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Home > Judgments > 2005 archive

Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 633

Appeal against diplomatic immunity of a sovereign in court proceedings

Case No: B4/2005/0072

Neutral Citation Number: [2005] EWCA Civ 633

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION PRINCIPAL REGISTRY.

DAME ELIZABETH BUTLER-SLOSS

FD04F00040

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 26 May 2005

Before:

LORD JUSTICE THORPE

LADY JUSTICE SMITH

and

LORD JUSTICE WALL

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Between :

Janan George Harb Appellant

- and -

His Majesty King Fahd Bin Abdul Aziz Respondent

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Official Shorthand Writers to the Court)

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Mr J Turner QC and Mr P Marshall (instructed by Messrs Burton Woolf & Turk) for the Appellant

Mr A Moylan QC & Mrs J Roberts (instructed by Messrs Howard Kennedy) for the Respondent

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Judgment

As Approved by the Court

Crown Copyright ©

LORD JUSTICE THORPE:

1. Mr James Turner QC for Mrs Harb advances two applications for permission. The first relates to the President's dismissal of his challenge to the legitimacy of the King's representation before the court. The challenge was at best flimsy. It was raised for the first time in Mr Turner's skeleton of the 29th September and it rested more on speculation than evidence. Suspicions were raised as to the King's capacity to litigate and as to the validity of the conduit from the throne to the embassy and on to Mr Moylan's instructing solicitors. The President quite rightly in my judgment regarded the challenge as specious and dismissed it. I would refuse the application for permission.

2. The application for permission to appeal her judgment of the 15th December upholding the King's claim to sovereign immunity seemed to me at first sight unpromising. The President delivered a careful judgment and applied a conventionally broad appreciation of the bounds of sovereign immunity. However I was moved by Mr Turner's oral argument. Insofar as the bounds of immunity are defined by the Diplomatic Privileges Act 1964 and the State Immunity Act 1978, the law is anything but clear. Although traditionally the sovereign's immunity from suit has been seen as absolute Mr Turner cited passages from Fox on the Law of State Immunity suggesting that there might be a movement to restrict immunity in relation to the private and domestic life of the sovereign. Mr Turner submits that this the first time a case has arisen that engages both the European Convention and the marital life of a ruler. He submits that it accordingly deserves scrutiny by the full court, particularly since it will almost inevitably ultimately be referred to the ECHR.

3. Whilst I am doubtful of Mr Turner's prospects of success in this court I consider that the points that he has made justify the grant of permission to enable such novel areas of the law in the field to be fully argued and decided.

LADY JUSTICE SMITH:

4. I agree.

LORD JUSTICE WALL:

5. I also agree.