COUNSEL: Jowitt K.C. and Pritt K.C. (with them W. T. Monckton) for the appellant.

Ritter for the respondent.

Sir Thomas Inskip A.-G. (with him Drucquer) for the Attorney-General.

 

SOLICITORS: For the appellant: Buckeridge & Braune.

For the respondent: Glynn, Barton & Pocock.

For the Attorney-General: Treasury Solicitor.

 

JUDGES: Lord Buckmaster, Viscount Dunedin, Lord Phillimore Lord Blanesburgh, and Lord Warrington of Clyffe.

 

DATES: 1928. June 14, 15.

1928 July 18.

 

 

International Law – Diplomatic Privilege – Immunity from judicial Process – Official at Embassy – Consular Secretary – Statement by Attorney-General on Behalf of Foreign Office – Whether conclusive – Affidavit of Defendant as to Grounds of Immunity – Right of Plaintiff to cross-examine.

 

A statement made to the Court by the Attorney-General on the instructions of the Foreign Office as to the status of a person claiming immunity from judicial process on the ground of diplomatic privilege, whether as ambassador or as a member of the ambassador’s staff, is conclusive.

 

Duff Development Co. v. Kelantan Government [1924] A. C. 797 applied.

 

The defendant in an action in the King’s Bench Division for arrears of rent took out a summons to set aside the writ on the ground that he was a member of the staff of the German Embassy and filed two affidavits in support of his application. The plaintiff applied for leave to cross-examine the defendant upon his affidavits. Shearman J. ordered the defendant to attend for cross-examination, but gave leave to appeal. Upon the appeal the Attorney-General attended at the request of the Foreign Office, and on the invitation of the Court informed them that the defendant had been appointed a member of the staff of the German Ambassador under the style of Consular Secretary, and had been [*434] received in that capacity by the British Government. The Court of Appeal, by a majority, declined to accept this statement as binding and affirmed the order for cross-examination:-

 

Held, that the statement of the Attorney-General was binding on the Court, and that the defendant was therefore entitled to diplomatic privilege.

 

Per Viscount Dunedin. Apart from that statement, the order for the cross-examination of the defendant would have been justified.

 

Decision of the Court of Appeal [1928] 1 K. B. 90 reversed.

 

APPEAL from an order of the Court of Appeal(1) affirming an order of Shearman J. in chambers.

 

The material facts may be shortly stated as follows:-

 

The respondent issued a writ in the King’s Bench Division against the appellant for payment of arrears of rent and dilapidations under a lease of a house in Hampstead. The appellant entered a conditional appearance and took out a summons to set aside the writ on the ground that he was in the service of the Ambassador of the German Empire. In support of his claim the appellant filed two affidavits to the following effect. He entered upon his duties on the staff of the German Embassy in London on November 25, 1920, and had been exclusively employed as a member of the Ambassador’s staff ever since. He was employed in the commercial department of the Embassy, and in 1923 was promoted to the post of Consular Secretary. The duties which before the war were undertaken by a consul or consul-general were now in all towns where a German Ambassador was appointed performed by that Ambassador, and the appellant assisted in carrying out the duties of the Ambassador in that regard. Further, he was from time to time employed in the general duties of the Embassy, such as the coding and decoding of telegrams. His appointment as a member of the Embassy staff was notified to the British Foreign Office on November 30, 1920, by a letter of that date, and his name was on the Diplomatic List issued by the British Foreign Office. The respondent asked leave to cross-examine the appellant on his affidavits and filed an affidavit stating that to the best of his knowledge, information, and belief

 

(1) [1928] 1 K. B. 90. [*435]

 

the appellant was a member of the consular staff and not of the diplomatic staff.

 

The Master refused leave to cross-examine the appellant, but Shearman J., in chambers, reversed the order of the Master and ordered that the appellant should attend for cross-examination, but gave leave to appeal.

 

On the hearing of the appeal the Attorney-General attended to give information to the Court if so required. At their invitation he informed the Court, on the instructions of the Secretary of State for Foreign Affairs, that the defendant had been appointed a member of the staff of the German Ambassador under the style of Consular Secretary, and that his position as a member of the Embassy was and had been since his appointment in 1920 recognized by the British Government without reservation or condition of any sort.

 

The Attorney-General’s statement is given in full in the opinion of Lord Buckmaster.

 

The Court of Appeal by a majority (Scrutton and Sargant L.JJ., Lord Hanworth M.R. dissenting) affirmed the decision of the learned judge.

 

Scrutton L.J., in whose judgment Sargant L.J. concurred, declined to accept the Attorney-General’s statement as conclusive, as that would be to substitute a department of the Government for the Courts in a class of case where such substitution had never hitherto been recognized. In his opinion the question of immunity should only be decided after the relevant facts had been ascertained in the usual way, and the cross-examination of the appellant was necessary for that end.

 

The Attorney-General obtained leave to intervene in the appeal to this House on the ground that the issues raised in these proceedings might affect the interests of His Majesty in the conduct of foreign affairs and his relations with foreign States. The contentions of the Attorney-General were set out in the following paragraphs of his case:-

 

“26. The Attorney-General submits that it is a necessary part of His Majesty’s prerogative in his conduct of foreign affairs and his relations with foreign States and their [*436] representatives to accord or to refuse recognition to any person as a member of a foreign ambassador’s staff exercising diplomatic functions. For this purpose a list of the members of his diplomatic staff is furnished from time to time to the Secretary of State by every foreign ambassador. This list is not accepted as of course on behalf of His Majesty, and after investigation it not infrequently happens that recognition is withheld from a person whose name appears upon the furnished list, either because his diplomatic status is in doubt or because the number of persons for whom that status is claimed appears to the Secretary of State to be excessive. The list prepared by the Secretary of State and forwarded by him to the sheriffs for the purposes of the statute of Anne, while it is based upon the list furnished in the first instance by the ambassador, is not therefore necessarily identical with it. The sheriffs’ list, however, is not itself conclusive evidence in a court of law on the question of diplomatic status, since it is plain that changes may have occurred in the personnel of the ambassador’s staff since the list was prepared with the result that persons whose names appear in it may have ceased to be members of the staff and others whose diplomatic status is undoubted may not yet have been included in it.

