Ali Meerza & Ors v Al Baho & Ors

A defendant who has submitted to the jurisdiction by conduct cannot later raise a jurisdiction objection merely because another forum has become tactically attractive. Submission is assessed objectively: the question is whether the conduct can only be explained as acceptance of the court’s jurisdiction.

The court has a general discretion under the Civil Procedure Rules 1998 and the overriding objective to permit amendments curing procedural or technical defects where justice requires. The absence of an administrator’s grant at commencement does not inevitably require the proceedings to be struck out where amendment is just, prejudice is absent and the substantive dispute can proceed.

The threshold for an interim payment is lower than that for summary judgment, but the court must be satisfied that the claimant will obtain judgment for a substantial monetary amount at trial.

The judgment concerned a case management conference and multiple applications in consolidated proceedings arising from the sale of two London flats forming part of, or held through companies associated with, the estate of Sheikh Salem.

The court considered challenges to Sheikha Hind’s title to sue before she obtained letters of administration, a late challenge to the English jurisdiction in circumstances involving parallel Kuwaiti proceedings, applications under Parts 12 and 24, and an application for interim payments. The central issues were whether earlier proceedings were nullities, whether they could be cured by amendment, whether the jurisdiction challenge had been waived, and whether the evidence justified judgment or interim relief.

1. Jurisdiction. The application to challenge jurisdiction and seek a stay was dismissed. The defendant had acknowledged and defended the earlier proceedings without reserving jurisdiction, participated in the proceedings, responded to the Part 24 application and raised the issue only at the hearing. That conduct amounted to submission. Under CPR 11, submission is assessed objectively. The relevant question is whether the conduct is capable of any explanation other than acceptance that the English court should determine the claim. The late application was also an abuse of process and was tactical.
2. Administrator’s grant and amendment. The court accepted the general principle in Millburn-Snell v Evans that proceedings commenced by a person purporting to act as administrator without a grant may be a nullity. However, the court held that the present proceedings should not be struck out. The defendants had acquiesced for a substantial period, substantial costs could be carried into the later action, and there was no material prejudice. Under CPR 3 and the overriding objective, the court had discretion to permit amendment to reflect the later grant and perfect the claim where justice required.
3. The court distinguished the strict approach in the administrator cases from the modern CPR approach to amendments reflected in Maridrive and Oil Services v CAN Insurance Co (Europe) Ltd and Midtown Ltd v City of London Real Property Co Ltd. Technical objections should not prevent a merits-based determination where the claimant could otherwise commence fresh proceedings and the amendment causes no irremediable prejudice.
4. Interim payments. The claimant did not seek final summary judgment for the disputed £300,000 because that would affect the alternative bribe and fiduciary-duty claims. The court held that CPR 25.7(c) imposed a lower threshold than summary judgment and was satisfied in relation to the £300,000 and two further unexplained sums of £47,500 and £88,339. The claims and issues concerning breach of fiduciary duty, bribery and the ultimate accounting remained for trial.
5. BC Penthouse Ltd. The company had been validly served, knew of the proceedings and had failed to acknowledge service or defend. Judgment was therefore available under CPR 12, alternatively under CPR 24. The net proceeds held by solicitors were ordered to be paid to the claimant for the benefit of the estate, subject to the agreed form of order and further directions.