Heiser, Estate of & Ors v The Islamic Republic of Iran & Anor

Paragraph

The Commercial Transaction Exception 175-186

THE SERVICE ISSUES 188-240

APPENDIX: INFORMATION IN RELATION TO THE US JUDGMENTS

INTRODUCTION

There are two applications before the Court. Both are made by the Defendants. The first is dated 17 October 2014 (“the first application”). The second is dated 11 December 2018 (“the second application”).

The first application seeks Orders that:

The brief reasons given on the application notice are:

“The Orders are sought because the Defendants are immune from the jurisdiction of the Court in these proceedings pursuant to section 31 of the Civil Jurisdiction and Judgments Act 1982, which lays down a statutory prohibition against the Court recognising and enforcing the judgments against the Defendants. Any default judgments entered in the proceedings is contrary to section 31 of the Civil Jurisdiction and Judgments Act 1982 and should be set aside pursuant to paragraph 4 of the Order of Master Cook and/or CPR 13.3. Further, because the Defendants are immune from the jurisdiction of the Court, no Order for service out of the jurisdiction should have been made and the proceedings should be dismissed for want of jurisdiction.”

It was made clear that reasons for seeking those Orders would be further particularised. At that stage the Defendants did not have a full record of the proceedings.

The second application is to set aside the Order dated 25 May 2018 (the “alternative service Order”), which provides that service on the Defendants of the Order of Master Cook dated 23 July 2014, and other documents in the proceedings, can take place by the Foreign and Commonwealth Office and/or the British Embassy in Tehran transmitting documents via email to the Iranian Ministry of Foreign Affairs in Iran, at Info@mfa.gov.ir or any other appropriate email address, and/or purported service of the alternative service Order and/or purported service of any documents pursuant thereto.

In a Consent Order made by Goose J on 7 November 2018 the following preliminary issues were ordered to be heard:

“The Service Issues”

a)

Whether the Defendants have been validly served with the proceedings on 10 February 2014 or otherwise;

b)

If the Defendants do make an alternative service set aside application (Footnote: ¹), whether the 25 May 2018 Order for alternative service should be set aside and/or whether service of the Order of Master Cook made on 23 July 2014 and accompanying documents was validly effected.

(“the Service Issues”)

“The State Immunity Issues”

Whether the Defendants are immune from the jurisdiction of the English Courts pursuant to the State Immunity Act 1978 and/or section 31 of the Civil Jurisdiction and Judgments Act 1982 or otherwise.

The evidence before me is as follows:

There are other applications made by the Defendants which are not subject to the preliminary issues I have to determine.

The first is an application dated 25 June 2015 which included amending the set aside application to include limitation issues. These concern information on limitation of claims relevant to without notice applications made by the Claimants in the early stages of the proceedings. This application is referred to as “the Amendment Application”. If the Defendants do not succeed on the preliminary issues, there will be further matters for the Court to determine on another occasion. These are applications that:

The second is an application made on 29 August 2018. The Defendants applied for a retrospective extension of time in which to serve an acknowledgement of service in the proceedings; alternatively relief from sanctions if and insofar as necessary. This has been referred to as “the Protective Application”. This application is no longer of relevance. In the recitals to the Order of Goose J, the Defendants undertook to file an Acknowledgment of Service indicating an intention to challenge jurisdiction. The Claimants agreed that the Defendants did not need the permission of the Court to do so. That Acknowledgment of Service was filed on 11 December 2018.

On 8 June 2012 Mr Stiller swore an affidavit in these proceedings. He exhibited 12 Judgments of the United States District Court for the District of Columbia (“the Judgments”). The Judgments arise out of terrorist incidents occurring in a number of countries in the Middle East. There is also one (Acosta) which took place in New York. In the Appendix to this Judgment I give further details of relevant sections of the Judgments. It must be appreciated that each of the Judgments reflects terrible personal tragedy. However, the issues I have to decide involve the application of law and procedure. There is no discretion to be exercised.

On 5 July 2012 the Claimants issued the Claim Form and Particulars of Claim seeking to enforce the Judgments. Application was made without notice for permission to serve the proceedings out of the jurisdiction. The application was requested to be dealt with on the papers.

Walker J sent emails to the Claimants raising concerns about jurisdiction and state immunity.

On 14 August 2012 the proceedings were transferred from the Commercial Court to the Queen’s Bench Division. This was at the Claimants’ request, following a question raised by Walker J as to the appropriateness of the Commercial Court.

On 14 September 2012 the Claimants provided written submissions addressing Walker J’s concerns. The matter was listed for a hearing before Singh J (as he then was). On 2 October 2012 Singh J made an Order that, for the purpose of enforcing the Judgments:

Singh J gave a brief Judgment explaining the (then) short procedural history. He said that the application raised “potentially complicated issues of law in what Counsel fairly accepts is a novel area … ” He then referred to section 31 of the Civil

On 28 November 2012 the Claimants’ counsel enquired of the Foreign & Commonwealth Office (the “FCO”) regarding service of proceedings on Iran. He was advised that service could be effected by the Swedish Embassy in Iran, the Swedish Government then acting as the Protecting Power for the UK in Iran.

On 30 November 2012 the Claimants wrote to Master Whitaker enclosing a letter of request to the FCO to arrange for service of the relevant documents, translated into Farsi, on Iran. The request to the FCO was that the documents for service be transmitted to the Swedish Government for subsequent transmission by the Swedish Embassy in Iran to the Ministry of Affairs in Iran (“the MFA”).

On 20 December 2012 the Claimants applied without notice for an extension of time for service of the Claim Form. That day Master Fontaine granted an extension to 5 July 2013.

On 25 February 2013 the Claimants wrote to Master Whitaker requesting that an expanded set of documents be forwarded to the FCO for service on Iran. These documents included an original sealed copy of the Claim Form, English versions of documents already provided, and a Response Pack in English and Farsi.

On 18 December 2013, five and a half months after expiry of the time for service, the Claimants applied without notice for a further, retroactive, extension of time for service of the Claim Form. This was granted on that date by Master Fontaine. She extended time to 5 July 2014.

On 10 April 2014 the FCO certified that “copies of the documents hereto annexed” were served on the Iranian MFA on 10 February 2014 by delivery in person to Mr Mohammed Hossan Habibollazadeh, non-resident Chargé d’affaires to London. A copy of the certificate was provided. The Claimants emailed the FCO to request a copy of the annexed list of “served” documents referred to in the certificate. There was no response to that request.

On 18 July 2014 the Claimants applied without notice for permission to enter default judgment against the Defendants for failure to file an Acknowledgement of Service/Defence.

On 23 July 2014 Master Cook gave the Claimants permission to enter default judgment in the sum of $664,112,636.54 (including interest to date). He gave permission to serve out of the jurisdiction a copy of the default judgment, evidence in support and any other Orders, evidence or documents related to the broader action. Finally he ordered:

On 3/5 September 2014 the Claimants wrote to the Senior Master requesting that the enclosed documents relating to the default judgment be forwarded to the FCO for service on Iran.

On 10 September 2014 Mr Howarth said that his firm discovered that the Claimants’ leading counsel had published some details of the case on his website. Mr Howarth said that this was the first that the Defendants had heard of a default judgment.

On 17 October 2014 the Defendants issued the set aside application and a further application for an Order requiring the Claimants to provide the Defendants with copies of all documents in the proceedings.

On 5 November 2014 a Consent Order was made under which the Claimants were required to provide the Defendants’ solicitors, Eversheds, with all documents in the proceedings and giving directions in respect of the set aside application.

On 12 November 2014 the Claimants provided the Defendants with copies of the documents in the proceedings. The Defendants sought further documents. Some were provided.

On 22 December 2014 the Defendants wrote to the Claimants identifying limitation issues and noting that disclosure of these had not been made at the without notice hearings before Singh J in October 2012, nor in the 18 December 2013 application to Master Fontaine.

There was also correspondence between the parties as to the documents served by the FCO.

On 31 December 2014 the Foreign Process Section at the Royal Courts of Justice (FPS) forwarded to the Claimants a copy of an email received from the FCO on 22 December 2014. This stated:

“.. I can confirm that although the FCO had performed its role in delivering legal documents in reference to the above matter to the non-resident Chargé d’Affaires to London of the Iranian MFA, the attempted service was later rejected by the said MFA. This response therefore nullifies the Certificate of Service that was prepared … at the FCO on 10 April 2014.”

In January 2015 Professor Sarooshi was in communication with the FCO regarding the failure to effect service of proceedings. On 27 January 2015 Sir Edward Garnier QC, writing in his capacity as consultant to the Claimants’ solicitors, DLA Piper, wrote to the legal adviser to the FCO, copy to Mr Tobias Ellwood MP, then Parliamentary Under Secretary of State at the FCO. This letter was in relation to the problems with service. A meeting was requested with Sir Edward and Mr Jeremy

On 9 April 2015 the FCO wrote to the FPS. The letter stated:

“ … Jeremy Cook wrote to you via email on 22 December 2014 to inform you that the service of the claim documents in the above case (“the documents”) on the Islamic Republic of Iran which was carried out in February 2014 had been later rejected and the documents returned. The email stated that this response from the Iranian Government nullified the Certificate of Service dated 10 April 2014. In fact, having considered the matter further here, we consider that that statement was incorrect: we believe that service did in fact take place in accordance with standard procedures in such cases. We therefore see no reason to withdraw or amend that Certificate and we consider it still to be valid. We do of course accept that the question of whether service has been successfully effected is a matter of law for the Court. The purpose of this letter is to set out the facts of the situation for the Court.

