I have to deal with an application under CPR Part 11 by the First Defendant Mr Ahmad Baadarani (“B”), who, together with the Second Defendant company Cicines Limited (“C Limited”), is sued by the First Claimant, Mr Albert John Martin Abela (“A”), the Second Claimant company, Albert J.M. Abela SRL (“SRL”) and the Third Claimant company, Albert J.M. Abela Catering and Interactive Systems Limited (“Limited”) for various relief based on allegations of fraud as a result of A and Limited having entered into a contract (“the Contract”), dated 26^th March 2002, for the purchase of 40% of the shares in an Italian company, Gama Spa (“Gama”), held by C Limited and a further 2% of such shares held by B. The Claimants allege that A and Limited were persuaded to enter into this contract as a result of fraud by, amongst others, B in concealing from A Gama’s true financial position. It is the Claimants’ case that the main persuasive force was a Mr Haan (“Haan”), a solicitor, consultant with the London law firm Hammonds. Haan was the Claimants’ solicitor at all material times leading up to the Contract retained by A. B was a director of Gama with a Mr Carlo Rami (“Rami”). B had extensive commercial interests in Kazakhstan. A was chairman of Gama but asserts that he played little part in its management at any relevant time. SRL is an Italian company wholly owned by Limited, a Cypriot company controlled by A. At the time of the Contract, SRL held the substantial balance of 52% of the shares in Gama.

In December 1998, A’s father, a very wealthy man with extensive business interests, died. In March 1999, A engaged Hammonds as his solicitors with the primary task of dealing with his father’s estate. As a result he came into contact with Haan. It is A’s case that in the years succeeding his father’s death he suffered from depression and, as a result, became increasingly reliant on Haan in the management and disposition of the substantial assets which had passed to him from his father. In May 2000, SRL acquired 98% of the shares in Gama, the remaining 2% being acquired by Rami, who became Gama’s managing director. Rami was related by marriage to A. In October 2000 a company, Gama K, was incorporated as a subsidiary of Gama and thereafter carried on business, including a hotel business, primarily in Kazakhstan. B became a director of Gama K. In late December 2000, SRL sold 37% of the issued shares in Gama to C Limited, a Cypriot company. It is the Claimants’ case that C Limited is controlled by B but may be owned by his wife. As a result of further transactions, by April 2001 Gama’s shares were held as to 52.04% by SRL, controlled by Limited for A, and 40.82% by C Limited.

It is the Claimants’ case that over the period from the original acquisition of Gama in May 2000, unknown to A, the business of Gama was conducted fraudulently so that its assets were substantially diminished. It is further the Claimants’ case that in January 2002 Haan met B who gave him instructions in relation to his business opportunities in Kazakhstan and from whom Haan was told of B’s wish to sell C Limited’s shares in Gama. Thereafter, it is the Claimants’ case that, with the encouragement of B, Haan and Rami embarked on a campaign to persuade A to repurchase the Gama shares held by C Limited at a price, ultimately $14 million, which shares were, by this time, actually worthless. On 8^th February 2002, at a meeting between A, B, Rami and Haan, agreement was reached in principle for the purchase by Limited of C Limited’s shares in Gama. A written agreement comprising the Contract was signed by the parties on 15^th March 2002 and is dated 26^th March 2002.

The cash consideration for the purchase, of $12 million, was payable in three tranches. The first tranche was payment of $3 million on 26^th March 2002. A second tranche of $4.5 million was payable between 1^st and 15^th May 2002 and the third tranche of $4.5 million on 1^st December 2002 unless the parties agreed earlier payment. The balance of the consideration was met by the transfer of a plot of land in Lebanon to B and by the transfer to B of Gama’s shares in Gama K. The land has been transferred but the transfer of the Gama K shares has not taken place.

For the purposes of the disposal of these applications, it is of importance that at clause 7, under the heading “Governing Law”, the Contract contained a provision that “this agreement shall be governed by the law of England and the parties submit to the non-exclusive jurisdiction of the English courts.”

The second tranche of $4.5 million under the Contract was paid on 24^th June 2002 by A to B. On 28^th June 2002, $180,000 was paid by B to Rami. On 1^st July 2002, $100,000 was paid by B to Haan and on 8^th July $180,000 was paid by B to a Mr Kanafani (“Kanafani”) who worked for Gama and was known to A.

The third tranche under the Contract of $4.5 million together with a sum of $392,687, apparently for interest, was paid on 25^th October 2002. On 26^th November 2002, B paid Rami $325,000 and Kanafani $200,000. On 2^nd December 2002, £350,000 was paid by B to Haan.

