Lois and I have in recent weeks observed that the blog posts that prove most popular are those that provide practical advice to our readership on matters that are likely to arise in their own lives. For this reason, I hope that you will enjoy my short presentation of the decision of the High Court on a preliminary issue in Corinna Zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Víctor María De Borbón Y Borbón [2022] EWHC 668 (QB). The case is indispensable for anyone considering bringing a civil claim against a former head of state.

The background

His Majesty Juan Carlos Alfonso Víctor María de Borbón y Borbón-Dos Sicilias reigned as Juan Carlos I, King of Spain, from the death of the dictator Francisco Franco in 1975 until his abdication on 18 June 2014. Since then, his son has ruled as King Felipe VI of Spain, and he himself has been referred to as Rei Emérito, or King Emeritus. He retired from public life in June 2019, and in 2020 he moved from Spain to the United Arab Emirates. He has been married to Princess Sofía of Greece and Denmark, who during her husband’s reign was Queen of Spain, since 1962.

Corinna zu Sayn-Wittgenstein-Sayn met His Majesty in 2004. Her job, at that time, was to organise hunting trips, and His Majesty availed himself of her services. They also began a romantic relationship at about the same time. This lasted until 2009, when, according to Ms zu Sayn-Wittgenstein-Sayn, she refused a proposal of marriage made by His Majesty.

Readers who would like to know more about the relationship between these two individuals can find juicy content all over the Internet: for example, here, here and here.  

If you are wondering why we, legal bloggers, are writing about these individuals, it is because, on 16 October 2020, Ms zu Sayn-Wittgenstein-Sayn filed a claim form in England by which she claimed damages and an injunction on the basis of a course of conduct pursued by His Majesty that amounted to harassment of her, contrary to section 1 of the Protection from Harassment Act 1997.

In December 2020, Ms zu Sayn-Wittgenstein-Sayn particularised her claim, alleging that the course of conduct had begun in April 2012 and was still ongoing. The gist of the allegations as set out in the Particulars of Claim is that Ms zu Sayn-Wittgenstein-Sayn was surveilled by the Spanish national intelligence agency and her property searched by them on behalf of His Majesty; that she was threatened and blackmailed by the head of that agency, General Félix Sanz Roldán, on behalf of his Majesty, and made to fear for her and her family’s safety; and that His Majesty spread malicious rumours about her, including to the media, in an attempt to damage her personal and commercial relationships. It is alleged that Ms zu Sayn-Wittgenstein-Sayn was harassed both before and after His Majesty’s abdication in June 2014.

The usual next step in a claim following service of Particulars of Claim is the filing of a Defence, in which the defendant’s response to the substantive claim is set out. However, His Majesty has not filed a Defence. Rather, he has applied for an order declaring that the court has no jurisdiction to try the claim because His Majesty benefits from immunity under sections 1(1), 14 and 20 of the State Immunity Act 1978.

Although there are additional preliminary grounds on which His Majesty challenges the claim, the issue of state immunity was isolated and tried in the High Court before Nicklin J at hearings on 6 and 7 December 2021. Judgment was handed down on 24 March 2022.  

The issues and submissions

His Majesty claimed immunity on two bases. First, he claimed that section 14 of the State Immunity Act rendered him immune from suit in respect of any act in his public capacity while he was head of state. This kind of immunity is called immunity ratione materiae, which means immunity by reason of subject-matter. It is immunity that attaches to qualifying acts. Second, His Majesty claimed that section 20 rendered him immune from any suit because he is a sovereign, a member of the King of Spain’s family and household. This kind of immunity is called immunity ratione personae, which means immunity by reason of personality. It is immunity that attaches to a qualifying person. His Majesty therefore made two arguments. First, as a person covered by section 20, he is completely immune from suit in respect of any acts whatsoever. Second, if that is incorrect, section 14 means that he is immune from any acts done in his public capacity as head of state, that is before his abdication. If the first argument succeeded, His Majesty would be immune in respect of Ms zu Sayn-Wittgenstein-Sayn’s entire claim. If the first argument failed but the second succeeded, His Majesty would only be immune in respect of the part of the claim relating to conduct during his reign.

The question in relation to section 20 was whether His Majesty is a “sovereign” or, alternatively, a member of the family of King Felipe “forming part of his household”.

On behalf of His Majesty, Sir Daniel Bethlehem QC submitted that a state may have more than one “sovereign”, and that His Majesty’s unique status as King Emeritus meant that both he and his son were sovereigns. Sir Daniel relied on the travaux préparatoires (preparatory works) to the Vienna Convention on Diplomatic Relations of 1961, to which the State Immunity Act gives effect, to argue for a broad conceptual interpretation of “household”. As a member of the Spanish royal family, His Majesty is part of King Felipe’s household even though he lives abroad and is largely financially independent.

