Amin v Brown
[2005] EWHC 1670 (Ch)
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
The common law disability of an alien enemy to sue in the English courts is part of the rules of English law relating to the traditional laws of war: it applies only where there is a war in the technical sense between the United Kingdom and the foreign state, and there is no warrant for extending it to modern armed conflict not involving such a war. Whether a state of war exists is determined by reference to the position of Her Majesty's Government.
Facts
Mrs Amin, an Iraqi citizen resident in Iraq, sued through an attorney in respect of a London property registered in her name, claiming against the defendant, a former solicitor who had acted on its purchase in 1993, collected its rents and spent the money on refurbishment works she said were never authorised. The defendant pleaded that Mrs Amin was an enemy alien with no recourse to the United Kingdom courts because of the hostilities in Iraq since 2003, and that question was tried as a preliminary issue before Lawrence Collins J.
Judgment Summary
Lawrence Collins J held that Mrs Amin was not an enemy alien and succeeded on the preliminary issue. Reviewing the rule from Calvin's Case in 1608 onwards, he held that the disability of alien enemies depends on the existence of a war in the technical sense; the traditional concept of war has virtually disappeared from state practice, no declaration of war has been made by the United Kingdom since 1939, and the position of Her Majesty's Government was that there was not, and had not been, a state of war between the United Kingdom and the Republic of Iraq. He declined to extend the rule to modern armed conflict, observing that to the extent there is a public policy against enriching a person resident in a state with which there are hostilities, that policy was satisfied for Iraq by the Iraq (United Nations Sanctions) Order 2000.
Key Quotes
"I am also satisfied that the disability of alien enemies is part of the rules of English law relating to the traditional laws of war, and that there is no warrant for extending it to modern armed conflict not involving war in the technical sense."
— Lawrence Collins J at [46](verbatim, verified against the judgment)
"Consequently an enemy national resident in the enemy state has no right of access to an English court during the war as a claimant or other actor in any proceedings, except by licence of the Crown"
— Lawrence Collins J at [22](verbatim, verified against the judgment)
Subsequent Treatment
The leading modern authority confining the alien-enemy disability to war in the technical sense. The judgment records that no declaration of war has been made since 1939 and that the existence of a legal state of war is now largely irrelevant in international law, so the disability does not bite on modern armed conflicts such as the 2003 Iraq conflict.
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