There was in evidence a hand-written letter written by Haan, dated 2^nd December 2002, recording the two payments to him, comprising the £350,000 receipt, as loans repayable in one year’s time and making provision for security.

It seems that in early 2003 A became aware of the severe financial predicament of Gama. He proceeded to initiate a series of enquiries into Gama’s affairs. The first, by Firecrest Capital Limited, reported on 3^rd March 2003. The second, by the accountants KPMG, reported on 27^th March. There was an internal Gama enquiry which reported on 2^nd April 2003. Finally, Kroll, the forensic accountants, submitted a report on 20^th May 2003. All these reports demonstrated the dire financial straits of Gama, but none of them identified the payments by B to Rami, Kanafani and Haan.

It is the Claimants’ case that those payments only came to the notice of A in May 2003 and they were specifically identified for the first time in a follow-up report by Kroll dated 26^th June 2003. A description of how, what were described as the “secret payments”, came to light is set out in the sixth witness statement of Trevor Mascarenhas of 25^th October 2010 at paragraphs 21 and 22. It is B’s case that A ought to have discovered the secret payments as a result of the earlier reports into the financial state of Gama. If correct, the claim would incontrovertibly be barred by Limitation.

In July 2003, A severed his relationship with Haan and Hammonds. On 27^th October, he commenced proceedings in the Lebanon against five named defendants, including Rami, Kanafani and B. Those proceedings were mixed criminal and civil proceedings. Proceedings of such type in the Lebanon can be initiated, as in this case, by a report by a private individual which can be taken up by the prosecuting authorities if they think appropriate. The civil claim awaits the result of the criminal charges. By the civil claim the initiator of the proceedings can obtain compensation for any damage he has suffered from the actions of the defendants complained of. It appears that A’s proceedings in the Lebanon have not yet completed the criminal stage. It is B’s case that that delay in completion was, to a large extent, caused by A’s failure to co-operate fully with the proceedings for unexplained reasons. A’s claims in the Lebanese proceedings are very wide and cover the matters raised in A’s civil claims in this country advanced in the present proceedings. Neither SRL nor Limited are claimants in the Lebanese proceedings, but in them B has launched a counter-claim against A seeking to enforce the provisions of the Contract under which he was entitled to receive the shares in Gama K, the Kazakhstan subsidiary of Gama.

In 2007, the Claimants in these proceedings launched proceedings against Haan and Hammonds, the trial of which commenced on 11^th March 2009. The claim was settled within eight days of its commencement upon payment by the defendants of a sum of money, which included a sum representing costs. In the course of the eight-day trial before such settlement, A gave evidence and was cross-examined. A transcript of his cross-examination was amongst the papers before me. It is B’s case that in the course of that cross-examination A gave answers which are inconsistent with the existence of a fraudulent conspiracy between B, Haan, Rami and Kanafani to persuade A to procure the repurchase by Limited of the Gama shares from C Limited upon the terms set out in the Contract. I will refer to these proceedings as “the Haan action”. The claims made against B by A in the present proceedings mirror claims made in the Haan action.

The claim form in the present proceedings was issued on 30^th April 2009. They came before Mr Justice Morgan on 14^th September 2009 when, upon the Claimants undertaking “not to take any further steps in the Lebanese civil proceedings commenced by him in October 2003 to pursue any of the claims in the Particulars of Claim herein”, he:

granted the Claimants permission to serve the claim form and all other relevant documents out of the jurisdiction on B in the Lebanon at an address at Farid Trad Street, Beirut;

pursuant to CPR r7.6(2), extended the six-month period which the Claimants had under CPR r7.5 to serve the claim form on B from 29^th October 2009 to 31^st December 2009;

as an alternative to service of the claim form through consular/judicial channels, which would have required translation into Arabic, gave permission to serve untranslated documentation personally on B at the Farid Trad Street address in Beirut.

Subsequent attempts to effect service of these proceedings at the Farid Trad Street address proved unsuccessful but on 22^nd October 2009 a set of untranslated documents for service were delivered by a Lebanese court official to a Mr Azoury, B’s Lebanese lawyer. Mr Azoury had no instructions to accept service of the proceedings on behalf of his client B. It seems, however, that in the course of the handover Mr Azoury disclosed to the court official a general power of attorney held by him on behalf of B. That document confers very wide powers on Mr Azoury, including the taking delivery of documents on B’s behalf. No acknowledgement of service of the proceedings followed from this event and the first communication between Mr Azoury and the Claimants’ lawyers did not occur until four months later. The proceedings returned to court before Mr Justice Sales on 16^th December 2009 when he made an order further extending the life of the claim form from 31^st December 2009 to 30^th April 2010.

