The High Court considered the application of the exception to state immunity, contained in section 5 of the State Immunity Act 1978 (“AIS“), in an action for personal injury brought by Mr. Al-Masair, a satirist and human rights activist living in the United Kingdom (the “applicant“), against the Kingdom of Saudi Arabia (the “respondent”).
The tribunal’s judgment emphasizes that Article 5 is not an ambiguous provision and that any alleged international law obligation is incapable of overriding the ordinary meaning of the wording of Article 5. After undertaking a detailed exercise of statutory interpretation, the court held that the exception in section 5 was applicable to the alleged facts of this case (those facts not having been admitted by the defendant) and, therefore, concluded that the defendant did not was not immune to the request. The court’s judgment only considered this preliminary issue, and the claim will now proceed to trial on the merits.
Plaintiff alleges that Defendant, or his agents, infected his cell phones with surveillance software, or spyware, known as Pegasus. The plaintiff also alleges that in August 2018, he was physically assaulted on the orders and/or under the authority of the defendant and/or his agents.
The plaintiff has been authorized by the court to serve the claim form outside the jurisdiction, without notice. In response to the application, the defendant requested a declaration of immunity under the SIA and the setting aside of the service order. As is the usual position when a defendant state invokes immunity, to avoid submitting to the tribunal’s jurisdiction, the defendant did not file a defence.
Legal issues in court
The court’s judgment is helpfully structured by reference to the main legal issues that needed to be considered in deciding the defendant’s claim:
- Do the act of installing Pegasus on the plaintiff’s iPhones and the assault fall within the scope of Article 5 as acts performed in the exercise of the defendant’s sovereign authority , or does section 5 extend to any act of any kind done by a foreign state in the UK which causes personal injury? (there “first number”).
- Does the claim fail the requirements of Article 5 because the alleged personal harm resulting from the spyware claims was not caused entirely by acts or omissions in the UK? (there “second number”).
- Does the claim fail the requirements of Article 5 because there is insufficient evidence of the defendant’s liability to those responsible for the alleged spyware?
- Does the claim fail the requirements of Article 5 because there is insufficient evidence of the defendant’s liability to those responsible for the assault on the claimant?
- Does the evidence adduced by the plaintiff provide him with a coherent or realistic basis to advance his case so that the court should stay the proceedings in any event?
The court found in favor of the plaintiff on each issue. This article focuses on the tribunal’s analysis with respect to the first and second legal issues (as defined above) which provides useful insight into how Section 5 of the SIA should be interpreted and applied in future business.
It was common ground that the burden of proving that the exception applied was on the claimant. In addition, the judgment specified that whether the case fell within the relevant exception would be decided on a balance of probabilities as a preliminary question.
The first number
The general principle is that a State is immune from the jurisdiction of the English courts except as provided for in Part I of the SIA which, among other provisions, contains specific exceptions to immunity under the AIS. Part I of the SIA has been described by English courts as “a complete code” and the courts have already recognized that “[i]If the case does not fall under one of the exceptions in Article 1, the State is protected” (Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs  UKSC 62, Lord Sumption, paragraph 39).
As noted above, the plaintiff relied on the exception to immunity contained in Section 5 of the SIA which provides that “A State does not enjoy immunity from suit in respect of: (a) death or bodily harm; or (b) damage to or loss of tangible property, caused by an act or omission in the UK.”
The defendant argued that the claim related to (alleged) acts which were inherently sovereign (alleged espionage and attack on a political opponent) and therefore the claim did not fall within the scope of the claim. application of Section 5. The Respondent urged the court to interpret Section 5 narrowly and read the words “act or omissionin Article 5 as excluding acts or omissions of an inherently sovereign character.
Judge Julian Knowles provided the historical context for the development of state immunity and the shift from absolute immunity from prosecution in English courts to the restrictive theory of immunity. This theory provides that immunity attaches to acts performed by a State in the exercise of its sovereign authority (acts performed imperious swear), while the immunity does not extend to acts arising out of private law activities, including acts which might properly be performed in the course of business or commerce (acts performed swear managementis).
While noting that international law distinguishes between different types of activities undertaken by States, the Court emphasized the well-established rule that obligations under international law, which are relevant to resolve any ambiguity in the meaning of the wording of the law, are unlikely to prevail over unambiguous statutory wordings.
Reiterating the statements contained in Al-Adsani v. Government of Kuwait (No. 2) (1996) 107 ILR 536 and Jones v Ministry of Interior of the Kingdom of Saudi Arabia  1 AC 270, the court in the present case held that “[s]Article 5 is not a complicated provision”. At first glance, Article 5 appears to be “concerned with all acts and omissions in the United Kingdom of whatever kind (i.e. those committed jure imperii and those committed jure gestionis) causing death, etc.”
The starting point is to apply the ordinary canons of statutory interpretation and, in particular, the court held:
- The need to apply the clear terms of a national law. This construction canon supported the construction of “act or omissionin Article 5 as meaning “all acts or omissionswithout any restriction as to the nature of the act read in this provision.
- The principle that if the legislator has excluded certain words used in one legislative provision from another provision, such exclusion will generally be considered intentional. The court was convinced that the legislator did not intend section 5 to cover only acts performed swear managementis by virtue of the fact that, in several provisions of the SIA, the legislator chose to refer expressly to the sovereign authority in order to restrict an exception to the general immunity conferred by Article 1(1).
The tribunal concluded that the acts alleged did not fall outside the scope of Article 5, whether or not they were acts of a sovereign character.
The second problem
With regard to the second question, the tribunal analyzed whether Article 5 applied: (a) only where all of the alleged acts or omissions were committed in the UK (reflecting the defendant’s assertion) or, in the alternative, (b) provided that certain substantial acts or omissions and the actual act causing the damage was committed in the UK (which reflects the claimant’s assertion).
Again, the starting point for the court’s analysis was the reference to the clear terms of section 5. Justice Knowles was of the view that the grammatical meaning of section 5 was clear and he gave importance to the use of the indefinite article in the exception which requires that there be “an act or omission in the UK(emphasis added) for Section 5 to apply.
Anxious not to broaden the scope of section 5 too much, Judge Knowles pointed out that there must be an act or omission in the UK which causes the required damage over more than de minimis basis for the exception to be raised. The court was satisfied that the fact that section 5 only states “an actsuggests that not all wrongful acts need to occur in the UK for the exception to apply.
The judgment confirms that the clear and ordinary meaning of Article 5 must be applied. It follows that the exception to immunity provided for in Article 5 should not be interpreted restrictively and that it applies to both sovereign and private acts or omissions (allegedly) committed by a State. The judgment also clarifies that not all acts or omissions causing the required harm need to be committed in that jurisdiction for the exception to apply. It is therefore possible to apply the exception in Article 5 where there are several acts or omissions causing the alleged damage, occurring in several jurisdictions, provided that “a substantial and effective act causing the damage occurred in the UK”.
Unless the defendant asks to appeal the judgment (and leave is granted), the case will then proceed to trial on the merits.
Ghanem Al-Masarir vs. Kingdom from saudi arabia  EWHC 2199 (QB)
The authors would like to thank Ryan Kelly, Solicitor Apprentice at CMS, for his contribution to this article.