The Court of Appeal has found that the former King of Spain, His Majesty Juan Carlos Alfonso Victor María de Borbón y Borbón, has functional immunity under S.14.1 of the State Immunity Act 1978 to parts of a Harassment claim brought by Corinna Zu Sayn-Wittgenstein-Sayn.
The Appeal was only concerned with acts of harassment said to have occurred while the appellant was still King Juan Carlos I of Spain, before he abdicated in 2014. A claim for harassment said to have taken place after 2014 will continue. As to the former, the Court of Appeal identified that:
36. The test under section 14(1) SIA requires consideration of whether the appellant, at a time when he remained the sovereign, was acting in a private or public capacity.
The key issue therefore was the alleged use by the Appellant of General Sanz Roldán, Director of a Spanish Intelligence Service, to perpetrate any acts of Harassment. Finding that the Appellant was acting in a public capacity if he was instructing the General to carry out acts, even unlawful ones, Lady Justice Simler summarised the views of Lord Hoffman in Jones v Ministry of Interior of Saudi Arabia, that: “the acts for which the state is responsible are “acts done under colour of public authority, whether or not they are actually authorised or lawful under domestic or international law” and so “Ulterior or improper motives of the person concerned, or where the person may be abusing public power, are all irrelevant”.
The Court of Appeal found that:
54. “On the face of the pleadings, and in the absence of any coherent basis for reaching the contrary conclusion, it was only the appellant’s position as head of state that enabled him to procure the head of the state security service to act in the manner alleged, using the CNI, whatever his private motives, and however abusive they might have been […] It is highly unlikely that a private citizen could have procured a General and the CNI to carry out the Monaco and Villars operations on their behalf. It is his public office that inevitably gave the appellant the “status and ability” to influence these actors.”
76 “Accordingly, the pre-abdication conduct alleged is immune from the jurisdiction of the courts of this country.”
The Court of Appeal also went on to uphold a finding that the exception to Immunity under S.5 SIA, for personal injury, was not made out in the claim for Harassment. “As the judge correctly held, a claim for distress and anxiety arising from an alleged course of conduct amounting to harassment is not, without more, a personal injury claim.”
The judgment can be found at: http://www.bailii.org/ew/cases/EWCA/Civ/2022/1595.html