England and Wales High Court (Queen's Bench Division) Decisions

		Royal Courts of Justice Strand London, WC2A 2LL
		11 February 2022

MR JUSTICE NICKLIN:

1. There is an application before me today to adjourn a hearing that has been fixed on 22 and 23 February 2022 to hear an application made by the Defendant in these proceedings.
2. By way of background, the claim that is advanced by the Claimants is one based on harassment. They contend that they have been subject to unlawful interception of their communications and surveillance conducted by agents of the Defendant. They claim that there was hacking activity by embedding software onto devices owned by the Claimants and that was done covertly in order to allow their activities to be placed under surveillance. That is a summary of the claims that are made.
3. The claim, as I say, is brought under the Protection from Harassment Act 1997 and it is alleged that both Claimants have suffered personal injury. In the Particulars of Claim, dated 9 November 2020, the First Claimant alleges that:

"As a result of the infection of the SS computer with FinSpy, the accessing, exfiltration of his information and his surveillance by and/or on behalf of the defendant and the first claimant's discovery of those matters, the first claimant developed an adjustment disorder."

As the claim is for personal injury, the First Claimant has provided and relies upon an expert report of a consultant psychiatrist, dated 18 April 2019.

4. Similarly, the Second Claimant alleges that, as a result of the activities alleged against the Defendant, that he has suffered an exacerbation of an adjustment disorder from which he had already suffered and he similarly relies upon an expert report from a consultant psychiatrist dated 14 April 2019. Those are claims in tort.
5. Some time was taken with the necessary steps to obtain permission to serve the Claim Form out of the jurisdiction. Extensions of time were sought and granted to enable that to be done but, eventually, the Claim Form was served on the Defendant. Shortly afterwards, solicitors for the Defendant came onto the record, Schillings International. Following their instruction the solicitors for the Defendant then made an application which was filed on 28 September 2021. The Application Notice sought the following:

"The defendant applies for an order… under CPR Part 11 declaring that the defendant is immune from the jurisdiction of the English court in respect of the claim pursuant to section 1(1) of the State Immunity Act 1978; alternatively, setting aside para.2 of the order of Master Sullivan dated 30 November 2020 sealed on 1 December 2020 and para.1 of the order of Master Sullivan dated 22 February 2021 sealed on 23 February 2021; and, finally, in either case declaring that the court does not have jurisdiction to hear the claims made in these proceedings and dismissing the claims for want of jurisdiction."

6. That application was therefore on two bases: firstly, the assertion of sovereign immunity; and, secondly, a challenge to the series of orders which consisted of extensions of time for service of the Claim Form and permission to serve the Claim Form out of the jurisdiction. The second challenge is largely based on alleged failures by the claimants to make full and frank disclosure to the court on the occasions of the ex parte hearings where these orders were made. That is separate from the principal challenge on the grounds of state immunity.
7. The Defendant's solicitor, Magnus Boyd provided a witness statement in support of the application, dated 28 September 2021. In it, he set out the evidence relied upon by the Defendant in support of the application. In paragraph 4 he said this:

"This application is about the English court's lack of jurisdiction over the Kingdom of Bahrain (both because of the Kingdom of Bahrain's immunity and because the extension of time orders should be set aside). Therefore, it does not engage in any way or require consideration of the merits, if any, of the claimants' claims. Accordingly, I do not respond to the substance of those claims or the claimants' evidence in support of them in this witness statement. However, the Kingdom of Bahrain's position as regards state immunity and the appropriateness of the extension of time orders is expressly without prejudice to the points that the Kingdom of Bahrain may later raise in these proceedings if, contrary to its position, the English court has jurisdiction over the claims and the Kingdom of Bahrain is required to defend them in due course. In particular, the Kingdom of Bahrain reserves its position as to whether the claims ought to be dismissed or struck out for other reasons even if the court has jurisdiction over them."

8. He referred to the Particulars of Claim that had been filed and he gave a summary of the claims that are made by the Claimants. Section C of his witness statement is headed "State immunity" and he says the following:

"16. I understand that the Kingdom of Bahrain is immune to the jurisdiction of the English court pursuant to section 1 of the State Immunity Act 1978 unless one of the exceptions in that Act applies. The only exception on which the claimants have relied is that in s.5(a) of that Act on the basis that the proceedings are 'in respect of personal injury caused by the acts or omissions in the United Kingdom', particulars of claim, para.41.