On 20 February 2014 a non-resident UK Chargé d’Affaires to Tehran, Mr Ajay Sharma, and an Iranian non-resident Chargé d’Affaires to London, Mr Mohammed Hossan Habibollazadeh, were appointed by the UK and Iranian Governments respectively and the UK and Iran agreed that bilateral relations would be conducted directly through non-resident Chargés d’Affaires and officials.

On 10 February 2014 a UK delegation, headed by Mr Sharma and including Mr Peter Chamberlain, then Head of Bilateral

Team in the FCO’s Iran Department made a 24 hour visit to Iran. The visit included a meeting in the Ministry of Foreign Affairs of the Islamic Republic of Iran (“the Iranian MFA”) with an Iranian delegation headed by Mr Habibollazadeh and including the Iranian MFA’s UK desk officer, Mr Mohammad Sahebi.

It was a very short visit and because of pressure of business, there was limited opportunity to hand over documents during the meeting. Therefore, at the end of the meeting on 10 February 2014, while the UK delegation was speaking to the Iranian delegation outside of the Iranian MFA building (but within in the Iranian MFA compound), Mr Chamberlain explained to the Iranian officials that the UK had some documents to hand over. He then handed the documents over to his counter-part, Mr Sahebi, explaining that they were legal papers that needed to be served on the Iranian MFA. Mr Sahebi accepted the documents and put them in his vehicle.

On 11 February 2014 the FCO’s Iran department in London issued a note verbale (copy enclosed) addressed to the Iranian MFA referring to the transmission “by way of service” of the documents and stating;

Receipt of the documents by the Ministry of Foreign Affairs of the Islamic Republic of Iran is deemed as service upon the Defendant state under the State Immunity Act 1978 of the United Kingdom.

The note was sent to Mr Sahebi by email.

…. …..

The UK’s next bilateral visit to Iran took place on 19 May 2014. The UK delegation consisted of Mr Sharma and FCO Iran Department Officials, including Mr Chamberlain. During this visit Mr Sahebi informed Mr Chamberlain that the Iranian MFA would not accept receipt of the documents … Mr Sahebi took the documents from his vehicle and placed them in the vehicle that was being used by the UK delegation.

Finally, we should clarify that although the Certificate of Service dated 10 April 2014 refers to documents being annexed, this was incorrect; a copy of the document was not in fact annexed to the Certificate. After being returned on 19 May 2014 the documents were retained in an FCO building in Tehran as there was no diplomatic bag service between Iran and the UK at the time, and no official channel for transporting them to London. … A decision was eventually made to return the documents in January 2015. The documents are now being held in the FCO’s London offices.

Accordingly we consider that service of process on Iran did as a matter of fact take place in Tehran in February 2014, in accordance with standard diplomatic procedures.”

On 20 June 2015 the Defendants issued the Amendment Application. Amongst other things, this sought disclosure of all correspondence between the Claimants and the FPS and/or the FCO.

On 10 July 2015 the Claimants wrote to the Defendants enclosing a copy of the FCO’s 9 April 2015 letter to the FPS which the Claimants said they had received on 9 July 2015.

Between July 2015 and January 2016 there was correspondence between the parties.

On 11 April 2016 the Claimants’ solicitors sent to the Defendants a letter from the

In June/July 2016 there was further correspondence between the solicitors for the parties. The Defendants were seeking clarification of points in Mr Fender’s statement and asking for a response to earlier letters requesting correspondence between the FCO and the Claimants. There was also correspondence about procedural matters.

In January 2017 there was further correspondence between Sir Edward Garnier and the FCO as a result of which the FCO confirmed that there had been no further attempts to effect service.

On 15 September 2017 the Defendants’ solicitors wrote to the Claimants’ solicitors noting that the Defendants’ position was that service had not been effected and that time for filing any Acknowledgment of Service had not started to run. The Claimants responded, referring to their letter of 16 July 2015. In this letter they said that a Defendant wishing to dispute the Court’s jurisdiction must first serve an Acknowledgment of Service.

In December 2017 Sir Edward Garnier again asked the FCO about further attempts to effect service of the default judgment documents. The FCO confirmed that there had been no further attempts. In effect, the default judgment documents had still not been served.

On 24 May 2018 the Claimants made an application for permission to effect service by alternative means of the Order of Master Cook of 23 July 2014 granting default judgment. The application was made without notice. (Footnote: ⁵) The Application Notice stated:

“The Applicant applies for an Order to provide for service on the Defendants of the default judgment entered pursuant to the Order of Master Cook dated 23 July 2014, a copy of the evidence in support of the application for permission to enter default judgment and any other documents relating to these proceedings to take place by email from the Foreign and Commonwealth Office and/or the British Embassy Tehran to the Iranian Ministry of Foreign Affairs in Tehran, these means constituting valid service pursuant to section 12(5) of the State Immunity Act 1978. This application is made entirely without prejudice to the Claimants’ case that valid service of the default judgment and other documents in these proceedings on the Defendants has previously been effected.”

On 25 May 2018 a hearing took place. Leading counsel appeared for the Claimants before Soole J in the Interim Applications Court. The Order made was:

“1.

The service on the Defendant of the default judgment Order of Master Cook dated 23 July 2014 and any other documents in these proceedings can take place by the Foreign and Commonwealth Office and/or the British Embassy Tehran transmitting documents by email to the Iranian Ministry of Foreign Affairs in Tehran, Iran at Info@MFA.gov.ir, or any other appropriate email address, this being in compliance with section 12(5) of the State Immunity Act 1978.

2

This Order is made entirely without prejudice to whether valid service of the default judgment Order and other documents in these proceedings on the Defendants has previously been effected.

3

The Defendant is entitled to apply to set aside or vary this Order.”

On 29 August 2018 the protective application was filed.

On 6 November 2018 the parties agreed the terms of an Order for directions. Goose J made the Order on 7 November 2018.

On 11 December 2018 the Defendants made the second application, i.e. the alternative service set aside application. They also filed an Acknowledgment of Service.

THE STATE IMMUNITY ISSUES

There is an exception to State Immunity provided by section 2(1) of the 1978 Act.

The Claimants rely upon section 2(3) which, so far as material states:

“(3)

A State is deemed to have submitted –

(a)

…

(b)

Subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.

(4)

Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of –

(a)

claiming immunity …”

The Claimants refer to the Defendants’ applications of 17 October 2014 and 25 June 2015.

I have set out the terms of the 17 October 2014 application (the first application) at the beginning of this Judgment. The Defendants’ application was based on state immunity and lack of service of the Default Judgment of Master Cooke.

The application notice of 25 June 2015 was for directions in relation to the first application, for the production of correspondence between the Claimants and the FPS/FCO and:

“3.

that the set aside application be amended in relation to certain limitation issues and that such issues be determined as preliminary issues.”

A draft order was attached to the application which contained the following recitals:

“AND WITHOUT PREJUDICE TO

The Defendants’ right to contest the Court’s jurisdiction and assertion of all available immunities whether pursuant to the State Immunity Act 1978 or otherwise

AND ON THE BASIS that the Defendants have not by the application, appeared or taken a step in the proceedings within the terms of section 12(3) of the State Immunity Act 1978 or otherwise. ”

It is common ground that in the application and the draft order the Defendants asked for the limitation issues to be tried before the state immunity issues.

The witness statement served in support of the application was from Richard Little, the Defendants’ solicitor. The statement was dated 25 June 2015. He said:

“5.

I state for the avoidance of doubt that participation by the Defendants in this application or the set aside application does not constitute in any way a waiver of their immunity from the adjudicative or enforcement jurisdiction of the Court pursuant to the State Immunity Act 1978 … common law or customary international law. (Footnote: ⁶)

…..

The application led to a consent order made by Master Eastman on 28 July 2015 in which the recitals in the draft order were repeated. Neither this order nor any subsequent order reflected the application that the limitation issues be tried before the state immunity issues.

The Defendants issued a further application notice on 29 August 2018 seeking a hearing of preliminary issues. That application led to the consent order before Goose J on 7 November 2018 listing the preliminary issues. The directions in that order were modified by consent by an Order dated 12 March 2019. Both these Consent Orders contained recitals in exactly the same terms as the draft order and consent order arising out of the application of 25 June 2015.

The Claimants submit that the Defendants’ application relating to the limitation issues falls within the scope of an intervention or step in the proceedings for the purposes of section 2(3)(b) of the 1978 Act. Therefore the Defendants have submitted to the jurisdiction of the United Kingdom courts. Therefore they have lost any State Immunity to which they would otherwise be entitled.

However, during the course of oral argument the Claimants accepted that the submission that the Defendants have submitted to the jurisdiction cannot succeed before this court. On the facts of this case the High Court is bound, following Kuwait Airways Corporation v Iraqi Airways Company and Republic of Iraq⁷ to hold that the Defendants did not submit to the jurisdiction under section 2(3)(b) of the 1978 Act. The Claimants reserve the point for argument in a higher court. I therefore say no more about it. The answer to the question posed, so far as this court is concerned, is “No, the Defendants have not submitted to the jurisdiction”.

