Mbasogo & Anor v Logo Ltd & Ors

This is an appeal against an order made on 21 September 2005 by Davis J in which he struck out both claimants’ claims for damages but refused to strike out the claim for an injunction. There is a cross-appeal by the respondents against the judge’s refusal to strike out the claim for an injunction. Further, by a respondent’s notice, the respondents submit that the claims are not justiciable.

The alleged facts, on the basis of which this appeal must be determined, emerge from the seventh draft re-amended particulars of claim, which is the latest redraft of the claimants’ case. In 2005 the African State of Equatorial Guinea had a population of only 521,000, but it was (and is) rich in oil and gas. Its capital, Malabo, is situated on the island of Bioko, which lies off the coast of Cameroon, approximately 160 kilometres from the mainland coast of Equatorial Guinea.

The first claimant is the President of the Republic of Equatorial Guinea. He enjoys international recognition as head of state and the United Kingdom has full and reciprocal diplomatic relations with the country of which he is head.

The appeal arises out of an alleged conspiracy by the defendants to overthrow the government by means of a private coup, to seize control of the state and its valuable assets, to kill or injure the first claimant and to install the sixth defendant who is an Equato-Guinean living in Spain, as the new President.

The particulars of claim allege that the conspiracy took place between March 2003 and March 2004 in England and elsewhere. It is alleged that the attack was to comprise an assault force of some 70 experienced former Special Forces soldiers who had served in South Africa. Further, an advanced group of 20, including experienced former South African Special Forces soldiers, had gone to Malabo to gain intelligence and to prepare and participate in the attack (see paragraph 8 of the re-amended particulars of claim).

The particulars of claim detailed munitions to be used in the attack; they included AK rifles, light machine guns, grenade launchers, rocket-propelled grenade projectiles, mortars, high-explosive mortar bombs and hand-grenades (see paragraph 8A of the re-amended particulars of claim, which is quoted below).

The coup failed. On about 7 March 2004 the fourth defendant and other mercenaries were detained by the Zimbabwe authorities before they, and the munitions they were taking with them, could be loaded on an aircraft and taken to Malabo. The following day a Mr du Toit, who (it is alleged) had agreed to assist, and others of the advance group were arrested in Equatorial Guinea. The fourth defendant was convicted in Zimbabwe of offences relating to unlawful procurement of munitions and, on 10 September 2004, sentenced to 7 years imprisonment, reduced on appeal to 4 years. The main body of mercenaries received lesser sentences for immigration offences. At the end of 2004 and beginning of 2005, others, including Sir Mark Thatcher, pleaded guilty and were convicted of offences contrary to the South African Regulation of Foreign Military Assistance Act 1998. Those arrested in Equatorial Guinea, as members of the advance group, were prosecuted and convicted in October 2004 of offences relating to the coup attempt. They were given long sentences and remain in prison in Equatorial Guinea. The third and sixth defendants heard of the failure when, it is alleged, they were about to leave Mali.

The consequences of the attempted coup are fundamental to the allegations made in the amended particulars of claim. It is alleged that the first claimant was caused great apprehension and fear, particularly for his own and his family’s safety. He believed that both he and his family were likely to be injured or killed in the course of the attack.

Moreover, it is alleged that the defendants’ actions caused what is described as “mayhem” within the Republic. It is alleged that the country is dependant on assistance from abroad to help it to develop its natural resources and infrastructure. Reports of the failed coup resulted, so it is contended, in a serious brake being put on such assistance, with a consequential serious impact on the country’s infrastructure.

The judge struck out the first claimant’s claim for damages for assault, conspiracy and intentional infliction of harm by unlawful means against the first, second and fourth defendants (known as the “Kerman defendants”), against the fifth defendant and, of his own motion, against the third and sixth defendants. He struck out the second claimant’s claim for damages for conspiracy against the Kerman defendants, the fifth defendant and, of his own motion, the third and sixth defendants. He refused permission for amendment of the particulars of claim relating to the first claimant’s claim for damages for the causes of action we have identified in respect of which both claimants made claims. But he refused to strike out the claim for an injunction and granted permission to the claimants to amend the particulars of claim in pursuit of that relief.

The following issues arose on this appeal:-

The rival submissions in relation to these issues were coloured by rival approaches to striking out claims. It was not disputed that the power to strike out should only be exercised in an obvious case. But the claimants laid particular stress on their assertion that novel points were involved in areas of developing jurisprudence. There should, accordingly, be even greater reluctance to drive them from the judgment seat in circumstances where there were compelling reasons of public interest and policy for permitting the actions to continue where the law was unsettled. It was alleged that the life of the head of a foreign friendly state had been at stake with billions of pounds of assets placed in jeopardy. A case of international terrorism against a friendly state had been master-minded and financed within the jurisdiction of the English courts. In those circumstances it was the proper function of the law to ensure that such wrongs were remedied.

Such a clarion call to arms, was parried by the defendants’ attempts to disparage the position of the first claimant. We should however say at the outset that the resolution of this appeal does not depend upon the aspersions cast against the first claimant. It makes no difference whether he is a Tiberius or a Marcus Aurelius. Moreover we agree with the judge that it is not necessary to identify the motives which have driven these claimants to bring these proceedings. They stand or fall on the merits of the legal arguments advanced.

Further, it was alleged that these proceedings were merely a cynical attempt to satisfy an undertaking to the Royal Court of Guernsey to pursue civil proceedings in this country. The judge accurately set out the history of that foreign litigation, in which Norwich Pharmacal-type relief was sought, between paragraphs 21 and 26 of his judgment. Since the judgment of Davis J., the Privy Council has upheld an appeal from the decision of the Court of Appeal of Guernsey reversing the Norwich Pharmacal relief granted by the Lieutenant Bailiff against the Royal Bank of Scotland: see The President of the State of Equatorial Guinea and Another v The Royal Bank of Scotland International and Others [2006] UKPC 7.

At the hearing of the appeal the argument proceeded in four stages. We heard argument first on conspiracy, secondly on the novel tort, thirdly on assault and finally on justiciability. The reason why the argument proceeded in that way was this. As indicated above, the claimants’ claims for damages were struck out, with the result that they are the appellants in this appeal. The issues which arose on the appeal were argued first. Although the issue of justiciability was raised before the judge and the respondents’ case was rejected by him, it was not initially raised by a respondents’ notice. However, the judgment of the Privy Council, which was jointly delivered by Lord Bingham and Lord Hoffmann on behalf of the Judicial Committee, expressed the view, albeit obiter and (as Sir Sydney pointed out) without the benefit of adversarial argument, that it was well arguable that the claims were not justiciable in England. We set out the relevant part of the judgment in paragraph 48 below. Spurred on by those views, the defendants sought and obtained permission to advance the same or similar arguments by way of respondents’ notice. The argument on the respondents’ notices was heard after the argument on the appeal, although on reflection logic might have suggested that the argument on the respondents’ notices should be heard, and perhaps determined, first because if the claims are not justiciable in England, it seems curious (to put it no higher) for the court to express views on non-justiciable claims.

When we came to consider the issues after the hearing of the appeal and to give further thought to the position as a whole, we reached the conclusion that the sensible course was to determine first the issue of justiciability and then to consider whether it was appropriate for us to determine the other issues. That was because, if we concluded that the claims were not justiciable, it might not be appropriate for us to resolve the other issues. We therefore turn to justiciability.

The defendants submit that the claims for damages are not justiciable in our courts. The reasons they advance are put in various ways. Their underlying submission is that the claim is, in reality, an exercise of sovereign authority by Equatorial Guinea in the courts of England and Wales because, in essence, it is a claim for losses sustained in the exercise of the power of a sovereign state to protect itself from revolution. The claimants respond that this misdescribes the true nature of their claims. Properly understood, these are entirely conventional claims for compensation for pecuniary loss suffered as a result of the defendants’ tortious actions.

It is essential to have in mind the precise nature of the pleaded case. We shall refer to the seventh draft re-amended particulars of claim. Paragraphs 8 to 14A are pleaded under the heading “THE CONSPIRACY”. Paragraph 8A is in these terms.

