Mashate v Kaguta [2012] EWCA Civ 761

Case No A2/2011/2847 & 2847(A)[2012] EWCA Civ 761
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 16 th May 2012
Before
LORD JUSTICE TOMLINSON
Between
MASHATEAppellantKAGUTARespondentMASHATE Appellant- and -KAGUTA Respondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Arfan Khan (instructed by Direct Access) appeared for Appellant.Mr Aliker (instructed by Edwin Coe LLP) appeared for Respondent.
Judgment (As Approved)
[1]This is a renewed application for permission to appeal brought by the applicant, who is also the claimant in the action, Dr Jesse Mashate, the application for permission having first been refused on the papers by Sir Scott Baker on 22 February 2012. The order in respect of which permission to appeal is sought is an order made by HHJ Seymour QC, sitting as a judge of the Queen's Bench Division, made on 21 October 2011. By that order he set aside an order made by Master Leslie on 2 October 2009 giving permission to the claimant to serve the claim form outside of the jurisdiction of the court, and he likewise set aside a judgment in default of acknowledgement of service which had been granted by Master Leslie on 4 May 2010, consequent on there having apparently been no acknowledgement of service, service having been effected pursuant to the earlier order to which I have referred.[2]On the same occasion the judge made an extended civil restraint order, largely it seems of his own motion, albeit he had been urged by counsel for the defendant to put in place some form of protection so that the defendant should not be vexed by unmeritorious applications. The extended civil restraint order restrains the applicant from issuing claims or making applications in any court specified therein concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of HHJ Seymour QC or, if unavailable, Blair J, and it relates to applications made in either the High Court or the County Court.[3]The history of this matter is somewhat complex. On 17 November 2006 the claimant issued a claim form naming the defendant as Yoweri Museveni Kaguta, giving his address as 58/59 Trafalgar Square, London. Yoweri Museveni Kaguta is, as it happens, the President of the Republic of Uganda, and the address given is, as I understand it, the address of the Ugandan High Commission in London. Brief details of the claim are given in the claim form in a manner which does not, as has already been found, disclose any coherent cause of action.[4]On 11 December 2006 judgment in default of acknowledgement of service was entered by the claimant. The judgment was in the sum of £18,600,000. On 23 May 2007 the defendant applied for an order that the default judgment be set aside and that the claim issued by the claimant be struck out or, in the alternative, that summary judgment be entered in favour of the defendant. That application came before Master Leslie on 21 June 2007, and on that occasion he set aside the default judgment, although he did not strike out the claim.[5]On 3 October 2007 Master Eyre ordered (and I paraphrase a longer order) that improved or better amended Particulars of Claim be served by the claimant and that pending such service the action should be stayed. He provided also that if amended Particulars of Claim were not served within a certain date then the claim should be without more struck out without the need for any order, and on 1 February 2008 Master Eyre in fact struck out the claim form and dismissed the action pursuant to his earlier order.[6]On 11 July 2008 there was a hearing before Blair J. That was, in point of form, as I understand it, an appeal against Master Leslie's order setting aside the judgment in default. Blair J considered that Mr Mashate, the claimant, was entitled to have that appeal considered on its merits, and in order to regularise the procedure he extended the time for applying to set aside the orders which had been made by Master Eyre and he set aside the order striking out the claim form and dismissing the action. He then dealt on the merits with the appeal against Master Leslie's order and he dismissed the appeal.[7]In addition to dismissing the appeal Blair J imposed a stay on the proceedings. He explained why he was doing this in his judgment, which was set out by HHJ Seymour in his judgment against which this application for permission to appeal is brought, at paragraph 7 and Blair J said this:
"I am not prepared simply to allow the claimant another opportunity to effect service. It seems to me that the right course is to stay these proceedings and I shall so order. If the claimant can, within a reasonable period, produce a credibly amended claim he can apply that the stay be lifted, otherwise this matter should go no further."
[8]The claimant Mr Mashate then applied to this court for permission to appeal; that is to say to bring a second appeal against Master Leslie's order setting aside the judgment in default, which was therefore in point of form an application for permission to appeal against Blair J's dismissal of the appeal against that order. That came before Patten LJ on an inter partes hearing on Tuesday 28 July 2009. Patten LJ refused permission to appeal. In the course of his judgment he recited at paragraph 8 that Blair J had dismissed the appeal and at paragraph 17 he indicated that the proper course for Mr Mashate to take was either to seek to reserve the proceedings on the solicitors currently instructed on behalf of the respondent if they were instructed to accept service on his behalf, or alternatively to seek permission to serve the proceedings out of the jurisdiction. It is important to note that Patten LJ did not suggest that those steps could be taken without first the claimant making an application to lift the stay which had been imposed by Blair J.[9]On 14 October 2009 the claimant applied for permission to extend the validity of the 2006 claim form and to amend the brief Particulars of Claim. It seems that the thinking behind the amendment -- although I am bound to say that this is not entirely clear from the amendment itself -- is that whereas formerly it was said that the defendant was being sued in his personal capacity, now it was to be asserted that the defendant was being sued in his capacity of the head of state of the Republic of Uganda. By that same application of the 14 August 2009 the claimant also sought permission to serve the defendant out of the jurisdiction. The order which the court was asked to make was an order giving permission to:
