Abela & Ors v Baadarani & Anor [2011] EWHC 116 (Ch)

[2011] EWHC 116 (Ch)Case No HC09C01454
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/01/2011
Before
SIR EDWARD EVANS-LOMBE(sitting as a Judge of the High Court)
Between
Mr Albert John Martin AbelaClaimantsAlbert J.M. Abela SRLClaimantAlbert J.M. Abela Catering and Interactive Systems LimitedClaimantMr Ahmad BaadaraniDefendantsCicines LimitedDefendant
Mr Clive Freedman QC, Mr Tim Penny (instructed by PCB Litigation LLP) for ClaimantsMr Paul Greatorex (instructed by M& S Solicitors Ltd) for First DefendantHearing Hearing dates: 7/12/10-10/12/10
Judgment

Sir Edward Evans-Lombe:

[1]I have to deal with an application under CPR Part 11 by the First Defendant Mr Ahmad Baadarani (“B”), who, together with the Second Defendant company Cicines Limited (“C Limited”), is sued by the First Claimant, Mr Albert John Martin Abela (“A”), the Second Claimant company, Albert J.M. Abela SRL (“SRL”) and the Third Claimant company, Albert J.M. Abela Catering and Interactive Systems Limited (“Limited”) for various relief based on allegations of fraud as a result of A and Limited having entered into a contract (“the Contract”), dated 26th March 2002, for the purchase of 40% of the shares in an Italian company, Gama Spa (“Gama”), held by C Limited and a further 2% of such shares held by B. The Claimants allege that A and Limited were persuaded to enter into this contract as a result of fraud by, amongst others, B in concealing from A Gama’s true financial position. It is the Claimants’ case that the main persuasive force was a Mr Haan (“Haan”), a solicitor, consultant with the London law firm Hammonds. Haan was the Claimants’ solicitor at all material times leading up to the Contract retained by A. B was a director of Gama with a Mr Carlo Rami (“Rami”). B had extensive commercial interests in Kazakhstan. A was chairman of Gama but asserts that he played little part in its management at any relevant time. SRL is an Italian company wholly owned by Limited, a Cypriot company controlled by A. At the time of the Contract, SRL held the substantial balance of 52% of the shares in Gama.

The background facts

[2]In December 1998, A’s father, a very wealthy man with extensive business interests, died. In March 1999, A engaged Hammonds as his solicitors with the primary task of dealing with his father’s estate. As a result he came into contact with Haan. It is A’s case that in the years succeeding his father’s death he suffered from depression and, as a result, became increasingly reliant on Haan in the management and disposition of the substantial assets which had passed to him from his father. In May 2000, SRL acquired 98% of the shares in Gama, the remaining 2% being acquired by Rami, who became Gama’s managing director. Rami was related by marriage to A. In October 2000 a company, Gama K, was incorporated as a subsidiary of Gama and thereafter carried on business, including a hotel business, primarily in Kazakhstan. B became a director of Gama K. In late December 2000, SRL sold 37% of the issued shares in Gama to C Limited, a Cypriot company. It is the Claimants’ case that C Limited is controlled by B but may be owned by his wife. As a result of further transactions, by April 2001 Gama’s shares were held as to 52.04% by SRL, controlled by Limited for A, and 40.82% by C Limited.[3]It is the Claimants’ case that over the period from the original acquisition of Gama in May 2000, unknown to A, the business of Gama was conducted fraudulently so that its assets were substantially diminished. It is further the Claimants’ case that in January 2002 Haan met B who gave him instructions in relation to his business opportunities in Kazakhstan and from whom Haan was told of B’s wish to sell C Limited’s shares in Gama. Thereafter, it is the Claimants’ case that, with the encouragement of B, Haan and Rami embarked on a campaign to persuade A to repurchase the Gama shares held by C Limited at a price, ultimately $14 million, which shares were, by this time, actually worthless. On 8th February 2002, at a meeting between A, B, Rami and Haan, agreement was reached in principle for the purchase by Limited of C Limited’s shares in Gama. A written agreement comprising the Contract was signed by the parties on 15th March 2002 and is dated 26th March 2002.[4]The cash consideration for the purchase, of $12 million, was payable in three tranches. The first tranche was payment of $3 million on 26th March 2002. A second tranche of $4.5 million was payable between 1st and 15th May 2002 and the third tranche of $4.5 million on 1st December 2002 unless the parties agreed earlier payment. The balance of the consideration was met by the transfer of a plot of land in Lebanon to B and by the transfer to B of Gama’s shares in Gama K. The land has been transferred but the transfer of the Gama K shares has not taken place.[5]For the purposes of the disposal of these applications, it is of importance that at clause 7, under the heading “Governing Law”, the Contract contained a provision that “this agreement shall be governed by the law of England and the parties submit to the non-exclusive jurisdiction of the English courts.”[6]The second tranche of $4.5 million under the Contract was paid on 24th June 2002 by A to B. On 28th June 2002, $180,000 was paid by B to Rami. On 1st July 2002, $100,000 was paid by B to Haan and on 8th July $180,000 was paid by B to a Mr Kanafani (“Kanafani”) who worked for Gama and was known to A.[7]The third tranche under the Contract of $4.5 million together with a sum of $392,687, apparently for interest, was paid on 25th October 2002. On 26th November 2002, B paid Rami $325,000 and Kanafani $200,000. On 2nd December 2002, £350,000 was paid by B to Haan.[8]There was in evidence a hand-written letter written by Haan, dated 2nd December 2002, recording the two payments to him, comprising the £350,000 receipt, as loans repayable in one year’s time and making provision for security.[9]It seems that in early 2003 A became aware of the severe financial predicament of Gama. He proceeded to initiate a series of enquiries into Gama’s affairs. The first, by Firecrest Capital Limited, reported on 3rd March 2003. The second, by the accountants KPMG, reported on 27th March. There was an internal Gama enquiry which reported on 2nd April 2003. Finally, Kroll, the forensic accountants, submitted a report on 20th May 2003. All these reports demonstrated the dire financial straits of Gama, but none of them identified the payments by B to Rami, Kanafani and Haan.[10]It is the Claimants’ case that those payments only came to the notice of A in May 2003 and they were specifically identified for the first time in a follow-up report by Kroll dated 26th June 2003. A description of how, what were described as the “secret payments”, came to light is set out in the sixth witness statement of Trevor Mascarenhas of 25th October 2010 at paragraphs 21 and 22. It is B’s case that A ought to have discovered the secret payments as a result of the earlier reports into the financial state of Gama. If correct, the claim would incontrovertibly be barred by Limitation.