Fayed v Al-Tajir
 QB 712
Court of Appeal
Kerr, Croom-Johnson and Mustill L.JJ.
Conflict of Laws - Sovereign immunity - Diplomatic immunity - Embassy internal memorandum - Memorandum severely critical of plaintiff - Action by plaintiff for damages for libel - Memorandum disclosed on discovery - Whether memorandum protected by absolute privilege
The defendant was a former ambassador of a friendly foreign state. At the material time he was not an accredited diplomat but he was regarded by the embassy staff and by his government as having authority. He was subsequently re-appointed ambassador. His name was subscribed to an internal embassy memorandum, which was later admitted to have been sent on his orders, although not written or sent by himself, addressed to the counsellor at the embassy. The memorandum pointed out the counsellor's misconduct in granting the plaintiff embassy concessions and informed him of his transfer to another post. It was severely critical of the plaintiff. The plaintiff brought an action claiming damages for libel allegedly contained in the memorandum, alleging publication to, inter alios, the charge d'affaires at the embassy and to the country's foreign affairs ministry. The defendant accepted responsibility for the memorandum and pleaded diplomatic immunity, but purported to waive the immunity for the action. He also pleaded that the memorandum was the subject of absolute privilege. The judge held that there had been no publication outside the embassy accepted the plea of absolute privilege and dismissed the action.
On appeal by the plaintiff: -
Held, dismissing the appeal, that where an action was based on the contents and publication of an embassy document the court faced conflicting aspects of public policy, namely, the need to confine to a minimum curtailment of a litigant's right to seek redress for a wrong committed in England and the need to confine to a minimum meddling by the court in the affairs of a foreign sovereign; that normally the latter aspect should prevail unless the circumstances of a particular case warranted its disregard (post, pp. 730F-H, 731A-B); that the concept of international comity and inviolability of diplomatic documents led to the conclusion that the dispute was not justiciable in English courts; and that, accordingly, the judge had rightly held that the memorandum was protected by absolute privilege (post, PP. 732G-H, 733E-F, 735B-E).
Chatterton v Secretary of State for India in Council  2 QB 189, C.A. and Rose v The King  3 D.L.R. 618 considered.
Per Kerr L.J. The waiver of the immunity from suit of the defendant did not destroy the claim for immunity of the document, since that was justified by the character of the document, irrespective of the defendant's submission to the court's jurisdiction against him personally (post, p. 737B-C).
Decision of Stocker L.J., sitting as an additional judge of the Queen's Bench Division, affirmed.
APPEAL from Stocker L.J., sitting as an additional judge of the Queen's Bench Division.
On 3 May 1983 the plaintiff, Mr Muhammed Fayed, issued a writ seeking damages for libel contained in a memorandum dated 7 September 1982 which was published, or caused to be published by the defendant, Mr Mohammed Mahdi al-Tajir, to Mr Nabil Hijazi who was counsellor at the Embassy of the United Arab Emirates. The defendant was the head of the embassy at the time pending his re-appointment as the ambassador. Copies of the memorandum were sent to the chargé d'affaires and the foreign affairs ministry of the Emirates. The defendant, in his defence, pleaded that he had diplomatic status but stated that he waived it for the present proceedings. He also pleaded that the memorandum, being an internal document of the embassy of his country, was privileged. However, the memorandum was disclosed on discovery in the proceedings.
Stocker L.J. dismissed the action holding that the memorandum was protected by absolute privilege.
By a notice of appeal dated 14 March 1986 the plaintiff appealed on the grounds, inter alia, that (1) the judge erred in law in holding that the communication by the defendant of the words complained of to Mr Nabil Hijazi was protected by absolute privilege, the sole reason why he did not give judgment for the plaintiff; (2) the judge erred in apparently holding, for the first time, that the class of absolute privilege applied by the Court of Appeal in Chatterton v Secretary of State for India in Council  2 QB 189, 190, 192-193, to "officers of state" and to communications "relating to matters of state," in the context of the British Crown, would extend to cover communications between the diplomats or other servants of a foreign state, that being the only class of absolute privilege relied upon by the defendant; (3) in particular, the judge erred in law in apparently treating the memorandum complained of in that action as a communication "relating to matters of state" and the individuals concerned, the defendant and Mr Nabil Hijazi, as being "officers of state" within the Chatterton principle; (4) whether or not absolute privilege should be so extended was a question best left to Parliament, in the absence of any case law directly in point, particularly in view of the foreign policy implications which would in effect require to be assessed de novo; (5) in any event, even if, contrary to the plaintiff's submissions, communications passing between the ambassador of a friendly foreign state and one of the senior embassy officials ordinarily did require to be protected by absolute privilege, the judge erred on the facts before him in upholding the defence because at the time the memorandum was published the defendant, it was conceded, was neither the ambassador nor accredited to the Court of St. James in any other capacity; (6) the appropriate test to apply in deciding whether to extend the Chatterton principle was whether there were "overwhelmingly strong reasons of public policy" which rendered it necessary so to do: Gibbons v Duffell (1932) 47 C.L.R. 520, 534, and thus the judge erred in holding that there was such a necessity for the hitherto very limited and special protection of absolute privilege in the circumstances confronting him; (7) in particular, no such necessity could be demonstrated in circumstances where (a) qualified privilege would ordinarily attach to official embassy documents and (b) the authors of such documents would be protected by diplomatic immunity from suit arising under the Vienna Convention, as embodied in the Diplomatic Privileges Act 1964, which the instant case the sovereign state concerned had chosen to waive; (8) the judge further failed to take any or any sufficient account of the following considerations: (a) the principle described by Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson  1 QB 431, 451, to the effect that "[absolute privilege] seems rather to attach to the person or character of the person writing or speaking the defamatory matter, whereas [qualified privilege] to the occasion when the defamatory matter is written or spoken," (b) the doubts expressed by the Court of Appeal in Szalatnay-Stacho v Fink  KB 1 and Richard v Naum  1 QB 620 as to whether the absolute privilege enjoyed by communications relating to matters of state would extend to documents published by the officials of foreign governments, (c) the unchallenged evidence of Mr Nabil Hijazi that it would not have been within the scope of the defendant's authority, even if he had been ambassador at the material time, to order Mr Hijazi's transfer back to the United Arab Emirates, which purported to be the object of the memorandum complained of; and (9) the judge misdirected himself as to the effect of the passages cited from the speech of Lord Wilberforce in Buttes Gas and Oil Co v Hammer  AC 888, 930-932. Those related to the entirely separate question of jurisdiction to review the transactions of sovereign states, which was so remote from the present issue of absolute privilege as to afford no guidance one way or the other and in the present case it was not disputed that the judge had jurisdiction to determine the issues in accordance with English law.
By a respondent's notice the defendant sought to have the judge's judgment affirmed on the grounds, inter alia, that (1) if, contrary to the judge's decision and to the defendant's submissions, the public interest of the United Kingdom did not require that absolute privilege should be attached to the communication of the words complained of to Mr Nabil Hijazi, absolute privilege should nonetheless attach to that communication as an aspect of the state immunity which was enjoyed by the United Arab Emirates in respect of all documents and archives of its embassy in the United Kingdom and in particular communications emanating from that embassy concerning the employment of the officers of that embassy and the absolute privilege claimed in the defence survived the waiver of the diplomatic immunity on whichever of those two bases that privilege was properly to be founded; and (2) if, as was the plaintiff's submission, only a qualified privilege were to be attached to the communication of the words complained of to Mr Nabil Hijazi, that privilege would be defeasible upon proof of malice yet an inquiry as to the presence or absence of malice would involve an examination of the motives of the United Arab Emirates in the person of its officers in effecting Mr Nabil Hijazi's transfer from its embassy in London to its foreign affairs ministry in Abu Dhabi and that was not an inquiry on which a United Kingdom court should embark.
The facts are set out in the judgment of Mustill L.J.