 

“27. Since therefore it is for His Majesty alone, acting on the advice of His Secretary of State for Foreign Affairs, either to accord or refuse recognition to any particular person as a member of the diplomatic staff of a foreign ambassador, the Attorney-General submits that a statement that recognition has been accorded made on behalf of His Majesty either by the Secretary of State or by H.M. Attorney-General in person must necessarily be conclusive of the diplomatic status of that person. It is admitted, however, that such a statement is conclusive upon the question of diplomatic status alone; and it is still for the Court to determine as a matter of law whether, the diplomatic status having been conclusively proved, immunity from process necessarily follows. The Attorney-General desires to point out that there may be cases in which, though the diplomatic status is conclusively proved in the [*437] manner indicated, yet immunity from process may still not exist as, for example, under the statute of Anne if a person employed in the service of the ambassador is engaged in trade. In no sense, therefore, as is suggested by the Court of Appeal, is the jurisdiction of the Court to determine the existence of immunity ousted merely because, as the Attorney-General submits, a particular form of proof of diplomatic status is conclusive and cannot be questioned.

 

“28. If a statement made on behalf of His Majesty that a person has or has not been recognized as a member of the diplomatic staff of a foreign ambassador is not conclusive, and if the Court can go behind the statement and themselves seek to investigate the facts, compelling the person on behalf of whom immunity is claimed to submit to legal process for that purpose, it would be impossible for His Majesty to fulfil the obligations imposed on him by international law and the comity of nations, since the steps taken to investigate the claim would in themselves involve a breach of diplomatic immunity which in the event the Court might decide to have been established.

 

“29. Moreover, if His Majesty should by reason of the action of the Courts find himself unable to make effective the obligations towards a foreign State involved in the recognition of persons as members of the diplomatic staff of a foreign ambassador, His Majesty’s conduct of foreign affairs will be greatly embarrassed, and a conflict between the judiciary and the executive would arise in a sphere of action in which such a conflict would be most dangerous to the public interest.”

 

1928. June 14, 15. Jowitt K.C. and Pritt K.C. (with them W. T. Monckton) for the appellant. The diplomatic privilege of an ambassador and his staff depends upon the comity of nations, and is recognized by the common law of England as forming a part of international law; and the Diplomatic Privileges Act, 1708 (7 Anne, c. 12), is merely explanatory of that law. That privilege extends to all persons associated in the performance of the duties of the Embassy. It is [*438] conceded that a consul is not within the privilege, but a member of the Embassy does not forfeit his privilege because in the course of his employment he is engaged in consular work.

 

[On the general law relating to diplomatic privilege they referred to Ambassador of Muscovy’s Case (1); Crosse v. Talbot (2); Seacomb v. Bowlney (3); Triquet v. Bath (4); Heathfield v. Chilton (5); Darling v. Atkins (6); Hopkins v. De Robeck (7); Magdalena Steam Navigation Co. v. Martin (8); Parkinson v. Potter (9); Macartney v. Garbutt.(10)]

 

As to the mode in which this privilege is to be proved, the appellant is content to rely upon the statement made to the Court of Appeal by the Attorney-General on the instructions of the Foreign Office. That statement is conclusive and binding on the Court. In In re Suarez (11) a letter from the Foreign Office stating that a foreign Minister’s name had been removed from the Diplomatic List was treated as sufficient evidence that the Minister had ceased to hold diplomatic office at the date of the letter, and Scrutton L.J. there speaks of information obtained through the Foreign Office as to the status of foreign dignitaries and their accredited representatives as conclusive. In Duff Development Co. v. Kelantan Government (12), where the question was as to the sovereignty of a foreign ruler, this House laid down the law as follows: It is the settled practice of the Court to take judicial notice of the status of any foreign Government and in case of doubt to receive information from the appropriate department of His Majesty’s Government, and the information so received is conclusive. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter peculiarly within his cognizance. That principle equally applies to the duly

 

(1) (1710) 10 Mod. 4.

 

(2) (1724) 8 Mod. 288.

 

(3) (1743) 1 Wils. 20.

 

(4) (1764) 3 Burr. 1478, 1481.

 

(5) (1767) 4 Burr. 2016.

 

(6) (1769) 3 Wils. 33.

 

(7) (1789) 3 T. R. 79.

 

(8) (1859) 2 E. & E. 94, 113, 114.

 

(9) (1885) 16 Q. B. D. 152, 157.

 

(10) (1890) 24 Q. B. D. 368.

 

(11) [1918] 1 Ch. 176, 195, 199.

 

(12) [1924] A. C. 797, 805, 813, 823-4. [*439]

 

accredited representatives of a foreign power. If His Majesty chooses to recognize a person as an ambassador his status cannot be called in question by the Courts of this country, but they must act on the representation of the Foreign Office. It ill becomes our Courts to question that which the Foreign Office in the name of the King has conceded: The Parlement Belge (1), per James L.J. Nor can any distinction be drawn between an ambassador and the ambassadorial staff. The statute of Anne treats both on the same footing. The privilege is the privilege of the ambassador. In the United States this principle has been applied to a chargé d’affaires: United States v. Ortega (2); to the secretary of a foreign legation: United States v. Liddle (3); and to an attaché: United States v. Benner.(4) And see Torlade v. Barrozo.(5)

 

The appellant desires to adopt paras. 26-29 of the Attorney-General’s case as part of his argument.

