AB Bank Ltd, Off-Shore Banking Unit (OBU) v Abu Dhabi Commercial Bank PJSC

On 29 January 2016 Cooke J., at a without notice hearing, made a Norwich Pharmacal Order against Abu Dhabi Commercial Bank PJSC (“ADCB Dubai”), a bank in the UAE. ADCB Dubai now seeks an order setting aside that order. The application raises the question whether the court has jurisdiction to permit service out of the jurisdiction of an application for the grant of a Norwich Pharmacal Order.

The Claimant, AB Bank Limited, a Bangladeshi Bank, claims to have been the victim of a fraud. The facts alleged are set out in Particulars of Claim attached to a claim form issued on 30 June 2016 but which has not yet been served. It is alleged that the Claimant wished to raise funds in the UAE which it intended to lend in the domestic Bangladeshi market. To that end it entered into a Wakala or Sharia-compliant agency agreement with Pinnacle Global Fund PTE Limited, a Singaporean company. It did so with effect from 17 November 2013. In February 2014 a meeting took place in Dubai at the offices of ADCB Dubai. Officers of the Claimant thought they were dealing with employees of ADCB Dubai and that they were arranging for the setting up of a joint account. Pursuant to what they thought had been agreed the Claimant paid a sum of US$20m. into an account with ADCB Dubai for the purposes of the Wakala agreement. But between 2 March 2014 and 28 December 2014 that sum was paid out and the Claimant does not know to whom. The Claimant entered into discussions with Pinnacle for the return of the US$20m. Those discussions were in London and led to an amendment to the Wakala agreement pursuant to which the governing law of the transaction was agreed to be English and the English court was agreed to have jurisdiction in respect of any claims. The US$20m. has never been recovered.

The alleged fraud has no connection with England save that (i) the provisions of the amended Wakala agreement provide for English law and jurisdiction, (ii) that amendment was negotiated and executed in England and (iii) the amendment is said by the Claimant to be a continuation of the fraud.

No allegations of fraud are made against ADCB Dubai but it is said to be sufficiently mixed up in the events giving rise to the fraud that it is appropriate to make a Norwich Pharmacal Order against it. The Claimant considers that ADCB Dubai has information as to where the sums in question went. This information may assist the Claimant in advancing a proprietary claim.

An order permitting service out of a claim form may only be made if the claim can be brought within one of the jurisdictional gateways set out in the Practice Direction to CPR Part 6. In Documentary Evidence 12^th.ed. at p.73 Mr. Hollander QC has said that there is no obvious basis for service out of the jurisdiction of a claim for Norwich Pharmacal relief. Nevertheless, three gateways are relied upon in this case.

The first gateway relied upon is that the claim is for “an interim remedy under section 25(1) of the Civil Jurisdiction and Judgments Act 1982”; see PD 6B paragraph 3.1(5). The submission by Ms. John, counsel for ADCB Dubai, is that a claim for a Norwich Pharmacal order is a claim for substantive relief; see Lockton Companies International & Others v Persons Unknown and Google [2009] EWHC 3423 (QB). The relief sought, that is, the making of the Norwich Pharmacal order, is the final relief sought against the Norwich Pharmacal defendant. The contrary submission by Mr. Ayres QC, counsel for the Claimant, is that an interim remedy for the purposes of and in the context of PD 6B is relief which is granted in support of substantive foreign proceedings yet to be resolved. In the present case foreign proceedings may be commenced once ADCB Dubai, pursuant to the Norwich Pharmacal order, discloses the information it has as to where the US$20m. went. Counsel said that foreign proceedings are still “very much on the cards, but cannot get going until the Claimant finds out the first stop for its missing US$20m.”

I was told that there is no English decision on this question. “Interim relief” is defined in section 25 of the Civil Jurisdiction and Judgments Act as “interim relief of any kind which [the Court] has power to grant in proceedings relating to matters within its jurisdiction, other than (a) a warrant for the arrest of property or (b) provision for obtaining evidence.” It was not suggested that an application for a Norwich Pharmacal order was a “provision for obtaining evidence.”

