1 Wednesday, 13 January 2016 2 (10. 00 am)
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| 13 say: well, I have arranged a series of indirect vehicles
14 that distance me from the beneficial interest in 15 question. It would be no answer for instance to the 16 doctor in Mr Justice Laws example in Propend to set up 17 an overseas company, which is then used as a trading 18 vehicle for which he provides his medical services in 19 the UK, and then say "I am not providing medical 20 services in the UK, it is the company. All my activity 21 in relation to the management of the company is abroad", 22 or something of that kind. You have got to look at 23 substance, not form. 24 The substance is an individual who has substantial 25 investments, primarily concentrated in the hotel and 121
1 leisure sector. It is not our case that he is 2 personally involved in the management of the 3 international hotel Park Lane. He is not going round 4 checking whether or not the sheets have been changed or 5 whether the accounts have been correctly kept. He is an 6 investor interested in and having the ownership of that 7 company as part of his family's wealth investment 8 portfolio, and that is more than enough to fall within 9 the impermissible terrain of Article 42, not least 10 because the minute you are supposedly having 11 a conversation with your host State about economic 12 affairs you have a conflict of interest. That is 13 particularly so if you are holding a strategic 14 investment like the investment in Barclays, particularly 15 after the financial crisis. Given the challenges of the 16 retail banking sector, capitalisation, bailouts, 17 et cetera, this is about as critical a type of 18 investment as it is conceivable to imagine in the UK 19 economy. 20 MR JUSTICE BLAKE: Whose job is it to assess whether there 21 are activities inconsistent with diplomatic status or 22 a conflict of interest or interference in the economic 23 affairs of the United Kingdom -- 24 MR DE LA MERE: That is not the -- 25 MR JUSTICE BLAKE: Let me just finish the question. It 122
1 might on one plane be said, well, the person who has 2 experience of investment in the UK might make 3 a qualified person to discuss these matters on an 4 intergovernmental basis. An open question. 5 MR DE LA MERE: A person who had those investments might 6 make a qualified person. But the prohibition in 7 Article 42 is very clear: 8 "Diplomatic agent shall not in the receiving State 9 practice for personal profit any professional or 10 commercial activity." 11 It couldn't be clearer. Of course, somebody who 12 used to be, let's say, the chairman or the managing 13 director of a major City bank who upon retirement 14 returns to France might be an excellent choice for 15 a diplomatic role connected to that, but not whilst they 16 are still the chairman of the bank or they own the 17 controlling shareholding in the company or a substantial 18 strategic stake in it, that is a completely different 19 issue. Of course, experience is relevant but there is 20 a prohibition, and you will remember the passage from 21 the 1958 ILC saying that these are mutually exclusive, 22 it is wholly incompatible to be doing this thing whilst 23 being a diplomat. 24 So there is no doubt that he is engaged in 25 substantial Article 42 activity in the UK. When he is 123
1 not engaged in that activity in the UK he is engaged in 2 it elsewhere. So he has effectively bought stakes in -- 3 or bought a substantial stake in Deutsche Bank. He has 4 bought El Corte Ingles, the only remaining Spanish 5 department store. It translates as the English cut, 6 which is maybe of financial interest in this case. 7 MR JUSTICE BLAKE: I know what they are, I have been there, 8 but thank you. Yes. 9 MR DE LA MERE: What we can see of his activity consists 10 either in making these investments in the UK and 11 elsewhere or in his travels on his Instagram account, 12 which we have documented with a close chronology, that 13 show when he is not pursuing his business interest, 14 concluding major deals, which presumably take 15 substantial periods of time to negotiate and substantial 16 amounts of attention, he is on holiday in Marrakesh and 17 the Maldives. 18 MR JUSTICE BLAKE: Instagram is something that he completes 19 or someone completes on his behalf? 20 MR DE LA MERE: Yes. 21 MR JUSTICE BLAKE: It's a social media -- 22 MR DE LA MERE: It is a social media platform where you 23 upload photographs of cool things you are up to. So it 24 is full pictures of him having a great time in 25 Marrakesh, hunting, seeing his buddies here, seeing his 124