David Eady Q.C. and Stephen Suttle for the plaintiff. The scope of absolute privilege as a defence in defamation actions has been stated as the privilege attached "to communications at the highest level of government and civil service, but it is uncertain how far down the official scale the protection extends:" Duncan and Neil on Defamation, 2nd ed. (1983), para. 13.29, p. 88. In Chatterton v Secretary of State for India in Council  2 QB 189, 191-192, 194, the Court of Appeal held that a communication from the Secretary of State for India to the Parliamentary Under Secretary for India, i.e. from one government minister to another, was protected by absolute privilege see also Fraser on Libel and Slander (law and Practice), 7th ed. (1936), p. 127. Here, the defendant and Mr Nabil Hijazi were not "officers of state" within the Chatterton principle nor was the memorandum a communication "relating to matters of state."
Absolute privilege cannot extend to officers of state and to communications relating to matters of state between the diplomats or other servants of a foreign state. M. Isaacs and Sons Ltd. v Cook  2 KB 391 has been the only authority where a communication made by the High Commissioner of Australia in the United Kingdom to the Prime Minister of Australia under the High Commissioner Act 1909 of the Commonwealth of Australia was held to be protected by absolute privilege. But since that case was decided before the Statute of Westminster 1931 and the Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act 1952 it should now be distinguished. In Szalatnay-Stacho v Fink  KB 1 and Richards v Naum  1 QB 620 the Court of Appeal declined to afford absolute privilege to communications between the officials of foreign governments relating to matters of state. [Reference was made to Hart v Gumpach (1872) L.R. 4 P.C. 439.]
The defendant here, by invoking privilege, is seeking an extension of the Chatterton principle so wide that only Parliament ought to effect it. In any case, absolute immunity requires "overwhelmingly strong reasons of public policy:" Gibbons v Duffell (1932) 47 C.L.R. 520, 534. There was no necessity, whether resulting from public policy or otherwise, for an extension of absolute privilege to the memorandum complained of. Protection would have been available to the defendant under articles 31 and 32 of the Vienna Convention on Diplomatic Relations, which was given the force of law by Parliament in section 2(1) of the Diplomatic Privilege Act 1964, by means of diplomatic immunity and by qualified privilege, subject to malice. [Reference was made to Jackson v Magrath (1947) 75 C.L.R. 293.] The absolute privilege would run counter to the Act of 1964. If foreign diplomats are to be accorded the strict privilege so that there would be no remedy even in cases of express malice or abuse that would involve fundamental issues of foreign policy and would best be left to Parliament.
Moreover, the defendant here lacked the official status in making the publication complained of and absolute privilege is attached to the person or character of the person writing or speaking the defamatory matter: Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson  1 QB 431, 451.
The judge observed that he was influenced by parts of Lord Wilberforce's speech in Buttes Gas and Oil Co v Hammer  AC 888, 930-932. But Lord Wilberforce was considering an entirely separate principle, namely the unwillingness of the English courts to adjudicate on the transactions of foreign sovereign states.
"Immunity" in the Act of 1964 is to be contrasted with the term "inviolable." The former connotes immunity from suit which relates only to persons. The latter is used to cover physical inviolability, that is, the host state will not, through any of its agencies "break in upon" archives, correspondence and such like: Anderson v Hamilton (Note) (1816) 8 Price 244. However, diplomats are protected both by physical inviolability (see article 29 of the Vienna Convention) and by immunity from suit: see article 30. Documents need, and are given, only physical inviolability. The Convention does not make it unlawful to sue in respect of words contained in an embassy document nor to make reference to words in such a document in any legal proceedings. Documents of state can be protected also by public interest immunity from subpoena or discovery: Chatterton v Secretary of State for India in Council  2 QB 189, applying Anderson v Hamilton (Note), 8 Price 244, and Home v Lord Bentinck (1820) 2 Brod. B. 130. But neither of these principles is relevant, since publication was admitted.
No aspect of sovereign or state immunity is involved here. The action has not been brought against the state. There is no question of an act of state in the sense of Buttes Gas and Oil Co v Hammer  AC 888 and Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A.  2 Lloyd's Rep. 171. [Reference was made to Dickinson v De Solar  1 KB 376, 381.]
If, however, state immunity does arise in the instant case under section 2(3) of the Act of 1964 the waiver is an intervention by the United Arab Emirates in these proceedings. Section 2 of the State Immunity Act 1978 does not exempt such intervention. Thus it would constitute a submission to the court. It is impossible to construe "intervention" as referring to a party, since parties do not "intervene." [Reference was made to Baccus S.R.L. v Servicio Nacional del Trigo  1 QB 438; Reg. v Madan  2 QB 1 and Empson v Smith  1 QB 426.] Thus the only question here is whether there extends to the defendant, in respect of his admitted publication, a defence of absolute privilege by reason of some imperative of English public policy.
E. C. Evans-Lombe Q.C., Geoffrey Shaw and Lady Hazel Fox for the defendant. The classes of documents and types of circumstances are not closed where the English courts will afford absolute privilege on grounds of public policy: Merricks v Nott-Bower  1 QB 57, 73, and Hasselblad (G.B.) Ltd. v Orbinson  QB 475. [Reference was made to Reg. v Lewes Justices, Ex parte Secretary of State for the Home Department  AC 388.] The limits of privilege are different: M. Isaacs and Sons Ltd. v Cook  2 KB 391 and Gibbons v Duffell (1932) 47 C.L.R. 520. [Reference was made to Anderson v Hamilton (Note), 8 Price 244.] Acts of an official of a foreign embassy should be considered acts of the foreign government: Mellenger v New Brunswick Development Corporation  1 WLR 604. [Reference was made to Peerless Bakery Ltd. v Watts  N.Z.L.R. 339 as an example of the application of Chatterton v Secretary of State for India in Council  2 QB 189 and Alcom Ltd. v Republic of Columbia  AC 580.]
An embassy document which is made public by an act of an embassy official is not covered by diplomatic or state immunity. If that is not correct then the judge was right in holding that the memorandum here was inter-departmental document which dealt with the transfer of an official of the embassy back to his own country. As such the memorandum was a record of a public act of a foreign sovereign acting within its sovereign powers: Sengupta v Republic of India  I.C.R. 221. Even though the document in the instant case was made in West Germany it was signed on behalf of the defendant and though the defendant at the time was not formally appointed as the ambassador, he was treated as such by his country. The plaintiff only came to know about the memorandum because it was disclosed to him by the person to whom it was addressed. The memorandum thus is a diplomatic document: Rose v The King  3 D.L.R. 618. Under section 1 of the State Immunity Act 1978 a foreign sovereign state's immunity extends to such documents and they are immune from the jurisdiction of the English courts by rules of international law and comity which form part of the English law: Halsbury's Laws of England, 4th ed., vol. 18 (1977), para. 1548, p. 794. The Act of 1978 does not withdraw such immunity: sections 6 and 16(1)(b).
Accordingly, unless the United Arab Emirates waive its immunity in respect of the memorandum an action for libel founded on it cannot be brought in English courts. Here, there is no waiver by the Emirates.
The plaintiff seems to be accepting that the memorandum came into existence in the circumstances of qualified privilege. A defence plea of such a privilege could have been answered with a plea of malice. In such a situation the court would have had to investigate the defendant's motives in dismissing Mr Nabil Hijazi from his post and his transfer. That would have amounted to an investigation into the motives of an officer of the Emirates in the exercise of the sovereign power of that state. The English courts do not embark upon such an investigation Buttes Gas and Oil Co v Hammer  AC 888. This supports the judge's view that the memorandum should be given the protection of absolute privilege.
Eady Q.C. replied.
Cur. adv vult.
19 February. The following judgments were handed down.
MUSTILL L.J. This curious case springs from a dispute within the London Embassy of the United Arab Emirates.
