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

Given my decision in relation to the Set Aside Application, the Stay Application does not arise. I will nevertheless briefly give my views as to its merits, in case I am wrong as to the Set Aside Application.

The key principles are well-known, and have been authoritatively stated in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and subsequent cases. They were summarised by the Court of Appeal in Municipio de Mariana v BHP Group (UK) Ltd [2022] 1 WLR 1804 at [333] as follows:

In the present case, there are some unparticularised suggestions by the Claimant that he would not get justice in Egypt because of the Defendant’s political connexions. These suggestions do not amount to the cogent evidence which would be necessary to establish a real risk that he would not obtain justice in that forum. Furthermore, and perhaps even more significantly, the Claimant has raised no suggestion that he cannot obtain justice in Dubai, which is a jurisdiction where his mother lives and which he visits frequently. I do not consider, therefore, that the stage two question will arise.

The question therefore is whether the Defendant has shown that there is another available forum which is distinctly more appropriate for the trial of the action in the interests of all the parties and the ends of justice. In my judgment, the Defendant has shown that Dubai is such a forum. For these purposes, the court will look at various factors that could point to the case having a closer connexion with the foreign forum than this, including the subject matter of the dispute, the governing law, the location where relevant conduct occurred, the location of witnesses and evidence, and the personal connexions which the parties have with that forum.

Here, the expert evidence of Mr Al-Hashimi indicates that Dubai is an available forum, with jurisdiction over the claim, notwithstanding the Defendant’s domicile, by reason of the fact that the incident occurred in Dubai. As to connecting factors, the alleged tort was committed in the UAE, the post mortem on Ms Tamim was carried out in Dubai, and there was an investigation by the Dubai Police. The applicable law is UAE law. This the Particulars of Claim themselves acknowledge to be ‘a very significant and important point in deciding in which jurisdiction the claim should be litigated.’ As stated in Dana Gas PJSC v Dana Gas Sukuk Ltd [2018] EWHC 277 (Comm) per Leggatt J at [18]:

The Claimant, moreover, appears to have significant connexions with Dubai, both personal and business. He spends a substantial proportion of his time there. There have been previous proceedings in the Dubai courts in relation to the validity of the Claimant’s marriage to Ms Tamim, which the Claimant describes as ‘prolonged and complex’. This reinforces the strength of the Claimant’s connexions with Dubai, and indicates that the Claimant is able to obtain legal representation in Dubai and participate in proceedings there.

The majority of potential witnesses – who it appears will be based in Egypt or the UAE – are likely to speak Arabic, rather than English as their first language, and the Defendant’s first language is Arabic, and he speaks no English. As the Claimant grew up in Iraq, it appears likely that he speaks Arabic. There are therefore some advantages in the case being tried in a forum where Arabic would be the language in which the proceedings could be conducted. The relevant documentary evidence is likely to be located in the UAE or Egypt and to be in Arabic, rather than English.

By contrast, the case has very little to do with England, other than the Claimant’s residence here. Mr Sapsford KC made a point that at least one of the threats made by the Defendant to Ms Tamim before her death was received by her in England. However, this is not a connexion of significance, in that the nature of the tort alleged is the murder, not threats to murder, and in any event, any such threats were made by remote communications: it is not suggested that the Defendant ever came to England to make such threats.

In my judgment it has been shown that the courts of Dubai are clearly and distinctly more appropriate for the trial of the present claim than the courts of England and Wales. Had it arisen, I would, accordingly, have acceded to the Stay Application, and granted a stay of the present action.