The EAT has handed down its judgment in Basfar v Wong UKEAT/0223/19/BA, holding that the defence of diplomatic immunity applied in circumstances where the Claimant alleged she had been trafficked by her diplomat employer. However, it also granted the Claimant the first ever ‘leapfrog’ certificate direct from the EAT to the Supreme Court, and the matter looks set to continue.

The judgment

The Claimant was employed as a domestic servant at the official residence of a diplomat serving in London. She alleged that she had been trafficked to the UK in circumstances amounting to modern slavery; the Respondent disputed these allegations but argued in any event that diplomatic immunity was a complete defence to the claim.

Article 31 of the Vienna Convention on Diplomatic Relations provides for diplomatic immunity from the civil jurisdiction of the receiving state subject to a number of exceptions. The Claimant successfully argued before the Tribunal below that her allegations fell within one such exception, namely that her employment was ‘an action relating to any… commercial activity exercised by the diplomatic agent in the receiving State outside his official functions’. The Respondent appealed on the basis that the alleged facts could not be related to any ‘commercial activity’.

It was agreed that the leading authority on the meaning of ‘commercial activity’ in this context was Reyes v Al-Malki [2014] ICR 135, [2015] ICR 289 and [2017] ICR 1417, That case proceeded on materially the same assumed facts as in Basfar v Wong up to the Court of Appeal, which unanimously found that the employment of a domestic servant to provide purely personal services was not a ‘commercial activity’ within the meaning of Article 31. However, the Supreme Court ultimately decided the case on a different basis not considered by the Court of Appeal. As to the ‘commercial activity’ point, a minority produced a full obiter judgment agreeing with the Court of Appeal, while a majority expressed doubts that this approach could be correct in the context of human trafficking.

Before the EAT in Basfar v Wong, the Respondent argued that the decision of the Court of Appeal in Reyes was binding authority, following R v. Secretary of State for the Home Department, ex parte Al-Mehdawi [1990] 1 AC 876. Absent a ruling from the Supreme Court that the matter considered below did not arise for decision, the judgment of the Court of Appeal remained binding precedent. In the alternative, the Respondent argued that even if they were only of persuasive authority, the judgments of the Court of Appeal and the minority in the Supreme Court were to be preferred.

In the EAT, Mr Justice Soole rejected the Respondent’s arguments on the doctrine of precedent. Having reviewed the case law he concluded that the ratio decidendi of Al-Mehdawi was that a case must be considered as one continuous and unfragmented piece of litigation. This in turn meant that the only true ratio was to be found in the decision at the highest level in the particular litigation: all else was merely persuasive authority.

However, the EAT rejected the Claimant’s submission that, of the various obiter dicta within Reyes, it ought to favour that written by the majority of the Supreme Court. Mr Justice Soole weighed up the detail and clarity in the various persuasive judgments before him, noting that the majority of the Supreme Court had merely expressed doubts rather than reaching a clear conclusion on the matter. Accordingly, he allowed the Respondent’s appeal – but also granted permission for the Claimant to make a ‘leapfrog’ appeal straight to the Supreme Court.

Commentary

From one perspective, the EAT’s approach to the doctrine of precedent brings a welcome clarity: if a case must be viewed as one continuous and unfragmented piece of litigation, identifying the ratio will be straightforward even where the issues change over the course of an appeal. However, this case equally underscores the difficulties that can arise from a lack of binding authority: the EAT noted that it was ‘a somewhat invidious task for a lower tribunal’ to weigh up the persuasiveness of conflicting judgments of higher courts, and indeed elected to grant a ‘leapfrog’ appeal direct to the Supreme Court.

Should this case proceed before the Supreme Court, it would provide welcome authority on an important point of law. However, diplomatic immunity under Article 31 no longer applies if a diplomat finishes his post and leaves the United Kingdom – a different provision of the Vienna Convention instead becomes relevant. Indeed, this was the change of circumstances that led the Supreme Court in Reyes to decide the case on a different basis to the Court of Appeal. It therefore remains possible that, notwithstanding the ‘leapfrog’ appeal, this aspect of diplomatic immunity could remain uncertain going forward.