Abela & Ors v Baadarani

Mr Abela and his companies (“the claimants”) wish to sue Mr Ahmad Baadarani and a Cypriot company called Cicines Ltd (“the defendants”) for fraudulent misrepresentation and conspiracy in relation to a contract whereby the claimants agreed to buy shares owned by the defendants in an Italian company called Gama SpA. The contract to buy the shares was dated 26^th March 2002, was governed by English law and contained a non-exclusive jurisdiction agreement for the English courts. The claimants allege that the defendants knew at the time of the sale that the shares were worthless but concealed from them that important fact and fraudulently stated that the opposite was true. The first defendant Mr Baadarani, denies that he had any such knowledge or made any fraudulent statements about the value of their shares. He says further that, since proceedings were only instituted in England on 30^th April 2009, the proceedings are time-barred, to which the claimants respond by saying that they did not know of the fraud until they received reports from a firm of forensic accountants called Kroll in May and June 2003. The claimants then started both criminal and civil proceedings in a rolled-up form of litigation in Lebanon where Mr Baadarani is resident but those proceedings are nowhere near any fruition. On 14^th September 2009, Morgan J granted the claimants permission to serve the English claim form and associated documentation on Mr Baadarani in Lebanon, extended time for service of the claim form until 31^st December 2009 and gave permission to serve the relevant documents untranslated on Mr Baadarani at an address in Beirut, on the claimants’ undertaking to take no further steps in the Lebanese civil proceedings. Mr Baadarani has now applied to set aside both the permission to serve him and the service of the proceedings purportedly made pursuant to that order or a later order of Lewison J. The second defendant has been served and has made no attempt to set aside that service. The action against that defendant is therefore properly constituted in England.

Mr Baadarani has argued that there is no real issue between himself and the claimants which it is reasonable for the court to try pursuant to CPR 6.37(2) and that the English court should not be satisfied that England is the proper place in which to bring the claim pursuant to CPR 6.37(3). The grounds on which it is said that there was no real issue between the parties were (a) that the matter in dispute had been resolved in litigation between the claimants on the one hand and their former solicitors Hammonds and a Mr Haan on the other hand which had been settled in 2009 and (b) that the proceedings were time-barred. Sir Edward Evans-Lombe dismissed those contentions saying that what he called “the Haan action” had not been intended to settle or resolve issues between the claimants and the defendants and that it was, at any rate, arguable that the claimants had not discovered the fraud or concealment of the defendants (if they existed) until after 30^th April 2003. Mr Baadarani applied for permission to appeal these two decisions but his application was adjourned to the full court by Arden LJ when she gave leave on the more substantial aspects of the case. I would for my part refuse Mr Baadarani’s application, now that we have had heard the oral argument, on these two matters.

The reason given by Mr Baadarani for saying that England was not the proper place to bring the claim was that proceedings already existed in Lebanon and should continue there. The judge decided that England was the proper place for the proceedings broadly because the parties had agreed to the jurisdiction of the English courts, the Cypriot company claimant was not a party to the Lebanese proceedings and the claimants had in any event undertaken to take no further steps in the Lebanese civil proceedings. Arden LJ has given Mr Baadarani permission to appeal this part of the judge’s decision.

The judge further decided that service of the English proceedings on Mr Baadarani’s Lebanese lawyer Mr Azoury on 22^nd October 2009 was to be treated as good service, because he (the judge) could and should retrospectively validate the alternative service which had then taken place; he did not, therefore, need to decide whether orders of Sales J and Lewison J extending time for service to 30^th April 2010 and 30^th June 2010 respectively and a further order of the latter judge giving permission for service by alternative means on Mr Baadarani’s English and Lebanese solicitors should be set aside. But he expressed the view that there was ample material justifying the order of those learned judges and that there was no justification for interfering with them. Arden LJ has granted permission to Mr Baadarani to challenge the judge’s decision that service on Mr Azoury was to be treated as good service of the proceedings on 22^nd October 2009. If that challenge succeeds, the claimants will then seek to rely on the orders of Sales J and Lewison J.