[11]In July 2003, A severed his relationship with Haan and Hammonds. On 27th October, he commenced proceedings in the Lebanon against five named defendants, including Rami, Kanafani and B. Those proceedings were mixed criminal and civil proceedings. Proceedings of such type in the Lebanon can be initiated, as in this case, by a report by a private individual which can be taken up by the prosecuting authorities if they think appropriate. The civil claim awaits the result of the criminal charges. By the civil claim the initiator of the proceedings can obtain compensation for any damage he has suffered from the actions of the defendants complained of. It appears that A’s proceedings in the Lebanon have not yet completed the criminal stage. It is B’s case that that delay in completion was, to a large extent, caused by A’s failure to co-operate fully with the proceedings for unexplained reasons. A’s claims in the Lebanese proceedings are very wide and cover the matters raised in A’s civil claims in this country advanced in the present proceedings. Neither SRL nor Limited are claimants in the Lebanese proceedings, but in them B has launched a counter-claim against A seeking to enforce the provisions of the Contract under which he was entitled to receive the shares in Gama K, the Kazakhstan subsidiary of Gama.[12]In 2007, the Claimants in these proceedings launched proceedings against Haan and Hammonds, the trial of which commenced on 11th March 2009. The claim was settled within eight days of its commencement upon payment by the defendants of a sum of money, which included a sum representing costs. In the course of the eight-day trial before such settlement, A gave evidence and was cross-examined. A transcript of his cross-examination was amongst the papers before me. It is B’s case that in the course of that cross-examination A gave answers which are inconsistent with the existence of a fraudulent conspiracy between B, Haan, Rami and Kanafani to persuade A to procure the repurchase by Limited of the Gama shares from C Limited upon the terms set out in the Contract. I will refer to these proceedings as “the Haan action”. The claims made against B by A in the present proceedings mirror claims made in the Haan action.[13]The claim form in the present proceedings was issued on 30th April 2009. They came before Mr Justice Morgan on 14th September 2009 when, upon the Claimants undertaking “not to take any further steps in the Lebanese civil proceedings commenced by him in October 2003 to pursue any of the claims in the Particulars of Claim herein”, he: i) granted the Claimants permission to serve the claim form and all other relevant documents out of the jurisdiction on B in the Lebanon at an address at Farid Trad Street, Beirut; ii) pursuant to CPR r7.6(2), extended the six-month period which the Claimants had under CPR r7.5 to serve the claim form on B from 29th October 2009 to 31st December 2009; iii) as an alternative to service of the claim form through consular/judicial channels, which would have required translation into Arabic, gave permission to serve untranslated documentation personally on B at the Farid Trad Street address in Beirut.[14]Subsequent attempts to effect service of these proceedings at the Farid Trad Street address proved unsuccessful but on 22nd October 2009 a set of untranslated documents for service were delivered by a Lebanese court official to a Mr Azoury, B’s Lebanese lawyer. Mr Azoury had no instructions to accept service of the proceedings on behalf of his client B. It seems, however, that in the course of the handover Mr Azoury disclosed to the court official a general power of attorney held by him on behalf of B. That document confers very wide powers on Mr Azoury, including the taking delivery of documents on B’s behalf. No acknowledgement of service of the proceedings followed from this event and the first communication between Mr Azoury and the Claimants’ lawyers did not occur until four months later. The proceedings returned to court before Mr Justice Sales on 16th December 2009 when he made an order further extending the life of the claim form from 31st December 2009 to 30th April 2010.[15]On 22nd October 2009 the proceedings were served on C. Limited. No attempt has been made to set aside that service.[16]In February 2010, Mr Azoury communicated with the Claimants’ solicitors returning to them the documents of which he had taken delivery four months earlier. Thereafter, B appointed his present solicitors to represent him in these proceedings.[17]The matter came back to court on 14th April 2010 before Mr Justice Lewison when he made an[18]In due course, service in pursuance of Mr Justice Lewison’s order was effected on B’s English solicitors who acknowledged service on his behalf on 1st May 2010 and issued the present application on 21st May. The grounds accompanying that application indicated that B was seeking to set aside each of the orders in the proceedings which I have described above.

The relief claimed

[19]The relief claimed is as follows: i) It is the Claimants’ case that the Contract was made against the interests of A by reason of the fraud and conspiracy of B, Haan, Rami and Kanafani at a time when he was suffering from depression and relied on them, and on Haan in particular, to guide him in the conduct of his affairs. The Claimants claim rescission of the Contract, restitution and compensation in equity arising out of the unconscionable nature of the Contract. The Claimants seek similar relief on the ground that A was persuaded to procure Limited to enter into the Contract by reason of the undue influence of Haan on him at the instance of B and C Limited, and on the ground that B gave dishonest assistance to Haan in the breach of his fiduciary duties to the Claimants arising from the making of the Contract. ii) The Claimants claim damages for fraudulent misrepresentation by Haan to A at a time when he was acting as B’s solicitor, unbeknown to A, also by Rami and others acting in concert with B. Claims are made directly against B for fraudulent misrepresentation in relation to the value of the Gama K shares to be transferred to him under the Contract. iii) There are claims in respect of bribery by which the Claimants describe the various payments made by B to Haan, Rami and Kanafani at the time that the Contract was entered into and performed by the Claimants.[20]It is accepted by the Claimants that in respect of their claims against B the permission of the court is required to serve the proceeding abroad and that CPR 6.36 applies. Accordingly, the grounds prescribed in paragraph 3.1 of Practice Direction B under Part 6 must cover each of those claims.[21]It has been the Claimants’ submission that the Particulars of Claim in these proceedings pass through the “gateway” of paragraph 3.1 because they all relate to a contract expressly governed by English law; see paragraph 3.1(6)(c) of the Practice Direction. Alternatively, they submit that those claims fit within other sub-paragraphs of paragraph 3.1 in the manner described between paragraphs 38 and 51 of Mr Mascarenhas’ first witness statement which, for the sake of brevity, I will not here set out. In granting permission to serve out of the jurisdiction on 14th September 2009, Mr Justice Morgan accepted that the Claimants’ claims came within the “gateway” provisions of paragraph 3.1 of the Practice Direction. I do not understand Mr Greatorex, who appeared for the First Defendant, to be submitting that I should set aside the order of Mr Justice Morgan on the ground that he was misapplying paragraph 3.1, although he does not accept that some of the claims being made by the Claimants, in particular the claims in tort, fit within paragraph 3.1.[22]CPR 6.37 prescribes at rules (2) and (3) what the applicant for permission to serve out of the jurisdiction must show in order to obtain the court’s permission to do so as follows:- “(2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) of Practice Direction B supplementing this Part, the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim… .”