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The Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) & Ors [2025] EWHC 1481 (Comm) (16 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Comm/2025/1481.html
Cite as:
[2025] EWHC 1481 (Comm)
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Neutral Citation Number: [2025] EWHC 1481 (Comm) |
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Case No: CL-2019-000127 |
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
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Rolls Building, Royal Courts of Justice London |
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16/06/25 |
B e f o r e :
THE HON MR JUSTICE ROBIN KNOWLES CBE
____________________
Between:
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THE REPUBLIC OF MOZAMBIQUE (acting through its Attorney General)
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Claimant
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- and
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(6) PRIVINVEST SHIPBUILDING SAL (HOLDING) (7) ABU DHABI MAR INVESTMENTS LLC (8) PRIVINVEST SHIPBUILDING INVESTMENTS LLC (9) LOGISTICS INTERNATIONAL SAL (OFFSHORE) (10) LOGISTICS INTERNATIONAL INVESTMENTS LLC (11) MR ISKANDAR SAFA (Deceased, represented Pro Tem by Mr Azoury)
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Defendants
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- and
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(1) MS CLARA MARTINEZ THEDY DE SAFA (2) MR AKRAM ISKANDAR SAFA (3) MS ALEJANDRO SAFA
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Respondents
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Nathan Pillow KC, Ciaran Keller KC, Jordan Holland and Akash Sonecha (instructed by Peters & Peters Solicitors LLP) for the Claimant
Frederick Wilmot-Smith (instructed by Signature Litigation LLP) for the Defendants
Robert Howe KC, Andrew Holden and Niamh Davis (instructed by Forsters LLP) for the Respondents
Hearing dates: 9 October 2024 and subsequent written submissions to 5 February 2025
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HTML VERSION OF JUDGMENT (NO 15)
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Crown Copyright ©
Robin Knowles J, CBE:
Introduction
- Mr Iskandar Safa ("Mr Safa") was a Defendant in these proceedings brought by the Claimant ("Mozambique").
- Already ill, he gave evidence at trial. Very sadly, he died on 29 January 2024. This was shortly after the trial, which lasted 3 months, had concluded. His death was before judgment which was handed down on 29 July 2024 (Judgment No 12: "the Judgment", at [2024] EWHC 1957 (Comm)).
- At paragraphs [33]-[34] of the Judgment I said:
"33. Sadly, shortly after the trial Mr Safa died. As the point for handing down this Judgment approached, contested applications were issued by Mozambique and by the Privinvest Companies to appoint representatives of his estate for the purpose of these proceedings. The determination of these applications may involve consideration of questions of Lebanese and French law, and there have been jurisdictional reservations by Mr Safa's family.
34. I received additional written argument from Mozambique and from the Privinvest Companies. With the benefit of that argument, I made an Order dated 28 June 2024, and in keeping with the terms of that Order which owe much to careful discussion between a number of the legal teams (here and abroad), I record that the following matters are not determined in or by this Judgment:
(a) All questions as to the consequences of the death of Mr Safa. These are reserved for subsequent consideration and are to be determined together with what are contested applications to appoint representatives of his estate ("the Reserved Issues").
(b) In relation to claims against and made by Mr Safa ("the Safa Claims"), this Judgment states only what the outcome of the determination of the Safa Claims would have been had Mr Safa not died prior to the Judgment.
(c) This Judgment does not determine which person or persons shall be representatives and/or party to the determination of the Safa Claims.
(d) For the avoidance of doubt, the Reserved Issues include all questions as to the participation or otherwise of Mr Akram Azoury (a member of the Lebanese Bar) and [the Respondents] (members of Mr Safa's family) in these proceedings (whether as joined parties, or as representatives pursuant to CPR, r.19.12)."
- The Respondents, Ms Clara Martinez Thedy de Safa, Mr Akram Safa and Mr Alejandro Safa, are respectively Mr Safa's widow and his sons.
