Greig William Alexander Mitchell & Anor (joint liquidators of MBI International & Partners Inc) v Sheikh Mohamed Bin Issa Al Jaber & Ors [2026] EWHC 1947 (Ch)

[2026] EWHC 1947 (Ch)Case No PT-2026-000582
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 29 July 2026
Before
DEPUTY MASTER HOLDEN
Between
GREIG WILLIAM ALEXANDER MITCHELLClaimantsKENNETH MELVIN KRYSClaimant(in their capacity as joint liquidators ofClaimantMBI International & Partners Inc)Claimant(1) SHEIKH MOHAMED BIN ISSA AL JABERDefendants(2) MAKIYAH MAHMOOD AL JABERDefendant(3) PERSONS UNKNOWNDefendant
Niall McCulloch KC (instructed by Clyde & Co LLP) for ClaimantsAdrian Carr (instructed by Kingsley Wood) for First DefendantJudgment on the papers
Approved JudgmentThis judgment was handed down remotely at 10.30am on 29 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Deputy Master Holden:

[1]This is my judgment in respect of the First Defendant’s application dated 2 July 2026 to set aside the order of Deputy Master Linwood dated 25 June 2026 authorising service of the claim form in these proceedings on the First Defendant by an alternative method, namely by email to his solicitors.[2]The First Defendant has requested that the court determine his application on the papers, and I agree that it is appropriate to do so. I have had the benefit of full written submissions from counsel for the Claimants (Mr McCulloch KC) and for the First Defendant (Mr Carr), for which I am grateful.