“8A. The munitions which were to be used in the attack included (a) 61 AK rifles, (b) 20 light machine guns, (c) 10 rocket propelled grenade launchers and 100 rocket propelled grenade projectiles, (d) 2 mortars and 80 high explosive mortar bombs, and (e) 150 offensive hand grenades (“the Munitions”). The Defendants purchased the Munitions for the attack:

(1)

intending and knowing that their use would cause indiscriminate killing and very serious injuries to the Second Claimant’s citizens and agents (such as members of its armed forces and constabulary) and destruction and serious damage to the Claimants’ property and to its servants;

(2)

for the sole, alternatively predominant, and unlawful purpose of injuring the Claimants by unlawfully:

a)

effecting the overthrow of the lawful government of Equatorial Guinea,

b)

abducting or injuring or murdering the First Claimant,

c)

taking possession and control for their own benefit of the Second Claimant’s property and natural resources (including oil and gas resources) and

d)

destroying or damaging the Second Claimant’s property and chattels, and

(3)

with a calculated view of (a) profiting financially and commercially from the Coup and (b) replacing the First Claimant with the Sixth Defendant (a citizen of Equatorial Guinea living in exile in Spain). The Claimant will hereafter refer to this combination and plan as “the Conspiracy”.”

At paragraph 40, particulars of special damage are pleaded as follows:

“40.

As a result of the Conspiracy and/or attempt to effect the Coup and the Other Purposes, the Claimants have suffered loss and damage.

PARTICULARS OF SPECIAL DAMAGE

(1)

Costs incurred in responding to the Conspiracy and Other Purposes.

a)

On 5-6 March 2004, the Second Claimant incurred costs in relation to the meeting in Angola referred to in paragraph 41 below in the total sum of €33,441.15 and US$603.72.

b)

On or about 8 March 2004, the Second Claimant commenced an investigation into the Conspiracy and suffered loss and damage in the expense of so doing, including (but not limited to) travel and accommodation expenses incurred by those involved in the investigation. Particulars of travel and accommodation expenses are provided in Schedule 1 hereto in the amount of €710,750.62.

c)

Subsequently, the Claimants commenced actions for discovery against third parties in the Isle of Man and Jersey in order to establish the identity of participants in the Conspiracy for the purpose of pursuing civil proceedings against them to recover their losses. The total amount of costs incurred in such proceedings was £19647.62.

(2)

Costs incurred in the detention of suspects

a)

Cost of food for suspected members of the Advance Group whilst in prison – CFA 1.1 million per month (currently CFA 17.6 million or approximately €26,831.02 in total and continuing).

b)

Cost of medical expenses for treatment of suspected members of the Advance Group – CFA 2.3 million (approximately €3,506.33) to date.

c)

Cost of special additional prison security for suspected members of the Advance Group – in excess of €12,000 to date.

The Claimants reserve the right to add to these particulars prior to trial.

(3)

Costs incurred in the prosecution of suspects.

a)

Members of the Advance Group were put on trial in Malabo following their arrest. The trial was one of great importance since it involved the prosecution of many foreign nationals for serious offences and was attended by numerous members of the international media and monitoring groups. Accordingly, the Second Claimant specifically retained the services of outside counsel (Mme Lucie Bourthoumieux, an advocate and member of the French Bar, and her assistant) to advise and assist it in the prosecution of the Advance Group. Mme Bourthoumieux and her assistant were resident in Malabo for this purpose between June and September 2004 and September and December 2004 and were paid for their services by the Second Claimant. Particulars of the fees and disbursements incurred in respect of Mme Bourthoumieux and her assistant exceed €345, 500.

b)

A number of the Advance Group were unable to afford legal assistance for their defence. Under the Second Claimant’s penal code an accused is entitled to free representation (at the cost of the second claimant) in such circumstances. The costs of such representation amounted to CFA 20 million.

(4)

Damage to the Second Claimant’s commercial interests and infrastructure.

As a result of the Defendants’ activities the Second Claimant’s commercial interests and infrastructure have been seriously and adversely affected.

a)

A state of emergency existed between 8 and 20 March 2004. This affected the movement of the large number of foreign nationals who were employed or engaged in work to develop and exploit the Second Claimant’s energy resources.

b)

Further, as a result of the Defendants’ actions, the security checks carried out by the Second Claimant on foreign nationals wishing to work in the Republic have been necessarily stringent and have affected the ability with which companies developing the Second Claimant’s energy resources have been able to employ or engage skilled foreign workers. These matters have significantly disrupted the production of oil and related resources, which in turn has reduced tax and royalty revenues to the Second Claimant. Particulars of these losses will be provided in due course.

c)

Furthermore, as a result of the Defendants’ actions, projects for roads and other civil engineering works have been affected by delays resulting from the departure in the wake of the coup of foreign nationals who were engaged on such projects. The Claimants’ current estimate of the loss suffered thereby is approximately US$5 million. However, the Claimants reserve the right to add to or vary these particulars in due course.

(5)

Costs of increased security

a)

As a result of the threat from the Defendants it was necessary to arrange an emergency transfer of army personnel to Malabo and to accommodate them between 5 and 20 March 2004.

i)

The cost of purchasing pre-fabricated accommodation and other associated costs to accommodate these personnel was US$520,000.

ii)

In addition, the costs of additional wages for police and army personnel, who would not have been deployed but for the Defendants’ actions, together with additional costs of deployment costs was in excess of €120,000.

b)

As a further result of the threat from the Defendants, in order to facilitate rapid communications amongst the armed forces, the police and other relevant areas such as the Presidential palace, the Second Claimant installed a communications system and a security camera network in Malabo at a total cost of €561,071.90.

Further particular of these expenses will be provided in due course.”

At paragraphs 41 to 44, various other steps that were taken in response to the attempted coup are set out. At paragraph 43 (sic), it is alleged that by reason of these matters the President feared that he and his family were likely to be killed or suffer very serious injury and that as a result of this apprehension of imminent attack, “he suffered serious anxiety, distress and disruption to his personal life and work”. At paragraph 45, there is pleaded a claim for exemplary damages.

At paragraph 49, it is alleged that, unless restrained by the court, the defendants will make further coup attempts. In the prayer, the claim for an injunction is to restrain the defendants “from conspiring to effect or from carrying out or financing within the jurisdiction of the Court any attempt (a) to use unlawful force on the Claimants or either of them; or (b) to murder, harm, assault, abduct or trespass on the person or property of the First Claimant or his family or any citizens of the Second Claimant; or (c) to injure or damage by unlawful means the property or commercial interests of the Second Claimant or any of its citizens; or (d) to misappropriate the property of the Second Claimant (in particular oil installations within Equatorial Guinea); or (e) for the purpose, alternatively the predominant purpose, of injuring the Claimants, to overthrow the recognised government of the Second Claimant by force or other unlawful means”. In the course of his oral submissions, Sir Sydney Kentridge QC conceded that the court could not, or should not, grant an injunction in the terms of (e).

Much of the claimants’ argument hinged on Emperor of Austria v Day and Kossuth (1861) 3 De G F & J 217. The defendants had printed banknotes in London. Louis Kossuth intended to introduce the notes into Hungary after he had overthrown the Emperor of Austria by revolution. The Emperor obtained an injunction restraining the defendants from continuing to manufacture the notes. The injunction was upheld on appeal. One of the defences advanced was that the injunction should be refused because the proceedings were brought to protect the Emperor’s political power and prerogatives. Lord Campbell LC said (p 238) that “if the suit were instituted merely to support his political power and prerogatives” he would have denied the Emperor the right to maintain the suit.

Lord Justice Turner made the same point. He noted that the bill put the plaintiff’s case on three grounds: (i) violation of the rights and prerogative of the plaintiff as King of Hungary “by promotion of revolution and disorder and otherwise”; (ii) injury to the State of Hungary by the introduction of a spurious circulation into that kingdom; and (iii) injury to the subjects of the plaintiff by the same cause. He said that there was no doubt that the court did not have jurisdiction to interfere on the grounds that the notes were intended to be used for the purpose of promoting revolution and disorder (p 250). He also rejected the second ground on which the case was based. The right of coining and issuing paper money is the prerogative of a sovereign: “so far, therefore, as this bill is founded upon the prerogative rights of the Plaintiff, or upon the political rights of his subjects” the injunction should be refused. At page 251 he said: “the prerogative rights of sovereigns seem to me, as at present advised, to stand very much upon the same footing as acts of State and matters of that description, with which the municipal courts of this country do not and cannot interfere”.