I accept that in determining whether a claim is for an interim remedy one has to have regard to the object of PD 6B paragraph 3.1(5). The object of that gateway is to enable the court to permit service out of the jurisdiction of an application for interim relief in the context of foreign proceedings. The usual example of such relief is a freezing order in support of foreign proceedings. Although, as a matter of English law, the basis upon which a Norwich Pharmacal order is justified is different from the basis upon which a freezing order is justified both orders are in a real and practical sense orders in aid of foreign proceedings. A freezing order is designed to ensure that a defendant retains assets against which a judgment can be enforced if and when judgment is obtained in the foreign proceedings. A Norwich Pharmacal order is, in the present case, designed to ensure that the Claimant has the necessary information to enable him to bring proceedings in a foreign jurisdiction. Each remedy is in a real sense “interim”.

However, it is to be observed that the gateway is not available to permit service out of an application for Norwich Pharmacal relief in support of proceedings within the jurisdiction (because that would not be an application for an interim remedy under section 25). It is difficult to conceive of a reason why the draftsman would wish to provide a gateway for service out of an application for Norwich Pharmacal relief in support of foreign proceedings but not in support of domestic proceedings. That suggests to me that the object of the gateway was to enable service out of applications for relief in support of foreign proceedings where the relief was sought against the defendant in the foreign proceedings and was interim as between the claimant and the defendant, such as would be the case with a freezing order. Where the only actual or intended proceedings against a defendant are within the jurisdiction, service out of an application for interim relief would not be required either because the defendant was within the jurisdiction or because permission had been granted to serve the substantive proceedings out of the jurisdiction. That would explain why PD 6B para.3.1(5) applies only in the case of foreign proceedings.

I consider this to be a compelling reason for accepting the submission of ADCB Dubai in this case. In order for a claim to be for an “interim remedy” within the meaning of the PD 6B para. 3.1(5) it must be “interim” as between the applicant for such relief and the respondent to the application. An application for Norwich Pharmacal relief is not interim in that sense. It is the final relief sought against the respondent. There will be no further proceedings against the respondent which would justify describing the remedy as interim.

This issue has been aired in other jurisdictions. In Secilpar SL v Fiduciary Trust Limited (2004) the Court of Appeal in Gibraltar (Glidewell P., Stuart-Smith JA and Otton JA) considered that the Chief Justice had been “clearly right” to hold that an application for Norwich Pharmacal relief was interim. However, the contrary was not argued before the Court of Appeal, though it may have been argued before the Chief Justice. The Chief Justice had held that the order was interim because it is “ancillary to proceedings ongoing in another jurisdiction and is in no way final in the sense that it determined liability or concludes those proceedings”.

In Morgan and Morgan Trust Corporation Limited v Fiona Trust and others (2006), a decision of the Court of Appeal in the British Virgin Islands, the issue arose whether a Norwich Pharmacal order was an interlocutory order which could only be appealed with leave. The approach of the Gibraltar Court of Appeal was followed. In addition it was said that the order was interim because it had been made without notice and so was not a final order and, when the order was made inter partes, it was made “until further order”. That decision was challenged in a later case in the British Virgin Islands, TSJ Engineering Consulting Limited v Al-Rushaid Petroleum Investment Company (2010), but was followed by the Court of Appeal. An argument very similar to that advanced before me by Ms. John was advanced, namely, that a Norwich Pharmacal order was made when a cause of action existed to establish a duty to provide certain information and that when that cause of action was established and the order made there were no outstanding issues to be determined so that the order was final, not interim. That argument was rejected. Rawlins CJ said at paragraph 30:

“Its purpose [the purpose of the application for a Norwich Pharmacal order] is to seek information to support a cause of action in other proceedings, and is ancillary to those other proceedings. It does not itself create a substantive cause of action.”

The court also said that because the order ended “unless the court otherwise orders” it was not a final order but an interlocutory order.

These authorities have been commented upon in Disclosure of Information, Norwich Pharmacal and Related Principles by Bushell and Milner-Moore at pp.223-226. The editors say that Norwich Pharmacal relief “has traditionally been seen through the eyes of English jurisprudence as a self-standing cause of action, rather than a form of interim relief” and the approach of the Gibraltar and British Virgin Islands courts has been said to be “inconsistent with the …traditional analysis of Norwich Pharmacal relief as final relief”. These observations mirror the submissions of Ms. John before this court.

The authorities in Gibraltar and the British Virgin Islands are not binding on this court. With great respect I am unable to follow them. For the reasons that I have already given I consider that PD6B para.3.1(5) contemplates relief which is an interim remedy as between the claimant and ADCB Dubai.

