Caterpillar Financial Services (Dubai) Ltd v National Gulf Construction LLC & Ors

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case within a jurisdictional gateway, and satisfaction of the forum and residual-discretion requirements. For enforcement claims, the residual discretion requires a real prospect of legitimate benefit. That benefit may arise from asset-tracing or from a realistic prospect of using enforcement procedures against a person within the jurisdiction, even where assets are not presently identified.

Where a service treaty provides an ordinary diplomatic route but does not make it exclusive, alternative service under Civil Procedure Rules 1998, Part 6.15 does not require exceptional circumstances. It does require good reason. Delay alone will not necessarily establish good reason where there is no demonstrated urgency.

The claimant sought permission to serve proceedings outside England and Wales in a claim to enforce a judgment of the DIFC against two companies and a judgment of the Dubai Court of Appeal against two guarantors. The defendants were resident in Dubai.

The application had first come before Jacobs J on the papers. The renewed application concerned whether enforcement in England and Wales offered a real prospect of legitimate benefit, including possible asset-tracing and cross-examination under Part 71. The claimant also sought alternative service by email because diplomatic service in the UAE had taken over eight months.

1. Permission to serve out. The claimant satisfied the three agreed requirements: a serious issue to be tried, a good arguable case within a jurisdictional gateway in Practice Direction 6B, paragraph 3.1, and the forum and residual-discretion requirements. England was clearly the appropriate forum for an application to enforce judgments in England and Wales, as explained in Fonu v Demirel, [2007] EWCA Civ 799; [2007] 1 WLR 2508.
2. The claimant demonstrated a real prospect of legitimate benefit. The prospect was speculative because no English assets had been identified, but the evidence of asset movement and possible future transactions involving England made asset discovery materially important. There was also at least an arguable case that, once the court had jurisdiction to cross-examine the fourth defendant about his own assets, Civil Procedure Rules 1998, Part 71.2 could permit questioning about the companies’ assets. The territorial restriction identified in Masri v Consolidated Contractors International (UK) Ltd (No.4), [2009] UKHL 43; [2010] 1 AC 90 did not make the contrary answer sufficiently clear at this stage.
3. Permission to serve out was therefore granted. The administrative stay in Dubai was no bar to enforcement at this stage, although it might matter on a later application to execute the judgments.
4. Alternative service. The UK-UAE treaty provided an ordinary diplomatic method of service but did not exclude the court’s power under Part 6.15. Following Cesfin Ventures LLC v Al Ghaith Al Qubaisi, [2021] EWHC 3311 (Ch), exceptional circumstances were unnecessary, but good reason remained essential.
5. That requirement was not met. Diplomatic service had taken over eight months, but there was no demonstrated urgency, no identified English assets, no imminent hearing, and no immediate prospect of assets entering the jurisdiction. The delay was therefore insufficient. Permission for alternative service by email was refused.

The application initially came before Jacobs J on the papers. His concerns led to the renewed oral application before the Deputy High Court Judge. The present court granted permission to serve out but refused alternative service.