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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Royal Embassy of Saudi Arabia (Cultural Bureau) v Alhayali [2025] EWCA Civ 1162 (11 September 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/1162.html Cite as: [2025] EWCA Civ 1162, [2025] WLR(D) 460, [2026] ICR 196 |
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 2025] EWCA Civ 1162 | ||
CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON. MR JUSTICE BOURNE
EA2022000096AP
Strand, London, WC2A 2LL |
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| 2025 |
B e f o r e :
LORD JUSTICE BEAN
and
LORD JUSTICE COULSON
____________________
| THE ROYAL EMBASSY OF SAUDI ARABIA (CULTURAL BUREAU) | Appellant/ Respondent |
|
| - and - |
||
| MS ABIR ALHAYALI | Respondent/Claimant |
____________________
Embassy
Madeline Stanley (instructed by Anti-Trafficking and Labour Exploitation Unit) for the Respondent Ms Alhayali
Hearing dates: 1 & 2 July 2025
____________________
VERSION OF APPROVED JUDGMENT
Crown Copyright ©
2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.Lord Justice Bean:
Alhayali was employed by the Royal Embassy of Saudi Arabia Cultural Bureau ("the Embassy") in London between January 2013 and 6 January 2018. Her work included processing requests from Saudi students studying in the UK and passing documents to her head of department for approval. On 30 January 2018, she lodged a claim in the employment tribunal ("ET") for unfair dismissal, breach of contract, unlawful deductions from wages, discrimination on the grounds of disability, sex or belief, harassment and victimisation. The claim was eventually served through diplomatic channels. In its grounds of resistance, the Embassy asserted state immunity.
Embassy was ordered to make clear whether it conceded that the ET had jurisdiction over such claims as were derived from European Union law. Ms Alhayali withdrew the claims based only on domestic law, that is to say unfair dismissal, unlawful deductions and breach of contract.
Embassy, wrote to the ET confirming that the Embassy "accepts the Tribunal has jurisdiction over claims which are derived from EU law, as reflected in paragraph 8(c) of the existing Grounds of Resistance." Those Grounds of Resistance made reference to the decision of the Supreme Court in the Benkharbouche case, to which I shall come later.
vacated. The application stated that "our client is reasserting state immunity in these proceedings and we are instructed to engage for this purpose only." The Embassy contended that it had not submitted to the jurisdiction in the correspondence of 9 April 2019, nor by the numerous subsequent steps taken in the proceedings, since these actions had not been authorised by the head of mission or the person for the time being performing the functions of the head of mission for the purposes of s 2(7) of the State Immunity Act 1978. It was argued that conduct on the part of a solicitor can constitute a waiver of state immunity only if it has as a matter of fact been authorised by the head or acting head of mission. Reliance was placed on Republic of Yemen v Aziz [2005] ICR 1391.
a) Whether the
b) Whether the
c) If not, whether it had the benefit of state immunity in relation to the claim for compensation for psychiatric injury pursuant to s 5 of the 1978 Act (the section 5 issue);
Embassy gave notice of appeal to the Employment Appeal Tribunal ("EAT") on all three issues. EJ Brown stayed the liability hearing while that appeal and any further appeals on the preliminary issues were pending and accordingly no liability hearing has yet taken place.
Embassy applied for a Rule 3(10) hearing which came before the President, Eady J. She allowed the appeal to proceed to a full hearing on five grounds. These were:
i) The employment tribunal ("ET") erred in law in failing to give due weight to the official stamped statement from the Embassy that no authority had been given to Howard Kennedy LLP to waive state immunity in this matter, and as a result the ET should not have found that there had been a waiver of state immunity.
ii) Having regard to Benkharbouche v Embassy of Sudan [2017] ICR 1327 and to the State Immunity Act 1978 (Remedial) Order 2023 ("the Remedial Order") which came into effect on 23 February 2023, the ET should have considered whether the functions performed by the Claimant fell within the sphere of sovereign activity, not (as the ET incorrectly considered) whether her role fell into the middle category of embassy employees (technical and ancillary) identified by Lord Sumption, a matter that was not in dispute.