The onus of showing that England is the proper place for the proceedings is on the claimants but if a judge is satisfied that England is indeed the proper place, it is for the appellant to show why he was wrong. The reasons given by the judge as set out in para 3 above are compelling reasons; if the parties to an agreement have agreed that the English court is to have jurisdiction, England will be the proper place for the proceedings unless there is some extremely strong argument to the contrary. In theory, the fact that proceedings have already been started elsewhere might constitute such an argument but the claimants’ undertaking has removed that argument quite apart from the facts (1) that the third claimant is the purchaser of the majority of the shares and is not even a party to the Lebanese proceedings and (2) that the proceedings against the second defendant will be proceeding in England in any event.

The only serious arguments advanced by Mr Greatorex for Mr Baadarani against the judge’s decision in this respect were (1) that Mr Abela was the effective claimant, had decided in October 2003 to institute proceedings in Lebanon and should not, nearly 6 years later, be allowed to change tack and start proceedings here and (2) that the undertaking not to continue the civil proceedings was inadequate for the protection of the defendants because they still remained at foot and nothing had changed since the claimants had given their undertaking to Morgan J.

As to the first argument, if a claimant has 6 years (or whatever other appropriate period) to begin proceedings, and the parties have agreed that any proceedings may take place in England, that agreement should be upheld even if the claimant has been somewhat dilatory provided that the defendant can be protected from being doubly vexed by additional proceedings elsewhere which Morgan J’s order achieved.

The second argument is equally without foundation. The undertaking relates to civil proceedings since it would be inappropriate for the English court to require the criminal aspect of any proceedings to be stayed. Mr Baadarani has never suggested an alternative form of undertaking despite the judge’s offer (para 54) to reconsider the terms of the undertaking if Mr Baadarani was dissatisfied with it. He is, therefore, adequately protected and should not be allowed to extricate himself from his agreement as to the venue of the action.

I would therefore dismiss the first ground of appeal and turn to the second ground.

The claimants have three submissions as to the correct service of the claim form within the Rules any one of which, if it is upheld, will be sufficient to constitute good service. These are:-

service on 22^nd October 2009 on Mr Baadarani’s Lebanese lawyer Mr Azoury who had a power of attorney enabling him to receive legal documents; although this form of service was not authorised by the original order of Morgan J, it was open to the judge to validate that service retrospectively because it had been service in accordance with the local law of Lebanon;

service pursuant to the order for alternative service made by Lewison J on 14^th April 2010 on Mr Baadarani’s Lebanese solicitor Mr Azoury;

service pursuant to the same order of Lewison J on Mr Baadarani’s English solicitors.

The history of the matter begins with the issue of the claim form on 30^th April 2009. The validity of that claim form would expire after six months on 29^th October 2009. Since the agreement in respect of which the claimants have brought their proceedings was made in 26^th March 2002 and the latest date on which the claimants say that they became aware of the defendants’ fraud is June 2003, the date of the claim form is, on any view, perilously close to the end of the limitation period.

It was not until 14^th September 2009 that the claimants applied for permission to serve the defendants out of the jurisdiction. Morgan J made an order in the following terms:-

Pursuant to CPR 6.35, 6.37, paragraphs 3.1(3), 3.1(6)(c), 3.1(6)(d). 3.1(9), 3/1(15) and 3/1(16) of Practice Direction B to CPR Part 6 and CPR 6.38, the claimants have permission to serve the Claim Form, Particulars of Claim and all other documents in the proceedings upon the First Defendant at the following address, namely Ramlet El Bayda, Farid Trad Street, Bajjani Building, Bloc II, Facing Fakhreddine Lebanese Army Camp, 1^st Floor (“the Address”).

Pursuant to CPR 7.6(2) and (4), the claimants’ time for complying with the requirements of CPR 7.5 is hereby extended until 31^st December 2009.

To the extent that it is required, pursuant to CPR 6.37(5)(b), the claimants do have permission to serve the Claim Form, Particulars of Claim and all other documents in the proceedings by way of an alternative method of service, namely, by personal service by a process server or other suitable agent as soon as reasonably practicable hereafter of an untranslated (i.e., English) copy of such documents on the first defendant at the address referred to above.”

