Heiser, Estate of & Ors v The Islamic Republic of Iran & Anor [2019] EWHC 2074 (QB)

“The Orders are sought because the Defendants are immune from the jurisdiction of the Court in these proceedings pursuant to section 31 of the Civil Jurisdiction and Judgments Act 1982, which lays down a statutory prohibition against the Court recognising and enforcing the judgments against the Defendants. Any default judgments entered in the proceedings is contrary to section 31 of the Civil Jurisdiction and Judgments Act 1982 and should be set aside pursuant to paragraph 4 of the Order of Master Cook and/or CPR 13.3. Further, because the Defendants are immune from the jurisdiction of the Court, no Order for service out of the jurisdiction should have been made and the proceedings should be dismissed for want of jurisdiction.”

“The Service Issues” a) Whether the Defendants have been validly served with the proceedings on 10 February 2014 or otherwise; b) If the Defendants do make an alternative service set aside application Subsequently made on 11 December 2018 – the second application , whether the 25 May 2018 Order for alternative service should be set aside and/or whether service of the Order of Master Cook made on 23 July 2014 and accompanying documents was validly effected. (“the Service Issues”) “The State Immunity Issues”

“5. The State Immunity problem, if it is one, in the present case may arise in the following way. The judgments with which the Court is concerned here are 12 Judgments obtained by various Claimants in the US Federal District Court in the District of Columbia. They arise out of a number of attacks around the world at various times in recent history in which citizens of the United States have either been killed or severely injured. Very often the basis of the finding against the Government of Iran in those cases has been that it conspired to cause the deaths or injuries concerned. In some of the cases the finding by the US Court has been to the effect that the Government of Iran provided assistance by way of resources to terrorist organisations, knowing that it was doing so and that assistance then led to the deaths or injuries concerned of American citizens. 6. The issue which may arise under the State Immunity Act is whether section 5 would apply if this were a case which arose in the United Kingdom. By way of analogy, the question will become whether the death or personal injury had been caused “by an act or omission in the United States”. 7. The essential submission for the Claimants at this stage is that there is a good arguable case that there would be jurisdiction if a similar action were to arise in the United Kingdom, on the basis of a conspiracy being regarded as a composite act. It is said that the conspiracies concerned could properly be regarded as being conspiracies not just against those individuals but their relatives and indeed the public more generally in the United Kingdom. So, by way of analogy, it is said in the present cases conspiracies can be analysed as being conspiracies not just to cause injury or death to American citizens, but also to damage their families and also to damage the public in the United States more generally. That, it is submitted, is one of the inherent features of the scourge of international terrorism, as it has been described by courts both in this country and elsewhere. In some of the other cases the analysis of the American Court was to the effect that the material assistance knowingly provided to terrorist organisations which caused the death or injury in question. Again it is submitted on behalf of the Claimants that it is at least arguable at this stage that section 5 of the State Immunity Act would not preclude an action in the United Kingdom if similar proceedings were brought here. I accept those submissions. 8. The other main issue … is that the Claimants accept that they also may need to show that there is a good arguable case that the Court would have jurisdiction to enforce the American Judgments pursuant to common law on the basis that the government of Iran had a presence in the United States. Suffice it to say that I am persuaded … that the Claimants do have a good arguable case on that also. The argument essentially runs as follows. First, that the American Courts have carefully considered the question and have decided that they have jurisdiction over the government of Iran in these twelve cases. Secondly, that on well-established authority the relevant statute in the United States, the Sovereign Immunities Act 1976, is well known to be a precursor to the United Kingdom’s State Immunity Act 1978. It is submitted that it follows, therefore, that a similar view would be taken in the United Kingdom and that, at least for present purposes, the Court should grant permission on the basis that there is no statutory bar to service out of the jurisdiction or common law bar to such service. 9. For the reasons that I have given, I am persuaded that the Claimants should be granted the permission that they seek. I stress that this is a without notice hearing and this does not mean that these issues cannot be revisited on contested argument if the Defendants choose to take part in legal proceedings in this country and if they choose to make representations to that effect in due course.”

“.. I can confirm that although the FCO had performed its role in delivering legal documents in reference to the above matter to the non-resident Chargé d’Affaires to London of the Iranian MFA, the attempted service was later rejected by the said MFA. This response therefore nullifies the Certificate of Service that was prepared … at the FCO on 10 April 2014.”