iii) In applying Benkharbouche (and having regard to the Remedial Order), the ET failed properly to consider the context in which the Claimant carried out her functions.
iv) In finding that the Claimant was entitled to rely on the personal injury exception to immunity in section 5 of the SIA, and in placing reliance on Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 (EAT), the ET took an overly literal approach to statutory construction and the interplay between sections 4, 5 and 16 of the SIA rather than a broader construction that took into account international law.
v) Alternatively, Ogbonna was wrongly decided and the ET erred by relying on it, because the EAT in that case was not referred to additional authorities and legal materials which support a construction of section 5 of the SIA that limits the exception to state immunity to physical or bodily injury rather than psychiatric injury.
a) The ET had erred in finding that the
b) The ET had also erred in rejecting the
c) However, the ET had been right to reject the claim to state immunity in respect of Ms
Alhayali permission to appeal to this court on the waiver and section 4 issues and granted the Embassy permission to appeal on the section 5 issue.
"150. I accepted the Claimant's evidence regarding her job responsibilities and found that that between January 2013 and 30 July 2015 she worked as an Academic Adviser in the Respondent's Academic Department, handling requests from
151. During this period, the Claimant also received academic reports on students from their universities and uploaded these to the Safeer system. If a student was not obtaining good grades or had failed part of their course, the Claimant would report this to the Head of Department. The Claimant had access to the academic information in relation to students on Safeer, including their contact details and students' courses and universities.
152. From 30 July 2015 to September 2017 the Claimant worked in the Respondent's
153. Students would make a request for funding and support (financial and otherwise) for their project to Dr Bin Ghali, Head of the
154. Between 30 July 2015 to September 2017 the Claimant proofread articles submitted to the Al-Thaqafia magazine (a
155. The Claimant was copied into emails sent to Dr Bin Ghali which were directly relevant to her own work. When Mr Bin Ghali wrote to the
156. The Claimant was given little or no work from March 2017 until she was transferred to the Respondent's Ticketing Department on 18 September 2017. The Ticketing Department arranged student travel through the Safeer system. The Claimant never worked in the Ticketing Department there because she was absent from work throughout the relevant period by reason of sick leave and annual leave.
157. The Claimant was not in a leadership or management role at any time during her employment at the Respondent. She had no ultimate decision making capacity in any of the roles she undertook.
158. Her roles involved providing information to her Heads of Department for them to make decisions. Her role in the
State Immunity Act 1978
"1 General immunity from jurisdiction.
(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.
2 Submission to jurisdiction.
(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission.
(3) A State is deemed to have submitted—
(a) if it has instituted the proceedings; or
(b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.
(4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of—
(a) claiming immunity; or
(b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it.
(5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.
(6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim.
(7) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract.
…
4 Contracts of employment.
(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.
(2) Subject to subsections (3) and (4) below, this section does not apply if—
(a) at the time when the proceedings are brought the individual is a national of the State concerned; or
(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or
c) the parties to the contract have otherwise agreed in writing.
(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State.
(4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom.
(5) In subsection (2)(b) above "national of the United Kingdom" means—
(a) a British citizen, a British Dependent Territories citizen, a British National (Overseas) or a British Overseas citizen; or
(b) a person who under the British Nationality Act 1981 is a British subject; or
(c) a British protected person (within the meaning of that Act).
(6) In this section "proceedings relating to a contract of employment" includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee. [in the amended
5 Personal injuries and damage to property.
A State is not immune as respects proceedings in respect of—
(a) death or personal injury; or
(b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.
…
16 Excluded matters
(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and—
(a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968;
(b) section 6(1) above does not apply to proceedings concerning a State's title to or its possession of property used for the purposes of a diplomatic mission."