But the court upheld the injunction on the third ground on which the bill was based. Lord Campbell was of the opinion that “if the acts meditated by the defendants and forbidden by this injunction were actually done, a pecuniary loss would be sustained by the plaintiff and by all his subjects, holders of the existing currency” (p 237). The court has jurisdiction to protect property from an act which, if completed, would give a right of action. Lord Justice Turner said that the third ground on which the bill was based alleged a case of injury to the subjects of the kingdom, “an injury not to the political but to the private rights of the plaintiff’s subjects” (p 253). He concluded:

“I agree that the jurisdiction of this Court in a case of this nature rests upon injury to property actual or prospective, and that this Court has no jurisdiction to prevent the commission of acts which are merely criminal or merely illegal, and do not affect any rights of property, but I think there are here rights of property quite sufficient to found jurisdiction in this Court.”

This is not an easy decision to interpret. In Kingdom of Spain v Christie, Manson & Woods Ltd [1986] 1 WLR 1120, 1130, Sir Nicolas Browne-Wilkinson VC questioned the nature of the cause of action which supported the injunction. But it was referred to, without disapproval, by this court in RCA Corporation v Pollard [1983] Ch 135.

The decision reached by the court in the Emperor of Austria case was cogently criticised by Dr F A Mann at pp 37-39 of his article “Prerogative Rights of Foreign States and the Conflict of Laws” in Transactions of the Grotius Society (1954) 40 Tr. Gro. Soc. 25. He said that there was force in the point that the result was inconsistent with the premise from which the court started, viz that the right to issue money was a prerogative of sovereigns. He continued:

“That prerogative may constitute “property” in a political sense, but it is not property within the accepted legal meaning of the term. And the fact that an injury to a prerogative right of the State may prejudice the State’s subjects, though true, does not touch the prerogative right’s character or prove its enforceability by the sovereign in England.”

Although the actual decision in the Emperor of Austria case has given rise to criticism and puzzlement, it is an authority which recognises the fundamental distinction between an action which amounts to the exercise of sovereign authority in the territory of another and an action brought to protect property rights, such as might be brought by an individual. It is this distinction which founded the dismissal of the first two grounds of the bill (which related to the protection of Hungary from revolution), but the upholding of the third ground (which the court viewed as merely relating to the protection of property). It is moreover a distinction supported by Dr Mann and it is, in our view, a key distinction on the facts of the instant case.

The defendants directed much of their attention to the meaning of rules 3(1) and (2) in what is now the 14^th edition of Dicey, Morris and Collins, Conflict of Laws, which are in these terms:

“Rule 3 – English courts have no jurisdiction to entertain an action:

(1)

for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State; or

(2)

founded upon an act of state.”

In particular the defendants say that the claims for damages involve the enforcement of a “public law” of the state of Equatorial Guinea and/or are founded on an act of state. The claimants argue that they are not relying on any penal, revenue or public laws of Equatorial Guinea (or indeed any laws of that country); nor are they exercising any sovereign prerogative or political rights outside the territory of Equatorial Guinea amounting to an act of state.

In our view, it is more important to understand the rationale which lies behind rule 3 rather than to resolve the vexed questions as to what the editors meant by the reference to “other public law” in rule 3(1) or what is meant by rule 3(2). We begin with the rationale behind rule 3(1).

It is not in doubt that the courts of one country will not enforce the penal and revenue laws of another country: see paragraph 5-020 of Dicey, Morris and Collins. Two explanations have been given of the rule. They both seem to have been endorsed by Lord Keith of Avenholm in Government of India v Taylor [1955] AC 491, 511, which was a revenue case. He said:

“One explanation of the rule thus illustrated may be thought to be that enforcement of a claim for taxes is but an extension of the sovereign power which imposed the taxes, and that an assertion of sovereign authority by one State within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties. Another explanation has been given by an eminent American judge, Judge Learned Hand, in the case of Moore v Mitchell, in a passage, quoted also by Kingsmill Moore J. in the case of Peter Buchanan Ltd as follows: “While the origin of the exception in the case of penal liabilities does not appear in the books, a sound basis for it exists, in my judgment, which includes liabilities for taxes as well. Even in the case of ordinary municipal liabilities, a court will not recognize those arising in a foreign State, if they run counter to the ‘settled public policy’ of its own. Thus a scrutiny of the liability is necessarily always in reserve, and the possibility that it will be found not to accord with the policy of the domestic State. This is not a troublesome or delicate inquiry when the question arises between private persons, but it takes on quite another face when it concerns the relations between the foreign State and its own citizens or even those who may be temporarily within its borders. To pass upon the provisions for the public order of another State is, or at any rate should be, beyond the powers of the court; it involves the relations between the States themselves, with which courts are incompetent to deal, and which are entrusted to other authorities. It may commit the domestic State to a position which would seriously embarrass its neighbour. Revenue laws fall within the same reasoning; they affect a State in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper.””

The inclusion of “other public law” in rule 3(1) has not been the subject of much discussion in the cases. In Attorney-General of New Zealand v Ortiz [1984] AC 1, the New Zealand Government sought to recover a valuable Maori carving that had been illegally exported from New Zealand. The carving had been bought by Mr Ortiz. Under a New Zealand statute, historic articles exported without permission were forfeited to the Crown. The defendants resisted the action on the grounds that (a) under New Zealand law, the forfeiture did not take effect unless the goods were seized by the authorities (which they had not been), and/or (b) the New Zealand statute could not be enforced because it was a penal or public law. Staughton J found in favour of the New Zealand Government on the grounds that (i) under New Zealand law forfeiture was automatic and (ii) the law was not penal and there was no general category of non-enforceability of foreign public law. An appeal was allowed. This court held unanimously that forfeiture was not automatic. Lord Denning also said that the statute was a public law that would not be enforced, and Ackner and O’Connor LJJ that it was a penal law that would not be enforced. This decision was affirmed by the House of Lords solely on the ground that the statute did not provide for automatic forfeiture. They expressed no views on the applicability of the principle of non-enforceability of penal or public laws.

Lord Denning MR’s judgment contains a valuable discussion (obiter) about what is now rule 3(1) in Dicey, Morris and Collins. Having said that nobody has ever doubted that our courts will not entertain a suit brought by a foreign sovereign to enforce the penal or revenue laws of that foreign state, he went on to explain why he considered that the rule extended to “other public laws” ie laws “which are eiusdem generis with “penal” or “revenue” laws”. He continued at page 20H:

“Then what is the genus? Or, in English, what is the general concept which embraces “penal” and “revenue” laws and others like them? It is to be found, I think, by going back to the classification of acts taken in international law. One class comprises those acts which are done by a sovereign “jure imperii,” that is, by virtue of his sovereign authority. The others are those which are done by him “jure gestionis,” that is, which obtain their validity by virtue of his performance of them. The application of this distinction to our present problem was well drawn by Dr. F. A. Mann 28 years ago in an article “Prerogative Rights of Foreign States and the Conflict of Laws” in Transactions of the Grotius Society (1954) 40 Tr.Gro.Soc. 25, reprinted in his Studies in International Law (1973), pp. 492 to 514.

Applied to our present problem the class of laws which will be enforced are those laws which are an exercise by the sovereign government of its sovereign authority over property within its territory or over its subjects wherever they may be. But other laws will not be enforced. By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority.

If this be right, we come to the question: what is meant by the “exercise of sovereign authority”? It is a term which we will have to grapple with, sooner or later. It comes much into the cases on sovereign immunity and into the State Immunity Act 1978: see sections 3(3)(c) and 14(2)(a). It was much discussed recently in I Congreso del Partido [1983] 1 A.C. 244 and by Hazel Fox “State Immunity: The House of Lords’ decision in I Congreso del Partido” in the Law Quarterly Review (1982) 98 L.Q.R. 94. It can provoke much difference of opinion as is shown by the differences amongst the Law Lords on the facts of that very case. But, difficult as it is, it must be tackled.

