QB-2022-002353 - [2025] EWHC 1836 (KB)

In the first place, the Defendant contends, that there was a failure to draw the court’s attention to the fact that the Claimant’s claim is, or at least highly arguably is, time barred.

As to this, while there is mention of English law in the Particulars of Claim, it appears from that document and elsewhere to be common ground that the applicable law is that of the UAE. Article 298 of the UAE Civil Code provides:

The evidence served by the Defendant includes an expert report from a UAE lawyer, Mr Ali Al Hashimi. Mr Al Hashimi’s evidence is to the effect that the three-year period applicable under Article 298(1) is suspended for the duration of any criminal proceedings in respect of the unlawful act; and that the limitation period begins to run from the date of the final judgment in the criminal proceedings; and that, in the present case the final judgment of the Egyptian Court of Cassation of 6 February 2012 was the trigger for the running of the limitation period. Accordingly, this evidence indicates, the Claimant had a right to file a compensation claim until 6 February 2015. The limitation period was not 15 years from Ms Tamim’s death.

The Claimant served two pieces of evidence in response to Mr Al Hashimi’s report. Neither is a Part 35 compliant expert report, nor a Part 31 compliant witness statement. One was an ‘Expert Witness Statement’ from Ms Khawla Saeed Mohammed Salem. Ms Salem refers to Article 298 of the UAE Civil Code, but does not say how its provisions apply in the present case, and does not include any statement that the Claimant’s claim was issued within the applicable limitation period. The other is supposedly a statement from a UAE lawyer, Mohamed Salman, dated 7 March 2025. This is not an easy document to follow, and it is not clear whether it was in fact the product of one person, as, at times, it talks of ‘our’ view. It contains a statement that ‘the final and irrevocable judgment of the Egyptian Court of Cassation was issued on 6^th February 2012. In accordance with Articles 298 and 481 of the Civil Code, we see that the period of hearing the case is still valid according to the UAE law and extends to 15 years in the presence of a legitimate excuse preventing the claim of the right.’ The reference to ‘legitimate excuse’ is to the provisions in Article 481 of the UAE Civil Code, whereby ‘prescription barring the admittance of hearing the case is suspended whenever there is a lawful excuse barring claim of the right’; and the particular ‘legitimate excuses’ which the author has in mind are apparently two matters mentioned earlier in the document, namely the Claimant’s alleged psychological condition including PTSD and that the Claimant had been misled by a former solicitor about the progress of the case.

Mr Al Hashimi, in his Supplemental Expert Report has stated that, under UAE law, the only ‘legitimate excuses’ which may extend prescription periods are such as make it ‘impossible to claim the right in a timely manner’. Given that the Claimant had actually claimed for compensation for Ms Tamim’s death during the Egyptian proceedings, the Claimant’s alleged psychological condition ‘(even if it is proven) is not likely to be considered as a lawful/legitimate excuse suspending the time limitation period/s of Article 298 of the Civil Code’. Further, any misleading of the Claimant by a former solicitor ‘[does] not appear to have given rise to the impossibility for the Claimant to act’; and further that if the Claimant had been dissatisfied with the services of a particular solicitor, but had refrained from instructing other counsel, that might be considered negligence on his part, which would mean that there was not a ‘legitimate excuse’.

In my judgment, it is clear from the dates of the death, and of the Egyptian proceedings and from the terms of Article 298 of the UAE Civil Code itself, that there is, at the least, a very real question as to whether proceedings commenced in 2022 are time barred. A fortiori is this the case when the analysis given by Mr Al Hashimi is considered.

I also regard it as clear that an explanation of the potential limitation defence ought to have been given for the purposes of, at least, each of the First, Second and Third Ex Parte Hearings, but no such proper explanation was given. I will consider these applications in turn.

At The First Ex Parte Hearing, as I have said, there was both an application for an extension of time and an impromptu application for permission to serve out. The application in relation to service out was significant not only in itself but also because, without it, no extension of time would have been possible without a showing that the requirements of CPR r. 7.6(3) were satisfied, which could not have been shown. This is because, in relation to a Claim Form for service within the jurisdiction, the deadline for service would have expired on 26 November 2022, nearly two months before The First Extension Application, whereas in the case of an application for permission to serve out of the jurisdiction made more than four months but less than six months after the date of issue, the court’s discretion to grant the application is not constrained by CPR r. 7.6(3).

At least in relation to the application to serve out, made at The First Ex Parte Hearing, it was, in my judgment, necessary for the limitation position to be properly explained, as it went to the question of whether there was a serious issue to be tried, and whether the Claimant had a reasonable prospect of success. It was not properly explained. The only references to limitation are as I have set out above. The terms of Article 298 were not set out, and there was no attempt made to explain the possible implications of Article 298(1) and (2).

While doubtless there was no intention to mislead the court, nevertheless the decision to say no more about limitation must have been a deliberate one. It seems clear that the Claimant and indeed the Claimant’s solicitors knew the terms of Article 298 at the time The First Ex Parte Hearing took place. An ‘expert witness statement’ of Ms Salem had been prepared, apparently in 2021, for the purposes of the action which the Claimant was contemplating bringing in England. It is referred to in the ‘Pre Action Protocol’ letter, which bears the date 1 March 2022, and in the Particulars of Claim (paragraph 6). That ‘expert witness statement’ sets out the full terms of Article 298.

