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COURT OF APPEAL (CIVIL DIVISION) (Transcript: John Larking) HEARING-DATES: 21 January 1994 21 January 1994 COUNSEL: J MacDonald QC and O Davies for the Plaintiff; The Defendants did not appear and were not represented PANEL: Butler-Sloss, Evans, Rose LJJ JUDGMENTBY-1: EVANS LJ JUDGMENT-1: EVANS LJ: The plaintiff claims damages against four defendants, for injury to his physical and mental health which was caused as he alleges by physical ill-treatment amounting to torture which was inflicted upon him in Kuwait on two occasions in May 1991, and by threats against his life and well-being which have continued to be made since his return to the UK on 17 May 1991, shortly after the two occasions to which I have referred. The plaintiff is a British national, and it would seem quite possibly a Kuwaiti national also. He is the son of a former Kuwaiti Health Attache in London, who is now (that is the father) in government employment in Kuwait. The plaintiff's parents are divorced. His mother, who is Austrian, lives in London, and the plaintiff since 1991 has lived with her, first in a rented flat and then at the father's London address. The claims are of great seriousness, and I should emphasise that this Court has only the plaintiff's allegations and evidence in support of them from the plaintiff and his witnesses. No evidence or submissions from any of the defendants are available to us nor should they be on this ex-parte hearing. The plaintiff needs leave to serve the proceedings outside the jurisdiction under the provisions of Ord 11 of the rules of the Supreme Court. He was given leave to serve the proceedings on second, third and fourth defendants by Sir Peter Pain, sitting as a deputy High Court judge, on 8 July 1993, confirmed subsequently in chambers on 2 August 1993. Sir Peter Pain, however, refused leave for the plaintiff to serve proceedings on the first defendant, that is to say the government of Kuwait. So it comes that the plaintiff renews his application to this Court for leave as regards the first defendant also. There was some confusion as to whether this is strictly an appeal from Sir Peter Pain's decision, in which case leave was required, or whether it is properly to be regarded as a renewed application. It comes before us on the latter basis and it requires an extension of time until 16 September, 1993, when the application was lodged in its present form, and as already indicated such leave is granted by this Court. We think it is right to add that if this had correctly been an appeal which required leave to appeal, then the Court would have been prepared to grant such leave, so that the application could be heard as such. The second to fourth defendants are individuals against whom the complaints of physical ill- treatment are made. The second defendant is a member of the ruling family in Kuwait, the Al-Sabah family, and on the evidence appears to be a brother-in-law of the Emir. The first defendant being the Government of Kuwait, the learned judge refused leave under Ord 11 because he was not persuaded that the State Immunity Act of 1978 did not give the first defendant immunity against these claims. The immunity issue, therefore, is the one upon which Mr MacDonald QC has rightly concentrated upon in his submissions to us, but it is equally important that we should bear in mind that we have to be satisfied that quite apart from the question of immunity it is appropriate to make the order under Ord 11 which is sought. The correct approach for the Court to adopt is to ask whether the plaintiff shows a good arguable case as regards jurisdiction under Ord 11, r 1. The recent House of Lords authority, Seaconsar Far East Limited -v- Bank Markazi Jomhouri Islami Iran [1993] 4 All ER 456, [1993] 3 WLR 756, shows us the correct approach. With regard to the immunity issue, the approach, in my judgment, is the same, in the sense that we should enquire whether the plaintiff shows a good arguable case, on the evidence before us, that the first defendant is not entitled to state immunity or sovereign immunity as it is generally called in public international law. In Rayner -v- Department of Trade [1989] 1 Ch 72, [1988] 3 All ER 257 at p. 73 of the former report the Court of Appeal was concerned with a number of questions of immunity and international law. One of those, which was dealt with obiter by Kerr LJ on page 194, was with regard to the working of the State Immunity Act. The Court held that when a claim for immunity is made by a state defendant, the Court then is required not merely to determine that there is a good arguable case for the plaintiff's contention that immunity should be denied, but must determine the issue itself at that preliminary stage of the proceedings. The present case, however, has not yet reached that far. The proposed first defendant has not appeared, nor has it yet been called upon to make such a claim for immunity as it may think appropriate to do. The approach which we should adopt, at this preliminary stage of an ex-parte application, would seem to be that which is referred to by Kerr LJ at page 194B where he says this: "Since leave to serve the foreign state in accordance with the procedure laid down in Section 12 of the Act of 1978 would in any event first have to be obtained under the rules of the Supreme Court Order 11 and, I emphasise, at which stage a good arguable case against immunity is certainly the test..." and so on. Applying that dictum therefore, the approach is as I have indicated it to be and as I understand it Mr MacDonald QC does not dissent. The first question is whether the plaintiff shows ground for the Court to exercise its discretion under Ord 11 r 1(f) independently of any question of immunity. The facts very shortly as alleged are these: On 2 May 1991, the plaintiff was taken at gun point from his house in Kuwait. He was taken in