Mbasogo & another v Logo Ltd & others (CA)
- Date: 23/10/2006
Full name: Teodoro Obiang Nguema Mbasogo (the President of the State of Equatorial Guinea) (2) The Republic of Equatorial Guinea v (1) Logo Ltd (a company incorporated in the British Virgin Islands) (2) Systems Design Ltd (a company incorporated in the Bahamas) (3) Greg Wales (4) Simon Francis Mann (5) Eli Calil (6) Severo Moto
Citation: [2006] EWCA Civ 1370, [2007] QB 846
Related barrister: John McLinden
The claimants brought claims in respect of an alleged conspiracy by the defendants to overthrow the government of Equatorial Guinea, by means of a private coup, to seize control of the state and its valuable oil resources, to kill or injure the first claimant and to install the sixth defendant (currently in exile in Spain), as the new President.
Mr Justice Davis struck out the first claimant’s claim for damages for assault, conspiracy and intentional infliction of harm by unlawful means against the first, second and fourth defendants (the “Kerman defendants”), and against the third, fifth and sixth defendants. He struck out the second claimant’s claim for damages for conspiracy against the Kerman defendants, and the third, fifth and sixth defendants. He refused permission to amend the particulars of claim relating to the first claimant’s claim for damages for the causes of action identified, but he refused to strike out the claim for an injunction and granted permission to the claimants to amend the particulars of claim in respect of that relief. The Claimants appealed.
Clarke MR, Dyson and Moses LJJ held:
1) The claims were not justiciable and Davis J had been right to strike them out. In determining whether the claims by the second defendant for special damages and for an injunction (and by the first claimant in so far as he made the same claim for special damages) were justiciable, the critical question was whether in bringing a claim, the claimants were doing an act which is of a sovereign character or which is done by virtue of sovereign authority; and whether the claim involves the exercise or assertion of a sovereign right: Emperor of Austria v Day and Kossuth (1861) 3 De G & F & J 217. If so, then the court cannot determine or enforce the claim. The mere fact that the claimants were the President and the Republic of Equatorial Guinea was not sufficient to make the claims non-justiciable, but English courts have no jurisdiction to entertain an action for the enforcement of “a penal, revenue or other public law of a foreign state, or founded upon an act of State”: rules 3(1) and (2) in Dicey, Morris and Collins, Conflict of Laws (14th ed.). Although most of the cases concern actions for the enforcement of penal or revenue laws, these are merely examples of a wider principle. If the alleged coup had been successful and damage had been caused to buildings or other property owned by the claimants, a claim in tort to recover damages would have been justiciable in the courts of this country. However, the claims pleaded were not founded upon the claimants’ property interests, but rather on steps taken in the defence of the State, which is a paradigm function of government.
2) In any event, the claims for assault were rightly struck out, because there was no suggestion that the advanced party alleged to have been sent to kill or injure the President, were armed or had the capacity to carry out an immediate attack. There is ample authority for the proposition that a capacity to inflict immediate and unlawful force must be proved: see for example Scott J. in Thomas v NUM [1986] 1 WLR 20 at 62B-C. R v Ireland [1998] AC 147 did not change this position. The alleged presence of the advanced party on Bioko (the island where the capital Malabo is situated), and the alleged presence of a large number of mercenaries in Zimbabwe ready to load arms en route to Malabo, was not sufficient to make out the tort of assault.
3) The torts of intentional infliction of harm (if such a tort exists) and conspiracy to injure by unlawful means, do not give rise to a cause of action where the harm alleged is of severe emotional distress falling short of psychiatric injury. The general principle that mental suffering, by which is meant distress falling short of bodily or mental injury, does not sound in damages: Hicks v Chief Constable of Yorkshire [1992] 2 All ER 65 at page 69. That principle holds true even where the acts alleged to have caused the distress are both unlawful and were intended to cause such distress. In Wainwright v Home Office [2004] 2 AC 406 at para 46, Lord Hoffmann was not saying that compensation should be recoverable, even in cases where there is a genuine intention to cause distress. Moreover, actions intended to cause distress fall within the meaning of the word “harassment”, and by enacting the Protection from Harassment Act 1997 (which does not define harassment), Parliament chose not to provide for compensation arising out of a single action (ss.1 and 2 of that Act requiring a course of conduct before liability will be imposed). It was therefore impossible for the court to recognise such a right by development of the common law.
4) It was not necessary or appropriate to consider the arguments relating to the tort of conspiracy to injure by unlawful means and its ingredients. The court took the view it would not be satisfactory to express opinions as to the ingredients of the tort in an important area of the law which will be obiter unless the House of Lords reaches a different conclusion on the justiciability issue.