BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Fetter Lane, London, EC4A 1NL
B e f o r e :
| QATAR NATIONAL BANK (Q.P.S.C)
(FORMERLY QATAR NATIONAL BANK (S.A.Q))
|- and -
|(1) GOVERNMENT OF ERITREA
(2) STATEOF ERITREA
The Defendants did not appear and were not represented
Hearing date: 10 May 2019
Crown Copyright ©
Service on a foreign state
Was service of the Claim Form by an alternative method valid?
"(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. (my emphasis)
(2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid.
(4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired.
(5) A copy of any judgment give against a State in default of appearance shall be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry.
(6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the state has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner…."
(1) This rule applies where a party wishes to serve the claim form or other document on a State.
(2) In this rule, 'State' has the meaning given by section 14 of the State Immunity Act 1978.
(3) The party must file in the Central Office of the Royal Courts of Justice –
(a) a request for service to be arranged by the Foreign and Commonwealth Office;
(b) a copy of the claim form or other document; and
(c) any translation required under rule 6.45.
(4) The Senior Master will send the documents filed under this rule to the Foreign and Commonwealth Office with a request that it arranges for them to be served.
(5) An official certificate by the Foreign and Commonwealth Office stating that a claim form or other document has been duly served on a specified date in accordance with a request made under this rule is evidence of that fact.
" In my judgement, the requirement of service at, not merely "on" the Foreign Ministry of the Defendant State is no less than the plain words of section 12 (1) demands. Service is effected by transmission to the Ministry and takes effect when the document is received at the Ministry. In no sense is a diplomatic mission in a foreign State the same as the Ministry of Foreign Affairs of the sending state."
i) Does the Court have Power to Dispense with Service of the Claim Form in a claim against a foreign state (CPR 6.16)?
ii) If so, are there exceptional circumstances as required by CPR 6.16 that justify exercising that power in this case in relation to the Claim Form?
iii) If the answer to those questions is in the affirmative and the court exercises the power to dispense with service of the Claim Form:
a) Should the court give the Claimant permission to pursue a summary judgment application in the absence of an acknowledgement of service, and if so,
b) Is the Claimant entitled to summary judgment on their claim?
i) The Claimant has provided the Defendants, through their Embassy in London, not only with the Claim Form, but all the documents, applications, Orders, bundles and the skeleton for this hearing. In some cases those documents have been provided several times.
ii) The Claimant had obtained Orders which said that service was permitted by an alternative method. The Claimant's evidence is that the Embassy staff were told the documents were court documents and that they were being served. Whilst those Order for service of the Claim Form was not effective I am satisfied that the Defendants had been given ample opportunity to participate and attend the hearing.
iii) The Claimant's evidence sets out the steps they took to bring the proceedings, orders and this application to the attention of the Defendants and the response from the Embassy. I am satisfied that the Defendants are aware of these proceedings.
iv) I have regard to the overriding objective and the need to deal with cases justly and proportionately. I also take into account the need to ensure that cases are dealt with expeditiously and fairly.
v) These proceedings were issued on 3 April 2018 over a year ago. This is the adjourned hearing of this application for summary judgment not the first hearing. Although there has only been one earlier hearing, five orders have been made relating to service over a period of six months requiring the court to consider on paper several applications and seven witness statements.
vi) Although the claim is substantial there is no good reason to delay these proceedings further.
vii) The Defendants have not participated in the claim to date and there is no reason to think that they would do so if there were another adjournment.
viii) In making his submissions that the court should not follow the decision of Males LJ in General Dynamics but the competing lines of authority Mr Saoul QC has drawn to my attention in detail Males LJ's decision and authorities which are adverse to the Claimant's position and which would support the arguments that might be available to the Defendants on the issue of service.
Does the Court have Power to Dispense with Service of the Claim Form in a case against a foreign state?
i) Whether section 12 SIA applied at all – the Claimant said that there was no document that was required to be served pursuant to section 12 SIA and it did not therefore apply.
ii) If a document did have to be served pursuant to section 12 whether there was power to dispense with service
iii) And if so, should he exercise it.
European Convention on State Immunity 1972 ("the Convention")
Should the power to dispense with service be exercised?
"There is in my judgment no need to gloss the expression "exceptional circumstances" in this way. It is a broad and flexible test which should not be unduly complex to apply and should not be rigidly circumscribed."
i) make an application to court for permission to serve the Claim Form and associated documents on the Defendants in accordance with the provisions of section 12 SIA (a step which had by then already been taken by the Claimant);
ii) certify all documents which the Claimant was seeking to serve on the Defendants;
iii) have all the documents which the Claimant was seeking to serve legalised by the FCO; and
iv) have all the documents which the Claimant was seeking to serve re-legalised by the Embassy of Eritrea in London.
i) The staff at the Eritrean Embassy were told there were proposed court proceedings.
ii) They examined the documents on a number of occasions, although it is not clear from the evidence the status of those who examined them, it appears to have included the Ambassador's personal assistant.
iii) The Ambassador's personal assistant attended a meeting to discuss the court documents and why the documents needed to be re-legalised, asking the Claimant to seek confirmation from the FCO.
iv) In October 2018 the Ambassador's personal assistant confirmed she was liaising with the authorities in Eritrea in relation to the court proceedings and was awaiting instructions from the Ministry.
v) The court documents were personally delivered to the Eritrean Embassy on a number of occasions. Each of Mr Hagemeyer, Ms Yekta and Mr Carman say that they made it clear that the documents were court documents.
vi) Both Mr Hagemeyer and Mr Carman say they made it clear the documents were being delivered by way of service.
vii) The court documents were subsequently posted to the Eritrean Embassy and further documents were sent to the Eritrean Embassy including the bundle for this hearing, the skeleton argument and the application to dispense with service.
i) US$19,792,527 on 4 December 2011 in respect of the principal sums;
ii) US$19, 792,527 on 31 May 2012 in respect of the principal sums; and
iii) US$5,030,600.57 on 31 May 2012 in respect of interest.
i) The Court does have Power to Dispense with Service of the Claim Form in a case against a foreign state.
ii) There are there exceptional circumstances that justify exercising that power in this case.
iii) The court gives permission to pursue the summary judgment application pursuant to CPR 24 in the absence of an acknowledgment of service.
iv) The Claimant is entitled to summary judgment on their claim but that summary judgment cannot be enforced until after the order to dispense with service of the Claim Form has been notified to the Eritrean Government and the Defendants have had a period of time to respond or apply to set aside or vary the order made following this judgment.