His Excellency Sheikh Khalid & Ors v His Excellency Sheikh Hamed Bin Ahmed Al Hamed & Anor

For the foreign-judgment enforcement gateway, a claimant need not establish at the jurisdiction stage that executable assets are presently located in England. It is sufficient to show a potential or prospective legitimate benefit from recognition or enforcement here, including an indirect benefit through England’s asset-tracing, freezing and disclosure powers.

Jurisdiction, threshold merits and the later exercise of remedial discretion are distinct inquiries. The relevant forum facts are assessed when permission to serve out is granted. Risks arising from parallel enforcement proceedings are generally better managed by a later stay or case-management order than by refusing service out. Minor and innocent shortcomings in a without-notice presentation do not justify setting aside permission where doing so would be disproportionate.

The claimants sought recognition and common-law enforcement of a final Abu Dhabi Court of Cassation judgment, together with a domestic freezing injunction in support of foreign proceedings under Civil Jurisdiction and Judgments Act 1982, section 25.

Permission to serve the enforcement claim out of the jurisdiction and a freezing order had been granted without notice by Picken J on 13 March 2024. The defendants challenged jurisdiction and sought to set aside service permission, arguing that the Abu Dhabi judgment was not final and conclusive for a definite monetary sum, that England was not the proper forum without domestic assets, and that the without-notice presentation was unfair.

The central issues were whether the claim fell within Gateway (10), whether there was a real prospect of successful enforcement, whether England and Wales was the proper place, and whether discretion, comity, public policy or unfair presentation required the permission order to be set aside.

1. Gateway and threshold merits. The enforcement claim fell within PD6B 3.1(10) as a matter of characterisation. The gateway does not require a predictive determination that the foreign judgment is ultimately enforceable. The claimants nevertheless showed a real prospect of success on enforcement at common law. A foreign judgment may be recognised where it is final and conclusive in its state of origin, may be enforced where it orders a debt or definite sum capable of ascertainment, and may be refused on public-policy grounds.
2. Meaning of the Abu Dhabi judgment. At this interlocutory stage, the claimants had at least a real prospect, and a good arguable case, that the judgment required Sheikh Hamed and AFIC jointly to pay the relevant sums. The wording, the nature of the underlying claim, the execution proceedings and the defendants’ own Abu Dhabi petitions supported that interpretation. The alleged linguistic error remained a matter for trial if maintained.
3. Proper forum. Under CPR 6.37(3), the claimant bears the continuing burden of showing that England and Wales is the proper place. Under Tasarruf Mevduati Sigorta Fonu v Demirel, a claimant need not show present executable assets here. A reasonable expectation or sufficient possibility of an indirect or prospective benefit is enough. The assessment is made by reference to the position when permission was granted, with later events relevant only insofar as they illuminate that earlier position.
4. The English court’s jurisdictional role is distinct from its later remedial discretion. International enforcement, asset-tracing, freezing and disclosure may provide a legitimate benefit even where no relevant domestic assets are presently disclosed. Parallel foreign proceedings did not create injustice or vexatious multiplicity on the facts. Any such risk was better addressed by staying or managing the English proceedings after jurisdiction had been established.
5. Without-notice presentation. The claimants’ presentation was sufficiently fair and frank. Any shortcoming was minor and innocent. In the absence of an application to discharge the freezing order, there was no basis for heightened scrutiny, and setting aside or refusing permission afresh would have been disproportionate.
6. The jurisdiction challenge was dismissed, and the order granting permission to serve out made by Picken J on 13 March 2024 was not set aside. Consequential matters, including costs, were left for a further hearing.

The judgment was a first-instance decision on the defendants’ jurisdiction challenge and application to set aside service permission.

• High Court (Commercial Court): the court dismissed the challenge and refused to set aside the order made by Picken J on 13 March 2024.