1 Wednesday, 13 January 2016 2 (10. 00 am)
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| 8 the journalist analogy I gave or a different matter.
9 And we say the most problematic circumstances when 10 someone wears two hats. And I go back to the point that 11 I made in opening, this is not an ordinary State, from 12 our perspective. This is a State where public and 13 private doings and undertakings are completely 14 intermingled that presents problem that simply wasn't in 15 contemplation in Jones and hasn't been addressed in 16 Belhaj, and for that reason we say we should be allowed 17 to plead out that case and the case will be pleaded in 18 the reverse. 19 And if they wish to then say categorically by way of 20 plea if these things happened they necessarily happened 21 wearing the hat of public office and are willing to take 22 the consequent consequences of State immunity for so 23 doing, then so be it. 24 Unless there is anything else I can assist my Lord 25 with those are our submissions. 155
1 MR JUSTICE BLAKE: Thank you very much. Thank you. Ten 2 minutes. 25 past. 3 (3.15 pm) 4 (A short break) 5 (3.25 pm) 6 Reply submissions by MS CARSS-FRISK 7 MS CARSS-FRISK: My Lord, where to start with such a rich 8 and varied menu? It probably makes sense to start with 9 State immunity actually. 10 Where we have ended up on that, as I understand 11 matters, is that my learned friend entirely and rightly 12 accepts that the claimant's pleaded case does indeed 13 implead the State of Qatar. It is a case in which it is 14 asserted that the defendant's abused power, abused his 15 office. That, as I understand my learned friend's 16 submissions, means effectively that it is accepted that 17 as matters stand State immunity does arise. 18 The sophisticated argument now being put forward, 19 for the first time, not even foreshadowed in the 20 skeleton argument for the claimant, is that here is 21 a defendant wearing two hats, one on top of the other, 22 but somehow they are blended hats or it is a blended 23 situation. What that means, as I understand it, is that 24 it is being said it is a bit of one and the other, a bit 25 of acting in his private capacity and a bit of acting 156
1 under cover of his office. 2 But there is a fundamental problem with that even if 3 you were to agree that there could be an amendment, 4 which, of course, we very strongly resist, but even 5 before we get to that there is a fundamental problem 6 with the two hats or blended idea, which is that it is 7 implicit in that that the claimant does allege that the 8 defendant acted under colour of his office. It may be 9 that that is only part of it, but it clearly is a part, 10 even on that analysis. 11 So the two hats' idea or the blended idea simply 12 doesn't get him away from State immunity, even if he 13 were to be allowed to replead because it still involves 14 a claim then in which the defendant is said to have worn 15 at least at times, or maybe at all times, the official 16 hat. In fact, if one says that someone wears two hats, 17 well, that means that you wear them both. 18 So on that basis the court would still have to look 19 at the acts of the defendant as a State official of 20 Qatar acting under colour of his office. 21 MR JUSTICE BLAKE: Yes, well, I understand where we have got 22 to, and I understand the difficulties in engaging with 23 a submission on the basis that everything could change. 24 But let's just stick with it for a few moments longer, 25 please. If we have two hats -- Mr De La Mere will no 157
1 doubt jump up and tell me if I am misrepresenting what 2 he has just said to me -- I rather got the impression 3 that he was conceding that he could only plead wearing 4 one hat and that the claimant would throw the other hat 5 away and, therefore, it is not a blend of the two hats 6 into a mixtured, a composite hat, but he is recognising 7 that he can only plead in a private capacity, which he 8 has not actually done, as far as I can see, up until 9 today. 10 MS CARSS-FRISK: He accepts, as I understand it, quite 11 rightly that he certainly has not pleaded that the 12 defendant acted at any time in a private capacity, and 13 for all the reasons we discussed earlier the pleading is 14 completely to the contrary. My understanding certainly 15 was that he was saying, well, it is a blended situation 16 wearing two hats. 17 MR JUSTICE BLAKE: Did he use that phrase? 18 MS CARSS-FRISK: He did use the phrase "blend" -- 19 MR JUSTICE BLAKE: I haven't actually used any of this live 20 link at all because I'm keeping my own note, but if 21 anyone -- 22 MS CARSS-FRISK: He certainly used the word "blend". 23 MR DE LA MERE: I don't believe I did say it, and if I did 24 I withdraw it -- 25 MR JUSTICE BLAKE: I didn't write it down but that is not 158