- As a result of Mr Safa's death, Mozambique applies to join the Respondents as Defendants to these proceedings. In this judgment I decide the main questions of jurisdiction, joinder, amendment and service out of the jurisdiction that were in issue as between Mozambique and the Respondents. I shall concentrate in the text of this judgment on the matters argued, rather than details that were not. There are some ancillary matters but these are best dealt with in light of the parties' consideration of this decision.
- At least for present purposes, Mr Safa's domicile at death is to be taken as Lebanon. It appears that he died intestate.
- There is no order for administration of the English estate of Mr Safa. Lebanon, a civil law jurisdiction, "does not have the concept of intermediated administration via a personal representative", to use the language of the written submissions on behalf of the Respondents.
- The proceedings are international in nature, and any enforcement issues that will follow any findings of liability will principally be international, including in Lebanon.
Mozambique's proposed claim against the Respondents
- As indicated, Mozambique would join the Respondents as Defendants. In a draft statement of case (a short Joinder Particulars of Claim to form part of the Particulars of Claim in the proceedings as a whole) it states its position, including by reference to what it contends is the position as a matter of Lebanese law.
- In summary, under Lebanese law upon a person's death the deceased's legal identity ceases to exist. There is no "estate" to take the place of the deceased. The deceased's heirs succeed to the assets and liabilities of the deceased and they are each liable (i) in respect of and up to their respective share of the hereditary liabilities and (ii) up to the value of the assets they inherit.
- In the present case there is evidence that the Respondents are Mr Safa's heirs. In its statement of case Mozambique states:
"Mr Safa is liable to the Republic for the reasons and in the amounts pleaded in [Mozambique's Particulars of Claim in these proceedings].
the Safa Heirs have succeeded to Mr Safa's liabilities to the Republic and are liable to the Republic in the same manner and to the same extent as Mr Safa, subject to the limits pleaded
".
Jurisdiction
- For the Respondents there is, first, a matter of jurisdiction. They say that the English Court has no jurisdiction to entertain all or substantially all of the claims proposed to be brought against them, as this is a matter of administration that must be brought before the courts of Lebanon. They point to a jurisdictional bar against bringing any claim against a foreign personal representative in England in respect of the administration of the estate.
- According to the Respondents "the administration of Mr Safa's affairs is dealt with in Lebanon via the drawing up of an inventory of his estate and the making by the Lebanese Court of a certificate of inheritance [or] Estate Determination Order".
- In due course, say the Respondents, they will be able to apply for certificates of inheritance or an Estate Determination Order from the Lebanese Court at which point they will "be required to elect whether to accept or disclaim their inheritance" from Mr Safa.
- In the circumstances the Respondents criticise the application by Mozambique as asking the English Court now:
"
to take jurisdiction over [the Respondents] and to make orders relating to both the administration of Mr Safa's estate in Lebanon, and to make orders relating to both the administration of Mr Safa's estate, and the succession to Mr Safa's estate".
- The Respondents say that what the English Court is being asked to do is "take jurisdiction over and determine" a claim that the Respondents "have the status of heirs of Mr Safa's estate under Lebanese law", that "the burden of Mr Safa's 'debts and liabilities'" worldwide "are transferred to [the Respondents] by operation of Lebanese law"; and that the Respondents "succeed to his assets by way of inheritance" but subject to those debts and liabilities.
- Mr Robert Howe KC, leading for the Respondents, contended in oral argument that in substance the application by Mozambique involved "arrogating" to the English Court the determination of who are the heirs and what are the liabilities. The Respondents' position is that these are not for the English Court to determine and that these are matters that should be determined by the courts of Lebanon. Taking jurisdiction "would breach a fundamental principle of private international law which restricts the Court's jurisdiction in matters relating to the administration of estates".
- For its part, Mozambique makes good on the evidence before this Court three key points under Lebanese law. First, that the assets and liabilities of the deceased transfer by operation of law to his heirs on his death. Second, that the deceased ceases to have legal personality and it is his heirs that are to be sued in his place. Third, that the heirs of a deceased may be entitled to renounce the transfer to them of assets and liabilities.
