Court of Appeal declines to modify diplomatic immunity rules, upholding immunity of the President of Mozambique

In February 2024, the Court of Appeal of England & Wales upheld a September 2023 decision of the Commercial Court in The Republic of Mozambique v Credit Suisse International And Others (No.10),¹ finding that: (1) the President of Mozambique Filipe Jacinto Nyusi, (the "President") had not been validly served with proceedings in October 2021 because applicable service rules for service of a person in a non-Hague Service Convention state had not been complied with; (2) the President's challenge to the jurisdiction of the English courts on the grounds of state immunity had therefore been made within the relevant time limit (because effective service did not take place until April 2023); and (3) the President was immune from the jurisdiction of the English courts as he is Head of State of the Republic of Mozambique ("Mozambique").

This alert explores the Court of Appeal's decision² in relation to the rules on the method of service of proceedings out of the jurisdiction into a state that is not a party to the Hague Service Convention ("Hague"). It also briefly considers the immunity issues under appeal.

Factual background

This appeal arose in long-running proceedings before the English court concerning the so-called 'tuna bonds' scandal. In these proceedings Mozambique has alleged that certain of its sovereign guarantees were procured by fraud and bribery. The proceedings are ongoing.

The Appellants (defendants to the proceedings) sought to add the President as a party to the proceedings, claiming a contribution or indemnity and damages in the tort of deceit. They claimed that the President's alleged activities took place before he became the President (the "Part 20 Claim").

The Appellants were granted permission to serve the Part 20 Claim on the President out of the jurisdiction by an order dated 21 May 2021 (the "Order") by either:

• "service direct" in accordance with 6.42(3)(a) of the Civil Procedure Rules ("CPR") at the Presidential Palace or the Office of the President; or
• methods other than diplomatic channels as permitted under Mozambique law and CPR 6.40(3)(c).

The Appellants arranged for the Part 20 Claim Form to be delivered to both the Presidential Palace and the Office of the President on 19 October 2021. Access to the President was not permitted and the Claim Form was left with officials at both locations. The President did not acknowledge service or assert state immunity or challenge jurisdiction.

The Appellants subsequently served the Claim Form through the Mozambique court on 14 April 2023. The President acknowledged service on 5 May 2023 and indicated he intended to challenge jurisdiction. The President subsequently issued an application claiming: (1) the purported service in October 2021 was invalid; and (2) the English court had no jurisdiction to hear the Part 20 Claim, on the grounds of his immunity as Head of State.

Commercial Court decision

At first instance, Robin Knowles J found that the President had not been validly served in October 2021 and that the Court did not have jurisdiction to hear the Part 20 Claim due to the President's immunity as a Head of State pursuant to section 20 of the State Immunity Act 1978 (the "SIA").

The Appellants appealed this decision.

The Judgment of the Court of Appeal

The Court of Appeal rejected the Appellants' arguments on service. The Court of Appeal considered the provisions in CPR 6.42 and Practice Direction 6B have to be read together. When they are, the Court of Appeal noted "it is clear that service in a Commonwealth state which is not signatory to the Hague Convention must be by "service direct" unless PD6B provides, in relation to that country, that another method of service is required". The Court of Appeal noted the mandatory terms used in para 5.1 of the Practice Direction, namely that certain countries 'require' service via judicial authorities, which the Court noted "points to service only being permitted and valid via those judicial authorities".

The Practice Direction also referred to a list of such countries that could be obtained from the Foreign Process Section (the "FPS") at the Royal Courts of Justice. Although it transpired that no such list is available, the Court of Appeal did not consider this to have detracted from the conclusion that service through the Mozambique courts was the only method permitted of serving English proceedings in Mozambique. The attempted service in October 2021 was therefore ineffective.

As to immunity, the Court of Appeal briefly considered an argument as to whether foreign Heads of State have personal immunity from suit in the United Kingdom in respect of their private commercial activities worldwide or just commercial activities undertaken by them in the United Kingdom.

The Court of Appeal rejected the argument that the words 'in the receiving state' which qualify the commercial activities exception to immunity in Article 31(1)(c) of the Vienna Convention should be excised as a 'necessary modification' to the preamble to s20(1) of the SIA (which refers to the Diplomatic Privileges Act which in turn incorporates the Vienna Convention into UK law).

The Court of Appeal quoted with approval the reasoning of Briggs LJ (as he then was) in Apex Global Management Ltd v Fi Call Ltd and Others³ on this point:

• the suggested modification would have adverse consequences for the dignity of a Head of State and the effective performance of his or her official functions while in the UK, given that some might see the Head of State's temporary presence in the UK as an opportunity to engage in litigation;
• the purpose of section 20 of the SIA was specifically to provide for personal immunity for foreign Heads of State while visiting the UK, equivalent to that of their ambassadors; and
• it is unlikely that Parliament would have intended to create, for the first time, a situation where a visiting foreign Heads of State would have "lesser" state immunity when compared with their ambassadors.

Accordingly, the exception to state immunity in Article 31(1)(c) of the Vienna Convention did not apply, given that none of the President's alleged activities took place in the receiving state, i.e. the UK. The President was therefore able to assert his immunity.

Comment

This judgment highlights there is a potential lack of clarity surrounding the accepted methods of service into non Hague Convention states. Although the FPS apparently has a list of countries where only service via judicial channels is acceptable, this list is not publicly available to practitioners. The judgment also highlights that a party seeking to effect service out of the jurisdiction into a non Hague Convention state will need to be mindful of applicable English rules and any English order giving permission to serve out, as well as local rules and restrictions on service. Practitioners may well need to consult local counsel. Finally, the judgment provides useful (though perhaps unsurprising) confirmation of the immunity of a Head of State for as long as they are Head of State, regardless of the capacity in which they were said to have carried out the alleged acts in question.