"...serve the claim form to defendant out of jurisdiction and by registered/recorded post or under State Immunity Act."
[10]Evidence was adduced in support of the application in the shape of, firstly, the amended Particulars of Claim and, secondly, a statement of Mr Jesse Mashate dated 14 August 2009. The evidence in support made no express reference to the stay which had been imposed by Blair J, although it is fair to point out that exhibit JMO3 to the statement of Mr Mashate was apparently a transcript of Blair J's judgment.[11]The application which I have just described came before Master Leslie on 2 October 2009 on an ex parte basis. On that day he made an order which recites:
"Upon reading the application notice claim form and witness statement of Dr Jesse Mashate it is ordered that: - 1) the validity of the claim form originally issued on 17 November 2006 be extended for a further six months from today; 2) the Claimant has permission to amend the said claim form regarding address for service and Particulars of Claim as on amended drafts as initialled; 3) the Claimant has permission to serve the claim form out of the jurisdiction and in accordance with State Immunity Act 1978 on the Defendant at State House, Nakasero, PO Box 24594 Kampala, Uganda or elsewhere in Uganda."
[12]I cannot avoid observing that the application which was made by the claimant on 2 October 2009 and the order that was made by Master Leslie consequent thereon are both irregular in a serious manner. Leaving aside for the moment the impediment presented by the existing stay, an application to serve out of the jurisdiction has to comply with CPR 6.37, which provides that the ground under paragraph 31 of Practice dDirection 6B upon which reliance is placed must be identified; there must be a statement that the claimant believes that the claim has a reasonable prospect of success, and there must be material upon the basis of which the court can be satisfied that this court, the court of England and Wales, is the proper place in which to bring the claim.[13]Furthermore, the amended Particulars of Claim alleged at paragraph 6 that on 22 October 1997, during a Commonwealth business forum in London held at the Inter Continental Hotel at Park Lane, the parties (by which I take it is meant the claimant and the defendant) entered into an agreement evidenced in writing for the defendant to pay the claimant a sum of US$10 million, which converted to £6.85 million, as compensation for the destruction of a publishing business which the claimant had apparently had in Uganda up until 1986 in which year it was apparently closed down.[14]In my experience of dealing with applications for permission to serve out of the jurisdiction ordinarily one would have expected the written evidence of the agreement to be produced in order that the court can see that the claim has substance in that regard. Furthermore, it is normal for the applicant for permission to serve out of the jurisdiction to explain why the English court has jurisdiction and why it is thought appropriate that the overseas party should be subjected to the exorbitant jurisdiction of the English court.[15]None of that appears to have been done, and it is in my judgment a most serious irregularity, because CPR 6.37 exists in part in order to provide a filter to ensure that parties overseas are not vexed with proceedings which lack substance. Furthermore, the order made by the Master gave permission to serve the defendant, presumably in person, either at State House or elsewhere in Uganda or indeed by post to the Post Office Box identified, which is simply impermissible pursuant to section 12(1) of the State Immunity Act 1978, which prescribes a process which is to be used where proceedings are to be served on the state, which for present purposes to all intents and purposes this was, being served on the President as the manifestation of the state. Such proceedings must be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the state concerned. Master Leslie therefore had no power to authorise service by any other method.[16]What appears thereafter to have happened is that the proceedings were, in fact, as I understand it (although I have not heard Mr Aliker who appears today, notwithstanding that this is an ex parte application on behalf of the respondent), served through diplomatic channels.[17]No acknowledgement of service was filed and on 5 May 2010 the claimant entered judgment in default. Subsequently on 15 December 2010 Master Leslie granted charging orders over various properties alleged to be in the ownership of the Ugandan State. On 11 May 2011 the respondent applied to set aside the default judgment and to set aside the orders made by Master Leslie permitting service out of the jurisdiction. It was that application which came before HHJ Seymour on 21 October 2011, with the result that I have described.