Certain Underwriters At Lloyds London v Syrian Arab Republic & Ors

For recognition and enforcement at common law of a foreign judgment against a State, the foreign court must have had jurisdiction under English private international law. Submission may be inferred from the whole course of conduct. An appeal invoking the foreign court’s merits jurisdiction, without reserving a state-immunity or jurisdiction objection, may constitute submission even if the defendant took no part at first instance. A later jurisdiction objection cannot undo that submission. Under section 12 of the State Immunity Act 1978, service is complete when proceedings reach the foreign State’s Ministry of Foreign Affairs; acceptance, opening or reading is not required. In truly exceptional circumstances, service may alternatively be dispensed with. The court may award simple interest under section 35A of the Senior Courts Act, but not interest on post-judgment interest absent a sufficient basis.

The insurers sought under CPR Part 8 to recognise and enforce a final judgment of the United States District Court for the District of Columbia, entered against Syria, Syrian Air Force Intelligence and General Muhammed Al Khuli. The judgment arose from losses connected with the hijacking of EgyptAir flight 648. The defendants did not appear in the English proceedings.

The central issues were whether service complied with section 12 of the State Immunity Act 1978 or should be dispensed with, and whether the defendants had submitted to the jurisdiction of the United States courts by appealing and taking other procedural steps. The court also determined interest and costs.

Judgment for the claimants. The court proceeded in the defendants’ absence because they had received sufficient notice, had ample opportunity to attend, and there was no realistic prospect that an adjournment would secure their participation.

1. Section 12 of the State Immunity Act 1978 imposes mandatory requirements for service on a State. Following Kuwait Airways Corp v Iraqi Airways Co (No.2) [1995] 1 W.L.R. 1147, the court held that service was complete when DHL brought the documents to the Syrian Ministry of Foreign Affairs and proffered them to its representative. Acceptance, opening or reading was unnecessary. Refusal to take the package did not prevent receipt at the Ministry.
2. Alternatively, service could be dispensed with under CPR 6.16 and 6.28. The case was truly exceptional because diplomatic personnel had withdrawn, the Ministry refused delivery, no further reasonable step was available, and repeated communications were likely to have brought the proceedings to the defendants’ attention.
3. Recognition of the United States judgment required jurisdiction under English private international law. Submission is determined by English law, having regard to all the circumstances and to the significance of the steps under the foreign law. The court followed SA Consortium General Textiles v Sun & Sand Agencies [1978] Q.B. 279 in treating an unqualified merits appeal as capable of constituting submission. The defendants’ notices of appeal, merits-based filings and voluntary dismissal of the appeal invoked the United States courts’ jurisdiction without reserving immunity or jurisdiction objections. The later reservation was too late.
4. All three defendants submitted because the evidence showed that their common attorneys acted for each of them in the appeal. The other requirements for recognition at common law were also satisfied. The judgment was final and conclusive, concerned a definite compensatory sum, and was not impeachable for fraud, public policy or want of natural justice.
5. Interest under section 35A of the Senior Courts Act was awarded on the principal United States judgment sum from 14 September 2015. It was not awarded on accrued post-judgment interest, because section 35A provides simple rather than compound interest. Costs were summarily assessed at £495,000, with interest at 2.5 per cent until the order and thereafter at the judgment rate.