17. The Kingdom of Bahrain's position is that s.5(a) State Immunity Act 1978 does not apply to these claims. I understand that is a matter for legal argument in due course and so do not propose to set out the position in any detail in my witness statement. However, to assist the court and the claimants in understanding the Kingdom of Bahrain's position, the Kingdom of Bahrain will say that s.5(a) does not apply because:

17.1. The proceedings are not in respect of injury which is alleged to have been 'caused by an act or omission in the United Kingdom'; and/or

17.2. The injury alleged by the claimants does not amount to personal injury for the purposes of s.5(a) State Immunity Act 1978."

9. In the remainder of his witness statement, Mr Boyd dealt with the second aspect of the application concerning the challenge made to the extension of time orders. Those are not relevant for today's purposes. The issue has assumed importance before me today is the question of state immunity.
10. I made a directions order on 7 October 2021 listing the Defendant's Application before a judge of the Media and Communications List with a time estimate of two days. The hearing was then duly listed to be heard on 22 and 23 February 2022. The Claimants served and filed a third witness statement of their solicitor, Yai Ida Aduwa, dated 25 October 2021. She set out evidence in response to Mr Boyd's witness statement. She noted::

"3. I make this statement in response to the witness statement of Magnus Boyd dated 28 September 2021 served in support of the defendant's applications for: (a) a declaration that it is immune from the jurisdiction of the English court; (b) an order setting aside the previous orders extending time for the service of the claim form; and (c) a declaration that the court lacks jurisdiction to hear the claims and a dismissal of the claims.

4. The defendant's evidence does not address point (a) in any detail on the basis that it is 'a matter for legal argument in due course'. The claimants therefore rely on the evidence they have previously served on this issue and will make legal submissions at the hearing of this application."

She then dealt with issue (b), relating to the extension of time orders that were challenged.

11. Mr Boyd served a second witness statement on 14 January 2022. The witness statement deals only with the issues relevant to the challenge to the extension of time orders. It does not touch upon the questions or raise any evidence in relation to the issues surrounding state immunity.
12. That was the position until, on 27 January 2022, Schillings International, issued an Application Notice seeking the following orders:

"That the defendant is deemed to have had sufficient notice of this application pursuant to CPR 23.7(4) and that Schillings International LLP cease acting for the defendant pursuant to CPR 42.3(1)."

13. In the evidence in support of the application, contained in the application notice, the solicitor for the Defendant, Mr Boyd, stated the following verified by a statement of truth:

"1. The applicant makes this application to cease acting for the defendant on the grounds that:

(a) the applicant has been unable to obtain proper instructions in relation to the proceedings, specifically, in relation to preparations for the hearing due to start on 22 February 2022; and

(b) the defendant has failed within a reasonable time to settle a number of the applicant's outstanding invoices and to make payment of a reasonable sum on account of future costs.

2. The applicant has informed the defendant on repeated occasions that unless it receives proper instructions and the required payment it will no longer be able to act in this matter. The defendant has had sufficient notice of this application to instruct alternative solicitors should it wish to do so and to make necessary preparations for the hearing due to start on 22 February 2022.

3. The applicant requested instructions in relation to drafting a skeleton argument for the upcoming hearing in early December 2021. Further requests for instructions to prepare for the hearing have followed throughout December 2021 and January 2022. The applicant is still awaiting instructions to proceed with these preparations despite a number of deadlines provided to the defendant by the applicant having passed.

4. In addition, three of the applicant's invoices... are overdue and have not been settled by the defendant within a reasonable time and the defendant has failed to make a payment on account of those costs to be incurred in a reasonable sum within a reasonable time in relation to the hearing due to start on 22 February 2022. As such, the applicant is withdrawing from the retainer with the defendant pursuant to section 65(2) of the Solicitors Act 1974."

14. That application was referred to me and I made an order, without a hearing, on 2 February 2022:

"1. The application be listed for hearing on Friday 11 February 2022. Unless otherwise directed, the hearing will take place as a remote hearing conducted by MS Teams.