The order made in the present case provided for a return date and so could be said, following those authorities, to have been an order for interim relief on that account. I do not consider that to be correct. The remedy sought in the present case was a final Norwich Pharmacal order based upon the duty of a person “mixed up” in a fraud to assist the person wronged by giving him information which will assist him in righting the wrong. Such an order may initially be made ex parte but that does not make it an interim remedy for the purposes of PD 6B para.3.1(5).

The second gateway relied upon is that the claim is for “an injunction ordering ADCB Dubai to do or refrain from doing an act within the jurisdiction”; see PD 6B paragraph 3.1(2). The order made by the court requires ADCB Dubai to “obtain and/or take all reasonable steps to procure the information listed ……….below and provide to the Applicant a witness statement/affidavit made by a responsible officer which identifies [certain matters] ………….”. This is an injunction but the question is whether it orders ADCB Dubai to do something within the jurisdiction. The steps it would take pursuant to the injunction to procure the requested information would be taken in the UAE. It is then required to provide the Claimant with a witness statement or affidavit. It seems to me that if it gave a representative of the Claimant the witness statement or affidavit in the UAE or in Bangladesh (where the Claimant is located) there would be compliance with the order. That shows that the injunction does not require any action within the jurisdiction. Of course, ADCB Dubai could also comply with the order by providing the applicant’s solicitors in England with the witness statement or affidavit. But the injunction does not require such action within the jurisdiction. For that reason I consider that the claim also fails the second gateway.

Bacon v Automattic Inc and others [2011] EWHC 1072 (QB) was an ex parte decision in which permission to serve an application for Norwich Pharmacal relief out of the jurisdiction was sought and obtained on the basis that the defendants (who were based in California or Colorado) were required to do an act within the jurisdiction, namely, disclose to the solicitors [for the Claimant] the information sought; see paragraph 18. The principal matter considered by the judge was not the question of the gateway but the question whether the court had power to permit service by an alternative method, namely, email. So the basis upon which the judge considered that the injunction sought required ADCB Dubai to do an act within the jurisdiction is not apparent. It is possible that the order sought specifically mentioned providing the requested information to solicitors in London. This decision has been criticised; see Hollander at paragraphs 4.17-4.18 and Bushell and Milner-Moore at pp.228-229. In any event, for the reasons I have already given, I do not consider that the injunction in the present case required ADCB Dubai bank to do anything within the jurisdiction.

The third gateway relied upon is that the claim is against a “necessary or proper party”; see PD 6B paragraph 3.1(3). For this gateway to apply there must be a claim against the “anchor” defendant and there must be a real issue between the claimant and that defendant which it is reasonable for the court to try. It is assumed that this condition is met. The Claimant has a fraud claim against Pinnacle Global Fund Limited which it wishes to serve. The allegation of fraud is a real issue which it is reasonable for the court to try. The next condition is that the claimant wishes to serve the claim form on another person who is a necessary and proper party to that claim. But in the present case the Claimant does not wish to serve the claim form alleging fraud on ADCB Dubai; no allegation of fraud is made against that bank. This is not a case where a person outside the jurisdiction is liable to the claimant jointly with a defendant within the jurisdiction which is the typical circumstance in which it is said that the person outside the jurisdiction is a necessary and proper party. In the present case the person outside the jurisdiction is not said to be liable for the fraud alleged against a defendant within the jurisdiction. The Claimant wishes to serve a claim form raising a quite different cause of action, namely, that which establishes a basis for Norwich Pharmacal relief. That claim would be established long before the fraud claim was established. The two claims would never be tried together. I do not consider that ADCB Dubai is either a necessary or a proper party to the action alleging fraud.

