Planmount Ltd v Republic of Zaire
| Jurisdiction | England & Wales |
| Judgment Date | 29 April 1980 |
| Date | 29 April 1980 |
| Court | Queen's Bench Division (Commercial Court) |
(Lloyd J.)
Sovereign immunity — Restrictive theory — Building works at ambassador's residence — Whether a commercial transaction — Whether restrictive theory of sovereign immunity a part of English law prior to the State Immunity Act 1978 — Whether restrictive theory limited to action in rem — Service of process — The law of England
Summary: The facts:—In 1978 the plaintiffs, a firm of builders, carried out substantial work at the official residence in London of the Ambassador of the Republic of Zaire. The plaintiffs were paid the sum of £47,800 but a balance of over £14,600 remained in respect of which the plaintiffs issued a writ. After leave was granted ex parte to serve notice of the writ upon the defendants out of the jurisdiction, the Master set aside the writ on the ground that the plaintiffs would have great difficulty in overcoming the obstacle of absolute immunity. The plaintiffs appealed from the decision of the Master.
Held:—The appeal was allowed. A foreign State was entitled to immunity only in respect of its governmental acts. The contract for building works on the Ambassador's residence was a private or commercial transaction, so that the defence of sovereign immunity was not available. The State Immunity Act 1978 (Appendix I, below) did not apply directly because the contract was made before its coming into force, but it was clearly established that prior to the passing of that Act a foreign State had no absolute immunity in the English courts, whether in respect of actions in rem or actions in personam. It was wrong to infer from the provisions of the 1978 Act relating to commercial transactions that the earlier law had accepted the principle of restrictive immunity only in actions in rem.
Service of the writ could be effected by the method set out in Section 12 of the 1978 Act, since that Section applied to these proceedings even though the substantive provisions of the Act did not.
The following is the text of the judgment of the Court:
In this action the plaintiffs, a small firm of builders, claim against the Republic of Zaire the balance of an account due for building work done on the ambassador's official residence in The Bishop's Avenue, Hampstead. The defendants seek to set aside service of the writ on the ground that the Republic of Zaire is an independent sovereign state and is therefore entitled to sovereign immunity. Since the point is one of some general interest I was asked to give my judgment in open court.
Prior to January 1978, the plaintiffs had, according to their evidence, done a number of small building jobs for the defendants at the residence in Hampstead and at the embassy in Chesham Place. Then, on 10th January 1978, the plaintiffs agreed to carry out substantial works at the residence. The contract is in writing. It was signed, on behalf of the Embassy of the Republic of Zaire, by the ambassador himself. The contract price was £54,400. The work was to start the next day and was to be completed by 12th May 1978. There were agreed variations amounting to £8,096·66 in all. The defendants have paid £47,800 leaving a difference of £14,696·66 which the plaintiffs claim in these proceedings.
The writ, with the statement of claim indorsed, was issued on 16th May 1979. The master gave leave, ex parte, to serve out of the jurisdiction in August 1979. But on 9th January 1980 he set aside service of the writ and stayed all further proceedings on the ground, as he put it, that the plaintiffs would have great difficulty in overcoming the obstacle of absolute immunity. Counsel for the defendants sought to support the master's decision on two grounds. In the first place he argued that prior to the passing of the State Immunity Act 1978, the rule of absolute immunity still prevailed in the case of actions in personam. It was only in the case of actions in rem that there had been any relaxation. He relied on Compania Naviera Vascongada v SS CristinaUNKELR[1] [1938] 1 All ER 719, [1938] AC 485, The Philippine AdmiralUNKELR[2] [1976] 1 All ER 78, [1977] AC 371, Thai-Europe Tapioca Service Ltd v Government of PakistanUNKWLR[3] [1975] 3 All ER 961, [1975] 1 WLR 1485 and Uganda (Holdings) Ltd v Government of Uganda[4] [1979] I Lloyd's Rep 481, in which Donaldson J followed the Thai-Europe case rather than the subsequent decision of the Court of Appeal...
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