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The High Court has refuted a Saudi businessman’s attempts to invoke diplomatic immunity to defeat his former wife’s financial claims.
In Estrada v Al-Juffali  EWHC 213 (Fam), the husband, a wealthy Saudi businessman, and the wife, a former model, were married for 12 years and had a 13-year-old daughter together. During the marriage they lived as a family in the matrimonial property in the UK. When the marriage broke down the husband pronounced Talaq in Saudi Arabia and the wife issued divorce proceedings here. The wife was served with confirmation of the Saudi divorce. The husband had since remarried, had another child and their family home was also in the UK.
The wife applied under Part III of the Matrimonial and the Family Proceedings Act 1984 for financial remedy following a foreign divorce but the husband sought to strike out her claim based upon his diplomatic immunity relying on his post as the Permanent Representative of St Lucia to the International Maritime Organisation (IMO). A Foreign and Commonwealth Office certificate had been issued confirming the husband’s position.
The wife claimed that the husband sought out and obtained the post specifically to defeat her claims.
The authorities on the issue of diplomatic immunity established a balance which was designed to protect the functionality or effectiveness of a mission and to recognise the need to minimise abuse of the protection. If the diplomat was not en poste, there could remain only unjustified privilege or immunity linked solely to the private activities of an individual. If such was the case both the policy considerations and the proportionality of restriction could not be justified in European Convention terms and could not be said to pursue a legitimate claim sufficient to eclipse the wife’s right of access to a court.
It was evident that: the husband had no connection to St Lucia prior to his appointment; although he had apparently pledged significant resources towards the expansion of the local health sector in St Lucia, which might establish a basis for the husband being a trade or investment envoy, it did not establish a basis for an ambassadorial appointment; the husband had no knowledge or experience of maritime matters, seaborne trade, shipping or indeed of any of the specialised areas with which the IMO was concerned; since his appointment the husband had not undertaken any duties of any kind in the pursuit of functions of office; the husband’s health was such that he was not in a position to fulfil any of his ambassadorial duties; and, the appointment coincided with the emergent relationship between the husband and his third wife.
The court was satisfied that the husband had sought and obtained a diplomatic appointment with the sole intention of defeating the wife's claims consequent on the breakdown of their marriage. He had not, in any real sense, taken up his appointment, nor had he discharged any responsibilities in connection with it. It was an entirely artificial construct. Furthermore, it was legitimate to consider that the husband went to considerable lengths in the divorce of his first wife to avoid the jurisdiction of the English Court.The evidence pointed strongly to establishing that the husband’s future living arrangements prior to his appointment were likely to continue to be in the UK, regardless of his appointment. On that basis the husband failed the ‘but for’ test set out in Jiminez v IRC  STC 371. Therefore, having regard to the International Maritime Organisation and the Vienna Convention on Diplomatic Relations framework, the husband could only claim immunity while he was exercising his official functions, into which category his defence of the Part III claim did not fall.
The Red Book is the acknowledged authority on practice and procedure