BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Family Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Estrada v Al-Juffali (Rev 1) [2016] EWHC 213 (Fam) (08 February 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/213.html
Cite as: [2017] 1 FLR 669, [2016] Fam Law 294, [2016] EWHC 213 (Fam)

[New search] [View without highlighting] [Printable RTF version] [Help]


This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number: [2016] EWHC 213 (Fam)
Case No: FD14F00410

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
08/02/2016

B e f o r e :

MR JUSTICE HAYDEN
____________________

Between:
Christina Lynn Estrada
Applicant
- and -

Walid Bin Ahmed Abdallah Al-Juffali
Respondent

____________________

Mr. Charles Howard QC , Mr. Tim Owen QC, Mr. Deepak Nagpal and Mr. Tom Hickman (instructed by Hughes Fowler Carruthers Solicitors) for the Applicant
Mr. Martin Pointer QC, Mr Martin Chamberlain QC and Mr Nicholas Wilkinson (instructed by Mishcon de Reya LLP) for the Respondent
Hearing dates: 18th, 19th, 20th, 21st and 22nd January 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Hayden :

  1. This hearing has been listed in consequence of an application made on behalf of Christina Estrada (W) for financial relief pursuant to Part III of the Matrimonial and the Family Proceedings Act 1984. Permission to apply was granted by Newton J on the 19th December 2014. On the 2nd February 2015 Dr. Walid Al-Juffali made a counter application to strike out his former wife's claim predicated on his assertion of protection from civil action arising from diplomatic immunity.
  2. The application was listed for hearing before Holman J on 2nd June 2015 but shortly before the hearing was due to commence the Judge recognised that the time estimates were wholly unrealistic. The parties were able to refine the issues which they considered required determination and the matter was relisted to be heard the week commencing 18 January 2016. The contemplated scope of the hearing as set out in the recitals to Holman J's order was:
  3. Whether the Respondent (H) is a permanent resident of the United Kingdom for the purposes of the International Maritime Organisation (Immunities and Privileges) Order 2002 (the IMO order).
  4. In particular it was recorded that:
  5. Whether or not the Applicant's claim falls within the 'real action' exemption for the purposes of Article 31 of the Vienna Convention on Diplomatic Relations 1961 (VCDR) is not an issue which needs to be determined within these proceedings.
  6. On the 14th December 2015 W parted company with her previous solicitors and instructed those who now act on her behalf. The new legal team took a different view as to the appropriateness of the apparent concessions in the agreed order placed before Holman J. An application was made to reopen the Article 31 issue and to advance two new arguments. The first was that W was seeking claims and declarations within the Part III application that she argued were not directly against H and thus no immunity arose. The second was in relation to Article 39 (1) of the VCDR. H's legal team objected to these courses. Given the nature of H's own arguments and their profound consequences for W if they succeeded, it struck me as essentially unfair to her to deny her the opportunity of putting any arguments that may be at her disposal. There could be no prejudice to H because the arguments under Article 31 had been prepared (and in written form) on his side, for the hearing before Holman J. There is no basis either for shutting out the new argument under Article 39, having regard to the quasi-inquisitorial role of the court in proceedings of this kind: (Parra v Parra [2003] 1 FLR 942; Wyatt v Vince [2015] UKSC 14; [2015] 1 WLR 1228).
  7. Both H and W have had the advantage of two leading counsel as well as junior counsel. Mr Howard Q.C. on behalf of W and Mr Pointer Q.C., on behalf of H, have advanced the 'financial arguments' as I can loosely call them, arising from the 'real action' exemption. Mr Owen Q.C. (for W) and Mr Chamberlain Q.C. (for H) have argued the public international law issues surrounding the entitlement to diplomatic privileges and immunity. I am entirely satisfied that the arguments have been fully ventilated on both sides and that there has been no prejudice to H by my decision to revisit the concessions made before Holman J.
  8. H, now aged 60, is a Saudi businessman of very considerable wealth. W, aged 53, was a successful model at the time when the parties first met. The couple have a daughter S who is 13 years of age. The parties met in 2000 in London. They commenced a relationship in March 2001. H divorced his then wife in 2001. Those divorce proceedings resulted in litigation in the High Court, reported as Sulaiman v Juffali [2002] 1 FLR 479, to which I will return later in the judgment. On the 18th December 2001 the parties married in Dubai.
  9. On the 13th August 2013 W issued, but did not serve, divorce proceedings in England and Wales alleging H's adultery. In April 2014 H was appointed Permanent Representative of St. Lucia to the International Maritime Organisation (IMO). On the 15th October 2014, W was served with confirmation of a Saudi divorce, consequent on the third pronouncement of Talaq. On 1st November 2014 T was born in London to H and his third wife. On 7th January 2015 H's solicitors contacted W's solicitors raising, for what appears to be the first time, the question of H's diplomatic immunity. On the 2nd February 2015 H issued his application to strike out W's Part III claim, pursuant to Rule 4.1 of the Family Procedure Rules 2010.
  10. On the 20th February 2015 Peter Jackson J listed the dismissal application to be heard as a preliminary issue reciting: 'The Respondent having applied to dismiss the application on the basis that he has diplomatic immunity by virtue of his appointment as the St. Lucian Permanent Representative to the IMO based in London' (which direction led to the listing of the hearing before Holman J). I have kept my summary of the background history to those matters which seems to me to be factually uncontroversial.
  11. Article 39 of the VCDR

  12. Though this is, chronologically, the second point to be raised on behalf of W it requires, for reasons that will become obvious below, to be addressed first. Article 39 (1) of the VCDR provides:
  13. "Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed."

  14. Messrs Owen and Hickman raise 3 principal arguments on this issue:
  15. i) The Court must consider whether a person claiming diplomatic immunity enjoys that immunity at the time of the court's determination and not before. These arguments are rooted in the judgments in Empson v Smith [1966] 1 QB 426;

    ii) Article 39 (1) and (2) require evidence that a post has been 'taken up' and that diplomatic functions have been undertaken in order to benefit from immunity under the Diplomatic Privileges Act 1964;

    iii) Whilst in most cases an assertion by a 'sending' State that a person performs a diplomatic function will carry great weight as to the true position, this is not to be regarded as inviolable.

  16. On the 10th February 2015 the Protocol Directorate at the Foreign and Commonwealth Office (Diplomatic Missions Unit) issued a letter which confirmed that H is 'the Permanent Representative to the International Maritime Organisation of St. Lucia in London'. It also confirmed that H was 'accepted as an accredited diplomat under the Vienna Convention on Diplomatic Relations 1961, by the Foreign and Commonwealth Office on 14th April 2014':
  17. The Diplomatic Privileges Act 1964 identifies the evidence required to satisfy entitlement to privilege or immunity. Section 4 provides:
  18. "4. Evidence.
    If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."

    An identical provision is contained in section 8 of the International Organisations Act 1968 which applies in the present case.

