Mashate v Kaguta

A stay imposed after an inter partes hearing remains effective until lifted by a proper application on notice. A later order extending claim-form validity or permitting service out does not lift it by implication where it does not mention the stay. An application for service out must identify the relied-on ground under Practice Direction 6B, address reasonable prospects of success, and provide material showing that England and Wales is the proper forum. Serious non-compliance may invalidate the permission and consequential default judgment. Permission to appeal an extended civil restraint order may be arguable where it was imposed without a proper application and relied on applications the judge had said required no further consideration.

Dr Jesse Mashate brought proceedings against Yoweri Museveni Kaguta, the President of Uganda. After earlier procedural orders, including the setting aside of a default judgment and the imposition of a stay, Master Leslie extended the claim-form validity, permitted amendment and service out of the jurisdiction, and a further default judgment was entered.

HHJ Seymour later set aside the permission to serve out and the default judgment, and imposed an extended civil restraint order. Sir Scott Baker refused permission to appeal on paper. The Court of Appeal considered whether the stay had been lifted by implication, whether the service-out order was seriously irregular, and whether the extended civil restraint order was arguably appealable.

Tomlinson LJ allowed the renewed application only in part.

1. Stay of proceedings. The stay imposed by Blair J after an inter partes hearing remained valid. It applied to the action begun by the original claim form and to the action continued after the claim-form validity was extended. Such a stay could be lifted only on a proper application made on notice to the defendant. Master Leslie’s later order made no reference to the stay and did not lift it by necessary implication. The challenge to HHJ Seymour’s order on this issue therefore had no reasonable prospect of success.
2. Service out of the jurisdiction. The application also failed to comply with Civil Procedure Rules 1998 rule 6.37. It did not identify the relied-on ground under Practice Direction 6B, contain the required statement as to reasonable prospects of success, or provide material showing that England and Wales was the proper place for the claim. This was a serious irregularity because the requirements operate as a filter against insubstantial and vexatious claims. Further, under section 12(1) of the State Immunity Act 1978, proceedings served on a state had to be transmitted through the Foreign and Commonwealth Office to the state’s Ministry of Foreign Affairs. Master Leslie had no power to authorise another method of service.
3. Extended civil restraint order. Permission to appeal was granted on this issue. The order appeared to have been made without an application before the judge. HHJ Seymour had also previously said that the two applications on which he relied required no further consideration. That gave rise to an arguable ground of appeal.
4. Disposition. Permission to appeal was refused concerning the service-out permission and default judgment, but granted solely concerning the extended civil restraint order.

• Court of Appeal (Civil Division) On 16 May 2012, the renewed application for permission to appeal was allowed in part. Permission was refused concerning the setting aside of permission to serve out and the default judgment, but granted concerning the extended civil restraint order: [2012] EWCA Civ 761.
• High Court, Queen’s Bench Division On 21 October 2011, HHJ Seymour set aside Master Leslie’s permission to serve the claim out of the jurisdiction and the consequential default judgment, and imposed an extended civil restraint order.