KUWAIT INVESTMENT OFFICE v SIMON HARD

rejected the Respondent’s assertion of diplomatic immunity. In particular, it held that the Respondent could not, at one and the same time, contend that it was a separate entity, distinct from the executive organs of the government of the state and capable of suing or being sued, for the purposes of section 14(2) of the SIA, whilst asserting that it was part of the Kuwaiti mission, protected by Articles 24 and 27(2) of the VCDR;

accepted that the listing of the Respondent in the London Diplomatic List as a representative of the state of Kuwait, together with certain correspondence, created a presumption that the Respondent was part of the Kuwaiti mission, concluding that that presumption had been rebutted by the Respondent’s own position in these proceedings;

held that, albeit that the above conclusion was determinative of the issue of diplomatic immunity, the Respondent had not waived diplomatic immunity by taking steps in the proceedings, going on to hold that documentation and e-mail communications sent by the Respondent to third parties would have lost the benefit of diplomatic immunity in any event, there having been no suggestion that they remained under the control of the Respondent;

held that permitting the Respondent to give selective disclosure would be fundamentally inconsistent with Article 6 of the European Convention on Human Rights (‘the ECHR’); the principles of natural justice; and the overriding objective and would appear to make a fair hearing almost impossible; certainly, the parties would not be on an equal footing. If forced to proceed on that basis, it would be open to the Tribunal to draw appropriate adverse inferences to the effect that the documents withheld would demonstrate exactly that which the Claimants asserted them to demonstrate and had been withheld for that reason;

determined that the disclosure sought was relevant to the issues engaged by section 14(2)(a) of the SIA, requiring a consideration of the Respondent’s relevant activities and those in which the Claimants were engaged, and necessary for a fair determination of the state immunity issue. In Trendtex Trading Corporation Ltd v Central Bank of Nigeria [1977] 1 All ER 881, the Court of Appeal had set out factors which were likely to be relevant for the purposes of determining whether a particular institution, organisation or body constituted a ‘department’ or organ of a state body, under section 14(1) of the SIA, stating that the general test required the totality of the evidence to be considered, including, in particular, the constitution, functions and activities of the body claiming immunity and the extent to which the body’s central government retained control over it, in order to determine whether there was any satisfactory basis upon which to conclude that the body was so related to the government of the state in question as to form part of that government. Whilst not directly relevant to the test under section 14(2) of the SIA, similar factors were likely to arise for consideration in that context. The Fund documents sought would be likely to show whether and on what terms (a) the Respondent managed funds on behalf of entities other than the state of Kuwait; and (b) non-state entities also managed funds on behalf of the Respondent and/or the state of Kuwait and, thus, whether the work undertaken by the Claimants had been in the exercise of sovereign authority. The tax relief documents and the database of legal, compliance, finance and operational agreements regarding the application of regulations to the Respondent would show whether the funds were being treated as sovereign funds. Accordingly, subject to other factors, including costs and proportionality, the documents sought were disclosable;

held that the Respondent should be ordered to provide disclosure, but not inspection, of the e-mails sought, to ensure that the exercise was proportionate and to save costs. The parties were to agree redactions of all confidential and commercially sensitive parts of the documentation to be put before the Tribunal, in so far as the latter were not necessary for a fair hearing;

held that the period for disclosure was to run from 1 September 2017 until the date on which the relevant Claimant’s employment had ended;

noted the parties’ agreement that communications between the Respondent and the Foreign and Commonwealth Office (‘the FCO’ (Footnote: ¹)), regarding whether diplomatic status of certain Respondent employees was recognised by the FCO, were relevant and that some disclosure had been given by the Respondent. The Tribunal refused the Claimants’ application for unredacted copies of certain documents and for specific disclosure of others having regard to the Respondent’s lawyers’ duties to the Tribunal and assertions that (1) the redacted text was irrelevant, such that all redactions had been properly made, and (2) there were no further relevant documents in the Respondent’s, custody, possession or control, such that an order for specific disclosure would be pointless. The Tribunal noted the ongoing duty of disclosure, should any other relevant documents exist or be discovered; and

went on to give directions.

erred in permitting the Claimants to advance a case on state immunity outside the scope of, or inconsistent with, their pleaded case and that advanced in earlier correspondence; and failed to record the Respondent’s position that, where state immunity is asserted by a respondent, the burden is on the claimant to establish jurisdiction; instead, asserting that no such position had been advanced. It then took account of impermissible or irrelevant factors in dismissing the Respondent’s application (ground 1);

erred in granting the Claimants’ application for specific disclosure, notwithstanding the absence of a pleaded positive case on which it was predicated and which was inconsistent with the case which had been pleaded (ground 2);

ordered specific disclosure of material which was not relevant to the determination of state immunity under section 14(2) of the SIA, by reference to authority which was not on point (ground 3);

erred in concluding that the Respondent did not have the benefit of diplomatic immunity which would itself operate as a bar to the orders for specific disclosure sought by the Claimants. In particular, it is said that the Tribunal:

amend its pleaded Particulars of Assertion of State and Diplomatic Immunity in order additionally to rely upon section 14(1) of the SIA, an application said to derive from the Claimants’ position that the Respondent’s reliance upon section 14(2) precluded it from benefiting from diplomatic immunity under the VCDR. The amendment sought was in the following terms, said to rely on facts already pleaded (Footnote: ²), and was the subject of an extant application before the employment tribunal, made on 23 September 2020:

make related amendments to its grounds of appeal, should that be necessary; and

to rely on ‘two very limited and discrete pieces of evidence that were not before the ET, which provide further support [for] the Employment Judge’s initial view that the Respondent is part of Kuwait’s mission in the UK….These documents are important as they go to the question whether the Respondent is part of the Kuwaiti Mission and in respect of the FCO letter whether HM Government recognises it as such (Footnote: ³).’ The two documents in question were a letter from the Embassy of Kuwait, addressed ‘to whom it may concern’, dated 23 September 2020, and an FCO note to that embassy, dated 7 November 2005.

Through the FCO/FCDO, Her Majesty’s Government (‘HMG’) has recognised the Respondent as forming part of the Kuwaiti diplomatic mission in the United Kingdom. That recognition is irrebuttable and binding and ought to have been accepted as such by the Tribunal, which erred in treating the evidence upon which the Respondent relied as establishing only a rebuttable presumption (ground 4). If allowed, this ground was dispositive of the appeal.

The Tribunal further erred in basing its decision on diplomatic immunity upon the Respondent’s pleaded assertion, as part of its broader case on state immunity, that it is a separate entity from the state of Kuwait, for the purposes of section 14(2) of the SIA (ground 5).

As part of the Kuwaiti diplomatic mission, the Respondent enjoys diplomatic immunity under Article 24 of the VCDR, imported into domestic law by the Diplomatic Privileges Act 1984 (‘the DPA’). Accordingly, the documents in its archives form part of the archives of the mission and are not disclosable for that reason and the Tribunal erred in holding that immunity would be lost in connection with documents sent outside the Respondent to third parties (grounds 6 and 7).

The Respondent’s status as part of the Kuwaiti mission, means that its official correspondence is inviolable under Article 27(2) of the VCDR and is not disclosable on that basis (ground 8), an argument which the Tribunal did not address.

Article 6 of the ECHR does not affect the rights conferred by Articles 24 and 27 of the VCDR. It is doubtful whether Article 6 applies in connection with specific disclosure, but, if it does, the VCDR affords a justified qualification of the rights which it confers. (Professor Sarooshi expressly did not submit that Article 6 does not apply to the open preliminary hearing which has been listed to determine the issue of state immunity.)

In the alternative, the Tribunal erred by ordering disclosure of material which was irrelevant to the issue of state immunity and applied the wrong legal test when considering that question (ground 3).

Professor Sarooshi’s submissions, developing the above points, are summarised below.

…accepted the Respondent’s submission that the current version of the publicly available London Diplomatic List, listing the Kuwait Investment Office as a representative of the State of Kuwait, created a presumption that the Kuwait Investment Office is part of the Kuwaiti mission. Likewise, correspondence from the FCO to Mr Al-Ateeqi, the President of the KIO, dated 31 October 2019...

However, I decided that this presumption was rebutted by the Respondent’s own position in these proceedings. The Respondent is a separate entity distinct from the executive organs of the government of the State and is not a part of its mission.”

That had been an error. There ought to have been three steps in the Tribunal’s analysis, which would have led to the conclusion that the Respondent enjoys diplomatic immunity:

The decision as to which bodies should form part of a foreign state’s recognition in the United Kingdom is a matter for HMG, as falling squarely within its prerogative power to conduct foreign relations.

Once recognition has been granted, UK Courts are bound by that decision, in accordance with the ‘one voice’ principle.

As the evidence before the Tribunal (augmented before the EAT) demonstrates, HMG has recognised the Respondent as part of the Kuwaiti mission and the Tribunal erred in finding to the contrary.

‘49. …There are important areas of governmental activity which, today as in the past, are essential to the effective operation of the state and which are not covered, or at least not completely covered, by statute. Some of them, such as the conduct of diplomacy and war, are by their very nature at least normally best reserved to ministers just as much in modern times as in the past…

…

The fact that the exercise of prerogative powers cannot change the domestic law does not mean that such an exercise is always devoid of domestic legal consequences. There are two categories of case where exercise of the prerogative can have such consequences. The first is where it is inherent in the prerogative power that its exercise will affect the legal rights or duties of others….

The second category comprises cases where the effect of an exercise of prerogative powers is to change the facts to which the law applies… These are examples of where the exercise of the prerogative power alters the status of a person, thing or activity so that an existing rule of law comes to apply to it. However, in such cases the exercise has not created or changed the law, merely the extent of its application.