“ … Jeremy Cook wrote to you via email on 22 December 2014 to inform you that the service of the claim documents in the above case (“the documents”) on the Islamic Republic of Iran which was carried out in February 2014 had been later rejected and the documents returned. The email stated that this response from the Iranian Government nullified the Certificate of Service dated 10 April 2014. In fact, having considered the matter further here, we consider that that statement was incorrect: we believe that service did in fact take place in accordance with standard procedures in such cases. We therefore see no reason to withdraw or amend that Certificate and we consider it still to be valid. We do of course accept that the question of whether service has been successfully effected is a matter of law for the Court. The purpose of this letter is to set out the facts of the situation for the Court. On 20 February 2014 a non-resident UK Chargé d’Affaires to Tehran, Mr Ajay Sharma, and an Iranian non-resident Chargé d’Affaires to London, Mr Mohammed Hossan Habibollazadeh, were appointed by the UK and Iranian Governments respectively and the UK and Iran agreed that bilateral relations would be conducted directly through non-resident Chargés d’Affaires and officials. On 10 February 2014 a UK delegation, headed by Mr Sharma and including Mr Peter Chamberlain, then Head of Bilateral Team in the FCO’s Iran Department made a 24 hour visit to Iran. The visit included a meeting in the Ministry of Foreign Affairs of the Islamic Republic of Iran (“the Iranian MFA”) with an Iranian delegation headed by Mr Habibollazadeh and including the Iranian MFA’s UK desk officer, Mr Mohammad Sahebi. It was a very short visit and because of pressure of business, there was limited opportunity to hand over documents during the meeting. Therefore, at the end of the meeting on 10 February 2014, while the UK delegation was speaking to the Iranian delegation outside of the Iranian MFA building (but within in the Iranian MFA compound), Mr Chamberlain explained to the Iranian officials that the UK had some documents to hand over. He then handed the documents over to his counter-part, Mr Sahebi, explaining that they were legal papers that needed to be served on the Iranian MFA. Mr Sahebi accepted the documents and put them in his vehicle. On 11 February 2014 the FCO’s Iran department in London issued a note verbale (copy enclosed) addressed to the Iranian MFA referring to the transmission “by way of service” of the documents and stating; Receipt of the documents by the Ministry of Foreign Affairs of the Islamic Republic of Iran is deemed as service upon the Defendant state under the State Immunity Act 1978 of the United Kingdom. The note was sent to Mr Sahebi by email. …. ….. The UK’s next bilateral visit to Iran took place on 19 May 2014. The UK delegation consisted of Mr Sharma and FCO Iran Department Officials, including Mr Chamberlain. During this visit Mr Sahebi informed Mr Chamberlain that the Iranian MFA would not accept receipt of the documents … Mr Sahebi took the documents from his vehicle and placed them in the vehicle that was being used by the UK delegation. Finally, we should clarify that although the Certificate of Service dated 10 April 2014 refers to documents being annexed, this was incorrect; a copy of the document was not in fact annexed to the Certificate. After being returned on 19 May 2014 the documents were retained in an FCO building in Tehran as there was no diplomatic bag service between Iran and the UK at the time, and no official channel for transporting them to London. … A decision was eventually made to return the documents in January 2015. The documents are now being held in the FCO’s London offices. Accordingly we consider that service of process on Iran did as a matter of fact take place in Tehran in February 2014, in accordance with standard diplomatic procedures.”

“6. Since then, I have on several occasions discussed the delivery of the papers with Mr Mohammad Sahebi, the Deputy Director for Western Europe in MFA. He has told me that MFA staff are not generally permitted to receive legal documents and that the only person authorised to do so is a Mr Esfahani-Nejad, the Head of the MFA’s Legal Affairs department. Mr Sahebi advised that I should seek a meeting with him. He also made clear that I should not attempt to get the MFA to accept the documents through any subterfuge and that damage to Iran/ UK relations would result. 7. I first requested a meeting with Mr Esfahani-Nejad in mid- September 2015. … Mr Esfahani-Nejad has consistently declined to see me, on various pretexts. 8. In the course of these exchanges, Iranian officials have indicated that they believe that this case, along with other cases whose papers I have been asked to deliver, is politically motivated. Based on my experiences, my belief is that the MFA has a deliberate policy of not accepting papers relating to some cases involving the Iranian authorities and are determined to obstruct service of documents. … ”

“The Applicant applies for an Order to provide for service on the Defendants of the default judgment entered pursuant to the Order of Master Cook dated 23 July 2014, a copy of the evidence in support of the application for permission to enter default judgment and any other documents relating to these proceedings to take place by email from the Foreign and Commonwealth Office and/or the British Embassy Tehran to the Iranian Ministry of Foreign Affairs in Tehran, these means constituting valid service pursuant to section 12(5) of the State Immunity Act 1978. This application is made entirely without prejudice to the Claimants’ case that valid service of the default judgment and other documents in these proceedings on the Defendants has previously been effected.”

