Empson v.

Smith
Court of Appeal
26 May 1965
[Plaint No. T. 1088.]
[1966] 1 Q.B. 426

Facts of the Case

1.

On October 17, 1961, the plaintiff, Mrs. Agnes Mary Stella Empson
, by a tenancy agreement, let a house ,to the defendant, Clarence
Burton Smith, for a term of one year certain.

2.

On December 4, 1961, the defendant told the plaintiff, what he

subsequently swore by affidavit, the had been officially ordered to
proceed for a tour of duty on the Continent of Europe and gave notice
dated December 12, 1961, to determine the tenancy agreement. He left
the premises on about March 13, 1962.
3. On March 22, 1963, the plaintiff began proceedings in the County
Court in which she claimed damages for breach of the tenancy
agreement.
4. On December 15 , Deputy Judge Granville Slack struck out the
action on the ground that the proceedings were a nullity at the time
they were begun and were not affected by the Act of 1964

Diplomatic Immunities (Commonwealth

Countries and Republic of Ireland) Act,1952
The Act of 1952 provides, by section 1 (1) : "Subject to the
provisions of this section" (then omitting (a)) "(b) such members of
the official staff of a chief representative as are performing duties
substantially corresponding to those performed by members of the
official staff of an envoy of a foreign sovereign Power shall be
entitled to the like immunity from suit and legal process as is
accorded to members of the official staff of such an envoy";
subsection (3) provides that:
"If in any proceedings any question arises whether or

not any person is entitled to immunity from suit and

legal process under any provision of this section or of
any Order in Council made thereunder, a certificate
issued by or under the authority of the Secretary of
State stating any fact relevant to that question shall be
conclusive evidence of that fact."

Diplomatic Privileges Act, 1964

Since the beginning of the action, however, on October 1, 1964, the Diplomatic
Privileges Act, 1964 , came into force, and this Act draws a distinction between
the immunity which is given to a "diplomatic agent" and the "members of the
administrative and technical staff" of a mission. Schedule 1, Article 31 provides:
"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of: (a) a real action relating to private immovable
property situated in the territory of the receiving State, unless he holds it on
behalf of the sending State for the purposes of the mission." Article 37 provides,
inter alia:
2. members of the administrative and technical staff of the mission ...
shall, if they are not nationals of or permanently resident in the
receiving State, enjoy the privileges and immunities specified in
articles 29 to 35 , except that the immunity from civil and
administrative jurisdiction of the receiving State specified in
paragraph 1 of article 31 shall not extend to acts performed outside
the course of their duties."

APPEAL from Deputy Judge Granville Slack, sitting at Willesden

County Court
Diplock L.J.
1. If the defendant had applied before the passing of the Diplomatic Privilege
Act, 1964 , to have the plaintiff's action dismissed there would have been no
answer to his application. But he delayed until November, 1964.
2. By that date his right to immunity from civil suit had been curtailed by that
Act which applies to the United Kingdom the provisions of the Vienna
Convention on Diplomatic Relations, 1961 contained in the schedule to the
Act. By the combined effect of articles 31 and 37 of the Convention as a
member of the administrative and technical staff of the mission his immunity
from the civil jurisdiction of the courts of the United Kingdom does not extend
to acts performed outside the course of his duties.
3. Whether he is entitled to immunity in any particular suit no longer depends
solely upon his status but also upon the subject-matter of the suit.

SELLERS L.J.

1. The plaintiff is entitled to succeed to the extent of having the matter

heard by the county court first to consider whether the stay should
be removed on the ground that the defendant has not been
entitled to diplomatic immunity in respect of his liability
under his tenancy agreement with the plaintiff since the
Diplomatic Privileges Act, 1964 , came into force on October 1,
1964, and second, if that is so, to hear the claim on its merits.
2. A change in the law, as here, permits the action to proceed if it
removes the immunity previously granted. The defendant did not
previously apply to have the action struck out as a nullity. He is too
late now if, as seems probable, he is no longer entitled to immunity in
respect of this present claim before the court.

DANCKWERTS L.J.
1. A further certificate given by the Secretary of State certified under section 4 of the
Diplomatic Privileges Act, 1964 , that Mr. C. B. Smith was on [October 1] a
member of the administrative and technical staff of the diplomatic mission of
Canada in the United Kingdom, that he has since that date continued to be a
member of the said administrative and technical staff and he is now such a
member.
2. Diplomatic Privileges Act , 1964 affected the position of the members of
administrative and technical staff of diplomatic mission and must have affected
the position of defendant. Consequently, it appears that the position of the
.
defendant
may have been altered before December 15, 1964
3. Moreover, it is clear that waiver must be a waiver by a person with full
knowledge of his rights and a waiver by or on behalf of the chief representative of
the state in question.
4. There has, of course, been no waiver in the present case, but diplomatic
immunity may be lost by change of circumstances.

Case Laws
1. Reg. v. Madan . ([1961] 2 Q.B. 1 , 7)
Lord Parker C.J. in Reg. v. Madan. ([1961] 2 Q.B. 1 , 7) referred that to the
proceedings being "null and void unless and until there is a valid waiver which, as
would bring the proceedings to life and give jurisdiction to the court" should not
be read as meaning that only waiver can bring the proceedings to life. The removal
of the procedural bar from any other cause will have the same effect

2. Zoernsch v. Waldock, [1964] 1 W.L.R. 675

Apart from waiver, the immunity may be lost in respect of a private debt
of the agent, by the cessation of his diplomatic employment and status.
3. Dickinson v. Del Solar, . [1930] 1 K.B. 376
It is elementary law that diplomatic immunity is not immunity from legal
liability but immunity from suit. If authority is needed for this it is to be
found in Dickinson v. Del Solar that statutes relating to diplomatic
immunity from civil suit are procedural statutes.

Conclusion
1. The result is that if the immunity ceases, the cause of action, if not barred by
the Limitation Act, 1939 ,will remain. Consequently, when the Order of
December 15, 1964, was made, the defendant's diplomatic immunity from legal
process in England had ceased, and the plaintiff was entitled to have her action.
2. It is elementary law that diplomatic immunity is not immunity from legal
liability but immunity from suit.
3. The applications by the plaintiffs for removal of the stay and by the defendant for
dismissal of the action must go back to the county court for determination of the
issue whether the acts of which the plaintiff complains were performed by the
defendant outside the course of his duties. Upon this issue evidence will be required.
If on that evidence it is not determined that the acts complained of were performed
outside the course of his duties he is entitled to have the action dismissed.

THANKYOU.