2. The applicants must serve a copy of the order on the respondent forthwith and, in any event, by 4.30 p.m. on 4 February 2022... If the respondent wishes to rely upon any evidence in opposition to the application, then it must file and serve the evidence on the applicants by midday on Wednesday, 9 February..."

15. In the reasons I in the order, I said the following:

"(a) The evidence contained in the application notice as to service of the application notice on the defendant is inadequate. On the evidence provided, I am unpersuaded the respondent should be 'deemed' to have had sufficient notice of the application. Has the application properly been served on the respondent or not?

(b) The court would ordinarily expect the respondent or a representative of the respondent to attend the hearing of the application. I have directed a remote hearing to facilitate this. If the court is satisfied that an order should be made under CPR 42.3, it is likely to be conditional on the respondents providing an alternative address for service to comply with CPR 6.23(1) and 6.24."

16. Yesterday, after some correspondence between the relevant parties, a notice of change of solicitor was filed by Volterra Fietta, the firm now instructed on behalf of the Defendant. Filing of the notice of change meant that the application issued by Schillings to come off the record became otiose. The Defendant's new solicitors then communicated with the Claimants' solicitors and the Court to indicate that they had come on the record and that they intended to issue an application seeking an adjournment of the hearing fixed for 22 February. An Application Notice was issued late last night seeking an order in the following terms:

"The Defendant applies for an order under CPR rule 3.12(b) adjourning the jurisdiction hearing currently fixed for 22 and 23 February and requesting that directions for relisting be agreed between the parties ('the order'). The reasons for this order are set out in the accompanying witness statement of Mr Robert Volterra of Volterra Fietta."

17. Mr Volterra's witness statement, dated 10 February and filed late last night, set out the evidence in support of the application to adjourn. It says the following:

"4. In short, the Kingdom of Bahrain seeks an adjournment of the hearing because only two weeks ago it was informed by Schillings International, its previous legal representatives in the proceedings, that Schillings had made an ex parte application to the High Court to come off the record in these proceedings. We note that Schillings say that they sent Schillings' application to the Kingdom of Bahrain on 27 January 2022. However, Dr Saud Al-Ammari, a foreign lawyer who is the designated lead counsel for the Kingdom of Bahrain in this matter, does not recall and is unable to confirm at present whether Schillings provided him with Schillings' application on 27 January 2022 or at a later date. The order of Nicklin J dated 2 February 2022 listed an inter partes hearing of the Schillings' application for Friday 11 February.

5. The Kingdom of Bahrain has sought to act expeditiously and has this week formally instructed Volterra Fietta to replace Schillings. Volterra Fietta became the solicitors on the record on the date of this witness statement. Volterra Fietta has written to Schillings by letter of 10 February notifying them of our instruction and serving on them Form N434 [which is the notice of change form]. As such, Schillings' application is now otiose. Volterra Fietta has asked the court to hear the [adjournment] application at the time previously set down tomorrow for Nicklin J to hear Schillings' application.

6. Volterra Fietta has sought to act expeditiously and has instructed leading and junior counsel in the course of this week but the Kingdom of Bahrain will not be in a position to properly prepare and argue the critical issue of its sovereign immunity at the two-day hearing. Volterra Fietta has not received all of the documents in the case from Schillings, despite repeated requests to do so in the past few days, and the large volume of existing documents we have received from Schillings total thousands of pages. This is in the context of the directions for the trial by order of Nicklin J dated 7 October as amended requiring the parties to cooperate to agree the contents of the hearing bundle. The Kingdom of Bahrain is currently required pursuant to that order to file and serve the hearing bundle on Monday, 14 February and that skeleton arguments are due to be filed and exchanged on Thursday, 17 February.

7. This hearing is of great importance to the Kingdom of Bahrain given that it concerns and will address its sovereign immunity under English and international law. There is also the important underlying issue here of comity which should militate in favour of an adjournment given that it concerns the treatment of a foreign state by the English courts, being the Kingdom of Bahrain, a friendly state to the United Kingdom..."

18. He then set out some of the history of the correspondence between Schillings and Dr Saud before stating this, in para.16:

"I understand that the Kingdom of Bahrain disagrees with the version of events given by Schillings in its evidence box of the N244 application notice whereby it seeks to come off the record. Contrary to what is said there, the Kingdom of Bahrain's position is that it did give instructions but these were not followed by Schillings."

