England and Wales High Court (Commercial Court) Decisions

i)                    whether the present proceedings have been served on the Defendants in accordance with the requirements of the State Immunity Act 1978, alternatively whether service should be dispensed with; and

ii)                  whether the Defendants submitted to the jurisdiction of the US courts.

i)                    The plaintiffs’ claim was for damages for acts of state-sponsored terrorism that resulted in the hijacking of EgyptAir flight 648 on 23 November 1985 while bound from Athens to Cairo, resulting in the complete destruction of the aircraft, which was insured by the plaintiffs, and the terrorist shootings of the American victims of the hijacking.

ii)                  Having heard and reviewed the evidence the District Court determined that the hijacking was an act of international terrorism committed by the Abu Nidal Organization (“ANO”), which caused the destruction of the aircraft, and that the shootings occurred during and as a result of the hijacking.

iii)                The court also determined that the ANO was sponsored and supported by Syria at the time of the hijacking, and that the present Defendants were liable by reason of having “conspired with and provided substantial and material support to the ANO terrorist organization” and “provided material support and resources and conspired with the ANO in the planning, training, support for, and commission of the EgyptAir hijacking”, because “the lead ANO terrorist operative, Omar Ali Rezaq, was trained and supported by the Syrian defendants”, and because “the Syrian defendants intended that their support of the ANO would promote and cause extrajudicial killings of American citizens, as well as necessarily result in the property destruction of the EgyptAir airplane incidental to the goals and objectives of the Syrian defendants and the ANO terrorists.”

i)                    the Syrian defendants were served with process on 28 June 2003 but neither answered nor appeared;

“12(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.”

“The protection afforded by the Act of 1978 to States would be undermined if employees, officers (or as one authority puts it, “functionaries”) could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity. Section 14(1) must be read as affording to individual employees or officers of a foreign State protection under the same cloak as protects the State itself.”

“In my judgment, the requirement of service at, not merely ‘on,’ the Foreign Ministry of the defendant state is no more and 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.”

“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.”

i)                    Knowles J’s order of 8 August 2016 granted the Claimants permission to serve the proceedings on the Defendants out of the jurisdiction at the Syrian Ministry of Foreign Affairs (“the Syrian MFA”) and extended time for service to 14 March 2017. 

ii)                  Teare J’s order of 14 December 2016 provided that service on the First Defendant by transmission by the FCO by courier to the Syrian MFA “shall be deemed to be good and sufficient service”, and that transmission by the FCO by courier to the Syrian Ministry of Justice to the Second and Third Defendants would similarly be deemed good service on them.

iii)                Mrs Justice Carr’s order of 8 February 2017 brought the position of the Second and Third Defendants into line with that of the First Defendant by providing for transmission to the Syrian MFA, in the light of indications from the FCO that their practice and understanding of the 1978 Act required this, and extended time for service to 14 September 2017.

“To have (a thing) given or handed to oneself …”

and

“To get (a letter, etc.) brought to oneself or delivered into one’s hands”

“31(1)    A judgment given by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if, and only if:

(a)          It would be recognised and enforced if it had not been given against a state; and

(b)          That court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978.”

“2.         Submission to jurisdiction

(1)          A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.

…..

(3)          A State is deemed to have submitted –

….

(b)     subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.

(4)          Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of –

                   (a)     claiming immunity….”

i)                    On 3 October 2011 a Notice of Appeal was filed against the 2 September 2011 judgment, in the US Court of Appeals for the DC Circuit, by Ramsey Clark and Lawrence W Schilling as “Attorneys for the Syrian Arab Republic”.  The Notice of Appeal referred to the judgment as having been “based on the sole judgment and at the sole direction of the Magistrate judge presiding to whom the actions had been assigned for all purposes by the Article III judge initially presiding and without any further consideration or intervention by any Article III judge”.  That was an objection to the judgment based on an issue of the allocation of responsibilities between judges within the US federal judicial system.  It was later elaborated in the “Statement of Issues to be Raised” referred to below as raising among other things the issue:

“Whether the assignment of a case against a foreign sovereign state under the FSIA [Foreign Sovereign Immunity Act] to a Magistrate Judge for all purposes without the expressed consent of the sovereign, excluding all participation thereafter by an Article III judge where the Magistrate Judge then presides over, holds evidentiary hearings and decides all issues of fact or law in the case against the sovereign and enters a final judgment without any participation or review by an Article III judge violates the Constitution or laws of the United States.”

