Sayn-Wittgenstein-Sayn v Borbon y Borbon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWHC 668 (QB) |
| Docket Number | Case No: QB-2020-004165 |
| Year | 2022 |
| Court | Queen's Bench Division |
[2022] EWHC 668 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2020-004165
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Caplan QC, James Lewis QC, Adam Chichester-Clark and Andrew Legg (instructed by Kobre & Kim (UK) LLP) for the Claimant
Sir Daniel Bethlehem QC and Professor Philippa Webb (instructed by Clifford Chance LLP) for the Defendant
Hearing dates: 6–7 December 2021
This judgment was handed down by the judge remotely by circulation to the parties' representatives and BAILII by email and publication on www.judiciary.uk. The date of hand-down is deemed to be as shown above.
Approved Judgment
The issue to be resolved by the Court is whether, by operation of the State Immunity Act 1978, the Defendant is immune from the jurisdiction of the Court in respect of all or part of a claim for harassment brought against him by the Claimant.
A: The parties
The Claimant is a Danish national who has been a resident of Monaco since 2008. She lives in London and Shropshire.
The Defendant was the King of Spain and head of state from 22 November 1975 until his abdication on 18 June 2014, at which point his son, King Felipe VI became King of Spain and head of state. The Defendant retired from public life on 2 June 2019. From August 2020, the Defendant has been living in Abu Dhabi in the United Arab Emirates.
It is common ground that the Claimant and the Defendant were in a relationship from 2004. The Claimant alleges that, in January 2009, the Defendant asked the Claimant to marry him. Their relationship is said to have ended later in 2009.
B: The claim
On 16 October 2020, the Claimant issued a Claim Form seeking damages and an injunction against the Defendant on the grounds that he had pursued a course of conduct against the Claimant that, she alleged, amounted to harassment in breach of s.1 Protection from Harassment Act 1997.
In her Particulars of Claim, dated 29 December 2020, the Claimant identifies the alleged acts which she contends amounts to the course of conduct amounting to harassment for which, she alleges, the Defendant is responsible. The Claimant alleges that the harassment started in April 2012 and has continued until the Claim was issued.
As it will become important when I come to assess the claim for immunity, I need to set out, in detail, the pleaded claim in respect of the alleged acts of harassment in the period prior to the Defendant's abdication. As this includes allegations about third parties (who have had no opportunity to respond), fairness requires that I make clear that, at this stage, these are only allegations. I have redacted some names where the status of the individual means that the name is not relevant for the issues I have to decide. It is common ground between the parties that, for the purposes of this hearing only and the argument on immunity, the Court will assume the matters pleaded in the Particulars of Claim to be true. At this stage, the Court does not have – and there has been no investigation of – any evidence relating to these alleged incidents.
The detail of the alleged harassment in the period from April 2012 to 18 June 2014 is set out in the following paragraphs of the Particulars of Claim:
“13. As detailed below, the Claimant was later informed by General Felix Sanz Roldán, the head of the Spanish National Intelligence Agency known as the ‘Centro Nacional de Inteligencia’ (‘CNI’), that he had been responsible for deliberately leaking the identity of the Claimant to the media. He did not offer any reasonable explanation as to why he had done so. Thereafter General Sanz Roldán, the Defendant's agents and/or agents or contractors of the CNI acting on the Defendant's instructions placed the Claimant, and others close to her, under physical surveillance which included vehicle and personal surveillance, trespassing onto her property at which she was residing and hacking into her/their telephones and computers.
…
16. During April to June 2012 General Sanz Roldán, acting under the direction or with the consent of the Defendant, co-ordinated a covert operation to enter and search the Claimant's office and apartment in Monaco. General Sanz Roldán utilised armed operatives from the Monégasque security company, [X], as a cover for the operation in order to enable a CNI team dispatched from Spain to gain access to her property without her consent. Operatives from [X company] informed the Claimant that ‘the Spanish sweeping team’ were arriving on 4 June from Madrid and would need five days ‘to sweep’ her office and apartment. Business and personal documents belonging to the Claimant had been examined and/or copied and some removed during the operation, without her consent.