19. A skeleton argument for the application to adjourn was filed last night by Professor Dan Sarooshi QC and Penelope Nevill, the newly instructed counsel. The application has obviously been brought on very quickly and I am grateful to the Claimants' solicitors and counsel for making themselves available to hear an application made at very short notice.
20. Professor Sarooshi has set out in his skeleton the legal principles governing adjournment:

(1) The decision to adjourn a hearing to a later date is a case management decision, to be exercised in accordance with the overriding objective. The overriding objective includes, so far as practicable, ensuring that the parties are on an equal footing and ensuring that a case is dealt with expeditiously and fairly.

(2) If the Court concludes that it is necessary to adjourn a hearing in the interest of fairness, then it must be adjourned, for the court cannot countenance an unfair hearing: Barclays Bank Plc v Shetty [2022] EWHC 19 (Comm) [44]-[45]. The principal cases are summarised in Shetty [46]-[54].

(3) The guiding principle in an application to adjourn of this type is whether, if the hearing goes ahead, it will be fair in all the circumstances: Bilta (UK) Ltd (In Liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221 [30].

(4) The assessment of what is fair is a fact-sensitive one, and not one to be judged by the mechanistic application of any particular checklist: Bilta [30].

(5) If refusal of an adjournment would make the resulting hearing unfair, an adjournment should ordinarily be granted, regardless of inconvenience to the other party or other court users, unless this were outweighed by injustice to the other party that could not be compensated for: Bilta [30].

(6) The test, namely whether a refusal will lead to an unfair hearing, is the same whether as matter of the common law's insistence of a fair trial, or the requirements of Article 6, or the application of the overriding objective: Bilta [49(1)].

(7) Fairness involves fairness to both parties. But inconvenience to the other party is not a relevant countervailing factor and is usually not a reason to refuse an adjournment: Bilta [49(4)].

(8) Particular matters which may be relevant to a contested application for an adjournment made at the eleventh hour include:

a. The parties conduct and the reason for the delays;

b. The extent to which the consequences of the delays can be overcome before the hearing;

c. The extent to which a fair hearing may have been jeopardised by the delays;

d. The consequences of an adjournment for the claimant, the defendant and the court.

21. The argument presented in the skeleton argument and in submissions today is that the Defendant's legal advisors now have insufficient time to prepare for the hearing that is due to take place on 22 to 23 February. The argument that has been advanced I found difficult at times to follow. Professor Sarooshi referred to potential cross-examination at the hearing and the need to obtain documents from Schillings as reasons why an adjournment was required. I have set out the witness evidence that has been filed by the parties relevant to the hearing on 22 to 23 February. From that, it appears to have been common ground that there was no real dispute of fact. The matters advanced in the Particulars of Claim were not challenged by the Defendant, at this stage, and that the issues to be resolved in relation to state immunity were legal issues. That certainly accorded with my understanding of the way in which state immunity challenges take place. Therefore, I sought to ascertain why the time that is left between now and 22 February would be insufficient for the new solicitors and counsel to prepare. All of the evidence has been filed. The issue is one substantially of legal submissions. Professor Sarooshi is an expert in the field and he, I imagine, would have no difficulty in advancing the legal submissions based on state immunity for the Defendant if the hearing went ahead as scheduled.
22. Matters are complicated a little bit by the correspondence. After they had come on the record, the Defendant's solicitors sent a letter confirming that they acted now for the Defendant. The letter contained the following paragraph:

"Bahrain is immune in law from the jurisdiction of the courts of England and Wales in relation to your clients' claim. You have previously requested further information from our client's previous legal representatives on our client's position on state immunity by letters dated 9 November 2021 and thereafter. We note that this information was not provided by Bahrain's previous legal representative, Schillings International. Further to our recent instruction, we would be willing to provide you with such information but require a reasonable period of time to do so. This will necessitate an adjournment of the hearing. The adjournment will enable the court and the parties to manage the proceedings fairly, expeditiously and at proportionate cost by enabling the parties to narrow down the issues and providing the court with appropriate documentation to make the determination regarding a state."