On 22^nd October 2009 the proceedings were served on C. Limited. No attempt has been made to set aside that service.

In February 2010, Mr Azoury communicated with the Claimants’ solicitors returning to them the documents of which he had taken delivery four months earlier. Thereafter, B appointed his present solicitors to represent him in these proceedings.

The matter came back to court on 14^th April 2010 before Mr Justice Lewison when he made an order:

giving the Claimants permission to serve the claim form by alternative means, namely on B’s English and Lebanese solicitors at their addresses in this country and the Lebanon.

Without prejudice to i), giving a further extension of time for serving the claim form until 30^th June 2010.

Adjourning generally the Claimants’ application under CPR 6.37(5)(b) for an order that the steps already taken by the Claimants to bring the claim form to the attention of the First Defendant amounted to good service of the claim form, with permission to restore.

In due course, service in pursuance of Mr Justice Lewison’s order was effected on B’s English solicitors who acknowledged service on his behalf on 1^st May 2010 and issued the present application on 21^st May. The grounds accompanying that application indicated that B was seeking to set aside each of the orders in the proceedings which I have described above.

The relief claimed is as follows:

It is the Claimants’ case that the Contract was made against the interests of A by reason of the fraud and conspiracy of B, Haan, Rami and Kanafani at a time when he was suffering from depression and relied on them, and on Haan in particular, to guide him in the conduct of his affairs. The Claimants claim rescission of the Contract, restitution and compensation in equity arising out of the unconscionable nature of the Contract. The Claimants seek similar relief on the ground that A was persuaded to procure Limited to enter into the Contract by reason of the undue influence of Haan on him at the instance of B and C Limited, and on the ground that B gave dishonest assistance to Haan in the breach of his fiduciary duties to the Claimants arising from the making of the Contract.

The Claimants claim damages for fraudulent misrepresentation by Haan to A at a time when he was acting as B’s solicitor, unbeknown to A, also by Rami and others acting in concert with B. Claims are made directly against B for fraudulent misrepresentation in relation to the value of the Gama K shares to be transferred to him under the Contract.

There are claims in respect of bribery by which the Claimants describe the various payments made by B to Haan, Rami and Kanafani at the time that the Contract was entered into and performed by the Claimants.

It is accepted by the Claimants that in respect of their claims against B the permission of the court is required to serve the proceeding abroad and that CPR 6.36 applies. Accordingly, the grounds prescribed in paragraph 3.1 of Practice Direction B under Part 6 must cover each of those claims.

It has been the Claimants’ submission that the Particulars of Claim in these proceedings pass through the “gateway” of paragraph 3.1 because they all relate to a contract expressly governed by English law; see paragraph 3.1(6)(c) of the Practice Direction. Alternatively, they submit that those claims fit within other sub-paragraphs of paragraph 3.1 in the manner described between paragraphs 38 and 51 of Mr Mascarenhas’ first witness statement which, for the sake of brevity, I will not here set out. In granting permission to serve out of the jurisdiction on 14^th September 2009, Mr Justice Morgan accepted that the Claimants’ claims came within the “gateway” provisions of paragraph 3.1 of the Practice Direction. I do not understand Mr Greatorex, who appeared for the First Defendant, to be submitting that I should set aside the order of Mr Justice Morgan on the ground that he was misapplying paragraph 3.1, although he does not accept that some of the claims being made by the Claimants, in particular the claims in tort, fit within paragraph 3.1.

CPR 6.37 prescribes at rules (2) and (3) what the applicant for permission to serve out of the jurisdiction must show in order to obtain the court’s permission to do so as follows:-

In granting permission to serve out of the jurisdiction, Mr Justice Morgan must have been satisfied that the Claimants’ proceedings were brought within sub-rules (2) and (3). The First Defendant contends that I should now set aside Mr Justice Morgan’s order of 14^th September 2009 upon the ground that the Claimants have failed to satisfy those requirements. I will first consider the First Defendant’s contentions under paragraph (2).

The paragraph (2) requirement requires the claimant seeking permission to serve out of the jurisdiction to satisfy the court that his claim discloses “a real issue which it is reasonable for the court to try”. It is common ground that the test to be applied as to whether there has been demonstrated such a “real issue” is the CPR Part 24 test, namely the “no real prospect of succeeding on the claim” test, which a claimant must overcome in order to prevent his claim being summarily dismissed.

