McElhinney v Williams

JurisdictionIreland
JudgeMR JUSTICE DECLANCOSTELLO
Judgment Date15 April 1994
Neutral Citation1994 WJSC-HC 1216
Date15 April 1994
CourtHigh Court

1994 WJSC-HC 1216

THE HIGH COURT

No. 4564P/1993
WCELHINNEY v. WILLIAMS

BETWEEN

JOHN McELHINNEY
Plaintiff

AND

ANTHONY IVOR JOHN WILLIAMS

AND

HER MAJESTY'S SECRETARY OF STATE FOR NORTHERNIRELAND
Defendants
TRANSCRIPT OF JUDGMENT

Citations:

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988

GOVERNMENT OF CANADA V EMPLOYMENT APPEALS TRIBUNAL (EAT) 1992 2 IR 484

UNFAIR DISMISSALS ACT 1977

CONGRESO DEL PARTIDO 1983 AC 244

ZARINE V OWNERS OF SS RAMAVA 1942 IR 148

SCHMIDT V THE HOME SECRETARY OF THE UNITED KINGDOM, COMMISSIONER OF THE METROPOLITAN POLICE & DAVID JONES UNREP MURPHY 19.1.94

STATE IMMUNITY ACT 1978 (UK)

UNITED STATES OF AMERICA FOREIGN SOVEREIGN IMMUNITY 1976 (US)

CANADIAN STATE IMMUNITY ACT 1982 (CAN)

EUROPEAN CONVENTION ON SOVEREIGN IMMUNITY 1972

Synopsis:

ACTION

Foreign State

Minister - Defendant - Liability - Immunity - Plea - Cause of

action - Tort committed by foreign soldier within the State -

Claim of sovereign immunity upheld - Tests applicable -

(1993/4564 P - Costello J. - 15/4/94)1995 3 IR 382 1994 2 ILRM 115

|McElhinney v. Williams|

CONSTITUTION

International relations

International law - Principles - Recognition - Foreign State - Minister - Defence - Immunity - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Tests applicable - (1993/4564 P - Costello J. - 15/4/94) - [1995] 3 I.R. 382 - [1994] 2 ILRM 115

|McElhinney v. Williams|

CONSTITUTION

Personal rights

Recourse to courts - Regulation - Foreign State - Minister - Defence - Immunity - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Principles of international law - Tests applicable - (1993/4564 P - Costello J. - 15/4/94) 1995 3 IR 382 1994 2 ILRM 115

|McElhinney v. Williams|

PRACTICE

Defence

Foreign State - Minister - Immunity - Claim - Cause of action - G7G Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Tests applicable - (1993/4564 P - Costello J. - 15/4/94) - [1995] 3 I.R. 382 - [1994] 2 ILRM 115

|McElhinney v. Williams|

SOVEREIGN IMMUNITY

Claim

Foreign State - Minister - Defendant - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Tests applicable - (1993/4564 P - Costello J. - 15/4/94) - [1995] 3 I.R. 382 - [1994] 2 ILRM 115

|McElhinney v. Williams|

WORDS AND PHRASES

"Sovereign immunity"

Foreign State - Minister - Defence - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Tests applicable - (1993/4564 P - Costello J. - 15/4/94) - [1995] 3 I.R. 382 - [1994] 2 ILRM 115

|McElhinney v. Williams|

1

DELIVERED BY THE HONOURABLE MR JUSTICE DECLANCOSTELLOON 15TH APRIL 1994

2

On 29th June 1993 the plaintiff (John McElhinney) issued these proceedings by way of a Plenary Summons. The Plenary Summons originally had an indorsement under the provisions of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988, but counsel subsequently concluded that the judgments convention did not apply and so an application was made on 19th July 1993 for leave to serve notice of the Summons out of the jurisdiction.

3

The first-named defendant (Anthony Williams) is a corporal in the British Army and is apparently resident in Northern Ireland. The second-named defendant is the Secretary of State for NorthernIreland.

4

The proceedings relate to an alleged assault committed by the first-named defendant within the jurisdiction of this court on 4th March 1991. The alleged assault was caused, it is said, by an attempt to fire a loaded gun at the plaintiff. The claim against the Secretary of State for Northern Ireland is that he was responsible for the affairs of Northern Ireland, including the actions of Corporal Williams, on the date in question. An appearance on a 'without prejudice' basis was entered and then the Secretary of State brought a Motion dated 21st January 1994 to set aside service on him on the ground that the plaintiff cannot implead the Secretary of State in these proceedings because of the doctrine of sovereign immunity.

5

The issue on this Motion is whether the principle or doctrine ofsovereign immunity should be applied to the facts of this case. The submission on behalf of the Secretary of State is that the applicable principles are to be found in the judgments of the Supreme Court in The Government of Canada v The Employment Appeals Tribunal [1992] 2 I.R. 484. This was a case concerning the dismissal of a chauffeur employed in the Canadian Embassy who, having been dismissed, instituted proceedings before the Employment Appeals Tribunal, which was established by the Unfair Dismissals Act 1977. The Government of Canada claimed, unsuccessfully, before the Tribunal that the proceedings were ill-founded in that the Government of Canada was entitled to claim sovereign immunity. Judicial review proceedings were then instituted in respect of the order made by the Tribunal, which weresuccessful.

6

During counsel's submissions I have been referred in particular to two of the three judgments of the Supreme Court. First, I was referred to part of the judgment of McCarthy J. at page 491, who having considered the principle of sovereign immunity, went on to say:

"It is a generally recognised principle of international law that foreign states and their agents at one time enjoyed sovereign immunity from being impleaded before any court or administrative tribunal in the domestic arena. The history of that immunity is detailed in the judgment about to be read by O'Flaherty J. I accept his conclusion that it is no clear that the general principles of international law have so developed as to depart radically from the absolute state immunity doctrine to a much more restrictive view of sovereign immunity. It is, still, immunity but its application is restricted. I adopt the observations of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at p. 267 as being a correct statement of the current generally recognised principles of international law - one must decide 'whether the relevant acts upon which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character...or whether' it 'should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity'."

7

I was also referred to the judgment of O'Flaherty J. who, at page 498 of the report, reached the conclusion that the proper principle in relation to sovereign immunity of a restricted nature had been made clear by Hanna J. in Zarine v Owners of S.S. 'Ramava' [1942] I.R. 148,and that he was prepared to follow that judgment. O'Flaherty J., however, went further in his judgment and reviewed recent developments in the international sphere on the principles of state immunity, indicating in the...

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