The most significant area in which ministers exercise the Royal prerogative is the conduct of the United Kingdom’s foreign affairs. This includes diplomatic relations, …’

Questions of whether a state, or a head of state, or a government of state is recognised are matters within the exclusive jurisdiction of the FCDO and the information provided must be acted on by the court as a fact of state, as the UK cannot speak with two voices on the same question;

The recognition of foreign diplomats is also a prerogative function of the FCDO, as an aspect of the conduct of foreign relations;

Whether immunity attaches to a diplomat, or a person claiming to be a diplomat, is a matter of law for the court to determine;

The facts contained in a section 4 DPA certificate are conclusive evidence of the certified facts in the proceedings before the court and any other expression of a question of fact that is within the exclusive competence of the FCDO (such as approval of a special mission) may be treated similarly as a fact of state;…”

Professor Sarooshi submitted that the same principles apply to the FCDO’s recognition of the mission itself, to which diplomatic immunity separately attaches. Once its status has been recognised, it is then for the court or tribunal to determine the consequences in the particular case; here, whether Article 24 and/or 27 of the VCDR applies and the effect of any transmission of the documents sought to third parties. The Respondent did not contend that a section 4 DPA certificate had been provided by the FCDO in this case, but did assert that the FCDO had expressed a question of fact to the same effect (see below). Further, as had been observed at paragraph 77 of Al Attiya, a receiving state may be content to accept a member of diplomatic staff even if that person is not engaged in such a function full-time.

‘33. It seems to me that the analogy with the inviolability and immunity of accredited members of permanent missions and the importance of consent illuminate resolution of the issue as to whether the FCO letter… is conclusive. The acceptance of accreditation to a permanent diplomatic mission is a matter within the discretion of the executive, or, more accurately, the Royal Prerogative….’,

going on to hold, at paragraph 34, that ‘facts of state’ were:

‘…facts which the court accepts, not so much because they are within the exclusive knowledge of the UK Government, but because they represent matters which are exclusively for decision by the Government and not for the courts. It is for the UK Government to decide whether to recognise a mission as a special mission, just as it is for the Government to decide whether it recognises an individual as a head of state. As Brooke LJ said in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, para 349: “Her Majesty’s Government has never given up the right to inform the courts as to its recognition or non-recognition of states, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains.’

‘62. That being so, it follows that the English Court would be acting outside its proper constitutional sphere in saying anything which is inconsistent with the statements of HMG’s recognition (or non-recognition) of a foreign government as sovereign, because they are a matter for HMG as the Crown acting in its executive capacity.

… it also follows as a matter of principle that the Court must not express a contrary view for any purpose, which would include such contrary view as an essential step of its reasoning. To do so would undermine the very fabric of the doctrine…’

‘There would be real difficulties and uncertainties if the court were to undertake the inquiry that the claimant contends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional enquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.’

That passage had been endorsed by Lord Dyson MR, in Estrada v Al-Juffali (Secretary of State for Foreign and Commonwealth Affairs intervening) [2016] EWCA Civ 176 [33] and disposed of the Claimants’ argument (at footnote 12 of their skeleton argument), to the effect that the Respondent’s activities did not appear to meet any of the functions of a diplomatic mission. In Estrada, the Court of Appeal had considered the authority (amongst others) on which the Claimants relied in that connection (R v Governor of Pentonville Prison, Ex p Teja [1971] 2 QB 274), noting, at paragraph 37, that the Divisional Court had held that a foreign state’s unilateral action in appointing a diplomatic agent did not confer diplomatic immunity. Until the receiving state had accepted and received the intended representative as a persona grata, he was not immune from proceedings in the English courts. Lord Dyson had gone on to observe that Lord Parker CJ’s observations that it was almost impossible to say that a man who is employed by a government to go to foreign countries to conclude purely commercial agreements, and not to negotiate in any way or have contact with the other government, can be said to be engaged on a diplomatic mission at all had been obiter dicta. In any event, the ratio of the decision could not assist the respondent in Estrada because the appellant had not only been appointed by the foreign state but been accepted and received by the FCO. At paragraph 39, Lord Dyson had considered R v Secretary of State for the Home Department, ex p Bagga [1991] 1 QB 485, stating his view that it was inconsistent with the proposition that, in deciding whether immunity applies, the court can inquire into the nature of an individual’s activities. Professor Sarooshi emphasised Lord Dyson’s dicta at paragraphs 34 and 35 of Estrada, following his endorsement of Blake J’s analysis at paragraphs 74 to 78 of Al Attiya:

‘34. This is consistent with the common law approach to establish entitlement to diplomatic immunity which was authoritatively explained by the House of Lords in Engelke v Musmann [1928] AC 433. As the Attorney General said, at p437:

Mr Hickman submits that the common law is irrelevant because the position is now governed by statute. But it would be surprising if Parliament had intended to effect the fundamental change in the law relating to diplomatic immunity for which Mr Hickman contends. We have seen nothing to indicate that Parliament intended to effect such a change which would potentially hamper the conduct of foreign relations and the work of international organisations. No reason has been advanced to suggest why Parliament would or might have wished to do this.’

The first in time had not been before the Tribunal and is a note, dated 7 November 2005, from the FCO to the Kuwaiti Embassy, expressly responsive to a prior note received from the Embassy, dated 4 October 2005, which had not been produced at or before the hearing of the appeal (but see further, below). The relevant paragraphs state:

The second was before the Tribunal, in partially redacted form. It is a letter from the Protocol Directorate of the FCO to the President and CEO of the Respondent, dated 31 October 2019. It opens by thanking Mr Al-Ateeqi for coming into the FCO earlier that month, to discuss the proposed new premises and staffing of the Respondent, going on to record the number of staff members at the investment office in 2012, according to the FCO’s record, and that the FCO had agreed to grant privileges and immunities to 75 of them, with the non-Kuwaiti and locally engaged staff granted immunity only for the official acts performed in the exercise of their functions, in accordance with Article 38 of the VCDR. The balance of the letter sets out the way forward in the event that the investment office required privileges and immunities for staff in addition to the 75 originally agreed.

The third is the London Diplomatic List, as revised in May 2020, sub-headed ‘Alphabetical list of the representatives of Foreign States and Commonwealth Countries in London with the names and designations of the persons returned as composing their Diplomatic Staff. Representatives of Foreign States and Commonwealth Countries & their Diplomatic Staff enjoy privileges and immunities under the Diplomatic Privileges Act 1964.…’ Under ‘Kuwait’, the following are listed: Embassy of the State of Kuwait; Cultural Office; Kuwait Military Office; Kuwait Health Office; and the Respondent, the address for which is stated to be Wren House. There follows a list of named individuals, including Mr Al-Ateeqi, described as ‘Financial Attaché (Head of the Kuwait Investment Office)’.

‘71. Recognition may be either express or implied. This is explained for example in Oppenheim’s International Law, 9^th ed (2008), vol 1, at para 50:

One way in which recognition may be implied is the establishment or maintenance of diplomatic relations with the ruler or government of the foreign state. For example, Oppenheim at para 50 refers to “the formal initiation of diplomatic relations” as one of the “legitimate occasions for implying recognition of states or governments”. Such implied recognition is contrasted with a situation where, following a revolutionary change of regime, diplomatic representatives accredited to the previous government are left in place for an interim period and may have unofficial contact with the new regime, which unofficial contact would not amount to implied recognition.’

Whether or not staff had been posted or seconded by the State of Kuwait to the Respondent said nothing about the Respondent’s status in the United Kingdom as part of the mission;

Staff enjoy diplomatic status precisely because they are part of the Respondent, which is part of the mission;

As indicated by the FCO’s letter of 31 October 2019, the Respondent has 75 other staff who have been granted diplomatic immunity, acknowledged as members of the mission;

All employees of the Respondent are civil servants of the State of Kuwait, as had been common ground between the parties in Sarrio SA v Kuwait Investment Authority [1997] I.L.Pr. 481, CA [59]. In any event, the fact that only certain employees have diplomatic status is irrelevant to the status of the Respondent as part of the mission. In the circumstances specified, Article 11 of the VCDR enables a receiving state to require that the size of the mission be kept within limits considered by it to be reasonable and normal. It was that right which was being exercised in the manner referred to in the FCO’s letter of 31 October 2019, itself providing further evidence of the Respondent’s status as part of the Kuwaiti mission.

The Tribunal had erred in failing to apply section 16(1) of the SIA. Each statute separately determines the circumstances in which the immunity which it confers applies. Under the DPA and the VCDR which it implements, the question is whether an entity is part of the mission. The existence or otherwise of state immunity has no bearing upon that question. The only limitation is consent-based, regarding the establishment of diplomatic relations and which offices can form part of the mission (see Articles 2 and 12 of the VCDR). That is a matter for HMG to decide. There is no requirement that all entities form part of the same legal person. The Respondent enjoys diplomatic immunity, as a result of which none of the documents sought by the Claimants is disclosable.

Further, the fact that a body has separate personality under the law of a foreign state does not mean that HMG cannot accept it as part of a state’s mission: Al-Malki v Reyes [2019] AC 735, SC, per Lord Sumption, at paragraph 6:

‘We are not in this appeal in any way concerned with documents held by the I.T.C. Ex hypothesi the categories of documents in the assumed facts are held by third parties. No claim is made against the I.T.C. requiring them to produce documents which they hold. Thus the central question at the heart of the dispute which has to be asked in relation to each category is whether the documents in that category “belong to” the I.T.C.’

There is a fundamental difference between documents held in the mission and those which are outside it and no longer within its ownership, submitted Professor Sarooshi. In Bancoult, at 1006C, Lord Sumption JSC had drawn a distinction between documents communicated to a third party with the actual or ostensible authority of the responsible personnel of the mission (in respect of which any immunity is lost) and the inviolability of the archive of the mission. In that case, the court had been concerned only with the version of a document which had been sent from the United States Embassy in London to the United States Federal Government, in Washington D.C, and which had been hacked whilst there and published, without authority, on a website. The question had been whether the published version was admissible as evidence in court.

