‘The Claimant seeks damages, under English law, alternatively under the law of Dubai, UAE, (i) In his own right for personal injuries sustained as a result of the death of Ms Tamim; (ii)Under the Law Reform (Miscellaneous Provisions) Act 1934 , in his capacity as administrator of the Deceased’s estate and on behalf of the estate. (iii)Under the Fatal Accidents Act 1976 in his capacity as dependent co-habitant and/or husband for dependency for wrongful death. Alternatively, the Claimant seeks damages under the laws of Dubai, UAE (i) In his own right for personal injuries sustained as a result of the death of Ms Tamim (ii) As heir on behalf of the Estate and its heirs; and (iii) For loss of heirship / dependency for wrongful death.’
‘As the murder of Suzan Tamim took place in Dubai it is the law of the [UAE] which will apply in relation to the limitation period for the claim to be issued on behalf of the Claimant. According to Article 473 of the Civil Transaction law of the U.A.E the limitation period that would apply in relation to a claim of this nature is 15 years.’
‘The applicable law, however, is the law of the UAE. Under Article 298 of the Civil Transaction Law of the UAE, the applicable limitation period is 15 years. Accordingly, the claim is in time and the applicable time limit shall expire on28 July 2023 .’
‘(a) There is clear justification for an extension of time. The Claimant has not yet been granted permission to serve out of the jurisdiction despite having made the application within the period allowed for service; (b) There is a good reason for the inability to serve within the specified time limit. The Claimant has not been granted permission to do so as is required by the rules; (c) the applicable limitation period has not yet expired; and (d) The overriding objective militates strongly in favour of the granting of the application…’
‘1 By an Order of Master Gidden sealed on the26 January 2023 permission was granted to serve the Defendant with the Particulars of Claim and accompanying documents in Cairo, Egypt by the25 July 2023 . 2 From the date of this Order, ‘without prejudice’ discussions occurred between the parties in an attempt to avoid litigation and reach a settlement. This paused our efforts to serve the Defendant in Cairo, Egypt. 3 Ultimately no settlement was reached. Therefore, we gathered the required documents for service abroad and instructed an Arabic interpreter for translations of these documents for the benefit of the Defendant. 4 On1 June 2023 these documents and Arabic translations were delivered to the Foreign Process Section at the Royal Courts of Justice. 5 These documents were then returned by the Foreign Process Section with a request to include additional forms in English and Arabic. 6 On9 June 2023 we instructed an interpreter to provide Arabic interpretations of these additional documents before resubmission was possible. 7 On16 June 2023 the interpreter provided the final necessary document and the Particulars of Claim and accompanying documents were submitted in person to the Foreign Process Section at the Royal Courts of Justice. 8 Therefore service has not yet been effected on the Defendant and due to the lengthy process involved, service will not be effected by the25 July 2023 .’
‘From the Order of Master Gidden, there are two principle [sic] reasons for the delay in lodging the documents with the Foreign Process section: (a) Firstly, the Claimant has faced considerable difficulty in raising funds in order to pursue the claim. Janes is not acting under a conditional fee arrangement or other such arrangement and this is an inherently complex claim. The Claimant’s career and associated earnings were prematurely ended by the facts giving rise to this claim. As such, he has faced considerable difficulty in finding the money to progress the claim. (b) Secondly, there were the delays in procuring and then re-procuring the translation of documents.’
‘More recently, part of the reason that there was a delay from the point at which you granted the previous – both permission to grant – to serve out of the jurisdiction and extension for time on 19 January and the papers being passed to the Foreign Process Section was that there were, again, quite advanced discussions and it was hoped that there may be no need for recourse to court whatsoever.’
“Extension of time for serving a claim form (1) The claimant may apply for an order extending the period for compliance with rule 7.5. (2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made – (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order. (3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if – (a) the court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application.”
‘i) The defendant has a right to be sued (if at all) by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. It follows that a departure from this starting point needs to be justified; ii) The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight by the claimant or waiting some other development (such as funding) may not amount to a good reason. Further, what may be a sufficient reason for an extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form; iii) Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but is not likely to do so; iv) Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, the claimant should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time; v) The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective.’