There are two cases to be mentioned in this context. First, it is recognised that a party not shown to be arguably liable in any action may not be made a party to proceedings simply in order to obtain discovery; see Unilever PLC v Chefaro Proprietaries Limited [1994] FSR 135 per Glidewell LJ at p.4 of the judgment. This case did not consider whether a Norwich Pharmacal defendant could be a necessary and proper party to the proceedings in support of which information is sought but the approach of the Court of Appeal is consistent with my view that such a defendant could not be a necessary and proper party. Second, there is the case of Lockton Companies International and others v Persons Unknown and Google [2009] EWHC 3423 (QB). That was an ex parte decision of Eady J. in which he considered whether a Norwich Pharmacal defendant (Google) could be said to be a necessary and proper party to an action against Persons Unknown (thought to be within the jurisdiction) in which action allegations of defamation, harassment and infringement of data protection legislation by way of emails were made. The judge upheld a submission that Google was a necessary party because it was necessary to obtain an order against it to disclose information which would lead to the identification of the persons unknown. With respect, and bearing in mind that the judge did not have the benefit of any argument to the contrary which I have had, I am unable to agree with that approach for the reasons I have given. For completeness I note that the decision in Lockton has been criticised by Hollander at paragraphs 4.17-4.18 and by Bushell and Milner-Moore at paragraph 14.3.1.

I have therefore concluded that in this case there is no gateway through which the claim for Norwich Pharmacal relief can pass. It follows that the order for service out of the jurisdiction must be set aside.

In case I am wrong and the claim can pass through one of the suggested gateways, I will indicate what my decision would have been. The question then would be whether, in the exercise of the court’s discretion, it was a proper case for service out. The position now is (though it was not the case when the application for service out was made) that there is a related action before this court (though it is yet to be served). Although that action is not the action in aid of which the Norwich Pharmacal relief is sought (that is a contemplated action in another jurisdiction) the existence of a closely related action in this jurisdiction would probably be sufficient to make it proper to order service out of the claim for Norwich Pharmacal relief. However, there is another factor upon which Ms. John relies to show that it would not be proper to make such an order, namely, the risk that compliance with this court’s order in the UAE would be a breach of that country’s penal code.

Reliance is placed on expert evidence from Al Tamimi and Co., a firm of UAE lawyers. That evidence is to the effect that the order of this court is not binding on ADCB Dubai in the UAE and that there is a possibility that ADCB Dubai may be in breach of UAE law if it were to comply with the order. There does not appear to be any real dispute with the first proposition. A UAE lawyer employed by Clyde and Co. and instructed by the Claimant has stated that it would be “challenging” for an interim order of a foreign court to be recognised and enforced in the UAE. There is however a dispute as to the second proposition.

Al Tamimi relies upon article 379 of the UAE Penal Code which provides that disclosure of a secret in cases other than those permitted by the law shall be punishable by custody and a fine unless the one to whom the secret pertains has consented that it be disclosed. Al Tamimi considers that the information required to be disclosed by the order of this court would be a “secret” and that the only basis on which the information could legitimately be disclosed would be pursuant to a court order (that is, an order of a local court of the UAE) or by providing the information to the UAE Central Bank which would then itself disclose the information. In this regard reliance was placed upon Circular No.257 of 9 March 1976 from the Central Bank.

Clyde and Co. accepts that article 379 applies to financial institutions but adds that the information could be disclosed if the relevant client’s consent to disclosure has been obtained prior to disclosure. Clyde and Co. further say that a prior and general consent to disclosure by the client could suffice. In this regard counsel referred me to ADCB Dubai’s actual terms and conditions. (Clyde and Co. had not done so but had instead referred to standard terms recommended by the Central Bank.) Section G clause 2 is headed Disclosure of Information and provides as follows:

“2.1

The Account Holder irrevocably authorizes and permits the Bank as it deems fit to disclose and furnish, both inside and outside the United Arab Emirates information, including financial information, concerning the Account Holder and the Account(s) with the Bank (the “Information”) to the Bank’s subsidiaries, affiliates, associates, branches, service providers, assignees, agents, insurers, third party contractors, third party banks and financial institutions, credit bureau or reporting agencies, debt collection agencies or any other persons.

2.2

The Account Holder also irrevocably authorizes and permits the Bank to disclose and furnish the Information in case there are any proceedings brought by the Bank against the Account Holder or vice versa, or by any third party against the Account Holder or the Bank in respect of the Account(s) or transactions with the Bank.

“2.3

The Account Holder authorizes the disclosure of information in all of the cases mentioned above without the need for prior consent or approval or notification in any manner whatsoever. ”

In response Al Tamimi said that a general pre-approval “would be interpreted and treated narrowly, and limited to disclosures made by a bank in its normal course of business. Therefore an express specific approval would be the only way to effectively override the restrictions under UAE law.” There was no response from Clyde and Co. as to this opinion.

