Richard Hermer QC, Ben Jaffey and Maria Roche (instructed by Leigh Day ) for the claimants; Rory Phillips QC, Sam Wordsworth QC, Karen Steyn, Peter Skelton and Julian Milford (instructed by Treasury Solicitor ) for the defendants.
The claimants, a Libyan national and a Moroccan national respectively, brought a damages claim and also sought a declaration of illegality arising from the alleged participation of seven defendants, including Jack Straw MP and the UK intelligence services, in their unlawful abduction, kidnapping and illicit removal across state borders to Libya. The claim alleged that the claimants were unlawfully detained and/or mistreated in four foreign states; China, Malaysia, Thailand and Libya, and on board an American registered aircraft and that their detention and mistreatment was carried out by agents of the states concerned. The court was asked to determine two preliminary issues: (i) whether the claims should be dismissed under CPR r 3.1(2)(l) on the ground that the English court lacked jurisdiction and/or the claims were non-justiciable; and (ii) in so far as the claim was not dismissed, what was the applicable law. The first issue raised questions as to the extent and application of the doctrines of state immunity and act of state.
At paras 62–75 the judge concluded, on the issue of state immunity, that the case was not one in which claims were made against foreign states, or agents and officials of those states so that they were effectively parties to the action. The question therefore was whether foreign states or their agents and officials had been impleaded by the claim and the judge concluded that they had not. What had to be affected for the doctrine of state immunity to constitute a preliminary bar to proceedings was something more tangible than a state’s reputation. Accordingly, state immunity was not an absolute bar to the claim. The judge dealt with the issue of applicable law before forming a final view on how the act of state doctrine impacted upon the claim at paras 119–144. He concluded that this was not a case in which it would be substantially more appropriate to apply English law. At para 146 the judge concluded that the act of state doctrine applied and the claims were non-justiciable. The claims called into question the activity of a foreign state on its own territory without reference to any judicial or manageable, or clear and identifiable standards by which such acts could be judged and related to the legal validity of those acts within the states’ own territory. Therefore the act of state doctrine operated as a bar to the claim and the claim was struck out save to the extent that it relied on allegations of negligence.
CPR r 3.1(2)(l)