[23]In granting permission to serve out of the jurisdiction, Mr Justice Morgan must have been satisfied that the Claimants’ proceedings were brought within sub-rules (2) and (3). The First Defendant contends that I should now set aside Mr Justice Morgan’s order of 14th September 2009 upon the ground that the Claimants have failed to satisfy those requirements. I will first consider the First Defendant’s contentions under paragraph (2).[24]The paragraph (2) requirement requires the claimant seeking permission to serve out of the jurisdiction to satisfy the court that his claim discloses “a real issue which it is reasonable for the court to try”. It is common ground that the test to be applied as to whether there has been demonstrated such a “real issue” is the CPR Part 24 test, namely the “no real prospect of succeeding on the claim” test, which a claimant must overcome in order to prevent his claim being summarily dismissed.[25]The First Defendant contends that the Claimants have failed to meet this test on two grounds. The first ground is that in settling the Haan action, where the claims substantially covered the claims in the present case, the Claimants settled their claims against B also. The second ground is that the Claimants’ claim is barred by limitation.[26]The paragraph (3) requirement requires the Claimant seeking permission to show that England and Wales is the “forum conveniens” for the trial of the claim. The First Defendant contends that the Claimants have failed to meet the paragraph (3) test on two grounds. The first ground is that, in the light of the Claimants’ proceedings in the Lebanon, the allegations in which cover the claims in these proceedings, trial in an English court would be trial in a forumnon conveniens. The second ground which, in my judgment, is subsumed in the first ground, is that to require the Defendants, in all the circumstances, to defend proceedings in England is a requirement which, as a matter of discretion, the court should refuse.[27]I will deal with the first ground under paragraph (2).[28]The Haan action was settled on terms which the parties to it agreed should be kept confidential. When the hearing before me started, it was attended by counsel for Hammonds who sought to persuade me to refuse disclosure to the First Defendant of the terms upon which the Haan action was settled. The defendants to the Haan action were the four entities which comprised the Hammonds solicitor enterprise and, as fifth and sixth defendants, the personal representatives of Haan’s estate, he having died in the course of those proceedings. In the result, I made an order which resulted in the disclosure that, upon the dismissal of the Haan action, the defendants to those proceedings would jointly and severally pay, but without admission of liability, a sum of money to the claimants, but the claimants reserving all of the claimants’ rights against third parties including, without limitation, the Lebanese defendants to the claimants’ proceedings in the Lebanon which I have described above.[29]My attention was directed to the decision of the House of Lords in Heaton v AXA Equity and Law Life Assurance Society plc & another [2002] 2AC page 329 and to the passage in the speech of Lord Mackay at paragraph 27, where he emphasises that in such cases, and, in particular, where the settlement agreement involved individuals who were not party to the previous agreement of settlement, the determining issue would generally be decided on a construction of the effect of that earlier settlement agreement. Respectfully following that guidance, I have concluded that the effect of the settlement agreement in the Haan action was not to settle the issue between the Claimants and the Defendants in these proceedings. I arrive at that conclusion because that settlement agreement expressly kept open the right of the claimants to proceed against the defendants in the Lebanese proceedings, which include the Defendants to these proceedings, and the payment by Hammonds, which, I was informed, included a payment in respect of the claimants’ costs in those proceedings, was substantially less than the amount being claimed in these proceedings against the Defendants.[30]Turning to the second ground, the limitation defence: the claim form was issued on 30th April 2009. Accordingly, any claim based on a cause of action which accrued before 1st May 2003 would have been statute barred at the date of issue. It is not in issue that the Claimants’ cause of action accrued on the execution of the Contract on 26th March 2002. However, the Claimants contend that for the purposes of limitation it did not accrue until the Claimants were on notice of the fraud of the Defendants which, they say, was not until they had the secret payments drawn to their attention as a result of the supplemental Kroll report to them on 26th June 2003. It is the First Defendant’s contention that they should have been aware of the fraud from the moment that they were notified that Gama was insolvent with the consequence that the shares purchased from B and C Limited were valueless, which occurred at least when they received the Firecrest report on 28th February 2003.[31]Section 32(1) of the Limitation Act 1980 provides, so far as material:- “32 Postponement of limitation period in case of fraud, concealment or mistake (1) Subject to sub-sections (3) and (4a) below, where in the case of any action for which a period of limitation is prescribed by this Act either (a) the action is based on the fraud of the defendant: or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant: or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.” (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant: or (c) the action is for relief from the consequences of a mistake;[32]I have to decide whether the Claimants have established a case on the material before me, to the standard required in Part 24 cases as described above, that they did not discover the fraud which they allege against B until a date after 30th April 2003, namely, as they contend, 26th June 2003 or, as paragraph 89 of Mr Mascarenhas’ first witness statement discloses, late May 2003 in the circumstances which he there describes, and could not have been discovered by them by the exercise of reasonable diligence at a date before 1st May 2003. The issue is rehearsed on the First Defendant’s side in the grounds supporting the Defendants’ application between paragraphs 32 and 40 and in Mr Greatorex’s skeleton argument in the application between paragraphs 11 and 17, and on the Claimants’ side in Mr Mascarenhas’ first witness statement between paragraphs 86 and 91 and in his sixth witness statement between paragraphs 11 and 23. Mr Greatorex also relied on some of the answers given by Mr Abela in his cross-examination in the Hammonds proceedings as summarised by him in a document before the court.[33]I bear in mind the cases, mainly decided in Part 24 proceedings and its predecessor Order 14, which warn the court against embarking on a mini-trial of the issues in proceedings on partial evidence and before the evidence of witnesses can be tested by cross-examination. It seems to me that the issue of when A had notice that he had a claim in fraud against the Defendants, or reasonably should have discovered that he had such a claim, is classically an issue which cannot be determined on the available evidence before me. In my judgment, the Claimants have demonstrated a real issue to be tried as to whether A, directly or indirectly, had notice, prior to 1st May 2003, of a fraud surrounding the making of the Contract, namely, that there had been deliberately concealed from him by the Defendants and/or their associates, that the shares he was buying, or procuring to be bought, were valueless or worth substantially less than the sum that was being paid for them.