The First Defendant contends that the Claimants have failed to meet this test on two grounds. The first ground is that in settling the Haan action, where the claims substantially covered the claims in the present case, the Claimants settled their claims against B also. The second ground is that the Claimants’ claim is barred by limitation.

The paragraph (3) requirement requires the Claimant seeking permission to show that England and Wales is the “forum conveniens” for the trial of the claim. The First Defendant contends that the Claimants have failed to meet the paragraph (3) test on two grounds. The first ground is that, in the light of the Claimants’ proceedings in the Lebanon, the allegations in which cover the claims in these proceedings, trial in an English court would be trial in a forum non conveniens. The second ground which, in my judgment, is subsumed in the first ground, is that to require the Defendants, in all the circumstances, to defend proceedings in England is a requirement which, as a matter of discretion, the court should refuse.

I will deal with the first ground under paragraph (2).

The Haan action was settled on terms which the parties to it agreed should be kept confidential. When the hearing before me started, it was attended by counsel for Hammonds who sought to persuade me to refuse disclosure to the First Defendant of the terms upon which the Haan action was settled. The defendants to the Haan action were the four entities which comprised the Hammonds solicitor enterprise and, as fifth and sixth defendants, the personal representatives of Haan’s estate, he having died in the course of those proceedings. In the result, I made an order which resulted in the disclosure that, upon the dismissal of the Haan action, the defendants to those proceedings would jointly and severally pay, but without admission of liability, a sum of money to the claimants, but the claimants reserving all of the claimants’ rights against third parties including, without limitation, the Lebanese defendants to the claimants’ proceedings in the Lebanon which I have described above.

My attention was directed to the decision of the House of Lords in Heaton v AXA Equity and Law Life Assurance Society plc & another [2002] 2AC page 329 and to the passage in the speech of Lord Mackay at paragraph 27, where he emphasises that in such cases, and, in particular, where the settlement agreement involved individuals who were not party to the previous agreement of settlement, the determining issue would generally be decided on a construction of the effect of that earlier settlement agreement. Respectfully following that guidance, I have concluded that the effect of the settlement agreement in the Haan action was not to settle the issue between the Claimants and the Defendants in these proceedings. I arrive at that conclusion because that settlement agreement expressly kept open the right of the claimants to proceed against the defendants in the Lebanese proceedings, which include the Defendants to these proceedings, and the payment by Hammonds, which, I was informed, included a payment in respect of the claimants’ costs in those proceedings, was substantially less than the amount being claimed in these proceedings against the Defendants.

Turning to the second ground, the limitation defence: the claim form was issued on 30^th April 2009. Accordingly, any claim based on a cause of action which accrued before 1^st May 2003 would have been statute barred at the date of issue. It is not in issue that the Claimants’ cause of action accrued on the execution of the Contract on 26^th March 2002. However, the Claimants contend that for the purposes of limitation it did not accrue until the Claimants were on notice of the fraud of the Defendants which, they say, was not until they had the secret payments drawn to their attention as a result of the supplemental Kroll report to them on 26^th June 2003. It is the First Defendant’s contention that they should have been aware of the fraud from the moment that they were notified that Gama was insolvent with the consequence that the shares purchased from B and C Limited were valueless, which occurred at least when they received the Firecrest report on 28^th February 2003.

Section 32(1) of the Limitation Act 1980 provides, so far as material:-

I have to decide whether the Claimants have established a case on the material before me, to the standard required in Part 24 cases as described above, that they did not discover the fraud which they allege against B until a date after 30^th April 2003, namely, as they contend, 26^th June 2003 or, as paragraph 89 of Mr Mascarenhas’ first witness statement discloses, late May 2003 in the circumstances which he there describes, and could not have been discovered by them by the exercise of reasonable diligence at a date before 1^st May 2003. The issue is rehearsed on the First Defendant’s side in the grounds supporting the Defendants’ application between paragraphs 32 and 40 and in Mr Greatorex’s skeleton argument in the application between paragraphs 11 and 17, and on the Claimants’ side in Mr Mascarenhas’ first witness statement between paragraphs 86 and 91 and in his sixth witness statement between paragraphs 11 and 23. Mr Greatorex also relied on some of the answers given by Mr Abela in his cross-examination in the Hammonds proceedings as summarised by him in a document before the court.