Benkharbouche
v Embassy of the Republic of Sudan; Janah v Libya [2019] AC 277; [2017] UKSC 62 in October 2017 concerned employment law claims by two employees of foreign embassies based in London. The central question was whether the provisions of the 1978 Act were incompatible with the right of access to a court under Article 6 of the European Convention on Human Rights. Giving a judgment with which all the other Justices agreed, Lord Sumption JSC explained that provisions giving immunity to foreign states would be incompatible with Article 6 unless they were justified because they gave effect to the requirements of customary international law.
"53. As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune. It is not always easy to determine which aspects of the facts giving rise to the claim are decisive of its correct categorisation, and the courts have understandably avoided overprecise prescription. The most satisfactory general statement is that of Lord Wilberforce in The I Congreso [1983 1 AC 244 at p 267:
"The conclusion which emerges is that in considering, under the 'restrictive' theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a
54. In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise. This will in turn depend on the functions which the employee is employed to perform.
55. The
"56. This approach is supported by the case law of the European Court of Human Rights, which I have already summarised. In [four cases, including Cudak
57. I would, however, wish to guard against the suggestion that the character of the employment is always and necessarily decisive. Two points should be made, albeit briefly since neither is critical to this appeal.
58. The first is that a state's immunity under the restrictive doctrine may extend to some aspects of its treatment of its employees or potential employees which engage the state's sovereign interests, even if the contract of employment itself was not entered into in the exercise of sovereign authority. Examples include claims arising out of an employee's dismissal for reasons of state security. They may also include claims arising out of a state's recruitment policy for
59. The second point to be made is that the territorial connections between the claimant on the one hand and the foreign or forum state on the other can never be entirely irrelevant, even though they have no bearing on the classic distinction between acts done jure imperii and jure gestionis. This is because the core principle of international law is that sovereignty is territorial and state immunity is an exception to that principle. As the International Court of Justice observed in Jurisdictional Immunities of the State, at para 57, the principle of state immunity
"has to be
embassy employees, Constatine v Royal Embassy of Saudi Arabia (Cultural Bureau) [2025] 1 WLR 1207, the claimant was a member of the technical and administrative staff of the mission. The first issue before the Supreme Court was how the Court of Appeal should have proceeded in circumstances where the appellant state had not appeared at the hearing. The second issue was how the substantive appeal should be disposed of. On that issue, the court made it clear that they were applying the principles in Benkharbouche and were not departing from them. It is of interest that the ET hearing in Constatine had been before EJ Brown, whose decision, handed down on 30 June 2021, was approved by the Supreme Court.
The decision of EJ Brown on the s 4 issue
"181. I considered, first, whether the Respondent's employment of the Claimant was an exercise of sovereign authority. If it was not, the Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law."
182. The Respondent contended that the functions performed by the Claimant in her role fell within the sphere of governmental or sovereign activity and included the exercise of sovereign authority which had been delegated to her by the Respondent's officials. It contended that the Claimant's role was intrinsically linked with and supportive of protecting and safeguarding the interests of student nationals of
183. On my findings of fact, while the functions of the Respondent itself may have been inherently governmental, I considered that all the Claimant's duties were truly ancillary and supportive to this, as described by Lord Sumption in Benkharbouche, at [55]. Essentially, the Claimant's role in the Education Department involved collating and recording documents which related to student nationals of
184. On my findings of fact, the Claimant provided information to her manager for him, or the Attaché, to make the relevant decisions. Her functions were indeed "essentially ancillary and supportive" to the governmental functions of the Respondent. The Claimant's correspondence with external bodies was confined to correspondence concerning students and their universities. This was not a governmental matter but involved making practical arrangements for
185. Her role did not comprise "all typing and secretarial services necessary to operate" Dr Bin Ghali's office and did not include typing communications between him and government officials. It did not include typing his "official instructions", unlike in Governor of Pitcairn and Associated Islands
186. It is logical that the Claimant might have had access to some information about the children of government officials, or members of the
187. Likewise, her functions in the Ticketing Department were simply to arrange student travel through the Safeer system. The Claimant never worked there because she was absent from work throughout the relevant period by reason of sick leave and annual leave. If she had worked, her functions would have been purely practical and administrative tasks arranging travel for
188. I did not agree with the Respondent's submission that, because the Claimant's job role assisted the Respondent to carry out its governmental functions as described in Article 3 of the Convention on Diplomatic Relations, her employment was an exercise of sovereign authority.