‘…the clear and consistent position taken by the courts is that for a claim to immunity to be regarded as a proportionate restriction on the right of access to a court enshrined in Article 6 of the ECHR, it is necessary to do no more than determine whether the grant of immunity reflects generally recognised rules of public international law. This test was developed by the ECHR in the context of State immunity. But its application in the context of diplomatic immunity has been expressly endorsed by the decision of this court in Al-Malki v Reyes (Secretary of State for Foreign and Commonwealth Affairs intervening) [2016] 1 WLR 1785, para 70 where I said:

‘Section 2(3) [of the SIA] should, however, be read in the light of authority of long-standing establishing the importance of state immunity and the importance of its not being waived except with appropriate authority. The fact that the step in proceedings alleged to constitute the waiver is taken by solicitors instructed by the embassy does not conclude the matter. A solicitor acting without authority cannot waive the immunity. The solicitor’s actions establish a waiver only if they have been authorised by the state, which includes authority exercised or conferred by the head of the state’s diplomatic mission. That would include a step authorised by the head of mission himself or herself. Authority may be conferred on the solicitors either directly or, in my view, indirectly by a member of the mission authorised by the head of mission to do so.’

whether ‘the proceedings relate to anything done by [the Respondent] in the exercise of sovereign authority’ (section 14(2) of the SIA);

whether each claimant is a ‘member of the mission’, such that the employment exception within section 4 of the SIA does not apply (section 16(1)(a) of the SIA); and

(in light of the Claimants’ assertion that, pursuant to EU law, the provisions of the SIA in relation to certain claims must be ‘disapplied’) whether customary international law requires the UK to confer immunity in respect of those claims, adopting the approach in Benkharbouche v Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs and others intervening) [2019] AC 777, SC.

‘In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform.’ ([54], with emphasis added);

the restrictive doctrine of immunity in customary international law had the following formulation ‘confining the immunity in employment disputes to cases where the making of the contract all the acts giving rise to the complaint were exercises of sovereign authority, or the dispute is between a state and one of its own Nationals’ [74].

Accordingly, for the purposes of the third issue, the fact decisive of whether the Respondent is immune under customary international law is the nature of the relationship between the parties, itself dependent upon the functions which the Claimants were employed to perform. If the making of the contract of employment had been an exercise of sovereign authority, that would suffice to confer immunity. By definition, tribunal proceedings relating to that contract will satisfy section 14(2) of the SIA. The Tribunal had given no reasons for its conclusion that broader issues were engaged and had erred in so concluding.

where an issue of immunity is in play, the burden of proof lies on the Claimants to establish jurisdiction: JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry (1987) 3 BCC 413, at 418-419;

in general, a party’s case should be set out in a pleading, even in the employment tribunal: Chandhok v Tirkey [2015] ICR 527 [16-18]; and

when determining an application for specific disclosure, it was important to analyse the pleadings in order to identify the factual issues in dispute: Harrods Ltd v Times Newspapers [2006] EWCA Civ 294 [12].

‘Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was “outside the generous and it within which a reasonable disagreement is possible”…’

Applying that test, submitted Professor Sarooshi, the Tribunal’s decision had been flawed, in particular given the need to give proper effect to immunities, and the EAT ought to consider the application afresh and grant it.

The Respondent cannot constitute a mission, or part thereof, because it is a separate legal entity from the state of Kuwait, as the Tribunal had concluded. In any event,

Assuming the application of the one voice doctrine, on the facts of this case HMG had not expressed itself in a way which sufficed to satisfy the Tribunal, or should satisfy the EAT, that it had recognised the Respondent as part of the mission (whether or not regard was had to the additional evidence before the EAT which had not been before the Tribunal).

at paragraph 7, the Respondent was said to be a branch office of the Kuwait Investment Authority (‘the KIA’);

at paragraph 9, under Kuwaiti law as pleaded, the KIA (and, by extension, the Respondent) was said to be an ‘independent public authority with… juridical status’;

at paragraph 10, it was said that the KIA’s status (which is equally applicable to the Respondent) pursuant to section 14 of the SIA had been the subject of prior litigation before the English Court, in Sarrio. Whilst recording certain matters which had been noted at paragraph 59 of the report in that case [I interpose as being ‘common ground’], the Respondent had omitted to record the following matter, observed at paragraph 6 (with emphasis added): ‘The defendants are the Kuwait Investment Authority (“KIA”), which may be described as the investment arm of the government of Kuwait, though with a separate legal identity from the government and State.”;

at paragraphs 11 and 12, it was said:

‘The basis in modern international law for the protection of the documents of a diplomatic mission is article 24 of the Vienna Convention on Diplomatic Relations (1961), which provides that “the archives and documents of the diplomatic mission shall be inviolable at any time and wherever they may be.” Article 27(2) which provides for the inviolability of “the official correspondence of the mission” was added (as part of an article about freedom of communication) in order to deal with the problem of the interception en route of communications not made by diplomatic courier or diplomatic bag, which would not necessarily be part of the mission’s archives or documents at the time of interception… These provisions have the force of law by statute in the United Kingdom, under the Diplomatic Privileges Act 1964.”

Whilst the EAT had been taken to Bancoult by the Respondent, in connection with Articles 24 and 27 of the VCDR, the critical paragraph, for current purposes, was paragraph 68 (with emphasis added):

‘A diplomatic mission is not a separate legal entity. Its archives and documents belong to the sending state. But the protection of article 24 is limited to the archives and documents of the mission. It does not extend to those of any other organ of the sending state. The latter may be protected by other rules of law: for example by the criminal law, the law of confidence or the law of copyright. But they are not protected by the Vienna Convention…’

an article by Hazel Fox (as she then was), Director, British Institute of International and Comparative Law; formerly Fellow of Somerville College Oxford, entitled Enforcement jurisdiction, Foreign State Property and Diplomatic Immunity (1985) 34 ICLQ, in which she had stated:

The revised and updated third edition of The Law of State Immunity, by Hazel Fox CMG QC and Philippa Webb, in which, under the heading ‘Statehood’, they had stated, at pages 342-343:

Diplomatic Law Commentary on the Vienna Convention on Diplomatic Relations, Fourth Edition, edited by Eileen Denza, under the sub-heading, ‘What are the “archives and documents of the mission”?’:

In Mr Laddie’s contention, the above commentary explains why, typically, a claim against an embassy is brought against the sending state. In this case, the Claimants had brought their claims against the Respondent, which does have a separate legal personality and, accordingly, diplomatic immunity does not arise. That was dispositive of the primary bases of the Respondent’s appeal and would leave only the pleadings point and the relevance of the specific disclosure ordered as live issues.

at paragraph 46(1), that there was nothing to prevent the receiving state from choosing to recognise and accept an entity which had separate legal personality under the law of the sending state as part of the latter’s mission. That, submitted Mr Laddie, reflected neither the practice, nor the law as set out in Bancoult. Article 2 of the VCDR did not cover that issue;

at paragraph 46(2), that the VCDR was an international instrument which was to be interpreted to apply to all states having differing constitutional arrangements. Whilst that proposition was not contested, it was of no relevance to the issue under consideration;

at paragraph 46(3), that Fox and Webb’s The Law of State Immunity, Third Edition, at pages 338-339 (cited above) specifically acknowledged that a mission can have separate legal personality under the law of the sending state and still benefit from the protections of the VCDR. However, the relevant point to note was that, whatever the position under the law of the sending state, international law does not recognise the mission to have a personality separate or distinct from that state;

at paragraph 46(4), that the proposition at paragraph 46(3) is supported by the fact that other privileges under the VCDR can be enjoyed by those who are not employed by the sending state, provided that they are carrying out functions on behalf of that state (such as private security contractors, whom the UK has made it its policy to notify as administrative and technical staff and, hence, members of the mission). That, submitted Mr Laddie, is irrelevant because it considers the diplomatic immunity of individuals, not missions.

at paragraph 46(5), that Lord Sumption JSC, at paragraph 68 of Bancoult, had not been addressing the situation which arises in this case, which did not arise in that one, and had not been writing with the instant circumstances in mind: it was well accepted that a foreign entity having a separate legal personality could be treated as part of a foreign state (see, for example, Baccus Srl v Servicio Nacional Del Trigo [1957] 1 QB 438, CA). That, Mr Laddie characterised as a lacklustre attempt to deal with the majority decision in Bancoult. Whilst obiter, Lord Sumption’s analysis reflected the academic texts on which both parties relied. In any event, his statement had been one of broad principle, which did not cater for contextual analysis and was applicable in all situations. Whilst it was accepted that a foreign entity having separate legal personality could be treated as part of a foreign state for certain purposes, Baccus had been a state immunity case and irrelevant for current purposes. The question here was whether a mission could have separate legal personality. In La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27, a state immunity case, FG Hemisphere had purchased two substantial arbitration awards against the Democratic Republic of the Congo (‘DRC’). In order to enforce the debts under those awards, it had applied to attach the assets of LGCM, a company based in Jersey, which had been formed by DRC, ostensibly to further its mining activities. It had been the company’s position that it was a separate juridical entity and that it (and its assets) should be treated no differently from any other company or corporation, in accordance with established common law and international law principles, which recognised a distinction between the state and its organs, on the one hand, and state-owned corporations, on the other. At first instance, the Royal Court of Jersey had allowed the application, on the basis that LGCM was an organ of the state and, therefore, could be equated with it and fixed with liability for DRC’s debts. An appeal from that decision had been rejected by the Court of Appeal of Jersey, but upheld by the Privy Council. At paragraphs 28 to 30, the latter court had considered the correct approach to distinguishing between an organ of the state and a separate legal entity, the following extract of which (with emphasis added) was instructive:

at paragraph 46(6), that Lord Sumption’s statement should not be applied to a situation in which, despite having separate legal personality, the entity is viewed as part of the state for the purposes of section 14(1) SIA. That proposition was not contested but was not a case being advanced by the Respondent (other than by way of an application to amend its response form, which had yet to be determined by the employment tribunal and which the Respondent was no longer asking the EAT to determine).

Thus, submitted Mr Laddie, nothing in paragraphs 45 or 46 of the Respondent’s skeleton argument undermined the solidity of the Claimants’ primary contention — the Respondent had separate legal personality, ipso facto it could not be part of the Kuwaiti diplomatic mission. Whilst, as a matter of principle, it might, nevertheless, establish state immunity, it would be difficult for it to do so, in all the circumstances. It was that issue which the tribunal would need to determine at the open preliminary hearing and which would require it to consider the provisions of the SIA.