[34]I turn to the paragraph (3) test: it was Mr Greatorex’s submission that the events preceding the Contract and the circumstances of Mr Abela at the time the Contract was made, were inconsistent with the Claimants’ case of fraud and conspiracy. He also drew my attention to a number of answers given by Mr Abela in the course of his cross-examination in the Haan action which were inconsistent with such fraud and conspiracy. By contrast the Claimants, on the issue of fraud, based their case on the established fact of the payments by B to Haan, Rami and Kanafani and the timing when those payments were made, shortly after payments under the Contract by Mr Abela. They also point out that the First Defendant’s case that these payments were loans is undermined by the absence of any documentary record that they were paid as loans, showing typical terms of the loans, such as interest and security, save the handwritten letter of Mr Haan, the genuineness of which they question, and by the fact that they were only repaid as loans after it had become apparent that these payments had come to the notice of the Claimants. Again, I have come to the conclusion that this is an issue which I cannot decide and should not decide on the material before me. Again, I come to the conclusion that the Claimants have raised a real issue to be tried as to whether there was such a fraud.[35]In his grounds, the First Defendant raised challenges and criticisms of the separate claims of undue influence, unconscionable bargain, bribery and dishonest assistance in breach of trust. It was the First Defendant’s submission that all these claims depended on the central issue of whether B and his associates had acted fraudulently with the result that the Claimants had entered into the Contract. I agree. My conclusion is that because I have found a real issue to be tried on the question of fraud, there must equally be such an issue to be tried on the different ways in which the Claimants put their case which are, in reality, the constituent parts of the alleged fraud.[36]The First Defendant raised a further issue, which was hardly pursued in the hearing before me, namely that the bulk of the damage resulting from the Contract involving a purchase, for a substantial sum of money, of valueless shares, was not suffered by any of the Claimants, but rather by a family trust of the family of A, which funded the purchase. This is plainly a bad point and was not seriously pursued before me. The loss suffered was that of the parties to the Contract and not their funder.[37]For these reasons, in my judgment, the application based on a failure to comply with CPR 6.37(2) fails.[38]I turn to consider the First Defendant’s challenge under CPR 6.37(3), namely that an English court would be forumnon conveniens.[39]The First Defendant’s primary contention under this head is based on the fact that on 27th October 2003 A commenced combined criminal and civil proceedings in the Lebanese court of the type which I have described, in which he was the only plaintiff and B was the third of five named defendants, amongst whom were Rami and Kanafani. Paragraph 6 of the “complaint” in the Lebanese proceedings under the heading “Defendants” contemplates the joinder in the proceedings of further defendants if “any other perpetrator or participant or interferer or instigator as evidenced by the investigation” is discovered. There was no indication that any such further defendant has yet emerged. It is accepted by the Claimants that the allegations by A in the Lebanese proceedings encompass the claims in these proceedings but also raise a number of other issues. As already noted, B raises a counterclaim in the Lebanese proceedings arising from the Contract, namely, to enforce the provision which requires the purchaser to transfer the shares in Gama K to B.[40]Mr Greatorex forcefully submits that A, in 2003, elected to commence the Lebanese proceedings, notwithstanding the non-exclusive jurisdiction clause in the Contract choosing the English jurisdiction for claims made under it and the choice of English law as the governing law. He drew my attention to the passage in the judgment of Mr Justice Teare in Carafarin Bank v Gholamreza Mansouri-Dara [2009] EWHC 1217, where he says at paragraph 20 that “prima facie it is an abuse of process for a claimant to pursue a defendant for the same debt or damages in two jurisdictions.” He also drew my attention to the passage in the speech of Lord Diplock in the Abidin Daver [1984] 1AC 398 at 411, where he says:- “But where there is already a lis alibi pendens in a foreign jurisdiction which constitutes a natural and appropriate forum for the resolution of the dispute, a plaintiff in an English action, if he wishes to resist a stay upon the ground that even-handed justice may not be done to him in that particular foreign jurisdiction, must assert this candidly and support his allegations with positive and cogent evidence.”[41]He also referred to a passage in the speech of Lord Goff in Spilliada Maritime Corporation v Cansulex Limited [1987] AC 460 at page 481 where, having cited authority, Lord Goff says:- “The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but he has to show that this is clearly so.”[42]Further in his speech, when giving examples of the exercise by a court of a choice between jurisdictions, he said:- “For example the fact that English law is the putative proper law of the contract may be of very great importance… or it may be of little importance as seen in the context of the whole case.”[43]Mr Greatorex further submitted that the fact that, before Mr Justice Morgan, the Claimants undertook not to take any further steps to enforce, in the Lebanese proceedings, any claims raised in the projected English proceedings, was no real protection for the First Defendant since the undertaking would fall on the conclusion of the English proceedings, and, if the Claimants were unsuccessful, they might raise those same claims again in Lebanon.[44]In their written submissions, counsel for the Claimants summarised their submissions as to why I should not disturb Mr Justice Morgan’s order giving leave to serve these proceedings on B in the Lebanon on the ground that an English court would be forum non conveniens under five heads as follows:- “(1) The court should give full weight to the jurisdiction agreement between the parties; (2) The court should give weight to the fact that the parties have agreed English law as the proper law of the Contract and the English Court as best placed to determine the issues of English law that arise in these proceedings; (3) The court should give weight to the fact that the proceedings have been properly and validly served on C Limited so that issues are already before the court as between the Claimants and C Limited; (4) The proceedings in Lebanon do not involve the same parties, and there have been many years of inaction in those proceedings, indeed the criminal proceedings have not yet been completed and there has been no progress whatsoever in the civil proceedings; (5) There is no reason why the continuation of the English proceedings should have any adverse impact on the Lebanese proceedings particularly given the Claimants’ undertaking not to proceed with the allegations made herein in the Lebanese proceedings.”[45]To those points the Claimants’ submissions add a further point as an elaboration of (3), not advanced before Mr Justice Morgan, that by Article 23 of the Judgments Regulation (Council Regulation (EC) No. 44/2001), Limited “is entitled as of right under the Judgments Regulation to found proceedings in this jurisdiction against B.” Limited is not a party to the Lebanese proceedings and has made no claims there against B. C Limited has been validly served with these proceedings.