23. Reference there to the provision of appropriate documentation to make a determination begs a series of questions, the first of which is it suggests that the documentation that has previously been filed in accordance with the directions would not enable the court to make the proper determination regarding the claim for state immunity. Leigh Day, the solicitors for the Claimants, responded to that letter by them expressing concern about the suggestion of adjournment and stated:

"You refer in your letter to your client's previous refusals of our request that it provide a proper explanation of the basis on which it contends that the exception to state immunity is inapplicable to the present case. You state that the information 'was not provided by Bahrain's previous legal representative, Schillings International'. We assume that the refusal was given on the instructions of your client. While we maintain the position that the information so far provided by your client is inadequate, we would welcome such information by return. We do not consider that your client's own default in providing such information can properly support its belated request for an adjournment. Therefore, please provide by return a proper explanation of the basis on which your client contends that an adjournment is necessary and justified, addressing the points raised above. Pending such an application, our clients are not in a position to agree the adjournment sought."

24. In their response, the third letter of 10 February, Volterra Fietta on behalf of the Defendant said this:

"We note your request for our client to provide further information to you regarding its assertion of state immunity. As you are aware, our client is a state. It is not based in England and Wales, it is not an English lawyer and it is entirely dependent on legal advice from English lawyers to assert state immunity in these proceedings. However, for the reasons given above, we are not yet in a position to properly consider and respond. We will do so as soon as we can. Suffice it to say, based on the initial assessment which we have been able to undertake in the short time since we received the case files from Schillings (and we do not have all of them), our client's state immunity application is complex and extremely document heavy."