 

In no event should the claim to cross-examine the appellant on his affidavits be allowed, for the proper and convenient course is for the Court to obtain its information as to the status of a person claiming immunity from legal process on the ground of diplomatic privilege through the Foreign Office. It is true that the earlier cases appear to have been tried on affidavit evidence, but in none of those cases was there any cross-examination of the defendant on his affidavit. No trace can be found of any attempt to cross-examine a deponent on his affidavit before the Common Law Procedure Act, 1852.

 

Ritter for the respondent. Statements made by the Attorney-General as to the position of a person not alleged to be an independent sovereign prince or an ambassador or other public minister received as such by His Majesty are not binding on the Court. The Attorney-General never had any locus standi in these proceedings and he ought not to be heard.

 

[LORD BUCKMASTER said that their Lordships had decided to hear him.]

 

(1) (1880) 5 P. D. 197, 199.

 

(2) (1825) 4 Washington, 531.

 

(3) (1808) 2 Washington, 205.

 

(4) (1830) 1 Baldwin, 234.

 

(5) (1830) 1 Miles (Phil.) 361. [*440]

 

Sir Thomas Inskip A.-G. (with him Drucquer) for the Attorney-General. The contentions of the Attorney-General are set out in paras. 26, 27, 28, 29 of his case. Those statements were prepared with great care by my predecessor in office, Sir Douglas Hogg, as he then was, and I desire to add nothing to them.

 

Ritter, on the merits. The Court will take judicial notice of the status of a foreign sovereign or of an ambassador, and in case of doubt will inform itself through the Foreign Office, but this judicial notice is confined to the case of a representative directly accredited to the Crown or to the Foreign Office – an ambassador or a chargé d’affaires. The case of an ambassador is peculiarly within the cognizance of the King and the Foreign Office, but the case of an ambassador’s servant is not: Malachi Carolino’s Case.(1) Except for an obscure reference in Heathfield v. Chilton (2) no case can be found in which any attempt has been made to extend judicial notice to the case of the ambassador’s staff. The question whether or no the appellant is in the German Ambassador’s diplomatic or domestic service is a question of fact to be ascertained in the ordinary way.

 

[He also referred to Mighell v. Sultan of Johore (3); Foster v. Globe Venture Syndicate (4); Taylor on Evidence, 11th ed., ¤ 4; Best on Evidence, 12th ed., p. 233.]

 

Jowitt K.C., in reply, said that the German Ambassador would not press for costs, but would leave the matter to their Lordships.

 

The House took time for consideration.

 

1928. July 18. LORD BUCKMASTER (read by VISCOUNT DUNEDIN). My Lords, the privilege affording ambassadors and other accredited representatives of foreign countries immunity from all writs and processes is an ancient doctrine of the common law declared in terms by the statute 7 Anne, c. 12.

 

No question is raised on this appeal affecting the existence or the extent of this protection. The sole point for

 

(1) (1744) 1 Wils. 78.

 

(2) 4 Burr. 2016.

 

(3) [1894] 1 Q. B. 149, 159.

 

(4) [1900] 1 Ch. 811, 813. [*441]

 

determination is the method by which the status of any person who claims the benefit of this privilege is to be determined. For the appellant it is contended that the statement of the Attorney-General on the instructions of the Foreign Office is for this purpose conclusive, while the respondent asserts that any such dispute should be ascertained in the ordinary way according to the usual rules of evidence. The present appeal arises out of the following circumstances: On July 28, 1926, the respondent issued a writ in the King’s Bench Division of the High Court claiming against the defendant rent alleged to be due under a lease dated August 18, 1924, and damages for breach of covenant. A conditional appearance was entered by the defendant and a summons was issued by him asking that the writ might be set aside on the ground that he had been a Consular Secretary on the staff of the German Embassy, London, since November 25, 1920, and had been notified as such to the British Foreign Office and that his name appeared in the Diplomatic List issued by the British Foreign Office. It is unnecessary to follow the varying fate of this application before the Master and the judge, for, pursuant to leave, another summons was issued by the appellant on October 26, 1926, asking the same relief as before. On this application, as on the former, the appellant filed an affidavit; prolonged and fruitless proceedings in chambers ensued until finally on March 4, 1927 – eight months after the issue of the writ – Shearman J. made an order that the appellant should attend for cross-examination on his affidavit, at the same time granting leave to appeal against his order. The appellant availed himself of this permission and appealed to the Court of Appeal, who on June 23, 1927, confirmed the order of Shearman J., the Master of the Rolls dissenting, and from their judgment this appeal has been brought. In form, therefore, this appeal is against an order for cross-examination, but in substance the dispute is far more important.