‘One Voice

When a question arises whether HMG recognises a state, ruler or government, the usual practice is for the court to seek a formal statement of HMG’s position. The practice was described by Viscount Finlay in Duff Development Co Ltd v Government of Kelantan [1924] AC 797, 813-814:

Although such a letter is often referred to as a “certificate”, no particular form is required… Indeed the letters relied on in Mohamed v Breish [2020] EWCA Civ 637 were addressed to and to be procured by one of the parties rather than the court, but what mattered was that the FCO knew that the letters were intended to be produced and that they contained the carefully considered views of HMG for use in a public forum (see per Popplewell LJ at para 37).’

its opening paragraph referred to the Embassy’s note of 4 October, of which the Claimants had sought disclosure. They had, first, been told that no such document existed and, then, that diplomatic immunity was asserted. Accordingly, the context of the 2005 note was unclear;

the 2005 note was a communication between the Protocol Division of the FCO and the Kuwaiti Embassy, not the Respondent;

the title deed for Wren House indicated that the registered owner was the state of Kuwait, not the Respondent. Whilst, of itself, that was not the Claimants’ best point, had the Respondent been the owner and the premises been designated as diplomatic premises, that would have supported its case. In fact, the deed supported the position set out in the 2005 note; Wren House is designated as diplomatic premises for the state of Kuwait; partly used by the Respondent, possibly, but that did not equate with a statement that the Respondent forms part of the mission.

the Claimants acknowledged that Shearson and Bancoult were not directed at the question of documents in the hands of the mission, as distinct from third parties. Nonetheless, Bancoult was particularly significant when considering the former. As was clear from paragraph 65 (cited above), Article 27 VCDR was of no application to this case. It was concerned with documents en route, delivered other than by diplomatic courier or bag. As paragraph 69 of Bancoult had made clear, ‘The purpose of article 24 in protecting a mission’s archives qua archives, and not as mere items of property, is to protect the confidentiality of the mission’s work, without which it is conceived that it cannot effectively represent the sending state. In particular, it is “to protect the privacy of diplomatic communications": Shearson Lehman Brothers Inc v McLaine Watson & Co Ltd (International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27 (Lord Bridge). The confidentiality of such documents does not depend on their particular content or subject matter, which is not a matter which a domestic court could properly examine, but on their status as part of the archives and documents of a diplomatic mission protected by article 24 of the Convention.’

Thus, contrary to the Respondent’s submission, a party’s Article 24 right is founded in confidentiality. Lord Sumption’s comments, at paragraph 71 of Bancoult, were to be read with that in mind: ‘…No-one doubts that if the document has been communicated to a third party with the actual or ostensible authority of the responsible personnel of the mission, any immunity in respect of it is lost. In the form communicated, it is no longer the mission’s document: Shearson Lehman Brothers Inc v McLaine Watson & Co Ltd (International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27-28.’ (emphasis added) The fact that any immunity is lost, indicated that the principle equally applies to documents in the hands of the mission itself, as to which ordinary principles apply, once confidentiality is lost. It would make a mockery of the process, were the Claimants to be obliged to apply for disclosure orders against third parties. In any event, an order that the Respondent provide a list of third parties to whom the relevant documents were sent would not fall foul of Article 24; it would simply require the creation of a new document.

In oral argument, the Respondent had not pressed ground 7 of its appeal (by which it asserted that if, contrary to ground 6, the applicable test for loss of diplomatic immunity under article 24 of the VCDR were as set out in Shearson [28A] and Bancoult [71], certain documentation sought remained in the Respondent’s control, even if sent to third parties, because it had been sent in the context of a ‘lender and borrower, bailor and bailee or principal and agent relationship’. The answer to that ground was that, before the Tribunal, no more than an assertion that such circumstances applied had been made: no evidence of any such status had been provided (whether to the Tribunal or the EAT), nor explanation of what was meant. That was consistent with the Tribunal’s recollection, as set out at paragraphs 10 to 12 of its comments dated 8 December 2020, in response to the Order of HHJ Auerbach, made on 28 October 2020.

‘53. As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune. It is not always easy to determine which aspect of the facts giving rise to the claim are decisive of its correct categorisation, and the courts have understandably avoided over-precise prescription. The most satisfactory general statement is that of Lord Wilberforce in The I Congreso, at p 267:

In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform.’

Mr Laddie submitted that, in the context of a question relating to diplomatic immunity, Lord Sumption had referred to a case relating to state immunity. Whilst the Claimants relied upon the emphasised text within paragraph 53, the Respondent relied upon paragraph 54. In most diplomatic immunity cases, there will be no dispute as to whether the mission occupies diplomatic premises (see, for example, Aziz). No doubt that is what Lord Sumption had had in mind when referring to ‘the great majority of cases’. In the instant case, there is a dispute as to what the Respondent does and whether it performs acts of sovereign authority. For that reason alone, authority and pragmatism suggest that there is no basis for interfering with the Tribunal’s orders (some of which had required disclosure by list alone) on the grounds of relevance, and the Respondent had not pressed ground 3 of its appeal with any vigour. If, contrary to that proposition, the EAT were to conclude that the relevance of the specific disclosure ordered was in issue, the Claimants agreed that it should remit that matter to the Tribunal for fresh consideration.

‘The distinction between a state organ and a separate or distinct entity is not concluded by determining whether the separate entity has separate legal personality. That was held in Baccus SRL v Servicio Nacional del Trigo [1956] 3 All ER 715, 1 QB 438 and assumed in the Trendtex Trading case, where the Central Bank was a separate legal entity, and it continues to be the position. The 1978 Act makes this clear by providing that a separate entity must be ‘distinct from the executive organs of the government of the state’ as well as ‘capable of suing or being sued’. A separate entity must therefore have legal personality in this sense in order to have immunity as part of the state. But an organ of the state may under certain circumstances have legal personality. This is expressly contemplated both by the Explanatory Report (ETS number 074) relating to the European Convention, and by the commentary to the International Law Commission’s Articles of State Responsibility.’

That, submitted Professor Sarooshi, demonstrated that there was no reason why a diplomatic mission should not have a legal personality under domestic law, or why the Respondent’s separate legal personality should be of significance, for current purposes. Under the DPA and the VCDR, in the context of HMG’s recognition, the status of the Respondent was altered so as to render it part of the Kuwaiti mission. For that reason, whilst it was acknowledged that the Respondent has a separate legal personality under English law, that was of no consequence. Per Fox, under international law, the mission is not recognised as having a legal personality separate from the state and, under English law, the diplomatic mission is not a person in law. The Respondent did not disagree with either proposition, but contended that neither bore upon the critical question here, as to which entities form part of the mission, under international law. As FG Hemisphere indicated, a state organ can have separate personality. Thus, the Respondent, as part of the state, can benefit from the state’s diplomatic immunity. The fact that the mission has no separate personality from the state in international law does not preclude it from incorporating a body which has separate legal personality.

‘[Counsel for the applicant] submits that there is a way round the question of inviolability because statements could be obtained directly from the bank which holds the accounts without any need to access the High Commission's archives. There is no application against the bank for disclosure of such documents as it may hold, but what [Counsel for the applicant] submits is that effectively the second defendant could be directed to instruct the bank to provide further copies of the statements. It seems to me that that would not be a way round the problem of inviolability at all because, if one assumes that that were to happen, the documents which were then produced to the High Commission by the bank would themselves fall into the scope of protection under Article 24. But in any event, the application is for documents as they currently exist and, in my judgment, those are immune from disclosure pursuant to Article 24. So that application is dismissed.’

Professor Sarooshi did not explain how the above conclusions served to demonstrate that the Respondent could not be ordered to produce a list of the third parties to whom it had disclosed the documents sought, in order that the Claimants could approach those third parties directly and, if necessary, seek an order that each disclose documents ‘communicated [to it] with the actual or ostensible authority of the responsible personnel of the mission…in the form communicated’ [Bancoult, paragraph 71]. Separately, he submitted that the nature of inviolability meant that the Respondent cannot be compelled to provide a list of recipients, relying upon the extract of paragraph 69 of Bancoult, cited at paragraph 59, above: the purpose of Article 24 is to protect the privacy of the mission’s archives. Whilst no objection could be raised to an application for disclosure sought against third parties, a list of those parties would require the mission to disclose information in its archives which was itself protected.

‘The same approach to the inviolability of diplomatic archives was taken by the US State Department in the context of a case where they were not prepared to support a claim to state immunity — Renchard v Humphreys & Harding Inc. In a letter to the court, the State Department said that in declining to recognize and allow sovereign immunity in a suit for damage to neighbouring property caused by excavations and construction on the Embassy of Brazil, they did not intend to imply that Article 24 could not be used to resist discovery of relevant documents:

The same distinction was upheld in the case of Mission of Saudi Arabia to the United Nations v Kirkwood Ltd in which a US court confirmed that the Saudi Mission did not lose the separate inviolability of its archives (conferred under the Host State Agreement between the United States and the United Nations) by instituting legal proceedings.’

‘We refer to the FCO Note dated 14 November 2005… (the “FCO Note”) a copy of which is enclosed for convenience.

As was discussed at the hearing, the FCO Note refers in terms to a Kuwaiti Embassy Note dated 4 October 2005 (the “Embassy Note”). The Appellant apologises that it was not in a position to have voluntarily provided a copy of this document previously; however, the Appellant has only recently located a copy. A copy of the Embassy Note and accompanying TX19 Exemption from General Rates form are voluntarily enclosed with this letter.

The terms of these documents are self-explanatory. Specifically, the premises were “to be used for mission purposes. The building will be used exclusively by the Kuwait Investment Office”. That is also reflected in the information that was set out in the enclosed TX19 form, in particular at entries at questions 2 and 4.a.

The Appellant does not advance any submissions in respect of these documents (though if the Tribunal would be assisted by any further submissions, it would, of course, provide them). The Appellant respectfully requests that when considering the FCO Note, the Tribunal consider these documents given:

the heavy emphasis during the hearing that the [Claimants] placed on the absence of the Embassy Note when considering the FCO Note; and

the importance of the Tribunal having relevant evidence available to determine the Appellant’s diplomatic immunity.

For the avoidance of doubt, the KIO’s position on immunity in these proceedings remains as previously stated. The KIO does not submit to the jurisdiction of the Tribunal and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the KIO or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities.’

