Ridley v Dubai Islamic Bank PJSC

Where an exclusive English jurisdiction clause covers disputes arising from an agreement, a claim concerning the contractual consequences of proceedings brought abroad may fall within the contractual jurisdiction gateway, even if different remedies are sought.

On an application concerning service out, the claimant must show a real, rather than fanciful, prospect of success, a good arguable case within a gateway, and that England is the proper forum. At an interlocutory stage, fact-sensitive issues such as abuse of process, foreign law, comity, delay and the utility of relief will rarely justify summary dismissal where substantial disputes remain.

Alternative service under CPR 6.15 requires a good reason assessed in all the circumstances. Knowledge of the claim, the likely delay caused by formal service and the practical prejudice to the claimant may justify it.

Charles Ridley sought an injunction and related relief against Dubai Islamic Bank PJSC. He alleged that the Bank’s invocation of Law 37 of 2009 in Dubai breached clause 12.4 of a 2007 Restructuring Agreement, by which the Bank had waived and compromised claims arising from the relevant transactions.

The Bank applied to set aside orders permitting service out of the jurisdiction and alternative service on its solicitors. It also opposed amendments to the Particulars of Claim and contended that the claim was abusive, hopeless, contrary to comity, futile and barred by delay or issue estoppel. The central questions were whether permission to serve out was required, whether amendment should be allowed, whether the claim had a real prospect of success, and whether alternative service was justified.

1. Jurisdiction and amendment. The exclusive jurisdiction clause in the Restructuring Agreement covered the dispute whether the Bank’s pursuit of proceedings in Dubai breached the settlement provisions. The fact that injunctive or other remedies were sought did not take the underlying dispute outside the clause. Under Article 25 of the Brussels Recast Regulation and CPR 6.33, permission to serve out was therefore unnecessary. In any event, applying NML Capital v Republic of Argentina [2011] 2 AC 495, the court could consider the proposed amended pleading where refusal would cause only cost and delay. Permission to amend was granted.
2. Service-out merits. The relevant test was whether the claim had a real, not fanciful, prospect of success; the contractual gateway was satisfied; and the exclusive jurisdiction clause made England the appropriate forum. The court rejected the Bank’s submission that the claim was necessarily abusive under Henderson v Henderson [1843] 7 WLUK 87 and Johnson v Gore-Wood [2002] AC 1. The issue depended on disputed evidence about what Mr Ridley knew and the significance of Law 37. It was unsuitable for summary determination.
3. The proposed relief might have the character of an anti-enforcement injunction. However, following the discretionary approach discussed in Ecobank v Tanoh [2015] EWCA Civ 1309, delay and comity were important but did not make the claim hopeless. There were substantial disputes about the nature of the Dubai proceedings, whether the Bank could withdraw or alter its request, and the effect of foreign law. The issues of utility, delay and issue estoppel likewise required fuller consideration.
4. Alternative service. Applying CPR 6.15(1), the court held that there was a good reason to permit service by an alternative method. The Bank knew of the claim, formal service through treaty channels could take many months, and the resulting delay would prolong Mr Ridley’s imprisonment. The order permitting alternative service was maintained.
5. The applications to set aside permission to serve out and permission for alternative service were dismissed. Permission to amend was granted. The parties were directed to draw up an order giving effect to the judgment.