Republic of Yemen v Aziz
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,Lord Justice Pill,Lord Justice Sedley,Lord Justice Gage |
| Judgment Date | 17 June 2005 |
| Neutral Citation | [2005] EWCA Civ 745,[2004] EWCA Civ 1856 |
| Docket Number | Case No: A2/2004/1901,A2/04/1901 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 2005 |
[2004] EWCA Civ 1856
Lord Justice Pill
A2/04/1901
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
MR. L.ADDIE appeared on behalf of the Applicant.
This is an application by Mr F Aziz for permission to appeal against a decision of the Employment Appeal Tribunal, Mitting J presiding, on 20 September 2004. The tribunal reversed a finding in his favour given on 8th January 2004 by an Employment Tribunal.
The applicant is an employee at the embassy of the Republic of Yemen in the United Kingdom. (There is a dispute about his claim that he is a long term employee). The question arose before the tribunal as to the operation of the State Immunity Act 1978. That was determined by the Employment Tribunal in the applicant's favour, the Tribunal holding that it had jurisdiction to consider the applicant's complaint against the respondent. The Employment Appeal Tribunal reversed that finding, having heard evidence as to the jurisdiction. There had apparently been a waiver of immunity granted by the statute.
The applicant did not appear and was not represented before the Employment Appeal Tribunal. His grounds are set out in the notice. I summarize them briefly. This may be a paraphrase. The Tribunal applied the test in Ladd v Marshall; that, having accepted fresh witness evidence, they erred in taking it at face value when it was inherently unlikely and inconsistent with other evidence; that the Employment Appeal Tribunal have misconstrued section 2(7) of the 1978 Act and that they erred in law in failing to find that the respondent had taken steps in the proceedings, during and after the original hearing before the Employment Tribunal.
In a detailed skeleton argument Mr Laddie, who appears for the applicant, has developed those points, as he has done orally this morning. He accepts that if Mummery J, giving the judgment of the Employment Appeal Tribunal in Arab Republic of Egypt [1996] ICR 13 and United Arab Emirates [1995] ICR 65 is correct, then the principles in Ladd v Marshall would not apply to a claim for immunity before the Employment Appeal Tribunal. Mr Laddie submits that too broad a view was taken by the Employment Appeal Tribunal in those cases. The Employment Tribunal accepted the immunity but went on to consider, as he submits they were entitled to do, the exceptions provided in section 2 of the statute. They made findings of fact in relation to what happened by way of the waiver of immunity, which should not have been reversed by the Employment Appeal Tribunal. It is also submitted that by conduct before the Employment Tribunal, the respondent took further steps in the action, then and subsequently, and did so with knowledge of the facts and that had the effect that immunity was waived.
Ground 3 is a point on the construction of the 1978 Act and in particular section 2(7), which is a deeming provision. Mr Laddie submits that it is not exhaustive and that immunity may be waived in other ways. The fact that it is a deeming provision adds weight to that submission. What is not referred to in his skeleton argument because it has only recently come to his attention is the case of Baccus [1957] 1 QB 438. That authority, a decision of this court, has not been referred to me this morning. I accept Mr Laddie's summary of it, which is that at that time only the head of mission could waive state immunity. He submits that the point is now arguable because of the wording of the 1978 Act following the International Convention. He makes the distinction between diplomatic immunity, where the question of who can waive is expressly considered, and state immunity, where the Convention is silent.
It is unfortunate that I have not have an opportunity to consider Baccus but I have formed a view that permission should be given. The case as expressed in the skeleton argument, as I have attempted to summarize it, is arguable. I propose to give permission generally though there are at least two distinct points involved, one a point of construction, and, secondly, the procedures which are to be followed when an issue arises under the Act. Mr. Laddie submits that appearance before the Employment Tribunal, with legal representation and solicitors, who can be assumed to be properly instructed, without the point being taken, amounts to a submission to the jurisdiction.
There should be a prompt supplementary skeleton dealing with Baccus and how the case is put on it. Moreover, the issues raised on this application are such that the Secretary of State for the Foreign and Commonwealth Office should be notified of the permission and should be given the relevant papers, including the supplementary argument to which I have referred.
An extension of time is also required. That I would refer to the court hearing the appeal. The appeal would not proceed unless permission to extend time is granted. It appears to be appropriate that the respondent should have an opportunity to make submissions on that point. An application to call fresh evidence is also anticipated. It is not formally before me. That too should be filed promptly, with appropriate documentation and also supplied to the respondent and to the Secretary of State.
ORDER: Application for permission to appeal allowed; supplementary skeleton argument to be filed; time estimate one day.
[2005] EWCA Civ 745
Lord Justice Pill
Lord Justice Sedley
Lord Justice Gage
Case No: A2/2004/1901
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE MITTING (PRESIDING)
Royal Courts of Justice
Strand, London, WC2A 2LL
MR J LADDIE (instructed by Messrs Webster Dixon) for the Appellant
MR M WESTGATE (instructed by Messrs Lloyd & Associates) for the Respondent
This is an appeal against a decision of the Employment Appeal Tribunal, ("EAT"), Mitting J presiding, sent to the parties on 20 September 2004. An extension of time has been granted. The EAT allowed an appeal by the Republic of Yemen ("the respondents") against a decision of an employment tribunal held at London Central sent to the parties on 8 January 2004. The employment tribunal held that it had jurisdiction to consider the complaints of Mr Farouk Abdul Aziz ("the appellant") against the respondents.
The appellant had for many years been employed as a member of staff at the respondents' embassy in London. He was an accounts assistant. When his employment was terminated on 30 June 2003 he made a complaint to the employment tribunal that he had been unfairly dismissed. By a notice of appearance dated 20 November 2003, signed by solicitors, Salfiti and Co, the respondents stated that they intended to resist the application. It was claimed that a sum had been paid to the appellant in settlement of an agreement made between the parties on 16 September 2003.
In the course of the hearing before the employment tribunal on 19 December 2003, the respondents, by counsel appearing on their behalf, claimed state immunity under the State Immunity Act 1978 ("the 1978 Act"). That submission was rejected by the employment tribunal but accepted by the EAT on appeal.
The Statute
Sections 1 and 2 of the 1978 Act provide:
"General immunity from jurisdiction
1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.
2 Submission to jurisdiction
(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission.
(3) A State is deemed to have submitted –
(a) if it has instituted the proceedings; or
(b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.
(4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of –
(a) claiming immunity; or
(b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it
(5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.
(6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim.
(7) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in...
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