“1. The service on the Defendant of the default judgment Order of Master Cook dated 23 July 2014 and any other documents in these proceedings can take place by the Foreign and Commonwealth Office and/or the British Embassy Tehran transmitting documents by email to the Iranian Ministry of Foreign Affairs in Tehran, Iran at Info@MFA.gov.ir, or any other appropriate email address, this being in compliance with section 12(5) of the State Immunity Act 1978. 2 This Order is made entirely without prejudice to whether valid service of the default judgment Order and other documents in these proceedings on the Defendants has previously been effected. 3 The Defendant is entitled to apply to set aside or vary this Order.”

“(3) A State is deemed to have submitted – (a) … (b) Subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings. (4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of – (a) claiming immunity …” (a) … (b) Subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.

“3. that the set aside application be amended in relation to certain limitation issues and that such issues be determined as preliminary issues.”

“AND WITHOUT PREJUDICE TO The Defendants’ right to contest the Court’s jurisdiction and assertion of all available immunities whether pursuant to the State Immunity Act 1978 or otherwise AND ON THE BASIS that the Defendants have not by the application, appeared or taken a step in the proceedings within the terms of section 12(3) of the State Immunity Act 1978 or otherwise. ”

“5. I state for the avoidance of doubt that participation by the Defendants in this application or the set aside application does not constitute in any way a waiver of their immunity from the adjudicative or enforcement jurisdiction of the Court pursuant to the State Immunity Act 1978 … common law or customary international law. This was reinforced by the Defendants’ covering letter serving the application. That letter is dated 29 June 2015 ….. 42. The Defendants request an early determination of the issues in relation to limitation because, if the court were to uphold the Defendants’ submissions on this point, it would effectively dispose of the case”

“31. Overseas Judgments given against states, etc. (1) A Judgment by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if, and only if – (a) it would be so recognised and enforced if it had not been given against a state; (b) that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978”

“From the three last mentioned authorities read together, the following principles can, in our judgment, be extracted. First, in determining the jurisdiction of the foreign court in such cases, our Court is directing its mind to the competence or otherwise of the foreign court “to summon the Defendant before it and to decide such matters as it has decided” … Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the Defendant in the country concerned at the time of suit. … ”

“The words “resident” or “present” or equivalent phrases have been used interchangeably in argument, just as they have been used in the cases; we see no objection to this terminology if it is understood that in the case of a corporation the concept of “residence” or “presence” in any particular place must be no less of a legal fiction than the existence of the corporation itself. The argument has centred on the features which this concept embodies in the case of a corporation.”

“Nevertheless, while the use of the phrase “temporary allegiance” may be a misleading one in this context, we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a Defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts … ”

“in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the Defendant in the country concerned at the time of suit.”

“As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it (“the trial judge”), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.”

“(b) ‘state’ means: (i) The state and its various organs of Government; (ii) … (iii) Agencies or instrumentalities of the state or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the state. (iv) Representatives of the state acting in that capacity.” (i) The state and its various organs of Government; (ii) … (iii) Agencies or instrumentalities of the state or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the state. (iv) Representatives of the state acting in that capacity.”