On the occasion of the Second Extension Application, it had become, if anything, more important for the Claimant’s representatives to make proper disclosure of the position in relation to limitation. This is because, even on the Claimant’s case that the relevant limitation period was 15 years, this would expire on 28 July 2023, which was only 3 days after The Second Ex Parte Hearing, and accordingly an extension of time for service would mean the Claim Form being served after the point at which, even on the Claimant’s case, the claim had become time barred. On this occasion there was no mention of Article 298 either in Mr Berg’s second witness statement, or by counsel during the hearing. The statement in Mr Berg’s second witness statement that the claim had been issued ‘on the 26^th July 2022, which falls within the 15 year limitation period as prescribed under the applicable UAE statute’ was not a fair presentation of the position as to limitation.

On the occasion of The Third Extension Application, and on the assumption, favourable to the Claimant, that the relevant limitation period was of 15 years, this had expired nearly 6 months before the hearing of the application. This point was not, however, mentioned either in Mr Berg’s third witness statement, nor in counsel’s submissions at The Third Ex Parte Hearing. In my view this was a plain case of a failure to make proper disclosure of a material matter.

A second complaint as to unfair presentation is made in relation to statements made in the context of The Second Extension Application.

On that occasion, as I have set out, it was stated in the Application Notice that, from the date of The First Extension Order, there had been without prejudice discussions between the parties, and that this had ‘paused’ the efforts to serve the Defendant in Egypt; and counsel also stated that there had been, in that period, ‘quite advanced discussions’. Those statements seem to have been simply not true. The evidence before me is to the effect that there were no without prejudice discussions between the parties in that period at all; and that the only communication between the parties was an email from Mr Berg dated 2 February 2023 to Mr El Hennawy enclosing a copy of The First Extension Order and saying that Mr Berg would be writing again shortly, which, in the event, he did not.

The point about discussions had been made to provide an explanation as to why service had not been effected during the period of the first extension. The position as to why there had not been service was materially misrepresented by the statement as to negotiations.

A third area about which the Defendant makes a complaint of lack of a fair presentation is that he says that there should have been disclosure of the fact that the Particulars of Claim contain ‘legally hopeless causes of action and false factual averments’. In this regard, the Defendant relies on: (i) what he contends are false statements that the Claimant and Ms Tamim were legally married; (ii) the fact that the Particulars of Claim contained legally misconceived causes of action; and (iii) false averments as to the effect of Ms Tamim’s death on the Claimant, in particular statements to the effect that her death brought about an end to the Claimant’s kickboxing career.

In relation to (i) and (iii) in this list, these appear to me to involve proof of facts which are themselves likely to be in issue in the action, should it proceed. I do not regard them as matters which are ‘so plain that they can be readily and summarily established’, as Carr J put it in (viii) in her enumeration of principles in Tugushev v Orlov, and therefore not points which it is appropriate to go into for the purpose of an application to set aside such as this.

The matters referred to in (ii) are equally issues which would arise in the action, but these do in my judgment fall within the exception mentioned by Carr J of matters which can be ‘readily and summarily established’. Thus, the Particulars of Claim put forward a claim that the Claimant is entitled to damages under the Fatal Accidents Act 1976. However, given that the law applicable to the Claimant’s claim is, and the Claimant accepts it to be, UAE law, the Fatal Accidents Act is of no application: Cox v Ergo Versicherung AG [2014] AC 1379. The Claimant also pleads a claim under the Law Reform (Miscellaneous Provisions) Act 1934, ‘in his capacity as the Administrator of the Deceased’s estate and on behalf of the estate’, which ‘will include damages for loss of income of Suzan Tamim as a consequence of her being murdered’, which ‘will total many millions of pounds on the basis that at the time she was at the height of her career as the most acclaimed singer in the Middle East.’ However, s. 1(2)(a)(ii) of the 1934 Act provides that the damages recoverable for the benefit of the estate of the deceased person shall not include ‘any damages for loss of income in respect of any period after that person’s death.’ These obvious defects in the Claimant’s pleaded claim should, in my judgment, have been pointed out to the Master at least in the context of the application for permission to serve out of the jurisdiction, but also, I consider, in relation to the extension applications.

A fourth area of complaint, which arises in relation to the application for permission to serve out of the jurisdiction, is that the Claimant failed to bring to the Master’s attention various factors which indicated that England was not the appropriate forum for the trial of the claim and that there were other fora which were clearly more appropriate. The Defendant contends that the Claimant and his representatives ‘did not point to a single factor which was capable of undermining the Claimant’s case that England is the appropriate forum.’

In considering this contention, it is necessary to acknowledge that the Skeleton Argument served in advance of The First Ex Parte Hearing did mention that the murder had taken place in Dubai; that both Al-Sukari and the Defendant are Egyptian nationals; that both men had subsequently been tried and convicted in Egypt; that the Defendant resides in Egypt; and that the applicable law was the law of the UAE. I accept, however, that these were not identified as points counting against England not being an appropriate forum, which was no doubt in part because no proper application for service out had actually been made, no supporting evidence had been filed, and no skeleton argument directed to such an application had been supplied to the court. There was equally no reference to the location of relevant witnesses and documents. I do not consider that it can be said that the issue of whether England was the appropriate forum was properly and fairly presented. The Master was left to glean the points which might be made against such a contention from material which was put in for a different purpose and which did not identify any points as having that significance, and did not identify some important points at all.

In light of my conclusions in relation to the areas in which there was not a fair presentation, considered above, I do not need to consider the Defendant’s case that there was a failure to make a fair presentation by reason of a failure to draw to the court’s attention matters which ‘undermined the Claimant’s evidence regarding his alleged impecuniosity’.