  19. Mr Owen made something of the fact that a certificate had not been received (or indeed requested) in this case, as a premise to open up any power this Court might have to investigate the validity of the asserted immunity. I am bound to say that the artificiality of that situation struck me as unsustainable and, on the 20th January 2016, I made a request to the FCO for a certificate. It arrived the following day in the format required (a Section 8 certificate), confirming H's appointment as 'a Permanent Representative of St Lucia to the International Maritime Organisation'. It also confirmed that such was notified to the FCO on the 18th August 2014 and that his arrival date was notified as 14th April 2014, from which date he has enjoyed the privileges and immunities as a member of the diplomatic staff of a mission. On the face of it therefore the certificate is 'conclusive' evidence of the stated fact i.e. the appointment.
  20. It is convenient here to set out the Articles of the VCDR which provide the framework for immunity:
  21. Article 38
    1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
    2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

    Article 39
    1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
    2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
    3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
  22. As issues have arisen here in relation to H's long term health, the circumstances in which diplomatic agency come to an end also require to be considered:
  23. Article 43
    The function of a diplomatic agent comes to an end, inter alia:
    (a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
    (b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.
  24. Finally the core principles of the VCDR prefacing the Articles themselves help to identify the underpinning philosophy:
  25. The States Parties to the present Convention,
    Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,
    Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
    Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
    Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,
    Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
  26. The Court having received the certificate, Mr Owen accepted that the limited facts it contains are to be regarded as conclusive for the purposes of the instant proceedings. However, the existence of this certificate, it is submitted, does not alter W's submission in relation to Article 39 at all. It remains, says Mr Owen, necessary to determine whether H has in reality taken up the post or alternatively, if he has, whether he continues in that post. The central submission, which requires to be stated clearly, is that H sought out and obtained 'the post' in order specifically to defeat W's financial claims consequent upon the divorce. This, it is argued, is the only sensible inference from the available facts. More importantly, it is contended, the court is entitled and indeed required to look beyond the label of the appointment to examine whether it was genuine or a mere contrivance.
  27. The classic statement of the law in England and Wales is to be found in Empsom v Smith (supra) per Diplock LJ:
  28. "When the action was commenced in March, 1963, the defendant was entitled under section 1 (1) (a) of the Act of 1952 "to the like immunity from suit and legal process as is accorded to members of the official staff of an envoy of a foreign sovereign power." He was thus entitled so long as he remained en poste to complete immunity from civil suit in the United Kingdom, both as respects acts done in his official capacity on behalf of his government and as respects acts done in his private capacity. This immunity he could, however, lose at that date in one of two ways: first, as respects acts done in either capacity if his immunity were waived by the head of his mission on behalf of the Government of Canada (see Act of 1952, s. 1 (5) (a)): Taylor v. Best; In re Suarez; or secondly, but only as respects acts done in his personal capacity if he should cease to be en poste and a sufficient time had elapsed thereafter for him to wind up his affairs: Magdelena Steam Navigation Co. v. Mart; Musurus Bey v. Gadban; Zoernsch v. Waldock"...
    …"If the defendant had applied before the passing of the Diplomatic Privileges Act, 1964, to have the plaintiff's action dismissed there would have been no answer to his application. But he delayed until November, 1964. By that date his right to immunity from civil suit had been curtailed by that Act which applies to the United Kingdom the provisions of the Vienna Convention on Diplomatic Relations, 1961, contained in the schedule to the Act."…