1 necessarily evidence -- 2 MR DE LA MERE: The point I was seeking to make is that if 3 there are two hats and an act is done wearing one hat, 4 which has a material influence, that is enough. To give 5 an example, the example I gave a bribe, if a bribe is 6 paid -- 7 MR JUSTICE BLAKE: Okay. I think I am right in thinking 8 that the submission that you are now engaged in replying 9 to is not there are two hats which are blended into one 10 but the two hats in fact can be distinguished, one hat 11 equals State immunity, end of story, other may not, but 12 the other is a private official which leads him into act 13 of State doctrine with the Human Rights Act. 14 MS CARSS-FRISK: Then I'm grateful for that clarification. 15 But he was certainly suggesting that there would need to 16 be not just a repleading, which would then allege some 17 or all of the acts were in a purely private capacity but 18 that there would need to be a trial looking into those 19 matters. That is what he said. And a trial would, of 20 course, be completely incompatible with the whole notion 21 of State immunity and would inevitably then have to 22 delve deeply into these very points about State acts, 23 State officials, exercising public powers, certainly 24 purporting to do so, that we are concerned with. 25 It was in that sense that I understood him to be 159
1 saying, well, the pleading would be about two hats and 2 then there would need to be a trial looking at exactly 3 what was one hat and what was another. But if I have 4 misunderstood that, fine, leave that to one side. 5 It is simply too late on any view for the claimant 6 to say at this stage, literally 15 minutes, allowing for 7 the break before the reply, for the first time, that, 8 oh, well, actually, yes, if we are going to avoid State 9 immunity -- that is the effect of what was said -- we 10 would have to completely replead. That is not an 11 acceptable way. 12 We were entitled, are entitled, to make this 13 jurisdiction challenge on the basis of the case as put 14 against us. That is what we have done. We are 15 entitled, with respect, to a ruling from this court on 16 that basis. It is extraordinary for my learned friend 17 to suggest that there will be this sea change in terms 18 of what is alleged, not even having flagged it up in his 19 skeleton argument, not even having produced a draft 20 pleading, and certainly, and importantly, not having 21 given us any chance, let alone a fair chance, to meet 22 that particular case. This really is a situation where 23 it would be quite contrary to the overriding objective 24 for the court to run with that suggestion. 25 This claimant has had every chance for many months, 160
1 as this application has been on foot, to sort things out 2 and to come at this stage and say, ah, well, we will 3 just have to replead, to completely change tack cannot 4 be accepted, my Lord. 5 MR JUSTICE BLAKE: Yes. 6 MS CARSS-FRISK: I hope that that does away with the State 7 immunity argument. 8 I should perhaps just say this, that looking at the 9 evidence as to private capacity, the idea that my client 10 had acted in some way in a private capacity, it is sheer 11 assertion and speculation, which in any event if one had 12 to face an application to amend, one would say it was 13 the sort of situation where it shouldn't be allowed 14 because there is just simply nothing in that case. But 15 I hope I have persuaded your Lordship that I don't need 16 to go that far because I am not faced with any properly 17 made application to amend at this point. 18 On that basis our claim to State immunity should 19 succeed. 20 MR JUSTICE BLAKE: Yes. 21 MS CARSS-FRISK: Well, my Lord, turning then to diplomatic 22 immunity and what appears to be the absolutely key 23 submission by the claimant that the court should apply 24 a functional test which looks at whether someone is 25 a diplomatic agent within Article 31 by reference to 161