25. The reference to Volterra Fietta not having the full documents is to the fact that, although a large number of documents have been provided to the new solicitors (including all the key documents relating to the application), Schillings are exercising a lien over the remaining papers pending satisfactory discharge of their outstanding invoices. However, the reference to the application being complex and extremely document heavy is difficult to understand in the context of what has been filed by way of evidence thus far. As appears from the summary of the exchange of evidence above, there is no substantial dispute of fact between the parties. Indeed, the parties appear to have agreed hitherto that the issue is one to be determined as a matter of law. In that context, the reference to the application being "extremely document heavy" is difficult to understand. I have not received a satisfactory explanation today as to why it is suggested that preparation for the hearing of the application – scheduled for 22^nd and 23^rd February - requires the new solicitors to carry out a very detailed analysis of this "extremely document heavy" material.
26. At times during Professor Sarooshi's submissions I gained an impression that the adjournment application might be heralding the arrival of a substantial change of tack on behalf of the Defendant in respect of the issues that fall for determination at the hearing on 22 and 23 February, but ultimately that is not the way the application was presented today.
27. Mr Silverstone, on behalf of the Claimants, has submitted that the Court has not been given an adequate explanation for this belated application to adjourn. He has referred to the conflict that there now exists in the evidence of Mr Boyd, provided in the application notice of 27 January, setting out the history of the difficulties of getting instructions from the Defendant which dates back, according to Mr Boyd, to December 2021 and the unpaid solicitors' bills, and the evidence of Mr Volterra, who, on behalf of the Defendant, disputes the account of events given by Mr Boyd. He does not go into detail, save to state that the Kingdom of Bahrain's position is that it did give instructions but these were not followed by Schillings. That leaves the position very opaque, but I noted that Mr Volterra's evidence does not challenge Mr Boyd's claim that the Defendant was not paying its former solicitors. For present purposes, I can only note that there is a dispute on the evidence between two solicitors which is incapable of being resolved at this hearing.
28. Nevertheless, to the extent that because of its falling out with its previous solicitors, the Defendant now finds itself with less time to prepare for the hearing on 22 and 23 February than it might have liked, that appears to be a self-inflicted wound. I have to consider whether, in all the circumstances, and applying the principles that I have set out above, I should grant an adjournment.
29. I am unpersuaded that the amount of work that is required to be done by the Defendant and its legal representatives to prepare for the hearing on 22 and 23 February means that they cannot fairly prepare for the hearing. As matters stand, there is no substantial dispute of fact in the witness evidence. The issue for determination is one that the parties hitherto treated as an issue of law. The Defendant has not told me that it wants to change its position or that it now wishes to file further factual evidence relevant to the issues to be decided. Professor Sarooshi's suggestion in his submissions that there might be need for cross-examination seems to me to be wholly speculative. The Court has not been asked to make a direction for cross-examination, and it begs the question of cross-examination of whom and on what factual dispute. There does not appear to be a relevant dispute of fact on the basis of the witness evidence that has been filed thus far. I reject any contention that the Defendant would not have a fair hearing on 22-23 February.
30. I have to judge the situation as it stands today. Ultimately this is a case management decision. Professor Sarooshi submitted that Mr Silverstone's complaint that the Claimants will be prejudiced by further delay was not supported by any evidence. I think the Court is entitled to take notice of the fact that delay in litigation takes its strain on individual claimants and, obviously, these Claimants would wish for matters to progress. But it is not the case that the court is only concerned with the prejudice to the parties.
31. The impact upon the administration of justice is a factor that may not in the past have received the attention it deserves when the court is considering whether to grant an adjournment. In real terms, this is the disruption caused to the court and other litigants. The allocation of a fair share of the court's (limited) resources is now very much part of the Court's consideration of the overriding objective. Here, as long ago as 7 October 2021, the court provided a timetable for this application to come before the court. This provided both parties with a fair opportunity to advance the evidence upon which they wanted to rely in good time before a hearing.
32. If I were, today, to adjourn the hearing on 22 and 23 February, that will cause inconvenience to other litigants. That will arise in two ways. Firstly, in the time left between now and 22 and 23 February, it is unrealistic to expect that the Court will be able to accommodate the cases of any other litigants. Second, if the matter is adjourned to some point beyond 11 April, which is the order that is sought, then that will take up further court time that could have been allocated to resolving the cases of other litigants. True it is that the fundamental question is whether the hearing will be fair and, if I thought that the Defendant could not have a fair opportunity to present its case on 22-23 February, I would be bound to adjourn it, no matter the inconvenience and delay caused to the Claimants and other litigants. But, at the moment, I am not satisfied that there is any risk of unfairness in the proceedings going ahead as they were originally scheduled on 22 and 23 February.
33. The Defendant's solicitors have raised a point that the current directions timetable requires them to file a bundle for the hearing on Tuesday next week. That is a matter easily solved. I will direct that the Claimants will be responsible for filing the court bundle in accordance with the court's directions. On the current state of the evidence, that should not be a difficult task for the Claimants' solicitors to perform. The legal issues to be resolved will be dealt with in the skeleton arguments. There is over a week before the hearing. I am satisfied that there is sufficient time between now and Thursday next week, which is the deadline for the service of the skeletons, for the Defendant's argument fairly to be prepared by the Defendant's representatives.
34. If it turns out, following the change of legal representation, that the Defendant wishes to change of course, for example if it wishes to seek permission to file further evidence, then that will be a matter that will have to be addressed in due course. It may mean that the hearing cannot fairly take place on 22 and 23 February. In all probability, such an application would probably have to be heard on 22 February, but I anticipate the court will look carefully at any such application.
35. I am not presently persuaded on the basis of the arguments and the evidence that has been put forward to me today that there is a justification for adjourning the hearing. Largely, as I have said, the difficulties that the defendant is experiencing are self-inflicted wounds. There is a conflict of evidence between the Defendant and its former solicitors. The Court and the Claimants have been provided with scant detail of what has been going on. I cannot resolve the dispute, but it does not provide a convincing basis upon which to adjourn the hearing. As I say, the reasons for that falling-out between the Defendant and its former solicitors are unclear but the Defendant has not satisfied me that there is insufficient time between now and 22 February for the new legal team to be ready for the hearing. If there is to be a change of tack by the Defendant, then it will have to make a further application for an adjournment. Any such application would likely require a very clear explanation by the Defendant of why circumstances requiring a change of solicitors justify the adjournment of a hearing which, as I have said, has been fixed for some period.
36. The order I will make today is I refuse the application for an adjournment. I will vary the previous direction of the Court requiring the Defendant to prepare and file the hearing bundle next week. That will be varied to reallocate this task to the Claimants. The skeleton arguments will be filed in accordance with the directions the Court has previously made.