‘1. By 4:00pm today, 11 February 2021, the Appellant shall notify the EAT and the Respondents, in writing, of:

By 4:00pm on Friday 12 February 2021, the Respondents shall notify the EAT and the Appellant, in writing, of any response to the Appellant’s letter of 10 February 2021 and/or to the information provided in response to my directions at paragraph 1 above.’

‘We refer to Mrs Justice Ellenbogen’s directions … and have set out the Appellant’s response below which is provided on a voluntary basis and is not being done pursuant to any order. For the avoidance of doubt, the KIO's position on immunity in these proceedings remains as previously stated. The KIO does not submit to the jurisdiction of the Tribunal and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the KIO or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities or a waiver of legal privilege.

The date on which it first looked for the original, or a copy (as the case may be) of: (1) the Embassy Note; and (2) the TX19 form

The Appellant conducted a general search for relevant documents within the archives of the Mission of the State of Kuwait prior to the commencement of these proceedings. It also conducted searches at other points during the proceedings. During the course of these searches, it located a Note from the FCO dated 14 November 2005 (the "FCO Note").

Given that the FCO Note refers to a note by the Embassy dated 4 October 2005 (the "Embassy Note"), the Appellant conducted further specific searches in an attempt to locate a copy of the Embassy Note. This was before January 2021.

In light of the decision to seek to adduce the FCO Note in evidence before the EAT (in respect of which, for the avoidance of doubt, privilege is not waived), searches were again conducted to locate a copy of the Embassy Note to which reference is made in the FCO Note. These searches were carried out in the period following 14 January 2021. These searches were conducted electronically because Wren House was physically closed to members of the Mission with effect from 21 December 2020 until further notice, owing to the COVID 19 pandemic. Wren House has been and remains physically closed due to COVID 19 and the latest guidance. Unfortunately, no copy of the Embassy Note was located by the electronic searches conducted. At 16:23 on 15 January 2021, the Appellant wrote to the Claimants notifying them that it would seek to adduce the FCO Note as evidence in the EAT hearing.

The date on which it first located each such document

On Tuesday 10 February 2021, an employee of the KIO attended Wren House by car in order to carry out a physical search. The Embassy Note along with the TX19 Form were first located in hard copy in the Mission's archives on 10 February 2021 by the employee who had attended Wren House to conduct a search.

The Appellant sought to provide a copy to the Tribunal and the Respondents without delay given the importance of these documents. The Appellant provided the documents by way of email sent at 22:44 on 10 February 2021, the same day on which the documents were located.

If (either of) the date(s) at (b) above fell on or before the date of the hearing of the appeal, why it is that the relevant document(s) was/were not produced at or before that hearing

Not applicable.

If (any of) the date(s) at (a) or (b) above fell after the hearing of the appeal, why it was that the efforts subsequently made to locate the relevant document(s) had not been made at an earlier stage, in order that they could be considered at that hearing.

As explained above, the Appellant conducted various searches for relevant documents within the archives of the Mission of the State of Kuwait prior to and during the proceedings, which unfortunately did not result in a copy of the Embassy Note and the TX19 form being found. After it was decided to seek to rely on the FCO Note, as explained above, further searches were conducted but, as also explained above, given that Wren House has been physically closed to employees with effect from 21 December 2020 during the lockdown, it was considered reasonable to rely on electronic searches. However, due to the heavy emphasis during the hearing that the Respondents placed on the absence of the Embassy Note when considering the FCO Note, a decision was subsequently made that someone would attend Wren House by diplomatic vehicle in order to conduct a further physical search for the document in the Kuwaiti Mission's archives.

The Appellant hopes that the above answers the Tribunal's questions. It also takes this opportunity to apologise again to the Tribunal that this document was not before it during the hearing, and respectfully requests that it nonetheless be considered given its importance to the Tribunal’s determination on appeal of the Appellant’s diplomatic status, immunities and inviolabilities under the Diplomatic Privileges Act 1964…’

the October letter showed that the State of Kuwait and the Kuwait Investment Authority were distinct legal personalities; it was the embassy which had made the request and there had been no reference to the KIA. Whilst it was apparent that the FCO had previously recognised that some diplomatic status had attached to the premises used by the KIA/the Respondent, and that some diplomatic status had attached to some people who worked for the KIA/the Respondent, there was no evidence that the FCO had expressly recognised the KIA, in its capacity as a separate legal personality, as part of the mission. Indeed, all the documentary evidence indicated that the FCO continued only to recognise the embassy as constituting the mission. The documentary evidence certainly did not ‘leave no doubt’ as to the intention of the FCO to recognise the KIA/the Respondent as part of the mission, which was said to be the implied recognition test in Central Bank of Venezuela when recognising states/governments: Deutsche Bank AG London Branch v Receivers Appointed by the Court [2021] 2 WLR 1 at [78]. Rather, the October letter reinforced the Claimants’ primary submission; neither English law nor the FCO/FCDO recognises separate legal personalities as being part of a diplomatic mission;

The Respondent’s disclosure underscored why the EAT could not place any reliance upon incomplete disclosure of correspondence with the FCO, particularly where the FCO was not aware that the correspondence would be relied upon for the purposes now advanced (see Central Bank of Venezuela, at [92]: ‘What mattered was that the FCO knew that the letters were intended to be produced to the court and that they contained the carefully considered views of HMG for use in a public forum.’). In common with all of the FCO documentation relied upon by the Respondent, the further disclosure invited further questions. From the October letter, it appeared that the FCO had previously recognised the premises used by the Respondent as having diplomatic status and the 2005 letters related only to a change of address. Thus, new questions arose, including: what the FCO had recognised previously; in what circumstances; on what conditions; and based upon what representations; and why there was no evidence post-dating 2005 casting light upon FCO’s/FCDO’s view of the Respondent’s status as at 2020 or 2021.

The explanation provided for late disclosure was not accepted. When the Claimants had sought disclosure of the October letter, the Respondent had asserted that it would not be disclosed on grounds of ‘immunity and inviolability’. It had not stated that it did not have the document and had not provided the explanation now advanced. Even if that explanation were accepted, it was poor and amounted to, ‘after the hearing, we searched our premises for it’. The relevant pandemic-related restrictions had not materially changed since the Respondent had first sought to rely upon the FCO note of November 2005 (in late December 2019) and, apparently, neither had the Respondent’s own Covid-19 policies (the Respondent having stated that its premises had remained closed throughout the relevant period). The October letter could have been searched for well in advance of the Tribunal and EAT hearings and, certainly, in response to the Claimants’ repeated requests for it. In reply to the EAT’s question (d), as to why searches had not been conducted at an earlier stage, the Respondent’s answer has been that, at the EAT hearing, the Claimants had placed ‘heavy reliance’ on its failure to have disclosed the October letter. In fact, the Claimants’ reliance upon the non-disclosure of the October letter had been no more ‘heavy’ than the other matters on which they relied. In any event, it could have come as no surprise given: (a) their earlier repeated requests for its disclosure; (b) the absence of any good explanation for its non-disclosure (a simple assertion of diplomatic immunity); and (c) that a core part of the Claimants’ case, since the employment tribunal hearing of June 2020 and throughout their appeal, had been that the Respondent had produced incomplete documentation and candidly embraced cherry-picking. Further, the Respondent had not given disclosure of the October letter out of any duty to the Claimants, or to the EAT. Rather, it had made late disclosure only because it apparently considered that to do so improved its case. Its approach was unacceptable and raised a question as to the limit to the views expressed in Aziz and other authorities as to a relaxation of conventional Ladd v. Marshall principles in cases raising issues of state immunity. The Respondent’s drip-feed of documents since the promulgation of the Tribunal’s decision was striking — was it to be permitted to adduce more and more documents, one at a time, seeing whether each successive document made a difference to its position? Was it permitted to do so at successive appellate stages, thus raising the spectre of an appeal before the Supreme Court decided against a factual background significantly different from that applicable before the Tribunal and the EAT? It was submitted that that could not be the case and that the admitted importance of diplomatic immunity could not be treated as a trump card, allowing a party claiming such immunity to eschew adherence to recognised norms of litigation. The fact that the Claimants did not oppose the admission in evidence of the October letter should not be regarded as an indication of their approach to any further evidence on which the Respondent might attempt to rely in the future;

Notwithstanding the Respondent’s inexcusable conduct, the Claimants did not oppose the admission in evidence of the October letter. First, the document supported their case. Secondly, they wished to avoid the Respondent’s running of meritless procedural arguments on appeal, as it would, no doubt, otherwise seek to do.

‘My client, the Foreign, Commonwealth and Development Office (FCDO), have been informed that “FCDO Certificates” have been provided to the Employment Tribunal, confirming the recognition of the Kuwait Investment Office (KIO) as part of the Mission of the State of Kuwait to the Court of St James’s. We understand these were provided by the Claimant to the court, in relation to the case EAT/0131/20/JOJ  Kuwait Investment Office v 1) Mr S Hard  2) Ms A Locke.

We should be grateful if you could provide copies of the FCDO Certificates that have been received in relation to these proceedings. We understand a new request has been made for the Certificates and is due for filing with the court on 22 March 2021, though we have not had sight of any court documents referencing this 22 March 2021 deadline.

Can you please provide all court documents in relation to the case … and please confirm if any “FCDO Certificates” as described have been filed.

We should be grateful if you could provide any clarity on this matter and existing or related proceedings.’

‘1. What specific documents you require

Why you need these documents

On what basis are these documents requested

‘Thank you very much for sending across this attachment, which has shed some useful light on these proceedings for my client.

Documents sought

Copies of the Written Reasons issued subsequent to the 3 June 2020 Case Management hearing and ET Judge Brown’s Orders of 17 June 2020.

Any documents, which have originated from the Foreign Commonwealth and Development Office, specifically regarding the status of the Kuwait Investment Office and diplomatic immunity of its employees.

Reason for seeking these documents

The Kuwait Embassy have contacted my client, the FCDO, to request that the FCDO urgently provide a certificate confirming the recognition of the Kuwait Investment Office (KIO) is part of the Mission of the State of Kuwait to the Court of St James’s for separate Employment Tribunal Proceedings. They state that “FCDO Certificates” have already been considered in the case of EAT/0131/20/JOJ and had been provided by the Claimant. They state this certificate is needed for an urgent court deadline of 22 March, but further queries to the Kuwait Embassy about this court deadline have not been answered.