Section 31 of the 1982 Act provides:

“31.

Overseas Judgments given against states, etc.

(1)

A Judgment by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the

United Kingdom if, and only if –

(a)

it would be so recognised and enforced if it had not been given against a state;

(b)

that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978”

It is therefore clear that the Claimants have to satisfy both requirements in subsections (a) and (b).

Would the Judgments be “so recognised and enforced if (they) had not been given against a state?”

It is common ground that this question is determined according to English Common Law principles of private international Law. In Dicey, Morris & Collins the Conflicts of Laws⁸ the jurisdiction rules are summarised as follows:

“RULE 43 - … a court of a foreign country outside the United

Kingdom has jurisdiction to give a judgment in personam

[1995] Lloyds Law Rep Vol 1 25

15^th edition (2012)

The key question is whether, in accordance with the First Case, presence is required when the Defendant is a state. All the other Cases require submission to the jurisdiction by one means or another.

The Claimants note that the rules as summarised were developed mostly from nineteenth century judgments and in respect of judgments against private persons. What must be shown in respect of a judgment against a foreign state has not been decided (Footnote: ⁷). Until the case of Adams v Cape Industries plc¹⁰the Court of Appeal had not determined the appropriate rule for judgments against a corporate Defendant.

The Claimants therefore submit that the jurisdiction rules set out above should not be regarded as fixed, such that they are the only ways in which an English Court can recognise that a foreign court is competent to exercise jurisdiction over a Defendant.

In Adams the Claimants brought actions in the Federal District Court at Tyler, Texas, for damages for personal injuries resulting from exposure to asbestos dust. The Defendant companies took no part in the actions on the basis that the Texas Court lacked jurisdiction. Default judgments were entered. Enforcement was sought in England. The Court of Appeal affirmed the first instance decision of Scott J (as he then was). It held that an overseas trading corporation was likely to be treated by the English Court as present within the jurisdiction of the courts of another country, only where such corporation had established and maintained at its own expense a fixed place of business in that other country, and had carried on its business from there for more than a minimal period of time. Slade LJ at 517H-518B said:

“From the three last mentioned authorities read together, the following principles can, in our judgment, be extracted. First, in determining the jurisdiction of the foreign court in such cases, our Court is directing its mind to the competence or otherwise of the foreign court “to summon the Defendant before it and to decide such matters as it has decided” … Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the Defendant in the country concerned at the time of suit. … ”

The Claimants make as their primary submission that, where the Defendant is a state, for the purposes of enforcing a judgment under section 31 of the 1982 Act, it suffices to show that the foreign state was served with the foreign proceedings in the appropriate way. In summary:

Finally the Claimants submit that the requirements for presence for the purposes of in personam jurisdiction is a legal fiction. In Adams at page 523B Slade LJ said:

“The words “resident” or “present” or equivalent phrases have been used interchangeably in argument, just as they have been used in the cases; we see no objection to this terminology if it is understood that in the case of a corporation the concept of “residence” or “presence” in any particular place must be no less of a legal fiction than the existence of the corporation itself. The argument has centred on the features which this concept embodies in the case of a corporation.”

It is correct that there is no authority on the application of the requirement of presence in relation to states. There is also nothing in any authority which suggests that presence is not a requirement. This Court is bound by Court of Appeal authority, culminating in Adams, that presence is a requirement. Although there was no issue in Adams about the service of the proceedings in relation to the United States’ court’s rules, nevertheless, because of the lack of presence of the Defendant corporations within the jurisdiction of the foreign court, the English Courts refused to enforce the judgments. (Footnote: ⁹)

The reference in Adams to the concept of presence being “a legal fiction” does not undermine the requirement. Legal fiction it may be, just – as Slade LJ said – as is the existence of the corporation itself. Nevertheless it is necessary. Section 31(1)(a) requires the same question to be asked in proceedings relating to a state as would be asked if the judgment was not against a state, i.e if it had been against a private individual or a company.

Further, the Court of Appeal in Adams saw the force of points which highlighted the possible desirability of further extension of reciprocal arrangements for the enforcement or non-enforcement of foreign judgments by convention. Slade LJ continued (Footnote: ¹⁰):

“Nevertheless, while the use of the phrase “temporary allegiance” may be a misleading one in this context, we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a Defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts … ”

This passage gives a reason for the requirement of presence, in addition to the weight of authority.

As to the Claimants’ point that section 31(1)(b) of the 1982 Act sufficiently addresses the English Courts’ concern about ensuring that it is appropriate for the foreign state to exercise jurisdiction:

Were the Defendants Present in the US?

Alavi and 650 Fifth Avenue

The Claimants’ alternative argument in relation to section 31(1)(a) is that the Defendants were present in the USA because of the Alavi Foundation and/or 650 Fifth Avenue Company.²²

I shall now set out the evidence about the Alavi Foundation and 650 Fifth Avenue Company which appears from the documentation and is not based on any US Court’s decision. This evidence is contained in paragraphs 129-133 of Mr Howarth’s second witness statement and the documents exhibited to it. The evidence from the documents is, in relation to the Alavi Foundation:

650 Fifth Avenue Company is a partnership comprising two partners, Assa Corporation and the Alavi Foundation. Assa Corporation is a New York corporation incorporated in 1989 and dissolved in 2010. The relevant document before the Court evidences the amendment to the partnership agreement of 650 Fifth Avenue Company where, on 1 August 1994, Alavi transferred a 5% interest in the company to Assa. This resulted in Alavi holding 60% and Assa 40% of the partnership.

(Footnote: ¹⁸)The Claimants rely on a case in the US District Court for the Southern District in New York. This is Kirschenbaum et al v 650 Fifth Avenue²³. The proceedings concerned (a) a civil forfeiture action brought by the US Government against US property owned by Alavi Foundation, 650 Fifth Avenue Company and two other entities; (b) enforcement proceedings commenced by individual Claimants against the same Defendants. These include Judgments in the proceedings before me. (Footnote: ¹⁹) Critical in Kirschenbaum is the status of the two entities and their connection to the Iranian Government. The decision of the New York District Court has been summarised in this way (Footnote: ²⁰):

Therefore the Claimants submit that these findings justify the conclusion that Iran was present in the USA.

The Defendants’ response is that the findings in the US Court are not admissible as evidence of the facts decided. They cite the rule in Hollington v Hewthorn (Footnote: ²³) and some of its more recent examples, namely Calyon v Michailaidis (Footnote: ²⁴)and Rogers v Hoyle (Footnote: ²⁵)at first instance and on appeal where Christopher Clarke LJ said at [39]:

“As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it (“the trial judge”), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.”

The Claimants referred to the decision of Carr J in Sabbagh v Khoury & ors. (Footnote: ²⁶)Having been referred to the authorities, the judge said she was inclined toaccept that findings in another court may be relied on at an interlocutory stage for the limited purpose of demonstrating whether there is a serious issue to be tried. She distinguished Calyon because there the findings of the Greek court were being relied on, without more, as conclusive, alternatively probative, evidence of a central plank of the claimant’s case.

The present hearing is not an interlocutory stage in deciding whether or not the Defendants were present in the United States. There will be no further hearing of this matter and the Claimants must prove presence on the balance of probabilities, not just to show a serious issue to be tried or that there is a properly arguable claim. Therefore, Sabbagh does not assist them and the findings in Kirschenbaum are inadmissible as evidence.

It appeared to be common ground that, absent the facts found in Kirschenbaum, the only admissible evidence about the Alavi Foundation and 650 Fifth Avenue Company was insufficient to satisfy any presence requirement by the Defendants in the United States. Nevertheless I will briefly deal with why this is so.

For assistance as to the definition of a ‘state’ (Footnote: ²⁷), article 2(1)(b) of the UN Convention on Jurisdictional Immunities of States and their Property provides:

“(b)

‘state’ means:

(i)

The state and its various organs of Government;

(ii)

…

(iii)

Agencies or instrumentalities of the state or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the state.

(iv)

Representatives of the state acting in that capacity.”

Section 14(1) of the 1978 Act says that references to a state include references to – (a)The Sovereign or other Head of that State in his public capacity

Section 14 therefore distinguishes a state from a ‘separate entity’. Can the Alavi

In La Générale des Carrières et des Mines (Gecamines) v FG Hemisphere Associates LLC (Footnote: ²⁸)the Privy Council considered the distinction between the State and ‘a separate entity’. Giving the opinion of the Board, Lord Mance said:

“28.

What then is the correct approach to distinguishing between an organ of the State and a separate legal entity? And is this distinction relevant not only to questions of immunity, but also to questions of substantive liability and enforcement?

… In the Board’s opinion, it is now appropriate in both contexts to have regard to the formulation of the more nuanced principles governing immunity in current international and national law. These, as explained in paras 10 to 18 above, express the need for full and appropriate recognition of the existence of separate juridical entities established by states, particularly for trading purposes. They do this, even where such entities exercise certain sovereign authority jure imperii, providing them in return … with a special functional immunity if and so far as they do exercise such sovereign authority. A similar recognition of their existence and separateness would be expected for purposes of liability and enforcement.

29.