    …"It is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit. If authority is needed for this it is to be found in Dickinson v. Del Solar, which has been cited by my brother Danckwerts L.J."…
    …"It follows therefore that until steps were taken to set it aside or to dismiss the action the plaintiff's plaint was no nullity: it was a valid plaint. If the defendant had, with the permission of his High Commissioner, appeared to it before October 1, 1964, the procedural bar to the hearing would have been removed. So, too, if the defendant had ceased to be en poste while the plaint was still outstanding the action could then have proceeded against him. I can see no reason in logic or the law of nations why the position should be any different when the procedural bar has been removed by Act of Parliament — particularly when that Act of Parliament gives statutory effect to an international convention, by which sovereign states have mutually waived in part immunities for members of the staff of their foreign missions to which they were formerly entitled by the law of nations."…
  29. Implicit within Diplock LJ's analysis is that the Defendant would be required to be 'en poste' while the plaint was outstanding. The discharge of the functions of office is equated with the protection from suit. Here says Mr Owen, H, on the facts of this case, was never 'en poste' at any stage. He develops this in his submission that there would be a violation of Article 6 of the ECHR if the court upholds immunity in a case where a person holds a diplomatic title and is not, in truth, performing any diplomatic functions. Article 6 is said to be relevant because it expresses a universally recognised principle of law as a legitimate aid to interpreting legislation generally (post the introduction of the Human Rights Act 1998) but particularly to interpreting an international treaty under Article 31 (3) (c) of the Vienna Convention on the Law of Treaties. This requires to be read in full:
  30. "Article 31, GENERAL RULE OF INTERPRETATION
    1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
    2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
    (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
    (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
    3. There shall be taken into account, together with the context:
    (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
    (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
    (c) Any relevant rules of international law applicable in the relations between the parties.
    4. A special meaning shall be given to a term if it is established that the parties so intended."
  31. It is undoubtedly true that a right of access to court is recognised as a fundamental principle of law, alongside the twin principle in international law forbidding a 'denial of justice'. In Golder v United Kingdom (1979-90) 1 EHRR 524, which Mr Owen reminds me is the first case on the right of access to a court determined by the European Court of Human Rights, these principles were utilised in interpreting Article 6 to establish an implied right of access to a court:
  32. 35. Article 31 (3) (c) of the Vienna Convention indicates that account is to be taken, together with the context, of 'any relevant rules of international law applicable in the relations between the parties'. Among those rules are general principles of law and especially 'general principles of law recognized by civilised nations' [Statute of International Court of Justice, Art 38(1)(c)]. Incidentally, the Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that 'the Commission and the Court must necessarily apply such principles' in the execution of their duties and thus considered it to be 'unnecessary' to insert a specific clause to this effect in the Convention.
    The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally 'recognised' fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 (1) must read in the light of these principles.
    Were Article 6 (1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook.
    It would be inconceivable, in the opinion of the Court, that Article 6 (1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
    36. Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by Article 6 (1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 (1) read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty, and to general principles of law.
    The Court thus reaches the conclusion, without needing to resort to 'supplementary means of interpretation' as envisaged at Article 32 of the Vienna Convention, that Article 6 (1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal."
  33. Mr Owen succinctly summarises the point in this way:
  34. …"the court can and should accept that a general principle in favour of submitting civil claims to a court and the principle against a denial of justice (which are embodied in, but not synonymous with, Article 6) are legitimate interpretative principles when conducting treaty interpretation under Article 31(3)(c) of the Vienna Convention on the Law of Treaties."
  35. Finally it is urged upon me that these fundamental principles in Golder v UK require a narrow interpretation of immunities and a broad interpretation of exceptions to immunity. Article 39, it is said, should be read as imposing a substantive requirement of the fulfilment of diplomatic functions not the mere formal or empty requirement of diplomatic title.
  36. In conjunction with the Article 6 point, the W also relies on Section 3 of the Human Rights Act 1998 which provides:
  37. "3. Interpretation of legislation.
    "(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
    (2)This section—
    (a) applies to primary legislation and subordinate legislation whenever enacted;
    (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
    (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."
  38. This point, as I see it, is supplemental to the Article 6 argument, discussed above and is marshalled to emphasise the interpretative duty to construe legislation in a way which is compatible with Convention rights. This approach, it is argued, is reinforced by consideration of the provisions of section 14 of Article IV of the General Convention and section 16 of Article V of the Specialised Agencies Convention, which emphasise the functional nature of immunity. The latter also requires to be stated in full:
  39. "Section 16
    Privileges and immunities are accorded to the representatives of members, not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connexion with the specialized agencies. Consequently, a member not only has the right but is under a duty to waive the immunity of its representatives in any case where, in the opinion of the member, the immunity would impede the course of justice, and where it can be waived without prejudice to the purpose for which the immunity is accorded."
  40. I should record here that whilst the government of St. Lucia has been invited by W's solicitors and the Foreign and Commonwealth Office to consider waiving immunity in this case, they have declined to do so.
  41. As the learned academic Eileen Denza notes in the third edition of Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations 2008, Article 31 lays down no procedural provision as to when or how diplomatic immunity should be pleaded or established in national courts. These matters are left to the law of each state party.
  42. Mr Chamberlain, on behalf of H, asserts that the international law obligations in relation to diplomatic immunity are not incompatible with Article 6 of the ECHR. He agrees that the ECHR must be interpreted, so far as possible, in a manner which conforms with other rules of international law but, he submits, on a true interpretation of Article 31 (1)(c) of the VCDR the diplomatic immunity here in focus can properly be said to be compatible. The Court of Appeal has considered these issues in Reyes v Al-Malki [2015] EWCA Civ 32 (CA). There Lord Dyson (MR) emphasised the importance of the decision of the ECtHR in Fogarty v UK (2002) 34 EHRR 12. In that case the Applicant claimed that she was the victim of sex discrimination. The US Government asserted State Immunity under section 16 (1) (a) of the State Immunity Act 1978. It was argued that this constituted a violation of Article 6 (1) of the ECHR taken in conjunction with Article 14. The complaint was rejected by the Grand Chamber of the ECtHR.
  43. Fogarty (supra) concerned sovereign immunity; we are here concerned with diplomatic immunity. The two, in the view of Lord Dyson, were, by parity of reasoning, analogous:
  44. "The court held that the article 6(1) right of access to court is not absolute (para 33). It first considered whether the limitation of the right (in that case state immunity) pursued a legitimate aim (para 34). It held that the grant of sovereign immunity to a state in civil proceedings pursues the legitimate aim "of complying with international law to promote comity and good relations between States through respect of another State's sovereignty". I would hold that, by analogy, the recognition of diplomatic immunity in civil proceedings pursues the legitimate aim of complying with a State's international law obligations to prevent hindrance to the diplomat in performing his functions. I do not believe this to be controversial."
  45. The ECtHR in Fogarty analysed the restriction as proportionate to the aim pursued in these terms:
  46. "36.  It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.
    37.  The Court observes that, on the material before it, there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes. However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission. Certainly, it cannot be said that the United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom falls outside any currently accepted international standards.
    38.  The Court further observes that the proceedings which the applicant wished to bring did not concern the contractual rights of a current embassy employee, but instead related to alleged discrimination in the recruitment process. Questions relating to the recruitment of staff to missions and embassies may by their very nature involve sensitive and confidential issues, related, inter alia, to the diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in international law towards a relaxation of the rule of State immunity as regards issues of recruitment to foreign missions. In this respect, the Court notes that it appears clearly from the materials referred to above (see paragraph 19) that the International Law Commission did not intend to exclude the application of State immunity where the subject of proceedings was recruitment, including recruitment to a diplomatic mission.
    39. In these circumstances, the Court considers that, in conferring immunity on the United States in the present case by virtue of the provisions of the 1978 Act, the United Kingdom cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individual's access to court."
  47. Lord Dyson summarised those conclusions concisely and analysed their applicability to diplomatic immunity thus:
  48. "In short, the court held that compliance with a state's international law obligations is conclusive on the issue of proportionality. In my view, although there are important differences between state immunity and diplomatic immunity, these differences are immaterial to the point of principle that the court enunciated at para 36. The central point is that restrictions on the right of access to court which reflect generally recognised rules of public international law cannot in principle be regarded as disproportionate. The court added that this is so even if international practice as to the meaning or scope of an international obligation is inconsistent, provided that the interpretation applied by the state in question is reasonable and falls within currently accepted international standards."
  49. Diplomatic immunity, as has been stressed, is functional. This is apparent in the establishment of exceptions relating to the diplomat's private holding of immovable property in the receiving State. What in fact constitutes 'a real action' (i.e. relating to immovable property) has been the subject of extensive submissions by Mr Howard which I will address below but I mention it here because it illustrates the progressive development of diplomatic law in recognising the need to strike a balance between that which could impede the effectiveness of the diplomat in post and the conflicting need to minimise abuse of diplomatic immunity where it is unjustified or, for example, in the context of land, might leave a Claimant with no possible forum in which to resolve a dispute. Denza notes that this functional approach had the general effect of tightening the protection given to the diplomatic mission itself i.e. its premises, property, communication and archives. Conversely, it circumscribed the occasions when privilege or immunity could be invoked in regard to essentially private activities of individuals. All this, as Lord Dyson observed, resonates with the objectives set out in the preamble to VCDR:
  50. "74. Diplomatic immunity by contrast is functional in nature. The preamble to the 1961 Convention records that "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States". Thus, as Mr Eicke says, even if the detailed rules of international law relating to state immunity have been altered by the 2004 Convention, it does not follow that the international law principles relating to diplomatic immunity must follow suit."
  51. As Mr Chamberlain submits, it is clear that, in this particular context, compatibility of limitation on access to a court with the State's international law obligations is determinative. He refers me to Jones v United Kingdom (2014) 59 EHRR 1 where the point has recently been emphasised. The passages to which Mr Chamberlain takes me were cited with approval by Lord Dyson in Reyes v Al-Malki (supra):
  52. "189.  As to the proportionality of the restriction, the need to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity, has led to the Court to conclude that measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. The Court explained that just as the right of access to court is an inherent part of the fair trial guarantee in Article 6 § 1, so some restrictions must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State…..
    191.  In Al-Adsani (cited above) decided in 2001, the Court found that it had not been established that there was yet acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages concerning alleged torture committed outside the forum State. There was therefore no violation of Article 6 § 1 where the domestic courts had struck out the applicant's claim against Kuwait for civil damages for torture in application of the rules of State immunity contained in the 1978 Act. The same conclusion was reached in 2002 in Kalogeropoulou and Others, cited above, in respect of the refusal of the Greek Minister of Justice to grant leave to the applicants to expropriate German property in Greece following a judgment in their favour concerning crimes against humanity committed in 1944. However, the Court there indicated that its finding in Al-Adsani did not preclude a development in customary international law in the future….
    193.  The applicants argued that the Court should depart from the approach of the Grand Chamber in Al-Adsani to the extent that the latter had failed to conduct a substantive proportionality assessment, including an assessment of the circumstances and merits of the individual case, and in particular to consider whether alternative means of redress existed.
    194.  In Al-Adsani the decisive question when assessing the proportionality of the measure was whether the immunity rules applied by the domestic courts reflected generally recognised rules of public international law on State immunity.
    195.  Having regard to the precedent established by Al-Adsani and the detailed examination in that judgment of the relevant legal issues by reference to this Court's case-law and international law, the Court does not consider it appropriate to relinquish the present case to the Grand Chamber. In elaborating the relevant test under Article 6 § 1 in its Al-Adsani judgment, the Court was acting in accordance with its obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part……"
  53. In upholding the President of the EAT, vindicating the respondent's claim to immunity, Lord Dyson recognised that this might appear to the public to be an affront to justice and fairness. The Court of Appeal had been referred to the concluding words of the decision in Tabion v Mufti 73F. 3d, 535 (4th Cir, 1996), 107 ILR 452 (United States) which are salient:
  54. "….there may appear to be some unfairness to the person against whom the invocation occurs. But it must be remembered that the outcome merely reflects policy choices already made. Policymakers….have believed that diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, but fosters good will and enhances relations among nations. Thus, they have determined that apparent inequity to a private individual is outweighed by the great injury to the public that would arise from permitting suit against the entity or its agent calling for application of immunity. "
  55. The cumulative impact of this case law is, in my judgement, to identify a balance that has evolved, designed to protect the 'functionality' or 'effectiveness' of a mission and to recognise the need to minimise abuse of diplomatic immunity. It is this balance which both underlies the policy considerations and establishes the proportionality of the restriction in ECHR terms. If 'functionality' is extracted from the equation, because no functions have been discharged or, to adopt Diplock LJ's terms, the diplomat is not 'en poste', there can remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such is the case both the policy considerations and the proportionality of restriction can not be justified in Convention terms and cannot be said to pursue a legitimate claim sufficient to eclipse W's right of access to a court.
  56. It is important therefore to establish such facts as are ascertainable. During the course of submissions I was taken to a document in the correspondence section of the bundle. The document is headed 'Affidavit of Sir Ivor Roberts, KCMG, MA (Oxon) FCIL, President of Trinity College, Oxford.' Unfortunately, this had not been drawn to Mr Pointer's attention earlier. He contended that the document had been insinuated into the bundle for purely prejudicial effect and that I should disregard it altogether. With respect, I disagree. The affidavit was prepared, as I understand it, in judicial review proceedings in the High Court of St Lucia which I have been told remain extant. Sir Ivor's contribution was to provide the Court with an expert opinion on certain matters of international law, practice and custom concerning the appointment of ambassadors and the waiving of diplomatic immunity. No permission for the instruction of an expert has been sought in this case and accordingly I do not propose to have any regard to any opinions expressed in that document. Of course in taking this course I imply absolutely no discourtesy to Sir Ivor whose distinguished career as a diplomat and an academic require no encomium from me. I am however entitled to draw on factual material from the affidavit, though I do so largely where that is replicated elsewhere.
  57. The Facts:

    i) It is implicit in the analysis of the law presented by counsel that a 'host government' does not and is not required to carry out 'strict scrutiny and due diligence' on an ambassadorial appointment to an international organisation located in London. As I have stated above the section 8 certificate is conclusive evidence only of the bald facts stated within it;

    ii) H is apparently an extremely wealthy Saudi citizen with no pre-existing connection to St Lucia. Article 8.1 of the VCDR makes clear that 'members of the diplomatic staff of the mission should in principle be of the nationality of the sending State (here St Lucia):

    Article 8
    1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
    2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
    3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

    iii) On the 3rd December 2015 the St Lucian Government, in a press release published in the St Lucia Times, announced that H has pledged significant resources towards the expansion of the local health sector which will impact positively on the health needs of St Lucians, particularly in the area of diabetic research. Whilst this may establish a basis for H as a trade or 'investment envoy' it does not establish a basis for an ambassadorial appointment;

    iv) A??s a specialized agency of the United Nations, the IMO is the global standard-setting authority for the safety, security and environmental performance of international shipping. Its main role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented;

    v) There is no evidence that H has any knowledge or experience of maritime matters, seaborne trade, shipping or indeed of any of the specialised areas with which the IMO is concerned;

    vi) It is clear that since his appointment H has not undertaken any duties of any kind in the pursuit of functions of office;

    vii) W has provided persuasive evidence that H's health is such that he is not in a position at present to fulfil any of his ambassadorial duties; it may well be that this point is not contentious.

    viii) The appointment coincided with the emergent relationship between H and his third wife.

  58. I am satisfied that what has transpired here is that H has sought and obtained a diplomatic appointment with the sole intention of defeating W's claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a 'sham', mindful of the forensic precision required to support such a conclusion. The point was made by Munby J, as he then was, in A v A and St George's Trust Limited [2007] EWHC 99 (Fam):
  59. "15. A number of different principles, rules or doctrines (call them what you will) may come into play if it is said that some document or transaction is not in truth entirely what it purports to be. The following list is not intended to be exhaustive, but what I have in mind would include, for example:
    i) The principle that the court looks to the substance rather than the label: Street v Mountford [1985] AC 809.
    ii) The approach adopted by the court when faced with a pre-ordained series of transactions or a composite transaction which includes an artificial step inserted for no commercial purpose: W T Ramsay Ltd v Inland Revenue Commissioners [1982] AC 300, Furniss v Dawson [1984] AC 474 and Craven v White [1989] AC 398.
    iii) The principle that in certain circumstances the court can 'pierce the corporate veil': see most recently Mubarak v Mubarak [2001] 1 FLR 673 (not affected on this point by the decision on appeal, [2001] 1 FLR 698).
    iv) The approach adopted by the court when faced with the assertion that property conveyed to another is in fact held on a resulting trust for the transferor: see, for example, Tinker v Tinker [1970] P 136.
    v) The doctrine of sham as defined in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at page 802.
    vi) The various statutory provisions entitling the court to set aside conveyances or other transactions entered into with intent to defeat or defraud creditors. Conceptually analogous to such provisions is the provision familiar to practitioners in this Division, section 37 of the Matrimonial Causes Act 1973, which enables the court to set aside transactions intended to prevent or reduce financial relief under the Act.
    vii) The approach adopted by the matrimonial court when faced with the assertion that the "financial resources" available to a spouse within the meaning of section 25(2)(a) of the Matrimonial Causes Act 1973 include some asset which is either not the property of the spouse (for example, an expectation of future bounty from a friend or relative) or in relation to which he has less than an absolute interest (for example, the interest of the beneficiary of a discretionary trust): see Thomas v Thomas [1995] 2 FLR 668 and, most recently, Charman v Charman [2005] EWCA Civ 1606, [2006] 2 FLR 422.
    16. I draw attention to these various different types of case in part to make the point that conceptually they proceed on very different – and in some cases completely inconsistent – bases. There is, I suppose, no difficulty, other than possible forensic embarrassment, in pleading inconsistent cases in the alternative, but it is important to recognise that due to their analytical inconsistency many of these doctrines can operate only as alternatives. "
  60. That said, my conclusions seems to fit comfortably with the classic definition of 'sham' given by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at page 802:
  61. "it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create."
  62. Ultimately the nomenclature is irrelevant, the artificiality of the appointment and my findings in relation to H's motivation for seeking it are what matter. In this respect it seems to me to be legitimate to observe that H also went to considerable lengths in the divorce of his first wife (who also lived in the UK with their children) to avoid the jurisdiction of the English court. In Sulaiman v Juffali (supra) Munby J described H's assertion, through counsel that Section 5 (2) of the Domicile and Matrimonial Proceedings Act 1973 ousted the Court's jurisdiction as 'utterly devoid of all merit'. I am satisfied that a similar motivation to avoid the jurisdiction of this Court is the driving force behind H seeking the IMO appointment.
  63. Mr Owen has submitted that support can be found for the approach I have set out in paragraph 33 above i.e. evaluating the substance of entitlement to immunity rather than assuming its existence on the mere fact of appointment, within the reasoning in Regina v Home Secretary ex parte Bagga (CofA) [1991] 1 QB 405; Regina v Governor of Pentonville Prison ex parte Teja [1971] 2 QB 274. Though I have read both carefully I am inclined to agree with Mr Chamberlain that neither case casts much light on this issue.
  64. Respect for the principles of international comity, recognition that diplomatic immunity fosters goodwill amongst nations and facilitates efficient functioning of diplomatic missions is plainly very important, but all this is predicated on the privileges afforded to the post itself and not to the individual. Not only is this implicit in all the authorities considered above but it is a part of the principles that have shaped the evolution of diplomatic law. The proportionality exercise reviewed by Lord Dyson in Reyes v Al- Malki (supra) balances the competing interests of the cluster of factors which give definition to the principle of international comity alongside the Article 6 rights of the individual. Here 'comity' cannot be weighed into the balance at all when the post itself is a mere empty husk. Alternatively, if it can, it falls on the opposite side of the scales. In these circumstances it undermines the very substance of the principle itself. It follows that I am not prepared to accede to H's request to strike out W's Part III claim on his spurious assertion of diplomatic immunity, as I find it to be.
  65. Whether H is a permanent resident of the United Kingdom for the purposes of the International Maritime Organisation (Immunities and Privileges Order 2002)