My client has approached the Embassy for the related ET orders/judgments without any success. I have also contacted the clerk of Professor Dan Sarooshi, counsel for the Kuwait Investment Office, also without success.’

‘My client has asked me to specifically request the following documents as a matter of urgency.

The Written Reasons issued subsequent to the 3 June 2020 Case Management hearing;  

ET Judge Brown’s Orders of 17 June 2020; and

Details of exactly what the disclosure sought, and resisted by the Kuwaiti Embassy/KIO, goes to.

We are continuing to request the same from the Embassy of Kuwait…’

‘[The GLD’s] correspondence constitutes, in part, a request for documents under paragraph 6.4 of the 2018 EAT Practice Direction, as to which each party to this appeal should be consulted in accordance with that paragraph. The parties are directed to set out their respective positions in response to each request made in [the GLD’s] e-mails, respectively dated 16 April 2021 (16:51); 29 April 2021 (16:23); and 12 May 2021 (15:49). In the course of so doing, each party should identify the documents which it contends to fall within numbered paragraph 2 of the 29 April e-mail and within the second bullet point inserted under numbered paragraph 1 in the 16 April e-mail.

The KIO is further directed to comment on the matters set out in the two bullet points inserted underneath numbered paragraph 2 of the President’s request by [the GLD], in her e-mail of 16 April 2021 (16:51), and on numbered paragraphs 3 and 4 of [the GLD’s] e-mail of 29 April, and to state:

whether the KIO was a, or the, source of the information relayed to the FCDO by the Kuwait Embassy;

which documents are said to constitute the ‘FCDO certificates’ provided by either Claimant (or any other party) in this appeal;

what the ‘urgent court deadline’ of 22 March 2021 was and by which court or tribunal it was imposed. (See, further in this respect, [the GLD’s] email of 19 March 2021 (12:51).);

what the urgent court deadline was, as at 16 April 2021, and by which court or tribunal it was imposed; and

whether, to the knowledge of the KIO, there remains outstanding any court deadline in respect of this matter and, if so, by which court or tribunal it was imposed and what that order requires.’

a letter from the First Claimant’s solicitors, said to have been written with the agreement of the Second Claimant:

a letter from the Respondent’s solicitors, as follows:

‘…

On Monday, 24 May 2021, the attached document dated 23 July 2020 (the “HMRC Letter”) came to the attention of those involved in instructing counsel and solicitors in the above captioned case. The document speaks for itself: it is a short, two-sentence letter from Her Majesty’s Revenue and Customs addressed to KPMG that confirms in categorical terms that according to Her Majesty’s Government (“HMG”) the “earliest available records show that Sovereign Immunity for the Kuwait Investment Office was in place in 1975” and that the KIO is “accorded Sovereign immunity from UK direct taxation”.

Had the HMRC Letter been known to those involved in instructing counsel and solicitors in the above captioned case prior to the hearing, it would have been voluntarily provided at that time. The Appellant apologises unreservedly to the EAT that it is only now in a position to be able to send this to the EAT. Given the importance and relevance of the HMRC Letter, the Appellant considered that it should nonetheless provide a copy to the EAT in order that it is before the EAT when reaching its decision.

Given the stage of proceedings, the Appellant makes no detailed submissions in relation to the HMRC letter (though would do so, if the EAT considered that that would be of assistance). The Appellant simply notes that:

For the avoidance of doubt, the Appellant’s position on immunity in these proceedings remains as previously stated. The Appellant does not submit to the jurisdiction of the EAT and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the Appellant or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities.’

‘…

The Latest Disclosure says nothing about the alleged diplomatic status of the KIO or the KIA, let alone whether they are part of the Kuwaiti diplomatic mission. Rather, it refers to “Sovereign Immunity from UK direct taxation”. This appeal is not about state immunity. State immunity is the substance of the main issue between the parties, which has yet to be determined.

The Latest Disclosure is a letter from a non-ministerial government department to accountants. It is not a letter that “leaves no doubt” as to the UK Government’s position on whether the KIO/KIA is part of a diplomatic mission, let alone is it a document that was “intended to be produced to the court” or contains “the carefully considered views of HMG for use in a public forum”. See authorities in the Claimants’ supplementary note of 15 February 2021.

We note that, by the FCDO’s application disclosed to us on 14 May 2021, the Respondent, or someone on its behalf, has apparently approached the FCDO for a certificate. We note that no certificate has been produced. We also note the Respondent has unacceptably refused to provide information to the EAT about, or related to, this request.

Conclusion

The Respondent’s conduct underscores three particular features of this appeal.

First, the Respondent considers itself entirely unbound by rules of procedure or a fair conduct.

Second, the Respondent’s selective and opaque approach to disclosure emphasises why its principal case, that it should be permitted to cherry pick what documents it discloses, should not be accepted by the EAT. It is clear that if the Respondent has documents that assist the Claimants both in this appeal and in the underlying litigation, it will choose not to disclose them. This is an affront not only to the Claimants but to the Employment Tribunal and the EAT.

Third, it is notable that the Respondent is unable to produce any clear or cogent evidence that it is part of the diplomatic mission of Kuwait. That is unsurprising because, in English law, it cannot be recognised as such. Rather, it has resorted to piecemeal and partial disclosure of documents that, if anything, only raise more questions than answers…’

‘…

On Tuesday, 6 July 2021, the attached correspondence came to the attention of those involved in instructing counsel and solicitors in the above captioned case. It was found in hard copy by an individual who had previously been asked to conduct a search for relevant documents.

The correspondence speaks for itself: it is a short note from the Foreign and Commonwealth Office (“FCO”) sent to the Embassy of Kuwait dated 23 February 2006 (“2006 FCO Note”) which states in full:

Had the 2006 FCO Note been known to those involved in instructing counsel and solicitors in the above captioned case prior to the hearing, it would have been voluntarily provided at that time. The Appellant apologises unreservedly to the EAT that it is only now in a position to be able to send this to the EAT. Given the importance and relevance of the 2006 FCO Note, the Appellant considered that it should nonetheless provide a copy to the EAT in order that it is before the EAT when reaching its decision.

Given the stage of proceedings, the Appellant makes no detailed submissions in relation to the 2006 FCO Note (though would do so, if the EAT considered that that would be of assistance). The Appellant simply notes that:

For the avoidance of doubt, the Appellant’s position on immunity in these proceedings remains as previously stated. The Appellant does not submit to the jurisdiction of the EAT and nothing in this letter is to be construed as a submission to the jurisdiction on behalf of the Appellant or a waiver of immunity in respect of any claim or as a waiver of diplomatic privileges, immunities or inviolabilities.’

‘First, we note this documentation (like all disclosure from the Respondent) is incomplete. It is an isolated communication that is clearly part of a broader exchange and which is very difficult to understand.

Second, the 2006 Document is clearly not purporting to state a position on the specific question of whether the KIO or the KIA, as separate legal entities, are part of the diplomatic mission of Kuwait. Rather, it is a letter apparently aimed at updating records on “staff”. The Claimants have accepted that the Government has recognised some individual people who do work for the KIO as having diplomatic status. The letter, in explaining how an (undisclosed) form apparently relating to staff should be filled out is clearly not aimed at recognising the diplomatic status of the KIO or the KIA.

Third, we note the document is apparently addressed to the embassy and not to the Respondent or the KIA.

Fourth, we note the document is over 15 years old. Given the Respondent’s apparently deliberately partial approach to disclosure, if its best evidence is a 15-year-old letter concerning a different issue, that speaks for itself.

Fifth, we repeat a point that we have made on a number of occasions already: this documentation comes nowhere near a certificate or letter that “leaves no doubt” as to the UK Government’s position on whether the KIO/KIA is part of a diplomatic mission, let alone is it a document that was “intended to be produced to the court” or contains “the carefully considered views of HMG for use in a public forum”. See the authorities in the Claimants’ supplementary note of 15 February 2021.

Sixth, what is strikingly absent, despite it being 2 years since this claim was first brought, over a year since the employment tribunal proceedings and judgment, and six months after the EAT hearing, is a certificate or even a letter from the FCDO recognising the KIO or KIA as part of the diplomatic mission of Kuwait. This is apparently despite the Respondent (or someone on its behalf) directly contacting the FCDO and requesting such certification.

Seventh, this reinforces the Claimants’ clear, straightforward and accurate position: in law, the Respondent is not, and cannot, form part of the mission of Kuwait. If the FCDO had issued a certificate in connection with these proceedings recognising the Respondent as part of a diplomatic mission that might represent a conflict of legal principles; but in this case, there is no such conflict…’

The Respondent

The judgment reiterated the importance of the ‘one voice’ doctrine and confirmed that statements of recognition by HMG, in the exercise of the prerogative power to conduct foreign relations, are a matter solely for the executive [63-64; 69; 78-79];

Thus, the decision as to whether the Respondent forms part of the Kuwaiti diplomatic mission in the UK is, constitutionally, solely a matter for HMG, on which it has made express and unambiguous statements to which the one voice doctrine applies and which need not take the form of a formal certificate;

If, contrary to the Respondent’s primary case, the question of implied recognition arises, the Supreme Court had held [96; 98] that the Court of Appeal had been wrong to have held, at [71], that recognition could be express or implied. That conclusion did not affect the proper disposal of this appeal. The critical point was that the Supreme Court’s reasoning regarding implied recognition concerned recognition of governments, or foreign heads of state. There had been a particular, and distinct, policy backdrop regarding recognition in that field. In 1980, HMG had adopted a policy that the UK Government would no longer accord recognition to foreign governments [66]. The Supreme Court had set out the legal consequences of that new policy [81 et seq], noting that, ‘in future, the voice of the executive would be silent on such issues’. In that, specific, context, the court had concluded that there was no role for implied recognition. If HMG, exceptionally, had made an express statement, notwithstanding its 1980 policy, the court’s role was to interpret that statement. If there had been no such express statement, it was not for the court to make findings inferring which government HMG has recognised. Where HMG has made no statement, its voice was silent [81]. ‘To infer the intention of HMG in relation to recognition would be to trespass into an area which is constitutionally within the exclusive competence of the executive’ [98]. In other words, as HMG has a policy not to afford recognition to foreign governments, the courts would be acting contrary to HMG’s position (and, therefore, constitutionally inappropriately) if they, nevertheless, attempted to infer whether HMG had recognised a particular foreign government. In such circumstances, recognition is not the determinative criterion. The court must instead identify who may be the government or head of the foreign state by making its own findings of fact, adopting the approach in the earlier case of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54 [98].

