CA-2024-000624 & CA-2024-000625 - [2025] EWCA Civ 1162

Conclusion

I would allow Ms Alhayali’s appeal, set aside the decision of Bourne J and restore the order of the ET.

Lord Justice Coulson

I agree that, for the reasons given by my Lord, Lord Justice Bean, Ms Alhayali’s appeal should be allowed. I also agree that, although it does not affect the outcome of Ms Alhayali’s appeal, the decision in Aziz requires reconsideration. In my view, a result that encourages a state ostensibly to submit to the jurisdiction of the court, then change its mind either at or even during the trial, is contrary to the CPR, and particularly the overriding objective. It appears to stem from the failure in Aziz to distinguish sufficiently between actual submission to the jurisdiction under s.2(2) of the State Immunity Act 1978, on the one hand, and deemed submission under s.2(3), on the other. The latter depends on the court’s objective analysis of the events after the making of the claim, expressly including whether “[the state] has taken any step in the proceedings”. That reflects precisely the language of s.4 of the Arbitration Act 1950 (still in force at the time of the 1978 Act). On the face of it, this exercise has nothing to do with actual authority or intention; it is all about whether the act of the defendant impliedly affirms the institution of proceedings in court: see Skopes Design Group Ltd v Homelife Nursing Ltd (The Times 24 March 1988, CA).”

The President of the Family Division (Sir Andrew McFarlane)

I am also in agreement with the judgment of Lord Justice Bean, and I too share the concerns expressed about Aziz for the reasons given in that judgment and in the concurring judgment of my Lord, Lord Justice Coulson.