Zoernsch v Waldock
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0324-4 |
| Court | Court of Appeal |
| Date | 24 March 1964 |
[1964] EWCA Civ J0324-4
In The Supreme Court of Judicature
Court of Appeal
On appeal from Order of Mr. Justice Thompson of 20th November, 1963.
Lord Justice Willmer,
Lord Justice Danckwerts and
Lord Justice Diplock.
The Plaintiff Appellant, Dr. Zoernsch, appeared in person.
Mr. M. E. BATHURST (instructed by Messrs. Herbert & Gowers & Co.) appeared on behalf of the Defendants.
HER MAJESTY'S ATTORNEY-GENERAL (Sir John Hobson, Q. C.) and Mr. J. R. CUMMING-BRUCE (instructed by the Treasury Solicitor) appeared as amici curiae.
This is an appeal from an Order made by Mr. Justice Thompson on the 20th November, 1963, affirming an Order made by Master Jacob on the 5th November, 1963, whereby he ordered that the Writ of Summons be set aside and that the action be dismissed with costs. The First Defendant was from the year 1954 until the month of January, 1962, a member and President of the European Commission on Human Rights (hereinafter referred to as "the Commission"). The Second Defendant has been since July, 1954, a permanent member of the staff of the Council of Europe (hereinafter referred to as "the Council"), and since January, 1960, has served as Secretary of the Commission.
The Plaintiff complains that he was a victim of injustice at the hands of the Courts of the Federal Republic of Germany, in that he was denied a fair trial in violation of one of the rights set forth in the Convention for the Protection of Human Rights and Fundamental Freedoms, to which the Federal Republic is a party. In pursuance of what he conceived to be his rights under the Convention he instituted proceedings before the Commission by way of petition against the Federal Republic, but by two decisions, dated respectively the 31st May and the 14th December, 1961, his petition was rejected by the Commission. He complains that the failure of his petition was due to the fact that the Second Defendant, as Secretary, acting on the instructions of the First Defendant, failed to present it properly to the Commission.
In these circumstances the Plaintiff on the 15th July, 1963, issued the writ in the present action endorsed with a claim in the following terms: "The Plaintiff's claim is for damage arising from negligence and corruption in running the business as President (1st Defendant) and Chairman of the Secretariat (2nd Defendant) of the Commission of Human Rights of the Council of Europe in Strasbourg." The Defendants entered a conditional appearance, and applied to set aside the writ as null and void on the ground that the Court has no jurisdiction to adjudicate upon the claim endorsed thereon by reason of the immunity from legal process enjoyed by the Defendants and each of them.
The Defendants' application was based on the provisions of the International Organisations (Immunities and Privileges) Act, 1950, and the Council of Europe (Immunities and Privileges) Order, 1960 (1960 No. 442) made thereunder. The material provisions of the Act of 1950 are as follows:-
Section 1 "(l) This section shall apply to any organisation declared by Order in Council to be an organisation of which the United Kingdom or His Majesty's Government therein and one or more foreign sovereign Powers or the government or governments thereof are members.
"(2) His Majesty may by Order in Council -"
"(a) provide that any organisation to which this section applies (hereinafter referred to as 'the organisation') shall, to such extent as may be specified in the Order, have the immunities and privileges set out in Part I of the Schedule to this Act, and shall also have the legal capacities of a body corporate;"
"(b) confer upon -"
"(i) any persons who are representatives (whether of governments or not) on any organ of the organisation or are members of any committee of the organisation or of any organ thereof"–. Sub-paragraphs (ii) and (iii) refer to certain other persons.
-"to such extent as may be specified in the Order, the immunities and privileges set out in Part II of the Schedule to this Act;"
"(c) confer upon such other classes of officers and servants of the organisation as may be specified in the Order, to such extent as may be so specified, the immunities and privileges set out in Part III of the Schedule to this Act."
That is followed by a proviso in the following terms: "Provided that the Oraer in Council shall be so framed as to secure that there are not conferred on any person any immunities or privileges greater in extent than those which, at the time of the making of the Order, are required to be conferred on thatperson in order to give effect to any international agreement in that behalf"-.
