1 DICKINSON v. DEL SOLAR MOBILE AND GENERAL INSURANCE COMPANY, LIMITED (THIRD PARTIES). [1930] 1 K.B.

376 International LawDiplomatic PrivilegeSecretary to Foreign LegationWaiver of Privilege Ministers InstructionsLegal LiabilityThird Parties Diplomatic privilege does not impart immunity from legal liability, but only exemption from local jurisdiction. The privilege is the privilege of the Sovereign by whom the diplomatic agent is accredited, and it may be waived with the sanction of the Sovereign or of the official superior of the agent. Taylor v. Best (1854)14 C. B. 487 and In Re Suarez [1918] 1 Ch. 176 followed FURTHER consideration of an action tried before the Lord Chief Justice and a special jury. The following statement of the facts of the case and of the correspondence between the parties before the hearing is taken from the judgment of Lord Hewart C.J.: "This was an action in which the plaintiff, Mr. Robert Edmund Dickinson, sought to recover damages again8t the defendant, Emilio Del Solar, for injuries to the plaintiff caused b~ the negligent driving of a motor car by the defendant or his servant. That action was tried before me with a special jury on July 9 last, and in the result the jury awarded 8561. damages to the plaintiff. Judgment was entered accordingly with costs against the defendant, Emilio Del Solar. That defendant however had a policy of insurance with the third parties, the Mobile and General Insurance Company, Ld., and he claims against those third parties a declaration that he is entitled to be indemnified against any amount that he might be adjudged and ordered to pay to the plaintiff by way of damages in the action. The third party, the insurance company, in their defence, alleged that 'It was an express term of the said policy that the third party should, subject to the exceptions and conditions contained therein or endorsed thereon, indemnify the defendant (inter alia) against legal liability to members of the pubic in respect of accidental personal injury sustained or caused through the driving and/or management of the insured vehicle. The third party alleged further that if the plaintiff in the action was injured, nevertheless the defendant was under no legal liability to the plaintiff by reason of the fact that the defendant was at all material times First Secretary of the Peruvian Legation and immune from civil process; alternatively, the third party relied upon certain alleged breaches of conditions. It is not necessary to refer again to the policy of insurance, but it may be well to mention one or two of the letters which passed. The writ in the action was not issued until December 27, 1928; the accident, as it is called, had occurred on October 15, 1929. In the meantime, on November 9, the managing director had written to Mr. Emilio Del Solar saying 'This matter is now in the hands of our assessor, to whom we are handing these papers, and you may rest assured that they will

2 take the matter up immediately with the third party so that you will not be troubled further.' That third party was not, of course, the insurance company, it was the defendant in the action. On November 29, the managing director of the insurance company wrote to the defendant in the action: ' the above case has now become rather more serious than we at first anticipated, and we shall be grateful if you will grant our representative another interview.' And on November 30 the defendant replied: ' I beg to inform you that I regret to be unable to see your representative, because I pay a premium to be insured, in order not to be troubled, and besides I have told him I cannot plead any diplomatic immunity. There followed correspondence ; the representative of the insurance company was seen again by the defendant and it was made quite clear that the Minister of the Peruvian Legation had intervened and had forbidden the defendant to rely upon diplomatic immunity, inasmuch as the collision had taken place when the car was being used not for official but for private purposes. In the meantime certain steps had been taken in the action; an appearance had been entered by the insurance company for the defendant, other steps had been taken, and finally, when it was made abundantly clear that diplomatic privilege was not to be pleaded, this letter of March 5, 1929, was written by Mr. Del Solar's solicitors to the solicitors to the insurance company: We have seen His Excellency the Peruvian Minister personally on this matter, and he has definitely repeated the instructions he has already given to his first secretary, Mr. Del Solar, to the effect that diplomatic privilege is not to be pleaded in this action; in our submission, therefore, the effect is that, s0 far at any rate as this claim is concerned, Mr. Del Solar has not and never did have any diplomatic privilege at all, so that it is impossible for him to claim it even if he wished to do so.' After a further explanation that in the opinion of the Peruvian Minister diplomatic immunity should only cover official acts, the solicitors to the insurance company wrote On March 18, 1929, to the solicitors for Mr. Del Solar: 'We now have definite instructions from the Mobile and General Insurance Co., Ld., that they insist on having absolute control of all negotiations and proceedings in this claim under the conditions of their policy. Since your client will not allow them to have this absolute control he has broken the conditions under which the policy was issued to him. We therefore hand you over at your request as his solicitor the papers in this action namely, the writ, appearance, summonses and statement of claim. It will be necessary to apply at the Court tomorrow for a summons for further time to deliver the defence. Will you let us know by telephone today whether we shall apply for this summons or whether you will? We have written to the plaintiff's solicitors to day for further time to deliver the defence, and explaining to them that we have handed over the papers to you at your request. Bens1ey Wells (S.J.R. Bucknill with him) for Mr. Del Solar. Diplomatic immunity is a privilege which is possessed by foreign sovereign but which he may waive. Diplomatic agents enjoy no higher immunity than their sovereign. Here the agent has submitted to the jurisdiction by entering appearance, and he has so acted on the instructions of his superior, the Peruvian Minister. The company cannot therefore now ask the defendant to adopt a different attitude: Taylor v. Best.1 That case was followed in In re Suarez2, where the Court of Appeal held that an
1