The hearing of this matter could not be finished on 5 July 2016 and was then fixed to be concluded on 28 July 2016. By that time the Claimant had instructed another lawyer, Mr. Kanaan who practises in Dubai. He expressed the opinion that clause 2, and in particular clause 2.2, constituted the express specific approval required as a matter of UAE law which would permit a UAE Bank to comply with a disclosure order from an English Court. I infer from this that Mr. Kanaan accepts that UAE law requires express specific approval as stated by Al Tamimi.

In response, Al Tamimi said that whilst it is common for banks in the UAE to contain general disclosure approvals in their terms and conditions, they are limited to the provision of information in the normal course of the bank’s business and they had never seen such general approvals used to disclose information to a third party such as this court. Al Tamimi maintained its opinion that ADCB Dubai’s terms and conditions would not be interpreted as an express specific approval to permit the provision of the information in question.

On 8 March 2016 ADCB Dubai, through its solicitors, stated that it was willing to write to the Central Bank to seek guidance as to whether the documents might be disclosed and was willing for the Claimant to join it in submitting a joint application to the Central Bank on the issue. On 9 March the Claimant, through its solicitors, requested more details about the proposed approach, doubted that the Central Bank would entertain a request from the Claimant and said that the will to disclose must come from ADCB Dubai. On 14 March 2016 the Claimant referred to the letter of 9 March 2016 and requested a detailed response. On 18 March 2016 ADCB Dubai said that it had made a reasonable offer to seek guidance from the Central Bank and to submit a joint application on the issue. ADCB Dubai was willing to agree the wording of an application and hoped that the Claimant’s questions had been answered. However, there was no further response and so on 4 April 2016 ADCB Dubai wrote to the Central Bank informing it of this court’s order and stating that it understood that “local regulations do not permit us to take action based on an order from a foreign court” and that it could only release customer information “where we receive an order from either a local court (ie UAE based) or Central Bank of UAE.” ADCB Dubai went on to say that it had been argued that its terms and conditions gave a discretion for release information to third parties but that it did not understand that “general contractual rights override regulations issued by our regulator.” ADCB Dubai urgently requested the Central Bank to approve its interpretation or approve the release of documents pursuant to the UK court order.

Counsel for the Claimant criticised the terms of the letter to the Central Bank dated 4 April 2016. I agree that it might have been better if clause 2 of ADCB Dubai’s terms and conditions had been quoted and if a copy of Al Tamimi’s advice had been appended. However, given the offer made by ADCB Dubai to agree the terms of any approach to the Central Bank I do not consider that ADCB Dubai can be criticised for the terms of their letter to the Central Bank.

On 7 April 2016 the Bank replied as follows:

“While agreeing with your interpretation, you may proceed further in accordance with 2007 Treaty between UAE and UK on Mutual legal Assistance. While writing to the court, you may highlight the legal restriction on the bank to pass on any customer related information to third parties without prior approval of the Central Bank. It will therefore be necessary to follow the protocol given in the Treaty in order for the Central Bank of the UAE to pass on the required information to the court in the UK thought the proper channels.”

Although I was urged by Mr. Ayres QC to hold that the terms and conditions plainly authorised the Bank to disclose the requested information, I do not consider that I can do so. Whilst clause 2 would appear to an English lawyer to authorise the Bank to disclose the requested information, the question is one of UAE law. Al Tamimi have expressed the opinion that a general pre-approval “would be interpreted and treated narrowly, and limited to disclosures made by a bank in its normal course of business”. They went on to say that “an express specific approval” was required to override the restrictions under UAE law. Mr. Kanaan appears to agree that express specific approval is required. There is a dispute as to whether clause 2 of the terms and conditions would be construed as amounting to such approval. Al Tamimi does not think it would be so construed. I am not persuaded that they are wrong to express that view. Clause 2 is general and not specific. I therefore accept that there is a risk that the Bank would breach the law of the UAE were it to comply with the order of this court. This risk appears to be supported by the response of the Central Bank to the Bank’s request to approve the disclosure which has been ordered by this court.

Mr. Kanaan raised a new point based upon Article 407 of the Penal Code. However, whilst it provides for a criminal offence of acquiring or concealing property derived from crime it does not appear to say anything about the circumstances in which information may be disclosed. Although Mr. Ayres referred to it in his supplemental skeleton argument he made no oral submissions about it. I do not consider that it assists the Claimant’s case.

