASES
CIVIS
BRITANNICUS SUM
A
TEACHER
of constitutional law, scanning the judgments in the
Court of Appeal in
Nissan
v.
Att.-Gen.,l
was overheard to say:
cc
Splendid
I
I’ve waited over
48
years for this decision. How
delightful to hhve a new case
on
the defence of act of State, and
to find that
it
fits
so
neatly with those curious decisions
on
Spanish
barracoons,2 lobster factories in Newf~undland,~ and seditious
Americans in Dublin
!4
As
I
have always told my students, act of
State cannot be a defence to proceedings brought in respect of a
prima facie
wrongful
act committed against a British subject outside
Her Majesty’s dominions, because British subjects owe allegiance to
the Crown wherever they may be and the Crown owes them correla-
tive duties of protection.” Reading the report of
Att.-Gen.
v.
Nissan
in the House of Lords,J his brow was furrowed, his eyes were
pained.
For
three of .their Lordships gave the impression of thinking
that act of State might,
in
certain circumstances, be a good
defence against a British subject’s action based
on
a direct inter-
ference with
his
private rights.
The legal issues
in
Nissan’s
case were complex, and the judgments
in
the.House of Lords leave some important questions unanswered.
The facts, briefly, were as follows.
N.,
a naturalised citizen of the
United Kingdom and Colonies, owned a luxury hotel in Cyprus.
In
December
1968
British troops, which had been brought into the
Republic of Cyprus under an agreement with the Government of
Cyprus for the purpose of helping
in
the maintenance of public order,
requisitioned
N.’s
hotel. In March
1964
they became part of the
United Nations Peacekeeping Force in Cyprus.
In
May
1964
they
were relieved by a Finnish contingent of the United Nations Force.
N. alleged that while they were in occupation the British contingent
had damaged, destroyed and looted
his
goods and chattels and
caused other damage to the hotel; these allegations were disputed.
He brought an action against the Attorney-General (representing
the Crown)
in
the High Court, claiming various declarations;
in
particular he sought to establish that the seizure and occupation of
his hotel were lawful acts under the royal prerogative in respect of
1
19661 1
Q.B.
286; [1967] 3
W.L.R.
1044; 519671
2
All
E.R.
1236.
Cj.
J.
(3.
Eollier,
Act of State as a Defence against a British Subject
[1966]
Cambridge
L.J.
102.
2
Buron
v.
Denman
(1846)
2
Exch.
167.
3
Walker
v.
Baird
[l692
A.C.
491.
4
Johnstone
v.
Pedlar
l&l]
2
A.C.
262.
5
[1969] 1
All
E.R.
6
s
9;
also reported
sub
nom. Nissan
v.
Att.-Gen.
[1969]
2
W.L.R.
926.
427
428
THE
MODERN
LAW
REVIEW
VOL.
32
which he was entitled to the payment of compensation, and that he
had been promised compensation by an agent of the Crown when the
hotel was first occupied and was now entitled to compensation and
damages for breach of contract, and that he was entitled to damages
for trespass to goods. In his defence, the Attorney-General claimed
inter
ah
that till March
1964
the British occupants were agents of
the Cyprus Government,
so
that their acts were foreign acts of State
not cognisable by the court,
or
alternatively that they were acts
of State of Her Majesty performed in pursuance
of
an agreement
with an independent Power; and that from March to May
1964
they were acting on behalf of the United Nations,
so
that no action
would lie against the Crown in respect of that period either. Master
Jacob ordered that the questions of law raised by the defence be
decided as preliminary issues before the trial. All the proceedings
thus far reported have been on these issues.
Three points should be noted by way of clarification. First, both
the plaintiff and the defendant claimed that the occupation of the
hotel was lawful, but for different reasons; the Crown asserting that
it
was part and parcel of
or
necessarily incidental to an act of State,
and the plaintiff, faced with the difficulty that English courts have
disclaimed jurisdiction to entertain claims for trespass to land
situated outside the realm,O resting the legality of the occupation
on the royal prerogative and contending that seizure
of
a British
subject’s property under the prerogative gave rise to liability to pay
compensation. This points to a difference between prerogative acts
and acts of State. Secondly, the only claim sounding in tort was
for trespass to goods. Thirdly, in the course of the hearing in the
court of first instance, the defence conceded that act of State could
not be relied on as a defence to an action in tort by a British
subject even outside Her Majesty’s dominions. This at least can
safely be recorded in the textbooks.
John Stephenson
J.
held
(i) that the British troops had never
been agents of the Government of Cyprus,
so
that a plea of foreign
act of State would not avail; on this point he was upheld by the
Court of Appeal and the House of Lords; (ii) that the occupation
of the hotel in pursuance of an international agreement was never-
,theless a lawful act of State of Her Majesty, and even a British
subject could not succeed in a claim arising out of an act of State
performed outside Her Majesty’s dominions (iii) that from March
to May
1964
the occupation under United Nations authority was
6
British South Africa
Co.
v.
Contpanhia
de
Moqambique
118931
A.C.
602.
In
the
Nissnn
ca.se ([1969]
1
All
E.R.
at
p.
639) Lord Reid indicated readiness
to reconsider this rule.
7
His judgment, embodying a learned discussion
of
the authorities and the prin-
ciples underlying them,
is
reported in [1967] 3 W.L.R.
109
and [1967]
2
All
E.R. 200 as well as [1968]
1
Q.B.
286.
8
Cf.
Cook
v.
Sprigg
[1899]
A.C.
572 and one or two other awkward cases
in
which ostensibly unlawful acts
in
relation to British subjects immediately
after the
annexation
of
a territory were held to be defensible as acts
of
State.

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