 

On the first day of the hearing of the appeal the Attorney-General informed the Court on their invitation that the defendant “has been appointed as a member of the staff of [*442] the German Ambassador under the style of Consular Secretary and has been received in that capacity by the British Government. His name has been submitted to the Foreign Office by the Ambassador in the usual way, and his position as a member of the Embassy is, and has been since December, 1920, recognized without reservation or condition of any sort. He has been engaged during the last twelve months, at any rate, as a member of the staff of the Commercial Division of the Embassy. As such he has been obliged to take part from time to time in the general work of the Embassy staff, and particularly as regards the ciphering and de-ciphering of telegrams, that is, telegrams from the German Ambassador to his Government. He is responsible in all that he does to the German Ambassador.” He further added that he had himself communicated with the Foreign Office, and was satisfied that the information was correct as to the defendant’s position at all relevant dates. If this statement as to status be accepted, no question arises upon the construction of the statute: the defendant would then be entitled to the benefit of the privilege that he invokes. Scrutton L.J., with whom Sargant L.J. agreed, felt himself unable to accept this statement as binding: to do so would, in his opinion, be contrary to principle and unsupported by authority. I find myself unable to agree with this conclusion.

 

So far as the question of principle is concerned, the case decided in this House of Duff Development Co. v. Kelantan Government (1) is a clear authority that the method of proving the status either of the sovereigns or of the ambassadors who are their representatives is by the very method that is challenged in the present case. The statute, however, draws no distinction between the ambassadors and what, in the language of the Act of Parliament, is described as the “domestic or domestic servant of any such ambassador,” and it seems difficult to understand when the principle is admitted with regard to the one that it should

 

(1) [1924] A. C. 797. [*443]

 

not apply in relation to the other, for the privilege is the same in each case. With regard to the sovereignty of a particular State and whether or not a particular person is a sovereign ruler, the case referred to makes the general principle plain. As Lord Finlay said(1): “It has long been settled that on any question of the status of any foreign power the proper course is that the Court should apply to His Majesty’s Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance.” Lord Dunedin expressed the same opinion in these words: “It seems to me that once you trace the doctrine of(2) the freedom of a Foreign Minister from interference by the Courts of other nations to comity, you necessarily concede that the home sovereign has in him the only power and right of recognition.”

 

Now the acceptance and recognition of persons who form the staff of an ambassador are matters which, having regard to the practice in the conduct of foreign affairs, are equally based on the comity of nations and necessarily also within the cognizance of the Crown acting through the Foreign Office. They are in a position to know what are the duties performed and the persons who perform them, and it is plain that, though they trust the list put forward if it appears from their knowledge to be a list which might reasonably be accepted, yet the list itself is scrutinized, inquiries are made and, if necessary, persons are removed for sufficient reasons. That some such practice is contemplated under the Act itself is plain from the section which provides that no person shall be proceeded against for the arrest of a servant of the ambassador unless his name shall have been registered in the office of one of the principal Secretaries of State and transmitted to the sheriffs of London and Middlesex, who are to hang the list up in some public place. This, of course,

 

(1) [1924] A. C. 813, 820.

 

(2) The report has “for,” a manifest error. [*444]

 

is a negative provision and does not show that the list should be accepted as evidence; but it does contemplate the preparation of a list of people for whom immunity is claimed and its publication in the manner therein provided. The list is not conclusive, nor is it the list itself on which reliance is to be placed, but on the statement of the Crown, speaking through the Attorney-General, stating that a particular person at the critical moment is qualified to be upon the list. When this statement has been made it is difficult to see how it can be questioned without the introduction of proceedings which in the person of the ambassador himself, and equally of his wife and family and staff, it would obviously be undesirable to institute.

 

But apart from the question of principle, it appears to me that there is valuable information to be found in the authorities. In the case of Crosse v. Talbot (1) a question arose as to whether a particular person was on the staff of the Duke of Holstein’s resident here, and a certificate was produced that he was the valet de chambre of such resident at certain wages. The Court, however, held that he appeared to be a mere nominal servant and that he consequently was not within the privilege, but the certificate of the resident as to what his status actually was does not appear to have been challenged. In cases like Seacomb v. Bowlney (2) and Triquet v. Bath (3) the dispute was, in fact, tried upon affidavit and the only questions determined were whether these affidavits showed that the status was adequate to secure the protection. The latter case is interesting because it explains the origin of the passing of the statute of Anne. In Heathfield v. Chilton (4) the dispute was as to whether the person in whose service was the defendant who had been arrested was himself within the privilege. Lord Mansfield there said that “this is not an application by the Attorney-General. … That, indeed, would have shown that the Crown thought this

 

(1) 8 Mod. 288. [The test there laid down by the Court is that the servant ought “really to execute the duty of his office.” – F. P.]

 

(2) 1 Wils. 20.

 

(3) 3 Burr. 1478.

 

(4) 4 Burr. 2016, 2017. [*445]

 

person intitled to the character of a public Minister. It now remains uncertain what his proper character is.” Lord Mansfield also added that the registration of a particular person’s name in the Secretary of State’s office was not a condition precedent to his right of protection. In the case of Fisher v. Begrez (1) the question was as to whether a chorister was within the protection, and it was there held that the certificate itself was not a sufficient authority that the defendant was, as a chorister, a domestic servant and therefore privileged.

 

Beyond this, the earlier cases throw little light upon the question now under consideration, and this is possibly due to the fact that in all those cases, the defendant being the subject of arrest, application was immediately made on affidavit for his release, and that the matter could be tried by affidavit, if no intervention took place and if the defendant so liked, is not in dispute. The later cases are more instructive.

 

In Macartney v. Garbutt (2) a question arose as to whether a British subject accredited to Great Britain by a foreign Government as a member of its Embassy was liable to distress on the furniture of his house for rent. Such distress had been levied and had been paid out by the plaintiff, who brought an action to recover back the sum. In the course of his judgment Mathew J. said that the plaintiff was an English subject, had been appointed by the Chinese Government English Secretary to the Chinese Embassy and had been received in that capacity by the British Government; his name had been submitted to the Foreign Office in the usual way and his position as a member of the Embassy recognized without reservation or condition of any sort. He would, therefore, seem to be clearly entitled to the privileges of the Corps Diplomatique. The importance of this statement is that the learned judge bases his judgment upon the reception of the person as Secretary by the British Government, the submission of his name to the Foreign Office and his recognition by them. Now those circumstances could only be proved either by a person speaking on behalf

 

(1) (1832) 1 Cr. & M. 117.