Background

[3]After a trial before Joanna Smith J, the First Defendant, Sheikh Mohamed bin Issa Al Jaber, was ordered to pay to the Claimants (in their capacity as the joint liquidators of MBI International & Partners Inc) the sum of €67,123,403.36 (the ‘Judgment’). The Judgment was set aside by the Court of Appeal, but on 24 November 2025 it was reinstated by the Supreme Court (see Mitchell v Al Jaber [2025] UKSC 43). The Judgment is therefore final, due, and payable.[4]The First Defendant is the registered proprietor of 2 Winnington Road, London N2 0UB (the ‘Property’). In 2023, the Claimants obtained an interim charging order over the Property. In March 2026, Deputy Master Valentine then made a final charging order over the Property securing the sum of €83,277,156.10 (inclusive of accrued interest) (the ‘Charging Order’). The Charging Order records that the First Defendant is the sole legal and beneficial owner of the Property, and that the Second Defendant has no interest in it. I understand that the Second Defendant has sought permission to appeal against Deputy Master Valentine’s order, and that she seeks a stay of these proceedings pending the determination of that application. Neither of those applications is before me.[5]The Claimants now wish to enforce their security under the Charging Order. On 22 May 2026, the Claimants therefore issued this Part 8 claim, seeking an order for possession and sale of the Property.[6]Prior to issuing the claim form, on 30 April 2026, the Claimants’ solicitors, Clyde & Co LLP, sent a letter to the First Defendant at his address in Paris (the ‘Paris Address’). I say that the Paris Address is the First Defendant’s address because he gave it as his address in his witness statement in opposition to the making of the Charging Order, and it has not subsequently been suggested that he does not reside there. The letter gave notice of the Claimants’ intention to bring proceedings for possession and sale of the Property. It was sent by Royal Mail International Tracked Delivery, but La Poste was unable to deliver it. A delivery notice was left at the Paris Address, and the letter was held for collection for two weeks, but it was not collected.[7]Also on 30 April 2026, Clyde & Co wrote to Kingsley Wood, solicitors who had acted for the First Defendant in the substantive claim, asking whether they were instructed in relation to the proposed possession proceedings and, if so, whether they had authority to accept service of the claim form on his behalf. On 14 May 2026, Kingsley Wood replied to say that they were instructed by the First Defendant, but that they were not instructed or authorised to accept service of the proposed claim, or any other application or proceedings, on his behalf. They further stated that the First Defendant did not reside at the Property or elsewhere in the United Kingdom, but without giving any address for service for him. They said that “[o]ur client’s rights are fully reserved, including as to service, jurisdiction, the validity of any purported service.”[8]Following that indication, on 18 June 2026 the Claimants applied for permission to serve the claim on the First Defendant out of the jurisdiction and by an alternative method, namely by email to his solicitors, Kingsley Wood. The application was supported by the witness statement of Ms Anne Marie Byrne, a solicitor at Clyde & Co.[9]By order dated 25 June 2026 (amended under the slip rule on 26 June 2026), Deputy Master Linwood granted the Claimants permission to serve the claim form out of the jurisdiction. The Deputy Master also directed that service by email upon Kingsley Wood would constitute good and sufficient service on the First Defendant (the ‘Alternative Service Order’). On 26 June 2026, the Claimants duly served the First Defendant with the claim form and associated documents by email to Kingsley Wood.[10]By his present application, which was made by notice dated 2 July 2026 and supported by the witness statement of Mr Zahy Deen, a solicitor at Kingsley Wood, the First Defendant applies to set aside the Alternative Service Order. In his witness statement, Mr Deen asserts as follows: i) Kingsley Wood had never been instructed to accept service of the proceedings on behalf of the First Defendant, and its email of 14 May 2026 (referred to at paragraph 7 above) made it clear that it was not instructed to do so. ii) Where service out is to be effected in a state which is a party to the Hague Service Convention (the ‘Convention’), the Court applies a strict test, requiring that there be “exceptional circumstances” to justify service by alternative means, which test is said not to have been met in this case. iii) The Claimants have breached their duty of full and frank disclosure by failing to draw the court’s attention to the authorities establishing the “exceptional circumstances” test, and by exhibiting, but then “reasoning around” an email that Kingsley Wood had sent to Clyde & Co in December 2025, in which it was made clear that Kingsley Wood would only accept service of further proceedings on a “case-by-case basis.”[11]Having given initial consideration to the application, it seemed to me that the First Defendant had failed to refer to relevant authority, including M v N [2021] EWHC 360 (Comm) and Gorbachev v Guriev [2022] EWCA Civ 1270; [2023] KB 1, which on the face of the commentary in the White Book appeared to me to be contrary to the position adopted by the First Defendant. I therefore directed the filing of the written submissions which I referred to at the outset of this judgment.[12]On 10 July 2026, Kingsley Wood then filed an acknowledgement of service on behalf of the First Defendant, indicating the First Defendant’s intention to contest the claim and to dispute the court’s jurisdiction to determine the claim. The acknowledgement of service filed by the First Defendant contains the following bespoke and somewhat unorthodox statement:
“WITHOUT PREJUDICE This acknowledgment of service is filed without prejudice to, and expressly reserving, the First Defendant’s application dated 2 July 2026 to set aside the order for alternative service, and the First Defendant’s right to dispute service and to challenge the jurisdiction of the court under CPR Part 11. The filing of this acknowledgment of service is not, and shall not be treated as, a submission to the jurisdiction of the court.”
The parties’ submissions (a). The First Defendant’s submissions[13]The written submissions of Mr Carr on behalf of the First Defendant represent a major departure from the grounds set out in evidence. As set out at paragraph 10 above, in his witness statement Mr Deen asserted that service on a defendant in a Convention state requires “exceptional circumstances”, and that the Claimants had not established such exceptional circumstances in this case. Indeed, Mr Deen went so far as to assert that the Claimants had breached their duty of full and frank disclosure to the court by failing to draw the court’s attention to the applicable “exceptional circumstances” threshold.[14]Conversely, in his written submissions, Mr Carr acknowledges that France has not objected to Article 10(a) of the Convention (permitting service by postal channels directly on persons resident in Convention states), and he does not contend that the Claimants must demonstrate “exceptional circumstances.” Rather, he accepts that the Claimants must establish a “good reason” for departing from the ordinarily available methods of service, assessed with proper regard to the Convention and the considerations of comity which it reflects.[15]Mr Carr therefore accepts that the court has jurisdiction in an appropriate case to permit alternative service upon a defendant resident in a state which is party to the Convention. He submits, however, that the existence of the Convention is an important consideration in deciding whether a good reason has been established. Relying principally upon Cecil v Bayat [2011] EWCA Civ 135, Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS [2018] EWCA Civ 1093 and M v N [2021] EWHC 360 (Comm), he submits that a desire to avoid the delay or inconvenience associated with Convention service will not ordinarily be sufficient.[16]He submits that the unsuccessful attempt to deliver the Claimants’ pre-action letter to the Paris Address does not provide a good reason for ordering alternative service. There was only one attempt at delivery, at 11.03 am on a weekday. A delivery notice was left and the package was held for collection for two weeks. There may, he says, be many innocent explanations for its not having been collected. In particular, there is no evidence of the contents or language of the delivery notice, such that the First Defendant may not have known to collect the package.[17]Nor, Mr Carr submits, is there any relevant urgency. The Claimants already have the security of the Charging Order over the Property. No hearing of the claim has been listed, and there is no interim relief whose effectiveness depends upon immediate service. The Claimants did not issue the claim until 22 May 2026, and did not apply for the Alternative Service Order until 18 June 2026. The Second Defendant’s attempt to appeal against the Charging Order, and her application for a stay, are said further to diminish any need for speedy service.[18]Mr Carr also submits that the Claimants have made no attempt to serve the claim upon the First Defendant under the Convention. Alternative service was therefore their first resort, rather than a response to any demonstrated failure of the ordinary process. In his submission, the non-delivery of a single pre-action letter does not justify bypassing service under the Convention.[19]As to Kingsley Wood, Mr Carr submits that the firm made its position unequivocally clear. Its agreement in December 2025 to exchange documents by email expressly excluded any general authority to accept service of a new claim form. In its email of 14 May 2026, Kingsley Wood again stated that it was not instructed or authorised to accept service of the proposed claim.[20]Finally, Mr Carr referred me to Ms Byrne’s evidence concerning French law. Her evidence is that the method authorised by the Alternative Service Order is not a permitted method of service under the French Code of Civil Procedure, although it is not prohibited by French law. Mr Carr submitted that this is relevant to the question whether the court should permit service via this alternative method.