189. The Respondent's submission appeared to be inconsistent with the dictum of Lord Sumption in Benkharbouche, at [55] and the approach of the ECHR in Cudak
190. Lord Sumption's examples of such administrative staff, whose functions might be sufficiently close to the governmental functions of the mission, were cypher clerks and confidential secretarial staff. Such employees are necessarily privy to highly confidential governmental communications. On the agreed facts in Governor of Pitcairn and Associated Islands
191. In Cudak
192. On the contrary, the ECHR in Cudak said that it had not been demonstrated how the administrative functions of the applicant in "recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events" could objectively have been related to the sovereign interests of the Polish Government.
193. The Claimant's functions throughout her employment were similar to those of the applicant in Cudak. I did not consider that, because the Claimant's functions were broadly supportive of the Respondent's Article 3
194. On the facts, the Claimant's functions were not "close" to the governmental functions of the mission; they were relatively low-level ancillary and supportive functions.
195. The Claimant's employment was not an exercise of sovereign authority. The Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law."
Embassy staff relevant to the present claim which constituted acts of sovereign authority. There has been no appeal from that part of her decision.
The EAT decision on the s 4 issue
"87. Whichever side of the line this case falls upon, it is close to the boundary. The answer is not obvious, as it would be for cleaning staff on the one hand or perhaps for some senior managers on the other. It was therefore a relatively difficult case to decide.
88. I also consider that, once a tribunal has made findings of fact about the duties of the employee in question, there can logically be only one right answer to the question as a matter of law. It has been suggested that two different EJs could
89. I am therefore in no doubt that both grounds 2 and 3 raise a genuine issue of law. EJ Brown's findings of fact cannot be disturbed. Her conclusion based on those facts was either legally right or legally wrong.
90. It was first necessary to decide whether functions of a sovereign kind were being discharged at all. The EJ was slightly non-committal, saying at [183] that "the functions of the Respondent itself may have been inherently governmental". That, with respect, was not entirely satisfactory, because the exercise of analysis necessitated the clear identification of any sovereign activity in order to decide whether the Claimant's work was sufficiently close to it.
91. I am in no doubt that the work of the Respondent's Academic and
92. Ground 2 focuses on whether the EJ then asked the right question. The use of terminology is of clear relevance to that ground. Applying Benkharbouche, the test was not whether the Claimant's work was "ancillary and supportive" to the exercise of sovereign authority. It was whether her ancillary and supportive work was "sufficiently close" to that exercise. In the passage quoted at the end of paragraph 39 above, those different tests appear to have been elided.
93. Ground 3 focuses on the application and outcome of that test. In that regard it may be helpful to consider what work would definitely not be sufficiently close. Leaving aside the terms "ancillary" and "supportive", work of an insufficient kind might be described as being purely collateral to the exercise of sovereign authority. So, whilst the Head of the
94. Then there was the example to which the EJ referred, of Cudak
95. That bare description may invite some comparison with the present case but, given the lack of detail, caution is needed and previous cases should not simply be used as precedents (see Holland above). We do not know what "providing information" or assisting with event organisation actually consisted of. And the final sentence of the quotation above suggests that a lack of evidence was material to the outcome. So I am not convinced that the comparison with Cudak was directly helpful.
96. In fairness to the EJ, it seems clear that some of the Claimant's activities, such as inputting information to a computer system, were of a purely clerical nature and purely collateral to any exercise of sovereign authority.
97. However, on the EJ's findings of fact, I have concluded that when the correct test of "sufficiently close" rather than "ancillary and supportive" is applied, in the context of what was an exercise of sovereign authority by the
98. I therefore conclude that ground 3 succeeds although, as I have said, this was a borderline and difficult case and it appears that the EJ was not greatly assisted by witness evidence called on behalf of the Respondent which she found to be unreliable.
