BB & ORS. v MOUTAZ AL KHAYYAT & ORS.

Strike-out for abuse of process requires a sufficiently clear basis for concluding that the pleaded case cannot properly proceed. Where the pleading and available evidence appear inconsistent, the court should assess whether the inconsistency is necessary and established, rather than deciding the issue prematurely. Evidence filed for a jurisdictional application may have a different purpose from the substantive case and does not automatically determine the case to be tried. The scope of state immunity may depend on whether alleged actors fall within the statutory meaning of the state, including the authority on which they acted. That is ordinarily an evidential question. Where the pleaded case is capable of clarification by amendment, permission to amend may be granted and strike-out refused.

The claimants sought damages for personal injury and property damage arising from terrorist financing connected with Al Nusra Front in Syria. They alleged that the defendants participated in funding arrangements and that Doha Bank facilitated them. The proceedings developed through applications concerning forum non conveniens, amendment, further information and state immunity under the State Immunity Act 1978.

The Bank applied to strike out the claim as an abuse of process, arguing that the claimants’ proposed misappropriation case was inconsistent with their evidence and with the case advanced for the forum non conveniens application. The court also considered whether the Bank’s state immunity application was arguable.

1. Strike-out application refused. The Bank’s application was properly analysed as one alleging abuse of process. The court accepted that the claimants’ Further Information had not merely clarified the original pleading but had introduced a different case, namely that funds had been misappropriated from the Qatari state. The court therefore gave the claimants a final opportunity to state their case by amendment.
2. The amended case alleged that the defendants acted in their individual or corporate capacities, that the claim did not implead the State of Qatar or its agents, and that any funds transferred from the State to the defendants were necessarily misappropriated in the absence of authorisation. The court rejected the submission that this case was necessarily inconsistent with the totality of the evidence. At that stage it was too soon to determine whether the evidence could establish only active state involvement in the funding.
3. Whether persons referred to in the evidence fell within the scope of “the state” under section 14(1) of the State Immunity Act 1978 depended on evidence, including evidence of the authority on which they acted. That issue could affect whether the State was a victim or perpetrator, but remained unresolved.
4. The court granted permission to amend in the form filed on 11 March 2022. The claimants abandoned specified parts of the Further Information and inconsistent witness evidence. Those materials were not struck out, since the defendants might later seek to rely on them.
5. Because the amendment altered the basis of the Bank’s state immunity application, the court did not decide whether that application, in its existing form, was arguable.

Not stated in the judgment.