Hamed v Stevens

The common-law Mocambique exclusionary rule is narrow. It applies where proceedings are founded on a disputed claim to title to, or possession of, foreign immovable property. A contractual-performance issue, or a question about past title arising incidentally in a restitution claim, does not engage the rule where the relief is personal and cannot affect current title. Independently, the in personam exception permits enforcement of contractual or equitable obligations relating to foreign land between parties amenable to the English jurisdiction. The same reasoning extends to repayment of a contractual payment after failure of consideration. Foreign law may govern the personal rights, but that is ordinarily a choice-of-law issue rather than a bar to jurisdiction.

Mr Stevens claimed repayment from Mr Hamed of US $300,000 paid towards the proposed purchase of an apartment in Egypt. The claim was framed as money had and received after the proposed sale allegedly failed. Mr Hamed challenged the English court’s jurisdiction, arguing that the dispute was principally concerned with ownership of foreign immovable property.

HHJ Purle QC dismissed the jurisdiction challenge and refused a stay on forum non conveniens grounds. Mr Hamed appealed only on jurisdiction. The central issue was whether determining contractual performance, including whether the transaction had completed, brought the proceedings within the common-law exclusionary rule concerning foreign land.

The appeal was dismissed.

1. The common-law exclusionary rule applies only where the proceedings directly have as their object the determination of title to, or the right to possession of, immovable property abroad. A court may investigate foreign title incidentally when resolving other issues. The court applied the principles stated in British South Africa Co v Companhia de Mocambique [1893] AC 602 and St Pierre v South American Stores (Gath & Chaves Ld.) [1936] 1 KB 382.
2. The statutory modification in section 30 of the Civil Jurisdiction and Judgments Act 1982 concerns trespass and other torts affecting foreign immovable property. The court treated observations in Re Polly Peck (No. 2) [1998] 3 All ER 812 and Lucasfilm Limited v Ainsworth [2012] 1 AC 208 as requiring consideration in that statutory and tort context, rather than as governing every aspect of the foreign-land rule.
3. If Mr Hamed relied on completion of the transaction, the court might have to decide an issue of contractual performance. That would not make the proceedings proceedings for determining foreign title. Any title issue would be incidental. The apartment was said to be owned by a subsequent purchaser, and judgment would provide only a personal remedy for repayment without affecting title or possession.
4. In any event, the claim fell within the established in personam exception. Following Pattni v Ali [2007] 2 AC 85, the English court may enforce contractual or equitable obligations concerning foreign land between parties amenable to its jurisdiction. The court treated restitution for repayment of a contractual payment following failure of consideration as an even stronger case. The claim depended on contract and restitution, not on establishing or enforcing a right in Egyptian land. The possibility that Egyptian law governed the personal rights was a choice-of-law issue and did not bar jurisdiction.
5. The Respondent’s Notice point concerning domicile, Article 2 and Owusu v Jackson [2005] QB 801 was not argued and was left for decision on another occasion.

• Court of Appeal (Civil Division) ([2013] EWCA Civ 911): dismissed Mr Hamed’s appeal on the jurisdiction issue.
• High Court of Justice, Birmingham District Registry: HHJ Purle QC dismissed the application challenging jurisdiction and seeking a stay on forum non conveniens grounds by order dated 8 July 2012.