[46]I will consider each of the Claimants’ points in turn.[47]In Antec International Limited v Biosafety USA Inc [2006] EWHC 47, Mrs Justice Gloster was dealing with an application to set aside an order giving leave to serve abroad in a contractual claim where the contract contained a non-exclusive jurisdiction clause. At paragraph 7 of her judgment the Judge summarised the effect of such a clause, as the law emerged from extensive citations of authority, as follows:- “The fact that the parties have freely negotiated a contract providing for the non-exclusive jurisdiction of the English courts and English law creates a strong prima facie case that the English jurisdiction is the correct one. In such circumstances it is appropriate to approach the matter as though the claimant has founded jurisdiction here as of right even though the clause is non exclusive… The general rule is that the parties will be held to their contractual choice of English jurisdiction unless there are overwhelming or at least very strong reasons for departing from this rule… It is not appropriate to embark upon a standard Spilliada balancing exercise [in those circumstances]. The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its jurisdiction to release a party from its contractual bargain; …in particular the fact that the defendant has, or is about to institute proceedings in another jurisdiction not contemplated by the non-exclusive jurisdiction clause is not a strong or compelling reason to relieve the party from his bargain, notwithstanding the undesirability of parallel proceedings.”[48]Mrs Justice Gloster in giving the judgment in the Antec case cited, amongst other authority, the decision of Mr Justice Lawrence Collins, as he then was, in Bas Capital Funding Corporation & ors v Medfinco Limited & ors [2004] 1 Lloyds’ Reports 652. In that case, at paragraph 192 and following of his judgment, Mr Justice Collins says this:- “192. I am satisfied that it would require very strong grounds to override a choice of English jurisdiction, and that the normal forum conveniens factors have little or no role to play, especially where it could be inferred from the lack of other connections with England that the parties had chosen the English forum as a neutral forum. In some cases the fact that the clause was non exclusive might make it easier to displace the strong presumption in favour of upholding the choice particularly where more than one jurisdiction was chosen but that would depend on the circumstances.193. It would not be useful to speculate on what exceptional circumstances would justify the court in not accepting jurisdiction where the parties had conferred non-exclusive jurisdiction on the English court, but I accept that one feature which may be highly relevant is whether there are already proceedings in a foreign country which involve overlapping issues, especially if they have been commenced by the party who subsequently seeks to sue in England.194. In the circumstances of this case the only matter which I consider would have a bearing on whether the English court should decline to accept jurisdiction on the basis of clause 23 is the impact of the Maltese proceedings. In the light of my conclusion that the English proceedings should be limited to a claim against the company in relation to the funding provision, I do not consider that there will be a serious overlap between the Maltese proceedings (which were essentially initiated by the defendants…”[49]The Claimants must therefore accept that the presence of the non-exclusive jurisdiction clause in the Contract does not have the considerable weight in favour of the Claimants’ contentions that it would have had had the Lebanese proceedings not been commenced by them.[50]That the Contract provides that English law should be the proper law of the Contract is certainly a matter which should be taken into account. However, it must be said that the Claimants have not identified any issues of law of which it can be said that the English courts are best placed to decide.[51]This point should be taken with the further point raised for the first time before me under Article 23 of the Judgments Regulation and should be joined with the point raised under paragraph (4) that the proceedings in Lebanon do not involve the same parties as the present proceedings. Limited is a company “domiciled” in Cyprus for the purposes of Article 23 and Cyprus is a “Member State” of the European Union. It follows that since clause 7 of the Contract constitutes an agreement that the courts of a Member State, namely the United Kingdom, “are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, (namely, that arising from the Contract and the circumstances of its being entered into) those courts shall have jurisdiction.” It would seem from the decision of the European Court of Justice in Owusu v Jackson [2005] QB 801 (ECJ) that that conclusion cannot be disturbed by the normal rules of forum conveniens even though they may point in another direction. See per Lewison J in Skype Technologies v Joltid Ltd & others [2009] EWHC 2783 (Ch) and see also the review of the authorities on this point in the judgment of Miss Theis QC in JKN v JCN [2010] EWHC 843 (Fam) para. 93-102. The present is not a case like that considered by the Court of Appeal in Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328. In the present case, the English court combines “personal jurisdiction” and “subject matter jurisdiction”.[52]The fact that there have been many years of inaction in the Lebanese proceedings and that the criminal proceedings have not yet been completed and the civil proceedings not started does not seem to me to advance the question much further since the responsibility for this delay is unclear and it is the First Defendant’s contention that the responsibility lies with A.[53]It will undoubtedly be a burden on B to have to litigate in two countries simultaneously claims and cross-claims which arise from basically the same facts, notwithstanding that as a result of the undertaking given, the Claimants are precluded from pursuing the claims in the present proceedings in the Lebanese proceedings. However, in an anti-suit injunction case, Deutsche Bank AG v Highland Crusader Partners [2010] 1WLR at page 1051, Lord Justice Toulson, under the heading “Conclusion” at paragraph 105 says:- “The starting point for considering the effect of a non-exclusive jurisdiction clause must be the wording of the clause. In terms of contract law, I cannot see how a party could ordinarily be said to be in breach of a contract containing a non-exclusive jurisdiction clause merely by pursuing proceedings in an alternative jurisdiction. It is conceivable that a jurisdiction clause which is not fully exclusive may nevertheless be drafted in such a way as to have the effect of barring parallel proceedings in certain circumstances, but that is a matter of individual contractual interpretation. Looking at the matter in general terms, I agree with Raphael’s suggestion in “The anti-suit injunction” [a textbook] para. 9.12 that:
“Where a non-exclusive jurisdiction clause does not clearly indicate whether prior or subsequent parallel proceedings in a non-selected forum are permitted or prohibited, the best interpretation will usually be that by contracting for non-exclusive jurisdiction, the parties have anticipated and accepted the possibility of some parallel proceedings, and as a result, only foreign proceedings which are vexatious and oppressive for some reason independent of the mere presence of the non-exclusive clause will be restrained by injunction.”