99. I also allow the appeal on ground 2 on the basis that a lack of precision in the terminology of the analysis contributed to what I have found to be a legally erroneous outcome.
100. For the reasons I have explained above, there can be only one correct legal outcome on the EJ's findings of fact, and therefore there is no scope for remitting this issue to the ET."
view.
Discussion
Did the ET apply the wrong test to the s 4 issue?
Alhayali "did not have any important decision-making functions, but referred any non-standard matters to her Head of Department". She provided reports on proposals for cultural events but had no decision-making role in whether to approve them or make funding available for them. All these, said the judge, "were functional, practical, supportive duties". The judge develops these points further before saying at paragraph [188]:
"I did not agree with the Respondent's submission that because the Claimant's job role assisted the Respondent to carry out its governmental functions as described in Article 3 of the Convention on Diplomatic Relations, her employment was an exercise of sovereign authority."
Embassy that once it is shown that the department or section of the Embassy in which the Claimant worked was exercising any of the functions listed in Article 3.1 of the Vienna Convention, that is sufficient to establish the defence of sovereign immunity. At paragraph [92] of his decision, Bourne J says that:
"The test was not whether the Claimant's work was ancillary and supportive to the exercise of sovereign authority. It was whether her ancillary and supportive work was sufficiently close to that exercise."
I have to say, with respect, that this seems a very hairline distinction..
very limited. At paragraph [55], he gives the example of cypher clerks and "certain confidential secretarial staff". At paragraph [58], having cautioned against "the suggestion that the character of the employment is always and necessarily decisive", he goes on to consider employment disputes, which engage the state's sovereign interests even if the contract of employment itself was not entered into the exercise of sovereign authority, giving examples of dismissals for reasons of state security or claims arising out of a state's recruitment policy.
visitors and British students and teachers she played a part, if only a small one in protecting the interests of the Saudi state and its nationals in the UK and in promoting Saudi culture in the UK". He goes on to say that "she was participating in the public service of the Embassy and not merely in the private administration of the Embassy." This suggests that any outward-facing activity such as "discussing art exhibits with visitors" is sufficiently close to the exercise of sovereign authority to attract immunity. That seems to me to cast the net of immunity very widely indeed, certainly in comparison with the very specific examples given by Lord Sumption. The earlier reference to "sifting compliant and non-compliant guarantee requests" and "writing reports on funding requests" gives no weight to the findings of fact by EJ Brown that the Claimant did not have a decision-making role and that her activities were relatively low-level.".
Can there only be one legally correct answer?
v USA [2022] IRLR 836; [2022] EAT 92 where he said:
"In Benkharbouche Lord Sumption distinguished between three types of employees in diplomatic missions; those who have inherently governmental function at one end and those whose domestic duties are inevitably private. In the middle there are technical and administrative roles that may, or may not, be sovereign or governmental. Determining which side of the line an employee in the middle category falls is inherently a matter of factual assessment that is for the employment tribunal."
I do not accept that sovereign immunity cases (in particular those involving employees in the middle category of Lord Sumption's classification) have become a unique category of case where the party losing before the ET can appeal as of right on the grounds that the conclusion of the tribunal is always a question of law. Moreover, if that is true of the appeal to the EAT, it must likewise be true of an appeal from the EAT to this court. Even if the question for us is whether, on EJ Brown's findings of primary fact, the Embassy has or has not established the defence of sovereign immunity under s 4 of the 1978 Act, I would answer that it has not, for the same reasons that she gave at paragraphs [181]-[195] of her judgment.
Embassy does not have state immunity by virtue of s 4.
view on the first of them.