Section 2: (l) Where immunities and privileges are conferred on any persons by an Order in Council made under subsection (2) of the foregoing section, the Secretary of State
"(a) shall compile a list of the persons entitled to immunities and privileges conferred under paragraph (b) of that subsection, and may compile a list of the persons entitled to immunities and privileges conferred under paragraph (c) of that subsection;
"(b) shall cause any list compiled under this subsection to be published in the London, Edinburgh and Belfast Gazettes;" and
"(c) whenever any person ceases or begins to be entitled to the immunities and privileges to which any such list relates, shall amend the list and cause a notice of the amendment or, if he thinks fit, an amended list, to be published as afor said."
"(2) Every list or notice published under the foregoing sub-scctionshall state the date from which the list or amendment takes or took effect; and the foot that any person is or was included or not included at any time among the persons entitled to the immunities and privileges in question may, if a list of those persons has been so published, be conclusively proved by producing the Gazette containing the list or, as the case may be, the last list taking effect before that time, together with the Gazettes (if any) containing notices of the amendments taking effect before that time, and by showing that the name of that person is or was at that time included or not included in the said list."
Part II of the Schedule, which provides for the "immunities and privileges of representatives, members of committees, high officers and persons on missions", confers upon them, by paragraph 7, "the like immunity from suit and legal process as is accorded to an envoy of a foreign sovereign Power accredited to His Majesty". Part III of the Schedule, which deals with the "immunities and privileges of other officers and servants", confers upon them, by paragraph 10, "immunity from suit and legalprocess in respect of things done or omitted to bo done in the course of the performance of official duties."
Part I of the Order in Council of 1960 provides by section 1: "The Council of Europe (hereinafter referred to as the Council) is an organisation of which Her Majesty's Government in the United Kingdom and the Governments of foreign sovereign Powers are members."
Part II deals with the privileges and immunities of the permanent representatives of the members of the Council, representatives of members of the Council or the Committee of Ministers, and representatives to the Consultative Assembly. Part II, by section 10, provides for the privileges and immunities of the Secretary-General and the Deputy Secretary-General of the Council. Section II, which deals with other officers of the Council, provides:- "Except in so far as in any particular case any privilege or immunity is waived by the Secretary-General, all permanent and temporary members of the staff of the Council shall enjoy:-
"(a) Immunity from legal process in respect of vords spoken or written and all acts done oy them in their official capacity and within the limits of their authority."
Part IV, which is headed "European Commission of Human Fights", provides by section 12: "(l) Except in so far as in any particular case any privilege or immunity is waived by the European Commission of Human Rights, members of the Commission shall enjoy:-
"(a) In respect of words spoken or written and all acts done by them in their official capacity, the like immunity from legal process as is accorded to an envoy of a foreign sovereign Power accredited to Her Majesty" -.
On behalf of the First Defendant it is contended that he is entitled to the immunity prescribed for members of the Commission by section 12 of the Order in Council, which is within the powers conferred by section 1 (2) (b) and Part II of the Schedule to the Act of 1950 The Second Defendant claims the immunityprescribed for members of the staff of the Council by section 11 of the Order in Council, which is said to be within the powers conforred by section 1 (2) (c) and Part III of the Schedule to the Act. It is proved and not denied that the Commission has not vraived the immunity from legal process which the First Defendant claims to enjoy: nor has the Secretary-General of the Council waived the immunity which the Second Defendant claims to enjoy as a member of the staff of the Council It has further been proved, by the production of the relevant copy of the London Gazette, that the First Defendant's name is included, and has been included since July, 1958, in the list compiled by the Secretary of State for Foreign Affairs of the persons entitled to immunities and privileges conferred under socoion 1 (2) (b) of the Act. The name of the Second Defendant, on the other hand, is not included in any much list; but his employment as a member of the staff of the Council and as Secretary of the Commission is proved by a certificate furnished by the Secretary-General of the Council.
The Plaintiff, who has...
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