I bear in mind the cases, mainly decided in Part 24 proceedings and its predecessor Order 14, which warn the court against embarking on a mini-trial of the issues in proceedings on partial evidence and before the evidence of witnesses can be tested by cross-examination. It seems to me that the issue of when A had notice that he had a claim in fraud against the Defendants, or reasonably should have discovered that he had such a claim, is classically an issue which cannot be determined on the available evidence before me. In my judgment, the Claimants have demonstrated a real issue to be tried as to whether A, directly or indirectly, had notice, prior to 1^st May 2003, of a fraud surrounding the making of the Contract, namely, that there had been deliberately concealed from him by the Defendants and/or their associates, that the shares he was buying, or procuring to be bought, were valueless or worth substantially less than the sum that was being paid for them.

I turn to the paragraph (3) test: it was Mr Greatorex’s submission that the events preceding the Contract and the circumstances of Mr Abela at the time the Contract was made, were inconsistent with the Claimants’ case of fraud and conspiracy. He also drew my attention to a number of answers given by Mr Abela in the course of his cross-examination in the Haan action which were inconsistent with such fraud and conspiracy. By contrast the Claimants, on the issue of fraud, based their case on the established fact of the payments by B to Haan, Rami and Kanafani and the timing when those payments were made, shortly after payments under the Contract by Mr Abela. They also point out that the First Defendant’s case that these payments were loans is undermined by the absence of any documentary record that they were paid as loans, showing typical terms of the loans, such as interest and security, save the handwritten letter of Mr Haan, the genuineness of which they question, and by the fact that they were only repaid as loans after it had become apparent that these payments had come to the notice of the Claimants. Again, I have come to the conclusion that this is an issue which I cannot decide and should not decide on the material before me. Again, I come to the conclusion that the Claimants have raised a real issue to be tried as to whether there was such a fraud.

In his grounds, the First Defendant raised challenges and criticisms of the separate claims of undue influence, unconscionable bargain, bribery and dishonest assistance in breach of trust. It was the First Defendant’s submission that all these claims depended on the central issue of whether B and his associates had acted fraudulently with the result that the Claimants had entered into the Contract. I agree. My conclusion is that because I have found a real issue to be tried on the question of fraud, there must equally be such an issue to be tried on the different ways in which the Claimants put their case which are, in reality, the constituent parts of the alleged fraud.

The First Defendant raised a further issue, which was hardly pursued in the hearing before me, namely that the bulk of the damage resulting from the Contract involving a purchase, for a substantial sum of money, of valueless shares, was not suffered by any of the Claimants, but rather by a family trust of the family of A, which funded the purchase. This is plainly a bad point and was not seriously pursued before me. The loss suffered was that of the parties to the Contract and not their funder.

For these reasons, in my judgment, the application based on a failure to comply with CPR 6.37(2) fails.

I turn to consider the First Defendant’s challenge under CPR 6.37(3), namely that an English court would be forum non conveniens.

The First Defendant’s primary contention under this head is based on the fact that on 27^th October 2003 A commenced combined criminal and civil proceedings in the Lebanese court of the type which I have described, in which he was the only plaintiff and B was the third of five named defendants, amongst whom were Rami and Kanafani. Paragraph 6 of the “complaint” in the Lebanese proceedings under the heading “Defendants” contemplates the joinder in the proceedings of further defendants if “any other perpetrator or participant or interferer or instigator as evidenced by the investigation” is discovered. There was no indication that any such further defendant has yet emerged. It is accepted by the Claimants that the allegations by A in the Lebanese proceedings encompass the claims in these proceedings but also raise a number of other issues. As already noted, B raises a counterclaim in the Lebanese proceedings arising from the Contract, namely, to enforce the provision which requires the purchaser to transfer the shares in Gama K to B.

Mr Greatorex forcefully submits that A, in 2003, elected to commence the Lebanese proceedings, notwithstanding the non-exclusive jurisdiction clause in the Contract choosing the English jurisdiction for claims made under it and the choice of English law as the governing law. He drew my attention to the passage in the judgment of Mr Justice Teare in Carafarin Bank v Gholamreza Mansouri-Dara [2009] EWHC 1217, where he says at paragraph 20 that “prima facie it is an abuse of process for a claimant to pursue a defendant for the same debt or damages in two jurisdictions.” He also drew my attention to the passage in the speech of Lord Diplock in the Abidin Daver [1984] 1AC 398 at 411, where he says:-

He also referred to a passage in the speech of Lord Goff in Spilliada Maritime Corporation v Cansulex Limited [1987] AC 460 at page 481 where, having cited authority, Lord Goff says:-

Further in his speech, when giving examples of the exercise by a court of a choice between jurisdictions, he said:-

Mr Greatorex further submitted that the fact that, before Mr Justice Morgan, the Claimants undertook not to take any further steps to enforce, in the Lebanese proceedings, any claims raised in the projected English proceedings, was no real protection for the First Defendant since the undertaking would fall on the conclusion of the English proceedings, and, if the Claimants were unsuccessful, they might raise those same claims again in Lebanon.

