Case No. CO-2850-2005

46.A state not recognised by the United Kingdom government has no standing in the English courts (City of Berne v Bank of England (1804) 9 Ves 347). Governmental acts of an unrecognised state cannot be recognised by an English court (Luther v Sagor (1921) 1 KB 456). “Common sense and justice may combine to require the qualification of these principles in certain respects” (see Gur Corporation v Trust Bank of Africa Steyn J. [1987] 1 QB 599.605 D-E). Where the acts in question can be seen as the acts of a subordinate body set up by a sovereign state, recognised as such by HMG, the acts of the subordinate body can be recognised as lawful (see Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853).47.Mr Allen placed Steyn J’s judgment in Gur at the forefront of his submissions. He emphasised that the judge, having refused to accept the availability of an exception based on the application of the principles of agency (the Carl Zeiss route), declined to accept the efficacy of an assignment by the Government of the Republic of the Ciskei to Mr Atwell, the Director General of the Public Works Department, which had been entered into after the challenge to Ciskei’s standing, because:(1) the rule on standing is not a procedural rule, but concerned “fundamental principles of English law based on important public policy considerations” (see Gur 609F);(2) it was a device which would enable every unrecognised state to circumvent the fundamental principles of our law and, as such, would be contrary to public policy, being “a colourable device” (see Gur 609H-610A-B).48.As I see it, Mr Allen’s argument comes close to turning the Carl Zeiss agency exception on its head. In Carl Zeiss, agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. Mr Allen asserts the existence of agency between TRNC and the first claimant, an English corporate legal entity existing in English law, having the capacity to act and responsible for the lawful acts it performs, but he seeks to deny the legal validity and effect of the company’s actions simply because it acted as agent for TRNC. As for the second claimant, it is submitted that it is in no better position because it has joined in the proceedings to seek the protection of the court for the interest of TRNC and because its claim is based on a commercial relationship between it and TRNC, namely appearing on the list on the website. All this comes close to a contention that TRNC’s status in international law taints and restricts the claimants’ powers of lawful action.49.Steyn J. (Gur p. 606 C-D) summarised the basis for agency arising in Carl Zeiss:“Carl Zeiss was decided on the basis of the application of principles of agency: on the materials before the House of Lords the relevant acts were categorised as those of the U.S.S.R. rather than the G.D.R. This route was open to their Lordships because there was an executive certificate, which expressly stated, at p. 859: "up to the present date Her Majesty's Government have recognised the State and Government of the Union of Soviet Socialist Republics as de jure entitled to exercise governing authority in respect of that zone [the G.D.R.]."50.The impact of the principle of state recognition or non-recognition is that the actions of the unrecognised state are not lawful, but, where the actions in question are or can be categorised as the lawful acts of a person recognised as existing in English law, they are justiciable by the court in the right of that person. They are not tainted by illegality because the unrecognised state can be associated with the actions. I can find no support in Gur for the conclusion that the result of the first claimant having acted so as to incur legal obligations is that its acts are to be regarded as invalid in English law because TRNC, not recognised by HMG, can be associated with its actions, either by agency or otherwise. The defendant has not suggested that its contract with the first claimant, which gave rise to the November 2004 advertising, was unenforceable. Had the first claimant not paid for the advertising, I have little doubt that it would have sued on its contract.51.Mr Allen sought, by reference to Gur, to rely upon the absence of TRNC as a party to the proceedings and the impossibility of it being joined, as supporting the defendant’s claim that the action was being brought in the name of the claimants as a “colourable device” to avoid TRNC’s lack of standing. He could point to Addleshaw Goddard being solicitors to TRNC, its London representative and the first claimant when the letter before action was sent and to the first intimation of proceedings coming from TRNC. He submitted that since the first claimant seeks to advertise TRNC, acting “as agent for TRNC”, it can be in “no better position to claim justiciable rights in that regard than TRNC”. Paragraph 52 of the Skeleton Argument submits “… the use of the first claimant to commence proceedings is a transparent ruse or device to seek to do what its principal, the purported TRNC, cannot. TRNC can no more commence proceedings by acting through the first claimant as agent for the purpose of seeking the assistance of the court that it can do so itself”.52.Put, as a matter of standing and not justiciability, the first claimant’s interest, he submitted, is no greater than that of TRNC which the court could not recognise as an interest justifying these proceedings. “The sole or dominant aim of the advertisement is to point readers to the TRNC website” (paragraph 53 Skeleton Argument).53.The detail of the submission can be seen in a letter dated 23rd June 2005:“We note that in your skeleton argument your counsel assert that ‘The claim is not brought by the TRNC, through an agent or in any other capacity” (C skel paragraph 11). TfL does not accept this proposition either in fact or in law’. Whether or not it is lawful for NCTC to exist as a company in this country is beside the point, if it is acting as agent for TRNC, in this advertising campaign and this judicial review. We shall submit that there is the strongest possible basis for an inference that this is so. The facts, either in the bundle or readily accessible, make it perfectly clear that the advertising work of NCTC is undertaken to support the "Ministry of Tourism" of the "Turkish Republic of Northern Cyprus", and that it is TRNC which controls and pays for this work. It is therefore properly to be inferred that, in all material respects for this case, NCTC is the agent or proxy of TRNC.As you know we shall argue that: 1. TRNC does not have either standing or justiciable rights that the court can recognise; 2. It cannot avoid this problem through the use of agents: and 3. Both NCTC and Paradise are acting in this capacity. We shall refer the court to the following matters in support of the proposition that NCTC is an agent of TRNC. 1. The letter before action was written on behalf of TRNC, its representative Mr. Korhan, and NCTC (Bundle 1/5/149). 2. TRNC fund NCTC (Bundle 1/4/22 at para 5, C skeleton 6112).3. NCTC only make a short form return to companies house, and have no independent means of funding this litigation.4. NCTC is the representative office of Tourism Ministry of TRNC (Bundle 1/4/22 at para 5)5. There are only two shareholders of NCTC, Yalcin Vehit and Hakki Muftuzade each holding one share (Bundle 1/51/46).6. They both give their address as 29 Bedford Square, London WC1B 3EG (Bundle 1/5/45 –46). This is the address of the Office of the London Representative for TRNC (Bundle 2/12/379), which is also the address of the NCTC. 7. We know from the Bundle that Yalcin Vehlt is an Under- Secretary of the Ministry of Tourism of the TRNC (Bundle 1/5/44). 8. Hakki Muftuzade is described as the UK Representative of the TRNC see