"(i) First, the Court's power to extend time is to be exercised in accordance with the overriding objective (Hashtroodi v Hancock[2004] 1 WLR 3206 at [18]; Al-Zahra at [49(2)]; (ii) Second, it is not possible to deal with an application for an extension of time underCPR 7.6 (2) "justly" without knowing why the claimant has failed to serve the claim form within the specified period (Hashtroodi at [18]; Al-Zahra at [49(3)]. Thus, the reason for the failure to serve is a highly material factor. Where there is no good reason for the failure to serve the claim form within the time permitted under the rules, the court still retains a discretion to extend time but is unlikely to do so (Hashtroodi at [40]; Al-Zahra at [49(5)]. (iii) Thirdly, a "calibrated approach" is to be adopted, so that where a very good reason is shown for the failure to serve within the specified period, an extension will usually be granted; but generally, the weaker the reason, the more likely the court will refuse to grant the extension (Hashtroodi at [19]; Al-Zahra at [49(4)]). Weak reasons include: a claimant who has overlooked the matter (Hashtroodi at [20]; Al-Zahra at [49(5)]), and an applicant who has merely left service too late (Hashtroodi at [18], citing from Professor Zuckerman on Civil Procedure at p 180; Al-Zahra at [50]). (iv) Fourthly, whether the limitation period has expired is of considerable importance; Al-Zahra at [50] and [51(3)]; Hoddinott v Persimmon Homes (Wessex) Ltd at [52]. Where an application is made before the expiry of the period permitted under the rules for service, but a limitation defence of the defendant will or may be prejudiced, the claimant should have to show at the very least that he has taken 'reasonable steps': (Cecil v Bayat[2011] EWCA Civ 135 at [48] ; Al-Zahra at [52(3)]. A claimant's limitation defence should not be circumvented save in 'exceptional circumstances' (Cecil v Bayat at [55]; Al-Zahra at [52(3)])." [36] As to what constitutes a 'good reason' (referred to in (ii) and (iii) above), generally speaking, the good reason must be a difficulty in effecting service: Cecil v Bayat[2011] 1 WLR 3086 at [49] (Stanley Burnton LJ). [37] The authorities also demonstrate that a defendant should not be criticised for refusing to accept service otherwise than in accordance with the CPR , and that a defendant has no duty to help the Claimant in effecting service. See: (1) American Leisure Group Ltd v Garrard[2014] EWHC 2101 (Ch) ,[2014] 1 WLR 4102 at [27] David Richards J) at [32]: "
‘i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court’s attention to significant factual, legal and procedural aspects of the case; ii) It is a high duty and of the first importance to ensure the integrity of the court’s process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make; iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents; iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on; v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction; vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect; vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits; viii) In general terms it is inappropriate to seek to set aside a freezing order for nondisclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself; ix) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived; x) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court’s starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged; xi) The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties; xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts; xiii) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure.’
‘In my judgment, that entirely misunderstands the nature of the duty of full and frank disclosure. It should be known to all practitioners that what is material to place before the judge on a without notice application is not to be judged solely from the point of view of the applicant. Material facts are those which it is material for the judge to know in dealing with the application as made. That duty requires an applicant to make the court aware of the issues likely to arise, which includes making the court aware of the possible difficulties which the applicant may face, either in the claim or in the particular application. What is required is a fair presentation. Although that need not extend to a detailed analysis of every possible point which may arise, it necessarily involves making the court aware of the main difficulties which the application, if contested, could face and of the principal arguments which the other side would be likely to raise.’
