On 24 March 2022, Mr Justice Nicklin handed down judgment rejecting the Defendant’s challenge to the jurisdiction of the English Court on the basis of state immunity in the case of Corinna zu Sayn-Wittgenstein-Zayn v His Majesty Juan Carlos Alfonso Víctor María de Borbón y Borbón  EWHC 668 (QB), which was heard on 6-7 December 2021.
Each of the grounds advanced in support of the challenge to jurisdiction based on state immunity was unsuccessful. The Court found that:
- Despite his special status within Spain as the King Emeritus, the Defendant is not a “sovereign” within the meaning of section 20(1)(a) of the State Immunity Act 1978 (“SIA”). There is only one “sovereign or other head of state” of Spain, and that is the Defendant’s son, King Felipe VI.
- The Defendant is not a member of King Felipe VI’s “family forming part of his household” for the purposes of immunity pursuant to section 20(1)(b) SIA. The relevant principles are found in the Court of Appeal decision in Apex Global Management Ltd -v- Fi Call Ltd & Others  1 WLR 492, and the key factor is whether the Defendant is a dependent of King Felipe VI, which he is not. He does not live with the current King or in Spain. The test is not whether the Defendant closely assists the current King, but even if that were the test the Defendant does not do so, as he has retired from public life. Finally, having a special status within Spain is not enough to bring the Defendant within the meaning of King Felipe VI’s “household”.
- There is no functional immunity under s.14 SIA in respect of allegations that took place before the Defendant’s abdication, although the Court found this issue more difficult. The acts of harassment complained of in the particulars of claim were clearly private acts. However, the Court found that some individual allegations were unclear as to whether they were performed by Spanish state actors or not i.e. acts of general surveillance, trespass or an incident at the Claimant’s residence in Monaco, some of which may have been official acts under colour of authority. The Court found that as matters stand it was not satisfied there was a basis for a finding of functional immunity. Other allegations, e.g. the placing of a book about the death of Princess Diana on a coffee table in the Claimant’s home in Switzerland, were not subject to immunity. The Court found that references to allegations involving General Sanz Roldán (the former head of the Spanish central national intelligence agency, the CNI) should be amended in the Particulars of Claim to make clear that he is alleged to have been acting in a personal and not official capacity.
The Court also found that the Claimant’s claim for distress and anxiety for harassment did not amount to a claim for personal injury. The Court therefore found that, if it was required (which it was not), there was no exception to state immunity pursuant to s.5 SIA.
A copy of the judgment is available here.
Andrew Legg acted for the Claimant as part of a counsel team led by James Lewis QC, instructed by Robin Rathmell and James Chapman-Booth of Kobre & Kim (UK) LLP.