Service in accordance with the order of Morgan J had not been effected before the claim form as extended by Morgan J to 31^st December 2009 would expire but Mr Azoury had received the claim form and associated documentation on 22^nd October 2009 in circumstances which are now in dispute and which this court will have to examine. The claimants decided therefore that it would be necessary to apply for a further extension to the validity of the claim form; in December 2009 they applied for a further extension of 4 months. The supporting witness statement of Mr Mascarenhas of the claimants’ solicitors, PCB Litigation LLP (“PCB”), said no more than that unsuccessful attempts had been made to serve Mr Baadarani at his residential address. But it did assert that “a lawyer acting for Mr Baadarani” had accepted service of the claim form and the associated documentation. On 16^th December 2009 Sales J extended the validity of the claim form until 30^th April 2010.

There the matter rested until 11^th February 2010 when Mr Azoury wrote to PCB saying that he had received claim documents on 22^nd October 2009 and was now returning them. He explained that he had never had any instructions to accept service of the documents and that, in any event, the order of 14^th September 2009 did not provide for service on his firm. PCB replied on 17^th February saying that Mr Baadarani had been validly served because Mr Azoury had a power of attorney to act on Mr Baadarani’s behalf in any legal proceedings in which he had accepted Mr Azoury’s office as his domicile. They also stated their understanding that the service which had been effected was in accordance with Articles 399 and 400 of the Lebanese Civil Proceedings Code. They further asked for Mr Baadarani’s usual address and for a place date and time where and when Mr Baadarani could be personally served. Mr Azoury replied to this letter on 19^th February 2010 in the following terms:-

On 22^nd March 2010 Mr Houssami, in a second witness statement, gave further information. He said that service on Mr Baadarani was “supposed to be made” at any one of 3 known addresses in Lebanon including the Farid Trad Street address and that personal service on a defendant of originating process issued abroad was permissible by Lebanese law. He then said this:-

In other words, the service was not only made to an address where Ahmad Baadarani had elected domicile, but it was also made to a person who has the legal capacity to represent Ahamd Baadarani in any proceedings, including without limitation the English proceedings, and who did not express any reserved on the service of the documents related to such proceedings.”

Mr Azoury replied to this in his first witness statement of 20^th May 2010 in the following way:-

Service on Mr Azoury was not, of course, a form of service which was authorised by the original order of Morgan J. The judge nevertheless decided that, because CPR 6.37(5)(b)(i) was to be construed as giving the court both power to order alternative service in a case concerning service of proceedings out of the jurisdiction as envisaged in CPR 6.15(1) and power to order that steps taken on an earlier occasion (than the order) to bring the claim form to the attention of the defendants by an alternative method constituted good service as envisaged by CPR 6.15(2), it would be right to make a declaration that the steps taken to serve Mr Azoury on 22^nd October 2009 amounted to good service.

It would be unusual (to say the least) for a judge to validate a form of service which was not valid by local law. It must follow that, although he does not spell it out, the judge must by implication be taken to have decided that the service which took place was valid by Lebanese law because he also decided that he would and should retrospectively validate the service that had taken place.

In spite of the absence of any express finding by the judge, Mr Freedman QC for the claimants submitted there was valid service by Lebanese law on 22^nd October 2009 and that that constituted good service in English law pursuant to CPR 6.40. This was on the basis that (1) the claim documents were provided by a process server to Mr Azoury and (2) Mr Azoury took delivery of the claim documents, signed for them and retained the documents for 4 months before returning them, having produced a power of attorney showing his authority to receive documents by way of service. Mr Freedman further submitted that since both personal service and service through diplomatic channels had proved ineffective, and were never going to be effective within any reasonable timescale, service on Mr Azoury was the only method of service which could be effective.