- The Court has the benefit of evidence of Lebanese law from distinguished and highly qualified experts, Professor Hadi Slim (asked to provide an expert report by the Respondents), President Mouhib Maamari (asked to provide an expert report by Mozambique), and Professor Nayla Obeid (also asked to provide an expert report by Mozambique). No expert was cross examined. The evidence of each supports Mozambique's position. I accept the evidence, including the passages that I shall next cite.
- Professor Slim states:
"The concept of estate in the meaning of the aggregate of all the assets owned by a deceased person less all his/her liabilities does not exist in Lebanon. In addition there is no mandatory procedure under Lebanese law similar to the estate administration.
Under Lebanese law, the rights, assets and debts left by the deceased vest immediately upon death on the heirs."
- President Mouhib Maamari states:
"A patrimony consists of everything a person can own.
It is indivisible and encompasses both assets and liabilities.
This includes obligations arising from pending litigation.
Upon the death of the decedent, there is no vacancy of the patrimony since it is transferred to his heir
The transfer pertains to an entire patrimony being handed over.
heirs are personally liable for its debts, though this liability is limited to what they inherit.
In this case, one can speak of the inheritances of assets. Here, the heirs will be pursued as holders of a hereditary patrimony by only the creditors of the deceased. The creditors of the heirs will not compete with those of the deceased. It is the heirs who control the hereditary assets and are responsible for the debts of the deceased. They hold the corpus, employing a term favoured by Von Savigny, which acts as a vanguard to the ownership that will be definitively established over the assets that remain after all the deceased debts are settled.
In Lebanese law, the heir has the option to either accept or renounce the inheritance. Consequently, the heir is responsible for settling the debts owed to the creditors of the deceased and can be sued for these debts, but only up to the value of the inheritance received.
under Lebanese law, when an individual dies, his legal personality ceases to exist, and his claims, debts, rights and obligations (with limitations) are transferred to his heirs. This can be established by [the Code of Obligations and Contracts] and article 2 of the Law of Succession. Lebanese courts refer to the transmission of obligations as follows:
"Whereas it is known that an heir succeeds the deceased in his rights and obligations in proportion to his share of the inheritance, unless he completely rejects the inheritance.""
- There is no suggestion by the Respondents that they have renounced the vesting in them of the assets and liabilities of Mr Safa.
Discussion
- The Respondents cite Dicey & Morris & Collins at Rule 160, that "[a] foreign personal representative is not, as such, under any liability in England and cannot, as foreign personal representative, be sued in England". In Degazon v Barclays Bank International [1987] 1 FTLR 17 the Rule (then numbered 133) was considered "settled law". The Respondents refer to Nova v Grove [1982] 22 Alta LR (2d) 262 at [29] and [45] as illustrating the principle.
- But I do not see that Mozambique seeks to impose liability or sue the Respondents in any capacity of personal representatives. Mozambique in fact argues, and evidences, that there is no foreign administration and no question of administration; indeed, that the concepts of an estate, and of the administration of an estate, are not known to Lebanese law. If the Respondents are made Defendants in these proceedings they will be sued by Mozambique as heirs and not as personal representatives.
- There is authority to support the proposition that administration, as understood by English law, includes the collection of the assets of the deceased and the payment of the liabilities of the deceased: see for example Cheshire & North as cited in Viegas v Sanches [2023] EWHC 1896 (Comm) at [189] and Williams Mortimer & Sunnucks (22nd edn) at 3-01. However, there is evidence in the present case that under Lebanese law there is immediate outright succession by heirs to assets and liabilities, and it is on that that Mozambique relies.
- As to assets, the English Court will permit a person who has an absolute entitlement to a deceased's property in accordance with the law of their domicile, to enforce in this country a claim in a personal and not representative capacity, even though it is connected with administration: see Vanquelin v Bouard 15 CB (NS) 841 (Court of Common Pleas); Haji-Ioannou (Deceased) v Frangos [2009] EWHC 2310 at [74] (Slade J); Cheshire & North Private International Law 15th edn pp 1325-1335; Viegas v Cutrale [2024] EWCA Civ 1122 [99]-[127] (Newey LJ). There is no reason why the approach should be different for liabilities.