As to that:

‘..Especially where a separate juridical entity is formed by the State for what are on the face of it commercial or industrial purposes, with its own management and budget, the strong presumption is that its separate corporate status should be respected, and that it and the State forming it should not have to bear each other's liabilities. It will in the Board's view take quite extreme circumstances to displace this presumption. The presumption will be displaced if in fact the entity has, despite its juridical personality, no effective separate existence. But for the two to be assimilated generally, an examination of the relevant constitutional arrangements, as applied in practice, as well as of the State's control exercised over the entity and of the entity's activities and functions would have to justify the conclusion that the affairs of the entity and the State were so closely intertwined and confused that the entity could not properly be regarded for any significant purpose as distinct from the State and vice versa…’

‘As the International Court of Justice has pointed out (Democratic Republic of the Congo v Belgium (Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3 , at paras 59-61), diplomatic immunity is not an immunity from liability. It is a procedural immunity from the jurisdiction of the courts of the receiving state. The receiving state cannot at one and the same time receive a diplomatic agent of a foreign state and subject him to the authority of its own courts in the same way as other persons within its territorial jurisdiction. But the diplomatic agent remains amenable to the jurisdiction of his own country's courts, and in important respects to the jurisdiction of the courts of the receiving state after his posting has ended. I do not under-estimate the practical problems of litigating in a foreign jurisdiction, .... Nor do I doubt that diplomatic immunity can be abused and may have been abused in this case. A judge can properly regret that it has the effect of putting severe practical obstacles in the way of a claimant's pursuit of justice, for what may be truly wicked conduct. But he cannot allow his regret to whittle away an immunity sanctioned by a fundamental principle of national and international law. As the fourth recital of the Vienna Convention points out, "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of diplomatic missions as representing states”.’ So it was that, subsequently, in Benkharbouche [17], Lord Sumption JSC stated that the modern law treats diplomatic immunity as serving an essentially functional purpose.

‘…The defendants are the Kuwait Investment Authority (“KIA”), which may be described as the investment arm of the government of Kuwait, though with a separate legal identity from the government and State. Its head office is in Kuwait and it is domiciled there, but it has a long-established branch office in London where it operates under the style of Kuwait Investment Office ( “KIO” )…’ 

At [59], he had continued:

‘It is common ground that the defendants KIA/KIO have a legal identity conferred by and under the laws of Kuwait. It has been described as “the external treasury of the Kuwaiti Government” and “the investment arm of the State of Kuwait”, both of which it accepts as accurate. Its offices in London are treated as part of the Kuwaiti Embassy and they enjoy diplomatic immunity. Its employees are civil servants of the Kuwaiti Government. It is a public authority established by decree in accordance with the Constitution and as such it can sue and be sued. But it holds no assets and manages no business for its own account; the assets and business are the State's. It is funded by an allocation of a budget by the State, which forms part of the State budget; and its budget and accounts are subject to the control of the National Assembly. Its “Board of Directors” includes the Minister of Finance, the Minister of Oil, the Under-Secretary at the Ministry of Finance and the Governor of the Central Bank.’

Those facts were not revisited before the House of Lords [1999] 1 AC 32.

the documentation which was before the Tribunal, said to indicate that the staff sent to the Respondent were accepted as part of the Kuwaiti mission and, thereby, to establish that the Respondent itself had been recognised by HMG as part of the Kuwaiti mission. The Respondent asserts that HMG’s position on the issue is determinative, as a consequence of the constitutional separation of powers; the only role of the tribunal, and, on appeal, of the EAT, is to determine whether the receiving state has made such a decision;

the additional (including unredacted) documentation which had not been before the employment tribunal, produced at or before the hearing of its appeal, itself said to demonstrate that the Respondent has been recognised by HMG as part of the Kuwaiti mission, with the same consequence; and

the yet further documentation, variously produced after the hearing of the appeal and prior to judgment, said to indicate, respectively, that: the premises from which the Respondent operates were to be used for mission purposes, exclusively by the Respondent; the Respondent had been accorded sovereign (state) immunity from UK direct taxation; and staff working at the Respondent formed part of the Kuwaiti diplomatic mission. Once again, the same consequence is asserted.

The Respondent’s inclusion in the London Diplomatic List is not conclusive of its status, or, hence, entitlement to rely upon Articles 24 and/or 27(2) of the VCDR. Were it otherwise, the FCDO would not have been asked by the court in Estrada to provide a certificate in relation to a representative whose name appeared in the diplomatic list (see paragraphs 16 and 17), an approach of which no criticism was made by the Court of Appeal, and which is consistent with the position advanced in Satow’s Diplomatic Practice, Seventh Edition, at paragraphs 7.34 and 10.1. If the list is not conclusive of the status of a listed individual, the submission that it is conclusive of a listed office’s membership of the Kuwaiti mission is all the weaker. Further, whether or not individuals who work at the Respondent’s offices themselves have the benefit of diplomatic immunity, or engage in diplomatic activity, that says nothing about the Respondent’s own status as part of the mission.

The FCO note dated 7 November 2005 (stamped as having been received on 14 November 2005) was addressed to the Embassy of the State of Kuwait, rather than to the Respondent. The letter of 4 October 2005, to which it referred, again indicated that it was the Embassy, not the Respondent, which had made the relevant request and that some diplomatic status had attached to the premises and certain staff working there. The title deed for Wren House identifies the registered owner as being the State of Kuwait, rather than the Respondent. Whether or not the premises are used by the Respondent, the document does not itself establish that the Respondent is part of the mission.

Thus, whether read in the context of the 4 October 2005 letter and title deed, or in isolation, the 2005 FCO note does not constitute a clear and unequivocal statement that the Respondent forms part of the Kuwaiti diplomatic mission. In my judgment, Professor Sarooshi’s reliance upon Article 12 of the VCDR is misplaced. That Article provides that ‘The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.’ It does not assist the Respondent, for three reasons. First, in the absence of full disclosure, it is not possible to be clear whether the express consent required by Article 12 has been given, or, indeed, later withdrawn. Whilst the FCO note would ostensibly constitute such consent, entitling the Kuwaiti mission to establish offices forming part of the mission in a locality other than those in which the mission itself is established, if the Respondent forms part of the mission, no such consent would have been required. Secondly, and in any event, the presence of the Respondent in Wren House does not establish that it forms part of the Kuwaiti mission; it simply establishes presence. If the Respondent is not part of the Kuwaiti mission, its presence in Wren House would not constitute a contravention of Article 12 by the sending state. Thirdly, it is, as a matter of principle, possible for the Kuwaiti mission to establish an office in Wren House (of which the state of Kuwait is the registered owner), without the Respondent thereby being part of the mission. Similarly, for the purposes of sections 1(1) and 1(3) of the Diplomatic and Consular Premises Act 1987, any application by the Kuwaiti mission to use Wren House as diplomatic premises does not itself serve to establish that the Respondent is part of the mission, irrespective of whether it operates from those premises (exclusively or otherwise).

The FCO note, dated 23 February 2006, was also sent to the Embassy, rather than the Respondent. It requested a list of all staff then working at the Respondent’s office and that, in future, all new members of staff appointed to the KIO stipulate as much in their TX9 appointment forms. At that time, form TX9 was used to notify the FCO of the arrival and final departure of those officials who were entitled to privileges and immunities, or of any changes to the circumstances of a member of a mission. The pro forma as it then stood has not been disclosed in these proceedings. As noted above, whether or not individuals who work at the Respondent’s offices themselves have the benefit of diplomatic immunity says nothing about the Respondent’s own status as part of the mission. The reference in the note to ‘Kuwait – Kuwait Investment Office’ is, at best, ambiguous and, at least, consistent with the individual’s place of work being that office. In short, the 2006 note does not represent a clear and unequivocal statement of recognition.

‘96. On its face, the resort by the Court of Appeal in Breish to such extraneous materials is inconsistent with the one voice principle. The Guaidó Board submits, however, that this is not the case because the Court of Appeal in Breish was not concerned with the meaning of a certificate but with the logically prior question as to the status of the letters ie whether HMG had made a statement of recognition which engaged the one voice principle or merely a statement of political support. But, even if that is accepted, it leaves a further difficulty. The Court of Appeal seems to have engaged in a process of inferring recognition from the dealings between HMG and the relevant Libyan entities. For reasons developed below I consider it inappropriate for courts in this jurisdiction to rely on notions of implied recognition. If the FCDO has departed from its usual practice by issuing an express statement of recognition, any ambiguity in the statement should be resolved by a further request to the FCDO for clarification. In the absence of such an express statement of recognition by HMG, the issue of recognition does not arise and the courts are left to conduct an inquiry as to whether the entity in fact carries out the functions of a government in accordance with Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA.

Implied recognition is a concept of international law and its function on the international plane is widely acknowledged. However, there is no scope for the application of any notion of implied recognition by courts in this jurisdiction. In the present case, exceptionally, Her Majesty’s Government departed from its 1980 policy and made an express statement in relation to the status of a person claiming to be head of state of Venezuela. That statement must be interpreted and applied by the courts and is determinative. No question of implied recognition arises. Where there is no such express statement, Hobhouse J in Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA and Mance J in Kuwait Airways Corpn v Iraqi Airways Co (No 5) have demonstrated that it is not open to the courts to infer recognition from the conduct of HMG. Quite apart from the practical difficulties of doing so, to infer the intention of HMG in relation to recognition would be to trespass into an area which is constitutionally within the exclusive competence of the executive. In such circumstances recognition ceases to be the determinative criterion and the court must identify who may be the government or head of state by making its own findings of fact as indicated in Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA.’