In their written submissions, counsel for the Claimants summarised their submissions as to why I should not disturb Mr Justice Morgan’s order giving leave to serve these proceedings on B in the Lebanon on the ground that an English court would be forum non conveniens under five heads as follows:-

To those points the Claimants’ submissions add a further point as an elaboration of (3), not advanced before Mr Justice Morgan, that by Article 23 of the Judgments Regulation (Council Regulation (EC) No. 44/2001), Limited “is entitled as of right under the Judgments Regulation to found proceedings in this jurisdiction against B.” Limited is not a party to the Lebanese proceedings and has made no claims there against B. C Limited has been validly served with these proceedings.

I will consider each of the Claimants’ points in turn.

In Antec International Limited v Biosafety USA Inc [2006] EWHC 47, Mrs Justice Gloster was dealing with an application to set aside an order giving leave to serve abroad in a contractual claim where the contract contained a non-exclusive jurisdiction clause. At paragraph 7 of her judgment the Judge summarised the effect of such a clause, as the law emerged from extensive citations of authority, as follows:-

Mrs Justice Gloster in giving the judgment in the Antec case cited, amongst other authority, the decision of Mr Justice Lawrence Collins, as he then was, in Bas Capital Funding Corporation & ors v Medfinco Limited & ors [2004] 1 Lloyds’ Reports 652. In that case, at paragraph 192 and following of his judgment, Mr Justice Collins says this:-

The Claimants must therefore accept that the presence of the non-exclusive jurisdiction clause in the Contract does not have the considerable weight in favour of the Claimants’ contentions that it would have had had the Lebanese proceedings not been commenced by them.

That the Contract provides that English law should be the proper law of the Contract is certainly a matter which should be taken into account. However, it must be said that the Claimants have not identified any issues of law of which it can be said that the English courts are best placed to decide.

This point should be taken with the further point raised for the first time before me under Article 23 of the Judgments Regulation and should be joined with the point raised under paragraph (4) that the proceedings in Lebanon do not involve the same parties as the present proceedings. Limited is a company “domiciled” in Cyprus for the purposes of Article 23 and Cyprus is a “Member State” of the European Union. It follows that since clause 7 of the Contract constitutes an agreement that the courts of a Member State, namely the United Kingdom, “are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, (namely, that arising from the Contract and the circumstances of its being entered into) those courts shall have jurisdiction.” It would seem from the decision of the European Court of Justice in Owusu v Jackson [2005] QB 801 (ECJ) that that conclusion cannot be disturbed by the normal rules of forum conveniens even though they may point in another direction. See per Lewison J in Skype Technologies v Joltid Ltd & others [2009] EWHC 2783 (Ch) and see also the review of the authorities on this point in the judgment of Miss Theis QC in JKN v JCN [2010] EWHC 843 (Fam) para. 93-102. The present is not a case like that considered by the Court of Appeal in Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328. In the present case, the English court combines “personal jurisdiction” and “subject matter jurisdiction”.

The fact that there have been many years of inaction in the Lebanese proceedings and that the criminal proceedings have not yet been completed and the civil proceedings not started does not seem to me to advance the question much further since the responsibility for this delay is unclear and it is the First Defendant’s contention that the responsibility lies with A.

It will undoubtedly be a burden on B to have to litigate in two countries simultaneously claims and cross-claims which arise from basically the same facts, notwithstanding that as a result of the undertaking given, the Claimants are precluded from pursuing the claims in the present proceedings in the Lebanese proceedings. However, in an anti-suit injunction case, Deutsche Bank AG v Highland Crusader Partners [2010] 1WLR at page 1051, Lord Justice Toulson, under the heading “Conclusion” at paragraph 105 says:-

Finally on this issue, the Claimants’ case on forum non conveniens is set out between paragraphs 40 and 53 of the Claimants’ skeleton argument before Mr Justice Morgan. There is no material evidence before me which was not before Mr Justice Morgan. The only difference in our situations is that I have had the benefit of Mr Greatorex’s submissions and they have not persuaded me to depart from the conclusion that he arrived at. Contrary to the submissions of Mr Greatorex, it seems to me that the undertaking given by the Claimants to Mr Justice Morgan not to pursue the claims in the present case in the Lebanese proceedings are sufficient to protect the First Defendant from having to defend the same claims in two jurisdictions and the parties from the possibility of conflicting judgments. In any event, I would be prepared to reconsider the terms of the undertaking with counsel if the First Defendant remains dissatisfied in this regard.