- On the question of absolute entitlement, civil law systems vary in their detail. It is to be noted that the available expert evidence suggests that the basis of immediate outright succession may differ between Lebanese law and Brazilian law, the law considered in Viegas. It is also to be noted that the available expert evidence suggests that, in Lebanese law, for the purpose of "[t]he general civil law rule" referred to in Cheshire & North "that the entire property of a deceased person passes directly to his heirs, testate or intestate, or to his universal legatee", the qualification in terms "subject
to their acceptance" is replaced by a qualification to the effect "unless they disclaim".
- Where, as in Viegas, the English Court is concerned with an asset situate in England that was an asset of the deceased at death there may be further requirements of English law (but as a matter of governing law not jurisdiction): see for example High Commissioner for Pakistan [2015] EWHC 55 (Ch) per Henderson J. However, I do not need to describe these as the present case does not concern an asset, i.e. the entitlement of the heirs to bring proceedings.
- As Mr Nathan Pillow KC, for Mozambique, submitted:
"Viegas concerned dealings with the deceased's assets situated in England. This was the basis on which the issue of the claimants' standing, as some of the alleged heirs, to bring claims in England to collect those assets in, fell to be characterised as one of administration of estates governed by the law of England and requiring grants of representation here. By contrast, the Republic's claim is not brought by alleged heirs seeking to collect in English assets for the estate; but against the heirs, asserting their personal liability in respect of debts to which it is common ground they have personally succeeded under the relevant (Lebanese) law."
- To the suggestion by the Respondents that this involves arrogating to the English Court to determine who are the heirs and what are the liabilities, first I see no dispute over who are the heirs.
- Second, I see the English court involved in completing the task it has long been embarked on. That is, of deciding what liability arises from the matters it was responsible for deciding in the proceedings by reason of the conduct of Mr Safa. It is not determining "what are the liabilities" in what would be understood in English law as a comprehensive exercise of administration across a deceased's estate. I am not at this point considering whether, and how, and where, any judgment against the Respondents might be enforced, or how it might be dealt with under Lebanese law and what else Lebanese law provides or requires to be done in light of Mr Safa's death.
- If, contrary to the above, the English Court was to insist that there is an estate with legal identity, that this matter involves the administration of that estate, that succession has not been reached, and that in these circumstances the heirs should not be added as Defendants, then the English Court risks leaving matters, and its decision from the trial, unrecognisable in a relevant foreign jurisdiction. That would not be an outcome to be accepted lightly. For the reasons given it is not, in my judgment, a result that English law requires.
Joinder and amendment
- The Respondents' position is that there is no realistic prospect of success in the proposed claim, or no serious issue to be tried. However, having reviewed and rejected above the position of the Respondents on jurisdiction, and having regard to the expert evidence available, I consider it quite clear that the required threshold for joinder and amendment is reached.
- I acknowledge that, on the present materials, there may be an issue between the experts on Lebanese law as to whether an uncrystallised liability in tort can pass on death. Sensibly, this was not debated at the hearing. There is plainly a serious issue to be tried: Mozambique's argument is that there does not need to be a crystallisation, because the obligation is created in Lebanese law by committing the tort and causing the damage, with the process of crystallising the compensation as what was described as a "procedural second step".
- Rule19.2(2) of the Civil Procedure Rules provides:
"The court may order a person to be added as a new party if
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue."
- I consider this a plain case in which both limbs of the Rule are satisfied. Amendment as sought sensibly follows in my view, and both joinder and amendment are in keeping with the overriding objective of the Civil Procedure Rules.
- If Lebanese law is as advanced by Mozambique, then joinder and amendment will help give effect to it. Further as Mr Nathan Pillow KC, leading for Mozambique, summarised in oral argument, while in English law the claim can be pursued without the joinder of anybody else because one can pursue the claim against (what English law would see as) the estate, it can be necessary under foreign laws to obtain a judgment against other persons if the cause of action is ever to be vindicated against the persons who are now liable in law for the wrongdoing that has been found, and payment of compensation.
