Winkler & Anor v Shamoon & Ors

A defendant does not submit to jurisdiction merely by filing an acknowledgment of service stating an intention to challenge jurisdiction, or by taking procedural steps expressly undertaken for that challenge. Submission requires an unequivocal renunciation of the jurisdictional objection.

The “wills and succession” exclusion in the Brussels Regulation is determined by the substance and principal subject matter of the claim. It covers claims concerning succession to a deceased person’s estate, including the sharing out of estate assets and claims affecting beneficiaries’ shares. Where the estate is administered abroad and the administrator is not joined, the English court may lack jurisdiction and the foreign forum may be more appropriate.

The claimants sought declarations and consequential orders concerning shares in two BVI companies forming part of the estate of Sami Shamoon. They also claimed, alternatively, damages from Mr Grumbach for failing to complete transfers.

Mrs Angela and Ms Alexandra Shamoon challenged jurisdiction under CPR Part 11, relying on the Brussels Regulation, the Lugano II Convention, succession, domicile and forum conveniens. The claimants sought permission to serve Mrs Shamoon out of the jurisdiction and relied on proprietary and equitable arguments concerning the shares.

The central issues were whether the defendants had submitted to jurisdiction, whether the claims fell within the succession exclusion, whether England was the natural and convenient forum, and whether there was a serious issue to be tried on the proposed claims against Ms Shamoon.

1. Submission to jurisdiction. The defendants had not submitted to the English jurisdiction. Filing acknowledgments of service which expressly reserved the jurisdictional objection did not amount to entering an appearance under Article 24 of the Brussels Regulation. CPR Part 11 could not be construed as compelling a defendant to submit in order to challenge jurisdiction. The procedural strike-out application, application to set aside default judgment and request for further information were all expressly made without prejudice to the jurisdictional challenge. They therefore did not constitute an unequivocal waiver.
2. Succession. The court considered the substance and principal subject matter of the claim. The claimants were effectively seeking to succeed to assets in the deceased’s estate and to displace the residuary beneficiaries’ entitlement under the will. The claims were brought while the Israeli administration and sharing out of the estate remained incomplete. Their characterisation as BVI-law proprietary, estoppel or negligence claims did not alter their substantive nature. The claims therefore fell within the “wills and succession” exclusion in Article 1(2)(a) of the Brussels Regulation and the equivalent provision of the Lugano II Convention.
3. Forum. Israel was available and clearly the more appropriate forum. The estate was administered there, the administrator’s proceedings were pending there, the principal witnesses and relevant events were there, and there was a risk of inconsistent judgments. Applying Spiliada Maritime Corporation v Consulex Ltd [1987] AC 460, England was not the natural and convenient forum.
4. Domicile. Although unnecessary to the result, Mrs Shamoon was not domiciled in the UK when the claim was issued and served. The evidence showed a distinct break with the UK by 2009, substantially more time spent in Israel, permanent Israeli residence and Israeli taxation. Ownership or occasional use of London property did not establish residence.
5. Protective application and merits. The proposed claims against Ms Alexandra Shamoon did not raise a real issue to be tried. There was no serious case that Mr Shamoon had completed the share transfers, made an express declaration of trust, or that Ms Shamoon had made relevant representations supported by substantial detrimental reliance. Section 54 of the BVI Business Companies Act 2004 required a written instrument of transfer, and Mr Shamoon had expressly instructed that shares were not to be transferred without written and executed consent.
6. Mr Grumbach. The English court had no jurisdiction over the claim against him. There was no English anchor defendant and the claims fell outside the Lugano II Convention. Even if Article 6(1) were available, separate proceedings would not create a realistic risk of irreconcilable judgments.
7. The jurisdiction applications succeeded and the English court declined jurisdiction over all defendants.