In those circumstances I would not have concluded that this was a proper case in which to order service out of the jurisdiction. It would not be proper because (i) there is a risk that compliance with a Norwich Pharmacal order might be a breach of UAE law and (ii) there is a means by which the information could be provided in the UAE, namely, by seeking the consent of the Central Bank and requesting it to pass on the information pursuant to Circular No.257, which Mr. Ayres QC accepts is still in force and upon which Mr. Kanaan has not commented. It seems to me that it would be far more appropriate for ADCB Dubai and the Claimant to co-operate in making such an application rather than for this court to seek to exercise an exorbitant jurisdiction over a foreign bank. Indeed, in matters of this nature authority suggests that the court should exercise restraint before deciding to exercise an exorbitant jurisdiction over a foreign bank; see Mackinnon v Donaldson Lufkin and Jenrette Securities [1986] 1 Ch. 482 per Hoffman J. at pp.493 G, 495 C - 496 E, 497 C-E and 498 D-E. The court in that case recognised that exceptionally such orders may be made where they can be excused “by the commercial equivalent of hot pursuit.” But there is no question of urgency in the present case. The sum of US$20m was paid out in 2014.

It is necessary to add that article 379 of the Penal Code was a material matter for the court to consider on the ex parte application and ought to have been disclosed. It was not. It is unnecessary to decide whether the order should have been discharged on that ground alone.

That however is not an end to this matter because the Claimant has raised two new arguments. First, it is said that ADCB Dubai has submitted to the jurisdiction and, second, it is said that ADCB Dubai has a place of business within the jurisdiction at which ADCB Dubai was served on 10 June 2016.

The submission to the jurisdiction allegedly took place during a hearing in February 2016 of the return date when Cooke J. set aside the Norwich Pharmacal order in so far as it had been made against ADCB UK. It is said that counsel “unequivocally and deliberately promoted the position of ADCB Dubai” by seeking the removal of the penal notice in the order made against ADCB Dubai and an order for costs in its favour.

Mr. Ayres QC accepts that ADCB Dubai’s “evidence, correspondence and prior Skeleton Arguments are hedged around with the usual disclaimer about non-submission” but submits that the disinterested bystander would have regarded the actions of ADCB Dubai at the hearing as inconsistent with the making and maintaining of a challenge to the jurisdiction.

Prior to the hearing on the return date Ms. John provided to the court a Skeleton argument on behalf of ADCB UK in which she said:

“2.

The Third respondent (ADCB Dubai) has not been properly served in the UAE (see further below). Its position in relation to the Order is entirely reserved. Accordingly, nothing in this skeleton argument (or in oral submission) should be taken as ADCB Dubai submitting to the jurisdiction of the English Court. However, in order to assist the Court, the evidence filed on behalf of ADCB UK also addresses the issue of service and corrects some of the factual and legal inaccuracies in the information/evidence provided to the Court by the Applicant/its solicitors in the without notice application. Further counsel will seek to assist the Court at the hearing, in so far as necessary or possible, with regard to any issue which may arise in respect of ADCB Dubai.”

Later, it was said that it was not agreed that there had been proper service on ADCB Dubai (paragraphs 21-22) and that no claim form had been included in the documents which had purportedly been served (paragraphs 23-25). It was observed that “there may be issues as to jurisdiction/service out. In that regard, the nature/content of the claim form may well be relevant to whether there was a proper basis to order service of the order (and any claim form) out of the jurisdiction against ADCB Dubai.” A complaint was made of the inclusion of a penal notice applicable both to ADCB UK and ADCB Dubai (paragraphs 27-30).

At the hearing before Cooke J. Ms. John informed the court there had been no claim form which was:

“an important point for a respondent /defendant outside of the jurisdiction for that respondent/defendant to decide whether they are going to submit. The contents of that claim form may be highly relevant so unless and until they are properly served with a claim form setting out those proceedings, that respondent is not in a position to make a decision what to do with the order, whether to submit, challenge or whatever else it wants to.”

When reference was made to the position of ADCB Dubai Cooke J. suggested that Ms. John was acting as an “amicus” and she replied that she was trying to help the court. The Judge queried the use of “we” by Ms. John and she acknowledged that she was “treading a line clumsily at this stage”. Later, complaint was indeed made of the penal notice on behalf both ADCB UK and ADCB Dubai.