Consistently with that approach, when it comes to the question of whether the interests of justice require that an anti-suit injunction should be granted, I do not consider that it would be right to start with a general presumption that parallel proceedings in a non-selected forum are to be regarded as vexatious or oppressive and that there is a burden on the party responsible for prosecuting them to make out a strong case to justify them on grounds unforeseeable at the time of the contract or other exceptional circumstances.” “Where a non-exclusive jurisdiction clause does not clearly indicate whether prior or subsequent parallel proceedings in a non-selected forum are permitted or prohibited, the best interpretation will usually be that by contracting for non-exclusive jurisdiction, the parties have anticipated and accepted the possibility of some parallel proceedings, and as a result, only foreign proceedings which are vexatious and oppressive for some reason independent of the mere presence of the non-exclusive clause will be restrained by injunction.”[54]Finally on this issue, the Claimants’ case on forum non conveniens is set out between paragraphs 40 and 53 of the Claimants’ skeleton argument before Mr Justice Morgan. There is no material evidence before me which was not before Mr Justice Morgan. The only difference in our situations is that I have had the benefit of Mr Greatorex’s submissions and they have not persuaded me to depart from the conclusion that he arrived at. Contrary to the submissions of Mr Greatorex, it seems to me that the undertaking given by the Claimants to Mr Justice Morgan not to pursue the claims in the present case in the Lebanese proceedings are sufficient to protect the First Defendant from having to defend the same claims in two jurisdictions and the parties from the possibility of conflicting judgments. In any event, I would be prepared to reconsider the terms of the undertaking with counsel if the First Defendant remains dissatisfied in this regard.[55]I accept that because A started the Lebanese proceedings before these proceedings, the existence of the non-exclusive jurisdiction clause in the Contract is not decisive of this issue. However, I have, on balance, come to the conclusion that the English court would not be forum non conveniens. For this conclusion I rely primarily on point (3.) of the Claimants’ summary and the fact that Limited, the main Claimant, is entitled to commence proceedings in this country by the combination of its domicile in an EU state, the non-exclusive jurisdiction clause, and that it is not a party to the Lebanese proceedings either as claimant or defendant. That the proper law of the Contract is English law is also a factor. Other issues such as residence of the principal actors, their language abilities and that some of what appear to be important events took place in this country are of less importance but point towards the same result.[56]For these reasons, in my judgment, the application based on failure to comply with CPR 6.37 fails.

Service of the claim form and associated documents

[57]Under this heading, B has three applications:- a) an application to set aside the order of Mr Justice Morgan of 14th September 2009 extending time for serving the claim form from 29th October 2009 to 31st December 2009; b) to set aside the order of Mr Justice Sales of 16th December 2009 extending time for serving the claim form from 31st December 2009 to 30th April 2010; c) to set aside the order of Mr Justice Lewison of 14th April 2010;(i) permitting service by alternative means on A’s Lebanese and English lawyers;(ii) extending time for serving the claim form from 30th April 2010 to 30th June 2010.[58]The Claimants have cross-applications for:- a) a declaration that in the events which have happened there has been good service of the claim form on B; b) an order further extending time for serving the claim form to enable it to be served through British Consular channels in the event that previous extensions stand but the order for alternative service made by Mr Justice Lewison is set aside.[59]It is convenient to deal first with the Claimants’ cross-application (a) above. This application centres on the delivery of the claim form and its associated documents in their English form i.e. not translated into Arabic, which would be required for service under Lebanese law and thus for service by the British Consular authorities, to Mr Azoury. The evidence of the events relevant to this issue is contained in the second witness statement of Mr Houssami, the Clamaints’ Lebanese lawyer, dated 22nd March 2010, paragraphs 3-10 of Mr Azoury’s witness statement dated 20th May 2010 and paragraphs 4-14 of Mr Houssami’s third witness statement dated 22nd October 2010. When Mr Justice Lewison made his order of 14th April 2010, he delivered a short judgment. Paragraphs 2-4 of that judgment read as follows:- “2. The underlying claim raises serious allegations of fraud against the Defendant, Mr Baadarani, who is a Lebanese national. Attempts have been made to serve via the Consular authorities in the Lebanon in accordance with CPR Part 6, Rule 42. Those attempts have proved very difficult, not least, because there is considerable uncertainty about the method by which service should be effected which, according to the evidence, goes back to a Treaty of the 1920s between the Lebanon and France. Nonetheless, the claim form and its accompanying documents were, to use a neutral word, delivered to Mr Baadarani’s Lebanese lawyer, who holds a power of attorney, which enables him to conduct proceedings, including proceedings in this jurisdiction on Mr Baadarani’s behalf. That lawyer signed for the papers and retained them for some four months before returning them. According to the Claimant’s Lebanese expert, that amounts to good service under Lebanese law. Nonetheless, Mr Baadarani appears to be denying that he has been properly served and has declined to provide an address for service. 3. In addition to delivery of those papers to the Lebanese lawyer, Mr Baadarani has instructed a firm of English solicitors called M & S Solicitors Limited, who have taken up the cudgels on his behalf and so far as the evidence goes, have themselves at least had sight of the claim form and the other relevant documents. They have written a long letter of 25th March 2010, which has been placed before me and to which Mr Penny, who appears on the Claimant’s behalf, has quite properly referred. The points made in that letter have been addressed in the fifth witness statement of Mr Mascarenhas, which I have read. 4. The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a Defendant. It is not about playing technical games. There is no doubt on the evidence that the Defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations. The provisions of CPR Rule 6.37(5) say that the court may, in giving permission to serve out of the jurisdiction:
“Give directions about the method of service.”