The s 5 issue: was this a personal injury claim to which state immunity does not apply?
v Ogbonna [2012] 1 WLR 139, Ms Ogbonna, who was employed as a member of a diplomatic mission, brought a claim for associative disability discrimination in respect of her dismissal, which she said had occurred because she sought time off to look after her sick daughter. She claimed to have suffered both physical and mental injuries as a consequence. The employer claimed state immunity, arguing that s 16(1)(a) of the 1978 Act prevented her from relying on s 4 to bring an employment claim, and that she could not rely on s 5, either (i) because s 16(1)(a) applied state immunity in respect of all employment claims by members of diplomatic missions regardless of s 5, or (ii) because s 5 applies only to a claim for damages for physical injury and not to harm to mental health unless it was consequent on a physical injury.
v Kingdom of Bahrain [2025] 2 WLR 467; [2024] EWCA Civ 1158. The claimants alleged that employees of the defendant state while located abroad had caused spyware to be installed remotely on the claimant's computers located in the UK, which had caused the claimants psychiatric injury when they discovered that the defendant had been spying on them in that way. The court held that a standalone psychiatric injury was a personal injury within the meaning of s 5 of the 1978 Act. Ogbonna was cited and approved on this issue: see paragraphs [96]-[107] of the judgment of Males LJ. Ms Darwin accepted that Shehabi resolves this issue authoritatively at the level of this court.
very peculiar if an employee of an embassy, perhaps a very senior diplomatic agent, could be precluded from bringing any employment claim by virtue of ss 4 and 16, including a claim for compensation for discrimination, with the exception that if the discrimination caused psychiatric injury that element of the claim could not be defeated by state immunity. That would drive a coach and horses through the careful scheme of exceptions created under ss 4 and 16.
view linked to the cause of action, not the nature of the damage. If a chandelier at an embassy in London drops from the ceiling and causes injury to the person standing beneath it, there is no obvious rationale for conferring immunity on the state occupying the premises, whether the injured person is a diplomatic agent, a member of the technical and administrative staff, a member of the domestic staff, or simply a visitor to the premises. That would apply whether the injury caused was physical, psychiatric or both. But a claim by an employee that her employer had discriminated against her and thereby caused her harm of various kinds including psychiatric injury falls squarely within the scheme of ss 4 and 16.
The waiver issue
valid waiver of immunity by an email sent by the Embassy's solicitors Howard Kennedy in April 2019 is academic, and for that reason I would set aside Bourne J's order remitting that issue for re-hearing. But I should set out briefly my concerns about the Embassy's argument and, in particular the decision of this court in Republic of Yemen v Aziz [2005] ICR 1391; [2005] EWCA Civ 745 on which Mr Andrew Legg, who presented this part of the Embassy's case with great skill, relied.
Embassy was ordered to make clear whether or not it agreed that the tribunal had jurisdiction over claims derived from the European Charter, following Benkharbouche. On 9 April 2019, a partner in Howard Kennedy LLP wrote to the ET in the following terms:
"... we confirm [that] the Respondent does not consider it necessary to amend the grounds of resistance, but accepts the Tribunal has jurisdiction over claims which are derived from EU law (as reflected in paragraph 8(c) of the existing Grounds of Resistance)."
Embassy in Royal Embassy of Saudi Arabia (Cultural Bureau) v Costatine [2025] 1 WLR 1207; [2925] UKSC 9: see paragraph [11] of the judgment of Lord Lloyd-Jones JSC in that case.
Embassy's solicitors, made an application that the final hearing in the ET be vacated. The application stated that "our client is reasserting state immunity in these proceedings and we are instructed to engage for this purpose only". A few days before the tribunal hearing, a stamped but unsigned document was sent to the tribunal as an attachment to a witness statement. It is set out in full at paragraph [82] of the ET judgment. It asserted that neither the Ambassador nor anyone working on his behalf had waived state immunity in these proceedings, and that the Ambassador was the only person authorised to do so. This applied in 2019, the time the email was "purportedly sent by Howard Kennedy on behalf of the Royal Embassy of Saudi Arabia (Cultural Bureau)".