“28. What then is the correct approach to distinguishing between an organ of the State and a separate legal entity? And is this distinction relevant not only to questions of immunity, but also to questions of substantive liability and enforcement? … In the Board’s opinion, it is now appropriate in both contexts to have regard to the formulation of the more nuanced principles governing immunity in current international and national law. These, as explained in paras 10 to 18 above, express the need for full and appropriate recognition of the existence of separate juridical entities established by states, particularly for trading purposes. They do this, even where such entities exercise certain sovereign authority jure imperii, providing them in return … with a special functional immunity if and so far as they do exercise such sovereign authority. A similar recognition of their existence and separateness would be expected for purposes of liability and enforcement. 29. Separate juridical status is not however conclusive. An entity’s constitution, control and functions remain relevant; para 25 above. But constitutional and factual control and the exercise of sovereign functions do not without more convert a separate entity into an organ of the State. Especially where a separate juridical entity is formed by the State for what are on the face of it commercial and industrial purposes, with its own management and budget, the strong presumption is that its separate corporate status should be respected, and that it and the State forming it should not have to bear each other’s liabilities. It will in the Board’s view take quite extreme circumstances to displace this presumption. The presumption will be displaced if in fact the entity has, despite its juridical personality, no effective separate existence. But for the two to be assimilated generally, an examination of the relevant constitutional arrangements, as applied in practice, as well as of the State’s control exercised over the entity and of the entity’s activities and functions would have to justify the conclusion that the affairs of the entity and the State were so closely intertwined and confused that the entity could not properly be regarded for any significant purpose as distinct from the State and vice versa. The assets which are … protected by State immunity should be the same as those against which the State’s liabilities can be enforced … 30. There may also be particular circumstances in which the state has so interfered with or behaved towards a stateowned entity that it would be appropriate to look through or past the entity to the state, lifting the veil of incorporation. But any remedy should in that event be tailored to meet the particular circumstances and need. … ”

“… There seems no doubt that Congress has established a system of federal courts of which each one has jurisdiction, in the terms defined by the various longarm statutes of the foreign states (where no specific federal statute provides otherwise) to exercise in personam jurisdiction over any person or corporation present in any state of the Union”

“5. Personal injuries and Damage to Property A State is not immune as respect proceedings in respect of – (a). Death or Personal Injury or (b). Damage to or loss of tangible property, caused by an act or omission in the United Kingdom. ”

“A foreign State shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign State for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee or agent of such foreign State while acting within the scope of his or her office, employment, or agency.”

“… the majority of US Court decisions to have addressed the issue…. have read the statute more narrowly, to require that the “entire tort” (including the causative acts) must have occurred in the United States”

“The legislative purpose of this additional exception was clear. An increasing incidence of terrorist attacks around the world had targeted the United States and its property, personnel and citizens, resulting in a growing number of law suits brought by the US victims of these terrorist attacks (and their survivors) to recover damages for the resultant loss of life, injury, pain and suffering, etc. Most such suits had been brought under the non-commercial tort exception, described above, but as previously discussed most courts had limited the reach of that exception, so that many such suits failed on jurisdictional grounds … The state sponsored terrorism exception was enacted specifically to provide a firm jurisdictional basis for lawsuits brought by the victims of certain terrorist acts seeking specifically monetary damages that did not fall within the ambit of other FSIA exceptions as they had been interpreted.”

“118. The natural meaning of section 31(1) is that it requires recognition and enforcement of a foreign judgment against a foreign State (other than the United Kingdom or the State in which foreign proceedings were brought) if (a) the normal conditions for recognition and enforcement of judgments are fulfilled, and (b) mutatis mutandis the foreign State would not have been immune if the foreign proceedings had been brought in the United Kingdom. That meaning is the one which text writers have propounded since the section was enacted: Collins, The Civil Jurisdiction and Judgments Act 1982 (1983), p 140; Dicey & Morris, The Conflict of Laws, 11th ed (1987), pp 454455 (now Dicey, Morris & Collins, 14th ed (2006), para 14095); Cheshire, North & Fawcett, Private International Law, 14th ed (2008), pp 588-589.”

“…In any case, the foreign judgment is only recognised and enforced here if the court giving it would have had jurisdiction applying rules corresponding to those applicable in the UK. The state concerned is not subject to a lighter or different regime.”

“The various national State Immunity statutes, all bar one of which The terrorist exception is the exception referred to in footnote 9 of the text. The footnote also mentions that Canada requires only that the harm the subject of the claim occurred within the territory. includes an exception to the same effect As Article 11 of the Basle convention – see below , similarly premise the exercise of jurisdiction over the foreign state not on the character of the impugned act but solely on some nexus with the territory of the forum state, usually in the form of the place of the commission of the act, or of the failure to perform, the relevant act.”

“31. To identify a rule of customary international law, it is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris): see Conclusions 8 and 9 of the International Law Commission’s Draft Conclusions on Identification of Customary International Law (2016) [A/71/10]. There has never been any clearly defined rule about what degree of consensus is required. The editors of Brownlie’s Principles of Public International Law, 8th ed (2012), 24, suggest that “complete uniformity of practice is not required, but substantial uniformity is”

“The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.”