I accept that because A started the Lebanese proceedings before these proceedings, the existence of the non-exclusive jurisdiction clause in the Contract is not decisive of this issue. However, I have, on balance, come to the conclusion that the English court would not be forum non conveniens. For this conclusion I rely primarily on point (3.) of the Claimants’ summary and the fact that Limited, the main Claimant, is entitled to commence proceedings in this country by the combination of its domicile in an EU state, the non-exclusive jurisdiction clause, and that it is not a party to the Lebanese proceedings either as claimant or defendant. That the proper law of the Contract is English law is also a factor. Other issues such as residence of the principal actors, their language abilities and that some of what appear to be important events took place in this country are of less importance but point towards the same result.

For these reasons, in my judgment, the application based on failure to comply with CPR 6.37 fails.

Under this heading, B has three applications:-

an application to set aside the order of Mr Justice Morgan of 14^th September 2009 extending time for serving the claim form from 29^th October 2009 to 31^st December 2009;

to set aside the order of Mr Justice Sales of 16^th December 2009 extending time for serving the claim form from 31^st December 2009 to 30^th April 2010;

to set aside the order of Mr Justice Lewison of 14^th April 2010;

The Claimants have cross-applications for:-

a declaration that in the events which have happened there has been good service of the claim form on B;

an order further extending time for serving the claim form to enable it to be served through British Consular channels in the event that previous extensions stand but the order for alternative service made by Mr Justice Lewison is set aside.

It is convenient to deal first with the Claimants’ cross-application (a) above. This application centres on the delivery of the claim form and its associated documents in their English form i.e. not translated into Arabic, which would be required for service under Lebanese law and thus for service by the British Consular authorities, to Mr Azoury. The evidence of the events relevant to this issue is contained in the second witness statement of Mr Houssami, the Clamaints’ Lebanese lawyer, dated 22^nd March 2010, paragraphs 3-10 of Mr Azoury’s witness statement dated 20^th May 2010 and paragraphs 4-14 of Mr Houssami’s third witness statement dated 22^nd October 2010. When Mr Justice Lewison made his order of 14^th April 2010, he delivered a short judgment. Paragraphs 2-4 of that judgment read as follows:-

In the course of those passages in his judgment, Mr Justice Lewison made a number of findings of fact as to the events surrounding the delivery of the claim form to B’s Lebanese lawyer on 22^nd October 2009 and what happened to those documents after delivery until they were returned by him to the Claimants’ solicitors. He has found that the claim form and its associated documents have not only been retained by B’s Lebanese lawyer, they have also, or a copy of them, been in the hands of B’s English lawyers prior to writing their long letter of 25^th March 2010. These findings do not depend on the Claimants’ evidence directed to the issue but can be made from the evidence of Mr Azoury, the First Defendant’s witness, and the First Defendant’s English solicitors’ letter of 25^th March 2010. Mr Justice Lewison finds that B must have been fully aware of the contents of the claim form. Such a finding of fact seems to me inevitably to follow from his other findings which, because of their source, are, in my judgment, unchallengeable.

CPR 6.15 provides:-

The rules relating to the service of claim forms and other documents outside the jurisdiction are contained in section IV from CPR 6.30 onwards. CPR 6.30 provides:-

As already noted, CPR 6.36 defines the proceedings in respect of which permission of the court is required for service abroad. CPR 6.37 contains rules governing an application for such permission. Materially for this judgment sub-rule (5) of that rule provides:-

CPR 6.40 makes “general provisions” as to the method of service of proceedings out of the jurisdiction as follows:-

In his third witness statement Mr Houssami states that service of proceedings on a duly authorised legal representative of a party is lawful service under Lebanese law and that such authority to accept service can be, and usually is, established by the production, as happened in this case, by the legal representative of a sufficiently widely drawn power of attorney. It is also relevant to point out that sub-rule (4) need not be read as requiring any method of service “directed” under CPR 6.37(5) to be a method of service prescribed by the relevant foreign country’s rules. The method of service directed must not constitute an illegal act under the law of the host state.

The question is, therefore, whether rule 6.15(2) can be used, as it is used in respect of issues as to service in proceedings where the parties are within the jurisdiction, to retrospectively accept the parties’ actions as constituting good service where the defendant is resident abroad.