I suggest that the first thing in such a case as the present is to determine which is the relevant act. Then to decide whether it is of a sovereign character or a non-sovereign character. Finally, to ask whether it was exercised within the territory of the sovereign state-which is legitimate, or beyond it-which is illegitimate.”

This passage was approved by Lord Goff of Chieveley in Re Norway’s Application (Nos 1 and 2) [1990] 1 AC 723, 807-808

In United States of America v Inkley [1989] QB 255, 264, this court expressly accepted that there is a third residual category of foreign public law which our courts will not enforce. At page 265, the court stated propositions which it derived from the authorities. The fourth of these was:

“….(4) that the fact that the right, statutory or otherwise, is penal in nature will not deprive a person, who asserts a personal claim depending thereon, from having recourse to the courts of this country; on the other hand, by whatever description it may be known, if the purpose of the action is the enforcement of a sanction, power or right at the instance of the state in its sovereign capacity, it will not be entertained. ”

It is fair to say that, as is pointed out in Dicey, Morris and Collins, paragraph 5-036, the authority of this judgment is weakened by the fact that, in reaching their view, the Court of Appeal relied on the judgment of Ackner LJ in the Ortiz case, when it is clear that he inclined to the view of Staughton J that there was no such residual category: see [1984] AC 1, 34E.

Sir Sydney relies strongly on the House of Lords decision in Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 as showing the limited scope of the decisions in Government of India and Peter Buchanan Ltd and the limited propositions that can properly be derived from them. In that case, there had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the trade marks, but the dispossessed proprietors sought to argue that the Spanish decrees should not be recognised because they were penal or confiscatory. The defence was rejected on the ground that the claimants’ case did not depend on the Spanish decrees, but arose under the general law. In our judgment, this case is merely an illustration of the principle that English courts must recognise the expropriatory actions of a foreign state within its own territory.

Sir Sydney points out that Lord Templeman (p 432E-G) considered that the Government of India case was explained by Viscount Simonds’ citation of the dictum of Rowlatt J in King of the Hellenes v Brostrom (1923) 16 Ll.L Rep 190, 193:

“It is perfectly elementary that a foreign government cannot come here -- nor will the courts of other countries allow our government to go there -- and sue a person found in that jurisdiction for taxes levied and which he is declared to be liable to by the country to which he belongs;....”

In Williams & Humbert, Mr Mark Littman QC for the defendants relied heavily on the decision in Buchanan and in particular on this passage at page 529 of the judgment of Kingsmill Moore J:

“For the purpose of this case it is sufficient to say that when it appears to the court that the whole object of the suit is to collect tax for a foreign revenue, and that this will be the sole result of a decision in favour of the plaintiff, then a court is entitled to reject the claim by refusing jurisdiction.”

As Lord Mackay of Clashfern put it, Mr Littman sought to derive from the Buchanan case a general principle that, even when an action is raised at the instance of a legal person distinct from the foreign government, and even where the cause of action relied on does not depend on the foreign law in question, nevertheless if the action is brought at the instigation of the foreign government and the proceeds of the action would be applied by the foreign government for the purposes of a penal, revenue of other public law of the foreign state, relief cannot be given. This approach was rejected by the House.

Lord Templeman said at p 533C: “In my opinion, however, the Buchanan case only concerns a revenue claim.” Lord Mackay of Clashfern said at p 440H:

“Having regard to the questions before this House in Government of India v. Taylor [1955] A.C. 491 I consider that it cannot be said that any approval was given by the House to the decision in the Buchanan case except to the extent that it held that there is a rule of law which precludes a state from suing in another state for taxes due under the law of the first state.”

The House of Lords cast no doubt, however, on either of the two explanations given by Lord Keith in the Government of India case for the rule that the courts of one country will not enforce the revenue laws of another country. They made no reference to the passage at page 528 of the judgment of Kingsmill Moore J in the Buchanan case which endorsed the explanation given by Judge Learned Hand for the rule. We do not think that the rationale for the rule that the courts will not enforce the penal or revenue laws of another country is undermined by the decision in Humbert.

The importance of the speech of Lord Keith in the Government of India case and the judgment of Lord Denning in the Ortiz case is that they both sought to explain the rationale for the well-established rule that the courts will not enforce the penal and revenue laws of another country. In short, it is that the courts will not enforce or otherwise lend their aid to the assertion of sovereign authority by one state in the territory of another. The assertion of such authority may take different forms. Claims to enforce penal or revenue laws are good examples of acts done by a sovereign by virtue of his sovereign authority (“jure imperii”). In each case, it is necessary to see whether the relevant act is of a sovereign character. Penal and revenue laws are assumed to be of a sovereign character.

As Lord Denning made clear in Ortiz, his judgment was influenced by the article by Dr Mann to which we have referred at paragraph 26 above. At page 34, Dr Mann said:

“Where the foreign State pursues a right that by its nature could equally well belong to an individual, no question of a prerogative claim arises and the State’s access to the courts is unrestricted. Thus a State whose property is in the defendant’s possession can recover it by an action in detinue. A State which has a contractual claim against the defendant is at liberty to recover the money due to it. If a State’s ship has been damaged in a collision, an action for damages undoubtedly lies. On the other hand, a foreign State cannot enforce in England such rights as are founded upon its peculiar powers of prerogative. Claims for the payment of penalties, for the recovery of customs duties or the satisfaction of tax liabilities are, of course, the most firmly established examples of this principle.”

We agree.

In a later article on “The International Enforcement of Public Rights” in (1987) New York University of International Law and Politics, 604, Dr Mann said (p 629-630) that the decisive question is whether the plaintiff asserts a claim that, by its nature, involves the assertion of a sovereign right. Quoting Grotius, he suggested that claims are capable of international enforcement if they arise from acts that may be done not only by the King, but also by anyone else: “actus qui a rege sed ut a quovis alio fiant”. Again, we agree.

This part of Dr Mann’s article was cited with apparent approval by Sir Robin Cooke P in Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129, 174 (the New Zealand “Spycatcher” case).

The British Government sought to prevent publication of Spycatcher on the grounds that Peter Wright, a former member of the British security services, had drawn on confidential information obtained by him while he was an officer. In Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, the High Court of Australia accepted that there was a principle that the court should not enforce foreign public laws, in the sense that the court would not allow enforcement outside the territory of the foreign sovereign of claims based on or related to the exercise of foreign governmental power. The High Court recognised that it was difficult to identify the foreign laws or rights which fell within the general principle. The majority of the court suggested (p 42) that, rather than refer to “public laws”, it would be more apt to refer to “public interests” or “governmental interests” to signify that the rule applies to claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government. They concluded (p 46) that the claim for relief “arises out of, and is secured by, an exercise of a prerogative of the Crown, that exercise being the maintenance of the national security. Therefore the right or interest asserted in the proceedings is to be classified as a governmental interest. As such, the action falls within the rule of international law which renders the claim unenforceable”.

This approach has been criticised by some academic commentators: see, for example, J. G. Collier, Conflict of Laws and enforcement of Foreign Public Laws, Antipodean Attitudes [1989] CLJ 33, 34 and P. B. Carter, Transnational Recognition and Enforcement of Foreign Public Laws [1989] CLJ 417, 430-431. The general thrust of the criticisms (adopted by Sir Sydney) is that “interests” do not necessarily derive from “laws” and the two terms cannot be equated (Collier); and the principle enunciated by the High Court is largely based on “the motivation of the foreign government in bringing proceedings, rather than upon the intrinsic nature of the foreign law upon which it seeks to rely” (Carter).

In the New Zealand Spycatcher case, Sir Robin Cooke seems to have accepted the residual category of “public laws”. It is fair to say, however, that he considered that “it would seem anachronistic for the Courts to deny themselves the power to do what they can to safeguard the security of a friendly foreign state” (p 174) and that the rule expounded by Lord Denning in Ortiz “was not designed to meet this sort of problem”.