As is clear from the Respondent’s letter to the FCDO, dated 4 November 2011 (in unredacted form), not all of the staff who work from the Respondent’s office themselves have diplomatic status;

The formerly redacted part of the FCO’s letter to the President and CEO of the Respondent, dated 31 October 2019, referred separately to the Kuwait Embassy and the KIO. I note the careful wording of Professor Sarooshi’s submission that the letter evidences the fact that the FCO was treating the Respondent’s officials as members of the Kuwaiti mission. Even if true, that is not synonymous with the Respondent’s membership of the mission, or with HMG’s recognition of the latter. The reference made, in the opening paragraph, to Article 38 of the VCDR is not conclusive, or compelling; it says nothing of the source of the privileges and immunities enjoyed by the relevant staff, nor does it establish the entity by which they are employed/engaged. There is no reference made anywhere in the letter to Article 11 of the VCDR. The FCO’s letter of 4 February 2020 (on which Professor Sarooshi did not rely in his oral submissions, but to which he referred in the written submissions served following the Supreme Court’s judgment in Central Bank of Venezuela) does not advance matters, for current purposes, and no further letter from the FCO in that particular chain of correspondence has been produced (albeit invited by the Respondent’s letter to the FCO dated 13 February 2020). It is not appropriate to draw the conclusions invited by the Respondent on the basis of incomplete correspondence, or of Professor Sarooshi’s submissions alone, or of the position as agreed between the parties in Sarrio, in connection with different issues;

The letter from HMRC, dated 23 July 2020, relates to ‘sovereign immunity from UK direct taxation’; the relevance of which, in connection with the subject matter of this appeal, has not been explained. It emanates from a non-ministerial government department and was sent to a firm of accountants. It forms part of a chain of correspondence the balance of which has not been disclosed. It says nothing of HMG’s position on whether the Respondent forms part of the Kuwaiti mission;

The document emanating from the Embassy of Kuwait, dated 23 September 2020, is not a statement by HMG. In any event, without more, the Court is not bound to accept assertions made by the state through its representatives (see Al Attiya, [71]), particularly those made at a time when this litigation was already on foot and on the date on which the Respondent applied to amend its Particulars.

reliance is placed upon the documentation said to constitute express statements of recognition as, alternatively, indicating implied recognition, that submission also fails, for the reasons previously stated;

the letters of 31 October 2019; 4 February 2020; and/or 23 July 2020 are asserted to constitute express statements of HMG’s recognition of the Respondent as part of the Kuwait mission, I reject that assertion, too. In addition to the points already made in relation to each such letter, none was clear and unequivocal, nor was it produced by the FCO in the knowledge that it was intended to be produced to the court/tribunal, and containing the carefully considered views of HMG, for use in a public forum.

Article 27(2) of the VCDR

I accept Mr Laddie’s submission that Article 27 of the VCDR relates to documents which would not necessarily be part of the mission’s archives or documents at the time of interception (Bancoult [65], and see, also, Diplomatic Law Commentary on the Vienna Convention on Diplomatic Relations, Fourth Edition, edited by Eileen Denza, at page 1454). Thus, irrespective of my findings in relation to ground 4, it would not have been engaged on the facts of this case. In so far as the documentation in question forms part of the archives and documents of the mission, it would have the protection accorded by Article 24 of the VCDR. In those circumstances, it is, perhaps, unsurprising that the Tribunal did not engage with the point.

Article 24 of the VCDR

Albeit that the purpose of Article 24 of the VCDR is to protect the confidentiality of the mission’s work (Bancoult [69]), in my judgment in the absence of communication to a third party, with the actual or ostensible authority of the responsible personnel of the mission, immunity is not lost ((Bancoult [71]).

Nevertheless, as the Respondent accepts, in the form communicated to a third party any document is no longer that of the mission and the Respondent could have no legitimate objection under the DPA/VCDR to an order for disclosure by that third party. Such an order could be made pursuant to rule 31 of the 2013 Rules. I note that, in his oral submissions, Professor Sarooshi did not assert that documents sent to third parties in the context of a lender and borrower, bailor and bailee, or principal and agent relationship fell to be analysed differently, nor was any principled basis for such a contention advanced or apparent. Within ground 7 of its notice of appeal, the Respondent referred to page 27 of Shearson, the relevant part of which (at F-G) made clear that a host state would not countenance violation of the privacy of diplomatic communications, by permitting a violator (i.e. someone who had obtained documentation by improper means), or someone who had received documentation from that violator, to make use of it in judicial proceedings. That is unsurprising, but is of no application to the particular proposition advanced by the Respondent, which contemplates intentional transmission of documentation by the Respondent to a third party, which is, thereby, in lawful receipt of that documentation. In any event, there was no evidence before the EAT (or, seemingly, the Tribunal) as to which, if any, of the documents sought were said to fall within any of the relationship categories identified by the Respondent.

Accepting (as do the Claimants) that Shearson and Bancoult were not concerned with documents in the hands of the mission itself, I reject Professor Sarooshi’s submission that an order that the Respondent create and provide an exhaustive list of third parties to whom disclosable documents had been communicated by the Claimant would be objectionable, as itself running contrary to Articles 24 and 27(2) of the VCDR. Addressing the various arguments which he advanced in that connection:

Article 6 of the ECHR

For the avoidance of doubt, I am satisfied that, as a matter of principle, Article 6 of the ECHR is engaged in relation to disclosure in connection with proceedings to which that article relates. Whilst Professor Sarooshi did not accept that to be the case, he produced no authority supportive of his position and examples of its application to disclosure are readily to be found (see McGinley v United Kingdom (21825/93) (1999) 27 EHRR 1 and related caselaw).

Nevertheless, if it is the case that the Respondent benefits from diplomatic immunity, Article 6 of the ECHR will not itself operate to override or qualify that immunity and does not exist in a vacuum. The real question is whether any diplomatic immunity has been waived – a question which I address below. Subject to that, restrictions on the right of access to court which reflect generally recognised rules of public international law cannot, in principle, be regarded as disproportionate (Estrada [44]).

With considerable regret, I conclude that that position is not altered by any decision by the Respondent to give selective disclosure, and to withhold unfavourable material on the basis of diplomatic immunity. Assuming, for these purposes only, that Articles 24 and 27 of the VCDR apply, the Respondent could not have been criticised for withholding all documentation which they protect. In such circumstances, as a matter of principle and absent any waiver by the state of Kuwait, it is difficult to see how it could be criticised for withholding part of that documentation. As the Tribunal rightly observed (and as Professor Sarooshi acknowledged), it may be that appropriate inferences as to the substantive merit in the Respondent’s position could and should be drawn in such circumstances, but the imperfect nature of that option does not enable a tribunal to override the immunities conferred by the VCDR, however unpalatable the result. Lord Sumption JSC’s observation, in Al-Malki v Reyes [7] (set out at paragraph 93, above) is apt here.

State immunity was pleaded by the Respondent as a defence to the Claimants’ substantive claims. There is no suggestion that the Claimants’ response to that defence ought to have been anticipated in the claim forms, as originally pleaded;

It is routine in employment tribunal litigation for a claimant to advance a positive case in response to a pleaded defence without the prior need to amend his/her claim form, or to serve subsequent pleadings or particulars. The Claimants have noted certain commonplace examples;

Consistent with that fact, there is no express provision in the 2013 Rules for the service of pleadings subsequent to the response form;

This is not a case in which amendment of the claim form would have been appropriate; there was no change to the claims being advanced by the Claimants, or the bases upon which they were being advanced. Chandhok v Tirkey was a case relating to the bases upon which a claim of discrimination had been advanced. Unsurprisingly, the EAT observed that the function of the form ET1 is to set out a claimant’s essential case, to which the Respondent must respond in its form ET3, and which would be of significance, in particular, to the applicable limitation period. That is not this case. In relation to an application made for disclosure in civil proceedings, the Court of Appeal in Harrods Ltd v Times Newspapers [12] stated that it was essential that a court, first, identify the factual issues which would arise for decision at trial and that disclosure must be limited to documents relevant to those issues. As a proposition, that is uncontroversial, but it does not advance the Respondent’s position in this case, in which it is clear that the plea of state immunity is contested and the Respondent is put to proof of each matter on which it relies for its plea, including the facts which were said to be common ground in Sarrio. That was made clear by the First Claimant’s solicitors’ letter, dated 23 October 2019, and the Second Claimant’s solicitors’ letter, dated 19 December 2019. In so far as the specific disclosure sought related to particular factual matters in issue, those matters were identified in the Claimant’s respective application letters and in the inter partes correspondence which preceded them.

The pleaded averment appearing in the First (though not the former Second) Claimant’s case which is said to be inconsistent with the position adopted by the Claimants in relation to disclosure, is at paragraph 11 of his grounds of complaint: ‘The [Respondent] manages funds which are beneficially and wholly owned by the State of Kuwait’. That is hardly determinative of the position, nor, on its face, advanced as an exhaustive or exclusive description of the Respondent’s activities.

The Respondent can derive no assistance, for current purposes, from the asserted burden of proof in relation to state immunity, which is contested, and, thus, an issue for determination by the tribunal at the substantive preliminary hearing. In such circumstances, the Respondent’s position on that issue in connection with its application to debar (as recorded in shorthand by the Tribunal at paragraph 15 of its decision, and clarified at paragraph 3 of the reasons for its orders dated 22 July 2020, in response to the Respondent’s application for reconsideration) was correct.

As no amendment to the Claimants’ pleaded case, or service of a further pleading, was required, the Tribunal made no error of law in proceeding to consider the Claimants’ application for specific disclosure in their absence. Furthermore, the Tribunal went on to give perfectly sensible case management directions which will ensure that, so far as its objection extends beyond the forensic, the Respondent will not be prejudiced in the manner said to underpin that objection. Put simply, the Noorani test is not satisfied.

‘if, and only if—

the proceedings relate to anything done by it in the exercise of sovereign authority; and

the circumstances are such that a State…would have been so immune.’

ground 5 is allowed, but results in no change to the orders made by the Tribunal, in light of my conclusions as to grounds 1 to 4;

grounds 1 to 4 are dismissed; and

grounds 6 to 8 fall away, in light of my conclusions as to ground 4.