a government car to the state security prison and was there subjected to very considerable physical ill-treatment. Finally, under compulsion of that treatment he signed a form of admission with regard to certain disputes which had arisen between him and the second defendant, Sheikh Jaber, during the time when Kuwait was occupied by Iraqi forces. I need not go into the nature of those disputes save to say that they were essentially of a private or personal matter, notwithstanding that they had arisen at a time when the plaintiff, no doubt showing considerable personal courage, had remained in Kuwait notwithstanding the Iraqi occupation and was active as a member of the Kuwaiti resistance at that time. The matter did not rest there, because on 7 May the plaintiff was again taken at gun point, this time to what is described as a royal palace, of one or another member of the ruling family. There he was first immersed in a swimming pool which is said to have contained various corpses, and he was then placed in a cell together with a mattress which had been impregnated with petrol and which was then set alight. I need not go into the details. He managed to avoid being burned alive, which appears to have been intended. He was then threatened that he would be shot but fortunately, that fate was avoided also. He undoubtedly suffered very serious burns as a result of that episode which he attributes entirely to the second defendant and those acting on his behalf. Having been to a hospital in Kuwait, he managed to come to England on 17 May. He spent a considerable period in hospital here, and since his release from hospital, has lived in conditions of anxiety and restraint, with his mother to look after him, first in the rented flat and then in the family home to which I have referred. During that period, according to his evidence, he has received numerous threats against his life or indications that the Al-Sabah family, putting the matter generally, were seeking to find him in order to kill him or at least ensure his return to Kuwait. There is clear evidence from medical experts that due to the severe physical injuries suffered in Kuwait the plaintiff has suffered serious injuries to his mental health during his time in the UK, and there is an express opinion to the effect that that should be properly regarded as a separate form of injury even if it is consequent upon the process which began in the way I have described in Kuwait. Because we are concerned with the claim against the first defendant, it is important to remember that notwithstanding that the second and third defendants at least are said to be members of the ruling family of Kuwait, it does not follow that they were necessarily acting on behalf of the government of Kuwait. But with regard to what happened in Kuwait there are three features of the evidence which make it abundantly plain, as far as the plaintiff's evidence goes, that there was government responsibility, or at the very least, compliance. Those three features are these. First, he was taken to the state security prison. Second, he was taken in government transport, on both the first and the second occaisons, and third, he was ill-treated at least on the first occasion by government employees. That is, I emphasise again, according to his evidence which we have before us. In those circumstances, it seems to me that the plaintiff does make out a good arguable case to the effect that, and I quote from the words of Ord 11 (1) (f): "The claim is founded on a tort and the damage was sustained within the jurisdiction." It is not strictly necessary for immediate purposes, but insofaras the damage to mental health was sustained in this country, and resulted from the threats that were made, then it resulted also from an act committed within the jurisdiction. The next question before coming to immunity is one of discretion. In relation to the second and forth defendants Sir Peter Pain had no doubt but that the discretion should be exercised in favour of giving leave, and for the purposes of the present renewed application, bearing in mind what I propose to say about the question of immunity, I would have no hesitation in holding that the order should be made. I come therefore, to what is the central issue on this appeal. Sir Peter Pain said this with regard to immunity, at page 6B of the judgment, page 10 of the bundle: "The trouble that I feel in regard to the first defendant is the provision of state immunity." He then goes on to say that it was his duty to consider, even at the ex-parte stage, the question of immunity and he went on to deal with the matter, reaching the conclusion that the plaintiff did not make out a sufficiently good case that the exception under s 5 of the Act applies. That is a matter to which I shall return. Before us, Mr MacDonald has made two submissions. The first of which is quite general, in other words, not limited to s 5. He submits that there is no immunity under public international law for acts of torture, and he cites a judgment of the United States courts for the proposition that a person guilty of torture who by definition would have acted in some official capacity has become "like the pirate and slave trader before him; hostis humanis generis, an enemy of all mankind". That is the concluding paragraph of the judgment of Circuit Judge Kaufmann in the case of Filartiga -v- Pena-Irala [1980] reported in 630, Federal Reporter, 2nd series, page 876. Mr MacDonald submits that public international law is part of English law, citing Nourse LJ in the ITC case to which I have referred, and therefore he submits there can be no immunity under English law in respect of acts of torture. This submission raises issues of some difficulty, for the English lawyer at least. The wording of s 1 (i) of the State Immunity Act 1978 is this: "1. General immunity from jurisdiction. (i) A state is immune from the jurisdiction of