The Notice of Appeal did not, however, contain any objection to the jurisdiction of the US courts to assume jurisdiction over the Defendants, or any reservation of rights in that regard.

ii)                  On 8 May 2012 LWS filed an Amended Notice of Appeal.  It made essentially the same point about the allocation of the case to a Magistrate Judge: “said sums of $51,574,997.80 and $23,823,828.99 based on the sole judgment and were entered by the Clerk at the sole direction of the Magistrate judge presiding to whom the action had been assigned for all purposes by the Article III judge initially presiding over the consolidated actions and without any further consideration or intervention by any Article III judge”.  ($23,823,828.99 was the difference between the sums adjudged due in the original and amended judgments.)  There was again no objection or reservation to the jurisdiction of the US courts in general based on state immunity.

iii)                On 17 May 2012 LWS filed a further Amended Notice of Appeal in essentially similar terms following a further amendment to the judgment.

iv)                On 30 May 2012 LWS filed a Motion for Extension of Time for Syria to file its preliminary papers on the appeal.  The motion referred to a number of facts creating the need for an extension, including (1) the grounds for the increase in the judgment sum, (2) a contention that under an overall settlement between the US and Libya in August 2008 the actions against both Libya and Syria were required to be terminated and (3) that “This is a case for property damage by insurers of an airplane for which there is little if any case law, not for the usual damages under the FSIA terrorism exception for personal injury or death.”

v)                  On 2 July 2012 a Statement of Issues to be raised on appeal was filed by LWS.  This raised 12 issues, including (a) the matter of judicial allocation referred to in the Notices of Appeal (§§ 1 and 2) and (b) an issue reflecting the point quoted above from the extension of time application:

“5.  Whether losses from property damage to the hull of an airliner separately insured by plaintiffs from terrorist violence occurring on November 23, [1985] is recoverable against the Syrian Arab Republic as damages under the Foreign Sovereign Immunities Act by plaintiffs who are U.S. insurers and/or foreign insurers.”

The other issues referred to included: (c) whether all claims against Syria were terminated under the US-Libyan Overall Settlement Agreement (§ 6); (d) whether the proceedings had involved various breaches of the US Foreign Sovereign Immunities Act (“FSIA”) as regards service of process (§§ 7, 8 and 9); (e) whether Syria had been subjected to liability “on the basis of judicially decided political questions not constitutionally determinable by U.S. Courts” (§ 11); and (f) whether liability was being imposed on Syria as a result of “a continuing course of action by the Executive and Legislative branches that consistently and predictably renders judgments of U.S. courts non final and subject to change” (§ 12).

vi)                On 2 July 2012 LWS filed a certificate describing all three Defendants as Appellants and parties to the appeal, adding that “Syria submits that the Libyan defendants should be considered as appellants on this appeal because their dismissal below was erroneous.”  The certificate stated that the Magistrate Judge’s orders filed on 2 September 2011 were under review “because the Magistrate Judge issued no decision or explanation of amount by which he increased the judgment he directed the Clerk to enter against Syria by minute order on April 12, 2012.”  The certificate also indicated that there were many other cases against Syria in US courts which should be considered related cases because they “raise common and fundamental issues as to Syria’s right to equal sovereignty and the soundness of the extraterritorial jurisdiction U.S. courts are claiming in order to adjudicate the cases”.

vii)              On 2 July 2012 LWS filed an Entry of Appearance asking the Clerk to enter their appearance as counsel for the Syrian Arab Republic.  It included no objection or reservation of rights based on sovereign immunity.

viii)            Also on 2 July 2012, LWS filed a Civil Docketing Statement setting out basic details about the case and indicating that the case turned on the validity or interpretation of the FSIA. 

ix)                LWS filed a third document on 2 July 2012, headed “Underlying Decision from Which Appeal Arises”, which referred to the original judgment entered in September 2011 replaced by the April 2012 judgment taking into account the increased amounts awarded by the Magistrate Judge in granting the plaintiffs’ motion to alter judgment filed in September 2011.  The document further states “There is no underlying decision or explanation accompanying the increase.  The Clerk was directed by the Magistrate Judge to enter a new judgment awarding the increased amounts in a Minute Order issued on April 12, 2012, which included no explanation of the figures. …”

x)                  On 19 September 2012 LWS filed a “Statement of the Syrian Arab Republic regarding formats for the briefing of the appeal”. 

xi)                On 20 November 2012 LWS filed a consent motion for voluntary dismissal of the appeal, stating “Defendant-Appellant the Syrian Arab Republic, moves herewith for an order pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure voluntarily dismissing this appeal”, indicating that the plaintiffs consented to this.  The court on 27 November 2012 ordered “that the motion be granted, and this case is hereby dismissed”.

