Mashate v Kaguta

There is before the court an appeal against paragraph 6 of an order made by HHJ Seymour QC sitting as a judge of the High Court on 21 October 2011. That paragraph of the order imposed upon the claimant, Dr Jesse Mashate, an extended civil restraint order in the form attached to the order. On 16 May 2012 I heard an application by Dr Mashate for permission to appeal against the entirety of the order of HHJ Seymour made on the occasion to which I have referred, and on that occasion the respondent, who is the President of the Republic of Uganda, was represented by Mr Aliker, who appears today, and the appellant, Dr Mashate, was represented as he is today by Mr Arfan Khan.

The argument on that occasion ranged over the entirety of the application for permission to appeal, and the background is set out in my judgment of 16 May, which is available in its printed and approved form. I do not propose to repeat what I said there by way of setting the scene. As appears from that judgment, I granted permission to appeal, limited to the appeal against the imposition of the extended civil restraint order, and did so for the reasons which I there gave.

The position today is that the respondent to the appeal is content that the extended civil restraint order should be set aside. There has therefore been no need for the merits of the application to be investigated. I should simply add that, as I indicated in my earlier judgment, it is plain to me that the judge was not justified in imposing an extended civil restraint order upon the basis on which he did so; that is to say, in reliance upon two applications, one made on 21 July 2011 and one made on 4 October 2011, which he had in any event described in his substantive judgment as effectively responsive applications. We do not need to debate whether any other conduct of the appellant in conducting the litigation might have justified some more limited form of restraint order because it is accepted that the order made by the judge on this occasion was inappropriate, for the reasons I have given, and there is no application for any further form of restraint.

Furthermore, it is agreed by the parties that there should now be incorporated in the order which we are invited to make a provision as to the future management of this case by the judge in charge of the Queen’s Bench non-jury list, or by such other judge of the Queen’s Bench Division as he may nominate. One of the reasons why it is appropriate that we should include a provision to that effect is because it is of the utmost importance, firstly, that it be understood upon what basis this action is now to proceed, if it is to proceed, and secondly that there be some element of continuity in the future case management of the action.

For the avoidance of doubt, the position which has now been reached is as follows. Firstly, by consent the extended civil restraint order made under paragraph 6 of HHJ Seymour’s order of 21 October 2011 is set aside. Secondly, as I explained in my judgment of 16 May, the position as it currently stands is that the action is stayed as a result of the stay imposed by Blair J. That was imposed by Blair J as long ago as 11 July 2008, and the current position is that the appellant, the claimant in the action, is not entitled to take any further step in this action without obtaining the leave of the court, which would involve persuading the court to lift the stay. That is an application which would need to be made either to the judge in charge of the Queen’s Bench non-jury list, or to such other judge of the Queen’s Bench division as he may nominate.

Furthermore, the position now is that despite some earlier uncertainty as to the capacity in which the defendant is sued, the claimant has now clarified that it is his intention to make a claim against the defendant in his capacity as the Head of State of the Republic of Uganda. That, of course, raises issues as to sovereign immunity, which are yet to be resolved. The position, as I have already set out in my earlier judgment, is however that as matters stand, the claimant has no permission to serve these proceedings upon the State of Uganda, or upon the President of the Republic of Uganda as representing the State, and it will be necessary, if the claimant wishes to pursue a claim in the manner in which he says he intends to pursue it, for him to obtain permission to serve such a claim in accordance with the provisions of the State Immunity Act. That is something which he will only be in a position to do once he has persuaded the court to lift the stay.

We do not propose to deal today with the question of the costs of the appeal in which the appellant has been successful, albeit by consent. We do not deal with the costs, because it is not possible sensibly to approach that question without first determining the question whether or not the Republic of Uganda, or the President thereof, enjoys sovereign immunity in respect of the claim, however it may ultimately be formulated. The question of sovereign immunity is something which has been directed in the past to be determined as a preliminary issue, but it has not yet been determined, and indeed I would observe that it cannot sensibly be determined until such time as the claimant has formulated a coherent claim which clearly and unequivocally is made against the President in his capacity as the Head of State of the Republic of Uganda. As and when such a claim is formulated, the court will be in a position to give directions as to the resolution of the issue of sovereign immunity, and it is only after that hurdle has been crossed that it will be possible to deal with the question of the costs incurred by the appellant in bringing this successful appeal. We therefore reserve the question of the costs of the appeal until all issues of sovereign immunity have been resolved.

Furthermore, and for the avoidance of doubt, the parties are both agreed, very sensibly, that the consent order which is made by the court on this occasion may include a preamble which makes clear that the order of the court made on this occasion, and the agreement of the respondent to it, is entirely without prejudice to the question whether or not the respondent enjoys sovereign immunity in respect of the claim, either as currently brought by the claimant or as it may ultimately evolve.

On that basis, therefore, the order of the court will be as I have indicated, containing a recital which we will invite the parties to agree and to submit for our approval. In relation to the reservation as to sovereign immunity, the order will recite that the extended civil restraint order made under paragraph 6 of the judgment of HHJ Seymour made in October 2011 is set aside, and it will further recite that all further applications issued in this action are to be listed to be heard by the judge in charge of the Queen’s Bench non-jury list, or by such other judge of the Queen’s Bench Division as he may nominate. Finally, it will indicate that the costs of the appeal are reserved.

I agree.