Claim No: CL-2024-000435 - [2025] EWHC 1588 (Comm)

At stage 1, the defendant must establish that there is another forum which is “clearly or distinctly more appropriate than the English forum” (p.477E).

If the defendant discharges this burden, then at stage 2 the burden of proof shifts to the claimant to show, using cogent evidence, that “there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country” (p.476E).

The claimant is required to prove “objectively by cogent evidence” the circumstances which require the English court to proceed with the claim, notwithstanding the fact that it is not the appropriate forum to hear it. It is not sufficient for the claimant's evidence to simply “raise grave doubts” about such circumstances ([23]).

The burden of proving that a particular forum is not practically available falls solely upon the claimant, and this must be discharged by cogent, positive and objective evidence (ibid).

Where there is a “divergence of opinion” between the experts on a question of foreign law or practice at stage 2, such that the “answer is not clear” to the court, “considerations of comity and caution” preclude the court from concluding that the foreign forum would not deliver justice to the claimant. The court will start with the working assumption, for which comity calls, that courts in other judicial systems will seek to do justice in accordance with applicable laws, and will be free from improper interference or restriction (ibid).

There is no difference in the standard of proof applied to an allegation that the claimant will not practically be able to access the foreign forum due to their personal circumstances, and an allegation that they will not receive justice in that forum, the “overarching test” being “one of real risk that the claimant will not obtain justice in the foreign forum” ([32]).

I accept the evidence of Professor El Shazly that Qatari civil procedure allows remote participation in litigation, including the giving of evidence remotely (Article 17 of Law No (8) of 2023, promulgating the Judicial Authority Law). Professor El Shazly is involved in training members of the Qatari judiciary and local lawyers and I am satisfied he is able to speak to the practical realities of litigating in Qatar and not just the position “on paper”. While the First Report asserts that claimants in substantive hearings cannot appear remotely, no source is cited for this proposition, and I am unable to place weight on bare assertions in the First Report for the reasons I have already set out. In any event, the First Report also states that attendance by a properly authorised attorney is an alternative to attendance in person.

I accept that to be in a position to instruct Qatari lawyers himself, Mr Al Haroun is required to execute a power of attorney (Article 54 of Law 23 of 2006), and that to do this, he will need a document which verifies his identity.

If Mr Al Haroun needs to visit Kuwait in order to renew his Kuwaiti identity card (which has expired), I am satisfied that there is a real risk of him being arrested and extradited to Qatar. I am also satisfied that there is a real risk of Mr Al Haroun being arrested by the Kuwaiti authorities. He has been convicted and sentenced in absentia in Kuwait, and while a pardon has been issued by the Emir in respect of those convictions, the nature and circumstances of the original convictions and commentary around the pardon have persuaded me that a real risk of arrest remains.

I accept that there is a real risk that Mr Al Haroun cannot renew his Kuwaiti ID (which has expired) at the Kuwaiti Embassy in London because biometric requirements introduced in Kuwait require his presence in Kuwait.

Given Mr Al Haroun’s evidence that POAs issued to Qatari lawyers in connection with proceedings in 2013 and 2015 had lapsed, and the likelihood that these are time and subject-matter limited, I am not persuaded that I can exclude a realistic possibility that a new POA is required (even assuming that the same lawyers were willing to act).

However, I am satisfied that Mr Al Haroun can establish his identity for the purposes of executing a POA through the identity document he was issued by the UK authorities when granted indefinite leave to remain in this jurisdiction. Indeed it is apparent that he has already used that document to instruct lawyers in Switzerland. A letter from the Swiss Federal Department of Justice of 9 August 2024 deployed by Mr Al Haroun states that on 10 July 2024, Swiss lawyers acting for him sent a letter “accompanied by a power of attorney” and a copy of “the applicant’s English passport.” I accept that the document in question was not a passport, but it is a photographic ID document issued by the UK authorities which Mr Al Haroun has confirmed he has used for the purposes of international travel. I was offered no cogent explanation of why this document could be used to grant a POA to Swiss lawyers but not Qatari lawyers.

It follows that Mr Al Haroun has failed to meet the burden imposed on him at stage 2 of the Spiliada test of showing a real risk that Qatar is not available to him as a forum. Had this issue been live, and a stay granted, it would have been open to Mr Al Haroun to apply to lift the stay had events shown that instructing a Qatari law firm in this way was not possible. The merits of some puddings can only be properly tested by consumption.

Mr Al Haroun submitted an expert report from Dr Kristian Coates Ulrichsen, an academic who I accept has considerable expertise as to the extent to which civil liberties and human rights, including the right to a fair trial, are respected in states in the Gulf region, including Qatar. Dr Ulrichsen has provided a balanced and nuanced report, which is careful not to overstate the position.

Dr Ulrichsen states that “judicial independence in Qatar is more robust than in most neighbouring states”, but cites a number of examples of cases which have given rise to international concern about the independence of the Qatari judiciary. It is notable that the examples involve criminal offences with a political flavour, or cases in which a member of the ruling family benefited from what is said to be an unjustifiably favourable result in a legal dispute in the Qatari courts. Dr Ulrichsen fairly notes that these “may be isolated cases or they may be symptomatic of a deeper set of issues and I do not possess the necessary information to make a qualified judgment”.

I do not regard the fact that QNB is 50% state owned as sufficiently cogent evidence of there being a real risk of state interference in Qatari court cases in which it is involved. QNB is an essentially commercial undertaking active in the banking sphere. It is clear that it does lose cases in the Qatari courts. The issues in this case do not engage control of a strategically significant industrial sector or a media outlet, but are essentially financial. The amount of money in issue is, for QNB, of very small proportions.

While the former CEO who became a director of Ettizan in the aftermath of January 2013 seizure later became Minister of Finance in July 2013, he was fired as a Minister in May 2021 and sentenced to 20 years’ imprisonment for corruption and money-laundering in January 2024. There was no suggestion that Mr Al Kuwari, who signed the 14 March 2014 Letter was either a government figure or a member of the ruling family at the relevant time.

In these circumstances, Mr Al Haroun has failed to present cogent evidence of the kind required to satisfy the stage 2 Spiliada test. The court’s working assumption “that courts in other judicial systems will seek to do justice in accordance with applicable laws, and will be free from improper interference or restriction” has not been displaced.

Had I not struck the proceedings out, I would, therefore have stayed them.