Service out of the jurisdiction
- Mozambique requires the permission of the Court to serve the proceedings on at least Ms Clara Martinez Thedy de Safa and Mr Akram Safa, and possibly Mr Alejandro Safa too, because they are not in the jurisdiction.
Gateways
- It is emphasised on behalf of the Respondents that this requires, among other things, the Court to be satisfied that there is a good arguable case that the claim against them falls into one or more of the jurisdictional gateways under Practice Direction 6B of the Civil Procedure Rules. The gateways relied on by Mozambique are 3.1(3), (4A), (6), (9) and (16) of the Practice Direction.
- These are the gateways that Mozambique relied upon to obtain the Court's permission to serve the claim form out of the jurisdiction on Mr Safa to begin the proceedings as against him.
- The Respondents argue that what Mozambique requires is a gateway that applies to them not Mr Safa. As they put it:
"
the claims against Mr Safa were based on a variety of causes of action arising out of the events which give rise to the Judgment. The claim against [the Respondents] is based solely on their alleged liability as successors to Mr Safa's liabilities under the relevant provisions of Lebanese succession law".
- In my judgment the claim against the Respondents is the same as the claim against Mr Safa, and for that reason the same gateways apply. The Respondents are successors to liabilities of Mr Safa, including any liabilities the subject of the claim. I am satisfied that the requirements of one or more of the gateways are met (leaving aside, for the moment, gateway 3.1(3) to which I turn separately).
"Necessary or proper party"
- In any event gateway 3.1(3) applies to the Respondents, in my judgment. The gateway is these terms:
"[a] claim is made against a person ("the defendant") on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and (a) There is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) The claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim."
- As the Respondents invite, I approach the matter in the manner described by Andrews J (as she then was) in Gunn v Diaz [2017] EWHC 157 (QB); [2017] 1 All ER (Comm) 129 at [86] and in particular i) ii) and ix):
"A number of authorities relating to the jurisdiction under this gateway were cited to me, from which the following principles relevant to the issues in the present case can be extracted:
i) The "necessary or proper party" gateway is anomalous, in that, by contrast with the other heads of jurisdiction, it is not founded upon any territorial connection between the claim, the subject-matter of the relevant action, and the jurisdiction of the English courts: AK Investment at [73];
ii) The prospect of proceedings having to take place in more than one jurisdiction will never be enough, in and of itself, to justify the joinder of a foreign defendant: AK Investment, per Lord Collins at [73], adopting the well-known dictum of Lloyd LJ in Golden Ocean Assurance Ltd v Martin [1990] 2 Lloyd's Rep 215 at 222:
"... caution must always be exercised in bringing foreign defendants within our jurisdiction under Order 11 r 1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction."
ix) The question whether B is a "proper party" to the claim against A is answered by asking: "supposing both parties had been within the jurisdiction, would they both have been proper parties to the action?" AK Investment at [87], (applying Massey v Heynes & Co (1888) 21 QBD 330; Nilon Ltd especially at [15]. B will be a proper party if the claims against A and B involve one investigation or there is a sufficient "common thread" between them."
- The Respondents contend, first, that there are no issues "between the claimant and the defendant
which it is reasonable for the court to try" because "all of the issues between the claimant (the Republic) and the defendant (Mr Safa) have already been tried".
- The Respondents also contend, second, that the Respondents are not a "necessary or proper party to that claim", being (here) the claim against Mr Safa. As they put it:
"
the claim against Mr Safa and the claim against [the Respondents] do not depend on one investigation, and there is no common thread whatsoever between either the legal or the factual issues in dispute in the respective claims (or, in respect of the claim against Mr Safa, which were in dispute before the judgment was handed down)."
- In my judgment, neither of these points are good points.
