Commercial Bank of Dubai PSC & Ors v Abdalla Juma Majid Al Sari & Ors

For Rome II purposes, the applicable law for a tort is generally the law of the country where the original damage directly occurred. The inquiry is autonomous and fact-specific. National labels do not determine the analysis, but the pleaded facts remain important because they identify the alleged conduct, damage and causal link.

Where foreign law applies but its content has not yet been pleaded or proved, the court may apply the flexible presumption that it is materially similar to English law, particularly at an early procedural stage. A claim should not ordinarily be struck out merely because the parties have not yet stated competing cases on foreign law.

A claim under section 423 of the Insolvency Act 1986 may proceed where there is a sufficient connection with England and Wales.

The claimants brought claims arising from alleged sham tenancy and financing documents, said to have been used to prevent enforcement of a foreign judgment and possession of London property. The claims included deceit, malicious prosecution, intentional violation of judgment rights, unlawful means conspiracy and a claim under section 423 of the Insolvency Act 1986.

The Seventh to Ninth Defendants challenged the English court’s jurisdiction under CPR Part 11. They argued that the claims were governed by UAE or BVI law, that the claims were defective because foreign law had not been pleaded, and that England was not the appropriate forum. The Former CRS Defendants made a similar challenge. The central issues were the applicable law, the adequacy of the pleaded claims and forum conveniens.

1. Jurisdictional challenges dismissed. Both the Globe Defendants’ and the Former CRS Defendants’ applications were dismissed. Permission to amend the Particulars of Claim was granted, subject to any further amendments sought in light of the judgment.
2. Applicable law. Article 4 of the Rome II Regulation required an autonomous, fact-specific inquiry. The relevant place was where the original damage directly manifested itself, rather than where indirect or consequential financial loss occurred. The court could draw on the jurisprudence concerning Article 5(3)/7(2) of Brussels Recast, while recognising that the instruments were not identical.
3. The representations made in the Sharjah, DIFC and BVI proceedings caused alleged legal-cost losses in the respective jurisdictions. The judgment-related claims concerned non-receipt of money in the UAE and BVI. The alleged unlawful means conspiracy principally concerned damage to the Bridge Properties in London, so English law applied to that claim. The court did not need finally to determine whether Article 4(1) could produce more than one applicable law.
4. The pleadings could not be ignored. Although domestic legal labels were not determinative, the court had to examine the pleaded facts, alleged damage and causal links. The pleadings were unsatisfactory because they did not clearly connect particular wrongdoing with particular heads of loss, but that defect did not justify declining jurisdiction at this stage.
5. The presumption of similarity between foreign and English law was flexible and depended on fairness and reasonableness. It was appropriate for the UAE-law claims at this early stage. The allegations of deceit and reliance on fraudulent documents could realistically give rise to liability under UAE law. The BVI claims were also unaffected because BVI law was accepted as likely to be materially similar to English law.
6. The claims under malicious prosecution relating to the BVI proceedings and breach of fiduciary duty did not disclose serious issues to be tried. The other claims did. England was the most appropriate forum, having regard particularly to the London property, the English-law conspiracy claim, related proceedings already continuing in England, the evidence and pending contempt proceedings.
7. The claim under section 423 of the Insolvency Act 1986 had a sufficient connection with England and Wales because the alleged purpose of the transactions was to place BVI companies or London property beyond the creditor’s reach.