Cancrie Investments Limited v Zulfiqur Al Tanveer Haider

A claimant seeking to enforce a foreign judgment at common law must show a good arguable case that the foreign court had jurisdiction, the judgment is final and conclusive, it concerns a definite sum of money, and it is not impeachable for want of natural justice. For continuation of a worldwide freezing order, the applicant must also establish a real risk of dissipation, assets within or outside the jurisdiction, and that relief is just and convenient.

The traditional Niedersachsen test remains applicable to the merits of a good arguable case for freezing relief. It requires more than a case barely capable of serious argument, supported by plausible evidence, but does not require a better-than-even prospect of success. Strike-out and summary-judgment applications may be pursued together where factual evidence is relevant.

The claimant, assignee of a United Arab Emirates judgment debt, brought proceedings to enforce the judgment against the defendant in England. The defendant alleged that his guarantee was forged and that he had not been served with, or notified of, the UAE proceedings. He applied to strike out the claim under CPR rule 3.4(2)(a) and for reverse summary judgment under CPR Part 24.

The claimant applied to continue a worldwide freezing order. The defendant accepted that there was a real risk of dissipation and that he had assets, but disputed the claimant’s prospects on jurisdiction and natural justice. The court therefore considered the applicable tests, the disputed evidence concerning SMS service under UAE law, the alleged forgery, and the claimant’s duty of full and frank disclosure.

1. Strike out and summary judgment. The court distinguished the focus of CPR rule 3.4(2)(a), where the pleaded facts are generally assumed to be true, from the wider summary-judgment inquiry under CPR Part 24, where evidence may be considered. Nevertheless, in light of CPR Practice Direction 3A and the authorities, an applicant may proceed under both provisions where appropriate. The practical test was whether the claim had no reasonable or realistic prospect of success, rather than a fanciful prospect.
2. Good arguable case. For continuation of freezing relief, the court adopted the traditional test in Ninemia Marine Corporation v Trave Schiffahrtgesellschaft m.b.H u. Co. K.G., The Niedersachsen: the case must be more than barely capable of serious argument, though it need not have a better-than-50% chance of success. Plausible evidence remains necessary. The court considered the alternative three-limb approach in Brownlie v Four Seasons Holdings Inc, but concluded that the result would be the same.
3. Foreign judgment and natural justice. Enforcement of a UAE judgment was governed by the common law. The claimant had to establish, among other matters, jurisdiction of the UAE court and that enforcement was not barred by natural justice. The court found a good arguable case that the defendant had submitted to UAE jurisdiction by signing the guarantee. It also found plausible evidence that he had been validly served by SMS or had otherwise received notice, and that any absence of actual notice did not necessarily establish substantial injustice. The possible availability of a remedy in the UAE remained a relevant factor.
4. Evidence and disclosure. The disputed facts concerning the mobile number, the defendant’s residence status, service under UAE law and the alleged forgery were unsuitable for resolution by mini-trial. The claimant had complied with its duty of full and frank disclosure. The court was entitled to consider evidence served without permission for one application when it was material to another, while taking account of the opposing party’s lack of opportunity to respond.
5. Outcome. The defendant’s strike-out and reverse-summary-judgment applications were dismissed. The claimant had realistic prospects of enforcing the UAE judgment and a good arguable case on jurisdiction and natural justice. The worldwide freezing order was continued, it being just and convenient to do so.