The Public Institution for Social Security v Al-Wazzan & Ors

For the purpose of serving proceedings out of the jurisdiction, a defendant may be a necessary or proper party where there is a good arguable case that joining them is required to ensure that the judgment will bind them in a foreign jurisdiction.

The court may consider the practical consequences of foreign enforcement, including the risk that a substantial liability established in England would have to be litigated again abroad. It is not impermissible in principle to join a person who is not the only correct defendant, where joinder is appropriate on the facts to secure the effectiveness of the proceedings.

The claimant alleged that the deceased, Fahad Al-Rajaan, had incurred substantial liabilities through corrupt schemes. Following his death, his widow was appointed to represent his estate in the English proceedings. The claimant joined their four children, who were alleged to be heirs under Swiss law, and obtained permission to serve them out of the jurisdiction.

The heirs applied to set aside the joinder and service orders. The central issue was whether they were necessary or proper parties under paragraph 3.1(3) of Practice Direction 6B. The claimant relied principally on the risk that a judgment against the estate would not bind the heirs or estate assets in Switzerland.

1. Application dismissed. The orders joining the heirs and permitting service out of the jurisdiction were maintained.
2. The test for a proper party is whether, supposing both parties had been within the jurisdiction, they would both have been proper parties to the action: AK Investment CJSC v Kyrgyz Mobil Tel Limited [2011] UKPC 7. The claimant must establish a good arguable case that the claim falls within the gateway in paragraph 3.1(3) of Practice Direction 6B.
3. The court did not determine finally whether it could impose joint and several liability on the heirs under Swiss succession law. The heirs relied on the distinction between administration and succession explained in Viegas v Cutrale [2024] EWCA Civ 1122. That issue remained open for trial.
4. The alternative basis was sufficient. The evidence indicated that a judgment against the estate or the administrator alone might not bind the heirs or the whole community of heirs in Switzerland. The heirs had not accepted that they were liable or undertaken to be bound by the result. There was therefore a real risk that the claimant would have to establish the underlying liability again in foreign enforcement proceedings.
5. In those circumstances, the heirs were closely associated with the deceased and had a prospective interest in assets against which enforcement might be pursued. Joinder to ensure that they were bound by the result was permissible and appropriate under CPR 19.2. The fact that the administrator was the correct defendant for the estate claim did not make joinder of the heirs impermissible.
6. Once the necessary-or-proper-party issue was resolved for the claimant, there was a serious issue to be tried and England was the appropriate forum for resolving the central liability issue. The service-out and joinder orders were therefore not set aside.