Aziz v Aziz and others [2007] EWCA Civ 712, [2007] All ER (D) 168 (Jul)
Court of Appeal, Civil Division
Sir Anthony Clarke MR, Sedley and Lawrence Collins LJJ
11 July 2007
The obligations of the UK under Art 29 of the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention), apply equally to the foreign head of a state in his personal capacity as they apply in his public capacity. However, the article is not a rule of immunity. Where a foreign head of state has been publicly insulted, the remedy lies in the law of defamation, subject to constitutional guarantees of free speech.
Sir Frank Berman QC, Neil Hart and Tim Taylor (solicitor advocate) (instructed by and of S J Berwin) for the Sultan.
Max Mallin (instructed by Davenport Lyons) for the claimant.The main defendant appeared in person.
Sir Michael Wood (instructed by the Treasury Solicitor) as advocate to the court.
The claimant was the former wife of the Sultan of Brunei. She became involved in litigation with a defendant, A, over, inter alia, two audio cassette tapes containing material of a confidential nature. Early in the proceedings an order was made anonymising them and interlocutory orders were made prohibiting A from disclosing the confidential information on the tapes. The claimant made a committal application against A. She alleged that A had disclosed the tapes to one of the Sultan’s representatives.
The Sultan, invoking his status as a foreign head of state, sought directions preventing the publication of his name, or the publication of any matters which could lead to him being identified in connection with the proceedings. He relied on the application to a state by s 20 of the State Immunity Act 1978 (SIA 1978) of Art 29 of the Vienna Convention, which was given force of law by the Diplomatic Privileges Act 1964 and which, it was said, required the UK, including its courts, to “treat him with due respect and…take all appropriate steps to prevent any attack on his…dignity”. The judge refused the relief sought. He drew a distinction between a head of state in his public and his private capacity, so as to remove the private sphere from the scope of SIA 1978, s 20. The Sultan appealed.
LORD JUSTICE LAWRENCE COLLINS:
The first question was whether the judge was wrong in deciding that the protection afforded by Art 29 was not available to a head of state in his personal capacity. His lordship agreed with counsel that the judge below was wrong. Although the existence and scope of the relevant duty was in issue, and was not a rule of immunity, it enured to the head of state in his personal capacity. A head of state was entitled to immunity ratione personae (see Mighell v Sultan of Johore [1894] 1 QB 149).
The obligations of the UK under Art 29 as applied to heads of state, applied equally to the foreign head of state in his personal capacity as they applied in his public capacity (see Harb v His Majesty King Fahd Bin Abdul Aziz [2005] EWCA Civ 632, [2005] All ER (D) 428 (May)).
There was some discussion at the hearing of the question whether the privileges and immunities of a head of state were functional.
It was functional in the sense that it had a function in international relations to protect the ability of the head of state to carry out his functions and to promote international co-operation.
His lordship turned to the content of the obligation and the concept of “dignity”.
There was no doubt that a state was obliged to take steps to prevent physical attacks on, or physical interference with, a foreign head of state who was in the UK.
But, outside physical attack or interference, to the extent there was any uniform practice—which was doubtful—it amounted to no more than courtesy or comity.
A head of state who was subject to false vilification might have a remedy in defamation. It was extremely difficult, if not impossible, to envisage any situation in which speech, otherwise permitted under English law, could be prohibited on the ground that it was an attack on the dignity of a foreign head of state.
What was beyond doubt, was that whatever the content of the duty in international law of the UK to take appropriate steps to prevent an attack on the dignity of a foreign head of state, there was not the slightest trace of any conduct in the instant case which could, even on the most extensive interpretation of the notion of “attack on dignity”, be such an attack. Nor was there any interference with the “dignity” of the Sultan.
As to remedies, there was no doubt that the court had a power to order that any judgments or orders, or any part of them, should be private. By s 11 of the Contempt of Court Act 1981, where a court allowed a name or other matter to be withheld from the public in proceedings before the court, the court might give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.
The application by the Sultan was not a claim to immunity. But his lordship would be prepared to accept that the Sultan was entitled to make the application that the judgments be redacted, without waiving his immunity for any other purpose. He would also accept that the court, in exercising its discretion to make part of a judgment private, could take into account the fact that the applicant was a foreign head of state, and also the international obligations of the UK.
Nothing discreditable was said about the Sultan in the judgments. No finding was made against him or about him. No confidential information relating to the Sultan was contained in the judgments. There was no basis for the proposition that the identification of the Sultan in the judgments could be a breach of the international obligations of the UK, nor was there any other reason why he should not be identified.
The appeal would therefore be dismissed.
Lord Justice Sedley and Sir Anthony Clarke MR agreed.