  66. If H has, contrary to my reasoning above, acquired diplomatic immunity by his status as 'Permanent Representative to the IMO of the Government of St Lucia in London' then the extent of the immunities available to him are governed by Article 15 of the IMO Order (made under s. 1(2)(c) of the International Organisations Act 1968), which provide as follows:
  67. "15. Except in so far as in any particular case any privilege or immunity is waived by the Government of the member whom he represents, every person designated by a member of the Organisation as its principal permanent representative or acting principal permanent representative to the Organisation in the United Kingdom, and members of their family forming part of their household, shall enjoy for the term of his business with the Organisation:—
    (a) the like immunity from suit and legal process as is accorded to the head of a diplomatic mission;
    provided that sub-paragraphs (d) to (h) of this paragraph shall not apply to any person who is a permanent resident of the United Kingdom, and sub-paragraphs (a) to (c) shall apply to any such person only while he is exercising his official functions".
  68. The immunities afforded to the head of a diplomatic mission include full immunity from the civil jurisdiction of the receiving State, subject to certain specified exceptions. Article 31 of the VCDR (which has binding force in the UK by virtue of s. 2(1) of the Diplomatic Privileges Act 1964) provides as follows:
  69. "(1) A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
    (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
    (3) No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence."
  70. The consequences of these provisions lead, all agree, to the following conclusions:
  71. i) the immunity in Article 15(1) (a) of the IMO Order applies in full (and not just in relation to acts done in an official capacity) where the principal permanent representative is not a permanent resident of the United Kingdom; and
    ii) where the principal permanent representative is a permanent resident of the United Kingdom, the immunity applies only "while he is exercising his official functions".
  72. It follows therefore that H can be said to enjoy full diplomatic immunity from civil actions if:
  73. a) he is not permanently resident in the United Kingdom;
    b) none of the exceptions contained in the Vienna Convention applies; and
    c) the immunity is compatible with Articles 6 and 8 of the ECHR.

    Neither the IMO order nor the VCDR define the term 'Permanent Resident'.

  74. Soon after the Diplomatic Privileges Act 1964 came into force, the UK Government faced the challenges of the interpretation of "permanent resident", particularly in relation to foreign women diplomats who had married UK nationals. In January 1969, the FCO drew up a Circular, sent to all London diplomatic missions. Despite the passage of time there has been no subsequent Circular on the point and this remains the guidance:
  75. "When regarding whether or not a particular member of your staff should be regarded as a permanent resident of the United Kingdom the test should normally be whether or not he would be in the United Kingdom but for the requirements of the sending State. In applying this test, I suggest that you should be guided by the following considerations:
    The intention of the individual: a person should be regarded as permanently resident in the United Kingdom unless he is going to return to his own country as soon as his appointment in the United Kingdom ends. It is suggested that points which may be relevant to this question include the links of the individual with the State which he claims as his home, e.g. payment of taxes, participation in social security schemes, ownership of immovable property, payment of return passage by the sending State.
    The prospect of the individual being posted elsewhere as a career member of the service: he should be regarded as permanently resident in the United Kingdom if his appointment in the United Kingdom is likely to continue or has continued for more than five years, unless the Head of Mission states that the longer stay in the United Kingdom is a requirement of the sending State and not a result of personal considerations.
    Local recruitment of the individual: a person who is locally engaged is presumed to be permanently resident in the United Kingdom unless the Head of Mission concerned shows that he is going to return to his own country or to proceed to a third country immediately on the termination of his appointment in the United Kingdom; and
    Marital status of the individual: a woman member of the Mission who is married to a permanent resident of the United Kingdom is presumed to be herself permanently resident in the United Kingdom from the tiem of her marriage unless the Head of Mission shows that in addition to her satisfying the other criteria, there remains a real prospect in view of the special circumstances of her case that she will be posted as a normal career member of the service.
    ...
    Should a difference of opinion arise between a Mission and Her Majesty's Government as to whether an individual is permanently resident in the United Kingdom, I suggest that each side should inform the other of any relevant evidence which may be in their possession."
  76. Counsel have drawn my attention to 'Satow's Diplomatic Practice' on a number of occasions throughout this hearing. It contains reference to the guidance issued by the FCO in the 1969 Circular with this editorial comment:
  77. "this guidance has been followed by the UK in administering privileges since 1969 and although consultations as envisaged have sometimes taken place, it has not been generally challenged by missions in London."
  78. This Circular was considered in Jiminez v IRC [2004] STC 371. Mrs Jiminez was a Philippines national. She had travelled to England for a holiday, but had been unable to return due to a natural disaster in her home country. She took a position as a cook at the Namibian High Commission for several years, and later claimed exemption from income tax. This was refused, primarily because there had been no formal notice of her appointment as a diplomatic agent. Mr John Walters QC, sitting as a Special Commissioner of Income Tax, considered whether Mrs Jiminez had been 'permanently resident' in the UK. His analysis (below) was cited by the advocates for both parties in this case. It reads as follows:
  79. "68. Turning to the question of whether Mrs Jiminez was 'permanently resident' in the United Kingdom, this, also, of course, is a question of interpretation of the 1961 Convention. The principles of the interpretation of treaty provisions which I have set out above apply to this question also. I must apply 'broad principles of general acceptation' in the search for the 'true autonomous and international meaning' of the expression as it is used in the context of art 37(3) of the 1961 Convention.[1]"
    69. In accordance with art 31(3) of the Vienna Convention on the Law of Treaties (referred to by Lord Steyn in ex parte Adan – see para 43 above) I ought to take into account 'any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation'. Mr Qureshi has informed me that the provisions of the 1969 FCO Circular (which certainly records 'subsequent practice in the application of the treaty' bearing on the meaning of 'permanently resident') have never been challenged by the Heads of Mission in the United Kingdom (and Mr Ewart did not dissent from this). Therefore I consider I should have regard to it in accordance with art 31(3) of the Vienna Convention on the Law of Treaties, and I further consider that it is reflective of customary international law which, by the fifth indent of the Preamble to the 1961 Convention 'should continue to govern questions not expressly regulated by the provisions of the [1961] Convention.
    70. The terms of para 3 of the 1969 FCO Circular (see para 43 above) as applied to this case lead to the conclusion that Mrs Jiminez should [not] be regarded as permanently resident in the United Kingdom for the purposes of art 37(3) of the 1971 Convention.
    71. I reject Mr Ewart's submission that it is appropriate for me to decide this question by analogy with the English law rules relative to the acquisition of a domicile of choice. It seems to me that the intention of permanent or indefinite residence which falls to be considered in the context of the domicile issue is not the same (or even a similar) concept as or the concept of whether a person who is a foreign national is permanently resident in the receiving state, so as thereby to be deprived of privileges and immunities (including exemption from tax) under the 1961 Convention. I am not surprised by the conclusion that 'permanently resident' for these purposes effectively means resident for a purpose unconnected with the holding of the status of membership of the mission. In this sense, it is simply the converse of impermanently resident for the purposes of the mission."