1 buddies there. It is a living log of his personal life, 2 and none of it seems to in any way involve diplomacy 3 whatever. 4 And appendix 5 to Mr Barnett's witness statement, 5 page 196, is a close chronology of what we can say he 6 has been up to in this period where supposedly he 7 continues to remain in post in the UK and hasn't left 8 the UK having ceased his functions. 9 MR JUSTICE BLAKE: Well, people can go on holiday and not 10 cease their functions. People can go on a lot of 11 holidays, if you are lucky enough to be employed by an 12 employer who is generous to that, and somewhere before 13 you complete your submissions I meant to ask you the 14 question about your client, is he still employed by the 15 Ministry of Foreign Affairs, or is he being paid, and if 16 so doesn't that suggest a rather generous approach by 17 the Qatari authorities as to what they expect? 18 MR DE LA MERE: Exactly, I totally agree, he still has 19 a diplomatic passport. One of the points I was going to 20 make about, let's say, the laxity with which Qatari 21 approaches this issue, so my client has a diplomatic 22 passport in which he is an ambassador without title 23 supposedly outranking -- 24 MR JUSTICE BLAKE: Yes, diplomatic passports may tell -- 25 I mean that is just another part of the picture, but if 125
1 he is indeed receiving a salary and he doesn't appear to 2 have been doing anything particularly to promote the 3 interests of the Qatar State for some time, so far as 4 I can see, but maybe that is just me not knowing the 5 information -- 6 MR DE LA MERE: He is not in post, my Lord, that is the 7 point, he doesn't meet the function test either. He's 8 not -- 9 MR JUSTICE BLAKE: I am not suggesting that he has 10 diplomatic immunity at all. 11 MR DE LA MERE: No. 12 MR JUSTICE BLAKE: What I am simply saying is that maybe 13 this particular employer, if I can call the State the 14 employer for the purpose of the question, doesn't demand 15 too much by way of turning up at 9-5 job. 16 MR DE LA MERE: I take my Lord's point, they may have a very 17 light attitude to the sorts of duties one would expect 18 of a diplomat. But the problem they face is that our 19 evidence shows a pattern of activity that is in effect 20 fully occupied by business or holidays, and there's not 21 one jot of evidence -- and you've got my point, it would 22 be simplicity itself to provide -- there is not one jot 23 of evidence that he has done anything by way of 24 discharge of his Article 3 functions, still less and 25 away evident to or recorded by the subject of 126
1 a certificate by the Secretary of State. There is not 2 one meeting he has been to at the FCO or with the 3 Prime Minister's office or the Cabinet Office or 4 anything of that kind. When you look at the chronology 5 it is impossible to see -- 6 MR JUSTICE BLAKE: Which page are you taking me to? 7 MR DE LA MERE: The chronology is page 196, my Lord. 8 MR JUSTICE BLAKE: It is not your chronology, it is Mr -- 9 MR DE LA MERE: It is our chronology assembled from his 10 Instagram account. 11 MR JUSTICE BLAKE: If I look at your chronology that is 12 sufficient or do I need to go somewhere else? 13 MR DE LA MERE: No, this is, if you like, the Instagram 14 chronology. 15 MR JUSTICE BLAKE: Right. Where is that? 16 MR DE LA MERE: Bundle 2, tab 12, page 196 and following. 17 MR JUSTICE BLAKE: Yes, right. That chronology, I just 18 wanted to make sure that we are looking at the right 19 document. 20 MR DE LA MERE: And beyond the November date when he was 21 said to be in the jurisdiction, and we don't need to 22 take any argument with that, and the date in August 2015 23 when he was personally served with these proceedings, we 24 are not aware of any date he was within the 25 jurisdiction, other than, I emphasise other than, to 127