The defendant is Mr Muhammed Mahdi al-Tajir. For some years he was ambassador of the United Arab Emirates ("the Emirates") to the Court of St. James. The Emirates are a federation of Arab states, one of which is the Emirate of Dubai. At the material time, H. H. Sheikh Rashid was ruler of Dubai and vice-president of the Emirates. During August 1982 the defendant resigned as ambassador of the Emirates in London, for reasons which suggest that it was contemplated throughout that in due course he would resume his office. For about the next 12 months he continued to concern himself with the affairs of the Emirates in two ways. First, he maintained his position as adviser to the ruler of Dubai, a role which he had performed for many years. Second, he appears to have acted for internal purposes as de facto head of mission. During this period there was no person occupying the office of ambassador. Although, upon the defendant's resignation as ambassador, he ceased to be on the list of those recognised as diplomats accredited to the Court of St. James, his status was such that, in the words of the trial judge, he was regarded both by the foreign ministry in the United Arab Emirates and by the staff at the embassy in London as having authority. On 15 November 1983 the defendant was re-appointed as ambassador in London, and he continued to hold that post until November 1986, when he once more resigned: an event which occurred after the trial of the present action but before the argument of the appeal.
During the interregnum between the resignation of the defendant in August 1982 and his re-appointment in November 1983 there was no ambassador in post. The senior official in the embassy and formal chef de mission was Mr Mirza al-Sayegh, the chargé d'affaires. The second in command was the counsellor, Mr Nabil Hijazi. The third secretary was Mr A1 Hashimi.
The plaintiff, Mr Muhammed Fayed, is a businessman with substantial interests in the United Kingdom. He had for a number of years been prominent in the affairs of the Emirates, and had been on close terms with the defendant. One of the fruits of this relationship had been the procurement by the defendant on his behalf of certain privileges at Heathrow Airport, notably concerning the use of the VI.P. lounge, and access for his limousines to various restricted areas. These privileges had been renewed for him from year to year through the intermediacy of Mr Nabil Hijazi. In course of time the relationship between the plaintiff and the defendant took a turn for the worse: so much so that on 7 September 1982, during the interval between the resignation of the defendant as ambassador and his subsequent re-appointment, a memorandum came into existence in terms sharply critical of the plaintiff. I return at a later stage to the circumstances in which this document came to be written. It is sufficient for present purposes to say that it was addressed to Mr Nabil Hijazi (the counsellor), with copies to Mr Mirza al-Sayegh (the chargé d'affaires) and to the ministry of foreign affairs in Abu Dhabi. The document was subscribed with the word "ambassador" followed by the Arabic equivalent of "per pro," then the signature of Mirza al-Sayegh, and finally the name of the defendant.
Since this memorandum is the document in suit in the present action I must set out its text in full. In translation, it read:
"EMBASSY OF THE UNITED ARAB EMIRATES
"From: H.E. The Ambassador
"To: Counsellor Nabil Hijazi
"I was dismayed to learn that you have contacted the airport authorities for the purpose of granting Mr Muhammed Fayed two passes to enter Heathrow Airport in his car in the name of the embassy. I was extremely annoyed to receive such a report as I have personally warned you of the consequences of having any dealings with that person under the name of the embassy. You have promised to cancel all the arrangements made by the embassy in his favour. You made that promise several weeks ago in the presence of Mr Mirza Al-Sayegh. However, this has not been fulfilled. I was surprised to learn from my colleagues in the embassy that Mr Fayed started to use the VI.P. Lounge at the airport impersonating the identity of the adviser of Sheikh Zayed. In addition he used two car passes. This has caused great embarassment to me and to the embassy staff, as it happened without their knowledge. The matter has come to the notice of the British Foreign Office and also to the notice of the ministry of foreign affairs in Abu Dhabi. We have rectified the situation by withdrawing the above status and cancelling the tickets. You are well aware of the outcome if Mr Fayed had managed to enter prohibited goods into this country using the above capacity and in the name of the embassy. This could have caused deterioration in the relationship between the embassy and the authorities concerned, relationships which we were able to strengthen since the establishment of this embassy till the present, let alone the deterioration of the relationship between the embassy and H.H. Sheikh Zayed as a result of impersonating the identity of the adviser of His Highness by an unknown person.
"Therefore, I have decided to transfer you to the head office of the ministry of foreign affairs in Abu Dhabi, referring the whole matter to the ministry to take whatever action they deem necessary. I have informed the departments concerned in the embassy that your diplomatic status has now been withdrawn and instructed them to claim any possessions under your charge which are the property of the embassy, such as the car and the house leased for your use.
"This takes effect from today's date.
"I have also notifed the British Foreign Office of this action.
"Finally, would you please accept my sincere thanks and appreciation of your previous service in this embassy which I hope will continue in the ministry of foreign affairs in the future,
"Copy to Mr Mirza Sayegh, Chargé d'Affairs to put this into effect and then take full charge of the responsibilities of Mr Nabil Hijazi.
"Copy to the ministry of foreign affairs in Abu Dhabi to complete the arrangements of transfer in accordance with normal procedure."
As contemplated by its terms, this document was delivered to and read by Mr Nabil Hijazi, and also by certain officials in the ministry at Abu Dhabi. This led to the temporary recall of Mr Nabil Hijazi for discussions, but ultimately he returned to his post as counsellor in London. Meanwhile, Mr Nabil Hijazi has shown the memorandum to the plaintiff. His motives for doing so were controversial, but there is no suggestion that his act was the consequence of any express authorisation by the defendant or anyone else.
On 3 May 1983, the plaintiff issued the writ in the present action, claiming damages for libel contained in the memorandum, and alleging publication to Mr Nabil Hijazi. An injunction was also claimed. The writ was followed on 27 May 1983 by a statement of claim also alleging that the defendant wrote and published the letter to Mr Nabil Hijazi or caused it to be so written and published. It was pleaded that the plain and ordinary meaning of the words was that:
"(i) The plaintiff had obtained two passes to enter Heathrow Airport in his car under false pretences, that is to say by pretending to be acting on behalf of the embassy of the United Arab Emirates. (ii) The plaintiff had impersonated the identity of an adviser Sheikh Zayed in the VI.P. lounge at Heathrow Airport. (iii) The plaintiff had been using these devices with a view to importing unlawfully prohibited goods into the United Kingdom."
Next, on 28 June the defendant swore an affidavit setting out that he had in the past resigned as ambassador, but that his re-appointment was awaiting confirmation from the United Kingdom authorities. He went on to summarise his relationship with the ruler. He concluded:
"10. It will be observed from the statement of claim that the plaintiff complains of a document purporting to be an inter-departmental memorandum published within the [United Arab Emirates] embassy and dated 1 September 1982. At that date I was no longer ambassador and had left the country the previous month to return to Dubai, and I was at that time visiting Germany with H.H. Sheikh Rashid who was undergoing medical treatment in Baden Baden. I neither wrote nor signed the memorandum. I have no knowledge of the circumstances in which it came to be written.
"11. I am advised that, since I have arrived in this country to take up my appointment as ambassador, the Foreign Office having been notified of my appointment, I am immune from the jurisdiction of this court...
"13. In any event it is my respectful submission that this... court should decline to investigate in these libel proceedings or at all an internal communication made within a foreign embassy. If there are to be proceedings in respect of such a communication, then in my respectful submission they would be more conveniently dealt with, with less oppressive consequences for me, in the courts of Dubai where, so my solicitors advise me having made inquiries of their own, civil remedies for falsehoods and penal provisions for defamation exist, in addition to the remedies available via the Sharia or religious law where a person's reputation has been injured."
This affidavit was followed by an application to a Queen's Bench master for an order to set aside service on the ground:
"the defendant having been out of jurisdiction when the writ was issued and/or serving and striking out the endorsement on the writ and/or the statement of claim and/or dismissing or staying this action, upon the grounds that the defendant is immune from the jurisdiction of this... court and/or that it is oppressive for this action to be brought in England when it would be dealt with conveniently by a court in the United Arab Emirates and/or that the content and circumstances of publication of the memorandum complained of in this action are such that its author is protected by an absolute privilege and/or that this... court cannot or should not inquire into it, should be dismissed."