    All agree that the [not] referred to at paragraph 70 above was an error.

  80. Key to the Commissioner's reasoning is that the application of the test set out in the Circular is consistent with customary international law. Mr Owen has referred to it as the 'but for' test i.e. whether X would be in the United Kingdom at all but for the requirements of the sending State. Mr Owen submits that it is clear that H was resident in the UK before his appointment and suggests that it is inconceivable that H's position vis-a-vis his connection to the UK will change materially on the ending of his posting (allowing for health considerations). Indeed, he says, it did not change at all upon its commencement. Furthermore, it is said, the Circular is helpfully prescriptive:
  81. "a person who is locally engaged (that is, engaged or appointed while he is living in the UK) is presumed to be permanently resident in the UK unless the Head of Mission concerned shows that he is going to return to his own country or to proceed to a third country immediately on the termination of his appointment in the UK".
  82. It is argued, on behalf of W, that H has longstanding and enduring ties to the United Kingdom. Mr Pointer, on H's behalf, takes a different tack which he frames around what he calls 'a number of indicia that should be taken into account in light of the Circular'. These he identifies as follows:
  83. i) the intentions of the individual (as revealed by payment of tax, participation in social security schemes, ownership of immovable property, and payment of return passage by the sending State);

    ii) the prospect of the individual being posted elsewhere as a career member of the service;

    iii) the local recruitment of the individual; and

    iv) the marital status of the individual.

  84. The facts surrounding permanent residence require very careful evaluation. I do not think a 'balance sheet' approach to those factors pointing towards and away from the status is particularly helpful. Different features of the evidence have varying cogency and weight. The point is made in the deft analogy of McFarlane LJ in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 at para 52:
  85. "Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ's judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a 'balance sheet'. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours."
  86. I identify the following features as relevant:
  87. i) H is an international businessman with a peripatetic existence throughout the world;

    ii) H has the use of properties in various countries, including e.g. UK, Saudi Arabia;

    iii) H frequently spends protracted periods in the UK;

    iv) H has close family members in Saudi Arabia including his mother and grandmother whom he visits regularly;

    v) The only property which is vested in H's own name (the remainder being subject to various trusts) is in Saudi Arabia. It is, according to the evidence, a substantial property located on a 13,000 m² plot;

    vi) H is a Saudi national, domiciled in Saudi Arabia;

    vii) H's UK visa permits him to remain in the UK for no more than 180 days per year but there is no restriction on the number of visits to the UK or any requirement that a specified time must elapse between visits;

    viii) H has now been married three times. There are children from each of the marriages. The family home in each marriage has been in the UK and all the children have (so far) been brought up in the UK;

    ix) W is 53, she has lived permanently in the UK since 1989, including throughout the marriage to H i.e. since 2001. There is no dispute that she is 'habitually resident' in this jurisdiction. She has been granted indefinite leave to remain;

    x) S, the couple's child, now aged 13 years has lived her entire life in this jurisdiction.

    xi) Bishopsgate, a one hundred million pound property in Windsor Great Park has been the family home throughout the marriage.

  88. On a superficial survey of these facts H's permanent residence seems unclear. In his Skeleton Argument Mr Owen QC helpfully distil the approach taken by other jurisdictions, relying on Professors Denza's work (referred to above). Unsurprisingly, his survey reveals that various foreign jurisdictions interpret 'permanent residence' in slightly different ways. The FCO Note (1969) has internationally been very persuasive and predictably therefore there is emphasis on the 'fact specific' nature of each enquiry. It is, I hope, helpful to incorporate this learning here, which I take entirely from the Skeleton Argument:
  89. Canada

  90. In 1976, the Legal Department of the Department of External Affairs published a memorandum, which provided that:
  91. i) Acquisition of a domicile of choice in Canada would satisfy the permanent residence test – "a fortiori that person is permanently resident in Canada" (Denza (2008), p 422).

    ii) It is necessary to look at the facts of each case.

    iii) Canada would look at an extended period of residence, immigration status, "and other facts establishing a remoteness or unlikelihood (for physical, financial, familial, political reasons) to leave Canada in the foreseeable future.

    iv) Immigration status is not determinative. It is persuasive, but (for example), the loss of a particular given immigration status does not necessarily mean the end of permanent residence.

    Australia

  92. In 1989, Australia issued its own Circular Note, which provided for a standard rule that residence for 6 years would constitute "permanence", unless the Department of Foreign Affairs concluded otherwise. In coming to any such conclusion, the Department was to have regard to several factors:
  93. i) Whether the person took up residence for personal reasons or at the direction of the sending State.

    ii) Whether the recruitment was local or from overseas, and whether the person would be repatriated at the end of their tenure, together with their family.

    iii) The length of time present in Australia (whether continuously or in aggregate).

    iv) Any intent to make a permanent home in Australia, and any conduct consistent with that intention.

    v) Whether that person had married a citizen or permanent resident of Australia.

    vi) The links the person has to Australia and to the sending State, "that are relevant to determining to which community the person is more likely to belong., such as ownership of residential accommodation, participation in pension or superannuation schemes etc."

    USA

  94. In 1991, the USA issued a Circular Note dealing specifically with lower level technical and other support staff at embassies in the USA. It provided that all such employees would be assumed to be "permanently resident" in the USA, unless the sending State confirmed in writing that it would:
  95. i) Paid the cost of the employee's transportation to the USA.

    ii) Undertake to transfer the employee and their family out of the USA after the post ended.

    iii) Undertake to pay the cost of the relocation after the post.