“'Apart from jurisdiction derived from other provisions of this Convention, a court of a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 16”. 

“[29] I should also read section 33 which reflects provisions which I have already read from Article 18. It is to be noted, however, that both section 32 and section 33 relate to judgments given by courts of overseas countries generally and are not restricted to judgments given in Convention countries. 'Judgment' is defined in section 50 as meaning (subject to exceptions which do not apply)

'any judgment or order (by whatever name called) given or made by a court, in any civil proceedings.'

Section 33, to which I earlier referred, is in these terms, under the rubric 'Certain steps not to amount to submission to jurisdiction of overseas court' :

'For the purposes of determining …'

I need not read subsection (2).” (emphasis added)

i)                    it does not, properly analysed, support the view that a pre-defence step cannot amount to a submission if the defendant subsequently contests jurisdiction by the time of submitting his defence; and

ii)                  in any event, where as in the present case the question of submission arises in the context of an appeal, in so far as there is any analogous step to the filing of a defence at first instance it must here be the filing of the notice of appeal.

i)                    Elefanten Schuh concerned the interpretation of Article 18 of the Brussels Convention, which allows jurisdiction to be founded on submission as a part of a comprehensive scheme providing a range of bases of jurisdiction including domicile, “special” jurisdiction in contract, tort and other cases, and certain heads of exclusive jurisdiction.  By contrast, the common law rule of private international law forms part of a long-established scheme under which foreign judgments in personam are treated as having been within the foreign court’s jurisdiction only in a very limited set of circumstances, one of which is submission, as outlined in § 30 above.  In these circumstances, it does not appear logical to deduce from the fact that the ECJ may have given a restricted approach to submission in the context of Article 18 that the established bases for recognition of non-EU judgments should as a result be narrowed down.  As the Claimants say, it would be very odd in principle if CJJA section 33(1) were to be treated as inadvertently attenuating the circumstances in which recognition could be given to judgments of other leading common law jurisdictions such as the United States.

ii)                  Section 33 was introduced for the reason indicated in §§ 42-43 above, and not in order to reflect Article 18 of the Brussels Convention.  On the contrary, section 33(2) explicitly provides that section 33 does not apply to cases within the Brussels regime.  The position is thus not merely that section 33 is “not restricted to judgments given in Convention countries”, but that it expressly has no application in such circumstances.

iii)                I agree with the Claimants that the reference in Ecobank § 66 to the decision of the court in Harada “in relation to section 33 [being] heavily influenced by the decision of the European Court in relation to article 18” is, with respect, puzzling given that the Harada decision makes no express reference to CJJA section 33.  Indeed, neither Marc Rich nor Harada concerned the common law rules on submission at all: Marc Rich involved a court of another EU Member State, so that Article 18 and not section 33 applied; Harada concerned submission to an English court.

iv)                AES and Ecobank did involve submission to the jurisdiction of a non-EU foreign court.  However, the comments in both cases were obiter.  In AES that is clear from the observation itself.  In relation to Ecobank, I agree with the Claimants that even as a matter of common law, unaffected by Article 18, the conduct said to have constituted submission in Togo would not have amounted to submission.  The Defendants were ordered to plead to the merits despite their express challenge to the jurisdiction. That requirement was fatal to any suggestion of submission (see §§ 7-9 and 67). Even taking the conventional common law approach this conduct would not amount to submission having regard to the principles set out earlier.

i)                    They rely on findings as to US law made by Lawrence Collins J in Starlight International Inc v AJ Bruce and Others [2002] IL Pr 35 617, pursuant to section 4 of the Civil Evidence Act 1972, having given the Defendants  21 days’ prior notice of such reliance pursuant to CPR 33.7.  The Claimants are accordingly entitled to rely upon these findings or, in the alternative, seek permission to do so.  To the extent that permission may be required, I grant such permission.