Finally, before expressing our conclusions, we should refer to the views of the Privy Council to which we have already referred in paragraph 15 above. These are obiter views on the very question which now arises for decision by this court, which has of course had the benefit of extensive oral and written argument. At paragraphs 24-27 of their judgment, the Judicial Committee said this:

“24.

It appears to their Lordships well arguable that the claims which the appellants say they wish to make in the English proceedings represent an exercise of sovereign authority, namely the preservation of the security of the state and its ruler. The apprehension and trial of suspects, the imposition of security measures, obtaining diplomatic assistance: these heads of damage alleged by the appellants in the English proceedings can all be regarded as aspects of sovereign authority. And if a claim for damages will not lie, neither will a claim for an injunction: see Associated Newspapers Group Plc v Insert Media Ltd [1988] 1 WLR 509. As the High Court of Australia said in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, 46, the application of the rule depends upon whether the “central interest” of the state bringing the action is governmental in nature. In that case, which concerned the Spycatcher book, the court held that notwithstanding the private law character of the cause of action (confidentiality) and the relief sought (an injunction), the claim arose out of “an exercise of the prerogative of the Crown, that exercise being the maintenance of the national security”.”

25.

Some discussion of the same principle is to be found in Emperor of Austria v Day and Kossuth (1861) 3 De G & F & J 217, where Lord Campbell LC (at p 232) regarded it as axiomatic that a court of equity would not grant an injunction to restrain someone from doing acts “to effect a revolution” in another country. Lord Justice Turner likewise said (at p 250) that an English court had no jurisdiction to interfere with acts intended “for the purpose of promoting revolution and disorder in the Kingdom of Hungary”. The appellants argue that their claims are personal and proprietary: threats to the safety of the President and the property of the state as well as the expense of suppressing a coup. But there can be few revolutions which are guaranteed not to cause any injury or damage or that can be suppressed without putting the ruling power to expense. It may therefore be that the question is not whether the claim is framed by reference to personal injury or damage to property but whether, as the Australian High Court said, the “central interest” of the state in bringing the action is governmental in nature.

26.

There are sound reasons of policy for the rule that the courts should not become involved in providing remedies, whether by way of injunction or compensation, for foreign governments faced with revolutionary activities. As their Lordships have said, the Lieutenant Bailiff rightly declared himself unable to resolve the questions of whether the government of Equatorial Guinea was an oppressive tyranny or not and whether it could be trusted to honour its undertakings. To refuse to provide assistance on such grounds to the government of a state with which Her Majesty has friendly diplomatic relations would be invidious. For this very reason, the principle is to refuse to assist in enforcing the public law of any foreign state. As Kingsmill Moore J said in Buchanan Ltd v McVey (Note) [1955] AC 516, 529, “safety lies only in universal rejection”. Likewise in Moore v Mitchell (1929) 30 F. (2d) 600, 604, Learned Hand J said: [the passage quoted at paragraph 30 above is then set out]

27.

That is not to say that there should not be international co-operation in dealing with violence against the state or the financing of terrorism. On the contrary, the need for such co-operation has become more evident in recent years. It is however arguable that the proper branches of government to make decisions of this kind are the legislature and the executive. The United Kingdom is a party to international conventions which provide for mutual co-operation in such cases and the government of Equatorial Guinea has in fact requested assistance under the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1035 UNTS 167, entered into force Feb, 20, 1977) and the Convention for the Suppression of the Financing of Terrorism (UN Doc A/54/49 (Vol 1) (1999), entered into force 10 April 2002). Their Lordships do not know how productive this request has been.”

Sir Sydney (who appeared on behalf of the claimants before the Privy Council) emphasised to us that these dicta were made without the benefit of any argument from him. He submits that they are wrong.

Having heard detailed argument, we are unable to accept Sir Sydney’s submission that the views expressed by the Privy Council in the paragraphs just quoted are wrong. The critical question is whether in bringing a claim, a claimant is doing an act which is of a sovereign character or which is done by virtue of sovereign authority; and whether the claim involves the exercise or assertion of a sovereign right. If so, then the court will not determine or enforce the claim. On the other hand, if in bringing the claim the claimant is not doing an act which is of a sovereign character or by virtue of sovereign authority and the claim does not involve the exercise or assertion of a sovereign right and the claim does not seek to vindicate a sovereign act or acts, then the court will both determine and enforce it. As we see it, that was the broad distinction of principle which the court was seeking to draw in the Emperor of Austria case. In deciding how to characterise a claim, the court must of course examine its substance, and not be misled by appearances: see, for example, Huntington v Attrill [1893] AC 150.

We put the distinction in that broad way because it seems to us to express the rationale behind rule 3(1) in Dicey, Morris and Collins. We have reached the conclusion that rule 3(1) does accurately reflect the law in stating that the English courts have no jurisdiction to entertain an action for the enforcement of “a penal, revenue or other public law of a foreign state”. We did not understand Sir Sydney to dispute this, although he did express some doubt as to whether the rule does embrace “other public law”. It is true that most of the cases concern actions for the enforcement of penal or revenue laws. But as we have pointed out, these are merely examples of a wider principle: see paragraph 41 above. Like Lord Denning in Ortiz, we have found the analyses by Dr Mann illuminating. As we understand Dr Mann, his criticism of the Emperor of Austria case was not of the principles stated but of the application of those principles to the facts.

For the reasons that follow, we have concluded that this appeal can be resolved by applying the jurisprudence of our courts and without adopting the “governmental interest” approach enunciated by the majority of the High Court of Australia in the “Spycatcher” case. Accordingly, it is not necessary to express a view as to whether that decision would be correct as a matter of English law.

The facts of this case are a far cry from any other authority to which our attention has been drawn. The nearest is the Emperor of Austria case. We find compelling the criticism by Dr Mann of that decision on its facts (see paragraph 26 above). But the importance of the case lies in the fact that the court was in no doubt that it would not grant an injunction to restrain someone from doing acts for the purpose of promoting a revolution and disorder. As we have said, Sir Sydney no longer pursues the argument that the claimants are entitled to the injunction pleaded at paragraph (e) of the prayer to the draft amended particulars of claim. In our view, he is right to do so.

We turn, therefore, to the critical question that we have identified at paragraph 50 above. Mr Shepherd submits that in substance, by bringing these claims, the claimants are exercising sovereign authority, namely (as the Privy Council put it) “the preservation of the security of the state and its ruler”. All the steps taken, whose cost the claimants seek to recover, were aspects of sovereign authority. Sir Sydney on the other hand submits that, in substance, these are private law claims for pecuniary loss, which are not based on public law.

Obviously, the mere fact that the claimants are the President and the Republic of Equatorial Guinea is not sufficient to make these claims non-justiciable. If the alleged coup had been successful and damage had been caused to buildings or other property owned by the claimants, a claim in tort to recover damages would have been justiciable in the courts of this country. In bringing such a claim, the claimants would not have been exercising or asserting sovereign authority or seeking relief to vindicate an act which may only be done by a sovereign in the capacity of sovereign. They would have been exercising the right of any person to bring private law proceedings to recover damages for loss suffered as a result of a civil wrong. Such a claim would have arisen solely from the fact that the claimants were owners of property that had been damaged by torts committed by the defendants. The claim would be a “patrimonial claim” (to use the language of Lord Keith in the Government of India case).

It is necessary to look at all the circumstances to see whether in substance the losses which are the subject of the claim have been suffered by virtue of an exercise of sovereign authority. If the losses have in truth been suffered as a result of the claimants’ ownership of property, then the fact that the claimants are a foreign state and its president would not render their claims non-justiciable.