    Germany, Switzerland and the Netherlands

  96. Each of these three countries start from the broad presumption that staff who have been recruited locally are permanently resident in the state in which they were recruited (see Denza (2008), p 423).
  97. Mr Pointer has suggested there is, in effect, a sliding scale of residential status: ordinarily resident (at the lowest end); habitually resident; permanently resident and domiciled. Though that is superficially attractive, it does not withstand scrutiny. Each of the concepts is different, perhaps sometimes subtly. Neither do I accept the submission that a greater of degree of proof is required to establish 'permanent residence' as opposed to, for example, 'habitual residence'. I do however accept that each requires evidence of a different kind to establish the relevant status. Accordingly, I reject Mr Owen's submission that 'permanent residence' and 'habitual residence' are synonymous, though it is certainly the case that the former may incorporate aspects of the latter.
  98. Some guidance can be obtained from the HMRC Circular RE 252: Foreign and Commonwealth Diplomatic Missions; Conditions of exemption:
  99. "'Permanently resident' is a term used in the Diplomatic Privileges Act to describe an individual who was living in the UK at the time of his appointment, or who has subsequently made his permanent home here. (It should not be confused with the concept of residence for tax purposes). Protocol Department takes permanent residence and citizenship into account when considering an individual's entitlement to diplomatic privilege. "
  100. In Re: A (Jurisdiction: Return of child) [2013] UKSC 60 Lady Hale surveyed the domestic and European jurisprudence and the framework of the Hague Child Abduction Convention in clarifying the approach to assessing the 'habitual residence' of a child:
  101. "Drawing the threads together, therefore:
    i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

    ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

    iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

    iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

    v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from
    R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

    vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

    vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
     
    viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.
    55. So which approach accords most closely with the factual situation of the child – an approach which holds that presence is a necessary pre-cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child's integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been."

  102. I do not consider that this approach to identifying habitual residence is entirely confined to children, as Mr Pointer suggests. It seems to me that the test adopted by the European Court i.e. 'the place which reflects some degree of integration… and family environment in the country concerned' is an equally applicable test in the context of an adult. Indeed I took such an approach in Re: SR (A Child: habitual residence) [2015] EWHC 742 (Fam), which was endorsed by the Court of Appeal: Re R [2015] EWCA Civ 674. I have considered the Supreme Court's approach to habitual residence, as all counsel did, to investigate whether it casts light on the approach to be taken to identifying permanent residence. In both oral and written submissions both counsel undertake this comparative exercise more widely. They were right to do so.
  103. Though the test derived from R v Barnet London Borough Council, ex p Shah [1983] 2 AC 309 was expressly disapproved in the passages in Re A set out above, I do not see that requires me to disregard Lord Scarman's view that in the construction of these occasionally illusive concepts, help, at least, can be derived from giving words their natural and ordinary meaning. Though Mr Owen puts some emphasis on this judgment, Lord Scarman was there considering 'ordinary residence' and beyond my observation above and in the light of the comments in the Supreme Court I do not feel able to extract anything further of assistance.
  104. Though counsel have taken me to a range of authorities hoping to illuminate this issue, there are only two cases, it seems to me, which add to that now set out above. In Re: Gape, Decd. Verey and Another v Gape and Others [1952] Ch. 743 Evershed MR:
  105. "Suffice it to say that the word "permanent" seems to me here to make all the difference, for the notion or "concept," as Roxburgh J. said, of "taking up" and, thereafter, maintaining, in a particular country your permanent residence, is, I should have thought, one perfectly well understood and sufficiently precise… "
    …If a synonym be required, I would say that the condition of taking up permanent residence in England was another way of saying making England your permanent home; that is to say, residing in England with the intention of continuing to reside there until you die…
    …If that be the meaning, such a question as "Do you cease to reside in England if you spend 11 months of the year on the Continent?", though it may be, in vacuo, a difficult question to answer, is in this context irrelevant…
    …but the state of a man's mind, as has been said many times, is as much a question of fact as the state of a man's digestion, and the use of the word "permanent" inevitably, I think, imports into the formula the notion of the intention of the person concerned. You cannot take up a permanent residence at any particular point of time, unless at the time you take up residence you intend that it should be permanent, that is, that you should go on living there for your natural days. Though no doubt to ascertain the state of a man's mind is a question which may involve difficulties, as I have already indicated by reference to the speech of Lord Simonds L.C. in Bromley v. Tryon, that difficulty of ascertainment is not by any means fatal to a clause of this kind."
  106. Finally, Langton J in Gulbenkian v Gulbenkian [1937] 4 All ER 618 at 627 observed:
  107. "In other word, the intention must be a present intention to reside permanently, but it does not mean such intention must necessarily be irrevocable. It must be an intention unlimited in period but not irrevocable in character…"
  108. Attempting to achieve an all embracing definition of 'permanent' is, of course, both forensically and indeed metaphysically unproductive. As Heraclitus observed, in the 6th century: "There is nothing permanent except change". Langton J may well have had this in mind when he talked of an 'unlimited period' which need not necessarily be 'irrevocable', in contrast to Evershed MR 'continuing to reside there until you die'. All this however serves to illustrate the point that, in this international law context, the intention of the propositus is highly relevant, though not determinative. It will be necessary to survey the wider picture of H's life, both to evaluate his degree of integration into any particular place as well as to infer his intentions from the facts.
  109. In my survey of the background of H's life (at para 51, above) I have endeavoured to identify key facts which point to permanent residence being established either in Saudi Arabia or in the UK. The fact that H does not enjoy leave to remain in the UK and that he is only permitted to visit for 180 days per year seems to drag the conclusion towards Saudi Arabia. Mr Pointer's team have spent considerable time and effort drawing up a table setting out the number of nights H has spent in the UK on a yearly basis since 2009. That data has been further refined to include the average duration of trips to the UK and also the unbroken sequence of days spent here. This is helpful so far as it goes but, in my view, a qualitative rather than quantitative assessment is likely to illuminate intention more accurately. Of all the matters identified at para 50 one is, to my mind, magnetic in its attraction. H has been married three times. On each occasion the marriage produced children. For each reconstituted family unit the family home was based in the UK. W herself is habitually resident in the UK. The children of the first two marriages have all been educated here and, inevitably, all speak English. The youngest child, now from the third marriage, is pre-school age. There are three homes in the UK.
  110. Where a man chooses to live with his wife and children, and I emphasise the element of choice, says a great deal, to my mind, about where he intends his home to be. When the circumstances of his life cause him to repeat that same decision throughout three marriages, it seems to me to signal an intention which is 'unlimited in period', to adopt Langton J's phrase and therefore to qualify as permanent. I very much agree with Mr Pointer that both the case law and the Circular require me to give significant weight to H's intentions but I have, on the facts of this case, come to a different conclusion from that contended by Mr Pointer. The evidence points very strongly, in my view, to establishing that these were the arrangements before H's appointment and, on the basis that past behaviour is often a reliable predictor of future intention, the status quo was likely to continue. On this basis H also fails the 'but for' test in Jiminez v IRC (see para 48 above). By way of completeness I should add that I have not found it necessary to deploy either Article 6 of the ECHR or section 3 of the HRA to construe the meaning of permanent residence.
  111. Accordingly, having regard to the IMO and VCDR framework (set out at para's 42 – 44 above) H can claim immunity only 'while he is exercising his official functions', into which category his defence of this Part III claim plainly does not fall.
  112. The final issue that falls for determination is that largely abandoned before Holman J but which I have now granted permission to reopen. It is framed thus:
  113. "Whether any or all of the claims and declarations referred to in paragraph 3 [of the draft order] are not directly against the respondent and, consequently, in respect of which no issue of immunity arises, or in the event that they are directly against the respondent, whether any or all of them fall within the real action exemption within Article 31 of the VCDR"
  114. For clarity, the claims and declarations referred to in paragraph 3 of the draft order are:
  115. (i) a variation of a nuptial settlement (pursuant to section 24 of the Matrimonial Causes Act 1973 imported into Part III by virtue of section 17 of the 1984 Act), which the applicant asserts is not a claim directly against the respondent and, consequently, no issue of immunity arises;
    (ii) the creation of a settlement (pursuant to section 24 of the Matrimonial Causes Act 1973 imported into Part III by virtue of section 17 of the 1984 Act) which the applicant asserts is not a claim directly against the respondent and, consequently, no issue of immunity arises;
    (iii) a declaration that the applicant has an interest in the following:
    1. Bishopsgate House, Bishopsgate Road Englefield Green, Egham, Surrey, TW20 0XU ("Bishopsgate House") or Blakestone Limited (or any trusts, whose estate comprises the legal title of the shares of Blakestone Limited); and
    2. Matthew Point Manor, Strete, Dartmouth ("Matthew Point Manor") or C Point Holdings Limited (or any trusts, whose estate comprises the legal title of the shares of C Point Holdings Limited)
    by virtue of a constructive trust or proprietary estoppel, which the applicant asserts are not claims directly against the respondent and, consequently, no issue of immunity arises or in the event that they are claims directly against the respondent, they fall within the real action exemption within Article 31 of the VCDR (Auth:1/11).
    (iv) a declaration that the respondent has an interest in the following:
    1. Bishopsgate House or Blakestone Limited (or any trusts, whose estate comprises the legal title of the shares of Blakestone Limited);
    2. Matthew Point Manor or C Point Holdings Limited (or any trusts, whose estate comprises the legal title of the shares of C Point Holdings Limited);
    3. St Saviours House, Walton Street, London, SW3 1SA or Walton International Holdings Limited (or any trusts, whose estate comprises the legal title of the shares of Walton International Holdings Limited);
    by virtue of a constructive trust or a resulting trust, which the applicant asserts are not claims directly against the respondent and, consequently, no issue of immunity arises or in the event that they are claims directly against the respondent, they fall within the real action exemption within Article 31 of the VCDR (Auth:1/11).
    (v) a declaration that the respondent has an interest in the following:
    1. the proceeds of the sale of 7 Old Park Lane, London W1
    by virtue of a constructive trust or a resulting trust, which the applicant asserts is not a claim directly against the respondent and, consequently, no issue of immunity arises.
  116. Mr Howard and Mr Nagpal contend the proper approach in relation to this question is to deconstruct it so as to determine:
  117. "whether, as a matter of law, any of the claims and declarations that W wishes to pursue either (a) do not require orders to be made against H or (b) fall within the real action exemption contained in Article 31 of the Vienna Convention on Diplomatic Relations ("VCDR")(Auth:1/11). If the answer to either (a) or (b) is in the affirmative, H's strike out application must be dismissed."

