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

A foreign judgment has preclusive effect only in respect of matters necessarily decided under the law of the foreign jurisdiction. Where foreign procedural rules leave it seriously arguable that a fraud challenge was rejected at an admissibility stage, English proceedings should not be summarily dismissed on issue-estoppel grounds. Judicial proceedings immunity barred claims based on forged documents allegedly procuring an un-set-aside merits judgment. It did not clearly bar claims concerning other proceedings or interim orders. Deceit requires a false representation intended to induce, and which does induce, the representee to act detrimentally; that principle did not extend to litigation statements not intended to induce the claimant to act. Claims in the Marex tort, dishonest assistance, conspiracy and under Insolvency Act 1986, s.423, remained arguable. A conduct-based worldwide freezing order was granted up to £4.5 million.

The claim arose from attempts to enforce a Sharjah judgment exceeding £80 million against members of the Al Sari family. The claimants alleged that the defendants used the Globe Documents and a tenancy agreement to obstruct enforcement against London properties owned by BVI companies.

The hearing concerned D10’s application to set aside permission to serve him out of the jurisdiction, applications by other defendants for strike out or summary dismissal, a worldwide freezing order against D10, and permission to amend. The defendants relied on the preclusive effect of judgments of the Sharjah courts, judicial proceedings immunity, limitation, deficiencies in the pleaded causes of action and lack of a service-out gateway. The central questions were whether the claims disclosed a serious issue to be tried and whether interim relief was justified.

1. Foreign judgments and preclusion. The court applied the caution required when assessing the preclusive effect of foreign judgments. The court could not fairly resolve disputed UAE law on competing lawyer evidence at the summary stage. It was seriously arguable that Articles 169(1) and 169(6) of the UAE Civil Procedure Law operated at an admissibility stage and that the fraud case relied on in England had not been determined on its merits. The service-out challenge and summary judgment application therefore failed on this ground.
2. Judicial proceedings immunity. The principles in Singh v Reading BC [2013] 1 WLR 3052 and Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 supported a distinction between evidence and independent unlawful acts. Nevertheless, in the core case of forged documents used to obtain an un-set-aside foreign merits judgment, the risk of collateral re-litigation meant that immunity applied. Claims based on the Globe Sharjah Proceedings were consequently barred if English judicial proceedings immunity applied. The position concerning the Globe DIFC and BVI Proceedings, the Possession Proceedings and interim relief remained unresolved on the material available.
3. Foreign proceedings. Judicial proceedings immunity was characterised as a mandatory rule of English public policy for Rome II purposes. Following Erhard-Jensen Ontological v Rogerson [2024] EAT 135, the court held that the doctrine could apply to foreign proceedings and granted permission to appeal on the territorial issue. The court identified a possible modified rule, dependent on equivalent immunity in the foreign jurisdiction, but did not adopt it as the governing conclusion.
4. Causes of action. Zurich Insurance Co plc v Hayward [2017] AC 142 did not make the pleaded deceit claims arguable because the documents were not deployed to induce the claimants to act. The malicious falsehood claim was sufficiently pleaded and an extension under section 32A of the Limitation Act 1980 was arguable. The Marex tort remained arguable, including on assistance and prevention principles. Dishonest assistance remained arguable whether the documents were genuine or forged. Alternative cases under section 423 of the Insolvency Act 1986 were not summarily dismissed, subject to coherent pleading.
5. Conspiracy and freezing relief. It was arguable that the tenancy agreement and Globe Documents formed part of one conspiracy. Breach of a freezing injunction could constitute unlawful means, but the documents did not breach the relevant s.25 injunction on its proper, strict construction. The conduct-based worldwide freezing order was granted against D10 with an interim maximum sum of £4.5 million. A Chabra order concerning D10’s shares could not be served out under Practice Direction 6B paragraph 3.1(3), because there was no live common issue involving an anchor defendant requiring determination at the same hearing.
6. Further steps. Permission to amend was left subject to the judgment’s findings and clearer pleading. A further two-day hearing was directed for unresolved issues.

This was a first-instance interlocutory judgment. The judgment records an earlier jurisdictional decision by Bright J in [2023] EWHC 1797 (Comm) and permission to serve D10 granted by Dias J. It also records prior freezing-order and case-management decisions in the same proceedings.