In our judgment, the claims that are pleaded in the present case are not founded on the claimants’ property interests. The alleged losses arose as a result of decisions taken by the claimants to protect the state and citizens of Equatorial Guinea. The defence of a state and its subjects is a paradigm function of government. As Laws LJ said in International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] QB 728 paragraph 85:

“The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits…”

The special damages claimed by both claimants are in respect of losses incurred as a direct result of their response to the alleged conspiracy. It is convenient to summarise the heads of loss. They are (i) costs incurred in investigating the conspiracy and attending meetings to discuss issues of national security; (ii) costs incurred in the detention of suspects; (iii) costs incurred in the prosecution of suspects; (iv) damage to the second claimant’s commercial interests and infrastructure as a result of the declaration of a state of emergency and security checks carried out on foreign nationals leading to economic disruption and delay; and (v) costs of increased security. We find it impossible to characterise these heads of loss as property losses. With one possible exception, they are losses which could only be suffered by the governing body of the state. They arose as a direct result of the government’s decisions as to how to respond to the conspiracy and (subject to the possible exception) are of a kind that could not be suffered by anyone else.

The possible exception is pleaded at paragraph 40(4)(c) of the draft re-amended particulars of claim. It is alleged there that, as a result of the defendants’ actions, projects for roads and other civil engineering works were delayed by reason of the exodus of foreign nationals “in the wake of the coup”. In our judgment, it is artificial to describe these losses as property losses caused by the defendants’ actions and treat them as if they were similar in kind to, for example, the cost of repairing a government building damaged in the course of a coup. It is clear from paragraph 40(4)(a) and (b) of the pleading that it was not the defendants’ action alone which caused the foreign nationals to leave. It was the claimants’ declaration of a state of emergency and the security checks carried out by the second claimant which affected the willingness and ability of foreign nationals to continue working in Equatorial Guinea. In our view, on a proper analysis, the losses pleaded in paragraph 40(4)(c) do not fall into a different category from the other losses.

Sir Sydney submits that the claims are justiciable because the claimants are not seeking to enforce any law of Equatorial Guinea, still less a public law within the meaning of rule 3(1) in Dicey, Morris and Collins. In our judgment, he interprets the principle too narrowly. It is true that in most cases where the exercise of sovereignty by a foreign state in our courts is declared to be unenforceable, it is because the state is seeking to enforce, either directly or indirectly, a penal, revenue or other public law of that state.

It is significant that Sir Sydney has (rightly) conceded that the court would not grant an injunction to restrain the commission of acts to effect a revolution. Why is this concession correct? Not because a claim to such an injunction would be a claim to enforce a public law, or indeed any law of Equatorial Guinea. Rather, it is because, as was said in the Emperor of Austria case, the court will not grant an injunction to restrain someone from doing acts to effect a revolution. The reason why the court will not grant such an injunction was explained by Lord Justice Turner as being that a claim founded on the prerogative rights of the plaintiff will be refused. To put it in language which also reflects the later jurisprudence, the court would not grant such an injunction, because it will not enforce claims which involve the exercise of sovereign authority.

It seems to us that the logic of Sir Sydney’s position should be that the claimants are entitled to claim an injunction even in the terms of paragraph (e) of the prayer. The claim to such an injunction is no more a claim to enforce the law of Equatorial Guinea than is the claim to the other injunctions or the claim to damages.

We would, therefore, hold that none of the pleaded claims is enforceable in our courts. Just as a claim for taxes is “an extension of sovereign power” to use the words of Lord Keith in the Government of India case, so too is a claim for relief (damages and an injunction) arising from the claimants’ exercise of sovereign power in responding to the alleged attempted coup by the defendants.

We are fortified in our conclusion by the policy considerations referred to by the Privy Council at paragraph 26 of their judgment. It will be recalled that the second explanation given by Lord Keith for rule 3(1) in Dicey, Morris and Collins was that suggested by Judge Learned Hand in Moore v Mitchell (1929) 30 F (2^nd) 600, 604. It included the following:

“To pass upon the provisions for the public order of another State is, or at any rate should be, beyond the powers of the court; it involves the relations between the States themselves, with which the courts are incompetent to deal, and which are intrusted to other authorities. It may commit the domestic State to a position which would seriously embarrass its neighbour.”

Mr Shepherd submits that there is real potential for embarrassment here. For example, the English court would have to deal with allegations that the claimants have behaved despotically and heavy-handedly towards the suspects in Equatorial Guinea and that their trial was condemned by Amnesty International and the IBA. These matters would go to the question whether the costs associated with the trial were reasonably incurred so as to be recoverable and perhaps also to the question whether the court should exercise its discretion to grant an injunction. Sir Sydney pointed out that if it is alleged in our courts that a statement made abroad has been obtained by torture, it is the duty of the court to investigate and rule upon the allegation even if it may be “embarrassing”: see A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2005] 3 WLR 1249, paragraphs 34, 37-38, 50 and 52. At paragraph 50, Lord Bingham of Cornhill said that he was not impressed by “the argument based on the practical undesirability of upsetting foreign regimes which may resort to torture”. But that was in the context of whether evidence obtained by torture could be lawfully admitted against a party to proceedings in the United Kingdom.

The context here is quite different. The question here is whether the courts of this country should grant relief (including equitable relief) to the claimants. It is likely that the defendants would seek to persuade the court to refuse relief on the grounds of the claimants’ behaviour in responding to the alleged attempted coup. As the Privy Council said, to refuse relief on such grounds to the government of a state with which Her Majesty has friendly diplomatic relations would be invidious. There is the further difficulty that the court would be asked to decide whether some or all of the steps taken by the claimants were reasonable. This too could involve the court in making difficult judgments which it would be invidious to expect it to make. For example, was the investigation into the alleged conspiracy reasonably undertaken and the costs of doing so reasonable? Was it reasonable to detain all or any of the suspects, the cost of whose detention is claimed? Were the costs of the prosecution reasonably incurred? Was it reasonably necessary to declare and maintain the state of emergency which resulted in the alleged losses pleaded at paragraph 40(4)? Was it reasonable to incur the costs of increased security referred to in paragraph 40(5)?

In short, we consider that the issue of justiciability turns on the distinction, which Sir Sydney recognised should be drawn, between an exercise of sovereign power and an action brought by a sovereign state which might equally have been brought by an individual to recover losses for damage to property. For the reasons that we have given, we are of the opinion that no part of the claim for special damages pleaded in paragraph 40 of the re-amended particulars of claim should be entertained by our courts, since, as we have explained, this action has been brought as an integral part of the second claimant’s attempts to protect itself from revolution.

In these circumstances, it is not necessary to consider the alternative way in which Mr Shepherd puts his case on justiciability, namely by relying on the submission that the claim is founded on an “act of state”: rule 3(2) in Dicey, Morris and Collins.

For these reasons we have reached the conclusion that the claims by the second claimant are not justiciable in the English courts. That applies to both to the claim for special damages and to the claim for an injunction. It also applies to the claim by the first claimant in so far as he makes the same claim for special damages.

We turn to the two remaining aspects of the first claimant’s claim, first assault and secondly loss said to have been suffered by reason of distress caused by conspiracy or the intentional infliction of harm by unlawful means.

The allegations of assault in the seventh version of the re-amended particulars of claim allege that:-

“The defendants, by their actions as set out below, assaulted the first claimant.” (see paragraph 8C).

Those facts are then particularised in three paragraphs 43, 44 and 43 (sic). The acts relied upon are the presence of the advance group in Malabo with little Equatorial Guinean army presence on the island and the realistic prospect of success of surprise attack by the mercenaries so that:-

“It was feared by the claimants that there was a serious risk that the advance group would still attack and kill, incapacitate or abduct the first claimant and his family and take over the resources of the second claimant.” (see paragraph 43).

It was alleged that as a result of those matters:-

“The situation in Malabo between 5 and 20 March 2004 was for the claimants one of great apprehension and fear of imminent attack. The first claimant feared that he and his family were likely to be killed or suffer very serious injury in the course of any attack.” (see paragraph 43, second time around).

The judge struck out the claim for assault on the basis that there was no allegation of fear of an immediate application of force. No proximity or immediacy was pleaded and there was no allegation that the advance group, or any other person involved, had done anything before they were apprehended (see paragraph 37).

The appeal, in consequence, turned on the ingredients of the tort of assault. There was no dispute between the parties but that the tort of assault requires an overt act causing another to apprehend the infliction of immediate and unlawful force (see eg Collins v Wilcock [1984] 1 WLR 1172 at 1177B). There appeared, however, to be some controversy as to whether the overt act indicating that immediate intention must be coupled with the capacity to carry such an intention into immediate effect.