 

(2) 24 Q. B. D. 368. [*446]

 

of the Crown as representing the Foreign Office, or by such person giving evidence and being subject to cross-examination, but directly the matter is based upon the reception and recognition by the Foreign Office it seems impossible to suggest a reason why such recognition should be good in the case of the ambassador and bad in the case of his staff.

 

In the case of The Parlement Belge (1) there is contained a very important statement by James L.J. Brett L.J. appears to have doubted whether the recognition by the Crown of an ambassador could be accepted if the person in question had not, in fact, been sent as an ambassador, but James L.J. states that that question is outside the authority of any municipal court, and adds: “I apprehend that we should be bound to act on the representation of the Foreign Office.” And, in In re Suarez(2), it was decided in the Court of Appeal that a letter from the Foreign Office under the hand of an Assistant Secretary of State stating that a Minister’s name has been removed from the Diplomatic List is sufficient evidence that he had ceased to hold diplomatic office at the date of the letter.

 

It is, of course, obvious that the privilege claimed has serious results, as it excludes from their remedies in the Courts the people with whom members of the ambassador’s staff may have incurred obligations, and it is possible that it is open to abuse. It is of the essence of all privilege that it may be abused, but that question has nothing to do with the matter we are called upon to decide; the merits of the dispute out of which this question has arisen are in no way before us for consideration. The privilege itself depends upon maintaining the obligations of international law and the comity of nations. It would, indeed, be unfortunate if, after recognition had been afforded by His Majesty through the Foreign Office to people as holding such posts on the ambassadorial staff as entitled them to the privilege and the statement as to their position had been afforded on behalf of the Crown through the Attorney-General, it was to be disregarded by the judiciary, for, in such circumstances,

 

(1) 5 P. D. 197, 199.

 

(2) [1918] 1 Ch. 176. [*447]

 

the ensuing contest could not possibly inure to the public good.

 

My noble and learned friend Lord Blanesburgh concurs in the opinion I have just read.

 

VISCOUNT DUNEDIN. My Lords, I entirely concur with what has been said by the noble and learned Lord on the Woolsack as to the unfortunate way in which this case was begun. Had the question remained merely as to whether cross-examination was permissible upon an affidavit in which the appellant set forth his own status, I should have been of opinion with the Court below. But, in truth, the whole case was altered funditus when the Attorney-General intervened.

 

The respondent tried to convince us that, if this case was decided in favour of the appellant, it was opening the door to the granting of diplomatic privilege to the consular service. It is nothing of the sort. Mr. Engelke will enjoy diplomatic privilege not because he is styled Consular Secretary but because he, as an accredited member of the Ambassador’s household, has privilege as such and does not forfeit it because he does some consular work. In the case of Duff v. Kelantan (1) in this House it was pointed out that the acknowledgment of diplomatic privilege entitling immunity from being sued in the tribunals of this country rests on comity, and that the statute of Anne does no more than confirm the common law and annex certain penalties to those who transgress it. Mr. Engelke is, in the words of the statute, “a domestic of the Ambassador.” In the Oxford Dictionary “domestic” as a substantive is defined as “a member of the household; one who dwells in the same house as another; an inmate”; and in 1656 there is a quotation, “From that time he had his accesses …. to His Majesties presence as a domestique without ceremony.” To prove that he is so rests on the fact that it has been brought to the notice of the Court through the Attorney-General, as the mouthpiece of the Foreign Office, that Mr. Engelke was presented to the Foreign Office as belonging to the personal staff of the Ambassador in the

 

(1) [1924] A. C. 797. [*448]

 

list supplied by him to the Foreign Office and accepted as such by the Foreign Office. In such a case the comment which I made in Duff’s case (1) and which, I think, was quoted by the Master of the Rolls, seems to me directly in point. The Attorney-General, in his very careful statement, shows that the acceptance of the list is no matter of necessity, but that it is subjected to careful scrutiny. This seems to me to obviate the possibility of abuse, or of such extension of privilege if it was sought to include the whole consular service.

 

The judgment of the Court of Appeal should be reversed and a declaration made that the appellant is entitled to diplomatic privilege.

 

LORD PHILLIMORE. My Lords, the plaintiff in this case brought an action claiming certain relief against the defendant in respect of the lease of a house. The defendant, who claims diplomatic privilege as one of the staff of the German Embassy, entered a conditional appearance and took out a summons for an order that the writ be set aside. In support of this summons he filed an affidavit by his solicitor speaking partly to the deponent’s own knowledge, but mainly upon information and belief. This affidavit was rejected, perhaps unfortunately, by Talbot J. as being insufficient even to raise the point. Thereupon, the defendant filed his own affidavit and then a further affidavit on his own behalf, and the plaintiff being minded to contest the accuracy of the statements contained in these affidavits applied to cross-examine the defendant upon them. The defendant, upon the instructions of the Ambassador, declined to submit himself to cross-examination, and after the matter had been to and fro in a not very edifying series of applications to Master and judge, it came before the Court of Appeal.

 

Before that Court the Attorney-General appeared, instructed by the Foreign Office, to give certain information as to the status of the defendant, and after he had given that information, the Court nevertheless, by a majority, affirmed the decision of the judge at chambers directing that the defendant should

 

(1) [1924] A. C. 797. [*449]

 

attend for the purpose of cross-examination. It is from this order of the Court of Appeal that the appeal has now been brought to your Lordships’ House.