- As to the first, on Mr Safa's death before the Judgment, although the trial had been concluded the issues had not been determined (there is no judgment as things stand against Mr Safa or the Respondents). As to the second, in consequence of Mr Safa's death, the Respondents have become a necessary and proper party to the claim against him (which claim has not been determined by a judgment) because the Court is being asked to determine that they have liability in respect of that claim and the facts and matters on which it is based.
- The Respondents contend that "the claim against Mr Safa and the claim against [the Respondents] do not depend on one investigation, and there is no common thread whatsoever between either the legal or factual issues in dispute in the respective claims". They contend that "[n]ot only does the claim against [the Respondents] not involve the same legal or factual issues as were involved in the claim against Mr Safa, the allegations made by [Mozambique] in these proceedings and the Judgment are irrelevant to the determination of the [proposed claim as set out in the Joinder Claim Form/Joinder Particulars of Claim]".
- But in fact, the two claims depend on all the legal and factual issues in dispute in these proceedings and which were the subject of the trial. The Joinder Claim Form/ Joinder Particulars of Claim add of course, to show why if the claim against Mr Safa is made out against him, then in light of his death the claim is made out against them. That is no doubt why the Joinder Particulars of Claim are suitably as "part of and
an annex to" the main Particulars of Claim in the proceedings". As Mr Pillow KC put it, the first issue of legal substance is whether Mr Safa committed wrongdoing against Mozambique for which he came under a liability to compensate Mozambique; that is a fundamental and integral part of the claim against these Respondents.
- In any event, as a minimum, the present case engages the approach that Jacobs J found persuasive in The Public Institution for Social Security v Al-Wazzab (as representative of Al Rajaan) & Others [2024] EWHC 3321. The decision of Jacobs J was given after the completion of oral argument in this case. There was, as here, the potential as between the claimant and heirs that if the heirs were not made defendants, they would take the point that liability had not been determined.
- Jacobs J at [52] considered as follows:
"It does seem to me that in circumstances where the heirs are on any view closely associated with Mr Al-Rajaan, and where there is prospective enforcement against assets in Switzerland which would otherwise belong to the heirs, there is every reason why it is necessary and proper for them to be joined as parties to the present proceedings, so as to ensure that they are bound by the result. If so, then they would not be in a position to assert in the context of Swiss enforcement proceedings that there was in fact no liability on the part of the estate to PIFSS. If the position were otherwise and they were not joined to the present proceedings, PIFSS would potentially be in the position of having to prove again the liability which, on this hypothesis, they had successfully established by virtue of a trial which is going to last the best part of a year. Absent joinder, PIFSS would therefore potentially have to surmount a substantial obstacle to enforcement in Switzerland, because the heirs could contend that they were not bound by the result of the major trial that is going to take place. I consider that this would be a most undesirable consequence."
- The Respondents contend that Jacobs J's decision to join the heirs on the basis that they were necessary or proper parties in order to ensure that they are bound by the outcome of the case is wrong in law. Respectfully, I agree with his decision. The decision is currently under appeal, Jacobs J having granted permission.
- I mention that the Respondents point out that an analogy was suggested to the Court in PIFSS to what has become known as the Chabra jurisdiction (amongst others). In this connection they refer to the decision on 19 December 2024 (a few days after Jacobs J's judgment in PIFSS), of Foxton J in Commercial Bank of Dubai PSC v Al Sari [2024] EWHC 3304 (Comm), especially at [274] and [279] and his reference at the end of the former paragraph in these terms:
"If there is to be a general power to serve proceedings out of the jurisdiction to assist the enforcement of an English judgment debt, that is a matter for the Rules Committee."
- The Respondents argue that this leads to the conclusion that para 3.1(3) "cannot" be used to serve a party out of the jurisdiction for the purpose of making any ensuing, or still less existing, judgment more readily enforceable abroad against Respondents.
- There is the point that as Mr Pillow KC emphasises, in the present case the Court has expressly not given judgment against Mr Safa or determined any of the Reserved Issues set out at paragraph 34 of the Judgment. But more generally I do not agree that assistance with enforcement is all that is involved here, or in PIFSS. In part I respectfully doubt the suggested analogy with the Chabra jurisdiction is helpful.
