Harty v Sabre International Security Ltd & Anor

On an application under CPR Part 11 to set aside permission to serve proceedings out of the jurisdiction, the court must determine whether the claim passes the gateway in CPR Part 6 and, if so, whether England and Wales is the proper forum. A claim has reasonable prospects where the evidence discloses an arguable negligence case and contractual waiver provisions do not clearly exclude it. Where the natural forum is unavailable because the defendant is immune from suit there, justice may require the English court to accept jurisdiction under the second stage of Spiliada Maritime Corporation v Consulex Ltd [1987] 1 AC 460. Immunity under CPA Order 17 was treated as jurisdictional and incapable of waiver in the circumstances considered.

The claimant, injured in a road accident in Iraq while working in a security convoy, brought negligence proceedings against two related companies. Master Kay had granted permission ex parte to serve the claim form out of the jurisdiction. The defendants applied under CPR Part 11 to set aside that order and sought a declaration that the English court had no jurisdiction, contending that the claim belonged in Iraq.

The central issues were which defendant had contracted with the relevant American organisation, organised and supervised the convoy, and enjoyed immunity from suit in Iraq under CPA Order 17; whether the claim had reasonable prospects of success; whether immunity could be waived or had been retrospectively abolished; and whether Iraq was nevertheless the appropriate forum.

1. Application refused. The court declined to set aside permission to serve out and refused the defendants’ application for a stay.
2. The claim passed the CPR Part 6 gateway. Damage was treated as sustained within the jurisdiction, and the claim had reasonable prospects of success. The contractual waiver and governing-law provisions did not prevent a negligence claim where Iraqi law did not permit exclusion of liability for unlawful acts.
3. The claimant was working for the First Defendant, the First Defendant organised and supervised the convoy, and it was party to the IRD contract. The court preferred the claimant’s evidence and submissions, relying particularly on the pre-action correspondence, the development of the defendants’ evidence, the licensing material, and the ambiguity in the use of the name Sabre International Security.
4. Under CPA Order 17, the First Defendant, as a non-Iraqi company supplying security services, fell within the relevant contractor or private-security-company provisions and enjoyed immunity from Iraqi legal process for acts performed pursuant to the relevant contract. The Second Defendant, being Iraqi-registered, did not fall within those definitions. The immunity was jurisdictional rather than merely a defence and could not be waived by the proposed undertaking. The court was also unpersuaded that repeal of CPA Order 17 retrospectively removed immunity for acts occurring while it was in force.
5. The court applied the principles in Spiliada Maritime Corporation v Consulex Ltd [1987] 1 AC 460. Iraq was prima facie the natural forum, but justice required England and Wales to retain the case because the claimant could not obtain justice in Iraq against the immune First Defendant. The court therefore accepted jurisdiction. The application was dismissed in relation to both defendants.

First-instance decision. The judgment records that Master Kay had granted permission ex parte to serve the claim form out of the jurisdiction, but this was not an appeal from that order. The defendants’ application under CPR Part 11 was refused.