 

The description which the defendant gave of himself and which has been given of him by the Foreign Office is, that he is a Consular Secretary on the staff of the German Ambassador, and the argument for the plaintiff rested on the expression consular with a suggestion that an attempt was being made to get diplomatic privileges for a person who was not truly diplomatic but only in the consular service. For reasons which will appear in the course of this opinion, it is not necessary to go very deeply into this point, but I may observe that the positions of diplomat and consular employee are not mutually exclusive, and that indeed it has been in the past not uncommon to clothe a consul or consul-general with certain diplomatic functions and thereby to give him a diplomatic status. But the question before your Lordships turns on other matters.

 

If this case now turned upon the question whether the defendant should be cross-examined upon his affidavit, or not, it may be that the result would be unfavourable to him. Where an application is made to stop a suit in limine and the application rests upon a disputed matter of fact, it would be right that the evidence should be scrutinized. On the other hand, where an applicant is claiming that he is privileged from litigation it seems a strange result if he is forced to litigate in order to obtain his exemption from litigation.

 

But as the defendant is now content to rely solely upon the certificate of the Foreign Office delivered to the Court by the Attorney-General, it is unnecessary to consider the question of cross-examination.

 

The objection taken on behalf of the plaintiff to the reception of this certificate and the criticism of its weight seem to me to rest upon misapprehensions as to the nature of diplomatic privilege.

 

By international law, which is part of the common law of this country, an Ambassador, by which term I intend to include diplomatic agents of all sorts – the stately Ambassador, [*450] in the restricted sense of the word, the special envoy, the resident minister, and the chargé d’affaires – is sent by the one country and received by the other upon the term that he has among his other diplomatic privileges immunity from legal process in the Courts of the country which receives him. The reasons for this immunity are well expressed in Magdalena Steam Navigation Co. v. Martin.(1)

 

This immunity being accorded to him in order that he may transact his Sovereign’s business, is a privilege which he cannot waive unless under direction from his Sovereign.

 

The Ambassador further requires, in order that he may effectually do his Sovereign’s business, that there should be a like immunity for his personal family, that is to say, his wife and his children if living with him, his diplomatic family, as it is sometimes called, that is to say, his counsellors, secretaries and clerks, whom I take to be intended by the word “domestic” in the statute of Anne, and his ordinary servants, described in the statute as “domestic servants,” with a possible reservation in the case of domestic servants who are nationals of the receiving country. The privilege of all these persons is a derived privilege created for the benefit of the Ambassador and may be waived by him, but should, unless waived, be taken by them for the Ambassador’s benefit.

 

But just as the receiving State may intimate that a proposed Ambassador will not be agreeable to it and will be refused, so, if the Ambassador tenders a person as a domestic or domestic servant, the receiving State may refuse to accept and recognize the man as such, and when the person tendered is a subject of the receiving country conditions may be made. In old days, a resident minister or chargé d’affaires was not unfrequently a subject of the receiving country, distinguished from an envoy who, as the derivation of the word shows, would be sent from the one country to the other. I take it that in living memory our business at the Court of the ruler of Afghanistan was conducted on this footing. But generally now, the Ambassador is a subject of the sending and not of the receiving country, and is therefore said to be

 

(1) 2 E. & E. 94. [*451]

 

extra-territorial. But his domestic servants or some of them will almost certainly be subjects of the receiving country, and in certain cases some members of the staff may be drawn from the receiving country. The case of Macartney v. Garbutt (1) affords such an instance. Sir Halliday Macartney was appointed English Secretary to the Chinese Legation and as the case narrates, his appointment was communicated to and accepted by the Foreign Office without conditions, though, as he was a British subject, it might have been made subject to the condition that no privilege was claimed for him. The Siamese Legation has had to my knowledge similar English Secretaries, but whether they were accepted by the Foreign Office conditionally or unconditionally, I know not.

 

When we come to the ordinary domestic servant, it may well be, that if he be a British subject, the Foreign Office may intimate that they cannot accept him so as to give him privilege. But according to English law (which may in respect of the domestic servant who is a national go somewhat beyond general international law) once the man is tendered as a domestic or as a domestic servant, and the tender is accepted, the status is created and the privilege attaches.

 

When therefore the certificate from the Foreign Office was delivered by the Attorney-General, it was not, as suggested on behalf of the plaintiff, a piece of hearsay evidence, a mere narrative of what the Ambassador had told the Foreign Office. It was a statement of what the Secretary of State on behalf of His Majesty had done, not what he was doing ad hoc, or what he was believing and repeating, but what the Foreign Office had done. The certificate is no attempt on the part of the executive to interfere with the judiciary of the country. The status which gives the privilege has been already created by the Crown in virtue of its prerogative in order to administer its relations with a foreign country in accordance with international law.

 

For the plaintiff, reliance was not unnaturally placed upon a number of cases principally in the eighteenth century where privilege was asserted by an application to discharge

 

(1) 24 Q. B. D. 368; 62 L. T. 656. [*452]

 

the defendant supported by an affidavit of the facts, whether made by or on behalf of the defendant; and it was submitted that this was the only way in which the status (except in the case of the actual Ambassador) could be proved, with a further submission that the proper consequence would be that the deponent might be cross-examined. It would seem that the privilege might be claimed and proved in this manner, but there were reasons for this procedure which no longer exist, and there are objections to it in principle which seem to me to make it a less desirable course.