Mr Greatorex for the defendants submitted that while there was no jurisdictional bar preventing alternative service from being ordered in an appropriate case, caution was required and no such order should be made unless it was clear that the alternative service was valid by local law. In this case it was not valid because Mr Azoury had no authority from Mr Baadarani to accept service of English proceedings, the power of attorney did not give such authority and Mr Azoury had never said that it had. He only signed the receipt in order that it should be clear he had received the documents he had received when he took custody of them and that did not amount to an agreement to accept service on his client’s behalf. The invalidity of the service could not be cured by reference to Article 399 or 400 of the Civil Code. He also submitted that, even if the service on Mr Azoury was good service by Lebanese law, it was still alternative service to the service authorised by Morgan J. Any order deeming that service to be good service could only be made during the validity of the claim form and any legitimate extension of that claim form. Since the deeming declaration of the judge was made well after the expiry of the claim form and its first extension ordered by Morgan J it was necessary to show that the extensions granted first by Sales J and later by Lewison J were appropriate which they were not since they deprived the defendants of legitimate limitation defences and would have been unnecessary if the claimants had proceeded more speedily with their claim.

Mr Freedman replied that the whole point of the power granted by the rules to order steps earlier taken to constitute good service was to avoid arguments of this kind.

CPR 6.15 permitting alternative service is in Section II of Part 6 which deals with service within the jurisdiction. It has until recently been controversial whether there is any jurisdiction to order alternative service outside the jurisdiction at all but that controversy seems to have been resolved in favour of the existence of such a jurisdiction by the decision of this court in Cecil v Bayat [2011] 1 WLR 3086. In Bacon v Automaytic Inc [2011] 2 AER Comm 852 Tugendhat J set out the reasons why the existence of the jurisdiction was previously considered doubtful but rightly considered that Cecil v Bayat has now settled the matter, because CPR 6.37(5)(b)(i) which is in Section IV of Part 6 dealing with service out of the jurisdiction provides:-

It follows that a claimant who wishes retrospective validation of a method of service in a foreign country must (save perhaps where there are adequate safeguards which were not present in this case) show that the method of service which is to be retrospectively validated was good service by the local law. Service on Mr Azoury would not be regarded as good service on Mr Baadarani as a matter of English law merely because Mr Azoury was clothed with a general power of attorney. Can Mr Freedman show that the position is any different in Lebanese law?

It is unfortunate that the judge made no findings on this matter but neither side applied for either Mr Azoury or Mr Houssami to be cross-examined and the matter must be determined on the basis of their witness statements. The onus of proof must be on the claimants to show that what they did was good service by the local law and, in my view, they do not discharge that onus. They rely on the power of attorney as authorising Mr Azoury to accept service of any proceedings including foreign proceedings but they must also show that he did in fact accept service of the proceedings on behalf of Mr Baadarani. In my judgment they do not prove either of those matters.

The power of attorney is headed “General Power of Attorney” and is two pages long. The first paragraph describes how Mr Baadarani presents himself to the public notary who witnesses his signature and states that Mr Baadarani elects domicile at his attorney’s office in Beirut. It then records that he authorises and appoints Mr Azoury to:-

Mr Houssami apparently agrees with Mr Azoury as to the formal position because he says, in para 12 of a witness statement of 22^nd October 2010 in response to Mr Azoury’s witness statement of May 2010, that Mr Azoury is correct to say that under the power of attorney he (Mr Azoury) is authorised to act for Mr Baadarani in all proceedings “when he is instructed to do so”. He adds, however, that as a matter of Lebanese legal practice, if Mr Azoury produced the power of attorney in response to being asked whether he is acting for his client in respect of legal proceedings, “he will be taken to be instructed on behalf of his client”. This may be a statement of legal practice but is not said to be the law. It may be sensible in practice that such an assumption can be made but the legal position must depend on the construction of the document, as to which it appears that Mr Azoury and Mr Houssami are in agreement.

Even if this court could look at the practice, there is no statement from the process server or notary public who is said to have asked the relevant question; in those circumstances I would be inclined to prefer Mr Azoury’s account of the matter that, when the documents were brought to his office, he telephoned Mr Houssami and said that he would accept the bundle of documents pending instructions from Mr Baadarani but that could not constitute service.