Cultural Bureau communicating with the firm of Howard Kennedy; that she had not been in a position to give authority to submit to the jurisdiction; and that only the Ambassador could do that. EJ Brown decided that Ms Trabelsi had been authorised by the Ambassador or his deputy to give instructions to Howard Kennedy. She said:
"I cannot believe that the Respondent submitted to the jurisdiction on 9 April 2019 and continued to do so for more than two years without the ambassador being aware of this and having agreed to it. I decide that the Respondent submitted to the jurisdiction in respect of the Claimant's EU law derived claims and the head of mission or his deputy authorised this."
Alhayali or her advisors to know that the Embassy's solicitors were acting without the authority of the head of mission. Nevertheless, Ms Darwin relied on the decision of this court in Republic of Yemen v Aziz [2005] ICR 1391 to say that the point could be raised at any time.
embassy attaché. The ET held that the state had submitted to the jurisdiction. On appeal, the embassy lodged a statement from the attaché that he had misunderstood the nature of the proceedings and a statement from the Ambassador that he had not authorised the attaché to instruct the solicitors. This court (Pill, Sedley and Gage LJJ) held that the rule against adducing new evidence on appeal had to give way to the right of a state to claim on appeal that it had not submitted to the jurisdiction. (That part of the decision was expressly approved by the Supreme Court in Costatine. The Supreme Court did not, however, consider issues of waiver: again, see paragraph [11] of the judgment of Lord Lloyd-Jones JSC, referred to above.)
"56. ... the fact that the step in proceedings alleged to constitute the waiver is taken by solicitors instructed by the
...
58. I do not consider that the doctrine of ostensible authority applies either to the solicitors or to Mr Alkhader or that jurisdiction can be created by an estoppel. The state has protection against unauthorised action taken by a solicitor or member of the mission. The respondents were entitled, in the circumstances, to assert before the EAT that there had been no waiver of immunity under section 2, and hence no jurisdiction because the earlier steps in the proceedings were not steps taken by the state. As already noted, it is necessary to determine the factual issue arising in order to decide whether there has been a waiver under section 2. It would be open to the fact-finding tribunal to infer from all the circumstances that Mr Alkhader was acting with the authority of the head of mission in his dealings with the solicitor and to infer that, through Mr Alkhader, the solicitor was authorised to act as he did. If that happened, the state has taken the step or steps and is deemed to have submitted. The same process of reasoning applies to the steps taken after the employment tribunal's decision as to jurisdiction as to the steps before the decision. The court is entitled to expect that a state which does not wish to have its authorisation procedures enquired into by the fact-finding tribunal will put in place readily ascertainable procedures for waiver."
v Servicio Nacional del Trigo [1957] 1 QB 438, cited in Aziz, Parker LJ had referred to:
"… the rather alarming prospect that a foreign sovereign may allow proceedings to continue for years in this country before taking the point; but for my part I think that is a theoretical difficulty. I do not think any person, even a foreign sovereign, would be likely to be believed if in such an extreme case he were to come forward and assert that he had had no knowledge whatever of the proceedings."
Conclusion
Alhayali's appeal, set aside the decision of Bourne J and restore the order of the ET.
Lord Justice Coulson
Alhayali's appeal should be allowed. I also agree that, although it does not affect the outcome of Ms Alhayali's appeal, the decision in Aziz requires reconsideration. In my view, a result that encourages a state ostensibly to submit to the jurisdiction of the court, then change its mind either at or even during the trial, is contrary to the CPR, and particularly the overriding objective. It appears to stem from the failure in Aziz to distinguish sufficiently between actual submission to the jurisdiction under s.2(2) of the State Immunity Act 1978, on the one hand, and deemed submission under s.2(3), on the other. The latter depends on the court's objective analysis of the events after the making of the claim, expressly including whether "[the state] has taken any step in the proceedings". That reflects precisely the language of s.4 of the Arbitration Act 1950 (still in force at the time of the 1978 Act). On the face of it, this exercise has nothing to do with actual authority or intention; it is all about whether the act of the defendant impliedly affirms the institution of proceedings in court: see Skopes Design Group Ltd v Homelife Nursing Ltd (The Times 24 March 1988, CA)."
The President of the Family Division (Sir Andrew McFarlane)