In GMC v Benjamin [2010] EWHC 1761 (Admin), Mr Justice Nichol was concerned with the service of proceedings by the General Medical Council on a doctor resident in the UAE in respect of whom conventional methods of service abroad were proving impractical. At paragraphs 20 and 21 of his judgment, he says this:-

At paragraph 25 in his judgment in the Andrew Brown case, referred to by Mr Justice Nichol, Mr Justice Andrew Smith is recorded as saying this:-

In a supplemental written submission sent to me after the close of argument by Mr Penny, junior counsel for the Claimants, my attention was drawn to a further authority, the decision of Judge Chambers QC, sitting as a Judge of the High Court, in Amalgamated Metal Trading Limited v Alain Baron [2010] EWHC 3207 (Comm) in respect of which judgment was given on 21^st December 2010. The judge in that case was concerned with whether the provisions of rule 6.15(1) could be read into the rules governing service of proceedings abroad so as to enable him to authorise that in the proceedings with which he was concerned. The relevant part of his judgment lies between paragraphs 62 and 85, the remainder of the judgment being concerned with whether the discretion to order alternative service abroad should be exercised in favour of the claimants. Judge Chambers also relied on paragraph 25 of Mr Justice Andrew Smith’s judgment in the Brown case. He arrived at his conclusion that he had a power to direct alternative service in such a case because that power was to be implied into CPR 6.37(5)(b), namely the power to “give directions about the method of service”. This differs from the approach of Mr Justice Nichol in the GMC case, who appears to accept the submission of counsel for the claimants before him that the court “should accept that the power to allow alternative methods of service which is referred to in rule 6.15 of Part 6, although expressly dealing with service within the jurisdiction, ought to be construed as being capable of extension to service outside the jurisdiction”. Judge Chambers rejects that approach.

At paragraph 79 and following of his judgment, Judge Chambers says this:-

I accept Mr Penny’s written submission that there is no reason to differentiate between the power conferred by CPR 6.15(2) and 6.15(1). Just as the power to order alternative service in a service abroad case is to be found either from a construction of CPR 6.37(5)(b)(i) or is to be implied generally into the rules governing service abroad because that must have been the intention of the drafter of the 2008 amendments to CPR rule 6, so CPR 6.37(5)(b)(i) is to be construed as conferring the power under CPR 6.15(2) on the court dealing with service abroad or such a power is to be implied into CPR 6.37(5).

For these reasons, in my judgment, there is a power under the rules similar to that conferred by CPR 6.15(2) which the court can exercise when considering whether events surrounding the service of proceedings abroad are capable of constituting proper service of those proceedings in the sense that the court can be satisfied that the proceedings have been properly brought to the attention of the defendant.

In my judgment, the declaration sought by the Claimants in this case should be made. The evidence before Mr Justice Lewison and before me is sufficient to demonstrate that this is an appropriate case for the use of the power. The principal reasons for doing so are that the method of service through diplomatic channels in Lebanon has proved impractical and any attempt to pursue it further will lead to unacceptable delay and expense. B has demonstrated that he is unwilling to co-operate with service of the proceedings by disclosing his address in the Lebanon, but, and most importantly, it is clear that B, through his advisers, is fully apprised of the nature of the claim being brought.

The delivery of the claim form and supporting documents to B’s Lebanese lawyer on 22^nd October 2009, which I have found is to be treated as good service of the proceedings, took place during the initial six-month period of validity of the claim form. Accordingly, my conclusion means that the three orders for extension of the validity of the claim form were unnecessary and I need not deal with the question of whether those orders are to be set aside as the First Defendant contends. Nor need I deal with the Claimants’ application for a yet further extension of that validity. However, before leaving this judgment I should say this in relation to the First Defendant’s applications to set aside the three orders for extension: the Claimants’ counsel’s written submissions, which I accept, summarise the principles that the court should apply in deciding whether to grant an extension of time for the service of a claim form under CPR 7.6 as they emerge from the decision of Mr Justice Ramsey in Imperial Cancer Research Fund v Ove Arup [2009] EWHC 1453 (TCC) as follows:-

In those written submissions counsel, at some length, summarised the evidence which was before the judges who made the three orders extending time and such additional evidence as is before me. In my view, I am not in any substantially better position to judge whether the requirements of the rules have been met in respect of each of the applications for extension of time than the judges who dealt with those applications ex parte. With respect to those judges, it seems to me that they had ample material before them which justified their making the orders which they did and I can see no reason such as would justify my interfering with them.

My conclusion, therefore, is that I must dismiss all of the First Defendant’s applications and I will stand over the Claimants’ second application.