Emirates NBD Bank PJSC v Ghanim Bin Saad Majid Al Saad Al Kuwari

Valid service of a bankruptcy petition is the foundation of the court’s adjudicatory jurisdiction. The statutory jurisdictional requirements for making a bankruptcy order, including the debtor’s connection with England and Wales under Insolvency Act 1986, do not replace the separate requirement that the debtor be present within the jurisdiction or that permission to serve out has been obtained.

Alternative service within England and Wales cannot circumvent the rules governing service out of the jurisdiction. The court applies the good arguable case test when deciding disputed jurisdictional facts at an interlocutory stage. Where service abroad has not even been attempted, personal service will ordinarily not be shown to be impracticable.

The Bank presented a bankruptcy petition based on an English judgment debt arising from a Dubai judgment. It obtained an order permitting alternative service at properties in London and by other methods. The respondent applied to set that order aside, asserting that he was in Qatar when the order was made and when the petition was served.

The issues were whether the bankruptcy court could order alternative service within England and Wales on a debtor who was outside the jurisdiction without permission to serve out, whether there was a good arguable case that the respondent was present in England at the relevant time, and whether personal service had been shown to be impracticable.

1. Application granted. The alternative-service order was set aside and service of the bankruptcy petition pursuant to it was ineffective.
2. Valid service of an originating process is the foundation of the court’s adjudicatory jurisdiction. A person outside the territorial jurisdiction is not subject to the court’s power unless permission to serve out has been granted, service is otherwise permitted, or service has been agreed. The same fundamental principle applies to bankruptcy proceedings.
3. Section 265 of the Insolvency Act 1986 performs a different function. It identifies the geographical connections which must ultimately be proved before a bankruptcy order can be made. It does not confer adjudicatory jurisdiction over a person who is abroad and not otherwise capable of being served.
4. Under paragraph 1(5) of Schedule 4 to the Insolvency (England and Wales) Rules 2016, alternative service is available only where personal service is impracticable. The power cannot be used to circumvent the requirement for permission to serve out. The older authorities relied on by the Bank were confined to the wording and circumstances of the rules then applicable and did not establish a general evasion exception.
5. The court applied the three-limbed good arguable case test stated in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80. The Bank had to provide a plausible evidential basis for the respondent’s presence in England on the relevant dates. It failed to do so. Evidence of earlier visits, London properties, and knowledge of the petition did not establish presence during 8–12 August 2025.
6. The respondent’s departure, even if motivated by knowledge of the petition, did not establish presence or justify alternative service. Moreover, service in Qatar had not been attempted. In those circumstances, personal service there had not been shown to be impracticable.