Appropriate forum
- The Court must also consider whether the English Court is clearly and distinctly the most appropriate forum to determine the claim against the Respondents. An evaluative judgment is involved, and will depend on the particular case.
- The Respondents say that the English Court is not clearly and distinctly the most appropriate forum and that the Lebanese Court is. The Respondents refer to the Lebanese law questions that arise, to suggested differences between the experts on what liabilities transfer to heirs and when and how heirs can elect to disclaim their inheritance, and, more generally, to substantial differences between the common law and civil law.
- Mr Howe KC urged that the English Court was not the appropriate forum for the claim in the Joinder Particulars of Claim, but it is not clear what issue there is over the matters in that short statement of case. In fact, at this point much of the Lebanese law seems reasonably clear; it is what English law makes of it that is more difficult, but that is most suitably for the English Court to resolve. I nonetheless weigh the Lebanese law aspects.
- I do not consider the Respondents are correct when they argue here (echoing their argument of jurisdiction addressed above) that Mozambique "in effect asks the English Court to arrogate to itself jurisdiction
to carry out the entire administration of the estate, and make an Estate Determination Order". On the available evidence an Estate Determination Order if made by the Lebanese Court would formally identify who are the heirs. There is no evidence of an Estate Determination Order at this time, but there is evidence that the Respondents are the heirs. (Reference was made in the Respondents' written argument to "the substantive issues of the Safa Family's status as heirs under Lebanese law" but I do not see there are any issues, or any of magnitude). There is no evidence that the heirs have renounced the inheritance.
- Again, I see the present effort by Mozambique as enabling the English Court in the circumstances described to complete its work in light of the sad development of Mr Safa's death. As things stand, I regard it as unsuitable and unjust that the English Court should leave matters open and unfinished. I am not left with any clarity or certainty over what would happen with the Judgment if I do not allow the specific matters involved to proceed here, and to proceed now. There is force in Mr Pillow KC's point that, on the Respondents' approach, there would be no relevant judgment of the English Court in Lebanon or other places, potentially, because in Lebanon a dead person has no legal personality and an estate has no legal existence.
- Mr Howe KC for the Respondents says there is nothing to prevent Mozambique from bringing proceedings in Lebanon but I have not been shown how that would work. I do not mean (for example) in respect of the process to obtain an Estate Determination Order, but rather in respect of the matters this Court was responsible for deciding in the proceedings tried here, with reference to the conduct of Mr Safa and which are addressed in the Judgment.
- It is at this stage (in considering appropriate forum) relevant that, on the evidence available to the Court, unless the heirs were parties, any judgment which was obtained may not be enforceable in Lebanon. Professor Obeid expresses this view, to which I give weight.
- Further, as Mozambique points out, the risk of the English Court determining that Mr Safa was liable, only for the heirs to resist enforcement in Lebanon or elsewhere on the basis that he was not, entails a risk of inconsistent judgments and the same issues having to be litigated twice in two jurisdictions. The same was true in PIFSS. Foxton J in Commercial Bank of Dubai at [279(ii)] gave an example in which a relevant factor was that:
"[h]ad there been a hearing involving Mrs L which determined that there was such a right of indemnity, and then Mr L had resisted enforcement by the receiver on the basis that there was not, there would have been an obvious risk of inconsistent judgments (as well as the duplication of resources arising from trying the same issue twice in two jurisdictions)".
- In my judgment, in the present case it is positively important and in accordance with the overriding objective that this Court continues to provide the forum for these proceedings even if this latest stage involves considerations of Lebanese law. Mr Pillow KC acknowledges there may be developments and decisions in other jurisdictions, but as he submits it is important that there is overall progress, and case management here can ensure matters reach a conclusion.
- In my judgment England is clearly and distinctly the most appropriate forum in the particular and defined circumstances that exist.
Conclusion
- In my judgment the joinder, amendment and service out of the jurisdiction should be permitted. I will deal with any ancillary matters that cannot be resolved by the parties on their consideration of this decision.