1 what they are actually doing by way of performing their 2 diplomatic functions. 3 Well, our answer to that is, well, there are 4 several, but the starting point is that there is no 5 basis at all for that analysis in the Vienna Convention, 6 nor any authority that supports the analysis that in 7 order to say whether someone is a diplomatic agent you 8 go beyond the question of whether they have been so 9 appointed, and your Lordship, of course, will have well 10 in mind our submissions made yesterday about the freedom 11 to appoint for the sending State under Article 7 and how 12 once someone is appointed they would be a diplomatic 13 agent, but subject -- and this is, of course, crucial -- 14 to the controlling mechanism which one gets in Article 9 15 of the Convention where the receiving State is entitled, 16 even after someone has been appointed as a diplomatic 17 agent -- and indeed it will be after that, at least most 18 commonly -- to say, no, this person is not acceptable, 19 which can involve declaring them persona non grata. 20 MR JUSTICE BLAKE: Quite. I do have well in mind those 21 submissions and obviously we have had an exchange with 22 both of you about them. 23 MS CARSS-FRISK: Yes. 24 MR JUSTICE BLAKE: I will have to reflect upon it. But you 25 no doubt understand, as I presently understand, the case 162
1 that has been developed, which you are now responding 2 to, is yes you can appoint any one you like, you the 3 State can appoint anyone you like to the post -- 4 MS CARSS-FRISK: Yes. 5 MR JUSTICE BLAKE: -- but you have got to appoint to the 6 post as opposed to a function which is not diplomatic, 7 and that is the point. What have you appointed to as 8 opposed to who have you appointed. 9 MS CARSS-FRISK: If that is the argument -- I understood it 10 was actually looking at or suggesting that it is not so 11 much about appointment at all, but actually about what 12 is being done by the putative agent after appointment, 13 but if it is about what was this person appointed to, 14 then the answer is very simple, which is the diplomatic 15 functions which the defendant was appointed to carry out 16 to do with fostering relation between Qatar and the UK, 17 and in particular in the economic sphere, those are 18 functions plainly within those listed in Article 3 of 19 the Vienna Convention that sets out a non-exhaustive 20 list of functions of a diplomatic nature. 21 MR JUSTICE BLAKE: I accept that Article 3(e) enables one 22 function of the diplomatic agent are those issues about 23 economic development and such like. But the argument, 24 as I understand that I am going to have to adjudicate 25 upon, with the benefit of your submissions in reply, is 163
1 that you distinguish between diplomatic functions about 2 economic co-operation between the States and running 3 your own business, which is an Article 42 issue, and 4 there is no evidence that he was appointed to and has 5 been doing something that is in the former rather than 6 the latter. 7 MS CARSS-FRISK: I think there are two issues there. One 8 is -- or two possible ways of then looking at it, if the 9 claimant's argument is he has not been appointed to 10 carry out diplomatic functions, then that argument 11 completely fails because your Lordship has the very, 12 very clear evidence from relevant officials of Qatar, 13 ie the ambassador and the Foreign Minister, to say what 14 he was appointed to do, which it is common ground falls 15 within Article 3 of the Convention as diplomatic 16 functions, and you have, of course, importantly the 17 certificate as well as the letters from the Foreign 18 Office to the effect that they recognise that he was 19 appointed as a diplomatic agent obviously to carry out 20 diplomatic functions. 21 Now, there is then a separate point, which is the 22 point that I understood my learned friend to be 23 pursuing, which is that actually you have to look at 24 whether someone is then in practice performing 25 diplomatic functions. So that it is not just a question 164
1 of whether they have been appointed to do that, but you 2 have to look at whether in fact what they are doing is 3 commensurate with them being a diplomatic agent. 4 I am saying that approach, that functional test, is 5 inconsistent with everything I put forward yesterday and 6 maintain in relation to the scheme of the 7 Vienna Convention and indeed importantly would be 8 inconsistent with the well-established principle based 9 on Her Majesty's Government being entitled to exercise 10 the Royal Prerogative as to who is recognised as 11 a diplomatic agent. Because on Mr De La Mere's 12 submission, it would then be for the court now to look 13 behind what the government has said, what the Foreign 14 Office has said, and to decide whether in fact the 15 defendant is carrying out or has been carrying out 16 functions of a diplomatic nature in order to decide 17 whether he truly can be described as a diplomatic agent. 18 That is quite inconsistent with the idea, 19 well-established, longstanding idea, that it is for 20 Her Majesty's Government to decide whether to recognise 21 someone has being in that capacity or not. 22 MR JUSTICE BLAKE: I thought the learning, proceeding from 23 the FCO and its learned commentators, who have 24 particular experience on these issues, was absent the 25 case of a special mission, carve that off and put that 165