  118. This issue only arises in the event that W failed in either of the first two arguments. Mr Howard submits that if W were successful on either issue 1 or issue 2 above H's 'strike out' application must be dismissed and there is no need for the court to consider issue 3 at all. In the prefacing paragraphs of Messrs Howard and Nagpal's Skeleton Argument they submit:
  119. "The remainder of this skeleton argument therefore proceeds on the assumption (which assumption, in light of W's case in relation to Issue 1 and 2, is, of course, not accepted) that H prima facie has diplomatic immunity pursuant to Article 15 of the International Maritime Organisation (Immunities and Privileges) Order 2002 ("IMOO")(Auth:4/1) in relation, inter alia, to the civil jurisdiction"
  120. The Skeleton Argument on behalf of W on this point, alone, is 39 pages and though it is, if I may say so, erudite and elegantly constructed it contains a number of arguments which Mr Pointer has accurately described as 'elaborate'. I do not propose to overburden this judgment by addressing each of the constructs advanced, particularly as, in the light of my earlier findings, W's lawyers assert there is no need for me to consider the matter at all. However, I do consider that I am bound to address some of the arguments, albeit I intend to do so only summarily.
  121. The central issue here is the significance of the phrase 'real action relating to private immoveable property' in Article 31 (1) (a) VCDR. The Convention offers no definition.
  122. Both parties have drawn my attention to the consideration of the scope of this Article by the Commonwealth Courts on two occasions and by the English Courts in Intpro Properties Ltd v Sauvel [1983] QB 1019. The Family Court of Australia addressed the issue in De Andrade v De Andrade [1984] 118 ILR 299 and the Ontario Court of Justice, Canada considered it in Laverty v Laverty [1994] CPC (3d) 91. Each of these cases, to my mind, establishes that applications for orders transferring title to property in financial disputes on the break down of marriage does not fall within the 'real action exception'.
  123. As Renaud J articulated it in De Andrade:
  124. "… whatever the meaning [of 'real action'], it is clear that the injunctive relief sought by the wife restraining the husband from dealing with various items of property is, if an action at all, an action in personam against the husband and not a 'real action' in any of the senses put forward by the commentators cited above. Similarly, the wife's application under section 79 seeking that the husband transfer to her the home unit in Queensland and the motor vehicle is not a 'real action' in any of the senses cited but a request, as it were, for the court to alter the parties' existing legal and perhaps equitable interests."
    The judge also refused the wife's amended claim for a declaration that the husband held the matrimonial home on trust for her. She held that:
    "It seems to me that the wife's application is so essentially connected to her marriage to the respondent that the real issue before the court is what are the rights of the applicant and the respondent as parties to a marriage.
  125. The Judge went on to add, by use of a rather graphic image:
  126. Because that is the whole nexus of the wife's application the submission that her amended application is a 'real action' (even if it were clear just what that means in this context) is an attempt to fit it into a procrustean bed which was not designed to accommodate it".

  127. I agree with Mr Pointer that in so far as W has claims which constitute an action to establish title or possession of any of the London properties those constitute claims in rem which can be brought against the registered title holders of the property most likely under the Trusts of Land and Appointment of Trustees Act 1996.
  128. Finally, in Prest v. Petrodel Resources [2013] UKSC 34, [2013] 2 AC 415, the Supreme Court held that the Family Court may 'pierce the corporate veil', that is to say be prepared to treat company assets as belonging to the owner or controller of the company. However, that was confined to very limited circumstances contemplated by the general law. Mr Pointer put it thus and I agree:
  129. "The Supreme Court affirmed at [35] that, as a matter of general law, a court may pierce the corporate veil if and only if that owner/controller deliberately seeks to avoid an existing legal obligation by interposing the company. The Supreme Court then confirmed at [37]-[41] that the Matrimonial Causes Act 1973 does not give the court any broader power to pierce the corporate veil than that already available under the general law. Allowing a broader power in ancillary relief claims would cut across the schemes of company and insolvency law, which are essential for the protection of those dealing with companies. As Lord Sumption made clear at [40], "[t]here is nothing in the Matrimonial Causes Act 1973 and nothing in its purpose or broader social context to indicate that the legislature intended to authorise the transfer by one party to the marriage to the other of property which was not his to transfer." See also Lady Hale at [86], to the same effect."

  130. With respect to Mr Howard's skilfully constructed arguments I cannot see how those tests can even arguably be met in this case.
  131. I realise that these few remarks on this final point do not begin to do justice to the wide range of arguments advanced but I thought it appropriate to identify what I have regarded as the key issues on this aspect of the case and to offer a short analysis.

Note 1       [Back]


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/213.html