[18]Mr Arfan Khan, who appears today for the applicant, suggests that it is arguable that the judge has erred either because the order made by Blair J imposing a stay on the proceedings was itself a nullity, because at the time he made it the 2006 claim form was no longer valid for service, or alternatively that the stay was impliedly lifted by Master Leslie's order of 2 October 2009.[19]In my judgment neither of these arguments nor any of the other arguments directed to the issue concerning the stay as set out in Mr Khan's rule 14.4A statement have any reasonable prospect of success. It is plain to me that the stay imposed by Blair J was entirely valid and related both to the action begun by the 2006 claim form and to the action as continued after permission had been given to extend the validity of that claim form for a further six months. It was plainly in the circumstances a stay which, having been granted on an inter partes application by Blair J, would not have been lifted save on a proper application made on notice to the defendant. Furthermore, it is plain to me that Master Leslie must simply have overlooked that a stay was in place. Master Leslie's order makes no reference to the stay, and it is in my judgment a fair inference that, had Master Leslie appreciated that there was in place a stay imposed by Blair J, he would at the very least, if he thought he was lifting it, have included a provision to that effect in his order.[20]I do not consider that the suggestion that Master Leslie's order by necessary implication lifts the stay is an argument which has any reasonable prospect of success in this court. In my judgment HHJ Seymour's judgment, insofar as it points out that the claimant had failed to make an application to lift the stay, is obviously correct and not arguably incorrect.[21]I therefore refuse permission to appeal so far as concerns the judge's order setting aside the permission granted to serve out of the jurisdiction and setting aside the default judgment which was subsequently obtained.[22]I should add that I am very glad to be able to reach this conclusion because, for the reasons I have already given, proper observance of the provisions governing applications for permission to serve claim forms out of the jurisdiction is of the utmost importance, not just in order that proceedings before this court may be properly regulated, but also as a matter of comity and as a matter of ensuring that litigants or parties who bear no other allegiance to this jurisdiction or to this court are not unnecessarily and vexatiously subjected to service upon them of process issued out of this court. Those considerations apply to an even greater extent if that is possible when the party sought to be impleaded is the head of an overseas state.[23]The second aspect of Mr Arfan Khan's application is to seek permission to appeal insofar as HHJ Seymour imposed an extended civil restraint order. It would seem that there was no application before the judge in that regard, although, as I have indicated, counsel for the respondent did urge the judge to put in place some provision whereby the respondent would not be left vulnerable and exposed to what was described as spurious litigation and that some form of protection be imposed in order to avoid that occurring.[24]The judge dealt with this matter in a fairly summary fashion and he appears to have placed particular reliance upon two applications made by the appellant on 21 July and 4 October 2011. He regarded those as having been applications made totally without merit. I have been shown those applications, one of which was an application for summary judgment, but it is pointed out to me that they were made in the context of the respondent's application to set aside the default judgment which had been issued on 11 May 2011; thus the application of 21 July in fact sought the dismissal of the defendant's application of 11 May 2011, whereas the application of 4 October 2011 was an application for summary judgment, which, as Mr Arfan Khan submits, was an application which the claimant would have been entitled to make in the event that the judgment in default was in fact set aside. That of course leaves on one side the status of the service out of the jurisdiction.[25]The matter goes a little further, because in his detailed judgment dealing with the stay application

the judge had himself said at paragraph 33:

[26]It is in those circumstances that Mr Arfan Khan submits that he has an arguable ground of appeal so far as concerns the imposition of the extended civil restraint order, and I am satisfied that to that extent this application should succeed. I therefore grant permission to appeal solely against the imposition by HHJ Seymour of the extended civil restraint order.[27]Having been seised of this application myself, it seems to me that what is in any event required for the future -- and quite irrespective of the outcome of any appeal which may now be brought against the imposition of the civil restraint order -- is some procedure whereby it can be ensured that the case management of this action, if it is pursued, is dealt with in a manner which offers some continuity and consistency. What I have in mind, although of course it will be a matter for the full court, is that it would be useful to have in place some procedure whereby, for example, all further interlocutory applications in the action were to be heard by the judge in charge of the Queen's Bench non-jury list, or such other judge of the Queen's Bench Division as he may nominate. For the time being, however, because of the extended civil restraint order the claimant is not in a position to proceed without seeking the permission of either HHJ Seymour or in his absence Blair J.[28]For all these reasons, therefore, I refuse permission to appeal, save insofar as concerns the extended civil restraint order.

Order

Application allowed in part