1 in another drawer, or the head of a mission, similarly, 2 or a head of State, neither of which, fortunately, we 3 are grappling with in this case, the government doesn't 4 do anything by way of recognition, it records that they 5 have been notified of the appointment of a person and 6 they expect as a matter of diplomatic comity to be 7 informed when that person ceases to perform those 8 functions. That is something within their knowledge 9 because they are informed and they tell the court about 10 it when the court wants to do it. But at the moment, as 11 I say, I am simply trying to navigate a submission, 12 putting it back to you so I get the best assistance from 13 you on this question -- 14 MS CARSS-FRISK: Absolutely. 15 MR JUSTICE BLAKE: -- that notification and "recognition" 16 are not constitutive of whether someone is a diplomatic 17 agent. Now, it may be evidence from which the inference 18 is drawn that they are a diplomatic agent, and in the 19 vast majority of cases it is said that may be all that 20 you would need to do. But if you have some positive 21 evidence, it is said that exists in this case, and 22 I make no comment upon whether it does or does not, and 23 you have limited factual information certified by the 24 Foreign Office, then there is still a role for the court 25 to perform which doesn't conflict with the certification 166
1 of fact by the Foreign Office. Then we come down to the 2 problem of what does the words after the comma mean, is 3 that a certification of fact or law, et cetera. 4 MS CARSS-FRISK: Where the Royal Prerogative comes into it 5 is that it falls within that prerogative for 6 Her Majesty's Government to recognise that someone is 7 a diplomatic agent. Now, that is a different matter 8 from saying that it is a situation where under the 9 Vienna Convention the consent of Her Majesty's 10 Government is required before someone can be 11 a diplomatic agent. 12 So, as everyone agrees, where, for example, someone 13 is sent on a special mission, as in the Khurts Bat's 14 case, or indeed Tega, then this will need to be consent 15 by the receiving State in order for them to be 16 a diplomatic agent. Everyone agrees that does not apply 17 in a case such as this, where someone is appointed to be 18 a diplomatic agent to a permanent mission in the 19 ordinary way. However, that does not mean that the 20 government's role of recognising whether they are 21 a diplomatic agent has fallen away. They are still able 22 to express a view as to whether they recognise that 23 someone has been appointed to that role and is 24 a diplomatic agent. 25 Now, that is not to say that that is a pre-condition 167
1 in the sense of consent to the person being a diplomatic 2 agent, but it is saying that where the government has 3 made its attitude clear, where it has said as far as we 4 are concerned this person is a diplomatic agent, which 5 they have done in this case through the section 4 6 certificate, then that fact is there and conclusive, and 7 it then, with great respect, behoves the court to follow 8 that approach. This is where the one voice principle 9 comes in, because it would be quite wrong in principle 10 for the court then to take a different view where the 11 government has certified the fact that they consider 12 that someone is a diplomatic agent. 13 As I say, that doesn't depend under the 14 Vienna Convention on them giving consent in this kind of 15 factual scenario, but if they are prepared to say: so 16 far as we are concerned, this person has been appointed 17 and is a diplomatic agent -- 18 MR JUSTICE BLAKE: What I could do with your help on, let's 19 use that phrase, if they are prepared to say that as far 20 as they are concerned this person they recognise as 21 a diplomatic agent, what are they recognising? What is 22 the -- 23 MS CARSS-FRISK: That he has been appointed, my Lord. That 24 he has been appointed to carry out diplomatic functions. 25 MR JUSTICE BLAKE: But how do they know what he has been 168