“…Thirdly, the adoption of the restrictive doctrine has not proceeded by accumulating exceptions to the absolute doctrine. What has happened is that governments, courts and writers of authority have been prompted by the widening scope of state operations and their extension into commerce and industry, to re-examine the true basis of a doctrine originally formulated at a time when states by and large confined their operations in other countries to the classic exercises of sovereign authority. The true basis of the doctrine was and is the equality of sovereigns, and that never did warrant immunity extending beyond what sovereigns did in their capacity as such. As Lord Wilberforce put it in the I Congreso del Partido [1983] 1 AC 244, 262, “It is necessary to start from first principle. The basis upon which one state is considered to be immune from the territorial jurisdiction of the courts of another state is that of ‘par in parem’, which effectively means that the sovereign or governmental acts of one state are not matters upon which the courts of other states will adjudicate.””

“As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune”

“63. The result is that the State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter. There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character.”

“Except in so far as it affects claims for damages for torture, the applicant does not deny that the above provision (state immunity for personal injury damages unless caused in the territory of the forum state) reflects a generally accepted rule of international law.”

“Does the derogation apply only to acts of jure gestionis or indistinctly to jure gestionis and jure imperii acts?”

“In the absence of evidence to the contrary, the Court considers that the derogation applies to all categories of States acts”

“…in exequatur proceedings the domestic courts are not called upon to decide anew on the merits of the foreign court’s decision. All they have to do is examine whether the conditions for granting execution have been met.”

“At common law, a Sovereign State could not be sued at all against its will in the Courts of this country. The 1978 Act, by the exceptions therein set out, makes substantial inroads into this principle. It is inconceivable, it seems to me, that the draftsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification.”

“It is inconceivable that Parliament legislated for the loss of State Immunity when the Acts causing that person injury are committed in the United Kingdom without having borne in mind its clearest international obligations to recognise the fundamental freedom from torture which everyone should enjoy everywhere. Unfortunately the Act is as plain as plain can be. A foreign state enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that State Immunity is afforded in respect of acts of torture committed outside this jurisdiction.”

“Therein lies the weakness of the Plaintiff’s case. Connivance will not be sufficient to establish vicarious responsibility. In my judgment, the Plaintiff has failed to satisfy me that he would prove this part of his case, and accordingly, he fails to satisfy me that the Government are exempt from immunity.”

“he also alleged that, including death threats, from agents of the Government of Kuwait, in particular, emanating from the Embassy of Kuwait in London.”

“[37] …the defendant will be liable as a joint tortfeasor if (i) he has assisted the commission of the tort by another person, (ii) pursuant to a common design with that person, (iii) to do an act which is, or turns out to be, tortious. [38] … He is liable for the tortious act of the primary actor, because by reason of the assistance the law treats him as party to it …”

“This makes it clear that there is only one tort. If that tort was committed by the primary actor in Cyprus, the fact that a person jointly liable for the commission of the tort was elsewhere when he gave the relevant assistance makes no difference to the fact that the tort was committed in Cyprus.” 144. In DPP v Doot [1973] AC 807 the English Courts were held to have jurisdiction to try people for conspiracy when the conspiracy to import drugs had been formed abroad. Lord Pearson at page 827D said: “It is not necessary that they should all be present in England. One of them, acting on his own behalf as agent for the others, has been performing their agreement, with their consent and authority in England. In such a case the conspiracy has been committed by all of them in England. cf the case of Morton–Norwich Products Inc v Intercen Limited[1976] FSPR 513 (Ch D) at page 524 in relation to a conspiracy or common design to commit a patent infringement. ”

“A contracting state cannot claim immunity from the jurisdiction of a court of another contracting state in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the state of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.”

“For the most part, it is consistent with the United Kingdom Act, which indeed was one of the models used by the draftsman.”

“However, the universally prevailing custom in international law requires that all states, quite wisely, agree on the principle of their reciprocal immunity, in such a manner that any state should be forbidden to interfere in the exercise of another state’s public authority, including its stately authority of rendering justice……. …….. since the acts attributed to it are …….acts that fall within its central sphere of sovereignty (acta jure imperii) and not management..”

“..the only relevant place is that where the causal fact directly produced an effect on the victim. In the case in question, the illicit conduct and the initial events, namely capturing the hostage and depriving him of his freedom, took place in Lebanon…”

“..to the extent that the under-examination condition finds its justification in establishing a close link between the territory of the forum State and the activity of the State invoking jurisdictional immunity, the condition cannot be interpreted otherwise than as requiring the activity of the potential beneficiary of jurisdictional immunity be located in the territory of the forum State so that the derogation from jurisdictional immunity can be effective.”