1 purchase an oil company and to conclude other business. 2 So there is no date that we can see that he is in the UK 3 where he is doing anything other than conducting 4 business, his own business. 5 MR JUSTICE BLAKE: 27 is London. 6 MR DE LA MERE: Sorry, my Lord. 7 MR JUSTICE BLAKE: 27, page 198. 8 MR DE LA MERE: For instance, entry 22, HBJ is in London 9 concluding a deal in which Constellation Hotels UK SA 10 bought 64 per cent of Coroin. 11 MR JUSTICE BLAKE: 27 at the bottom of that page. 12 MR DE LA MERE: Is that a diplomatic function? He says: 13 "Yesterday, Thursday, a general discussion outside 14 London on the events in the region and their impact on 15 the world economy." 16 MR JUSTICE BLAKE: He attends an event. 17 MR DE LA MERE: It certainly has not been asserted by -- 18 MR JUSTICE BLAKE: You just said he was only there to buy 19 a business, and I was pointing out some information 20 which goes beyond that. 21 MR DE LA MERE: I must admit I had not read it that way, 22 my Lord. I had read it more as a business forum than 23 anything else, but -- 24 MR JUSTICE BLAKE: I don't know, it is just there, but it 25 doesn't seem to be purchasing a business. Yes. 128
1 MR DE LA MERE: You can see the actual Instagram entries for 2 that event. Yes, at page 332 to 333. 3 "Yesterday, Thursday, a general discussion outside 4 London on the events of the region and their impact on 5 the world economy." 6 On a stage -- it looks like another Q and A session 7 along the lines of the June 2014 report, or 2015. June 8 2015. 9 Now, these matters were raised in our reply evidence 10 to the simple assertion that he was a minister with 11 responsibility for promoting economic relations. Let's 12 look at the reply evidence in relation to that topic. 13 Bundle 2, tab 14. 14 This is the statement from His Excellency the Qatari 15 ambassador, confirms his appointment: 16 "Minister councillor of embassy of the State of 17 Qatar. The defendant has been recognised as a member of 18 the Qatari diplomatic mission in London by the UK and is 19 recorded as much in the London diplomatic list." 20 We know recognition, acceptance, et cetera, is 21 legally potentially evidential but not probative, and 22 the list is not -- 23 MR JUSTICE BLAKE: Not conclusive. It is not constitutive. 24 MR DE LA MERE: I have been asked to re-read paragraph 2: 25 "I hereby confirm the defendant, His Excellency, 129
1 holds the position of minister councillor of the 2 State of Qatar." 3 That takes matters no further than paragraphs 18 and 4 19 that I showed you in the defendant's own witness 5 statement. 6 What is now at 4 is: 7 "The defendant's duties as minister councillor 8 involve him in developing yet further the very close 9 relationship that exists between the State of Qatar and 10 the United Kingdom with particular emphasis on and 11 responsibility for the promotion and development of 12 economic relations between the State of Qatar and the 13 United Kingdom in accordance with Article 3 of the 14 Vienna Convention on Diplomatic Relations." 15 Paragraph 5: 16 "I confirm that the defendant has conducted himself 17 in accordance with this diplomatic role and has thereby 18 fulfilled that said role since his appointment 19 as minister councillor and that he continues to do so." 20 That as a response to evidence that says effectively 21 you have done none of this and what is more evidence on 22 the part of my client in his own witness statement, this 23 whole arrangement is, he has been told, a sham, it is 24 skeletal in the extreme. I complained earlier about the 25 want of particularisation. What has he done? When has 130
1 he done it? Where has he done it? Has he left the 2 country since? Has he ceased? Is he still doing it? 3 None of that is explained. And in the face of clear 4 documentation, statements from his mouth, objective 5 evidence of business interests, objective evidence of 6 the fact that he is tied up elsewhere, is simply not 7 sufficient to meet the evidential burden that the 8 defendant bears, the burden of proof it bears, to show 9 that he has meaningful diplomatic functions he is 10 discharging. This is a case where like Mr Justice Vos 11 you should say the evidence is not credible, the case is 12 not made out. 13 Now, the only other evidence on this topic that one 14 gets is from the statement of Mr Khalid Al-Attiya the 15 current Foreign Minister of Qatar, tab 16. It is the 16 passage that Ms Carss-Frisk referred you to but didn't 17 ask you to turn up at 20 to 25, page 368 to 369. 18 The only passage I am going to look at unless asked 19 to read anything else that really provides any further 20 particularity is 22 and following: 21 "However, I can confirm that following the 22 defendant's retirement as Prime Minister [et cetera] 23 consideration was given by the State of Qatar as to how 24 the defendant could continue to promote the interests of 25 the State of Qatar in various arenas around the world. 131
