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The Court of Appeal refuses the Kuwait Investment Office’s application for permission to appeal in respect of alleged diplomatic immunity

Published:

Overhead view of colleagues in meeting

The Court of Appeal has refused the application for permission to appeal of the Kuwait Investment Office (KIO) challenging the judgment of Ellenbogen J in Kuwait Investment Office v Hard [2022] EAT 51.

The EAT appeal concerned disclosure orders made by the Employment Tribunal in the course of proceedings brought by the claimant against the KIO. The KIO asserted state immunity in defence of the claims. The claimant made disclosure applications against the KIO, which were resisted on various grounds, including the allegation that the KIO enjoyed diplomatic immunity from disclosure orders. The Tribunal rejected the KIO’s arguments and ordered disclosure.

The EAT rejected the KIO’s appeal. In a detailed judgment handed down in March 2022, it found:

  • The fact that the KIO had separate legal personality from Kuwait’s diplomatic mission did not, in principle, prohibit it from being part of the mission (and therefore from enjoying diplomatic immunity).
  • However, there was no evidence of the UK Government expressly recognising the KIO as being part of the Kuwaiti diplomatic mission.
  • Nor, as a matter of law, could the recognition of a diplomatic mission by the UK Government be implied absent an express statement. Even if it could, on the facts, the EAT would not have inferred such recognition.
  • Accordingly, the KIO did not enjoy diplomatic immunity.

The EAT also made other findings in relation to the KIO’s appeal, including that as a matter of procedure the claimant was not required to enter a reply to the defence of state immunity.

The KIO appealed the EAT’s judgment to the Court of Appeal. By order this week, permission to appeal was refused, Simler LJ holding that it enjoyed no real prospects of success.

James Laddie QC and Nathan Roberts successfully represented the claimant in the EAT and in the permission application in the Court of Appeal. Nathan Roberts successfully represented the claimant at first instance.

The EAT’s judgment can be found here.