i)                    in deciding whether a defendant has implicitly waived a jurisdiction defence by its appearance in proceedings, a court must determine whether any of the defendant’s appearances and filings constituted “legal submission to the jurisdiction of the court” (§ 12);

ii)                  US courts apply a “reasonable expectation” standard to make this determination, such that “submissions, appearances and filings that give a plaintiff a reasonable expectation that the defendant will defend the suit on the merits or which cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking, result in a waiver of personal jurisdiction defense” (§§ 7 & 12);

iii)                a determination of submission to jurisdiction is a fact sensitive enquiry which requires a consideration of all the relevant circumstances, including the specific actions taken by the defendant in the proceedings (§§ 7 & 12); and

iv)                in the present proceedings, as a matter of US law the Defendants would be held to have submitted to the jurisdiction of the US courts by taking the steps that they did and engaging with the merits in the way that they did.  Ms Langford explains that constitutional objections are treated, as a matter of US law, as arguments on the merits; and refers to the contrast between the Defendants’ conduct in the US proceedings in the present case with the stance they took (represented by the same US Attorneys) in Baker where they filed a limited notice of appearance as indicated in § 38 above.

i)                    The three Notices of Appeal filed in October 2011 and May 2012 directly invoked the jurisdiction of the US courts, without expressing any reservation as to the jurisdiction of the US courts and without any objection on sovereign immunity grounds.

ii)                  All three Notices of Appeal raised an issue relating to the powers of a Magistrate Judge relative to those of an Article III judge, which was said to concern the Constitution or laws of the US.  Ms Langford’s evidence is, as noted above, that constitutional objections are treated, as a matter of US law, as arguments on the merits.  Viewing the matter from an English point of view too, raising an issue as to the allocation of powers between judges within a court system should be regarded invoking the court’s merits jurisdiction or, at least, as indicating a submission to the jurisdiction of the relevant country’s courts as a whole.  I agree with the statement in Dicey, Morris & Collins § 14-072 that:

“It is submitted that if the whole of the relief sought by the defendant from the foreign court is a decision by the court that it has no international jurisdiction, the appearance will be protected from being regarded as a submission by s.33(1)(a); but that a contention that a different court (but in the same country) has jurisdiction is not to be seen as contesting the jurisdiction within the meaning of s.33(1)(a), for it is implicit in the contention that the courts of the country do not lack jurisdiction.”

iii)                There was no need for Syria to litigate on the merits at the same time as challenging the jurisdiction of the US courts: it would have been entitled simply to challenge jurisdiction alone: see the Starlight finding referred to in § 62.i) above.

iv)                Syria’s filings in this case contrast with the Notice of Limited Appearance which it had, through the same counsel, filed in the same court the previous year in Baker.  Its failure to file such a notice in the present case lends support to the view that it submitted to the jurisdiction.

v)                  The Motion for Extension of Time filed on 30 May 2012 raised issues as to the merits.  Whilst it also referred to questions arising under the FSIA, it did not allege that the US courts lacked jurisdiction on sovereign or state immunity grounds.

vi)                The same applies to the Statement of Issues filed in July 2012 and the certificate filed in July 2012.

vii)              The “Underlying Decision” document filed in July 2012 referred only to a merits issue, namely the alleged lack of explanation for the increase in the judgment figure.

viii)            Syria’s Motion for voluntary dismissal of the appeal was itself an invocation of the US court’s jurisdiction without any accompanying reservation as to jurisdiction or immunity.  It was equivalent to agreeing to a consent order dismissing the claims and cross claims (see the quotation from Swiss Life in §40 above).

ix)                None of the documents filed up to and including the Motion for voluntary dismissal of the appeal contained any clear or express reservation to the effect that Syria contended the US courts could not exercise jurisdiction over it by reason of sovereign or state immunity, against in contrast to its filing in Baker. 

x)                  Each of those documents was taking a step which was only necessary or only useful if any objection to jurisdiction had been waiver or not taken.

xi)                In contrast, Syria’s January 2013 Notice in response to the plaintiffs’ enforcement motion did contain an express statement that the court lacked jurisdiction over Syria and that the case was barred by sovereign immunity.  By this stage, however, Syria had already submitted to the jurisdiction by filing and pursuing an appeal without any such reservation, up to and including the point of applying for its voluntary withdrawal.  As noted in § 37.xiii) above, Syria’s motion itself proceeded on the footing that it had previously appeared by counsel for a portion of the proceedings before the US courts.

i)                    Starlight makes clear that a defendant may challenge jurisdiction in a separate motion.

ii)                  Ms Langford’s report emphasises the absence in any of Syria’s relevant steps of an assertion of immunity, a reservation of the right to challenge jurisdiction, or any actual challenge.