Separate juridical status is not however conclusive. An entity’s constitution, control and functions remain relevant; para 25 above. But constitutional and factual control and the exercise of sovereign functions do not without more convert a separate entity into an organ of the State. Especially where a separate juridical entity is formed by the State for what are on the face of it commercial and industrial purposes, with its own management and budget, the strong presumption is that its separate corporate status should be respected, and that it and the State forming it should not have to bear each other’s liabilities. It will in the Board’s view take quite extreme circumstances to displace this presumption. The presumption will be displaced if in fact the entity has, despite its juridical personality, no effective separate existence. But for the two to be assimilated generally, an examination of the relevant constitutional arrangements, as applied in practice, as well as of the State’s control exercised over the entity and of the entity’s activities and functions would have to justify the conclusion that the affairs of the entity and the State were so closely intertwined and confused that the entity could not properly be regarded for any significant purpose as distinct from the State and vice versa. The assets which are … protected by State immunity should be the same as those against which the State’s liabilities can be enforced …

30.

There may also be particular circumstances in which the state has so interfered with or behaved towards a stateowned entity that it would be appropriate to look through or past the entity to the state, lifting the veil of incorporation. But any remedy should in that event be tailored to meet the particular circumstances and need. … ” (Footnote: ²⁹)

There is no evidence admissible before this court to displace the strong presumption in the present case that the separate corporate status of the Alavi Foundation and 650 Fifth Avenue Company should be respected. The admissible evidence which I have summarised above, based on the documentary evidence exhibited, comes nowhere near the required threshold.

A final, alternative, submission by the Defendants is that, if the Alavi Foundation and 650 Fifth Avenue Corporation could be regarded as the Iranian state, they are situated wholly in the state of New York. Applying the English Law test for “presence” they were not present in the state of the District of Columbia where the Judgments were obtained. The Defendants submit that the Claimants have to prove that the jurisdiction of the District of Columbia court is such that the presence of a company in New York State is subject to its jurisdiction. The English courts cannot take judicial notice of this. It is a fact to be proven. There is no evidence before the Court. In Adams the Court received evidence (Footnote: ³⁰) from foreign jurists and heard detailed submissions. It also had to rule on disputed evidence on the foreign law. In detailed obiter dicta the Court of Appeal considered what they described as “the country issue”.³⁶ At 556F the Court of Appeal said:

“… There seems no doubt that Congress has established a system of federal courts of which each one has jurisdiction, in the terms defined by the various longarm statutes of the foreign states (where no specific federal statute provides otherwise) to exercise in personam jurisdiction over any person or corporation present in any state of the Union”

There is no evidence before me as to the jurisdiction of the Washington court over the Alavi Foundation and 650 Fifth Avenue Corporation who are present in New York State. Therefore, even if they were to be equated with the Defendants, the Claimants have not adduced any evidence to prove the presence required for the purposes of section 31(1)(a). The Claimants submit that where the Defendant is a state, it is a matter of law if the state is present within the jurisdiction of the relevant court. This is not correct. Alternatively, they submit that the point cannot be taken since the Defendants did not raise it before; however, the onus is on the Claimants to prove factual jurisdiction. The Defendants are entitled to take points of evidential insufficiency, just as they have done in relation to the lack of admissible evidence supporting what the Claimants sought to obtain from the Kirschenbaum judgment.

On 15 July 2019, i.e. 10 days after the hearing on the State Immunity issues had finished, the Claimants issued an application to rely on evidence of the Honorable Timothy K Lewis in relation to the jurisdictional reach of the District of Columbia court relating to this point. I ruled that the application to rely on the Lewis Report will be allowed, but it will be prepared for and heard if, and only if, it becomes critical to the success of the Claimants’ case after any successful appeal.

Iran at the United Nations

During the hearing before me the Claimants sought to argue that Iran’s presence at the United Nations (“UN”) in New York was sufficient presence for section 31(1)(a).

The Defendants objected to this argument as it had never been raised before. The Claimants accepted this, but responded that in a witness statement from Mr Jonathan

My ruling on the state of the evidence before me as at close of submissions on 5 July 2019 is that I do not allow this submission to be made: (1) it was raised far too late. The Defendants are prejudiced by this lateness. It would require a detailed exposition of and/or evidence about the UN presence and its purposes; (2) If the Claimants wished to make this point, that should have been made clear well in advance of the hearing such that the Defendants had a proper opportunity to address it evidentially and legally. The Claimants cannot rely on what Mr Brook said in his statement in 2014. Mr Howarth mentioned the UN in his statement when dealing with why the

In the application of 15 July 2019, the Claimants applied to rely on new evidence from Mr Mechling dated 10 July 2019 in support of the argument that Iran’s UN delegation amounts to presence for the purposes of section 31(1)(a). I ruled against that application. The reasons in that ruling deal somewhat more fully with why the Claimants should not be allowed to raise this point at this late stage.

For all those reasons the Claimants have not satisfied the requirement under section 31(1)(a).

The UK and US personal injury exceptions to the State Immunity defence

The Defendants’ submission as to the effect of section 31(1)(b) of the 1982 Act, is that the wording of section 5 requires “United States” to be substituted for “United Kingdom”, such that the death, personal injury or damage to or loss of tangible property had to be caused by an act or omission of the Defendants in the United States.

The UK personal injury exception to the defence of State Immunity is to be found in section 5 of the 1978 Act. This provides:

“5.

Personal injuries and Damage to Property

In the instant cases the US Courts’ jurisdiction was founded on section 1605A (a) FSIA (Footnote: ³²) which provides:

“A foreign State shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign State for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee or agent of such foreign State while acting within the scope of his or her office, employment, or agency.”

This has been referred to as “the terrorist exception”.

The American legal position has been addressed by the reports of Professor Ramsey and Professor Stewart. These give helpful context to the American legal position.

Section 1605A FSIA is an amendment introduced in 1996. Prior to 1996 the FSIA contained exceptions, including the “non-commercial tort exception” (Footnote: ³³). The noncommercial tort exception covers cases “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state….”

A number of decisions in the US Courts had ruled, prior to the amendment introducing the terrorist exception, that the non-commercial tort exception required both the tortious act and the injury to have occurred in the US. Most actions claiming damages in respect of terrorist attacks failed on this basis. (Footnote: ³⁴) (Footnote: ³⁵) The Claimants’ expert, Professor Stewart concluded in his report at [32]:

“… the majority of US Court decisions to have addressed the issue…. have read the statute more narrowly, to require that the

“entire tort” (including the causative acts) must have occurred in the United States”

Professor Stewart says at [41] about the 1996 amendment:

“The legislative purpose of this additional exception was clear. An increasing incidence of terrorist attacks around the world had targeted the United States and its property, personnel and citizens, resulting in a growing number of law suits brought by the US victims of these terrorist attacks (and their survivors) to recover damages for the resultant loss of life, injury, pain and suffering, etc. Most such suits had been brought under the non-commercial tort exception, described above, but as previously discussed most courts had limited the reach of that exception, so that many such suits failed on jurisdictional grounds … The state sponsored terrorism exception was enacted specifically to provide a firm jurisdictional basis for lawsuits brought by the victims of certain terrorist acts seeking specifically monetary damages that did not fall within the ambit of other FSIA exceptions as they had been interpreted.”

The effect of the amendment is that there are now two exceptions in US Law regarding immunity in respect of death and personal injury, namely the pre-1996 exception, which is similar to section 5 of the 1978 Act, and the specific terrorist exception. (Footnote: ³⁶)

In summary the difference between section 5 of the 1978 Act (Footnote: ³⁷) and the terrorist exception is:

Construction of the hypothesis in section 31(1)(b)

The first question which arises is the proper construction of the words “rules corresponding to those applicable to such matters in the United Kingdom … ”

The Defendants rely upon what Lord Collins said in NML Capital Ltd v Republic of Argentina (Footnote: ³⁹) (Footnote: ⁴⁰). In his judgment, with which Lord Walker agreed, Lord Collins said:

“118.

The natural meaning of section 31(1) is that it requires recognition and enforcement of a foreign judgment against a foreign State (other than the United Kingdom or the State in which foreign proceedings were brought) if (a) the normal conditions for recognition and enforcement of judgments are fulfilled, and (b) mutatis mutandis the foreign State would not have been immune if the foreign proceedings had been brought in the United Kingdom. That meaning is the one which text writers have propounded since the section was enacted: Collins, The Civil Jurisdiction and Judgments Act 1982 (1983), p 140;

Dicey & Morris, The Conflict of Laws, 11^th ed (1987), pp 454455 (now Dicey, Morris & Collins, 14^th ed (2006), para 14095); Cheshire, North & Fawcett, Private International Law, 14^th ed (2008), pp 588-589.”

What was said by the Supreme Court Judges in NML was strictly obiter since the issue in the case was whether the proceedings for the recognition and enforcement of the New York were proceedings “relating to” that Judgment, or proceedings “relating to” a “commercial transaction”.

The present edition of Dicey, Morris & Collins⁴⁵ at para 14-10 states that the test is that the English Court must be satisfied “that the foreign court would have had jurisdiction if it had applied the United Kingdom rules on sovereign immunity set out in Sections 2 to 11 of the State Immunity Act 1978.”

The Claimants dispute this construction. They say it is too narrow and ignores the breadth of the word “corresponding”. The submission they ask the court to accept is that the language of section 31(1)(b) is sufficiently flexible to accommodate the differences between the UK rules and (here) the US rules. Therefore, the rules which this court must apply are the rules in the US terrorist exception, since they are the rules which correspond to the UK rules relating to personal injury and death.