The application was dismissed on 11 July 1983, and although a notice of appeal was lodged, it appears that this was never proceeded with. One month later the defendant's reinstatement as ambassador became effective.
The next step took place during January 1984, when a defence was served, denying that the defendant had written or published or caused to be written or published the letter in question. The pleading concluded:
"6. Further or in the alternative, the document reproduced in paragraph 1 of the statement of claim appears on its face to be an inter-departmental memorandum of the embassy of the United Arab Emirates. Communications relating to matters of state, made by one officer of state to another, are absolutely privileged and cannot be made the subject of an action for libel.
"7. The defendant was the ambassador of the United Arab Emirates to the Court of St. James until 1 August 1982, and since his re-appointment in 1983 is again the ambassador of the United Arab Emirates. For the avoidance of doubt, and for the purpose of this action only, he hereby expressly waives any claim of his to diplomatic immunity.
"8. Further or in the further alternative, this... court should decline jurisdiction upon the ground that it is not the convenient or appropriate forum for the resolution of this action. Each party is a citizen of the United Arab Emirates and ordinarily resident in Dubai. The plaintiff's complaint is in respect of a document which appears on its face to be in his own language and to have passed from one fellow countryman of his to another, within the embassy of his own country. The Emirate of Dubai has courts and a law of defamation."
Nothing of any materiality then happened until 15 November 1985, when the plaintiff re-amended his statement of claim to allege publication to a list of 12 persons: it is unnecessary to state the details. Soon afterwards, in response to an interrogatory the defendant deposed:
"As to Nabil Hijazi I did not send the said memorandum to him. A memorandum containing the said words was written and sent to Nabil Hijazi by Mirza Al-Sayegh Chargé d'Affaires on or about 7 September 1982. At a meeting between, inter alia, myself and the said Mirza Al-Sayegh he sought my advice as to whether such a memorandum should be sent. I advised him that he should act in what he considered to be the best interests of the United Arab Emirates and its embassy for which, after my resignation as ambassador he was then responsible and did not seek to dissuade him from his proposed course. I have therefore given instructions to my solicitors to amend my defence so as to accept responsibility for publication of the said memorandum to Nabil Hijazi."
There was then a consequential amendment to the defence, maintaining the denial that the defendant wrote or sent the letter, but admitting that he caused it to be sent.
Thus matters stood when the action came to trial. A substantial issue which had to be explored by the judge, but which did not arise before us, was whether there was publication in the United Kingdom to any of the persons named in the list added to the statement of claim by re-amendment: for it was conceded that the defence of absolute privilege could not be established if such wider publication occurred and was a natural consequence of the initial publication to the addressee. In the event, the judge held that so far as there was any publication outside the embassy, this was neither intended by the defendant nor the natural and probable consequence of the publication by him to Mr Nabil Hijazi. There was no appeal against this finding.
Accordingly, the issue left for decision was whether the publication by a person acting as ambassador although not accredited as such, to the counsellor of the embassy with a copy to chargé d'affaires, of a document concerning the conduct of the addressee in his official capacity, and the termination of his posting, was actionable at the suit of the plaintiff in the English court. The judge held that it was not, on the ground set out in paragraph 6 of the defence - namely that the document, being a communication by one officer of state to another, relating to a matter of state, was the subject of absolute privilege and could not be made the subject of an action for libel.
On the hearing of the appeal, the arguments on both sides were cast in wider terms than before the judge. Accordingly, it is convenient to begin with a survey of the statutes and reported decisions touching on this branch of the law. These may be arranged according to subject matter, as follows.
1. The immunity from production of certain categories of state documents. It is unnecessary to enter here into the complexities, not yet fully resolved, of "class privilege." It is sufficient to say that since the 18th century the courts have recognised the need to abstain from requiring the production of communications addressed by or to high officers of state relating to matters within their competence. As Lord Ellenborough C.J. said, in relation to letters from the Under Secretary of State for the Colonial Department to the Secretary of State, "I do not like the breaking in upon this correspondence:" Anderson v Hamilton (Note) (1816) 8 Price 244, 246.
2. The refusal by the court to allow certain categories of documents, or copies of them, to be proved and put in evidence at the trial: see Home v Lord Bentinck (1820) 2 Brod. B. 130 and Chatterton v Secretary of State for India in Council  2 QB 189.
3. The recognition, by treating the publication as the subject of absolute privilege, that the publication of certain categories of state documents does not found a cause of action in damages. Such publication has been referred to as an "act of state." That documents of this kind may be the subject of absolute privilege is undoubted, and it is clear that the court must take into account the position occupied by the sender and the recipient, and the nature and subject matter of the communication. The precise boundaries of the protection have, however, yet to be established: contrast Chatterton v Secretary of State for India in Council (despatch by Secretary of State to Under Secretary concerning the removal of the plaintiff to the half pay list); Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson  1 QB 431 (oral report by member of London County Council to a meeting of the council concerning the grant of licences); M. Isaacs and Sons Ltd. v Cook  2 KB 391 (report by Australian High Commissioner to Prime Minister on commercial matters involving the interests of the Commonwealth); Gibbons v Duffell (1932) 47 C.L.R. 520 (report on subordinate by police inspector to superintendent); Jackson v Magrath (1947) 75 C.L.R. 293; Peerless Bakery Ltd. v Watts  N.Z.L.R. 339 (communication by Minister of Industry and Commerce to the Secretary of the Wheat Commission); Merricks v Nott-Bower  1 QB 57 (minute by deputy commissioner of police to commissioner regarding transfer of senior officers); Reg. v Lewes Justices, Ex parte Secretary of State for Home Department  AC 388 (letter by assistant chief constable to Gaming Board in response to a request for information concerning an application for a gaming licence) and Hasselblad (G.B.) Ltd. v Orbinson  QB 475 (letter of complaint to Commission of European Community).
4. The immunity from suit of an officer of the Crown in respect of acts done abroad otherwise than under colour of legal right. This also is referred to as immunity in respect of an "act of state." It is unnecessary to cite the authorities since they are far from the present point.
5. The refusal of the court, save in exceptional cases, to inquire into the validity and policy of foreign municipal legislation so far as it relates to matters done purportedly in furtherance of such legislation within the territory of the foreign state. This also is often referred to as an example of "act of state." Here again, citation is unnecessary.
6. The abstention by the court, in certain circumstances, from adjudication upon the act of a foreign sovereign state - at least when the act is done within the territory of the foreign state. This doctrine, also described as being concerned with "act of state," was discussed in Buttes Gas and Oil Co v Hammer  AC 888.
7. The refusal by the court to entertain any claim against a foreign sovereign or state, or a diplomatically accredited officer thereof, except in respect of certain types of transaction, unless the immunity is waived by the sovereign or a person having the power to communicate a waiver on his behalf: the State Immunity Act 1978. This principle does not deny the existence of a cause of action against the sovereign or his officer, but rather makes it impossible for the cause of action to be enforced: see Dickinson v Del Solar  1 KB 376, 381.
8. The recognition by the state and by the courts that the person of the foreign sovereign and his accredited officers should be protected from affront: article 29 of the Vienna Convention on Diplomatic Relations, as set out in Schedule 1 to the Diplomatic Privileges Act 1964.
9. As an aspect of the principle just stated, the recognition by the state and by the courts that the correspondence of the sovereign and the documents of his diplomatic mission touching on its functions should be kept inviolate, in the sense that they must be protected from harm, and from perusal and use without the sovereign's consent: see for a partial re-enactment of this long established principle of international law, article 24 of the Vienna Convention.
