REUTERS | Fadi Al-Assaad

Immunities and the importance of pleading

The decision

Al Attiya v Bin-Jassim Bin-Jaber Al Thani has highlighted recently the importance of pleading when bringing an action against a state. The claimant, a member of a prominent Qatari family, brought proceedings against the defendant, who was a former prime minister of Qatar, for damages for trespass to his land and to his person. One element was that the defendant had abused the power of his public position and conspired to injure the claimant.

The court held that it did not have jurisdiction on the basis that:

I wish to focus on the court’s findings on state immunity. In the course of argument, the claimant submitted that the pleadings could be amended to make clear that it was not a necessary element to the action that the Qatari state be impleaded. This was on the basis that many of the inductions of other public officials in the conspiracy could have been achieved through the defendant’s private influence as a wealthy individual and his ability to persuade public officials to suit his purposes.

However, the court rejected such a position on the basis that the issue of jurisdiction is to be determined on the pleadings at a preliminary hearing in advance of trial. Further, there had been no effort to amend the pleadings, nor was this argument advanced at any stage prior to the hearing. Thus Blake J held that it was too late to permit the claimant to fundamentally reformulate the claim in an endeavour to avoid the application of state immunity.

Nevertheless, his Lordship continued, obiter, that it was difficult to see how the two “hats” of being a private individual and a public official could be easily severed, and that many public officials would be implicated on the proposed amendments, such that his Lordship appeared to be against the claimant in any event.

Commentary

There are numerous exceptions to state immunity but the most significant for commercial practitioners is often the exception of commercial transactions contained in section 3 of the SIA.

The significance of the Al Attiya judgment is that practitioners will have to ensure that their claim is limited solely to the facts required to establish the cause of action which constitutes such a commercial transaction. Whilst often there will be a temptation to include extra detail of mistreatment suffered by the claimant in the pleadings, so as to inform the court of the wider matrix in which the cause of action has arisen, such a temptation must be resisted to avoid the invocation of state immunity.

Further, section 3(3)(c) of the SIA includes commercial “activity” within the definition of a “commercial transaction”. This means that it is technically broad enough to include claims in tort and contract. However, in reality, following Al Attiya, it will be very difficult to plead a tortious claim against a state or public official in such a way that avoids directly or indirectly impleading the state.

Thus a party’s ability to bring an action against a state or public official will, most likely, be limited to contractual actions. The claimant should be wary of pleading their claim in the tortious alternative because they may inadvertently implead the state and bring the complications of state immunity into the case. In any such contractual actions, the key issues on state immunity will be:

  • The wording of the contract upon which a party sues.
  • Whether it contains a submission to the jurisdiction, under section 2 of the SIA, or an arbitration agreement, under section 9 of the SIA.
  • Whether it contains written consent to enforcement against state assets, under section 13(3) of the SIA, or whether those assets are for the time being in use or intended for commercial use, under section 13(4) of the SIA.
  • Upon what facts the claimant must rely to make good their claim.

Overall, the impact of Al Attiya is that the claimant should avoid the temptation of telling a broad story of mistreatment or discrimination, and rather keep their pleading as focused and narrow as possible to avoid the unnecessary complications of state immunity. Further, the claimant should think twice before commencing a tortious action as a primary or alternative claim as this case demonstrates the danger of doing so.

Stone Chambers Andrew Dinsmore

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