the courts of the UK except as provided in the following provisions of this part of this Act." Putting on one side s 5 to which I shall come, there is nothing in the following provisions of the Act which would allow an exception in the case of torture or indeed, of any other outlawed act. However, it is possible to argue that since the intention of the State Immunity Act was to give effect to the European Convention of 1972, and more generally, to give effect to the rules of customary international law as explained by Lord Diplock in the Alcon Case [1984] AC 580, [1984] 2 All ER 6 then the argument will be that the reference to immunity in s 1(i) of the Act is a reference to immunity in accordance with public or general international law, and it would follow that Mr MacDonald's submission was right if, as is abundantly clear from the material placed before us, there is at the very least a reluctance under public international law to give any legal status to acts of torture such as are here alleged. I perhaps should add a reference to the Convention Against Torture and other cruel inhuman degrading treatment or punishment of 1984, and more particularly, to the Criminal Justice Act of 1988, s 134 of which deals, under the name of torture, with the English criminal law on this subject, no doubt in the light of the Convention to which I have referred. That section assists Mr MacDonald's arguments, because it makes it explicitly clear that the offence of torture so far as English law is concerned is committed whether the relevant acts are committed in the UK or elsewhere. The English criminal law, therefore, recognises the extra-territorial character of conduct of that sort. The Act, however, does not give any jurisdiction or at least jurisdiction which is relevant to the present application and its effect for present purposes therefore, is limited to supporting Mr MacDonald's general submission that torture is certainly unlawful under public international law. Mr MacDonald also referred to the international agreements under which the Nuremburg War Crimes Tribunal was set up, and to certain United Nations resolutions which followed. Without in any way wishing to dissuade him from arguing on any future occasions whatever might seem appropriate to him, I must express considerable reservations as to whether his arguments in the present case are assisted -- they may even be impeded -- by suggestions that the general international law in relation to torture upon which he relies should necessarily be identified with the wholly exceptional circumstances involving war crimes which led to the establishment of the Nuremburg tribuenal. However, what I have said so far leads me to the conclusion that I for my part would hold that the plaintiff does show a good arguable case on Mr MacDonald's first proposition which is that no state or sovereign immunity should be accorded even under the State Immunity Act in respect of acts which it is alleged are properly to be described as torture in contravention of public international law. There remains the further alternative submission under s 5 of the Act. This reads: "Personal injuries and damage to property. A state is not immune as respects proceedings in respect of (a) death or personal injury being caused by an act or omission in the UK." (omitting b) There is a suggestion of a mis-match here with the provisions of Order 11, Rule 1(I) (f) in its present form, which means that regard must be had primarily at least to the place where the damage is suffered. On its face, Section 5 requires there to have been an act or omission in the UK. It might possibly be arguable that Section 5 should not be read so strictly, but Mr MacDonald has not submitted that that approach would be wrong. He submits that there is evidence of damage here in the form of injury to mental health, which has occurred since the plaintiff's return to the UK, and that that has been caused by the threats which have been made to the plaintiff during his time in the UK, since he returned. The evidence, very briefly, is this. Apart from numerous occasions when the plaintiff or his mother have received telephone calls from unknown callers and on some occasions calls which have included specific threats to his life, and apart from occasions when he has met either other Kuwaitis in London who have informed him that the Al-Sabah family or its agents will seek to kill him, there is a particular piece of evidence from the plaintiff's brother. Originally in the form of a letter, it has now been incorporated into an affidavit, which is dated 22nd October 1993. I should emphasise, however, that the substance of the affidavit is the same as that of the earlier letter from the brother which was before the learned judge. He, the brother, describes a meeting which he had with the Ambassador from Kuwait in London, on 1st August, 1991. His account contained the following significant passages. "I began the meeting by explaining my brother's story, but was quickly interrupted by the ambassador. He told me he knew the story very well and that Sulaiman was guilty and therefore deserved the punishment inflicted upon him. Moreover he explained that my brother was now considered a criminal by the Kuwaiti Government on yet another level: betraying the Territory of Kuwait by publicising his case in the Western media. He explained that Sulaiman could be killed by the Al-Sabah Royal Family not only in Kuwait but possibly in London." Taking up the ambassador's reported reference to two levels, its significance in my judgment is that by that time at least, that is August 1991, the spokesman in London for the government of Kuwait was treating this not merely as what might be called a private dispute between the plaintiff and the second defendant, but was treating it as having escalated as a result of the plaintiff's involvement with the UK media after he had come here in May 