I have divided the cases and statutes into categories to illustrate why in my judgment the application of them by analogy to a new situation should be embarked on with caution. Thus, the doctrine that certain types of document are invulnerable has developed over the years from a notion that they should not be taken out of the hands of high officers of state, to a refusal to allow them to be given in evidence, and finally to a ruling that such documents (or more accurately the publication of them) are the subject of absolute privilege. These consequences are not the same, as was pointed out by Roche J. in M. Isaacs and Sons Ltd. v Cook  2 KB 391, 398, and Starke J. in Gibbons v Duffell, 47 C.L.R. 520, 529. Granted, it is usually of no moment to either party whether the plaintiff fails for want of proof, or because the publication is incapable of founding a cause of action: see the observations of Lord Wilberforce in Buttes Gas and Oil Co v Hammer  AC 888, 930, and Starke J. in Gibbons v Duffell, 47 C.L.R. 520, 530. But the distinction may be important in a case such as the present, where the document, its contents and its publication are admitted in the pleadings, and where the document is disclosed on discovery and put in evidence at the trial without objection.
Again, there is a risk that the terminology may prove misleading. The types of case identified as items 4, 5 and 6 above have all been discussed in terms of the label "act of state." Yet they are really quite unrelated, as regards their effect, boundaries and underpinnings of policy. There is a temptation to believe, because the events with which the present action is concerned were in one sense "foreign" and because they bear some resemblance to the type of English communication which has been characterised as an "act of state" in the passage from Fraser on Libel and Slander (law and Practice), 7th ed. (1936), p. 127, quoted in more than one of the cases, that we are here concerned with a "foreign act of state." This might encourage the court to explore the limits of that doctrine, such as were discussed in I. Congreso del Partido  1 AC 244, and treat them as applicable here. In my judgment this would be a mistake.
Furthermore, although it is quite clear that the protection is derived in every one of these cases from considerations of public policy, it is equally clear that these considerations are not the same throughout. Thus the rationale of cases such as Chatterton v Secretary of State for India in Council  2 QB 189, is that the direct interests of the community in the United Kingdom demand that an officer of a certain status should be able to communicate candidly on certain subjects without running the risk of being brought before the court as defendant or witness, and examined on the accuracy or honesty of what he has written. Plainly, there is no such direct interest where the document passes between two persons quite unconnected with the government and administration of the realm, on matters which are equally so unconnected. If there is to be the protection now claimed by the defendant it must either rest on the grounds of comity which in one shape or another underlie items 5 to 9 above, or on some other ground altogether.
For these reasons I would prefer not to venture any extension of the principle exemplified by Chatterton v Secretary of State for India in Council, to documents created within and for the purposes of a foreign diplomatic mission. Rather, I would look to see whether there is any ground upon which immunity should be granted because the United Kingdom has an interest in conceding to other states those privileges which it would in kindred circumstances wish to be accorded by the foreign state.
Before addressing this question it is convenient to deal with four reported cases which might be said to shed light on the present problem.
The first is Hart v Gumpach (1872) L.R. 4 P.C. 439. The defendant was the inspector general of customs of the Chinese government at a time when a unique condominium existed after the Treaties of Tientsin. The plaintiff had been professor of mathematics and astronomy at a college of western language and science which had been established by the Chinese government. The plaintiff raised an action before a court in China, which had jurisdiction over disputes between British subjects. Amongst his complaints was an allegation that the defendant had libelled him in a letter written to the head of a body called the Foreign Board at Peking. On appeal to the Privy Council against a verdict in favour of the plaintiff it was held that the communication was at least subject to qualified privilege. The Board did not, as I understand their opinion, reach a distinct conclusion on whether it was also entitled to absolute privilege, there being insufficient facts upon which to decide the question, and since a retrial was ordered it must, I think, be taken that a case for absolute privilege was not made out. But this cannot in my judgment be regarded as any authority against the defendant in the present case, for the circumstances of the two actions are quite different. The one concerned a claim by one British subject against another in respect of acts done abroad, in fulfilment of an office in a government which, so far as the court was concerned, was in one sense "local," and in another not. Here by contrast the claim springs from dealings between foreigners in England in relation to the business of a government which is not in any sense local, but which has an embassy here entitled to the protection of the English state and the English court.
Next, there was M. Isaacs and Sons Ltd. v Cook  2 KB 391. The plaintiffs carried on business in London as auctioneers of fruit. The defendant was High Commissioner of the Commonwealth of Australia in the United Kingdom. In the course of his duties he wrote a report on the outcome of sales of Australian fruit, in terms which the plaintiffs alleged were defamatory of themselves. The defendant contended that the report was absolutely privileged. The plaintiffs argued for the contrary view, primarily on the ground that the matter was of a commercial nature and did not concern a state matter, such as was involved in Chatterton v Secretary of State for India in Council  2 QB 189. On a preliminary issue, Roche J. held in favour of the defendant. In my judgment, there are two reasons why this decision does not point to any conclusion in the present case. First, because the question whether the principle stated in Fraser on Libel and Slander (law and Practice), 1st ed. (1893), p.95, and adopted in Chatterton v Secretary of State for India in Council  2 QB 189, 191, and other cases had any application at all to a communication between persons who were not, in the most direct sense, officers of the Crown, does not appear to have been canvassed. Second, because the closeness of the relationship between the Commonwealth of Australia and the United Kingdom involved considerations of public policy much more immediate than those called forth by the need to maintain cordially reciprocal relations with foreign states. I think it unsafe to make any assumption as to what Roche J. would have held if the suit had concerned the transactions of persons, who owed no allegiance to the Crown, regarding the business of a foreign state.
At first sight, the next case in chronological sequence, namely Szalatnay-Stacho v Fink  KB 1, appears much closer to the present point. It is, however, necessary to examine rather carefully what the case actually decided. The plaintiff, a Czech national, was the Czechoslovak diplomatic representative in Egypt during the second world war. The defendant, also a Czech national, was the chief military prosecutor of the Czech army. The defendant had received a number of written statements concerning the activities of the plaintiff whilst on diplomatic service. He forwarded these statements to the Military Office of the President of the Czech Republic (in exile), with a covering letter which explained that since the plaintiff was a civilian the defendant had no jurisdiction to bring criminal proceedings against him, but that the charges made in the statements were so grave that he considered it his duty to bring them to the attention of the President. He then went on to enumerate sections of the Czech criminal law which were alleged to have been contravened. Ultimately this letter came to the notice of the plaintiff, who brought an action in libel in the English court, to which the defendant responded with a plea of absolute privilege.
At first instance, this plea was upheld. Henn-Collins J. took little time to dispose of arguments that the publication was privileged because the dossier was an act of state, or a step in the proceedings of a military tribunal, so as to bring it within the protection afforded by the reported cases. As to the former, the communication did not take place at a sufficiently high level to qualify as a state matter, of the kind contemplated in Chatterton v Secretary of State for India in Council  2 QB 189. As to the latter, it had nothing to do with disciplinary proceedings, and did not touch any matter over which the military tribunal had any jurisdiction.
The judge did however give effect to another consideration. Expert evidence had established that an action such as the one before him would be inconceivable in Czechoslovakia, since the defendant was a state official and acting as such. Having reached this point, the judge continued (1945) 174 L.T. 191, 193:
"That raises the question whether, by the comity of nations, His Majesty's courts should extend to communications such as this, passing between Czech nationals on Czech affairs, the same protection as their own domestic courts would afford. It is, of course, only by comity that protection could be afforded, even to the acts of state of a foreign government, for we, here, have no direct interest in the good government of any foreign power, however friendly - but equally, of course, we have an indirect interest; and it has been indicated in Hart v Gumpach, L.R. 4 P.C. 439, that in some circumstances it may be against the public interests of this country to entertain a suit involving an inquiry into reports made by an officer in the service of a foreign state to the government of that state, and that one of those circumstances would be the fact that such a communication would be protected in the foreign state. That, as I have found, is the case with this communication. Is it proper in this case to apply the doctrine which the Privy Council thought it might be proper to apply in the very circumstances which have arisen here? If the comity of nations is ever to be applied, it should surely be applied where the document in question was published in this country only because the foreign government, being our allies, were our guests while their unhappy country was occupied by our common enemy. I therefore think I ought to apply it, and to hold that this dossier is absolutely privileged."
