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

On 18 March 2022, Janes Solicitors (‘Janes’), who were at that stage instructed by the Claimant, sent, or attempted to send, a document headed ‘Pre-Action Protocol Served in Accordance with the Civil Procedure Rules of England and Wales’ to the Defendant. The Defendant’s evidence is to the effect that, in fact, the Defendant did not receive a copy of that document until September 2022, when it was enclosed with a letter from Janes dated 13 September 2022. The ‘Pre-Action Protocol’ document stated that, if the Defendant did not engage in negotiations to resolve the claim, an application would be made for permission to serve the claim on the Defendant in Egypt, relying on CPR PD 6B paragraph 9(a), namely that the claim was made in tort, and the damage had been sustained in England, because the Claimant resides here. The document said that the claim would be for the grief, psychological and emotional damage which the Claimant had suffered as a result of the murder, including the loss of earnings as a kickboxer which had been caused by reason of the emotional and psychological harm which Ms Tamim’s death had induced. The document stated that the law which would be applicable would be the law of the UAE, and stated that an opinion had been obtained from a UAE lawyer on the questions of whether a claim would be actionable in the UAE for damages and losses incurred as a consequence of a murder, and whether the claim would be time-barred. It was said that the advice was that ‘liability definitely exists under the law of the UAE for damages arising from losses sustained by the murder of an individual’; and that a number of enumerated provisions of the UAE Civil Transaction Law ‘clearly do not prevent the initiation of proceedings despite the lapse of time in this case.’

On 26 July 2022 the Claim Form was issued by Janes on behalf of the Claimant. It was marked ‘Not for Service out of the Jurisdiction’. The ‘Brief details of claim’ stated that:

On 12 December 2022, the Claimant applied for permission to serve the Claim Form out of the jurisdiction. The only evidence served in support was contained in the Application Notice. Although it was stated that ‘a detailed statement of a UAE lawyer’ would be served prior to the hearing of this application, that did not happen. Particulars of Claim were ‘annexed’ to the application. The Particulars of Claim, in large part, reproduced the contents of the ‘Pre Action Protocol’ document. In paragraph 5, it is stated that ‘although the proceedings will take place in England the relevant law which will apply is the law of the UAE’, and that ‘this is a very significant and important point in deciding in which jurisdiction the claim should be litigated.’. Notwithstanding that statement that the applicable law would be the law of UAE, claims were made for damages under the Law Reform (Miscellaneous Provisions) Act 1934 and under the Fatal Accidents Act 1976, and alternatively under the laws of Dubai – UAE.

On 19 January 2023, the Claimant issued an application for an extension of time to serve the Claim Form out of the jurisdiction (‘The First Extension Application’). In support of this application the Claimant filed a 3-page witness statement from Mr Robert Berg of Janes. This stated in part:

An ex parte hearing of the application to extend time was held before Master Gidden on 25 January 2023 (‘The First Ex Parte Hearing’). Junior counsel, Mr Joshua Hitchens, had supplied a Skeleton Argument. This had stated, in paragraph 4:

The Skeleton Argument had referred to the principles as to extension of time set out in ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037, and had stated that, applying those principles:

At the (remote) hearing, which was listed for 20 minutes, and although no evidence had been served in support of the application for service out of the jurisdiction and Master Gidden had not anticipated that the application for service out would be addressed at that hearing, counsel asked the Master to deal with service out. Master Gidden acceded to this request and made an order for permission to serve the Claim Form out of the jurisdiction in Egypt. He also made an order extending time for service until 25 July 2023 (‘The First Extension Order’). As drawn up, the order only extended time for service of ‘the particulars of claim’ and did not mention the Claim Form.

On 28 June 2023 the Claimant applied for a second extension of time to serve the Claim Form and Particulars of Claim on the Defendant (‘The Second Extension Application’). The Application Notice contained, inter alia, the following:

That Application Notice was accompanied by a Second Witness Statement of Mr Berg. At paragraph 5 it was said that the claim had been issued ‘within the 15 year limitation period as prescribed under the applicable UAE statute.’ Mr Berg further said, at paragraph 12:

At the (again remote) ex parte hearing in front of Master Gidden on 25 July 2023 (‘The Second Ex Parte Hearing’), the Claimant was again represented by Mr Hitchens. One of the matters which counsel said to the Master was:

Master Gidden made an order that time for service of the Claim Form and Particulars of Claim should be extended until 25 January 2024 (‘The Second Extension Order’).

On 14 December 2023, the Claimant made an application for a further 6-month extension of time for service of the Claim Form (‘The Third Extension Application’). On 15 January 2024, a third Witness Statement of Mr Berg was filed in support of that application. It was a short statement, which dealt with the fact that Peters & Peters, for the Defendant, had written correspondence which, while making it clear that the Defendant was not submitting to the jurisdiction and had not provided instructions to Peters & Peters to accept service, asked for copies of various documents.