The Claimants rely on what they say the language of section 31(1)(b) is meant to convey. They also rely on the NML case. Finally they rely on Article 6 of the European Convention on Human Rights, but I shall address this point separately later in this judgment.

Firstly, the Claimants say that “corresponding to” does not mean “identical to”. It is correct that as a matter of dictionary definition “corresponding to” can mean to be congruous or in harmony with, but can also mean to be similar or analogous to. The Claimants’ argument is that the elasticity in the term is precisely to accommodate the fact that the rule applied by the foreign court may not be the same as that which the English court would apply. They point out that the different States have different approaches to the way they give effect to State Immunity; (Footnote: ⁴¹) also there are different approaches to the precise formulation of specific well-recognised exceptions to immunity, such as one relating to personal injury.

The difficulty with this submission is that section 31(1)(b) requires the application of a hypothesis. Would the US Court have had jurisdiction in the matter “if it had applied rules corresponding to those applicable in the United Kingdom”? The test is not whether the US Court has jurisdiction because it did apply rules corresponding to those applicable in the United Kingdom. If “corresponding to” does not mean the rules applicable in the United Kingdom, then which rules does it mean? Can it really mean the US Court’s own rules? The Claimants seek to address this by saying that the hypothesis could be because the foreign court may actually have applied a rule containing an exception to state immunity which does not correspond to the UK rule. In those circumstances the UK courts will enforce the decision if the foreign court would (also) have had jurisdiction by applying another rule which does correspond to the UK rule. To my mind this is a strained and impermissible reading of the hypothesis.

The second point which the Claimants make is that the wording is broad enough to accommodate developments in international law. The background against which the 1982 Act was passed was that English Law had lagged behind the recognition of the “restrictive doctrine” on immunity. The 1978 Act changed that. However, it is submitted, international law has not stood still and there is no reason to suppose that when the 1982 Act was passed Parliament imagined international law would do so. The use of the word “corresponding” is broad enough to accommodate further developments in international law. Thus it allows a judgment of a foreign court to apply a corresponding rule, such as (they say) the US terrorist exception, to be enforced.

It seems to me that this submission, insofar as it seeks to encompass the subsequent broadening of the exception to state immunity in the US⁴⁷, founders on the same basis as the first submission. The language of the hypothesis requires consideration of what the position would have been if the US court had applied the UK rule in section 5.

So far I have dealt with the Claimants’ argument without reference to authority. However, they submit that the judgment of Lord Phillips (Footnote: ⁴²)NML is at variance with that of Lord Collins and Lord Walker when they deal, obiter, with the effect of section 31.

It is necessary to consider NML in a little detail.

Before Blair J (Footnote: ⁴³) NML’s case on section 31 was it mandates enforcement of a foreign judgment in England where the foreign state would not have been entitled to assert immunity from jurisdiction had the proceedings been before the English court.

Blair J accepted NML’s case at [26], relying on the formulation in Dicey, Morris & Collins and at [29] saying:

“…In any case, the foreign judgment is only recognised and enforced here if the court giving it would have had jurisdiction applying rules corresponding to those applicable in the UK. The state concerned is not subject to a lighter or different regime.” (Footnote: ⁴⁵)

In the Court of Appeal (Footnote: ⁴⁶) (Footnote: ⁴⁷) Aikens LJ, with whom Elias and Mummery LJJ agreed, summarised NML’s and Argentina’s rival contentions and Blair J’s judgment on this point at [32]-[34]. At [77]–[78] he effectively accepted Argentina’s contention. The appeal was allowed.

In the Supreme Court Aikens LJ’s interpretation was rejected by all the judges. Lord Phillips made this clear at [46]-[54]. At [54] he expressly agreed with paragraph 26 of Blair J’s judgment and concluded that the relevant passage in Dicey, Morris & Collins⁵³ was an accurate summary of the law. The citation specifically included “a foreign judgment against a state will be capable of enforcement in England, if both of the following conditions are fulfilled: first, that the foreign court would have had jurisdiction if it had applied the United Kingdom rules on Sovereign Immunity set out in sections 2-11 of the [1978 Act]. … ”

I do not read anything Lord Phillips said at [34], [47] or [49] as being inconsistent with what Lord Collins said, as was the Claimants’ submission. Indeed if Lord Phillips had, on the one hand, taken a different view from that of Lord Collins and, on the other hand, endorsed the same passage in Dicey, Collins & Morris which Lord Collins and Blair J also endorsed, Lord Phillips’ judgment would have been internally inconsistent. This was where, during interaction between Professor Sarooshi and me

Therefore, based on the language of section 31(1)(b) and on the unanimous obiter dicta of the Supreme Court who heard full argument on the point, the Defendants’ submission as to the meaning of the words “corresponding to” in s.31(1)(b) is correct. The hypothesis assumes that the US court had applied the UK rules. I will next deal with Article 6 ECHR on which the Claimants rely for the interpretation of section 31(1)(b) and of section 5.

Article 6 ECHR and Benkharbouche

The Claimants made it clear that they do not suggest that this court should make a declaration of incompatibility. Their submission is that the statutory provisions must be interpreted so as to comply with Article 6.

The submission is that there will be a breach of the Claimants’ rights under Article 6

I will first examine this argument as a matter of legal principle. I elicited from Professor Sarooshi six steps in his argument. They were:

As I said in argument, the net effect of the Claimants’ submission is this. Irrespective of section 5, and in circumstances where states may decide to restrict the exception to the state immunity defence as time progresses, the United Kingdom exception has to continue being construed so as to conform with the narrowest available exception.

It is worthy of note that many countries have adopted a statutory enactment of the personal injury exception to state immunity following the United Kingdom model (Footnote: ⁴⁹). In Israel (Footnote: ⁵⁰) the relevant provision is “..provided the tort was committed in Israel”. In Canada⁵⁷ immunity is removed in proceedings relating to (a) any death or personal injury or (b) any damage to or loss of property that occurs in Canada. There is also, of course, the case of the terrorist exception in the US which was specifically introduced to deal with such cases in circumstances where the non-commercial tort exception had generally been held by the US courts not to exempt immunity for overseas terrorist acts. In the textbook The United Nations Convention on Jurisdictional Immunities of States and Their Property, A Commentary (Footnote: ⁵¹)the authors state:

“The various national State Immunity statutes, all bar one of which (Footnote: ⁵²) includes an exception to the same effect (Footnote: ⁵³), similarly premise the exercise of jurisdiction over the foreign state not on the character of the impugned act but solely on some nexus with the territory of the forum state, usually in the form of the place of the commission of the act, or of the failure to perform, the relevant act.”

The Claimants’ argument is that Article 6 requires section 31(1)(b) and section 5 to be construed such that the United Kingdom exception is wide enough to include the terrorist exception and/or the Canadian exception.

Against that backdrop, I turn to Benkharbouche. The Supreme Court had to decide whether two sections of the 1978 Act relating to contracts of employment were compatible with Article 6. The court held at [75]-[76] that there was no principle of international law that deprived the employment tribunal of jurisdiction, that the UK therefore had jurisdiction over Libya and Syria as a matter of international law and Article 6 was engaged by the refusal to exercise the jurisdiction. The employment of the claimants was not an exercise of sovereign authority. The employers were not entitled to immunity and, insofar as the two sections of the 1978 Act conferred immunity, they were incompatible with Article 6.

In support of their steps (ii) - (iv) the Claimants refer in particular to what Lord Sumption said at [31] and [34], namely:

“31.

To identify a rule of customary international law, it is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris): see Conclusions 8 and 9 of the International Law Commission’s Draft Conclusions on Identification of Customary International Law (2016) [A/71/10]. There has never been any clearly defined rule about what degree of consensus is required. The editors of Brownlie’s Principles of Public International Law, 8th ed (2012), 24, suggest that “complete uniformity of practice is not required, but substantial uniformity is”. This accords with all the authorities. In the words of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), (1986) ICJ Rep, 14, para 186:

“The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.”

What is clear is that substantial differences of practice and opinion within the international community upon a given principle are not consistent with that principle being law: Fisheries Case (United Kingdom v Norway), (1951) ICJ Rep 116, 131.

…..

34...I conclude that unless international law requires the United Kingdom to treat

Libya and Sudan as immune as regards the claims of Ms Janah and Ms

Benkharbouche, the denial to them of access to the courts to adjudicate on their claim violates article 6 of the Human Rights Convention”

The Supreme Court examined the history of the defence of state immunity in some detail at [40]-[52]. At [52] Lord Sumption derived three points from the history. The first was that there has probably never been a sufficient international consensus in favour of the absolute doctrine of state immunity to warrant treating it as a rule of customary international law. The second was that the only consensus there has ever been about the scope of the immunity is the consensus in favour of the restrictive doctrine. He continued:

“…Thirdly, the adoption of the restrictive doctrine has not proceeded by accumulating exceptions to the absolute doctrine. What has happened is that governments, courts and writers of authority have been prompted by the widening scope of state operations and their extension into commerce and industry, to re-examine the true basis of a doctrine originally formulated at a time when states by and large confined their operations in other countries to the classic exercises of sovereign authority. The true basis of the doctrine was and is the equality of sovereigns, and that never did warrant immunity extending beyond what sovereigns did in their capacity as such. As Lord

Wilberforce put it in the I Congreso del Partido [1983] 1 AC 244, 262,

“It is necessary to start from first principle. The basis upon which one state is considered to be immune from the territorial jurisdiction of the courts of another state is that of ‘par in parem’, which effectively means that the sovereign or governmental acts of one state are not matters upon which the courts of other states will adjudicate.”” (Footnote: ⁵⁴)

Lord Sumption then applied that last point to contracts of employment, saying at [53]:

“As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune”. He went on to hold:

“63.