‘[104] Limitation under English law (the only law being advanced at this time in the JP Morgan Proceedings) was on any view, and without any benefit of hindsight, a very important potential defence to the claims being advanced. Indeed (as I have found) it was a matter that meant that the LIA did not have a real prospect of success, and as such service should be set aside. But whether that was so or not, it was a matter which indisputably might reasonably be thought to weigh against the making of the order for permission to serve out of the jurisdiction, as it went to the question of a real prospect of success of the LIA’s claims. Equally, in terms of the duty of full and frank disclosure, the issues that arose in relation to limitation are matters which might reasonably have caused the judge to have doubt whether he should grant permission to serve out of the jurisdiction, in the context of whether the LIA had a real prospect of success and as such were relevant matters which ought to have been disclosed (MRG v Engelhard Metals Japan, supra, at [29] per Toulson J). … [107] The duty of an applicant on an application for permission to serve out of the jurisdiction is a duty to make full and frank disclosure of all material facts. The material facts are those which it is material for the Judge to know in dealing with the application made - Brink’s Mat Ltd v Elcombe[1988] 1 WLR 1350 and 1356 G-H––here an application to serve outside the jurisdiction which would have the effect of bringing a person and an entity outside the jurisdiction, into the jurisdiction. In the present case, LIA should have identified that the claims sought to be advanced against Mr Giahmi and Lands were, under English law, prima facie time barred subject to the application ofsection 32 of the Limitation Act 1980 , and should have provided sufficient particulars of the basis on which the LIA said that it could not with reasonable diligence have discovered all necessary elements of a proper plea of fraud until after6 April 2012 , so that the judge could consider whether he or she was satisfied that the claims nevertheless had a real, as opposed to fanciful, prospect of success. The LIA did not do so. It is no answer to say that limitation is a point taken by way of defence – when applying for permission to serve out of the jurisdiction the LIA knew that such a defence would be taken given the stance Mr Giahmi had adopted in the SocGen proceedings, and the fact that the JP Morgan proceedings had been commenced very much more than six years after the Bear Stearns note. It was obvious that limitation was relevant to a reasonable prospect of success. [108] There was accordingly a failure to comply with the requirements of Appendix 9 paragraph 2(c) of the Commercial Court Guide, and a breach of the duty of full and frank disclosure. Importantly this was not, and was not suggested to be, an inadvertent failure to address such matters (due to lack of familiarity with the case, or pressure of time or the like). … [110] Whilst it is rightly not suggested (and could not be suggested) that there was an intention to mislead the court, there was, nonetheless, a conscious, and therefore deliberate, decision not to inform the court of such matters, and the degree and extent of the culpability was of a high order. Nor did the LIA recognise the non-disclosure and apologise for the same. …. [120] The importance of the duty of full and frank disclosure, on applications for permission to serve out, just as in the context of a freezing injunction, cannot be over-stated. There is a difference in terms of what the disclosure must be directed at, and the matters being considered, but the underlying reason and rationale for the duty remains the same, as is the need to comply with the same. A failure to comply with that duty is by its very nature serious – an individual or entity has been brought into the jurisdiction without having had any opportunity to address the court as to why permission should not be granted, and as demonstrated by the present case, they are then exposed to very considerable costs upon an application to set jurisdiction aside.’
‘[103] I would add that the Judge does not appear to have refocussed, when considering the applications for an extension of time, upon the failure within the applications to give full and frank disclosure of the position relating to limitation. Unlike in the context of the Service Out Applications, the existence of potential limitation defences was highly material to the initial exercise of considering whether, and if so for how long, an extension of time ought to have been granted. The existence of limitation defences changed the very test the Judge had to consider and apply when considering the matter ex parte: it was not enough to show a 'good reason': the circumstances were required to be exceptional, in the sense of something out of the ordinary, as considered above. Seen through this lens, the conscious decision not to refer to limitation issues in the evidence supporting the Extension Applications was, in my view, a significantly more serious transgression of the duty of full and frank disclosure. In the exercise of my discretion this factor, of itself, militates much more strongly towards setting aside the order and strongly supports the determination I have otherwise arrived at, namely that the extensions of time sought from10 November 2021 should not be granted.’
‘1. An action for damages arising from an unlawful act is prescribed after three years from the date upon which the victim knew of the injury and the identity of the person who was responsible. 2. Where a claim arises out of a criminal offence and the hearing of the penal action is still pending after the lapse of the periods above-mentioned in the preceding clause, the action for damages may still be heard. 3. An action for damages is prescribed in any case after fifteen years from the date on which the prejudicial act was committed.’
‘The basic principles which apply where a defendant seeks a stay on forum non conveniens grounds of an action in which it has been served here as of right, were authoritatively identified in Spiliada and Kyrgyz Mobil. The defendant must discharge the evidential burden of satisfying the court that there is another available forum of competent jurisdiction which is clearly and distinctly more appropriate as the forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice: Spiliada at pp. 476C, 476E, 477E. This is stage one. If the defendant satisfies the burden, the court will nevertheless refuse a stay if the claimant satisfies it, by cogent evidence, that there are circumstances by reason of which justice requires such refusal, including in particular if it is established by cogent evidence that there is a real risk that the claimant will not obtain justice in the foreign forum: Spiliada at p. 478D-E, Kyrgyz Mobil at paras. [91]-[95]. This is stage two.’
‘… it is always preferable, other things being equal, for questions about the law of another country to be decided by the courts of that country. This is particularly so where there are substantial differences between the jurisprudence of the two systems, as there are between English common law and the principles of UAE law that are relevant to this case.’