That is a quite general provision and, as it seems to me, would ordinarily mean that the court would make directions, which did not involve one of the prescribed methods of service dealt with by Rule 6.40 and following. In other words, it is inherent in Rule 6.37(5)(b)(i) that the court may make directions about alternative methods of service. Where the court is dealing with service of proceedings within the jurisdiction the court also has the power to declare that steps already taken to bring the proceedings to the notice of a Defendant should count as good service. Mr Penny did at one stage submit that the same power applied to service out of the jurisdiction, but in the light of an interchange between him and me he is not pressing that submission and I am not ruling for or against it. I will adjourn that part of the application notice in case it becomes a live issue at a later date.” “Give directions about the method of service.”[60]In the course of those passages in his judgment, Mr Justice Lewison made a number of findings of fact as to the events surrounding the delivery of the claim form to B’s Lebanese lawyer on 22nd October 2009 and what happened to those documents after delivery until they were returned by him to the Claimants’ solicitors. He has found that the claim form and its associated documents have not only been retained by B’s Lebanese lawyer, they have also, or a copy of them, been in the hands of B’s English lawyers prior to writing their long letter of 25th March 2010. These findings do not depend on the Claimants’ evidence directed to the issue but can be made from the evidence of Mr Azoury, the First Defendant’s witness, and the First Defendant’s English solicitors’ letter of 25th March 2010. Mr Justice Lewison finds that B must have been fully aware of the contents of the claim form. Such a finding of fact seems to me inevitably to follow from his other findings which, because of their source, are, in my judgment, unchallengeable.[61]CPR 6.15 provides:- “(1) Where it appears to the court that there is good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”[62]The rules relating to the service of claim forms and other documents outside the jurisdiction are contained in section IV from CPR 6.30 onwards. CPR 6.30 provides:- “6.30(1) This section contains rules about –(a) service of the claim form and other documents out of the jurisdiction;(b) when the permission of the court is required and how to obtain that permission;(c) the procedure for service.” (a) service of the claim form and other documents out of the jurisdiction; (b) when the permission of the court is required and how to obtain that permission;[63]As already noted, CPR 6.36 defines the proceedings in respect of which permission of the court is required for service abroad. CPR 6.37 contains rules governing an application for such permission. Materially for this judgment sub-rule (5) of that rule provides:- “(5) Where the court gives permission to serve a claim form out of the jurisdiction - … (b) it may (i) give directions about the method of service… .” (i) give directions about the method of service… .”[64]CPR 6.40 makes “general provisions” as to the method of service of proceedings out of the jurisdiction as follows:- “6.40(1) This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction. … (3) Where a claimant wishes to serve a claim form or any other document on a defendant out of the United Kingdom it may be served…” There then follow at (a), (b) and (c) permitted methods of service, including through the British Consular authorities, but which are not exclusive. Then at sub-rule (4):- “(4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served.”[65]In his third witness statement Mr Houssami states that service of proceedings on a duly authorised legal representative of a party is lawful service under Lebanese law and that such authority to accept service can be, and usually is, established by the production, as happened in this case, by the legal representative of a sufficiently widely drawn power of attorney. It is also relevant to point out that sub-rule (4) need not be read as requiring any method of service “directed” under CPR 6.37(5) to be a method of service prescribed by the relevant foreign country’s rules. The method of service directed must not constitute an illegal act under the law of the host state.[66]The question is, therefore, whether rule 6.15(2) can be used, as it is used in respect of issues as to service in proceedings where the parties are within the jurisdiction, to retrospectively accept the parties’ actions as constituting good service where the defendant is resident abroad.[67]In GMC v Benjamin [2010] EWHC 1761 (Admin), Mr Justice Nichol was concerned with the service of proceedings by the General Medical Council on a doctor resident in the UAE in respect of whom conventional methods of service abroad were proving impractical. At paragraphs 20 and 21 of his judgment, he says this:- “20. What Mr Smith, though, asks me to do is to order that the two methods that have been used, that is the special delivery by Mission Express to Dr Benjamin’s address and the email service on him at the email address which I have given, should be treated retrospectively as good alternative service. He further asks that I should abridge time for such service. That is necessary because HHJ Raynor had said it should be not less than 22 days before this hearing, whereas the earliest of those attempts, the email correspondence, took place some 20 days before the hearing, and the service by special delivery was somewhat shorter still. He submits that the court should accept that the power to allow alternative methods of service, which is referred to in Rule 6.15 of Part 6, although expressly dealing with service within the jurisdiction, ought to be construed as being capable of extension to service outside the jurisdiction. He relies on the decision of Andrew Smith J in the case of Andrew Brown & Ors v Innovatorone PLC [2009] EWHC 1376 (Comm). 21. I accept that the court does have such a power. It would be consistent with the practicable way that these matters need to be handled, and also consistent with the proper care and attention that needs to be given to bringing claims to the attention of defendants resident outside the UK. No doubt there does need to have to be good reason why the court should allow alternative service and should examine with care the Rules. In my judgment, the GMC does satisfy me that there is such good reason, and in their case there is the added factor that they are taking action in the public interest and to protect the public; and it would be unfortunate, to say the least, if such reasonable steps as they have taken were to be frustrated because of the practical difficulties of effecting service on a defendant who has, in my judgment, in practice if not in form, received notice of these proceedings.”[68]At paragraph 25 in his judgment in the Andrew Brown case, referred to by Mr Justice Nichol, Mr Justice Andrew Smith is recorded as saying this:- “25. I emphasise in accepting this submission about the general structure of CPR Part 6 that I do not consider there to be a clear, consistent and rigid line of demarcation to be found in the amended CPR Part 6 between the method of service and place (where and on whom) service is made. Any such inflexible distinction would be artificial, and after all, CPR rule 6.3(c) concerns the place of service, cross-referring to rules 6.7, 6.8, 6.9 and 6.10. I mention this because it is of considerable importance to the court’s jurisdiction about service by an alternative method out of the jurisdiction. The amended CPR rule 6.15, expressed to be about alternative method and place of service, applies only to service within the jurisdiction. Under the old rules the court exercised the power conferred by the CPR rule 6.8 to make orders for service about on whom or where a claim form might be served outside the jurisdiction (see, for example, Marconi Communications International Limited v PT Pan Indonesia Bank TBK, [2004] EWCA 129 (Comm), 1 Lloyd’s Rep 594 at para 39 et seq). The change is observed in the notes in Civil Procedure 2009 Ed., Vol 1 at p.178, para 6.15.7. However, in the amended CPR rule 6.37 there is a provision that “Where the court gives permission to serve a claim form out of the jurisdiction… (b) it may (i) give directions about the method of service”. Although the amended CPR rule 6.37 refers to “method” of service, I do not interpret it as conferring a more restricted power than the court was generally recognised to have under the old rules, and consider that so to interpret it would not respect the overriding objective and the principle of interpretation stipulated in CPR rule 1.2.”