Riyadh Al-Azzawi v Hisham Talaat Moustafa

Without-notice applications for permission to serve out of the jurisdiction or to extend time for service require full and frank disclosure and fair presentation of all objectively material matters. This includes obvious limitation difficulties, defects in the pleaded causes of action and factors bearing on forum. An extension of time requires a good reason, assessed through a calibrated approach, with limitation treated as a matter of considerable importance. Funding difficulties, delay of the claimant’s own making and hoped-for negotiations will not ordinarily suffice. Serious non-disclosure may justify setting aside the orders even where the orders might otherwise have been made. On the facts, the orders were set aside and the court had no jurisdiction.

The claimant brought proceedings arising from the murder in Dubai of Suzan Abdul Sattar Tamim, alleging that the defendant had ordered the killing. The claim was issued in England and permission was obtained without notice to serve out of the jurisdiction, followed by successive extensions of time for service. The claim form was eventually served in England under Companies Act 2006, section 1140.

The defendant applied under CPR Part 11 to set aside the permission and extension orders, the service and the claim itself, alleging failures of fair presentation and the absence of good reasons for the extensions. Alternatively, he sought a stay on forum non conveniens grounds. The central issues were whether the without-notice applications had been fairly presented, whether service had occurred within a valid period, and whether Dubai was the clearly more appropriate forum.

1. Set-aside application allowed. The claimant had failed to make proper disclosure and a fair presentation on the without-notice applications. The failures concerned the real limitation issue under Article 298 of the UAE Civil Code, the defects in the claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, and factors adverse to England as the appropriate forum.
2. The potential limitation defence was highly material. The evidence indicated that the applicable three-year period may have run from the final Egyptian criminal judgment, rather than being a 15-year period running from the murder. The issue should have been addressed at the application for permission to serve out and at the first three extension applications.
3. The statement that without-prejudice negotiations had paused service efforts was materially inaccurate. No good reason was shown for the delays in seeking permission to serve out, lodging documents with the Foreign Process Section, obtaining translations or awaiting funding. The principles in ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037 required the reasons for delay, the limitation position and the overriding objective to be assessed together.
4. The court’s starting point where material non-disclosure is established is discharge of the order, although the interests of justice remain relevant. The seriousness and culpability of the failures, the need to protect the integrity of without-notice applications and the absence of a satisfactory explanation outweighed the asserted prejudice to the claimant.
5. The permission to serve out and the first, second and third extension orders were set aside. The fourth extension order was also set aside on the basis that no good reason for the relevant extension had been shown. Service had therefore not occurred within the period of validity, so the court had no jurisdiction and would not exercise jurisdiction.
6. The stay application did not arise. Had it arisen, Dubai would have been the clearly and distinctly more appropriate forum. The applicable UAE law, the location of the alleged tort, witnesses and evidence, the parties’ connections and the availability of an effective forum all favoured Dubai.