On behalf of Ms zu Sayn-Wittgenstein-Sayn, James Lewis QC submitted that the wording “sovereign or other head of state” in section 20 made it clear that a sovereign is a head of state. If, like His Majesty, one is not a head of state, one is not a sovereign. There is no exception or special category for former heads of state. On the family point, the Court of Appeal in HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud and HRH Prince Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2013] EWCA Civ 642, [2014] 1 WLR 492 made clear that the group of “members of [the head of state’s] family forming part of his household” envisioned by section 20 was limited to dependant family members. Since His Majesty is not dependent upon King Felipe, he does not benefit from immunity under section 20.

The question in relation to section 14 was whether any of the alleged acts done in His Majesty’s reign had been done in his official capacity. (It is important to note that, for the purposes of these arguments, the parties treated the allegations as true.)

Sir Daniel relied on Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another ]2006] UKHL 26, [2007] 1 AC 270 and R (Pinochet Ugarte) v Bow Street Metropolitan Stipendiary Magistrate (No.3) [1999] UKHL 17, [2000] 1 AC 147 in his submission that even a heinous and unlawful act, and even one done to advance a personal agenda, could attract immunity if it was done in the purported discharge of official duties. It was submitted that the alleged acts of His Majesty through General Sanz Roldán and the Spanish national intelligence agency were done in the discharge or purported discharge of His Majesty’s official duties as king.

Mr Lewis relied on a large number of authorities, including Playa Larga (Owners of Cargo lately laden on board) v I Congresso del Partido [1983] 1 AC 244, Kuwait Airways v Iraqi Airways [1995] 1 WLR 1147, Holland v Lampen-Wolfe [2000] UKHL 40, [2000] 1 WLR 1573 and Surkis and others v Poroshenko and another [2021] EWHC 2512 (Comm), in submitting that, when deciding whether an act is done in an official capacity, the judge must ask whether the act, in its context, has the character of a private act, meaning an act that a private person could have performed. Further, the purpose for which the act was performed is not relevant. It was submitted that the alleged acts were in the context of the breakdown of a romantic relationship, which was a private matter, and that any wealthy person could have performed.

The decision

Nicklin J adopted Mr Lewis’s submissions about immunity under section 20 more or less completely. King Felipe is the only sovereign of Spain. The judge noted that, if Sir Daniel were correct that His Majesty continued as a sovereign after his abdication, he would have complete life-long immunity. If he were “to walk into a jewellers’ shop in Hatton Garden and steal a diamond ring, he could face no civil or criminal proceedings in this jurisdiction” [60]. Such a conclusion had no basis in any relevant principles. In respect of the family and household argument, the judge held that he was bound by the Court of Appeal’s decision in Apex to hold that dependence is the key factor in deciding whether someone is part of the head of state’s household. Since his Majesty is not dependent on King Felipe, he is not part of his household.

The section 14 issue was more finely balanced. On the one hand, harassment is not a public act, but an act that any private citizen can perform. On this basis, His Majesty would enjoy no immunity under section 14 in respect of the pleaded course of conduct amounting to harassment. On the other hand, individual acts alleged by Ms zu Sayn-Wittgenstein-Sayn as comprising a course of conduct amounting to harassment could be analysed as official acts attracting immunity. The parties seemed to agree about this. The judge therefore asked which individual acts could be considered as official acts. He singled out the alleged acts involving surveillance of Ms zu Sayn-Wittgenstein-Sayn and interference with her home. However, these allegations presented the problem that it was not clear whether it was Spanish state security agents or private contractors who performed the surveillance. If it was private contractors, there could be no successful immunity argument. If it was Spanish state security agents, immunity would be more arguable. The judge concluded that the pleadings and evidence before him were not clear enough to enable him to decide this question with satisfactory certainty. The burden of proof for establishing immunity being on His Majesty, the present position was that the judge was “very far from convinced that there could be any claim to functional immunity” [72]. On the basis that his decision about section 20 immunity meant that the claim would be proceeding anyway, he held that there was no immunity under section 14, but that, if the Spanish state wished to step forward later in the proceedings and take responsibility for the surveillance of Ms zu Sayn-Wittgenstein-Sayn, the position could be revisited.

The result of all this was that none of His Majesty’s claims of immunity succeeded.

Conclusion: practical take-aways

What can you and I learn from this case as prospective litigants against former heads of state?

First, and most importantly, a former head of state does not benefit from personal immunity under section 20 of the State Immunity Act, no matter their current title. They are not a sovereign. So look at the detail of what your potential defendant has done.

Second, identify ways in which the former head of state acted both unlawfully and in a way accessible, at least in theory, to a private individual. If they felt that their conduct could be perceived as dodgy, they might have tried to pursue it outside official channels. This is good news for you.  

Third, engage two silks and two juniors for preliminary issue hearings.  

And what about our readers who are former heads of state or considering retirement from that position and who expect to defend proceedings in this country?

First, ideally, stay in post.

Second, possibly counter-intuitively, make sure to use your official resources to conduct any potentially unlawful activity. Acts that no private person could have performed are likely to attract immunity under section 14.

Third, even the best lawyers cannot guarantee victory.

What I’ve been watching this week

From the ridiculous to the sublime. I have been watching Peep Show, which is all on Netflix, and which might be the best sit-com of the noughties.