There is ample authority for the proposition that such a capacity must be proved. The threats made by pickets to those miners who sought to go to work were not an assault because the pickets had no capacity to put into effect their threats of violence whilst they were held back from the vehicles which the working miners were within (see Scott J. in Thomas v NUM [1986] 1 WLR 20 at 62B-C). The nineteenth century authorities Stephens v Myers (1834) C & P 349, Cobbett v Grey [1849] 4 Ex 729 at 744, and Reid v Coker [1853] 13 CB 850 at 860, all establish the necessity to prove the means of carrying a threat of immediate violence into effect and no authority was cited to us which disapproves of their teaching.

Nevertheless Mr McLinden sought to contend that it was not necessary to allege that the defendants had the capacity to put immediate intention to commit a battery into effect. He relied upon R v Ireland [1998] AC 147 in which the House of Lords upheld a conviction for assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 committed by repeated telephone calls during which the defendant remained silent.

In our judgment R v Ireland is merely authority for the proposition that an assault might consist of the making of a silent telephone call in circumstances where it causes fear of immediate and unlawful violence. But in that case the issue as to whether it was necessary to prove a capacity to put into effect such a threat need be proved or had been established simply did not arise. The question certified, in that part of the appeal, was:-

“whether the making of a series of silent telephone calls can amount in law to an assault.” (page 149E).

It should be recalled that in that case, once the judge had ruled that such silent telephone calls could constitute an assault, the defendant pleaded guilty. No issue arose as to whether he had the capacity to put the threat into effect because he had pleaded guilty. Both Lord Steyn, with whom all their Lordships agreed, and Lord Hope made it clear that whether the offence was proved would depend on all the circumstances of the case (see page 162D, 163B, and 166H). Although Reid v Coker was cited it was not referred to in any speech.

In the pleadings, to which we have already referred, there is no suggestion that the advance group in Malabo was armed, still less that it had the capacity to carry out an immediate attack. There is no allegation that the first claimant or his family were in the line of any immediate attack. Although it is alleged that there was an absence of army presence on the island where Malabo is situated (paragraph 43(1)) there is no suggestion that the advance group, at large in Malabo, had the means to carry out the threat alleged.

For that reason alone we take the view that the judge rightly struck out the allegation of assault.

But there is a further objection to the allegation. It was beyond controversy that an allegation of the tort of assault requires an allegation of an overt act causing another to apprehend the infliction of immediate violence. No overt act of such a nature is alleged. All that is alleged is that there was an advance group on Bioko, the island where Malabo is situated, and a large number of mercenaries in Zimbabwe preparing to load arms en route for Malabo. Neither constitute, in our view, an overt act causing the apprehension of immediate violence.

The claimants criticise the judge for basing his decision, in part, upon the failure to allege fear of immediate violence. The criticism rests on a distinction made by the judge between immediate and “imminent violence” (see paragraph 38). It is true that in the Re-Amended Particulars of Claim the second paragraph 43 refers to:-

“apprehension of imminent attack.”

We agree with the claimants that nothing turns on the use of the word “imminent”. It has, for the purposes of analysis of the tort of assault, exactly the same meaning and is interchangeable with the adjective “immediate”.

However, this justified criticism has no impact on the fatal defects in the allegations advanced. No overt act, such as to found a cause of action in assault, has been alleged. No capacity to carry out an immediate or imminent attack emerges from the pleadings, after seven attempts. We agree that the judge correctly struck out this part of the claim.

This aspect of the appeal raises in stark form the issue whether damages may be recovered where the only loss alleged is what is described as “severe emotional distress”. The submission relates only to the first claimant; it is alleged that the defendants knew:

“that their actions were extreme, outrageous, unjustifiable and calculated to inflict physical harm and severe emotional distress on the first claimant.” (see paragraph 8D of the re-amended particulars of claim);

and that the damage suffered by the first claimant was:

“serious anxiety, distress and disruption to his personal life and work.” (paragraph 43, second time around, of the re-amended particulars of claim).

The purity of the submission can be exposed by eliminating other minor arguments advanced by both sides. The first claimant alleged that it was unnecessary to rely merely upon losses occasioned by emotional distress, since there was also an allegation that the first claimant suffered pecuniary loss, consisting of the costs of the Norwich Pharmacal proceedings in the Isle of Man and Jersey. The judge rightly concluded that, in reality, it was inconceivable that such costs would be suffered by anyone other than the Republic of Equatorial Guinea (see paragraph 89). The question whether the President would have to bear the costs of these proceedings, whilst technically a question of fact, as the claimants point out, is merely, in our view, a frivolous distraction from the more important submission the first claimant makes as to whether he may bring an action for the emotional distress which he claims to have suffered.

Equally, in order to focus on the real point of this aspect of the appeal, we reject the argument advanced by the respondents, that the first claimant’s own articulation of the tort requires an intentional infliction of harm which finds no reflection in the allegations pleaded. In paragraph 8D, the first sentence we have quoted refers only to actions “calculated” to inflict physical harm. The respondents and the judge rightly point out that “calculated” does not necessarily mean the same as “intended”. But the pleadings, read as a whole, clearly refer to an intention to commit harm (see for example paragraph 8A), and in those circumstances we do not think it right to be distracted by the use of the participle “calculated” at paragraph 8D.

It is, accordingly, possible to focus upon the issue whether the first claimant is entitled to recover damages for distress and distress alone. We note in passing that it was not suggested that, apart from the claim for costs (referred to above), the first claimant was seeking compensation for anything other than severe emotional distress.

We must emphasise the limits of our consideration at this stage. The first claimant seeks to recover compensation for distress on two related bases: by reason of a tort of intention to cause harm by unlawful means or by reason of conspiracy to injure by unlawful means. There are substantial disputes between the parties as to the existence of a tort of intention to cause harm by unlawful means (described in the court below as “a novel tort”) and as to the ingredients of the tort of conspiracy to injure by unlawful means. We will consider later in this judgment the extent, if at all, to which it is necessary to resolve those disputes in the light of our decision as to justiciability. But we can and should consider the issue of the recovery of damages for distress, irrespective of our resolution of those disputes.

Once we have excluded the suggestion that the first claimant suffered economic loss, he is left with the need to establish that damages may be recovered where the only loss consists of emotional distress. He needs to establish that there is no principled distinction between damages for physical harm intentionally inflicted and damages for emotional distress occasioned in consequence of an intentional infliction of injury.

In Wilkinson v Downton [1897] 2 QB 57 the plaintiff recovered damages for nervous shock when the defendant, as a practical joke, pretended that the plaintiff’s husband had been seriously injured. The decision was approved by the Court of Appeal in Janvier v Sweeney [1919] 2 KB 316 in which the plaintiff suffered severe shock, and physical injury in the form of shingles and other ailments when two private detectives persuaded a French maid to hand over letters on the pretence that her fiancée, interned in the Isle of Man, was a German spy.

The first claimant’s attempt to recover damages for distress without the need to prove bodily or psychiatric illness derives from dicta of Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] AC 655 and Wainwright v Home Office [2004] 2 AC 406. In Hunter v Canary Wharf Ltd the House of Lords considered whether interference with television reception was capable of constituting an actionable private nuisance where the claimant had no interest in the land. Lord Goff (at page 691), Lord Lloyd (at page 698) and Lord Hope (at page 725) thought that the Court of Appeal erred in Khorisandjian v Bush [1993] QB 727 in extending the law of private nuisance to cover a case of harassment where the claimant was merely a licensee. But Lord Hoffmann, whilst accepting that the law of private nuisance could not be developed so as to allow an injunction to be granted whether the plaintiff had an interest or not, was not prepared to say that Khorisandjian was wrongly decided (see page 707G). He said:

“There is a good deal in this case (Khorisandjian) and other writings about the need for the law to adapt to modern social conditions. But the development of the common law should be rational and coherent. It should not distort its principles and create anomalies merely as an expedient to fill a gap.

The perceived gap in Khorisandjian v Bush was the absence of a tort of intentional harassment causing distress without actual or bodily psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v Downton … and Janvier v Sweeney … The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why the tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65. The policy considerations are quite different. I do not therefore say that Khorisandjian v Bush was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.”