On appeal, the case took a rather strange course. Counsel for the defendant expressly disclaimed the ground of comity on which Henn-Collins J. had decided in his favour, and also any argument based on act of state, the sole ground relied upon being that the defendant's report was a step in judicial proceedings. The Court of Appeal rejected this argument for very much the same reasons as were given in the court below. It was, however, considered necessary also to discuss the argument which the defendant had disclaimed. Delivering the judgment of the court, Somervell L.J. said, at p. 11:
"Before considering this reasoning, it is necessary, in order to deal with Mr Slade's first argument under this issue, to consider the question on somewhat wider lines. The application of the principle of absolute privilege to foreign official documents is one on which there is little, if any, direct authority. The principle in our law is based on public interest, and, as it seems to us, would not necessarily apply to corresponding foreign documents. At the material time the Czechoslovak government was in this country as our ally in the war. This was an unprecedented state of affairs. Whatever may be the position in normal circumstances it may well be that in these circumstances the public interest would justify the application to Czechoslovak official documents of the principle applied to our own documents."
Somervell L.J. then went on to discuss the question whether the document was the first step in criminal proceedings, and after dealing with this continued, at p. 12:
"Henn-Collins J. based his decision, as we have stated, on a different principle. Although the document was made and published in England, he felt that he must consider what would have been the rights of the parties if the action had come before a Czechoslovakian court. In Hart v Gumpach, L.R. 4 P.C. 439, the observations were obiter and the position was, as it seems to us, essentially different. The action was brought before Her Majesty's Supreme Court for China. It was between two British subjects, both in the service of the Chinese Government, and was based on false representations alleged to have been made by the defendant in his official capacity in China. In that case, therefore, everything had happened in China, the country whose law it was suggested might be applied to the documents. Here everything happened in England. Having due regard to the exceptional position of the Czechoslovak Government, we do not think that the principle of the comity of nations compels or entitles the courts of this country to apply Czechoslovak law to acts done here, in proceedings in tort between Czechoslovak citizens, that law giving a general protection in civil suits to acts done by officials, which is not afforded under our law. This would be to make an inroad on a very fundamental principle. If there is to be such an application of foreign law in the circumstances set out it would, in our opinion, have to be expressly provided for by legislation. We, therefore, decide that this document was not absolutely privileged."
Although these passages might perhaps be regarded as obiter dicta since they were dealing with a proposition which had not been advanced, I would have thought it right to give effect to them, if they had been directly in point. But I do not think that they are. The document in suit here is not just a "foreign official document" but an embassy document; the issue is not whether the court should allow to the defendant such immunities from liability or suit as he would have enjoyed if he had been sued in his own country under his own law, but whether the litigation is of a kind upon which the English court should engage itself at all. This being so, I believe that Szalatnay-Stacho v Fink  KB 1, does not preclude this court from tackling the present problem de novo.
Finally, there was Richards v Naum  1 QB 620. The subject matter of the alleged libel was a report by a colonel in the office of special investigations in the United States Air Force, stationed in England, to a general in that force, concerning the continued employment of the plaintiff, a civilian investigative officer. If the court had decided whether absolute privilege attached to such a document, the case would have been of the greatest interest. But it did not, the sole conclusion expressed being that the law was insufficiently certain, and the facts and the law so likely to be intertwined, that the issue was not one which could appropriately be decided as a preliminary point. Unfortunately, therefore, Richards v Naum does not advance the present discussion.
In these circumstances, I am unable to find in any statute or decided case a rule of law which leads directly to a solution of the issue now before the court. Specifically, there is to my mind nothing material in the cases in the first three categories listed above, all of which are concerned with what may be termed "United Kingdom act of state," for these are founded on considerations of public policy which have no bearing on the present case. I therefore do not pause to discuss the questions, much pressed in argument, whether if this line of authority had been relevant the positions occupied by the defendant, Mr Nabil Hijazi and the plaintiff, and the nature and circumstances of the document and publication sued upon, were such as to bring this action within its scope. If there is to be immunity from liability, it must rest on the other aspect of public policy, described briefly by the word "comity." Here it seems to me that there are matters which provide an important background to any consideration of the problem, even though not pointing unequivocally to a solution, namely that (i) the law of nations, as reflected in the Vienna Convention treats embassy documents as sacrosanct, and (ii) there are situations in which the English court will find it inexpedient to investigate the actions of a foreign state or legislature, even though they fall within its formal jurisdiction.
Against this background, one returns to the question: Should the English court engage upon an inquiry as to the merits of a letter written or caused to be written by one person exercising high supervisory functions in a foreign embassy to a senior official of that embassy concerning the latter's continued employment at the embassy, and raising questions as to the conduct of the plaintiff (a foreign national) in relation to privileges obtained for him by the embassy? We are here, as elsewhere in this field, faced with conflicting aspects of public policy: the need to confine to an absolute minimum any curtailment of the right of a litigant to bring an action for recompense in respect of wrong committed in England, and the need to confine to an absolute minimum any meddling by the English court in the affairs of a foreign sovereign. In general, it would seem to me that the latter consideration should prevail, unless there is some objection in general or in the circumstances of this particular case.
So far as concerned the general objections, the plaintiff relied on the following. First, that there was no need to grant absolute privilege to communications of this kind, since qualified privilege would furnish the defendant with all the protection which in justice he could reasonably require. In my view, whilst this objection might have force if we were considering immunity based on "act of state," it is beside the point here, since the issues of justification and malice which would often be opened up by a plea of qualified privilege would require precisely that inquiry into the workings of the foreign embassy which (if I am right in the general approach suggested above) an English court ought to abjure.
Next, it is urged that diplomatic immunity is sufficient to secure the interests of justice and to maintain the dignity of the foreign sovereign, and that there is no need to superimpose on this a doctrine which would enable a person to publish damaging material in England without any cause of action even coming into existence. I can see much more force in this argument, but I must disagree. The respect owed by one state to the sovereign of another and to his diplomatic representatives is allied to but not the same as a voluntary abstention by the courts of the receiving state from inquiring into the conduct of his embassy. A foreign sovereign might well take the view that his dignity would be impaired rather than maintained by insisting on a personal immunity for one of his officers in respect of a civil suit, and I believe that in practice such an attitude is nowadays by no means uncommon. But this is not inconsistent with an attitude on the part of the court that the matter is not apt for investigation, and that the author of an embassy document such as the present should be answerable (if at all) for what he says only in the courts of his own country.
Allied to the argument just discussed is the point that whereas the statutes confer on the diplomat, both inviolability of person and immunity from suit, there is in the case of documents an express reference only to inviolability. I do not find this argument convincing. The statutes and conventions do not form a complete code for the operation of public policy in the field of comity, as witness the various versions of the doctrine of foreign act of state, all of which are creations of the common law. I can see no reason why the fact that a particular ground of policy does not have statutory recognition should prevent the court from giving it whatever weight may be thought fit.
Finally, it is contended that if immunity is granted in circumstances such as these, the net will be cast wider than if the subject had been a communication between officers of the Crown. This is factually correct, in the sense that persons of less rank than the high officers of state contemplated by the Chatterton line of authority would be enabled to avoid liability. I do not however regard this as a valid objection, since the considerations of policy are quite different, and may be expected to yield different results in the individual case.
