UK: Will Diplomatic Immunity Win – Game, Set And Match?

Former world number one and three-time Wimbledon champion Boris Becker, who was declared bankrupt by an order dated 21 June 2017, is claiming diplomatic immunity against ongoing bankruptcy proceedings in the High Court. Mr Becker claims his role as sports attaché to the Central African Republic (CAR) makes him immune from further actions against his assets over debts owed to private bank Arbuthnot Latham and other creditors.

The trustees of Mr Becker's estate applied on 31 May 2018 to have Mr Becker's bankruptcy continue as they consider he has failed to comply with his obligations. The Insolvency Act 1986 provides for an automatic discharge from bankruptcy after 12 months from the bankruptcy commencement, subject to an order being made suspending the discharge. In June Mr Becker's lawyers made submissions claiming diplomatic immunity based on Mr Becker's purported appointment as the CAR sporting, cultural and humanitarian attaché to the European Union in April 2018. Mr Becker's claim is that the appointment entitles him to immunity pursuant to the Diplomatic Privileges Act 1964 (DPA), which gives effect to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Specifically, Article 31 of the VCDR grants a "diplomatic agent" immunity from the criminal, civil and administrative jurisdiction of the receiving State, with limited exceptions. At a hearing in June, the parties agreed that the discharge from bankruptcy should be suspended, with the Individual Insolvency Register recording "discharge suspended indefinitely" subject to the fulfilment of conditions specified in the order made by the Court and effective from 18 June 2018.

Injunctive relief

The trustees in bankruptcy were due to hold an auction of Mr Becker's trophies and memorabilia on 28 June 2018. Mr Becker's legal team applied for an injunction to prevent the auction proceeding, with claims that the sale would strip their client of his personal dignity as it was deliberately timed to coincide with the start of Wimbledon. On 27 June 2018, the trustees in bankruptcy agreed to postpone the auction with an agreed order to that effect being approved by Deputy Insolvency and Companies Court Judge Catherine Addy QC. It is unclear when the auction will now take place.

Diplomatic immunity

The scope of state and diplomatic immunity has recently been considered by the UK Supreme Court in the context of employment claims brought in the English courts by members of the service staff of diplomatic missions (see Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs, Libya v. Janah [2017] UKSC 62 and Reyes v. Al-Malki & Anor [2017] UKSC 61). Diplomatic law, governed by international law, confers extensive privileges and immunities on the individual diplomat and the sending State in respect of its mission. These constitute an exception to the general rule that aliens resident in a State are subject to its jurisdiction. The principal codification of these privileges and immunities is contained in the VCDR, which is given effect in the UK by the DPA. Schedule 1 to the DPA details the articles of the VCDR having the force of law in the UK.

Diplomatic agents are inviolable. Article 29 of the VCDR provides that a diplomatic agent shall not be liable to any form of arrest or detention, and the UK shall treat them with due respect and take all appropriate steps to prevent any attack on their person, freedom or dignity. Relevantly, Article 31(1) of the VCDR grants diplomatic agents immunity from the criminal, civil and administrative jurisdictions of the receiving State. There are limited exceptions to that immunity in the case of:

  1. A real action relating to private immovable property situated in the territory of the receiving State, unless held by the diplomatic agent on behalf of the sending State for the purposes of the mission.
  2. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person, and not on behalf of the sending State.
  3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside the agent's official functions.

The last exception to diplomatic immunity may be the subject of submissions by the trustees in bankruptcy in the upcoming hearing against Mr Becker.

In addition, Article 31(3) of the VCDR provides that no measures of execution may be taken in respect of a "diplomatic agent" except in the limited circumstances referred to above, and provided the measures concerned can be taken without infringing the inviolability of the agent's person or residence. The immunity from jurisdiction may, however, be expressly waived by the sending State pursuant to Article 32 of the VCDR. In the case at hand, assuming Mr Becker meets the definition of "diplomatic agent" and is entitled to diplomatic immunity, the CAR may waive his immunity from the civil jurisdiction, enabling the bankruptcy proceedings to proceed. If the High Court is satisfied that Mr Becker is entitled to diplomatic immunity (and the CAR does not waive any immunity), the bankruptcy proceedings will be dismissed. As stated by Lord Sumption in Reyes v. Al-Malki & Anor [2017] UKSC 61 at [49]:

"An action brought against persons entitled to diplomatic immunity is not a nullity. It is merely to be dismissed. There are therefore valid proceedings currently on foot. Diplomatic immunity is a procedural immunity. The procedural incidents of litigation normally fall to be determined by a court as at the time of the hearing. Thus a waiver of immunity after the commencement of proceedings would dispose of any diplomatic immunity which previously existed."

Notably, on termination of a diplomat's office, a diplomatic agent loses their personal immunity and can be sued for personal debts contracted, but retains immunity ratione materiae for any acts they performed on behalf of the State they represented (see Article 39 of the VCDR). For example, in Shaw v. Shaw [1979] 3 All ER 1, a wife filed a petition for a dissolution of her marriage to a diplomat attached to the U.S. embassy. At the time her husband was immune from suit, but the petition was allowed to proceed once the husband's posting came to an end and he left the United Kingdom.

Diplomatic agent

Mr Becker's case will arguably turn on whether he meets the definition of "diplomatic agent" (and does not fall foul of the limited exceptions) and, if so, whether any express waiver of immunity has been provided by the CAR. Relevantly, Article 1(e) of the VCDR provides that a "diplomatic agent" is the head of the mission (e.g. an ambassador or high commissioner) or a member of the diplomatic staff of the mission. "Members of the diplomatic staff" are separately defined as "members of the staff of the mission having diplomatic rank" (see Article 1(d)). Mr Becker claims his CAR passport is evidence of his diplomatic status. The validity of this claim was questioned by the CAR foreign minister, but the minister was subsequently contradicted by the CAR embassy in Brussels, which confirmed Mr Becker's status as a diplomat and that he retains an office in Brussels to carry out his work. As noted earlier, if Mr Becker is recognised as a "diplomatic agent" by the Court and there has been no express waiver by the CAR, he would be immune from suit, and the bankruptcy proceedings would bedismissed. This will be the subject of a further hearing anticipated to be held after 5 October 2018.

The outcome of the October hearing will no doubt be eagerly awaited by Mr Becker and diplomats in the UK. The issue of diplomatic immunity in the context of bankruptcy proceedings has not been considered widely and is therefore of interest. The growing trend to assert diplomatic status to shield persons from proceedings has been the subject of criticism in recent years. An update on these proceedings will be provided following the hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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