Sovereign immunity


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The English court has had to consider another sovereign immunity dispute involving the Saudi royal family.

In Janan George Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2014] EWHC 1807 (Ch), the prince applied for a declaration that the court had no jurisdiction on the grounds that it was barred by the defence of state immunity under the State Immunity Act 1978.

The claimant had alleged that she was the wife of the prince’s father, the late King Fahd, and that the king had promised to provide for her financially for the rest of her life, but since 1995 to the date of his death in 2005, he had failed to do so. The claimant claimed that the prince had told her that he was prepared to honour the terms of the king’s promise, but he had not complied.

The question for the court was whether when the king ceased to be head of state on his death, his immunity from suit, and hence the prince’s immunity, continued to extend to everything he did while he was head of state.

The claimant relied on the Pinochet case to argue that a former head of state, regardless of how he came to leave office, only enjoyed immunity from suit in respect of official acts.

The court held that a head of state was regarded as the personal embodiment of the state whilst in office, which is what justified the immunity. However, when a sovereign died, that ceased. His successor would then have immunity and there was no room in the doctrine of sovereign immunity for two embodiments of the state to exist at the same time, one dead and one living. No distinction could be drawn between a head of state relinquishing his office due to death rather than during his lifetime. Accordingly, the court refused the prince’s application.

Paul Howcroft, Partner, Fladgate LLP (phowcroft@fladgate.com)

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