“To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D would be jointly liable with P if they combine to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort …”

“it is clear that SSUK cannot incur liability as a joint tortfeasor simply by assisting its activities in general. If they are to incur such liability at all, it must be on the ground that they have specifically assisted its tortious activities …”

“(1) A state is not immune as respects proceedings relating to- (a) a commercial transaction entered into by the state; or (b) an obligation of the state which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom. (2) … (3) In this section “commercial transaction” means- (a) any contract for the supply of goods or services (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a state enters or in which it engages otherwise than in the exercise of sovereign authority; But neither paragraph of subsection (1) above applies to a contract of employment between a state and an individual.” (a) a commercial transaction entered into by the state; or (b) an obligation of the state which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom. (2) … (3) In this section “commercial transaction” means- (a) any contract for the supply of goods or services (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a state enters or in which it engages otherwise than in the exercise of sovereign authority; But neither paragraph of subsection (1) above applies to a contract of employment between a state and an individual.”

“In my opinion, section 3(1)(a) is not satisfied because although the contract between the University and the United States Government is a contract for the supply of services and therefore a commercial contract within the meaning of the section by virtue of section 3(3)(a), the present proceedings do not relate to that contract. They are not about the contract, but about the memorandum. The fact that the memorandum complains of the quality of the services supplied under the contract means that the memorandum relates to the contract … But it does not follow that the proceedings relate to the contract, which is what section 3(1)(a) requires. In my opinion the words “proceedings relating to” a transaction refer to claims arising out of the transaction, usually contractual claims, and not tortious claims arising independently of the transaction but in the course of its performance. For the same reason I doubt that the writing and publication of the memorandum constituted “activity” of an official character in which the United States engaged through the medium of the Defendant, so as to bring the proceedings within section 3(3)(c). The context strongly suggest a commercial relationship akin to but falling short of contract (perhaps because it was gratuitous) rather than a unilateral tortious act …”

“(1). Any writ or other documents required to be served for instituting proceedings against a state shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.” 189. Section 12(5) of the 1978 Act provides: “A copy of any judgment given against a state in default of appearance shall be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of that state and any time for applying to have the judgment set aside … shall begin to run 2 months after the date on which the copy of the judgment is received at the ministry.”

“1… (c) in the absence of such a convention or special arrangement: (i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned, or (ii) … 2. Service of process referred to in paragraph 1 (c) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs”

“This convention is not in force, and has not been ratified by the United Kingdom. But, as Aikens J observed in AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1WLR 1420, 1446, para 80: “its existence and adoption by the UN after the long and careful work of the International Law Commission and the UN ad hoc committee, powerfully demonstrate international thinking on the point.”” (c) in the absence of such a convention or special arrangement: (i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned, or (ii) … “This convention is not in force, and has not been ratified by the United Kingdom. But, as Aikens J observed in AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1WLR 1420, 1446, para 80: “its existence and adoption by the UN after the long and careful work of the International Law Commission and the UN ad hoc committee, powerfully demonstrate international thinking on the point.””

“(1) when Particulars of Claim are served on a Defendant … they must be accompanied by – (a) A form for defending the claim; (b) A form for admitting the claim and (c) A form for acknowledging service.” (These three forms constitute the so-called “Response Pack”). (a) A form for defending the claim; (b) A form for admitting the claim and (c) A form for acknowledging service.”

“It was a very short visit and because of pressure of business, there was limited opportunity to hand over documents during the meeting. Therefore at the end of the meeting on 10 February, while the UK delegation was speaking to the Iranian delegation outside the Iranian MFA building (but within the Iranian MFA compound), Mr Chamberlain explained to the Iranian officials that the UK had some documents to hand over. He then handed the documents over to his counterpart Mr Sahebi, explaining that they were legal papers that needed to be 218. served on the Iranian MFA. Mr Sahebi accepted the documents and put them in his vehicle.”