14 C.B. 487.

3 Ambassador can with consent of his Government waive his privilege, and that his immunity will then cease. [They cited also In re Republic of Bolivia Exploration Syndicate3 and Duff Development Co. v. Government of Kelantan.4 Tristram Beresford for the company. Waiver of diplomatic privilege by the defendant Del Solar is not sufficient to render the company liable on the policy. Under the terms of the policy the defendant must not act "in any way to the detriment or prejudice of the company's interests," and " the company is entitled to take absolute control of all negotiations and proceedings." He must afford the company every assistance in his power. This refusal to do so is a breach of the conditions of the policy, The defendant by virtue of his privilege is not liable for any act for which a British subject reading here would be liable. There has been no effective waiver. Any rights held by the defendant passed to the company under the policy, and they alone can consent to waive the plea of diplomatic privilege. As to enforcing a judgment against the defendant execution cannot issue against him by virtue of his privilege. The case differs from The Newbattle5, where the foreign sovereign was the plaintiff and had invoked the jurisdiction of the Court. [He referred also to Engelke v. Musmann.6] July 31. LORD HEWART C.J. [after making the above statement of facts, continued :] Diplomatic agents are not, in virtue of their privileges as such, immune from legal liability for any wrongful acts. The accurate statement is that they are not liable to be sued in the English Courts unless they submit to the jurisdiction. Diplomatic privilege does not import immunity from legal liability, but only exemption from local jurisdiction. The privilege is the privilege of the Sovereign by whom the diplomatic agent is accredited, and it may be waived with the sanction of the Sovereign or of the official superior of the agent: Taylor v. Best1; In re Suarez.2 In the present case the privilege was waived and jurisdiction was submitted to by the entry of appearance: In re Suarez2 Duff Development Co. v. Government of Kelantan3, and as Mr. Del Solar had so submitted to the jurisdiction it was no longer open to him to set up privilege. If privilege had been pleaded as a defence, the defence could, in the circumstances, have been struck out. Mr. Del Solar was bound to obey the direction of his Minister in the matter. In these circumstances it does not appear to me that there has been, on the part of Mr. Del Solar, any breach of the conditions of
2 3

[1918] 1 Ch. 176. [1914] 1 Ch. 139. 4 [1924] A.C. 797. 5 (1885) 10 P.D. 33. 6 [1928] A.C. 433. 1 14 C.B. 487. 2 [1918] 1 Ch. 176, 193. 2 [1918] 1 Ch. 176, 193. 3 [1924] A.C. 797, 830.

4 the policy, and the judgment clearly creates a legal liability against which the insurance company have agreed to indemnify him. It has been argued that by reason of the privilege execution cannot issue against Mr. Del Solar on the judgment. That is perhaps an open question: Duff Development Co. v. Government of Kelantan.3 But in my opinion it is not necessary to decide it. Even if execution could not issue in this country while Mr. Del Solar remains a diplomatic agent, presumably it might issue if he ceased to be a privileged person, and the judgment might also be the foundation of proceedings against him in Peru at any time. I hold therefore that the third parties here are liable. Solicitors for defendant: Digby & Co. Solicitors for third parties: S. Myers & Son.

[1924] A.C. 797, 830.