1 Given the defendant's experience and his ties to and his 2 strong relationship with the UK, it was determined by 3 the Emir that the defendant could serve a valuable role 4 at the Qatari embassy in London in particular in order 5 to promote and develop economic relations between the 6 State of Qatar and the UK. It is for this reason alone 7 that a decision was taken to appoint the defendant as 8 a diplomatic agent of the State of Qatar. I fully 9 supported the decision as I believe the defendant's 10 experience and strong links would be economically 11 beneficial and that such a role would be in the 12 interests more generally of both the State of Qatar and 13 the UK. That remains my belief. The defendant's 14 appointment was a decision taken by the State in order 15 to further the State's interests and has been recognised 16 [they say] by the UK. 17 "The defendant's appointment had nothing whatever to 18 do with any concerns the defendant had regarding these 19 or any other legal proceedings. If the defendant had 20 such concerns they were not communicated to me nor to 21 the best of my knowledge were they of concern to anyone 22 else involved in the decision to appoint him minister 23 councillor." 24 That is the totality of the evidence on him 25 performing functions, and, in my submission, it doesn't 132
1 begin to move beyond assertion. It is entirely 2 equivalent in ilk to the type of evidence that the 3 Saudi Arabia ambassador put before the court in Apex, 4 and it raises a number of questions. 5 Question 1, how do we know that the State of Qatar 6 has even correctly applied the key concepts in the 7 Vienna Convention? This may be a statement prompted by 8 and motivated the very error we say infects their 9 submissions to this court, which is that appointment and 10 arrival is sufficient and there is no need to enquire 11 into the nature of the functions because such is to 12 trespass upon their Article 7 freedom of appointment. 13 Maybe that is why they have not given any detail, but if 14 it is, the evidence is worthless. 15 The second question it raises is, how is it the case 16 that it is impossible to give even the highest level of 17 gist as to the types of meetings and the people with 18 whom there has been liaison? 19 My Lord has the point and I will make it one last 20 time and then promise never to make it again. An 21 individual of this rank, of this prestige, of this 22 power, can only be moving in the very highest circles of 23 government in the UK in liaison. That is what he is 24 there for, he is a power broker. There is no such 25 evidence. 133
1 Now, I should mention, of course, that this evidence 2 from the Qatari Foreign Minister was a response to my 3 client's evidence, which again I don't think you have 4 seen, to the effect that he was told in August 2015 that 5 this whole appointment was a sham designed to confer 6 immunity. And can I just briefly ask you to look at 7 that evidence. It is at the end of my client's 8 statement at page 169 and 170 in bundle 2. Tab 11 of 9 bundle 2. 10 Having recited in (i) to (iii) the types of points 11 I have made by reference to Mr Barnett's statement he 12 goes on to say in (iv): 13 "The diplomatic status afforded him by the Qatari 14 government is intended to provide him and his family, 15 who also benefit from the privileges and immunities the 16 defendant does, with privileges and immunities they are 17 not entitled to under diplomatic law merely to shield 18 them from the jurisdiction of the British courts. As 19 much has been admitted to me since by Khalid Al-Attiya 20 in a private conversation when he came to see me in the 21 UK in 2015 in the Kensington hotel and several 22 individuals were present." 23 Mr Khalid Al-Attiya vociferously denies that such 24 a conversation took place in his statement, and it is 25 essentially for the purposes of that issue, which 134
