Al- Sadi v Al- Sadi

Permission to serve proceedings out of the jurisdiction must be assessed by reference to the claim properly advanced when permission was sought. A claimant cannot ordinarily defeat a jurisdiction challenge by introducing a new cause of action or new legal basis through later amendments. The applicant must establish: a jurisdictional gateway, a claim with a reasonable prospect of success, and that England and Wales is the proper place for the proceedings. The gateway standard is a good arguable case, meaning that the claimant has the better, or much the better, argument. Pleadings are primary in identifying the legal basis of the claim. Later evidence may illuminate the position, but cannot replace the pleaded case with a materially different claim.

The claimants, members of the first family of the deceased, brought proceedings concerning the distribution of his estate and assets held by Jender Stiftung, a Liechtenstein foundation. Jender challenged an order permitting service out of the jurisdiction. The claimants also applied to join the executors, amend their pleadings and serve the amended claim on Jender.

The original claim alleged that assets transferred to a foundation were held by Jender on trust for the claimants. The later amendments relied on Swiss law, Sharia law as the law of domicile, and assignment. The central issues were whether the original claim satisfied the requirements for service out and whether the amended legal bases could be relied on in resisting Jender’s jurisdictional challenge.

1. Requirements for service out. Under Civil Procedure Rules 1998 rules 6.36 and 6.37, an applicant must establish a jurisdictional gateway, that the claim has a reasonable prospect of success, and that England and Wales is the proper place for the claim. The jurisdictional question is assessed on the good arguable case standard: the claimant must have the better, or much the better, of the argument. ([20]-[22])
2. Original pleaded case. The reference to the Sharia succession certificate did not plead that the deceased was domiciled in Kuwait. The original claim was founded on the Letter Agreement and did not disclose a successful claim against Jender. Jender was not a party to that agreement, and any proprietary claim to estate assets would belong to the executors rather than the claimants. ([30]-[33])
3. Later amendments. The Parker v Schuller principle, reaffirmed in Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc and subsequent authorities, prevents a claimant who obtained permission to serve out from resisting a jurisdiction challenge by pleading a new cause of action. The principle protects both the court’s ability to assess the true claim and the foreign defendant’s ability to decide whether to submit, challenge jurisdiction or ignore the order. ([34]-[40])
4. The proposed reliance on Swiss law, Sharia law as the lex domicilii, and assignment introduced new legal bases, new links in the alleged liability and substantial new factual allegations. They therefore amounted to new causes of action and could not retrospectively validate the order for service out. ([41]-[44])
5. The order permitting service out was set aside. The proceedings were to be transferred to the Chancery Division. The application to serve the re-amended pleadings was left for determination by a Judge or Master of that Division, who should consider the merits and forum conveniens issues in light of the case as then advanced. ([45]-[46])

First-instance decision. No appellate history is stated in the judgment.