EWJ FEB 59 2025 web - Flipbook - Page 57
personal computer in St Petersburg to access a US
bank’s computer at Parsipenny in the state of New Jersey in order to transfer funds into bank accounts controlled by him. The US sought his extradition from
the UK. The applicant argued that the appropriate of
funds had taken place in Russia where his keyboard
was situated and therefore the English courts had no
jurisdiction. The Divisional Court rejected this. In the
present case, the essence of what Bahrain’s agents are
alleged to have done was done in the UK where the
claimants’ devices were hacked. In modern terms, the
hacking of a person’s computer was equivalent to burglars breaking into someone’s home and stealing the
contents of their safe.
tied to concepts of “personal injury” as they were understood in 1978. The Court of Appeal accepted the
nub of the respondent’s position, seeing no reason to
suppose that section 5 of the 1978 Act was intended to
be “tied to an historic or frozen interpretation”. Moreover,
the court recognised that the law of state immunity
was undergoing flux.
What next?
The conclusion of this appeal is that the court has
jurisdiction to hear the claim, as Bahrain cannot claim
state immunity. My favourite part of the judgment is
Lord Justice Warby’s astute concluding remarks, arguably the most intriguing part of the decision [120]:
“A claim for damages for harassment by spying is unusual.
At first sight it seems paradoxical. A course of conduct cannot
amount to harassment of another unless it comes to their attention and has an impact upon them. Commonly, that is what
the perpetrator intends. Spies, on the other hand, typically act
surreptitiously, hoping and intending that their activities will
go undetected by the target.” He notes that such a claim is not
unprecedented (Al-Masarir).
On the statutory interpretation points arising out of
this ground, Lord Justice Males found that The Computer Misuse Act 1990 was of no assistance in interpreting section 5 of the State Immunity Act 1978.
Firstly, the contents of the two Acts were completely
disparate. Secondly, the Computer Misuse Act was
passed 12 years after the 1978 Act. As such, the way in
which Parliament chose to legislate for computer misuse in the 90’s could shed no light on whether section
5 was engaged in circumstances where a computer in
the UK was hacked from overseas.
Whilst we await further developments in this line of
case law, the appeal stands as a useful touchstone on
complex issues of international comity in a personal
injury landscape.
Ground 2 – must all the acts by agents of the foreign
state take place in the United Kingdom?
Article by Charlotte Wilk.
https://gatehouselaw.co.uk/
The second ground of appeal was that the exception
to immunity in section 5 of the 1978 Act required that
each and every act or omission causing injury that
formed the basis of liability must occur in the United
Kingdom. On appeal, it was held that the language of
section 5 was clear in this respect. A foreign state did
not have immunity for personal injury caused by an
act in the UK even if other causative acts took place
outside of the UK. Since the provision was deemed to
be unambiguous – there was no scope to arrive at an
alternative interpretation based on external aids put
forward by counsel for the appellant. The claimants’
interpretation of section 5 was in line with the fundamental principles of international law on which
state immunity was based. Lord Justice Males stated
powerfully, at [55]:
Mr Ashish Khurana
Consultant Orthopaedic and
Spinal Surgeon, Honorary Lecturer
MBBS, MS(Orth.), MRCS, MSc (Orth. Engineering), LLM, FRCS (T&O)
Mr Ash Khurana is a Consultant Orthopaedic and Spinal Surgeon based in Newport.
His special interests include spinal trauma, metastatic spinal tumour and complex
degenerative spine surgery including neck and the back. He uses various spinal
injections, radiofrequency ablation, open and minimally invasive fixation techniques
including cementation for managing his patients. He objectively assesses the outcomes
of his interventions using PROMs (Patients Reported Outcome Measures).
“Accordingly, if State A interferes with the territorial
sovereignty of State B by doing an act in State B which is
liable to cause death or personal injury to persons in State B,
it takes the risk that it will be subject to civil proceedings in
State B. Such proceedings are in accordance with principles
of international comity.”
Mr Khurana has operated a medico legal practice since 2013. He has a unique blend
of Orthopaedic engineering and Law combined with his specialist training as a spinal
surgeon which enables him to provide comprehensive reports. He undertakes over
200 complex personal injury and clinical negligence cases each year and has appeared
in court. He sees clients of all ages via face to face, remote, prison and home visits. His
work spilt is claimant: 50%, defendant: 40% and single joint expert:10%.
Mr Khurana is on the GMC panel for expert witness for FTP proceedings. He is
also an examiner for FRCS (T&O), interviewer for Cardiff University and reviewer
for various international journals including the Bone and Joint journal.
Ground 3 – was psychiatric injury “personal injury”
within the meaning of section 5?
Mr Khurana’s special interests include:
Spinal trauma, whiplash injuries and vertebral fractures/wedge fractures
Cauda Equina syndrome
Metastatic spinal tumours
Disc prolapse and complex degenerative spine surgery including for the neck
and back
Occupational injuries causing neck or back pain, repetitive strain injuries (RSI)
In my view, the outcome on ground three is not
surprising. The appellant had accepted that there
would be no immunity for an act in the United
Kingdom causing psychiatric injury if this was associated with physical injury but proposed that “standalone” psychiatric injury did not fit the meaning of
“personal injury” in section 5 of the 1978 Act. The respondent’s position was accepted as the correct one,
that being the application of the “always speaking”
principle, i.e. section 5 of the 1978 Act should not be
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