The result is that the State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter. There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character.”

In Benkharbouche at [39], Lord Sumption referred to the decision in Jones v Saudi Arabia (Footnote: ⁵⁵) (Footnote: ⁵⁶)that torture is by definition a governmental act. In the present case the Judgments are founded on findings of state sponsored terrorism. State sponsored terrorism must also be a governmental act. Therefore, applying with appropriate amendment what was said in Benkharbouche at [53], “As a matter of customary international law if [state sponsored terrorism] arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune”. What the mechanism in section 31(1)(b) of the 1982 Act and section 5 of the 1978 Act supplies, in the factual context of a sovereign or governmental act, is a further restriction on the defence of state immunity adopted by the United Kingdom. This reduces the immunity for an inherently sovereign or governmental act provided by customary international law. It therefore increases the right of access to the court beyond that mandated by international law. Article 6 has consequently no role to play in this court’s interpretation of either section.

Further, and in any event, in Al Adsani v United Kingdom⁶³ the European Court of Human Rights (ECHR) it was said [57]: “Except in so far as it affects claims for damages for torture, the applicant does not deny that the above provision (state immunity for personal injury damages unless caused in the territory of the forum state) reflects a generally accepted rule of international law.” The ECHR ruled at [56] that “measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to the court as embodied in Article 6(1).”

Although not argued before me, it occurs to me that there may possibly be a more fundamental objection to enforcement. This would be that when a foreign state commits an inherently sovereign or governmental act, section 5 has no application since it cannot deprive the state of its defence of state immunity. This is because in such circumstances customary international law provides a complete defence – see Benkharbouche at [17]; see also the reference at [10] that the exceptions in the 1978

The Defendants raised a yet further point. This was that, at the enforcement stage, Article 6 is only ‘engaged’ to the extent of ensuring access to a fair process to examine whether the conditions for granting execution have been met. It is not a route for attacking the requirements for execution themselves or the merits of the court’s decision on enforcement. They cite Saccoccia v Austria (Footnote: ⁵⁸). The key paragraph in Saccoccia is [63] where the court said:

“…in exequatur proceedings the domestic courts are not called upon to decide anew on the merits of the foreign court’s decision. All they have to do is examine whether the conditions for granting execution have been met.”

The court held that Article 6 was engaged, but its requirements had been fulfilled since oral evidence was not needed; the courts could reasonably decide the case on the basis of written submissions and other written materials. They were therefore dispensed from holding a hearing [79].

I was not taken to any other authority on this point. Nor was I addressed in any detail on the problems arising from the applicability of Article 6 – see in particular Benkharbouche at [13]-[16]. On the submissions before me I am not persuaded by this further argument of the Defendants. It seems to me that Article 6 is engaged for the purpose of examining whether the conditions for enforcing the Judgments in the UK are met. Thus, it is necessary for me to consider, as I have done, the interaction between section 31(1)(b) and section 5 and to determine whether they need to be construed more broadly than might otherwise be the case because of Article 6. Furthermore, the construction of these sections should be consistent at whatever stage of proceedings it falls for determination. In the event, I have found that Article 6 has no role to play in the construction, so this further consideration has no effect.

Construction of section 5 State Immunity Act 1978

On the premise (i) that section 31(1)(b) of the 1982 Act requires the Claimants to satisfy section 5 of the 1978 Act with the substitution of the words “United States” for “United Kingdom”, and (ii) that Article 6 has no role in the construction of either section, the parties join issue as to whether the Defendants benefit from the defence of state immunity in the circumstances of these cases. The backdrop is that all the Judgments, save for Acosta, were based on terrorist attacks on US citizens in Middle Eastern countries.

In Al-Adsani (Footnote: ⁵⁹) the Claimant was a member of the Kuwaiti Airforce. He stayed in Kuwait during the Iraqi occupation. He came into possession of video material embarrassing to a member of the Kuwaiti Royal family. After the liberation of Kuwait, the Claimant was allegedly kidnapped and subjected to torture by State security guards. For the purposes of the hearing and in order to determine jurisdiction, it was accepted that Kuwait was vicariously liable for the guards’ actions. Stuart-Smith LJ said that it was plain that the events in Kuwait did not fall within the exception in section 5 of the 1978 Act. The submission made on behalf of Mr AlAdsani was “that international law against torture is so fundamental that it is a jus cogens, or compelling law, which overrides all other principles of international law, including the well-established principles of Sovereign Immunity.” The Court determined that the Act is a comprehensive code and is not subject to overriding considerations (Footnote: ⁶⁰). Stuart-Smith LJ said:

“At common law, a Sovereign State could not be sued at all against its will in the Courts of this country. The 1978 Act, by the exceptions therein set out, makes substantial inroads into this principle. It is inconceivable, it seems to me, that the draftsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification.” Ward LJ said:

“It is inconceivable that Parliament legislated for the loss of State Immunity when the Acts causing that person injury are committed in the United Kingdom without having borne in mind its clearest international obligations to recognise the fundamental freedom from torture which everyone should enjoy everywhere. Unfortunately the Act is as plain as plain can be. A foreign state enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that State Immunity is afforded in respect of acts of torture committed outside this jurisdiction.”

Further allegations in Al-Adsani were that the Claimant had suffered psychological injury as a result of subsequent threats made to him once he had come to England. Mr Al-Adsani’s claim was that these anonymous telephone calls had been made by agents of the Kuwaiti Government and that they hindered his recovery from the posttraumatic stress disorder caused by his experiences in Kuwait; alternatively they added to his suffering by increasing his stress and anxiety. The Court of Appeal agreed with the judge that they could not be satisfied that it was more probable than not that the threats were uttered by agents or servants of the Government of Kuwait. Ward LJ said:

“Therein lies the weakness of the Plaintiff’s case. Connivance will not be sufficient to establish vicarious responsibility. In my judgment, the Plaintiff has failed to satisfy me that he would prove this part of his case, and accordingly, he fails to satisfy me that the Government are exempt from immunity.”

The Claimants say that there was rightly no discussion of the country from which the calls had originated. Reference is made to the ex parte decision of the Court of Appeal (Footnote: ⁶¹) where Evans LJ said “on its face, section 5 requires there to have been an act or omission in the United Kingdom. It might possibly be arguable that section 5 should not be read so strictly, but Mr McDonald has not submitted that that approach would be wrong. He submits that there is evidence of damage here in the form of injury to mental health, which has occurred since the Plaintiff returned to the United Kingdom, and that has been caused by the threats which have been made to the Plaintiff during his time in the United Kingdom, since he returned.” Evans LJ referred to the evidence and did not then focus on whether the threats which took effect in the United Kingdom were made from a country outside the United Kingdom. However, the matter is clarified in the first instance decision of Mantell J, unreported 3 May 1995. He described them as the English acts and said he was readily satisfied that they occurred within the UK. I understand this to be a finding that the threats were made from within the UK. Further, in the report of the inter partes decision of the Court of Appeal, in the summary of the facts, the allegations were listed as: “he also alleged that, including death threats, from agents of the Government of Kuwait, in particular, emanating from the Embassy of Kuwait in London.”

In any event, the above citation from Ward LJ makes it clear that the Court of

The Defendants in the present case submit, on the basis of Al-Adsani:

The Claimants’ response is that section 5 should not be construed restrictively since State Immunity is an exception to the normal jurisdiction of the court. (Footnote: ⁶²) They then make further points, which in headline form are:

Each of these points needs examination. I shall deal at this stage with all the Judgments save Acosta.

First, the Claimants say that the statutory words “an act or omission (in the United States)” encompass a joint tort. Joint tortfeasors are themselves directly responsible for the tort. In Sea Shepherd UK v Fish & Fish Limited (Footnote: ⁶³) Lord Sumption said:

“[37] …the defendant will be liable as a joint tortfeasor if (i) he has assisted the commission of the tort by another person, (ii) pursuant to a common design with that person, (iii) to do an act which is, or turns out to be, tortious.

[38] … He is liable for the tortious act of the primary actor, because by reason of the assistance the law treats him as party to it …”

It does not matter that one of the joint tortfeasors is abroad as long as the tort is committed within the jurisdiction. Thus in Sophocleous v Secretary of State for Foreign and Commonwealth Affairs (Footnote: ⁶⁴)at [21], Longmore LJ said:

“This makes it clear that there is only one tort. If that tort was committed by the primary actor in Cyprus, the fact that a person jointly liable for the commission of the tort was elsewhere when he gave the relevant assistance makes no difference to the fact that the tort was committed in Cyprus.” 144. In DPP v Doot (Footnote: ⁶⁵)the English Courts were held to have jurisdiction to try people for conspiracy when the conspiracy to import drugs had been formed abroad. Lord Pearson at page 827D said:

“It is not necessary that they should all be present in England. One of them, acting on his own behalf as agent for the others, has been performing their agreement, with their consent and authority in England. In such a case the conspiracy has been committed by all of them in England. (Footnote: ⁶⁶)”

In summary a joint tortfeasor or joint conspirator in a criminal case does not himself have to be within the jurisdiction if the primary perpetrator commits an act or omission in the relevant forum, i.e. the United States. Further, vicarious liability may be sufficient on the basis of what was said in Al Adsani.