 

In these eighteenth century cases, the defendant seems always to have been a British subject. I should gather that in most of them he was not on the sheriffs’ list, and I would insist upon this, not because of the direct importance of the list, but because he would have been on the list if he had been made known to the Foreign Office and accepted as one of the Ambassador’s retinue, and it follows therefore that he never had been tendered and accepted and was reduced to proving his privilege in fact by showing his service.

 

My next observation would be that according to the procedure of those days process was initiated by arrest of the person and that a defendant had perforce to submit so far to the jurisdiction as to procure his release by giving bail. Further I would observe that counsel have told your Lordships that the result of their researches is that cross-examination upon affidavit was an unknown form of procedure till introduced by the Chancery Procedure Act of 1852, so that the affidavit of the eighteenth century was merely a solemn mode of making a claim. It was indeed the only way, as far as I know the old procedure, because I conceive that a suggestion on the roll would not be applicable and that the only form of process would be by a rule nisi supported by affidavit.

 

Such defendants not having been made known to the Secretary of State could not well expect to have the benefit of the procedure suggested by Lord Mansfield in Heathfield v. Chilton.(1) I quote his words: “I find this is not an

 

(1) 4 Burr. 2016, 2017. [*453]

 

application by the Attorney-General, by the direction and at the expense of the Crown. That, indeed, would have shown that the Crown thought this person intitled to the character of a public Minister.”

 

The case of Fisher v. Begrez (1) is perhaps the most favourable to the plaintiff. There the claim of privilege was disallowed, and there are expressions in the report to the effect that the certificate from the Secretary of State was not conclusive; but what is referred to is not a real certificate, but the sheriffs’ list, and the reason given is that a man may well have been put on the list as being at the time in the suite of an Ambassador, and yet be no longer in that capacity. There was not, as in this case, a certificate de praesenti. It may be further noticed that the claim for privilege was made in respect of a writ of fi. fa., so that the case must have proceeded to judgment without any such claim having been made, and it seems to have been an after-thought.

 

The case of the Russian Ambassador which led to the statute 7 Anne, c. 12, is related by Lord Mansfield in the case of Triqet v. Bath (2), and is given more at length in Blackstone’s Commentaries, vol. i., p. 255, repeated by Stephen. Blackstone got his account from Boyer’s Annals of Queen Anne, vol. vii., pp. 235-242. Lord Mansfield, following, I think, the train of thought which he expressed later in Heathfield v. Chilton (3), seems rather to complain that in that case there was no direct intervention by the Attorney-General. He observes as follows: “If proper application had been immediately made for his discharge from the arrest, the matter might and doubtless would have been set right. Instead of that, bail was put in, before any complaint was made.” I do not, however, know what the unfortunate Ambassador could have done. His carriage was stopped, he was dragged out of it with violence and taken to a sponging house, where he had to remain till two distinguished persons put in bail for him. He then went straight to the Queen to complain, and the whole Diplomatic Corps

 

(1) 1 Cr. & M. 117.

 

(2) 3 Burr. 1478, 1480.

 

(3) 4 Burr. 2016. [*454]

 

joined in protesting, whereupon the delinquents were summoned before the Privy Council, of which it is stated that the Lord Chief Justice Holt was sworn a member, apparently in order that he might sit. One of the persons complained of was discharged, but the rest were committed to prison, and the Attorney-General was directed to file an information against them, on which they were convicted, judgment being reserved, in order to consider the international law; but the Tsar having been mollified by the passing of the Act of Parliament, and the presentation of an elaborately engrossed copy, desired that they should not be punished, and they were accordingly released.

 

It does not appear that any steps were taken to vacate the bail bond or dismiss the suit. Probably, any such step was deemed unnecessary. There was intervention by the Crown, but after a different fashion.

 

I have already observed that in my judgment there are objections in principle against driving a defendant to the course adopted in the eighteenth century cases. The object to be attained is immunity from the vexation of litigation with its impediments to the discharge of the functions of the domestic or domestic servant, as illustrated in the case which I have already quoted of the Magdalena Steam Navigation Co. v. Martin.(1) Absolute freedom is difficult to procure. Litigation, as Mellish L.J. observed in Ex parte Edwards (2), usually begins ex parte, and a defendant served with a writ must enter an appearance even if it be only a conditional appearance, or he will have judgment against him, and he must follow up appearance by a summons to set aside the writ. All this is unfortunate, and is intended to be provided against in our country by the statute of Anne and the sheriffs’ list. But the only compensation, if it be compensation, is to give the defendant his costs. If possible, there should be no further interference with him, but if he is put to file an affidavit it is a further step in de facto submission. If he has to attend for cross-examination, it is a further submission and not unlikely to interfere with the discharge of his other duties.

 

(1) 2 E. & E. 94.

 

(2) (1873) L. R. 9 Ch. 138. [*455]

 

Where the man’s chief has not taken the precaution of tendering the man and procuring his acceptance, the man may have still to prove his status aliunde. But where the man has been tendered and accepted the joint act creates a status, which can only be removed by showing that his duties have ceased or that he has engaged in trade.

 

My Lords, if I am not mistaken, when a question arises in the Law Courts as to whether a ruler is a Sovereign, and a proper Secretary of State is consulted, the right answer is not “A.B. is a Sovereign,” but “A.B. is recognized by His Majesty as a Sovereign,” so I think, the exact inquiry in this case is not whether the defendant is a member of the Ambassadorial staff but whether he has been accepted and recognized by the Crown as such a member, and it appears to me that he has so been.

 

Therefore, my Lords, I think that this appeal should be allowed.

