Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos de Borbón y Borbón
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Popplewell LJ,King LJ |
| Judgment Date | 06 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1595 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA/2022/001029 |
[2022] EWCA Civ 1595
Lady Justice King
Lady Justice Simler
Lord Justice Popplewell
Case No: CA/2022/001029
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Nicklin
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Otty KC, Paul Luckhurst and Professor Philippa Webb (instructed by Carter-Ruck) for the Applicant
James Lewis KC and Andrew Legg (instructed by Kobre & Kim (UK) LLP) for the Respondent
Hearing date: 8 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The appellant is the former King Juan Carlos I of Spain. He abdicated on 18 June 2014, in favour of his son, King Felipe VI, though he remains entitled to use the title King and the style “His Majesty”. The respondent is a Danish national who was a resident of Monaco between 2008 and 2019. She lives in London and Shropshire.
The appellant and respondent were in an intimate relationship from 2004 to 2009. In the underlying proceedings issued by the respondent on 16 October 2020, the respondent alleges that, from 2012, the appellant engaged in a course of conduct amounting to harassment pursuant to the Protection from Harassment Act 1997. She seeks damages and an injunction in respect of acts both prior to and after the abdication. I emphasise at this stage, that there has, as yet, been no decision about whether any of the allegations she makes are true. The appellant emphatically denies that he engaged in, or directed, any harassment of the respondent and rejects her allegations to the contrary as untrue. In respect of the part of the claim period which is not barred by some form of immunity, he has also reserved the right to dispute jurisdiction on other grounds.
The harassment claim, as originally pleaded in the Particulars of Claim, contained a number of allegations about the conduct of the appellant and General Sanz Roldán, the Head of the Spanish National Intelligence Agency (“the CNI”) during the period before his abdication, when the appellant was sovereign and head of state. By an application notice dated 18 June 2021 the appellant sought an order declaring that the court had no jurisdiction to try those (and later) allegations because he was entitled to immunity under the State Immunity Act 1978 (“SIA”).
Nicklin J dismissed the application. He held, in summary, that:
(a) the appellant was not entitled by virtue of his special constitutional position in Spain as a “sovereign”, to the personal immunity afforded under section 20(1)(a) SIA following his abdication;
(b) nor was he a member of the household of King Felipe VI for the purposes of immunity under section 20(1)(b) SIA;
(c) so far as the pre-abdication acts are concerned, the claim for harassment was not (even arguably) within the sphere of governmental or sovereign activity for the purposes of section 14(1) SIA. On the contrary, harassment is an act that any private citizen can perform;
(d) as for the individual acts relied upon as part of the course of conduct amounting to harassment, these did not give rise to functional immunity under section 14(1) SIA;
(e) in particular, in relation to the alleged covert operation to gain entry to the respondent's home in Monaco, a case of functional immunity under section 14(1) SIA was not made out on the basis of the case as it then stood, but the judge observed that if evidence subsequently emerged which suggested that those who arranged or undertook the search were “state-sponsored” the issue could be revisited;
(f) in relation to other acts alleged to have been carried out by General Sanz Roldán, the mere fact that the General was Director of the CNI was not enough to justify treating harassing threats, by email or telephone, as having been done in that capacity;
(g) finally, the respondent's reliance on the exception to state immunity in section 5 SIA was rejected because her claim included no claim to have sustained a recognised psychiatric injury as a result of the alleged harassment and was therefore not a claim for personal injury within the terms of section 5 SIA.
Nicklin J refused permission to appeal.