This might have been thought as a promising beginning to the recovery of damages for distress falling short of psychiatric injury where such distress follows from acts done in pursuance of an intention to cause harm. But that submission was rejected by this court in Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All ER 932. It is important to recall that in that case the wheelchair administrator was compelled, by virtue of section 45 of the Offences Against the Person Act 1861, to rely not upon an assault or threats, which it was conceded had not caused her illness, but merely upon a catalogue of rudeness and unfriendliness (see paragraphs 5 and 17). The court rejected the existence of a tort of intentional harassment. It cited the passage in Lord Hoffmann’s speech in Hunter which we have cited to support the conclusion that the provision of a remedy for harassment was a matter for Parliament. Parliament had provided a civil and criminal remedy in the Protection from Harassment Act 1997; it was not, therefore for the common law to be developed in a way which would recognise a right to recover damages for harassment (see paragraphs 29-30).

In Wainwright v Home Office [2004] 2 AC 406 Lord Hoffmann returned to the question whether damages for distress might be recovered if there was an intention to cause such distress. The case concerned a strip search for drugs of a mother and son, who were, in consequence, humiliated and distressed. In rejecting the claim for invasion of privacy Lord Hoffmann, with whom all their Lordships agreed, referred to the suggestion that damages for distress, falling short of psychiatric illness, may be recovered where an intention to cause distress is proved. He recalled that the Court of Appeal had rejected any such principle (see paragraph 41). He said:

“I do not resile from the proposition that the policy considerations which limit the heads of recoverable damages in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle you have to be very careful about what you mean by intend.” (see paragraph 44)

Lord Hoffmann rejected the proposition that an imputed intention will suffice. If such a principle existed it must be on the basis of actual intention, of which the prison officers were innocent; they had acted in good faith (see paragraph 45).

It is on that passage in paragraph 44 that the claimants case is founded. The difficulty with such a foundation is that it was undermined by Lord Hoffmann himself. He said:-

“46.

Even on the basis of a genuine intention to cause distress, I would wish, as in Hunter’s case…to reserve my opinion on whether compensation should be recoverable. In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure the right way to deal with it is by litigation. The Protection from Harassment Act 1997 defines harassment in section 1(1) as a course of conduct “amounting to harassment” and provides by section 7(3) that a course of conduct must involve conduct on at least two occasions. If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: section 3(2). The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.

47.

In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton…It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damages are recoverable, the necessary intention was not established.”

It is true that Lord Hoffmann refers to the absence of actual intention, as he would define it, in both Wilkinson v Downton and in Wainwright v Home Office. But actual intention was at least capable of proof in Wong. The claimant can only succeed if he can distinguish Wong.

He attempts to do so by stressing that his cause of action relies upon the fact that the means adopted to pursue the actual and deliberate intention to cause harm was unlawful. The claimants points out that in none of the decided cases could the actions of the defendants be described as unlawful. However repugnant, the practical joke in Wilkinson, the pretence in Janvier, the rude and unfriendly behaviour in Wong and the strip searches in Wainwright were not unlawful acts. They were all lawful. That is sufficient, so it is argued, to distinguish all those cases.

None of the acts of which complaint was made approaches the allegations of intended invasion and insurrection in the instant appeal. The question thus arises whether the fact that unlawful means are proved (whatever unlawful means may mean) is sufficient to justify a claim for damages consisting only of emotional distress. It is true that the common law does recognise losses representing injury to feelings in certain torts, of which assault and intimidation are paradigm examples. Moreover emotional distress will aggravate the damages for which compensation may be covered in torts such as false imprisonment and malicious prosecution and in statutory torts involving discrimination such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 in which provision is made for the inclusion of compensation for injury to feelings.

But the general principle that mental suffering, by which is meant distress falling short of bodily or mental injury, does not sound in damages is articulated persistently in such cases as Lynch v Knight (1861) 9 HLC 577 at 598, Barons v Bertram Mills Circus [1957] 2 QB 1 at page 28, and more recently in Hicks v Chief Constable of Yorkshire [1992] 2 All ER 65 at page 69. In Wainwright Lord Hoffmann was far from saying that compensation should be recoverable even in cases where there is a genuine intention to cause distress (see paragraph 46). He did not suggest Wong was wrongly decided.

The actions on which the claimant relies are not described as harassment. But they clearly fall within the meaning of harassment, which is not defined in the Protection from Harassment Act 1997. Actions intended to cause distress fall within the meaning of the word harassment, but sections 1 and 2 provide that only a course of conduct gives rise to liability under the Act. It is in that respect that the first claimant’s argument faces an insuperable obstacle. He cannot rely upon the Act because he relies solely upon acts committed out of the jurisdiction. He therefore suggests that we should recognise, at least as an arguable possibility, the existence of a right to compensation arising out of a single action and not a course of conduct. Yet Parliament has chosen not to provide for compensation arising out of a single action. In those circumstances it seems to us impossible for the court to recognise such a right by development of the common law.

The remedy for dealing with cases of harassment was provided by Parliament. We can see no reason why, in those circumstances, the common law should intervene where Parliament has chosen not to act. We agree with the judge that Lord Hoffmann’s comments provide no basis for a new tort. In any event we regard ourselves as bound by Wong to reject the first claimant’s arguments.

Once his action for assault has been struck out, the first claimant’s appeal fails for this reason: he cannot recover damages for distress. This is our conclusion, whether his case is put on the basis of a novel tort or conspiracy. We should add that we are far from saying that that there is no tort of intentionally causing damage to the person by unlawful means. In the light of our conclusion, however, it is unnecessary in this appeal to consider further the first claimant’s arguments relating either to a novel tort or to conspiracy to injure by unlawful means. This case is concerned primarily with the effect on the second claimant of the defendants’ alleged attempted coup. To seek to resolve the other issues in relation to the first claimant would be to reverse the role of dog and tail.

Three issues remain. The first is whether the court should consider the arguments relating to the tort of conspiracy to injure by unlawful means or whether it should decline to do so in the light of its decision that the claim based upon it is non-justiciable. The second is whether, if it does, it is bound by the decision in Powell v Boladz to dismiss the appeal. The third arises if it is not so bound, and is what are the ingredients of the tort and, in particular, what is meant by unlawful means.

Our conclusion on the first issue is that it would be inappropriate to embark upon a detailed discussion of the second and third issues. As to the third issue, we do not think that we should embark upon a detailed analysis of the many authorities that were cited to us. First, it would be a curious exercise in the light of our conclusion that the English court should not entertain the claim and, secondly, it would not be satisfactory for the court to express opinions as to the ingredients of the tort in an important area of the law which will be obiter unless the House of Lords reaches a different conclusion on the justiciability issue. If the matter were to go to the House of Lords and the House reversed our decision on that issue, it could of course determine the issue of conspiracy itself or remit the issue to this court to decide. If it were to take the latter course, the court would do its best to reconvene the same constitution in order to avoid duplication of argument.

Finally, we have concluded that, given our view that we should not decide the third issue, we should not determine the second issue because any view we expressed would be obiter. We only add that we doubt that we would be bound by Powell v Boladz to hold that in an unlawful means conspiracy the means used must be actionable in order to be unlawful means.

We answer the questions posed in paragraph 11 above as follows, albeit in a different order. As to question iv), the claims are not justiciable and the court should decline to entertain them because they amount to an exercise of the sovereign power of Equatorial Guinea within the jurisdiction of the English courts. As to question iii), the facts alleged by the first claimant do not amount to the tort of assault. As to question ii), we express no view on the question whether there exists a cause of action comprising intentional infliction of harm by unlawful means. However, if such a cause of action exists, the first claimant cannot succeed because a claim for distress based upon it is not actionable. Equally, he cannot recover damages for an unlawful means conspiracy because, whatever is meant by unlawful means, damages for distress are not recoverable. As to question i), having regard to its decision on question ii), it is not appropriate for the court to identify the ingredients of the tort of conspiracy to injure by unlawful means. It follows that all the claimants’ claims must fail.