Riyadh Al-Azzawi v Hisham Talaat Moustafa

The court determined a Part 11 application by the Defendant seeking declarations that the English court lacked jurisdiction and orders setting aside without‑notice orders permitting service out of the jurisdiction and various extensions of time for service. Key legal principles applied were the strict approach to extensions of time under CPR r.7.6 (and the guidance in ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037 and related authorities), and the high duty of full and frank disclosure on without‑notice applications. The judge held that material matters relevant to limitation, forum and the viability of pleaded causes of action (notably Article 298 of the UAE Civil Code and obvious problems with claims pleaded under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934) were not fairly presented at the without‑notice hearings. The court set aside the permission to serve out and the first three extension orders, concluded there was no service within the period of validity of the Claim Form and declared that the court had no jurisdiction and would not exercise jurisdiction over the Claimant’s claim.

Background and parties: The proceedings arise from the 2008 murder in Dubai of Suzan Abdul Sattar Tamim. The Claimant, a professional kickboxer resident in the United Kingdom, alleged that he had been lawfully married to Ms Tamim and brought tortious claims for personal injury, for the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and for dependency under the Fatal Accidents Act 1976 (alternatively under UAE law). The Defendant is an Egyptian businessman who was criminally tried and convicted in Egypt in respect of the killing; the convictions were overturned and retried several times, and the Defendant was ultimately imprisoned and later pardoned.

Procedural posture and relief sought: The Claim Form was issued in July 2022. The Claimant obtained, at a series of without‑notice hearings, permission to serve out of the jurisdiction and four successive extensions of time to serve. The Defendant subsequently issued a Part 11 application (1) seeking declarations that the English court lacked jurisdiction and to set aside the permission to serve out and the extension orders obtained without notice and/or to set aside service, and alternatively (2) seeking a stay of the proceedings as an exercise of the court’s discretion.

Issues framed by the court:

• Whether the without‑notice orders (permission to serve out and extensions of time) should be set aside for failure to make full and frank disclosure and for lack of good reason for the extensions;
• Whether, if those orders were set aside, the court had jurisdiction to proceed; and
• Alternatively, whether the court should decline to exercise jurisdiction and stay the action on forum non conveniens grounds.

Decision and reasoning: The judge applied the established test for extension of time under CPR r.7.6 and the appellate guidance in ST v BAI and related authorities, and the high duty of full and frank disclosure on without‑notice applications (summarised in Tugushev v Orlov (No. 2) and other authorities). The court found that material matters were not fairly presented at the without‑notice hearings, notably:

• the limitation position under Article 298 of the UAE Civil Code and the persuasive expert evidence that the relevant limitation period ran from the final criminal judgment (with the practical consequence that the Claimant’s window to pursue compensation in the civil forum was substantially shorter than claimed);
• misleading statements about purported without‑prejudice settlement discussions which were said to have delayed service;
• obvious defects in pleaded English statutory causes of action (for example the inapplicability of the Fatal Accidents Act where UAE law applies and the limitation of certain heads of damages under the Law Reform (Miscellaneous Provisions) Act 1934); and
• a failure to present fairly matters pointing away from England as the appropriate forum (governing law, locus of events, witnesses and documentary evidence in the UAE/Egypt and the existence of proceedings and investigations there).

The judge concluded these failures were serious, at least in part deliberate, and unjustified. The court accordingly set aside the permission to serve out and the first three extension orders as procured without proper disclosure and because no good reason had been shown for the extensions. That led to the conclusion that the Claim Form had not been validly served within its period of validity and therefore the court had no jurisdiction and would not exercise jurisdiction over the claim. The judge also indicated that, had it been necessary to reach the forum non conveniens point, Dubai would have been a clearly more appropriate forum.

The Defendant's Part 11 application succeeds. The court set aside the without‑notice permission to serve out and the First, Second and Third extension orders on the basis of serious failures of full and frank disclosure and absence of good reason for the extensions; consequently the Claim Form was not served within its period of validity and the court declared that it has no jurisdiction and will not exercise jurisdiction over the Claimant’s claim. The judge gave a brief view that, if considered, the claim would also have been stayed as Dubai was a more appropriate forum.