iii)                As evidenced by the fact that the Notices of Appeal were first filed and then dismissed at Syria’s own request, it was under no obligation to participate in the proceedings at all.

iv)                As evidenced by the Defendants’ conduct of the Baker litigation, Syria could easily have made it explicit that it was appearing only in order to challenge jurisdiction.

v)                  All of this is in stark contrast to the facts in issue in both Ecobank and Harada where the defendants were ordered to file submissions on the merits or directed that the hearing on the merits would proceed notwithstanding their objections (see e.g. Ecobank at §§ 8-9; Harada at §§ 9-11 and 35-36).

i)                    the US District Court’s use of the shorthand of “Syria” to refer to all three Defendants in its Findings of Fact and Conclusions of Law, and in its Judgment and Amended Judgment filed on 2 September 2011 and  14 May 2012 respectively;

ii)                  the express statement by LWS in the Certificate filed on 2 July 2012 that “The Syrian appellants on this appeal are the Syrian Arab Republic, Syrian Air Force Intelligence and General Muhammed Al Khuli”;

iii)                the reference in the Plaintiffs’ Motion of December 2012 to the facts that on 2 September 2011 “Magistrate Judge Facciola entered a judgment against the Syrian Defendants”; on 3 October 2011 “all Syrian Defendants entered an appearance and simultaneously noticed an appeal”; on 8 May 2012 “Counsel for the Syrian Defendants filed an Amended Notice of Appeal”; and on 27 November 2012 “the Syrian Defendants filed an unopposed motion to voluntarily dismiss the appeal.  To these statements can be added the statement quoted in § 37.xii) above that counsel for the “Syria Defendants” (defined to refer to all three of the present Defendants) had “entered his appearance, in this Court and before the US Court of Appeals for the DC Circuit in the now dismissed appeal, on behalf of the Defendants”;

iv)                the absence of any express challenge by the Defendants to this treatment of all three Defendants as party to the appeal and as represented by the same Counsel, in the January 2013 filing by LWS; and

v)                  the evidence that at least in the related Baker litigation LWS were acting for all three Defendants despite at the same time and (it is to be inferred for shorthand) referring to themselves as “Attorneys for the Syrian Arab Republic”. The Court treated the Defendants as appearing together and as jointly represented in those proceedings too, noting for example in its Memorandum order of 1 September 2011 in Baker that “the defendants noted an appearance” and “the defendants filed a notice of appeal”.

i)                    LWS in the Certificate filed on 2 July 2012 expressly stated all three to be appellants in the appeal.

ii)                  LWS nonetheless signed the Certificate using the words “Attorneys for the Syrian Arab Republic”.  There is, however, no sign in any of the documents that any other law firm was representing the Second and Third Defendants in the appeal or any other part of the case.  The only logical inference is therefore that, whilst they described themselves as attorneys for the First Defendant, LWS were in fact acting for all three Syrian defendants and representing them all as appellants.  It also follows that LWS’s execution of earlier and later filings in the same manner was not inconsistent with their acting for all three Defendants.

iii)                The plaintiffs’ December 2012 Motion, quoted above, stated four times that all three of the Defendants had participated in the appeal.  LWS’s January 2013 filing was a direct response to that Motion.  Had LWS not been conducting the appeal on behalf of all three Defendants, it would have been very surprising for them not to have taken issue with those statements in their response.

iv)                The US court itself subsequently, in its April 2014 Memorandum Order, took the view that all three defendants had filed a Notice of Appeal.

i)                    the foreign judgment is final and conclusive on the merits;

ii)                  it is for a debt or definite sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and

iii)                not impeachable on the basis of fraud, contrary to public policy, or obtained in proceedings that were contrary to natural justice.

i)                    she considers the US Prime Rate to be appropriate because (a) though borrowing rates in the US vary depending on borrower type and characteristics, the Prime Rate is used as a benchmark in the market, (b) US cases have held it to be the most appropriate rate of pre-judgment interest as it best approximates the market rate of borrowing, and (c) it is generally considered the starting point for awards in US dollars in the English courts; and

ii)                  whilst section 35A of the Senior Courts Act is wide enough to permit a claim based on the US Prime Rate as from the date of the US judgment, in circumstances where US law provides for the lower rate of 0.18% by way of post judgment interest the Claimants consider it appropriate to seek Prime Rate only as from the date of issue of the present proceedings (14 September 2015).