“The Iran Department of the Foreign and Commonwealth Office of the United Kingdom and Northern Ireland presents its compliments to the Ministry of Foreign Affairs of the Islamic Republic of Iran and has the honour to transmit by way of service the enclosed documents regarding the matter Heiser et al and other cases v Iran, this being a court proceeding instituted in the United Kingdom.” “The Iran Department of the Foreign and Commonwealth Office of the United Kingdom and Northern Ireland presents its compliments to the Ministry of Foreign Affairs of the Islamic Republic of Iran and has the honour to transmit by way of service the enclosed documents regarding the matter Heiser et al and other cases v Iran, this being a court proceeding instituted in the United Kingdom.”

“8….this is a very late application and to allow evidence in would be a relatively exceptional course which the court is unlikely to take without good reason. 9. In considering how to exercise my discretion I would regard the following considerations being of particular relevance; (1) the reason why the evidence was not put forward before, (2) the significance of the evidence, (3) the prejudice to the applicant if the application is refused, (4) the prejudice to the other parties if the application is allowed and (5) the need to do justice to all the parties having regard to the overriding objective.”

“7… In my opinion it is a serviceable test, provided that it is correctly understood. The reference to “a much better argument on the material available” is not a reversion to the civil burden of proof… what is meant is (i) that the Claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it… This test was approved by the Supreme Court in Goldman Sachs International v Novo Banco SA [2018] UKSC 34. See also the consideration in the case of Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ10, especially at [75]-[80]. ”

“the failure may have occasioned the defendant no meaningful prejudice because it is established by the evidence that the claim form was undoubtedly served at a specific time and on a specific date….”

“3. I first tried to deliver the documents to the MFA on 2 September 2015 under cover of a formal noteverbale from the British Embassy. This note asked the MFA to forward the documents to the Ministry of Information and Justice. British Embassy. This note asked the MFA to forward the documents to the Ministry of Information and Justice. 4. The MFA accepts notes verbales at a kiosk. When I went there, the officer on the door asked to read the note verbale through a glass screen. When he saw that it involved legal papers, he made a telephone call to a colleague - Mr Hadi from the Protocol Department of the MFA – and said that the MFA refused to accept the note, and that I should instead contact the MFA’s Western European Department. I attempted to leave the papers in the kiosk, but the officer made clear that this would not be possible….. 9. The papers relating to this case have not been in the possession of the Ministry of Foreign Affairs at any time”

“[19]… the Act contains no definition of the words ‘transmitted’ or ‘received’ in section 12, … It seems likely that the word ‘received’ is intended, at least, to indicate that it is not sufficient merely for documents to be transmitted in the sense of being dispatched: they must actually reach the relevant Ministry. Conversely, section 12 does not in my view require the documents to be accepted upon delivery: otherwise the recipient could evade service simply by declining to accept delivery….. 22. The Claimants also referred to two of the numerous definitions of the word “receive” in the Oxford English Dictionary, which include at 16a and b: “To have (a thing) given or handed to oneself …” and “To get (a letter, etc.) brought to oneself or delivered into one’s hands” . 23. In the present case, the documents were not merely transmitted to the Syrian MFA but actually arrived within the Ministry’s premises. Further, it appears from the FCO’s letter quoted in § 16.iv) above that the consignee knew the identity of the sender, but refused to take the package and instead insisted on its removal from the premises. In these circumstances, there was no further step that could have been taken in order to effect service, and in my judgment no further step which needed to be taken. The documents had been transmitted to and received at the Syrian MFA, notwithstanding that the Ministry’s representative insisted on their immediate removal. I do not consider that the reception consignee’s refusal to take the package into his hands prevented it from having been received at the Ministry for the purposes of section 12, and I conclude that service under that section was complete when DHL proffered the package to the consignee.”

“transmission must be given a meaning which is consonant with modern communication technology and commercial practice. I would hold that “transmission” means the process from the moment that the document is dispatched by the sender to a time when the complete document has been received into the recipient’s fax equipment.”

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” … … Here, all four plaintiffs may rely upon theories of intentional infliction of emotional distress to recover under s.1605A. There can be no dispute that defendants, in working with Saudi Hezbollah to plan and execute the attack, sought to cause severe emotional distress to Air Force personnel living in Building 131 and the surrounding area, and thus, consistent with the special master’s findings … the three plaintiffs who were stationed at Khobar Towers at the time of the explosion certainly were afflicted with emotional distress. As for the fourth plaintiff – Luz Southard – the evidence demonstrates that she … ... was distraught and inconsolable as she waited anxiously for news of her son’s condition follow the attack ... … Based on this evidence, plaintiffs have set forth valid claims based on a theory of intentional infliction of emotional distress.”