1 appointed to carry out? 2 MS CARSS-FRISK: Well, prima facie, my Lord, if he is 3 notified as a diplomatic agent, then -- 4 MR JUSTICE BLAKE: It is the self, it is the terms of the 5 notification by the sending State that the government 6 doesn't challenge, and it is that absence of 7 challenge -- 8 MS CARSS-FRISK: The government may feel able to act on that 9 basis because the leap between notification that someone 10 has been appointed a diplomatic agent and then having in 11 fact been so appointed is not a great leap but in this 12 case -- 13 MR JUSTICE BLAKE: It could be if somebody in good, bad or 14 indifferent faith, thinks that anyone who I say is 15 a diplomat is a diplomat, I say you are a diplomat, the 16 other person says "I note that you say that you are 17 a diplomat", and there we go on, but then if it turns 18 out that actually there may be something more -- 19 MS CARSS-FRISK: But there may be varying levels of 20 information, if you like, available to the FCO. Now, in 21 this case we know that the claimant did his very worst, 22 as it were, in terms of putting everything, including 23 the kitchen sink forward, to the FCO. They had his case 24 put at its highest and yet the FCO was prepared to issue 25 the certificate that it did issue, and so we say even if 169
1 any of those facts were relevant beyond, which is our 2 case that what matters is that someone has been 3 appointed to carry out diplomatic function, even if all 4 this stuff about what he has in fact been doing or not 5 been doing were relevant, they were considered by the 6 Foreign Office, the Foreign Office had those facts 7 before it, and yet -- 8 MR JUSTICE BLAKE: Contentions perhaps, not facts. 9 MS CARSS-FRISK: It's certainly contentious, certainly 10 contentious, but they had the claimant's case on that 11 and they were still prepared to issue that certificate, 12 which clearly, in our submission, and I can come back to 13 that in due course, establishes the fact of appointment 14 and certainly their view, their attitude that they 15 recognised the appointment. Once you have that, once 16 you have the Foreign Office saying "We recognise this 17 person is a diplomatic agent", the one voice principle 18 certainly kicks in. 19 MR JUSTICE BLAKE: Yes, well, it has potential to kick in 20 and if it does kick in I know what the consequences are. 21 MS CARSS-FRISK: Yes. 22 MR JUSTICE BLAKE: I can certainly see, as I think we 23 probably recognised at an early point in the exchanges, 24 that there has been no attempt to declare someone 25 persona non grata on the basis that he is not performing 170
1 diplomatic functions and, therefore, is superfluous to 2 a diplomatic list and should go, and there may be 3 evidential inferences that you can rely upon on, and so 4 I have got that point, and that is certainly 5 a Her Majesty's prerogative exercise for the Foreign 6 Secretary and nothing whatsoever to do with the court, 7 and the court will look at that. It is just at the 8 moment I am just seeing what I can obtain from you by 9 way of assistance in response to the submission that 10 there is no recognition involved by the FCO and, 11 therefore, what the facts in the certificate are the 12 facts in the certificate, and what we have got is what 13 we have got, but there is nothing there about 14 recognition or nonrecognition. 15 MS CARSS-FRISK: Well, there is in the certificate clearly 16 a statement to the effect that he has enjoyed diplomatic 17 immunities from the date of arrival. 18 MR JUSTICE BLAKE: Quite. Well, I mean, this is where we 19 started off with probably about 15 minutes into your 20 submission yesterday afternoon. Let's go back to it. 21 MS CARSS-FRISK: Yes. 22 It was suggested by my learned friend that the sort Directory: wp-content -> uploads -> 2016 2016 -> 2017 afoCo Landmark Scholarship Program 2016 -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings 2016 -> Step student Scholarships for Year 10-13 2016 -> The united church of canada 2016 -> Idan raichel biography – May 2016 Brief Producer, keyboardist, Lyricist, composer and Performer Idan Raichel 2016 -> An introduction to centre’s interventions expanding access to justice 2016 -> Sanchar Shakti 2016 -> Unit analysis should help here. We want number of bananas 2016 -> The Autobiography of Elder Joseph Bates 2016 -> The Great Heat and the Rhode Island Deep Water Bay Scallop (Argopecten irradians) Fishery 1875-1905 Download 1.31 Mb. Share with your friends:
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