A further ex parte hearing took place before Master Gidden on 16 January 2024 (‘The Third Ex Parte Hearing’), and again the Claimant was represented by Mr Hitchens. On this occasion counsel referred to the duty of full and frank disclosure. In that connexion he raised two points, the first being that The Third Extension Application had inappropriately been made on an ‘urgent’ basis, and secondly that there had been correspondence with Peters & Peters, which had been exhibited, and that Peters & Peters had criticised the Claimant for not supplying copies of all the documents which had been requested.

Master Gidden made an order for a further extension of time to serve the Claim Form and Particulars of Claim until 25 July 2024 (‘The Third Extension Order’).

On 15 February 2024 Peters & Peters sent Janes a 31-page letter expressing concerns that the Claimant and his representatives had breached the duty of full and frank disclosure and that the court had been misled in The First, Second and Third Ex Parte Hearings which had taken place. On 22 February 2024, Mr Berg sent an email which said that Janes were taking instructions and intended to provide a detailed reply to the 15 February 2024 letter within 21 days. No such reply was sent, but on 7 March 2024 Janes sent a letter to Peters & Peters which said that Janes were no longer representing the Claimant, and that it was anticipated that they would soon be making an application to be removed from the record. The letter said that it remained Janes’ intention to provide a detailed response to the various issues which had been raised by Peters & Peters in correspondence. Master Gidden made an order removing Janes from the court record on 22 March 2024.

In May 2024, the Claimant instructed Walker Wise Solicitors (‘Walker Wise’) in place of Janes. Peters & Peters continued to press Janes (as well as Walker Wise) for a response in relation to the points which they had raised in correspondence. On 3 June 2024, Janes had said that they had drafted a detailed response to the various points raised, but wished to run this past Walker Wise before sending it to Peter & Peters. Neither that letter, nor any other detailed response, was sent by Janes to the Defendant or his representatives.

On 16 July 2024, the Claimant, by Walker Wise, issued an application for a further extension of time of two months to serve the Claim Form and also for an order permitting service by alternative means. The supporting witness statement of Mr Ibraheem of Walker Wise stated that the Foreign Process Section had returned the documents ‘without an explanation of why they could not be served.’ Further, that ‘we have made every effort to serve the documents on the Defendant’s solicitors in jurisdiction’, but that Peters & Peters ‘have made clear they are not authorised to accept service of the same’. The witness statement said that ‘[t]he UK is the appropriate jurisdiction as the Claimant resides in the UK as all damages have been sustained in and flow from the UK [and that] the Claimant will inevitably face difficulties with pursuing a claim in Egypt due to the Defendant’s political connections in the country.’

In a Skeleton Argument put in by junior counsel who had not attended the earlier hearings, it was stated that it had been discovered that the Defendant had, since November 2023, been the director of a UK company, and could accordingly be served in the jurisdiction pursuant to s. 1140 Companies Act 2006. At the hearing before Master Gidden on 23 October 2024, counsel said that the application for alternative service no longer needed to be pursued, but nevertheless sought that the hearing of the application should be relisted to be heard on notice. Master Gidden made an order extending time for service of the Claim Form and Particulars of Claim until 25 January 2025 (‘The Fourth Extension Order’), and relisted the Claimant’s application to be heard on notice on 21 January 2025.

On 24 October 2024, the Claimant served the Claim Form and Particulars of Claim on the Defendant pursuant to s. 1140 of the Companies Act. The documents were sent by post and the deemed date of service was 28 October 2024. No point was taken before me that that was not good service (subject to the Defendant’s points as to the invalidity of the previous orders extending time, and his case in relation to the inappropriateness of English jurisdiction).

On 19 November 2024, the Defendant issued his Part 11 Application, seeking an order that (1) the court does not have jurisdiction and shall not exercise jurisdiction in respect of the claim brought by the Claimant against the Defendant, and the setting aside of The First, Second, Third and Fourth Extension Orders and of service of the Claim Form and Particulars of Claim; alternatively (2) the court should not exercise jurisdiction over the claim brought by the Claimant against the Defendant and that the action be stayed. The application also sought directions for the hearing of the Part 11 Application.

The Defendant’s evidence in support of his Part 11 Application was served on 19 November 2024 and on 20 December 2024. The parties agreed extensions of time for the service of the Claimant’s evidence in response until 7 March 2025, on which date the Claimant served a witness statement of the Claimant himself, and a witness statement from Mr Ibraheem. The Claimant’s witness statement exhibited statements from a lawyer based in the UAE and another lawyer who had previously acted for the Claimant in Egypt. Reply evidence was served by the Defendant on 4 April 2025.