[69]In a supplemental written submission sent to me after the close of argument by Mr Penny, junior counsel for the Claimants, my attention was drawn to a further authority, the decision of Judge Chambers QC, sitting as a Judge of the High Court, in Amalgamated Metal Trading Limited v Alain Baron [2010] EWHC 3207 (Comm) in respect of which judgment was given on 21st December 2010. The judge in that case was concerned with whether the provisions of rule 6.15(1) could be read into the rules governing service of proceedings abroad so as to enable him to authorise that in the proceedings with which he was concerned. The relevant part of his judgment lies between paragraphs 62 and 85, the remainder of the judgment being concerned with whether the discretion to order alternative service abroad should be exercised in favour of the claimants. Judge Chambers also relied on paragraph 25 of Mr Justice Andrew Smith’s judgment in the Brown case. He arrived at his conclusion that he had a power to direct alternative service in such a case because that power was to be implied into CPR 6.37(5)(b), namely the power to “give directions about the method of service”. This differs from the approach of Mr Justice Nichol in the GMC case, who appears to accept the submission of counsel for the claimants before him that the court “should accept that the power to allow alternative methods of service which is referred to in rule 6.15 of Part 6, although expressly dealing with service within the jurisdiction, ought to be construed as being capable of extension to service outside the jurisdiction”. Judge Chambers rejects that approach.[70]At paragraph 79 and following of his judgment, Judge Chambers says this:- “79. I think it unrealistic to suppose that rule 6.37(5)(b)(i) is to be treated as having been intended by the Civil Procedure Rule Committee to possess a self-contained power to order service by alternative means when its forebears operated in conjunction with a specific power to order substituted service, now service by alternative means. I am confident that the reason for the problem is that, when the various types of service were segregated in the way that they now are, it was not realised that the power to order service of a claim from out of the jurisdiction by alternative means lay in rule 6.8 which was to become rule 6.15 and uniquely referable to Section II.80. Having said what I have, I do not think that this necessarily means that rule 6.37(5)(b)(i) is not apt to confer jurisdiction on a court to order service by alternative means in respect of service out of the jurisdiction. One may be confident that the Rule Committee did not intend to remove the power. The words are wide enough to confer the power and, if the power is to be found somewhere, that it is where it must be. I therefore find that I do have power under the rules to order service by alternative means by reason of CPR r. 6.37(5)(b)(i).81. If I am wrong, I do not think that that ends the matter.82. If CPR r. 6.37(5)(b)(i) does not provide the power to order service by alternative means out of the jurisdiction, it is clear that there is a lacuna in the wording of the rules.83. Although a court cannot create new rules, I see no reason why, where the express wording of the rules does not provide a power which all concerned with the rules must know they are intended to contain, that power should not be regarded as inherent in the rules. I emphasise that the question is not whether the rules should contain the power but whether they do contain the power.84. I find it impossible to contemplate the operation of a regime for service out of the jurisdiction without the power to order service by alternative means in appropriate cases.” I respectfully adopt Judge Chambers’ approach to this issue. See also the notes in the White Book at 6.15.7.[71]I accept Mr Penny’s written submission that there is no reason to differentiate between the power conferred by CPR 6.15(2) and 6.15(1). Just as the power to order alternative service in a service abroad case is to be found either from a construction of CPR 6.37(5)(b)(i) or is to be implied generally into the rules governing service abroad because that must have been the intention of the drafter of the 2008 amendments to CPR rule 6, so CPR 6.37(5)(b)(i) is to be construed as conferring the power under CPR 6.15(2) on the court dealing with service abroad or such a power is to be implied into CPR 6.37(5).[72]For these reasons, in my judgment, there is a power under the rules similar to that conferred by CPR 6.15(2) which the court can exercise when considering whether events surrounding the service of proceedings abroad are capable of constituting proper service of those proceedings in the sense that the court can be satisfied that the proceedings have been properly brought to the attention of the defendant.[73]In my judgment, the declaration sought by the Claimants in this case should be made. The evidence before Mr Justice Lewison and before me is sufficient to demonstrate that this is an appropriate case for the use of the power. The principal reasons for doing so are that the method of service through diplomatic channels in Lebanon has proved impractical and any attempt to pursue it further will lead to unacceptable delay and expense. B has demonstrated that he is unwilling to co-operate with service of the proceedings by disclosing his address in the Lebanon, but, and most importantly, it is clear that B, through his advisers, is fully apprised of the nature of the claim being brought.[74]The delivery of the claim form and supporting documents to B’s Lebanese lawyer on 22nd October 2009, which I have found is to be treated as good service of the proceedings, took place during the initial six-month period of validity of the claim form. Accordingly, my conclusion means that the three orders for extension of the validity of the claim form were unnecessary and I need not deal with the question of whether those orders are to be set aside as the First Defendant contends. Nor need I deal with the Claimants’ application for a yet further extension of that validity. However, before leaving this judgment I should say this in relation to the First Defendant’s applications to set aside the three orders for extension: the Claimants’ counsel’s written submissions, which I accept, summarise the principles that the court should apply in deciding whether to grant an extension of time for the service of a claim form under CPR 7.6 as they emerge from the decision of Mr Justice Ramsey in Imperial Cancer Research Fund v Ove Arup [2009] EWHC 1453 (TCC) as follows:- “(1) The general rule is that a claim form must be served within the relevant period set out in the CPR; (2) CPR 7.6(2) does not impose any threshold conditions on the right to apply for an extension of time, and the discretion to extend time should be exercised in accordance with the overriding objective; (3) In order to deal with an application under CPR 7.6(2) justly it will always be relevant to determine and evaluate the reason why the claimant did not serve the claim form within the specified period; (4) The preconditions to CPR 7.6(3) do not apply, but they are relevant to an application under CPR 7.6(2) although the fact that the preconditions are not satisfied is not necessarily determinative of the outcome; (5)The court may take into account the fact that the claim has become statute barred and whether the nature of the claim is brought to the attention of the defendant within the initial period for service of the claim form.”[75]In those written submissions counsel, at some length, summarised the evidence which was before the judges who made the three orders extending time and such additional evidence as is before me. In my view, I am not in any substantially better position to judge whether the requirements of the rules have been met in respect of each of the applications for extension of time than the judges who dealt with those applications ex parte. With respect to those judges, it seems to me that they had ample material before them which justified their making the orders which they did and I can see no reason such as would justify my interfering with them.[76]My conclusion, therefore, is that I must dismiss all of the First Defendant’s applications and I will stand over the Claimants’ second application.

order

i) giving the Claimants permission to serve the claim form by alternative means, namely on B’s English and Lebanese solicitors at their addresses in this country and the Lebanon. ii) Without prejudice to i), giving a further extension of time for serving the claim form until 30th June 2010. iii) Adjourning generally the Claimants’ application under CPR 6.37(5)(b) for an order that the steps already taken by the Claimants to bring the claim form to the attention of the First Defendant amounted to good service of the claim form, with permission to restore.

Cited in 7 later judgments