Those were the grounds upon which the plaintiff contended that communications of this general type were not the subject of immunity. There were in addition certain aspects of this particular case where, so it was argued, the court should not uphold the pleaded defence. First, it was submitted that since the document in suit has not been the subject of any contested application for disclosure and adduction in evidence, but has rather been disclosed voluntarily in the list of documents, admitted in the pleadings and put in evidence without objection: so that no question of violating embassy documents can arise. This is true enough, but the conduct of the trial has lain in the hands of the defendant individual, not of the Government of the Emirates. No renunciation by the government of its right to be free from the inspection of its affairs by the English court (if indeed such a renunciation could be effective) is to be inferred merely from the fact that it has taken no step to intervene: and in any event, I have not founded my conclusion in favour of the defendant directly on article 24 of the Vienna Convention, but have rather used it as a part of the general background against which the considerations of public policy are to be assessed. Similarly, I do not regard it as conclusive that in this particular instance no inquiry into the merits of the dispute will be required, since there are no pleas of justification or qualified privilege; for it seems to me that the decision by the court as to whether or not an action of this kind should be entertained ought not to depend on a decision by the individual parties as to the way in which they choose to contest it.
Equally, I do not think it an answer that the defendant was not an ambassador at the relevant time. This would indeed have been important if the case were to be assimilated to the Chatterton line of authority, for as Lopes L.J. observed in Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson  1 QB 431, 451, that kind of immunity appears to attach to the person rather than the character of the document. However, for the reasons already stated I believe that the reverse is true when questions of comity are involved, and if I am right in treating this as the type of document which the English court ought not to admit as the foundation of a suit, the formal position of the writer should not be conclusive.
For these reasons therefore I would arrive at the same conclusion as the judge, albeit by a rather different route. Since the matter in fact proceeded to trial I would give effect to the conclusion by holding that the document was subject to absolute privilege. Whether at an earlier stage the court's unwillingness to enter on the matter could have been demonstrated by staying the proceedings need not now be discussed. (In this connection I should mention that neither party contended that the interlocutory proceedings before the master during 1983 had the result of creating an issue estoppel, or otherwise affecting the outcome of the trial itself).
In conclusion, I must draw attention to the waiver of diplomatic immunity contained in paragraph 7 of the defence which had been a source of concern in two respects, both arising from the defendant's dual capacity as head of the mission (which consequent authority to waive diplomatic immunity for all members of the mission, including himself) and as litigant (with consequent power to determine the shape of the issues before the court). First, because of the apparent inconsistency between the waiver of immunity and the assertion of absolute privilege. I say "apparent" because on reflection I do not consider that there is any real conflict between the two; since although both immunities derive ultimately from the same general concept of comity, the means by which this concept is put into effect are not indentical, and do leave room for a stance enabling the foreign sovereign at the same time to permit his representative to put himself formally in peril of a judgment, and yet to permit him also to raise a defence which will maintain the assertion that embassy transactions are not a proper subject for inquiry.
The second ground for hesitation was the form in which the waiver of sovereign immunity was expressed. I have no doubt that this was inappropriate. The defence was a document formulated on behalf of the defendant qua individual litigant, not ambassador, and was not the correct vehicle for a renunciation of the immunities belonging to the foreign sovereign. If my conclusion on the main issue had been that the appeal ought to be allowed, and judgment given for the plaintiff, it would have been for careful consideration whether the court of its own motion should make inquiries so as to satisfy itself that the defendant did indeed have authority to convey the waiver. In the event, however, the waiver has no potential effect on the outcome of the proceedings. Bearing in mind that the defendant was not an accredited diplomat at the time when the action was commenced, and that it proceeded to trial and judgment without any question being raised, I think it legitimate to allow the matter to rest.
For these reasons, therefore, I would dismiss the appeal.
CROOM-JOHNSON L.J. I have read the judgments of both Kerr and Mustill L.JJ. I agree with them and have nothing to add.
KERR L.J. The memorandum whose contents and publication form the basis of this action for libel was in every respect a "diplomatic" or "embassy" document in the sense that it appertained to the embassy in this country of a friendly sovereign state. It was the property of the embassy or of the foreign state. It was an inter-departmental memorandum on embassy paper addressed by one embassy official to another, both acting within the course of their official duties. Publication of its contents by or on behalf of the defendant took place only within the embassy and to its ministry of foreign affairs. And the contents of the document related to the plaintiff only in the context of matters which were of concern to the embassy, to the dignity of the state which it represented, and to their joint relations with H.M. Government. The fact that the contents may not have been of a high degree of importance to the foreign state in comparison with their seriousness for the plaintiff's reputation must be irrelevant to the status of the document as such. Even without each and every of the attributes of the document enumerated above - and I express no opinion about the point at which the line falls to be drawn - there can be no doubt that the document falls within article 24 of the Vienna Convention on Diplomatic Relations which provides (Schedule 1 to the Diplomatic Privileges Act 1964): "The archives and documents of the mission shall be inviolable at any time and wherever they may be." As Mustill L.J. said at the beginning of his judgment, this is a curious case. It is curious that a dispute arising out of a document of this nature should have found its way into our courts. Since it did, it is not surprising that this resulted from a curious combination of circumstances. The document, or a copy of it, came into the possession of the plaintiff. When he issued his writ, the defendant was not the ambassador. He had been the ambassador and knew that he would shortly be re-appointed. In the interim he exercised the authority of head of mission internally, to the knowledge of all concerned. He had neither written nor dictated the memorandum. But he had discussed the problems reflected in its contents in the course of his position as de facto head of mission. He was therefore in a doubly ambivalent situation. First, he was not the author of the memorandum. But when an action for defamation was brought upon it, he felt that he must accept responsibility for it in the circumstances. Secondly, when he was then reappointed to the post of ambassador and his defence fell to be served, this expressly waived his diplomatic immunity, for reasons and in circumstances which are unclear, as mentioned below. At the same time, however, and more or less in the same breath, he has maintained throughout, on various grounds and in different ways, that an action founded upon this embassy document is not properly justiciable in our courts. This is no doubt a situation without precedence in our jurisprudence. But in the upshot, because of this curious combination of circumstances, it is necessary to decide as a matter of principle whether or not this action is properly maintainable and should be allowed to proceed, in which case our courts would have to adjudicate on the issues raised by the contents and publication of this document.
What would that involve in practice? In the normal course of an action of this kind it must involve the truth or otherwise of the allegations concerning the plaintiff; the circumstances in which these allegations were made, for the purpose of seeking to establish a prima facie defence of qualified privilege; and then no doubt the usual issue as to the good faith or possible malice of the person responsible for them. Having regard to the contents of the document, the full ventilation and exposure of these issues, and the decision of our courts upon them, would be bound to intrude upon the internal policies and practices of this embassy, and thereby reflect upon the United Arab Emirates in a manner which might affect relations with this country.
However, the embarrassment for the United Arab Emirates which could result from the public discussion of the issues likely to be raised in this particular case is not in itself any ground for deciding whether this dispute is properly justiciable in our courts. That question must be decided as a matter of principle by reference to the nature and status of the document on which the claim is based. But the likely consequences of justiciability for the dignity of a foreign friendly state and its embassy in this country illustrate the need for the application of a rule of public policy in order to decide that question.
I share entirely the views of Mustill L.J. that the justiciability of the dispute raised by this document cannot be determined by a process of attempting to put the present case into one of the categories of related issues raised by earlier cases in different contexts in times when international relations may have been less sensitive. The present case is sufficiently unparalleled in our corpus juris to require an independent approach, undeterred by the traditional reluctance of our courts to create new applications of rules of public policy. In that connection, and in the same way as Mustill L.J., I have reached the clear conclusion that the broad concept of international comity, in combination with the settled rule within that concept expressed by the "inviolability" of diplomatic documents, require us to hold that this dispute is not justiciable in our courts. In the context of an action for defamation this consequence can be expressed by holding that the publication of this document in the circumstances of this case is protected by absolute privilege; and I so hold. But the appropriate terminology is secondary to the non-justiciability of this dispute as a matter of principle. In that connection I think that it is irrelevant at what point and by what procedural means the objection to its justiciability is raised; viz. whether by an application to strike out the action, or by objecting to the production or admissibility of the document on discovery or in evidence, or by a defence of absolute privilege. The principles of comity and "inviolability" must be the same in all cases, at any rate where the action is founded upon the contents and publication of an embassy document.
