Dar Al Arkan Real Estate Development Co v Bader & Ors

A court may have jurisdiction to commit a director or officer for a company’s contempt even where the director is outside the jurisdiction. The power in CPR 81.4(3) is not confined to domestic directors. Committal proceedings for breach of an order engage both private and public interests. A committal application is a claim form for the purposes of service-out provisions, and the alleged contemnor may be a necessary or proper party. Permission to serve out requires a real issue, reasonable prospects of success and England and Wales to be the proper forum. The court may grant permission retrospectively. The judgment leaves open whether service may instead be dispensed with where service out is unavailable.

Kroll applied for committal proceedings against the claimants for breach of a preservation undertaking and a drives delivery order. It also sought imprisonment of Sheikh Abdullatif, a director and officer of the claimant companies, who was domiciled and resident in Saudi Arabia. He challenged the court’s jurisdiction and the validity of service.

The court considered the extra-territorial scope of CPR 81.4(3), jurisdiction under article 22(5) of the Brussels Regulation, service out under CPR 6.36 and Practice Direction 6B, and whether service could be dispensed with under CPR 81.10(5).

1. Jurisdiction under CPR 81.4(3). The rule permits a committal order against a director or officer for a company’s contempt. Its application is not restricted to directors or officers within England and Wales. The public interest in securing compliance with court orders places this case closer to In re Seagull Manufacturing Co Ltd than to Masri v Consolidated Contractors International (UK) Ltd (No 4), although practical enforceability remains relevant.
2. Brussels Regulation. Article 22(5) concerns proceedings for enforcement of judgments, and enforcement of an undertaking embodied in a court order falls within that concept. However, binding authority in Choudhary v Bhattar required the conclusion that article 22 does not confer jurisdiction over a person domiciled outside a Community jurisdiction. The court considered that decision per incuriam, but was not entitled to depart from it at first instance.
3. Service out. A committal application issued under CPR Part 23 is a claim form because it commences proceedings. There was a real issue between Kroll and the claimants, and Sheikh Abdullatif was both a necessary and a proper party because imprisonment was sought against him as their director. Kroll showed a reasonable prospect of establishing the alleged contempt and of proving that he knowingly and wilfully caused the breaches. England and Wales was the appropriate forum because the alleged breaches concerned orders made by this court and the committal proceedings against the companies would be heard here.
4. The court therefore granted permission for service in Saudi Arabia, with retrospective effect, and declined to discharge the earlier alternative-service order. It did not need to determine whether service could be dispensed with where service out was unavailable, although it indicated that, on the facts, dispensing with service would otherwise have been just.

First-instance decision. The judgment itself does not state any subsequent appellate decision.