1 I doubt my Lord is going to think determinative of the 2 issue, that the further witness statements we have 3 produced have been put before the court and they 4 effectively disprove the account given by 5 Mr Khalid Al-Attiya that the first he came to know of 6 this whole controversy was effectively in August 2015 7 was the first time that he was embroiled in any issues 8 about the defendants and the claimant's poor relations, 9 the feud et cetera. And they do so by reference to 10 a statement from Rodha Al-Attiya, my client's daughter, 11 from his son Ahmad Al-Attiya and Philip Gordon. 12 MR JUSTICE BLAKE: Those are before the court, are they? 13 MR DE LA MERE: They are before the court in a bundle of 14 effectively rejoinder evidence. We have sought the 15 permission of the court to adduce. They are outside the 16 directions contemplated by Mr Justice Foskett. 17 MR JUSTICE BLAKE: Do you need permission to adduce them -- 18 MR DE LA MERE: Yes, and tab 1 of the bundle is an 19 application for permission to adduce the evidence. And 20 no doubt -- 21 MR JUSTICE BLAKE: Do I look at it de bene esse? Can we 22 deal with it in your reply, or what? 23 MS CARSS-FRISK: My Lord, we certainly don't object to you 24 looking at it de bene esse. We would say it is simply 25 too late or was late to come up with it when it was 135
1 produced, given the very detailed directions that were 2 given and detailed consideration back in October to how 3 things should work out procedurally. That is what we 4 say, my Lord. 5 MR DE LA MERE: I am not going to go through the evidence in 6 detail. 7 MR JUSTICE BLAKE: No, I am aware of it and received it, and 8 I wasn't sure of its status. 9 MR DE LA MERE: The high points of evidence, in my 10 submission, are this. They show a chronology in which 11 Khalid Al-Attiya is effectively acting as a go-between 12 between my client and the Emir, and has recurrently done 13 so over a prolonged period in which he was well aware, 14 as many are, of the issues arising. The meeting in 15 August 2015 was an attempt effectively at settlement. 16 The idea that he would parachute into that meeting 17 having no knowledge whatever about everything that had 18 gone before, and the issues about the claims and 19 immunity, is, in my submission, deeply implausible. But 20 you are not going to be able to resolve that issue 21 today, that is the kind of thing for which witnesses 22 will have to be called, et cetera, in due course. 23 That is our fundamental concern. Our fundamental 24 concern is that this is a sham. 25 MR JUSTICE BLAKE: Yes. I think I have got that. 136
1 MR DE LA MERE: I had not used the word as yet. 2 MR JUSTICE BLAKE: No, I think I did quite early on with 3 Ms Carss-Frisk. 4 MR DE LA MERE: Indeed. Having reviewed the evidence you 5 see the basis upon which I make that serious allegation, 6 but I make it with ample evidence in support. One can 7 well understand why a powerful man might want such 8 immunity, and what the temptations are -- and one can 9 well understand why if he continues to have practical 10 power in Qatar it may be thought wise to give him such 11 immunity. 12 So those are our submissions on diplomatic immunity. 13 MR JUSTICE BLAKE: Yes. 14 MR DE LA MERE: Let me now turn to State immunity where 15 I think the issues are very much narrower, particularly 16 the issues of law. Would my Lord forgive me while 17 I rearrange my bundles. 18 MR JUSTICE BLAKE: Please do and I will do the same. 19 (Pause). 20 MR DE LA MERE: In relation to State immunity there are, in 21 my submission, just two cases of relevance, Jones and 22 Belhaj, both in bundle 2. 23 MR JUSTICE BLAKE: Yes. 24 MR DE LA MERE: Let me start with the cases and let me start 25 with the areas of agreement. We are agreed that 137
1 a servant or agent of a foreign State acting as such is 2 entitled to the same immunity as the State itself. The 3 keywords are "acts as such". 4 The basis of the judgments in Jones is the need for 5 a symmetry between State responsibility and the scope of 6 operation of the immunity, subject only to the narrow 7 exception in favour of criminal immunity identified in 8 the Pinochet case and identified as a necessary but 9 inevitable consequence of the creation of an 10 international crime of universal jurisdiction predicated 11 on it being a State act. 12 MR JUSTICE BLAKE: Yes. 13 MR DE LA MERE: So that is the only exception from the 14 symmetry. 15 In Jones the individuals who were sued were all 16 individuals, servants or agents, who were directly 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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