Following an oral hearing, permission to appeal to this court was granted by Underhill and Peter Jackson LJJ on three of the five grounds advanced at that stage (grounds 1, 2 and 4). Permission was limited to challenging the findings that the appellant has no claim to functional immunity under section 14(1) SIA. The appeal is, accordingly, limited to the allegations of conduct that pre-dated the abdication. These are pleaded at paragraphs 15 to 23 of the Particulars of Claim, as acts of harassment of the respondent, including the covert search of her home in Monaco, done or procured by General Sanz Roldán “under the direction or with the consent” of the appellant. The specific allegations are discussed further below. It is common ground that even if the appellant succeeds on grounds 1, 2 and 4 that will not be fatal to the respondent's claim, since she pleads post-abdication acts of harassment in respect of which state immunity cannot arise. But so long as the pre-abdication conduct remains part of her case, the appellant is entitled to pursue his objection to them.
In addition to the reasons shortly summarised above for rejecting the claim to functional immunity under section 14(1) SIA, at [75] of the judgment, Nicklin J indicated that parts of the original pleading were ambiguous as to the details of the pre-abdication acts and the role of General Sanz Roldán in particular, and said:
“For the sake of clarity in the future conduct of the [respondent's] claim … the [respondent] should, as Mr Lewis QC offered, make it clear in her Particulars of Claim that the acts alleged against General Sanz Roldán are said to be acts of his in his personal capacity, not as head of the CNI or other official capacity.”
The judge proceeded on that basis in his judgment, and at paragraph 6 of the order he made, dated 29 March 2022, giving effect to his judgment, he gave the respondent permission to amend in accordance with that offer. The respondent served Amended Particulars of Claim on 12 April 2022, making the amendment directed at [75] of the judgment (together with a number of additional amendments, including deletion of references to the CNI, which are said by the appellant to have gone beyond the scope of [75]). The Amended Particulars of Claim as served now contain the following (among other) averments:
“13. General Sanz Roldán acted in his personal capacity on behalf of the Defendant and not in any official capacity in respect of this and every other allegation involving him made in these Amended Particulars of Claim”.
The grounds of appeal challenge the judge's substantive decision that the claim to functional immunity under section 14(1) SIA was not made out, together with his approach to the proposed amendment. The grounds are:
(a) in reaching his substantive conclusion, the judge adopted an erroneous approach to the legal test by considering only whether the cause of action (namely, harassment) was of a nature that any private citizen could perform, and by failing to conduct a closer analysis of the individual acts alleged and, in particular, to consider whether they were done “under colour of authority” whatever their motive (ground 1);
(b) the judge wrongly proceeded on the basis of an anticipated amendment, in the absence of any formal application to amend, without sight of draft proposed amendments or any examination of the merits of the proposed amendment. He compounded the error by giving permission to amend on an anticipated basis in the course of hearing the state immunity application and this constituted a serious procedural irregularity (ground 2); and
(c) wrongly and in error of law, the judge concluded that he could defer resolution of the immunity plea in relation to the alleged targeting of the respondent's home in Monaco (pleaded at paragraph 16 of the Particulars of Claim) and relied on this possibility in support of his dismissal of the immunity claim (ground 4).
The appeal is opposed. The respondent seeks to uphold the judgment for the reasons given by the judge. Alternatively, by way of a Respondent's Notice the respondent contends that if there would otherwise be immunity in respect of these acts, the statutory exception for personal injury claims applies pursuant to section 5 SIA. The judge concluded that, while the respondent did not need to rely on this exception, her claim was not a claim for personal injury. She submits that this was an error of law and the judge was wrong to reject her reliance on section 5 SIA (as he did at [76] of the judgment).
In addition, by an application dated 6 October 2022 the respondent sought to rely on an “Unagreed Bundle” of documents not before the judge. The application was opposed. The Unagreed Bundle includes a proposed draft Re-Amended Particulars of Claim, and a letter from Kobre & Kim (UK) LLP (solicitors for the respondent) dated 26 September 2022, explaining that new information has come to light since the Particulars of Claim were filed. In his skeleton argument on behalf of the respondent, Mr Lewis KC asserted that the draft Re-Amended Particulars of Claim are significant to the appeal because new information is now available about the motivation and objectives of the appellant's alleged harassment (the “Lucum gift” allegations said to have been inimical to his status and role as sovereign); together with allegations against a private company...
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