17. The Claimant was told by the Defendant, and by General Sanz Roldán, that [X company] had been engaged to protect her from the paparazzi and from journalists who might steal documents. However, the true objectives of the Defendant were: to find and remove any documents in her possession related to his business and financial dealings; to ascertain any information about the Claimant which might be used to pressurise her to comply with his wishes; to prevent her from providing information in respect of anything which might incriminate him; and to install surveillance equipment.
18. General Sanz Roldán contacted the Claimant on a number of occasions by email and telephone using the alias ‘Paul Bon’. ‘Paul Bon’ made it clear that he was acting under directions from the Defendant. The Defendant confirmed that this was the position in the course of telephone conversations between the Claimant and the Defendant during the period between April and June 2012.
19. In early May 2012 the Defendant told her that General Sanz Roldán would be arriving in London in order to meet with her in person, in terms that made it clear that he required her to meet with the General. The Claimant and General Sanz Roldán met in the Claimant's hotel room at the Connaught Hotel on 5 May 2012 at the Defendant's insistence. During the meeting he threatened the Claimant and her family by stating that he could ‘not guarantee her physical safety or that of her children’ unless she complied with what he described as ‘recommendations’ but which were, in fact, orders. This threat reasonably made the Claimant fear for her life and that of her children. The words themselves were clear and sinister but they were made all the more so by the fact that they were made by the head of the CNI on the Defendant's behalf in the United Kingdom, and whilst the Monaco operation was ongoing.
20. The Claimant travelled the same day to her apartment in Villars, Switzerland to visit her son. On arrival, the Claimant found that papers had been disturbed within her apartment and a copy of a book on the death of Princess Diana had been left on a coffee table (which, for the avoidance of doubt, did not belong to the Claimant and had not been there before). The book was entitled ‘Princess Diana: The Hidden Evidence, How MI6 and the CIA were involved in the death of Princess Diana’. That evening she received a telephone call from an unknown person who said, in Spanish, that ‘there are many tunnels between Monaco and Nice’ – it is averred that the telephone call and placement of the book are obviously connected.
21. On 17 May 2012, ‘Paul Bon’ (i.e. General Sanz Roldán) sent the Claimant an email stating that the ‘services’ that had been provided to her at her Monaco home and office were no longer necessary and that he would let [X company] know that going forward the Claimant or any person she designated would be exclusively dealing with her security. Mr ‘Bon’ added one ‘last recommendation’. He said that it was ‘advisable’ for the Claimant to keep a security guard at her premises ‘until the moment you send the black boxes with the documents to the place of your chose [sic].’ Mr ‘Bon’ expressly stated that the Defendant had been informed of ‘this intention’. The Claimant reasonably construed this as a threat to her person.
22. In one telephone call General Sanz Roldán threatened the Claimant that there would be consequences if she did anything against the Defendant's interests. The Claimant telephoned the Defendant in Madrid about this threat and on 18 May 2012 ‘Paul Bon’ responded by email stating that there had been a misunderstanding.
23. On 11 June 2012, the Claimant received a further email from ‘Paul Bon’ referring to a number of matters which made allegations which were inculpatory of the Claimant and her business or financial affairs. The allegations were false and were partly based on documents which had been stolen and/or information obtained from her office/apartment in Monaco in April/May. The email said: ‘Any leak of this information would have a devastating effect at this moment for the Institution and Your image’. The email was reasonably construed by the Claimant as a threat that these allegations would be leaked to the media if the Claimant failed to co-operate with the Defendant and General Sanz Roldán”.
I can summarise the acts of harassment alleged against the Defendant following his abdication as follows:
i) The Claimant alleges that, at the direction of the Defendant or with his consent, she was placed under covert surveillance by CNI agents. This included an alleged attempt to place a tracking device on the Claimant's car and what the Claimant believes are attempts to intercept or monitor her communications.
ii) This surveillance is alleged to have included further targeting of the Claimant's property in the UK.
iii) In 2014, the Claimant alleges that the Defendant pressurised the...
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