I do not therefore consider that Mr Azoury could be said to be a person who “declares that he is representative of the person to be served” within Article 400 of the Lebanese Code of Civil Procedures on which Mr Freedman relied nor do I think that Mr Azoury purported to accept service on behalf of Mr Baadarani in any such manner as would justify the English court now saying that alternative service on Mr Azoury should be retrospectively ordered or be deemed already to have occurred. Nor do I consider that Mr Azoury’s signature for receipt can constitute acceptance of service, especially as it was not just the claim form which was served. Mr Mascarenhas in his 3^rd witness statement of 15^th December 2009 made clear to Sales J that there had also been served:-

Particulars of claim containing a large number of allegations in numerous paragraphs;

the response pack;

the original application notice for permission to serve out of the jurisdiction;

Mr Mascarenhas’s two witness statements and exhibits;

Mr Houssami’s first witness statement;

counsel’s skeleton argument for the hearing before Morgan J;

Morgan J’s order as set out in paragraph 12 above; and

a note of the hearing before Morgan J.

Since, therefore, Mr Azoury had no authority in fact to accept service and since he did not, in any event, purport to do so, the delivery of the claim form and associated documentation to him did not, in my view, constitute good service in Lebanese law. I do not, therefore, think that the judge should have retrospectively validated that service as alternative service to that directed by Morgan J unless there was very good reason to do so. The only reason to do so was to avoid the claim becoming time-barred, which is not in itself a good reason (let alone an exceptional reason) for preserving a stale claim. Mr Freedman submits that both personal service and service through diplomatic channels had become impossible, but that impossibility (as to which there was very little evidence) has only arisen as a result of the dilatory way in which the claimants have pursued the English claim. They were asking for trouble by only issuing their claim form shortly before the limitation expired. If the claim form had been issued say 4 years earlier, and a diligent process server had been instructed, Mr Baadarani might well have been served at one of the three address identified by Mr Houssami in his witness statement and the order of Morgan J would have been complied with. 4 years might even have been long enough for diplomatic channels to be effective but it is not suggested that Mr Baadarani could only be served in that manner. If it really was proving impossible to effect service over that long period, an application for alternative service could still have been made well before the six year period had expired and no retroactive gymnastics would have been necessary.

Since the hearing Mr Freedman has sought to rely on Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21 para 36 per Neuberger LJ and Bethell Construction v Deloitte and Touche [2011] EWCA Civ 1321 in support of the proposition that an ineffective attempt to serve a claim form in time by a permitted method (here on Mr Baadarani at his supposed address) may constitute a good reason for a judge to operate CPR 6.15 and deem some form of unauthorised service to be good service.

In the present case both the evidence of the fact (if it be a fact) that Mr Baadarani did in fact reside at the suggested address and the evidence of the attempt to serve him there was very meagre. That evidence does not, in my judgment, show that there was such an ineffective attempt at service to constitute a good reason for not serving him at that address in such a way as to justify even an original order for alternative service pursuant to CPR 6.15(1) let alone an order that a form of service unilaterally chosen by the claimants should be deemed to be good service pursuant to CPR 6.15(2).

For these reasons the judge was, in my view, wrong to have retrospectively validated the invalid service that took place on Mr Azoury on 22^nd October 2009.

That means that Mr Freedman has to rely on the extension of the claim form by Sales J and the subsequent further extension granted by Lewison J together with that judge’s order for alternative service on Mr Azoury or Mr Baadarani’s English solicitors. The reliance is, however, misplaced for the reasons which are very similar to the reasons I have just given for saying that it was inappropriate for the judge to have granted retrospective validity to the earlier invalid service.

The discretion to extend a claim form is well trodden ground. Hashtroodi v Hancock [2004] 1 WLR 3206 establishes that the weaker the reason for the extension, the less likely it is to be granted. In this case the only reason for granting an extension would be to preserve a stale claim which was not served in time because permission to serve it was granted close to the expiry of the limitation period in a manner with which it was difficult to comply within the well-known short time limits which exist for the validity of claim forms. This seems to me a bad reason for exercising discretion in the claimant’s favour.

I would therefore allow the appeal and set aside the order of Sir Edward Evans-Lombe declaring that the steps taken to bring the claim form to the attention of Mr Baadarani amounted to good service of the claim form. Subject to any compelling submissions to the contrary I would also dismiss the action.

I agree.

I also agree.