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At the end of 2023, the English Courts heard a three-month trial to deal with allegations brought by the government of Mozambique that it is the victim of a conspiracy involving the payment of over $136million in bribes to corrupt government officials and Credit Suisse employees. Mozambique’s causes of action include bribery, unlawful means conspiracy, dishonest assistance and knowing receipt.
Whilst the trial concluded immediately before Christmas 2023, one of the Defendants, the shipbuilder Privinvest, is still fighting to add Mozambique’s President as a defendant, and the Court of Appeal heard the case in early February 2024. Judgment was handed down on 29 February 2024.
Privinest argued that President Nyusi ought to be added as he allegedly accepted bribes in the form of multi-million-dollar campaign payments. The President’s position is that he disputed jurisdiction after he was served in April 2023 and that his Head of State immunity protects him from the proceedings.
First instance decision
In its September 2023 judgment, the Commercial Court considered:
(a) whether President Nyusi was served in October 2021 or in April 2023; and,
(b) if he was served in 2023, whether he could be shielded from proceedings by Head of State immunity.
How to serve a president
If service was deemed to have occurred in 2021, President Nyusi would be out of time to reject jurisdiction on the basis of immunity. Therefore, the decision on service had significant implications for both parties.
This all turned on the efforts of an intrepid process server in October 2021, seeking to personally serve a president which, unsurprisingly, did not prove straight forward. After being denied access to Mozambique’s Presidential Palace and the Office of the President, he could only leave the papers with police at the Palace’s security checkpoint and with an official at the security desk of the Office of the President.
The Commercial Court found that this was insufficient: Mozambique was not party to the Hague Convention and the Civil Procedural Rules (CPR) had to be relied upon. The consequences of CPR 6.40, 6.42 and Practice Direction 6B was that service had to be “through the judicial authorities”. Privinest also failed to show that its 2021 attempted service was not contrary to Mozambique law.
Consequently, the Court held that service was only achieved on 14 April 2023, when President Nyusi was served via the Mozambique Courts.
Heads of state immunity
The Commercial Court then considered the legislative and judicial history of Heads of State immunity.
On its face, the effect of various statutory provisions was that a Head of State was immune from civil litigation in the Courts of England and Wales, unless it related to non-official commercial activity in the UK.
In Apex Global Management Ltd v Fi Call Ltd and Others [2013] EWHC 587 (Ch) the Court determined that operative elements of the statutory language could be removed, if doing so could be described as a “necessary modification”. Subsequently, in that case, after some purportedly ‘necessary modification’ of the statutory language, it was held that immunity did not apply to a Head of State’s non-official commercial activity, regardless of where it occurred.
The Commercial Court (perhaps unsurprisingly) disagreed with the approach outlined by Vos J in Apex, deciding that a Head of State’s immunity protected non-official commercial activity outside of the UK, as on its face the statutory language required. Consequently the Commercial Court concluded that President Nyusi had immunity from the proceedings brought by Mozambique.
The Court of Appeal judgment
On 29 February 2024, the Court of Appeal upheld the first instance decision, finding that service only took place in April 2023 and that President Nyusi had immunity whilst the head of state of Mozambique.
For an appeal taking place in the context of such extraordinary wider litigation, which has had to wrestle with questions of bribery, state immunity and the ability of the courts to rewrite statutory language, the outcome feels quite routine. However, there are two main takeaways for practitioners who often navigate complex and international fraud cases:
(a) When serving out of the jurisdiction it is essential to obtain advice in the jurisdiction where service is to be effected, and the CPR must be followed.
(b) Heads of State – and even their household and private servants – benefit from immunity from English proceedings regarding any commercial activity outside the UK. This is the first authoritative, appellate decision on this point, given previous decisions were obiter dicta.
further information
If you have any questions or concerns about the topics raised in this blog, please contact Mary Young in our Dispute Resolution team.
about the authors
Mary Young has worked in commercial litigation since qualifying as a solicitor in 2009. Her practice covers a wide range of areas but Mary’s particular interests and expertise lie in civil fraud and asset tracing as well as claims against professionals in negligence, breach of fiduciary duty and breach of trust.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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