(b) The Claimants’ submissions

[21]In his written submissions on behalf of the Claimants, Mr McCulloch KC submitted that the First Defendant’s application should be dismissed.[22]Mr McCulloch KC notes that it is now common ground between the parties that, because France has not objected to Article 10(a) of the Convention, there is no requirement to demonstrate “exceptional circumstances” before an order for alternative service can be made. The question is simply whether, in all the circumstances, there is “good reason” for making such an order. That is a fact-sensitive and discretionary assessment, which calls for a pragmatic application of common sense.[23]Mr McCulloch KC advances three principal submissions in support of the Alternative Service[24]Mr McCulloch KC rejects the suggestion that the Claimants were first required to attempt service under the Convention. CPR r.6.15 contains no such precondition. Nor, he submits, does French law present any obstacle: Ms Byrne’s evidence is that, although the method authorised by the Alternative Service Order is not itself a method of service provided for by the French Code of Civil Procedure, it is neither contrary to nor prohibited by French law. CPR r.6.40(4) is therefore not engaged.[25]As to the Second Defendant’s proposed appeal and application for a stay, Mr McCulloch KC submits that her appeal does not of itself stay the Charging Order. The court should therefore determine the position as it presently stands rather than speculate about whether the Second Defendant will obtain relief from sanctions, permission to appeal, or a stay. Her position does not, in any event, answer the Claimants’ case that there was good reason to authorise alternative service on the First Defendant.