Despite the novelty of the issue raised by this case, it seems to me that this conclusion is consistent with the general tenor of the authorities to which we were referred and not inconsistent with any of them. I derived the greatest direct assistance from the learned discussion of this question in the judgment of Bissonnette J. in the Supreme Court of Quebec in Rose v The King  3 D.L.R. 618, with which the other members of the court agreed. The facts were briefly as follows. The defendant was a Canadian subject who had been convicted on charges of conspiracy with a group of Russian and Canadian subjects to violate the provisions of the official Secrets Act 1939 in various ways which were prejudicial to the safety of Canada. Part of the evidence against him was contained in documents which Gouzenko, a cypher clerk in the Russian embassy in Ottawa, had stolen from the embassy files of the Russian Military Attaché, Zabotin, the central figure in a spy ring, which Gouzenko had handed over to the Royal Canadian Mounted Police. The documents were produced by Gouzenko as a witness at the trial and formed an important part of the evidence for the prosecution. The defendant Rose thereupon claimed that the documents were inadmissible on the ground that they were privileged and immune from use in any legal proceedings. Bissonnette J. summed up this argument, at p. 639:
"He maintains, and I feel well seized of his argument, both in his statement and at the hearing, that immunity, being an absolute privilege resulting from jus gentium, every court of justice, as soon as the matter sub judice permits establishing that this privilege is put in peril, is, erga omnes, without jurisdiction or competence to hear or to receive the deposition of a diplomatic agent and to take cognizance of documents which he offers in evidence, without the consent of the state that he represents."
The judgment continues with a lengthy and detailed review of the principles of international law relevant to this argument, with copious citations from text books of high authority. The fact that most of these were French is irrelevant, since the principles are those of jus gentium, and it was expressly pointed out that there was no relevant Canadian statute which affected the issue. The judge's conclusion that diplomatic documents were "inviolable" anticipated the use of the same term in the Vienna Convention of 1961, as do many passages from his judgment. The interesting point for present purposes, however, is the width of his conclusion about the concept of inviolability. He said, at p. 646:
"International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence in regard to them."
This conclusion is supported by Denza on Diplomatic Law (1976), (published by Oceana Publications Inc. and the British Institute of International and Comparative Law) in the author's commentary on article 24 of the Vienna Convention, at p. 110, to which we were also referred.
In Rose v The King  3 D.L.R. 618 Bissonnette J. went on to hold that the immunity of diplomatic documents from use in legal proceedings was not absolute and that it did not avail the defendant in that case. He held that it could not be invoked by a Canadian citizen in litigation between his government and himself; nor when the documents revealed an abuse of diplomatic privilege by the foreign state which constituted a threat to the safety of the receiving state; nor - semble and quaere - in cases where no one connected with the foreign state or its embassy claimed any privilege for the documents. But none of these considerations applies here. Having read and re-read the judgment of Bissonnette J. I find that it fully supports my instinctive conclusion that the contents and publication of this embassy document must be treated as immune from the process of our courts for the purposes of an action such as the present. It falls within the concept of "inviolability" in the wide sense stated above, and no possible exception to that concept can be of any relevance in the present case.
I equally agree with the remarks of Mustill L.J. expressing doubts about the circumstances concerning the defendant's waiver of diplomatic immunity. These involve two aspects which need to be emphasised. First, there is no inconsistency in principle between a waiver of the diplomatic immunity of a defendant and the assertion of a claim for immunity of a diplomatic or embassy document whose contents are sought to be introduced into the proceedings against him. Admittedly, the co-existence of the waiver and of the assertion is extraordinary in the present case, because every issue raised against the defendant, whose personal immunity has been waived, stems from the contents and publication of a document whose immunity has been asserted in the same breath. But I cannot see that this makes any difference in principle. It merely produces an extraordinary and apparently unprecedented situation. The waiver of the immunity from suit of the defendent does not destroy the claim for immunity of the document, since this is justified by the character of the document, irrespective of the defendant's submission to the court's jurisdiction against him personally.
The second aspect is that the fact and circumstances of the waiver of the defendant's immunity are perplexing and unsatisfactory. It is elementary that only the sovereign can waive the immunity of its diplomatic representatives. They cannot do so themselves. For that reason alone the defendant's defence filed in the proceedings against him is not an appropriate vehicle for the manifestation of the sovereign's decision to waive the defendant's immunity. Moreover, a waiver which only purports to be manifested in this manner gives rise to doubts as to whether it really represents the act and will of the sovereign. In the present case I have remained throughout in the gravest doubt about the knowledge and understanding of the sovereign, the United Arab Emirates, concerning the issues and perhaps even the pendency of these proceedings. But, in the same way as Mustill L.J., I do not see that any purpose would be served at this stage by taking these aspects any further. I would only add that if I had felt any doubt about the correctness of the judge's decision in favour of the defence of absolute privilege, then I would - for myself - not have been willing to reverse his decision and allow this action to proceed without having made an attempt, through the Foreign and Commonwealth Office, to ascertain the attitude of the United Arab Emirates to this action.
I agree that this appeal should be dismissed.
Defendant's costs of appeal.
Costs below undisturbed.
Leave to appeal refused.
Solicitors: McKenna Co; Fox Gibbons.
8 April 1987. The Appeal Committee of the House of Lords (Lord Bridge of Harwich, Lord Templeman and Lord Oliver of Aylmerton) dismissed a petition by the plaintiff for leave to appeal.
The following cases are referred to in the judgments:
Anderson v Hamilton (Note) (1816) 8 Price 244
Buttes Gas and Oil Co v Hammer  AC 888;  3 WLR 787;  3 All ER 616, H.L.(E.)
Chatterton v Secretary of State for India in Council  2 QB 189, C.A.
Congreso del Partido, I  1 AC 244;  3 WLR 328;  2 All ER 1064, H.L.(E.)
Dickinson v Del Solar  1 KB 376
Gibbons v Duffell (1932) 47 CLR 520
Hart v Gumpach (1872) LR 4 PC 439, PC.
Hasselblad (G.B.) Ltd. v Orbinson  QB 475;  2 WLR 1;  1 All ER 173, C.A.
Home v Lord Bentinck (1820) 2 Brod. B. 130
Isaacs (M.) and Sons Ltd. v Cook  2 KB 391
Jackson v Magrath (1947) 75 CLR 293
Merricks v Nott-Bower  1 QB 57;  2 WLR 702;  1 All ER 717, C.A.
Peerless Bakery Ltd. v Watts  N.Z.L.R. 339
Reg v Lewes Justices, Ex parte Secretary of State for the Home Department  AC 388;  3 WLR 279;  2 All ER 1057, HL(E)
Richards v Naum  1 QB 620;  3 WLR 1113;  3 All ER 812, C.A.
Rose v The King  3 DLR 618
Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson  1 QB 431, C.A.
Szalatnay-Stacho v Fink (1945) 174 LT 191;  KB 1;  2 All ER 231, C.A.
The following additional cases were cited in argument:
Alcom Ltd. v Republic of Colombia  AC 580;  2 WLR 750;  2 All ER 6, H.L.(E.)
Baccus S.R.L. v Servicio Nacional del Trigo  1 QB 438;  3 WLR 948;  3 All ER 715, C.A.
Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A.  2 Lloyd's Rep. 171, C.A.
Empson v Smith  1 QB 426;  3 WLR 380;  2 All ER 881, C.A.
Mellenger v New Brunswick Development Corporation  1 WLR 604;  2 All ER 593, C.A.
Reg v Madan  2 QB 1;  2 WLR 231;  2 All ER 588, C.C.A.
Sengupta v Republic of India  I.C.R. 221, E.A.T.