Court of Appeal decides whether sovereign immunity can be claimed after death of the sovereign

The novel issue in dispute in this case is whether, where a sovereign dies whilst still in office, his immunity from suit continues to extend to everything which he did when he was head of state. There was no prior caselaw involving this situation although it is an established principle that when a head of state ceases to hold office during his lifetime, his on-going immunity from suit is thereafter limited to acts which constituted the performance of his official functions during his period in office. At first instance, it was held that the head of state did not have immunity (see Weekly Update 22/14) and the Court of Appeal has now dismissed the appeal from that decision.

The case was decided on the assumption that defendant was acting as the representative of his father, King Fahd of Saudi Arabia, and that he would have been able to claim sovereign immunity had the claim against him been brought whilst his father was still alive. Taking into account Article 39 of the Vienna Convention on Diplomatic Relations 1961, and treating it as if it applied to heads of state rather than diplomats, the Court of Appeal concluded that when a head of state ceases to be such, his immunity must also cease (save in respect of official acts performed whilst he was head of state). It was further held that this rule applies "whether the person has ceased to be head of state whilst alive or has done so because he has died". The position regarding immunity for private acts in respect of the estate of a head of state who died in office is therefore no different from that of a person who had been head of state but who left office and lived for some time thereafter.