As to this first point, all the Judgments (save Acosta) involved acts or omissions committed in Middle Eastern states, not in the United States. Therefore this point, by itself, does not assist the Claimants in respect of those Judgments.

Secondly, the Claimants say that section 5 encompasses a composite act or omission i.e. an act occurring partly inside and partly outside the forum state. It is said that in other contexts it is well established that an act done outside the territory which has harmful consequences inside the territory should in law be treated as an act in the territory. Examples are given such as shooting a gun across a border, planting a bomb on a train which will cross a border and explode in another country, or sending a letter or making a telephone call across state frontiers. At the without notice hearing before Singh J the Claimants gave the example of a dirty bomb detonated outside UK territorial waters which caused death and personal injury in the UK. They submitted it would be absurd if section 5 were to be construed in a way that conferred immunity in those circumstances, simply because the explosion took place outside territorial limits. The Claimants say that all such cases would be within section 5 as being acts “within the United Kingdom”, even though the person responsible for the act is not physically present in the United Kingdom and the initiating steps take place outside the United Kingdom. The act is completed in the United Kingdom and that suffices. So, for example, under the old test of jurisdiction, English Courts had jurisdiction for an action “founded on a tort committed within the jurisdiction”. A misrepresentation made by telex sent from outside the jurisdiction, but received and acted upon within the jurisdiction, or a telephone call from outside the jurisdiction but answered within the jurisdiction, led to the court finding that the substance of the tort was committed where the representation was received and acted upon – Diamond v Bank of London and Montreal. (Footnote: ⁶⁷) (Footnote: ⁶⁸)

The difficulty with this submission is that section 5 of the 1978 Act is not concerned with where the substance of the tort is committed. Its concern is where the act or omission causing the death, personal injury or damage occurred. In this case, did it occur in the United States? Here, apart from the Acosta case, all relevant acts or omissions occurred in Middle Eastern states. The fact that either primary victims continued to suffer injury on return to the United States or that secondary victims never left the United States does not assist the Claimants. Section 5 does not permit eliding the act or omission causing the personal injury with where the personal injury occurs. I do not accept that section 5 can be construed with such flexibility as to permit the Claimants’ submission to succeed. (Footnote: ⁶⁹)

This is reinforced to some extent by looking at section 5. At the time the 1978 Act was passed, the European Convention on State Immunity of 1972 (“the Basle Convention”) was relevant. Article 11 provides:

“A contracting state cannot claim immunity from the jurisdiction of a court of another contracting state in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the state of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.”

When introducing the State Immunity Bill in the House of Lords the Lord Chancellor said:⁷⁷

“The bill is intended to redress the balance. It follows, as I have said, more or less the line of the European Convention, but applies its principles in relation to all foreign states. When the bill is enacted we shall be in a position to ratify the 1972 Convention.

… …

So the European Convention has sought to list all those non- sovereign activities of states where a link justifying foreign jurisdiction can be identified. This bill enacts a corresponding list and the activities are identified in clauses 3 to 10 of the bill

…”

Also in Al-Adsani v United Kingdom at [22] the ECHR, referring to Article 11, said that section 5

“…was enacted to implement the 1972 Convention on State Immunity (“the Basle Convention”)”

I am not saying that section 5 replicates Article 11. It clearly does not. For example it does not have a presence requirement⁷⁸. As the Lord Chancellor said, the 1978 Act

The 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (the “2004 Convention”) similarly provides at Article 12 for an exception to state immunity “if the act or omission occurred in whole or in part in the territory of that other state and if the author of the act or omission was present in that territory at the time of the act or omission”. This is of little significance in construing section 5 as (i) it postdates the 1978 Act, (ii) it has been signed but not ratified by the United Kingdom and has not come into force since an insufficient number of states have ratified it, and (iii) it is subject to the comments about it, and other treaties, in Benkharbouche (Footnote: ⁷⁴)^.. Nevertheless, Lord Sumption did say about the 2004 Convention at [12]: “For the most part, it is consistent with the United Kingdom Act, which indeed was one of the models used by the draftsman.” (Footnote: ⁷⁵)

Thirdly, the Claimants say that the conspiracy is a “continuing offence” over which a state’s courts will exercise jurisdiction even where there may not be an overt act in the jurisdiction. Three cases are relied upon in support of this. These are: Liangsiriprasert (Somchai) v Government of the United States of America, (Footnote: ⁷⁶), R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) (Footnote: ⁷⁷)and HM Advocate v Megrahi⁸⁶. These three cases establish (Footnote: ⁷⁸) that in the crime of conspiracy the UK courts will regard the offence as punishable in this jurisdiction even if the conspiracy was formed abroad, and nothing was actually done in this country in furtherance of the conspiracy. Reliance is also placed on the MortonNorwich case at page 524 and the similar position in relation to civil common law conspiracies.

It seems to me that none of these cases assists the Claimants. Unlike the crime or civil tort of conspiracy, section 5 expressly founds the exception to State Immunity on an act or omission in the United Kingdom.

Fourthly, the Claimants rely upon the fact that the acts the subject of the judgments are terrorist acts. In this regard the submission is based upon the following:

Professor Sarooshi clarified in oral argument that the key point was the intention to cause harm in the United States. Building on the composite torts analogy, he said that even if the terrorist act such as a bombing took place in the Middle East, the intention to harm secondary victims in the United States made the act composite such that it occurred in part in the Middle East and in part in the United States. He said intention made the act travel from one country to the other.

As a preliminary point, even if this was correct, the primary victims who suffered the batteries in the Middle East would not be able to recover since, for them, the act was there, not in the United States. This would give rise to the unusual situation that the secondary victims could recover but the primary victims could not.

I reject these arguments because:

In coming to this conclusion I make no decision on the composite act submission e.g.

Decisions of Courts in other EU states

In this section I will set out some decisions of European Union courts where US judgments arising from Iranian state sponsored terrorism have not been enforced. The reasons for not enforcing have differed, but the outcome, on the cases put before this court, has been a consistent refusal to enforce. These decisions give some support to (i) the Defendants’ submission of comity between the courts of European Union countries, and (ii) that Article 6 does not require section 31(1) or section 5 to be interpreted as the Claimants have submitted.

In Rubin v Iran (Footnote: ⁸²) the Rubins sought to enforce the Judgment of the District Court for the District of Columbia awarding damages arising out of the Defendants’ involvement in the Jerusalem bombing of 4 September 1997. The French court held that Iran had immunity. Material extracts are:

“However, the universally prevailing custom in international law requires that all states, quite wisely, agree on the principle of their reciprocal immunity, in such a manner that any state should be forbidden to interfere in the exercise of another state’s public authority, including its stately authority of rendering justice…….

……..

since the acts attributed to it are …….acts that fall within its central sphere of sovereignty (acta jure imperii) and not management..”

The same reasoning is contained in the decision in Ben Haim, a decision of the same court on the same day.

In Turner v Iran (Footnote: ⁸³) the District Court for the District of Columbia had awarded damages to Mr Turner and his family arising out of his kidnapping in the Lebanon between 1987 and 1991. Recognition of the US judgment was refused. The court, applying Italian private international law, said:

“..the only relevant place is that where the causal fact directly produced an effect on the victim. In the case in question, the illicit conduct and the initial events, namely capturing the hostage and depriving him of his freedom, took place in Lebanon…”

In Havlish v Iran (Footnote: ⁸⁴) the claimants sought to enforce in Luxembourg a judgement of the South District of New York against Iran and others for damages arising out of the September 11, 2011 attack. Under the heading “Derogation from immunity from jurisdiction for acts which would have caused death, bodily harm or material injury to private persons?” the court (Footnote: ⁸⁵) said at page 56:

“..to the extent that the under-examination condition finds its justification in establishing a close link between the territory of the forum State and the activity of the State invoking jurisdictional immunity, the condition cannot be interpreted otherwise than as requiring the activity of the potential beneficiary of jurisdictional immunity be located in the territory of the forum State so that the derogation from jurisdictional immunity can be effective.” (Footnote: ⁸⁶)

In Flatow v Iran (Footnote: ⁸⁷)the Claimants sought to enforce a judgment arising out of the terrorist-caused death of Ms Flatow in Israel in 1995. The Italian Court of Cassation held that such a crime qualified as a crime of humanity such that the claim to state immunity had to be dismissed. However, enforcement was refused on the basis of Italian law which requires that judgments of non-EU Member States are to be recognised and enforced in Italy only if “the court rendering the judgment had competence recognised by the Italian legal order”. The US judgment had not been rendered by a court possessing jurisdiction under any of the grounds recognised in

The Acosta Judgment

I turn to deal separately with Acosta. This was a shooting incident in New York carried out by an individual who is not a Defendant in the proceedings. The District

It is agreed that there was an act in the United States for the purposes of section 5. The question is whether it was an act of the Defendants.

