Diana Loson appeals Court of Appeal judgment to the United Kingdom Supreme Court
Loson v Brett Stack & Anor [2018] EWCA Civ 803; Times, April 26, 2018
On 26/8/2016, the Court of Appeal granted Mrs Diana Loson permission to appeal on a second appeal.
On 17/4/2018, the Court of Appeal determined the appeal. It provided guidance on the correct test to vary a judgment debt under CPR r 40.9A.
The Court of Appeal rejected the contention that the test to vary a judgment debt under CPR r 40.9A is one of exceptional circumstances.
The Court of Appeal, however, provided further guidance to the Courts on the circumstances in which a creditor can enforce a judgment debt, and a debtor is entitled to payments by instalments.
On the basis of this guidance, the Court of Appeal set aside the order made by the learned District Judge.
On 2 May 2018, Mrs Diana Loson filed a petition with the United Kingdom Supreme Court, seeking leave to appeal against the Court of Appeal’s guidance. A decision is now pending.
Arfan Khan was instructed throughout the Court of Appeal proceedings, and is now instructed on appeal to the Supreme Court. He did not appear in the proceedings below.
The decision of the Court of Appeal can be accessed here:
Supreme Court judgment: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and another v Janah [2017] UKSC 62; [2017] All ER (D) 84 (Oct); [2017] WLR (D) 691, SC
Supreme Court of the United Kingdom
Lord Sumption (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree), dismissed the appeal of the Secretary of State for the Foreign and Commonwealth Office and affirmed an order of the Court of Appeal. In summary, the Supreme Court held:
(1). To determine customary international law, complete state uniformity is not required, but substantial uniformity is. This was evident from Brownlie’s Principles of Public International Law, 8th ed (2012), 24, which accords with all the authorities (§ 31).
(2). It is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris) (§ 31).
(3). It is necessary to ask what is the relevant rule of international law by reference to which Article 6 must be interpreted (§ 33). The law requires the Court to measure sections 4 (2) (b) and 16 1 (a) against the requirements of customary international law, something that cannot be done without deciding what those requirements are (§ 35). The SSFCO’s argument that article 6 of the Human Rights Convention is satisfied if the rule of the forum state “reflects” generally recognised principles of international law, and that it was not necessary to show that international law requires a state to be immune, was misconceived. The distinction between “reflects ” and “requires” was a purely semantic one. (§ para 33-34).
(4). There was no rule of customary international depriving the employment tribunal of its jurisdiction to hear employment claims of a non-sovereign nature. Article 6 was engaged through a refusal to exercise that jurisdiction. The jurisdictional issue raised by Lord Millett in Holland v Lampen-Wolfe and by Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia did not arise. (§ 75).
(5). There is no international consensus sufficient to found a rule of customary international law corresponding to section 16 1 (a) of the State Immunity Act 1978 (§ 73).
(6).Section 4 (2) (b) of the State Immunity Act 1978 is not justified by any binding principle of international law (§ 67).
(7). The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority (§37).
(8). The State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter (§ 63). There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (§ 63).
(9). It is evident from a history of state immunity that there has probably never been a sufficient international consensus in favour of the absolute doctrine of immunity to warrant treating it as a rule of customary international law (§ 52). The only consensus that there has ever been about the scope of that immunity is the consensus in favour of the restrictive doctrine (§ 52).
(10). In so far as sections 4(2)(b) and 16(1)(a) conferred immunity, they were incompatible with art 6 of the Human Rights Convention, and art 47 of the Charter of Fundamental Rights of the European Union (§ 76).
(11). Section 4 (2) (b) unquestionably discriminates on grounds of nationality. The denial of access to justice is unjustifiable whether discriminatory or not (§ 77).
(12). The scope of article 47 of the Charter is not identical to that of article 6 of the Human Rights Convention (§ 78).
(13). In so far as claims fell within the material scope of EU law, the relevant provisions were disapplied (§ 78-79).
Arfan Khan was instructed as lead Counsel for 4A Law Public Interest Lawyers Ltd, and successfully upheld the Court of Appeal judgment through written submissions on the above points following the grant of permission to intervene by the Supreme Court. Permission to intervene was opposed.
The official Supreme Court judgment can be viewed through the following link in full: https://www.supremecourt.uk/cases/docs/uksc-2015-0063-judgment.pdf. It is the only authoritative source and should be read in full. The relevant parties and their legal representatives are recorded at page 2 of the judgment.
Arfan Khan leads the 4A Law written intervention submissions in the United Kingdom Supreme Court. The intervention concerned a landmark State Immunity appeal. The Court of Appeal set aside the State Immunity Act 1978 in order to give effect to Article 47 of the EU Charter. It declared the State Immunity Act 1978 incompatible with Article 6 of the ECHR. In the Court of Appeal, Arfan Khan appeared as lead Counsel for 4A Law. On appeal to the Supreme Court, Arfan Khan led for 4A Law and secured permission to intervene, which was opposed. Thereafter written submissions were filed. Amongst other issues, these submissions addressed the application of Article 6 of the ECHR, Article 47 of the EU Charter, customary international law (including the test for identifying the same), procedural and substantive bars, absolute/restrictive immunity, and the application of these principles to employment claims falling within the material scope of EU law. The Supreme Court judgment has been reserved. The substantive hearing can be viewed through the Supreme Court website, where Arfan Khan was instructed to appear in the context of the 4A Law written submissions:
Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption.
Judgment appealed:
[2015] EWCA Civ 33:
Parties
Appellants
Secretary of State for Foreign and Commonwealth Affairs
[Libya]
[Embassy of the Republic of Sudan]
Respondent
[Ms Fatima Ahmed Benkharbouche]
Ms Minah Jonah
Interveners
The AIRE Centre
4A LAW Public Interest Lawyers Ltd
From the Supreme Court website:
“Issue
Whether granting immunity from suit under the State Immunity Act 1978 engages, and breaches, the Respondents’ rights under the European Convention on Human Rights (ECHR) and EU Charter.
Facts
Ms Janah was employed as a member of the domestic staff at the Libyan Embassy in London. Ms Benkharbouche was employed in the Sudanese Embassy. Following dismissal from their employment, the claimants issued claims in the Employment Tribunal. Libya and Sudan claimed immunity from suit under the State Immunity Act 1978. The claimants responded that barring their claims would breach Article 6 and/or Article 14 of the ECHR and/or Article 47 of the EU Charter. The Court of Appeal accepted the claimants’ arguments, making a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 and disapplying the State Immunity Act 1978 in respect of the elements of the claims within the scope of EU law. The Secretary of State was joined to proceedings at the Court of Appeal stage as entitled under section 5 Human Rights Act 1998”.