 

LORD WARRINGTON OF CLYFFE. My Lords, the appellant is defendant in an action brought against him by the respondent Musmann for the recovery of rents reserved by and damages for breach of covenants contained in a lease dated August 18, 1924, made between the respondent of the one part and the appellant of the other part of certain premises at Hampstead.

 

The appellant having entered a conditional appearance applied to have the writ and all subsequent proceedings set aside on the ground that he is a Consular Secretary on the staff of the German Embassy and, therefore, entitled to immunity from civil proceedings.

 

In support of this application he filed affidavits stating the nature of his employment and making the claim to immunity.

 

On March 4, 1927, Shearman J., on an appeal from a decision of Master Moseley, given in chambers on February 15, 1927, ordered the appellant to attend for cross-examination, but gave leave to appeal.

 

The appeal came before the Court of Appeal on April 12 [*456]

 

and May 30 and 31, 1927. The Attorney-General attended and at the request of the Court informed them that the appellant had been appointed a member of the staff of the German Embassy, under the style of Consular Secretary, and had been received in that capacity by the British Government, that his name had been submitted to the Foreign Office by the German Ambassador in the usual way, and that his position as a member of the Embassy was and had been since December, 1920, recognized without reservation or condition of any sort. He gave the Court certain further information as to the particulars of the appellant’s employment which it is not necessary to state in detail, and stated that he gave the information both on the instructions of the Foreign Office and on his own responsibility as Attorney-General.

 

On June 23, 1927, the Court of Appeal by a majority, Scrutton and Sargant L.JJ. (the Master of the Rolls dissenting), made an order affirming the order of Shearman J. This is an appeal from that order.

 

On November 25, 1927, the Attorney-General lodged a petition to this House praying leave to intervene in this appeal and to lodge a case and to be heard thereon. The prayer of this petition was granted by the Appeal Committee, reserving to the respondent Musmann the right to take on the hearing of the appeal such preliminary objection to the Attorney-General being heard as he might be advised.

 

The Attorney-General accordingly lodged a case and appeared before your Lordships, but the respondent objecting to his being heard, and the Attorney-General stating that the printed case contained all that he desired to say, he did not address any argument to your Lordships.

 

The real question, therefore, and it is an important one, is whether in such a case information given by the Attorney-General under the circumstances stated above as to the diplomatic status of a person claiming immunity from civil process is conclusive as to the fact of such status. If it is, then cross-examination on an affidavit with the object of displacing the effect of the information, would be irrelevant and useless and ought to be refused. [*457]

 

It must be borne in mind that all that is directly in issue is the fact of the appellant’s status. Whether, that fact being established, a defendant is entitled to the immunity he claims is a further question, which might have to be determined by the Court. In the present case, however, it does not appear that there is in issue any question of law or fact other than that of status.

 

It is now well settled that in certain matters connected with our relations with foreign States it is for the Court to take judicial notice of the facts relating thereto, and further that in all matters of which the Court takes judicial cognizance the Court may have recourse to any proper source of information, and there is no question that in such a case as the present the source of information actually applied to was the proper source.

 

The information so obtained is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance, and the Court is bound to act on such a statement: see the opinion of Lord Finlay in Duff Development Co. v. Kelantan Government.(1)

 

It is admitted that amongst the matters of which the Court is bound to take judicial cognizance are the status of an Ambassador himself and even that of a mere chargé d’affaires. In the case of Macartney v. Garbutt (2), it would seem, though it is not quite clear, that the Court acted on information obtained from a Government Department, in that case the Home Secretary, as to the status of the English Secretary of the Chinese Embassy. But once it is established, and I think it is, that the Court takes judicial cognizance of the status of any member of a Foreign Embassy, it is impossible on any principle to draw a distinction between one class of member and another and to say that the rule applies to the first and not to the second.

 

The Attorney-General states explicitly in para. 26 of his case that it is a necessary part of His Majesty’s prerogative in his conduct of foreign affairs and his relations with foreign

 

(1) [1924] A. C. 797, 813.

 

(2) 24 Q. B. D. 368. [*458]

 

States and their representatives to accord or refuse recognition to any person as a member of a foreign ambassador’s staff exercising diplomatic functions. The fact of recognition is of course peculiarly within the knowledge of the Department according it, and a statement by or on behalf of the Department that it has been accorded to any person must in my opinion come within the principles above referred to and be conclusive as to the status of that person.

 

It may be added that the Attorney-General states in his printed case that, for the purpose of obtaining recognition of the members of an ambassador’s staff exercising diplomatic functions, a list of such members is furnished from time to time to the Secretary of State by every ambassador. The list is not accepted as of course on behalf of His Majesty, and after investigation it not infrequently happens that recognition is withheld from a person whose name appears upon the furnished list, either because his diplomatic status is in doubt, or because the number of persons for whom status is claimed appears to the Secretary of State to be excessive.

 

I have not thought it necessary to discuss the many cases which were cited in this House. It is enough to say that some of them support and no one of them is opposed to the views I have above expressed.

 

I have also thought it unnecessary to say anything about the statute of Anne. It is well settled that the questions we have been discussing do not depend on the statute but are principles of common law having their origin in the idea of the comity of nations.

 

For the reasons above expressed I am of opinion that this appeal should succeed and the orders of the Court of Appeal and Shearman J. should be discharged, and a declaration made as proposed from the Woolsack. The appellant does not ask for costs and the order will therefore be without costs here or below.

 

Order of the Court of Appeal reversed, and declared that the appellant is entitled to diplomatic privilege. Each party to bear his own costs here and below. Cause remitted [*459] back to the King’s Bench Division to do therein as shall be just and consistent with this judgment.

 

Lords’ Journals, July 18, 1928.