Discussion and disposal

[26]It is now common ground between the parties that, in determining whether to permit service by an alternative method on a defendant who is resident in a Convention state that has not objected to Article 10(a) of the Convention, the applicable test is whether there is good reason to authorise service by that alternative method. In my judgment, that is clearly correct as a matter of law. The relevant principles were helpfully summarised by Foxton J (as he then was) in M v N [2021] EWHC 360 (Comm), at [8] and [9]. I do not set those paragraphs out in full, but I bear them in mind in considering the exercise of the court’s discretion.[27]In my judgment, there is clearly good reason in this case to authorise service on the First Defendant by the alternative method of service by email to his solicitors. I reach that conclusion for the following cumulative reasons: i) First, I accept the Claimants’ characterisation of these proceedings as being, in substance, proceedings to enforce the Judgment against the First Defendant. In that context, the First Defendant is already well aware of the existence of the Judgment, and is alive both to the need to pay the Judgment debt, and to the consequences should he fail to do so. The current proceedings can therefore have come as no surprise whatsoever to the First Defendant, who is already (via his solicitors) fully apprised of their content. It also seems to me that, in circumstances in which the claim that led to the Judgment has already involved the Claimants in multi-year litigation, it is important for these enforcement proceedings to be conducted as expeditiously as reasonably possible. ii) Second, it seems to me that the unexplained failure by the First Defendant to collect the Claimants’ pre-action letter following the attempted delivery at his Paris Address, together with the refusal by his solicitors to accept service on his behalf, together indicate at least a real possibility that the First Defendant is exploiting the need to serve the claim form on him to delay the progress of these proceedings. In that regard: a) It is uncontroverted that the Paris Address is the First Defendant’s address, yet he has offered no explanation as to why he was unable to take delivery of the pre-action letter. I do not accept that language difficulties in relation to the delivery notice left by La Poste would have prevented the First Defendant from collecting the letter during the two-week period that it was held for him. In the absence of any reasonable explanation, it seems to me that there is at least a real possibility that the First Defendant simply declined to collect the letter. b) The position adopted by the First Defendant’s solicitors, which I presume to be on his instructions, is to decline to accept service; yet the First Defendant’s solicitors acted for him in both the substantive claim and in respect of the Charging Order proceedings, and are acting for him in these proceedings, including by filing an acknowledgement of service on his behalf. In circumstances in which the First Defendant’s solicitors are fully apprised of, and fully engaged in, these proceedings, their refusal (again, I assume on their client’s instructions) to accept service of the claim also seems to me to indicate a real possibility that the First Defendant is seeking to exploit the need to serve the claim form on him to attempt to delay the progress of these proceedings. iii) Third, if and to the extent that the First Defendant’s unexplained inability to take delivery of the Claimants’ pre-action letter was the result of some genuine problem with him taking delivery of documents at the Paris Address, rather than a mere tactical choice on his part, that itself provides a good reason for service of the claim form by an alternative method, since that would give rise to the real risk that the same problem will recur when service of the claim form under the Convention is attempted. Furthermore, even were the First Defendant not already fully apprised of these proceedings via his solicitors on the record, I consider that the problems already encountered in delivering documents to him at the Paris Address mean that service via the alternative method is the more effective and efficient means of bringing the proceedings to his attention, which is the fundamental purpose of service. iv) It does not seem to me that the Second Defendant’s application for permission to appeal against the judgment of Deputy Master Valentine or for a stay of the proceedings has any relevance to this application. Whether or not the First Defendant should be served with the claim form by an alternative method is unconnected with these applications. v) Finally, and for completeness, it appears that the First Defendant no longer contends that there has been any breach of the Claimants’ duty of full and frank disclosure. However, if and to the extent that that submission is maintained, I consider that there has been no such breach: in my judgment, the Claimants’ evidence in support of the application cited the correct legal test (as the First Defendant now himself acknowledges) and adequately drew the court’s attention to Kingsley Wood’s correspondence.[28]In all of those circumstances, it seems to me that, notwithstanding that the First Defendant is resident in a Convention state, there is good reason in this case to direct that he be served with the claim form by the alternative method stipulated in the Alternative Service Order.[29]I therefore dismiss the First Defendant’s application to set aside the Alternative Service Order.

Order

i) First, the interests of speedy justice. Mr McCulloch KC submits that, although the claim is formally a new Part 8 claim, it is in substance an enforcement proceeding. The underlying dispute between the Claimants and the First Defendant has been tried, the Judgment is no longer open to appeal, and the Charging Order has been made. The First Defendant has, he submits, no defence to a claim for possession and sale of the Property. The Claimants have a legitimate interest in avoiding unnecessary further delay in enforcement of the Judgment. ii) Second, service on the First Defendant’s solicitors was materially more likely to bring the claim to the First Defendant’s attention than service by tracked post to the Paris Address. Relying upon Addax BV Geneva Branch v Coral Suki SA [2004] EWHC 2882 (Comm), Mr McCulloch KC submits that the court can take a pragmatic view where orthodox service is available but is likely to be less effective in bringing the proceedings to the defendant’s attention than the proposed alternative. In this regard, Mr McCulloch KC points to the failed delivery to the Paris Address of the letter notifying the First Defendant of the claim. Mr McCulloch KC rejects as speculative the suggestion that the First Defendant may not have understood the delivery notice left by La Poste, and observes that the First Defendant has filed no evidence explaining his whereabouts when delivery was attempted, why the letter was not collected, or any linguistic difficulty. He has previously given evidence in English, resides in France and is, it is said, a sophisticated international businessman. In the absence of contrary evidence, the court is invited to conclude that service upon Kingsley Wood is the more reliable means of bringing the claim to his attention. iii) Third is the possibility that the First Defendant has sought, or may seek, to evade or delay service. Mr McCulloch KC relies on the combination of the unsuccessful delivery in France of the pre-action letter and what he describes as the First Defendant’s “tactical instructions” to Kingsley Wood: namely, that the firm was instructed to represent him and would pass documents to him, but was not authorised to accept service. That is said to be suggestive of a “tactical and game playing approach” by the First Defendant.