BB & Ors. v Doha Bank Limited

In a claim under Syrian law alleging that a bank facilitated terrorist funding, the material issue is the destination of the funds and the bank’s knowledge, not their source. Pleadings must state the material facts needed to establish the cause of action. Irrelevant, embarrassing or unsupported allegations may be struck out. Alternative cases are permissible where clearly identified, but each must satisfy the merits test by being coherent, properly particularised, realistically capable of success and supported by an evidential basis. Omitting an allegation of state involvement to avoid state immunity is not abusive where state involvement is not an element of the cause of action. Requests for further information must be concise, necessary and proportionate.

Syrian claimants brought proceedings for damage allegedly caused by the al-Nusra Front, alleging that the Al Khayyat brothers funded the organisation and that Doha Bank facilitated the relevant payments. The claimants proposed a State Conspiracy case, withdrew it after the Bank raised state immunity, and advanced a Misappropriation case instead. Swift J granted permission to amend and dismissed the Bank’s strike-out application in [2022] EWHC 904 (QB). The Bank appealed, arguing that the amended case was inconsistent, unsupported by evidence and abusive, and that the pleading remained embarrassing. The central issues were whether the amendments met the merits test, whether state involvement was material to the claim, and whether the pleading and further-information response should be struck out.

1. Appeal allowed. The Court of Appeal ordered the excision of paragraph 9 of the Amended Particulars of Claim, the whole Response to the Request for Further Information, the words “including the office of the Emir of Qatar” from paragraph 46(1), and the words “assisted the State of Qatar” from paragraph 33(1), replacing the latter with “were involved”. Subject to those changes, the claim was coherent and viable and could proceed.
2. Under Syrian law, the claimants needed to plead that the Al Khayyat brothers transferred funds from accounts at Doha Bank to the al-Nusra Front, and that the Bank knew or ought to have known the intended destination. The source of the funds was immaterial. The relevant question was where the money went, not where it came from. Paragraph 9 was therefore embarrassing and included an incoherent, unsupported inference that funds from the State of Qatar must have been misappropriated.
3. A claimant need not plead its case at the highest level. Alternative cases may be advanced where the alternatives and their factual premises are clearly identified. Each proposed case must nevertheless satisfy the merits test described in Wittgenstein-Sayn: it must be coherent, properly particularised, realistically capable of success and supported by an evidential basis. Paragraph 9 failed that test.
4. The case was materially different from Wittgenstein-Sayn. State action was not an element of this cause of action. The claimants could therefore choose not to allege State involvement, even if they believed it to be true, without abusing the process by avoiding a state-immunity issue. Whether alleged actors fell within section 14(1) of the State Immunity Act 1978 was left as an evidential question.
5. Statements of case must contain material facts, not irrelevant background, evidence, argument or rhetoric. The Request and Response were prolix, repetitive, unnecessary and disproportionate. Under CPR 18 PD 1.2, a request must be concise and confined to matters reasonably necessary and proportionate for preparation or understanding of the case. The Court struck out the whole Response. It did not decide the admissibility or consequences of evidence on the outstanding forum non conveniens application.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 253, the appeal was allowed. The amended pleading and Response to the Request for Further Information were adjusted by the orders described above, while the viable claim was permitted to proceed.
2. High Court of Justice, King’s Bench Division: Swift J, in [2022] EWHC 904 (QB), granted permission to amend the Particulars of Claim and dismissed the Bank’s application to strike out the claim.