Cooke J. ruled that the order be set aside and then Ms John applied for costs. Although the costs schedule referred to both ADCB UK and ADCB Dubai it is clear from the transcript that the court was only considering the position of ADCB UK (see p.42 lines 29-34, and p.43 line 17 – p.44 line 10 of the transcript).

Having considered what was said by Ms. John both in her skeleton argument and orally I have no doubt that the disinterested observer with knowledge of the case would not have regarded ADCB Dubai as having acted in a manner inconsistent with a challenge to the jurisdiction. First, she made it clear that she was only acting on behalf of ADCB UK and that nothing she said should be taken as a submission to the jurisdiction on behalf of ADCB Dubai. Second, she pointed out that no claim form had been provided and that was needed in order to decide whether there was any issue about service out of the jurisdiction. Third, the complaint with regard to the penal notice applied to both ADCB UK and ADCB Dubai but I do not regard that as a submission to the jurisdiction (a) because it had been made plain that nothing she said should be taken as a submission and (b) if the penal notice was inappropriate as against ADCB UK it was equally so as against ADCB Dubai. Fourth, costs were only sought on behalf of ADCB UK.

I have therefore concluded that ADCB Dubai did not submit to the jurisdiction of this court.

Pursuant to CPR 6.9 a company may be served within the jurisdiction at any place where it carries on its activities or at any place of business of the company. ADCB UK is to be found in London at 90 High Holborn and 30 St. Mary Axe. The claim form seeking Norwich Pharmacal relief against ADCB Dubai was served on the offices of ADCB UK on 10 June 2016. Those places are said to be places at which ADCB Dubai has a place of business. Mr. Manson, who is the sole full time employee of ADCB UK, has given evidence that ADCB UK is a representative office of ADCB Dubai. It does not have a banking licence and focuses primarily “on marketing activities on behalf of ADCB’s corporate clients”.

Mr. Ayres QC submitted that ADCB Dubai has a place of business at ADCB UK’s offices in London because ADCB UK has no activity other than the business of representing ADCB Dubai.

Ms. John submitted that if ADCB UK were a branch of ADCB Dubai service could be effected in London; see Dicey on Conflicts Vol.1 para.11-117 and Adams v Cape Industries [1990] 1 Ch.433 at p.524 H-525 B. Since ADCB UK was not a branch of ADCB Dubai it was necessary to carry out an investigation of the functions of ADCB UK and of all aspects of its relationship with ADCB Dubai; see Adams v Cape Industries at p530F - 531C. No such investigation had been carried in the present case and so service could not be established on this basis.

The idea that service could be effected on ADCB Dubai by serving in London presumably came about after consideration of Mr. Manson’s evidence. I accept that that evidence gives rise to an argument that ADCB UK has no business of its own, that the only activity it carries on is marketing which it does for the benefit of ADCB Dubai and that therefore service on ADCB Dubai can be effected by service at the address of ADCB UK being a place of business of ADCB Dubai within the jurisdiction. However, Mr. Manson’s witness statement was made in response to the order of Cooke J. requiring it to take reasonable steps to procure the information which was being sought by the Claimant. It was not made on behalf of ADCB Dubai or for the purpose of an investigation as to whether ADCB Dubai had a place of business within the jurisdiction. The guidance in Cape Industries v Adams suggests that information about other matters concerning the relationship between the two companies must be considered before a decision can be reached as to whether ADCB Dubai has a place of business within the jurisdiction. This argument has been raised at the last moment by the Claimant without the sort of investigation contemplated by Cape Industries v Adams. I do not consider that it would be appropriate to reach a decision on this question based upon the limited evidence of Mr. Manson. For that reason I am unable to accept that the proceedings have been validly served on ADCB Dubai within the jurisdiction.

However, even if service can be properly established on either of the above grounds (submission or place of business within the jurisdiction) it would nevertheless be appropriate to discharge the Norwich Pharmacal order on the grounds that, for the reasons I have already given, (i) there is a risk that compliance with a Norwich Pharmacal order might be a breach of UAE law and (ii) there is a means by which the information could be provided in the UAE, namely, by seeking the consent of the Central Bank and requesting it to pass on the information. It would be more appropriate that both banks apply for the appropriate permission from the Central Bank.