25 March 2016
The judgment of Mr Justice Hayden on 8 February 2016 in Estrada v. Jufalli would have established a dangerous precedent if upheld. For it would have denied diplomatic immunity to Walid Juffali – the Saudi billionaire nominally serving as Perm Rep of St. Lucia at the International Maritime Organisation in London – partly because he had failed to discharge the functions of his office. This threatened the possibility that any diplomatic officer accepted by a receiving state might – following a politically influenced or simply incompetent ‘functional review’ of the role of the individual in question by one of its courts – later be similarly denied immunity on the grounds of being a ‘sham’ diplomat. Fortunately, on 22 March, the Court of Appeal, assisted by arguments presented by the Foreign and Commonwealth Office, comprehensively refuted this part of Mr Justice Hayden’s judgment. His controversial decision has, nevertheless, served to highlight the need for more strenuous efforts to be made to block the appointment of truly dodgy diplomats in the first place, a possibility lawfully available to foreign ministries. By way of footnote, I should add that Walid Juffali’s appeal against the original High Court judgment did actually fail overall because the Court of Appeal upheld Mr Justice Hayden’s other opinion; namely, that he was permanently resident in the UK and therefore, in diplomatic law, not immune from a claim unrelated to his official duties. I am grateful to Professor Craig Barker, Dean of the School of Law and Social Sciences at London South Bank University, for drawing my attention to this and related cases.