1991; into a dispute which affected the government of Kuwait itself. There was an objection apparently on the part of the government as represented by the ambassador to these matters being publicised in this country or in Western media, quite apart from the merits or otherwise of the original dispute. Against that background and taking account of the whole of the evidence which we have seen, it does seem to me that the plaintiff makes out at least a good arguable case that some or possibly all of the threats which he has received have been made either by the government of Kuwait or with the government's backing. I do not think it would be right to regard what the ambassador said at the meeting with the plaintiff's brother as any form of threat, notwithstanding that the language was plain and unambiguous, but on the other hand, there is evidence first from the plaintiff that on one occasion the ambassador telephoned him when he was in hospital, in about June 1991. On that occasion, the ambassador, according to the plaintiff, criticised him for speaking to the press and asked him to stop doing so. "He said that if I did not stop talking to the media he would take my Kuwaiti passport and those of my family and that this would mean the British government would deport us to Kuwait." That was not a threat to injure or to harrass, but it does show government support through the ambassador for the pressure that was being brought to bear upon the plaintiff at and after that time. Secondly, the threats which have been made have all suggested that the risk to the plaintiff came from agents or likely agents of the Al-Sabah family. While one, as I have said, must not confuse the family with the government, nevertheless, in the circumstances, for the reason I have sought to explain, there is certainly sufficient evidence in my view, to justify the view that those threats were authorised by or at least connived at by the government, the first defendant. Finally, and perhaps most significantly, there is evidence that since these matters arose, the plaintiff's father who had been a government employee and resided in the UK for many years as Health Attache has since been and I quote: "removed from his employment in London and has been ordered to return to Kuwait where he has been told that he will be transferred to the Ministry of Health at a lower level than his London post." Evidence that the plaintiff's father has been recalled to Kuwait and demoted, apparently for reasons connected with this matter, can only support, in my view, the plaintiff's assertion that the threats which have been made against him as well as more generally the pressure which has been brought to bear upon him, have been instigated by or at the very least supported by the government of Kuwait. For those reasons, I for my part would hold that there is sufficient evidence at this stage of the proceedings, that the first defendant has been responsible for the threats and consequental further damage to the plaintiff's mental health to justify the Court holding that a good arguable case against immunity is shown under s 5 of the Act. I for my part would grant this renewed application and I add merely that this hearing has not concerned the second defendant in any way. There seems to be some doubt as to the position with regard to that defendant, by virtue of the fact that there already has been service and judgment in default against him in another action which apparently overlaps the present action in some respects. I therefore would say nothing about the position of the second defendant, and confine myself to the question of leave to serve the first defendant which, as I have indicated in my judgment, should be granted. JUDGMENTBY-2: ROSE LJ JUDGMENT-2: ROSE LJ: I agree. JUDGMENTBY-3: BUTLER-SLOSS LJ JUDGMENT-3: BUTLER-SLOSS LJ: I also agree but just add this, that I am satisfied for the reasons given by my Lord, Evans LJ that the applicant on his renewed application has established a good arguable case to set aside the immunity which would otherwise attach to the government of Kuwait for the two grounds which my Lord has set out. The general proposition as set out by Judge Kaufmann in the words which have already been cited by my Lord in the Filartiga -v- Pena-Irala case in the Court of Appeal of the United States, 2 Circuit, decided on 30 June 1980, and also on the narrower ground under s 5 of the State Immunity Act 1978. It is of course, important to remember that an application for leave to serve out of the jurisdiction was on this occasion as it usually is and remains before this Court, an ex-parte application. Consequently this court, as indeed the Court below, has accepted for the purposes of the application, the truth of the assertions made in the affidavits. Consquently, it is the right of those who are served, to be heard in this Court, not only on the issue on state immunity but of course, on in due course if they do not succeed in setting aside service of the writ, on the merits of the case. This Court has not decided that this applicant has been tortured, either by the Al-Sabah family or anybody on their behalf, or that the government of Kuwait has taken part in that torture. What we have done is to decide on the basis of the evidence presented to us from one side only, that there is a good arguable case that the government of Kuwait should take part in the proceedings and be served on the ground that the state immunity which they would normally be entitled to enjoy ought not to apply for the reasons argued by Mr MacDonald and set out in far greater detail in the judgment of my Lord Evans LJ. For those reasons I also agree that this renewed application ought to be granted and consequently that there should be leave to serve the Government of Kuwait out of jurisdiction under Ord 11, sub-rule (i). DISPOSITION: Application granted. Costs reserved. SOLICITORS: Bindman & Partners |