High Court rules there is no immunity to personal injury claim arising from spyware and assault allegations

Summary

The High Court has considered the application of the exception to state immunity, contained in section 5 of the State Immunity Act 1978 (“SIA”), in a personal injury claim commenced by Mr Al-Masarir, a satirist and human rights activist living in the UK (the “claimant”), against the Kingdom of Saudi Arabia (the “defendant”).

The court’s judgment emphasises that section 5 is not an ambiguous provision and that any alleged international law obligations are incapable of overriding the plain meaning of the wording in section 5. After undertaking a detailed statutory construction exercise, the court held that the section 5 exception was applicable to the alleged facts of the present case (such facts having not been admitted by the defendant) and, therefore, concluded that the defendant is not immune in respect of the claim. The court’s judgment considered this preliminary issue only, and the claim will now proceed to a trial of the substantive issues.

The facts

The claimant alleges that the defendant, or its agents, infected his mobile phones with surveillance software, or spyware, known as Pegasus. The claimant also alleges that in August 2018 he had been physically assaulted at the direction and/or on the authority of the defendant and/or its agents.

The claimant was granted permission by the court to serve the claim form outside the jurisdiction, on a without notice basis. In response to the claim, the defendant applied for a declaration of immunity under the SIA and to set aside the order for service out. As is the usual position where a defendant state asserts immunity, to avoid submitting to the court’s jurisdiction, the defendant did not file a defence.

The legal issues before the court

The court’s judgment is helpfully structured by reference to the key legal issues that it was necessary to consider to determine the defendant’s application:

1. Did the act of installing Pegasus on the claimant’s iPhones and the assault fall outside the scope of section 5 as acts done in the exercise of the defendant’s sovereign authority, or does section 5 extend to any act of whatever type done by a foreign state in the UK which causes personal injury? (the “first issue”).
2. Does the claim fail to meet the requirements of section 5 because the alleged personal injury resulting from the spyware claims was not caused entirely by acts or omissions in the UK? (the “second issue”).
3. Does the claim fail to meet the requirements of section 5 because there is insufficient evidence of the defendant’s responsibility for the persons responsible for the alleged spyware?
4. Does the claim fail to meet the requirements of section 5 because there is insufficient evidence of the defendant’s responsibility for the persons responsible for the assault on the claimant?
5. Does the evidence relied upon by the claimant provide a coherent or realistic basis for him to advance his pleaded case such that the court should stop the proceedings in any event?

The court found in favour of the claimant in respect of each issue. This article focuses on the court’s analysis in respect of the first and second legal issues (as defined above) which provides useful insight into how section 5 of the SIA should be construed and applied in future cases.

It was common ground that the burden of proving that the exception applied rested with the claimant. Further, the judgment made clear that the question of whether the case fell within the relevant exception would be decided on the balance of probabilities as a preliminary issue.

The first issue

The general principle is that a state is immune from the jurisdiction of the English courts, except as provided in Part I of the SIA which, amongst other provisions, contains specific exceptions from immunity under the SIA. Part I of the SIA has been described by the English courts as “a complete code” and the courts have previously recognised that “[i]f the case does not fall within one of the exceptions to section 1, the state is immune” (Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, Lord Sumption, paragraph 39).

As noted above, the claimant relied on the exception to immunity contained in section 5 of the SIA which provides that “A State is not immune as respects proceedings in respect of- (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.”

The defendant submitted that the claim related to (alleged) acts which were inherently of a sovereign character (being allegations of spying and an attack on a political opponent) and, therefore, the claim fell outside the scope of section 5. The defendant invited the court to narrowly construe section 5 and to read the words “act or omission” in section 5 as excluding acts or omissions of an inherently sovereign character.

Mr Justice Julian Knowles provided historical context as to the development of state immunity and the move away from absolute immunity from suits in the English courts to the restrictive theory of immunity. This theory provides that immunity attaches to acts undertaken by a state in the exercise of its sovereign authority (acts done jure imperii), whilst immunity does not attach to those acts arising out of private law activities, including acts which might appropriately be undertaken in the course of commercial or trading activities (acts done jure gestionis).

Whilst noting that international law makes a distinction between the different types of activities undertaken by states, the court emphasised the well-established rule that international law obligations, which are relevant in resolving any ambiguity in the meaning of statutory wording, are not capable of overriding statutory wording which are unambiguous.

Reiterating the statements echoed in Al-Adsani v Government of Kuwait (No. 2) (1996) 107 ILR 536 and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270, the court in the present case held that “[s]ection 5 is not a complicated provision”. On its face, section 5 appears to be “concerned with all acts and omissions in the UK, of whatever type (ie, both those done jure imperii and those done jure gestionis) causing death, etc.”

The starting point is to apply the ordinary canons of statutory construction and, in particular, the court considered:

1. The need to apply the plain terms of a domestic statute. This canon of construction supported the construction of “act or omission” in section 5 as meaning “all acts or omissions”, without any restriction as to the nature of the act being read into that provision.
2. The principle that if Parliament has excluded certain words used in one statutory provision from another provision, such an exclusion will, generally, be treated as intentional. The court was persuaded that Parliament did not intend section 5 to only cover acts done jure gestionis by virtue of the fact that, in a number of provisions of the SIA, Parliament chose to expressly refer to sovereign authority in order to restrict an exception to the general immunity conferred by section 1(1).

The court concluded that the alleged acts did not fall outside the scope of section 5, irrespective of whether they were acts of a sovereign character.

The second issue

In respect of the second issue, the court analysed whether section 5 applies: (a) only where the entirety of the alleged acts or omissions are committed within the UK (reflecting the defendant’s contention) or, alternatively, (b) provided some substantial and effective act causing the damage has been committed within the UK (reflecting the claimant’s contention).

Again, the starting point for the court’s analysis was by reference to the plain terms of section 5. Mr Justice Knowles’ view was that the grammatical meaning of section 5 was clear and he placed significance on the use of the indefinite article in the exception which called for there to be “an act or omission in the United Kingdom” (our emphasis) in order for section 5 to apply.

Careful not to widen the scope of section 5 too widely, Mr Justice Knowles highlighted that there must be an act or omission in the UK which causes the requisite damage on a more than de minimis basis in order for the exception to be triggered. The court was persuaded that the fact that section 5 specifies only “an act” suggests that not every wrongful act has to occur in the UK in order for the exception to apply.

Comment

The judgment confirms that the plain and ordinary meaning of section 5 should be applied. The result of which is that the exception to immunity under section 5 should not be construed narrowly and it applies to both sovereign and private acts or omissions (allegedly) committed by a state. The judgment also makes clear that not every act or omission causative of the requisite damage must be undertaken within this jurisdiction in order for the exception to apply. It is therefore possible to apply the section 5 exception where there are multiple acts or omissions causative of the alleged damage, occurring in multiple jurisdictions, provided that “some substantial and effective act causing the damage occurred in the UK”.

Unless the defendant applies to appeal the judgment (and permission is granted), the case will now proceed to a trial of the substantive issues.

Ghanem Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB)

The authors would like to thank Ryan Kelly, Solicitor Apprentice at CMS, for his contribution to this article.