Full case report

Harb v King Fahd Bin Abdul Aziz

Reference [2005] EWCA Civ 632
Court Court of Appeal

Judge Thorpe, Smith & Wall LJJ

Date of Judgment 26 May 2005


Summary

Reporting restrictions – Proceedings in private – Open justice – Sovereign immunity – Maintenance


Facts

The Claimant was the wife of the Defendant, King Fahd of Saudi Arabia. She started proceedings in the Family Division alleging that the King had failed to provide reasonable maintenance for her. The King claimed that he was immune from suit in the English Courts. The preliminary issue in relation to the claim for sovereign immunity was listed before the President of the Family Division, then Dame Elizabeth Butler-Sloss. The Claimant’s application for the hearing to be in Open Court was refused and an order in very wide terms was granted in an effort to secure absolute secrecy. The proceedings were headed Maple v Maple and an order was made that nothing could be published that was likely to identify the parties and no transcripts of the proceedings should be made available. The Order was made purportedly in compliance with Article 29 of the Vienna Convention to protect the Defendant from “any attack on his person, freedom or dignity”. The Claimant appealed.


Issue

Whether the orders to secure the secrecy of the proceedings were correctly made


Held

Whilst the proceedings for maintenance would be in private, there was no basis on which the trial of the issue relating to the claim for sovereign immunity could properly be heard in private. The President had misdirected herself as to the proper nature of the proceedings. State immunity was a public claim which demanded open litigation. The identity of the sovereign was clearly relevant to legitimate public debate of the claim to immunity. The claims made by the Claimant against the King were irrelevant to the immunity issue and so there could be no “attack” on the King so as to engage Article 29.


Comment

The first instance proceedings in this case can only be described as extraordinary. Lord Justice Thorpe said of them: “The Family Justice system needs to be cautious of adopting fictions such as Maple v Maple that its critics can label as deceitful or designed to shield its workings from public scrutiny.” The case serves as a clear example of the unfortunate willingness of the Family Division to provide excessive and unjustifiable secrecy. Dame Elizabeth’s original order was made just one month before she gave evidence to the <A
href=”http://www.5rb.com/news/details.asp?newsid=77″ target=_parent>Constitutional Affairs Select Committee into the problems of excessive secrecy in family proceedings.


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