The Defendants submit there was no act by them. The alleged involvement of the Defendants was said to be providing continuous material support to terrorist organisations (overseas), analysed as participation in a civil conspiracy (overseas) to cause harm/damage in the United States, without any specific linkage to this particular incident or that the Defendants participated in a conspiracy in relation to the particular act. This is different from some of the cases, such as Heiser, where the findings were that the Defendants conspired to carry out the specific acts which caused the deaths/personal injury.

In Acosta the Defendants say what was found against them was not even “connivance” as described in Al-Adsani. In their skeleton they said “there are no findings by virtue of which Iran could be vicariously liable under English Law for the specific acts/omissions of the shooter in the US or the group from which he came”. This is “albeit that the language used in US Judgment is in places couched in terms of “conspiracy” and “vicarious liability” as a matter of US law”. In oral submissions in reply the Defendants said that if Iran was a joint tortfeasor that did not get over the hurdle that the state conspired to commit the particular act in question.

The facts and findings of the US Judgment in Acosta are more fully set out in the Appendix to this Judgment. There are detailed findings about the involvement of these Defendants. Specifically:

In the Sea Shepherd case there was no difference of opinion in the Supreme Court about the legal principles for liability as joint tortfeasor. At [21] Lord Toulson said:

“To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D would be jointly liable with P if they combine to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort …”

See similarly Lord Sumption at [37], Lord Neuberger at [55].

Lord Sumption referred to the fact that mere similarity of design on the part of independent actors, causing independent damage, is not enough. There must be a concerted action to a common end. Later at [39] he said that the mere facilitation of the tort will not give rise to such a liability, even when combined with knowledge of the primary actor’s intentions. The principal concern of the law is to recognise a liability for assisting the commission by the primary actor of a tort. Finally, at [45] he said:

“it is clear that SSUK cannot incur liability as a joint tortfeasor simply by assisting its activities in general. If they are to incur such liability at all, it must be on the ground that they have specifically assisted its tortious activities …”

Lord Neuberger agreed at [57]-[58] that the assistance provided by the Defendant must be substantial, in the sense of not being de minimis or trivial. However a Defendant will not escape liability simply because his assistance was (i) relatively minor in terms of its contribution to, or influence over, the tortious act when compared with the actions of the primary tortfeasor, or (ii) indirect so far as any consequential damage to the Claimant is concerned. Facilitation of the tortious act will not do. There must be a common design that the tortious act be carried out. Lord Neuberger further said:

“60 … It is unnecessary for a Claimant to show that the Defendant appreciated that the act which he assisted pursuant to a common design, constituted or gave rise to, a tort or that he intended that the Claimant be harmed. But the Defendant must have assisted in, and been party to a common design to commit, the act that constituted, or gave rise to, the tort … The Claimant need not go so far as to show that the defendant knew that a specific act harming a specific defendant (sic – presumably claimant) was intended.” (Footnote: ⁸⁹)

(my italics)

On the basis of those statements of principle, allied to the findings in the United States Court, the Defendants satisfy the test such that they must be regarded as joint tortfeasors with the primary tortfeasor in the Acosta case. On the US court findings the Defendants assisted and were a party to a common design to commit the act that constituted or gave rise to the tort, albeit that they may not have known that a specific act harming a specific person was intended. They “specifically assisted its (i.e. the Islamic Group and Nosair’s) tortious activities.”

In those circumstances I find, on the basis of the US findings in Acosta, that the Defendants did, with their agents, co-conspirators and joint tortfeasors, carry out the act of shooting. They satisfy the 3 conditions set out by Lord Neuberger at [55], namely, (i) they assisted the commission of the act by the primary tortfeasor, (ii) the assistance was pursuant to a common design that the act be committed, (iii) the act constitutes a tort as against the claimant.

For those reasons the requirements of section 31(1)(b) are satisfied in the Acosta case.

The Commercial Transaction Exception

Until recently the Claimants’ case had been based solely on section 5 of the 1978 Act.

The Claimants now put forward an alternative submission based on section 3. Section 3 provides:

“(1)

A state is not immune as respects proceedings relating to-

(a)

a commercial transaction entered into by the state; or

(b)

an obligation of the state which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.

(2)

…

(3)

In this section “commercial transaction” means-

(a)

any contract for the supply of goods or services

(b)

any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(c)

any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a state enters or in which it engages otherwise than in the exercise of sovereign authority;

But neither paragraph of subsection (1) above applies to a contract of employment between a state and an individual.”

The Claimants rely on subsections 3(3)(b) or 3(3)(c). They give examples of findings in the judgments relating to the extensive support provided by the Defendants to the terrorist organisations (Footnote: ⁹⁰):

The Claimants say that if, pursuant to the construction of s 31(1)(b) of the 1982 Act that I have adopted, the US Courts had been applying section 3(1)(a) of the 1978 Act, they would have found that the Defendants did not have immunity.

The Defendants put the possible applicability of section 3 into this context. They say that there are no English decisions referable to any application to apply section 3 to factual circumstances in any way similar to those in these cases. Further, the expert evidence from the US Legal Experts notes that there is a similar commercial activities exception under the FSIA.¹⁰² No US authority has applied this exception in any case involving allegations of state sponsored terrorism. This is despite the fact that, prior to the US terrorism exception to State Immunity, there were numerous cases in which the US tort exception was tried, and found wanting. Nobody appears to have considered the possibility of the commercial activities exception. Yet further, there is

Turning to the section itself, the two questions are whether the proceedings (i) related to (ii) a commercial transaction entered into by the state.

The construction of section 3 was considered by the House of Lords in Holland v Lampen-Wolfe. (Footnote: ⁹²)There the Claimant, a US citizen and Professor at a US University, taught at a military base in England, operated and maintained by the US Government. The Defendant, also a US citizen, was employed as Education Services Officer by the US Government at the base. The Claimant sued him for defamation on the basis of a memorandum which the Defendant sent in his official capacity. Section 3 of the 1978 Act was fully argued but, in the circumstances, was not necessary to the decision. Lord Millett gave the leading speech. He said, at 1587F-H:

“In my opinion, section 3(1)(a) is not satisfied because although the contract between the University and the United States Government is a contract for the supply of services and therefore a commercial contract within the meaning of the section by virtue of section 3(3)(a), the present proceedings do not relate to that contract. They are not about the contract, but about the memorandum. The fact that the memorandum complains of the quality of the services supplied under the contract means that the memorandum relates to the contract … But it does not follow that the proceedings relate to the contract, which is what section 3(1)(a) requires. In my opinion the words “proceedings relating to” a transaction refer to claims arising out of the transaction, usually contractual claims, and not tortious claims arising independently of the transaction but in the course of its performance.

For the same reason I doubt that the writing and publication of the memorandum constituted “activity” of an official character in which the United States engaged through the medium of the Defendant, so as to bring the proceedings within section 3(3)(c). The context strongly suggest a commercial relationship akin to but falling short of contract (perhaps because it was gratuitous) rather than a unilateral tortious act …”

In summary this obiter dictum, after full argument, from Lord Millett (Footnote: ⁹³) is strong persuasive authority for the propositions that:

The Claimants submit that when considering whether an activity is commercial or not, the purpose is not relevant. They rely on the passage in Kuwait Airways (Footnote: ⁹⁴) where the House of Lords referred to what Lord Wilberforce said in I Congreso Del Partido (Footnote: ⁹⁵) as authoritative. The central part of the citation is:

“..the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity….

[the ultimate test] is not just that the purpose or motive of the act is to serve the purposes of the state, but that the act is of its own character a governmental act, as opposed to an act which any private citizen can perform."

Following this authority, the act of state sponsored terrorism is of its own character a governmental act as opposed to an act which any private citizen can perform¹⁰⁸.

On that basis, the state financial sponsorship of terrorism found by the US courts (i) did not amount to a commercial transaction i.e. Iran was exercising its sovereign power de iure imperii; in any event, (ii) the proceedings leading to the Judgments did not relate to a commercial transaction. Section 3 is not therefore applicable.

In the end Professor Sarooshi accepted that, if I regarded myself as bound by the obiter dicta in Holland, he would have to reserve this argument for a higher court. I do regard myself as so bound, and I respectfully agree with what Lord Millett said.

It follows that the Claimants must fail in their attempt to enforce the Judgments. This is because

THE SERVICE ISSUES

Section 12 (1) of the 1978 Act provides:

Any writ or other documents required to be served for instituting proceedings against a state shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.” 189. Section 12(5) of the 1978 Act provides:

“A copy of any judgment given against a state in default of appearance shall be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of that state and any time for applying to have the judgment set aside … shall begin to run 2 months after the date on which the copy of the judgment is received at the ministry.”

In General Dynamics United Kingdom Limited v The State of Libya (Footnote: ⁹⁶)the Court of Appeal made it clear (obiter) at [62]-[63] that there is no power to dispense with service on a state. The requirements of section 12 are mandatory. The mandatory requirements are incorporated into the CPR by Rule 6.44. In the White Book 2019 at page 341 it says: “section 12 of the 1978 Act is modelled on art.16” of the Basle

Article 16 of the Basle Convention provides:

“(1)

In proceedings against a contracting state in a court of another contracting state, the following rules shall apply.

(2)

The competent authorities of the state of the forum shall transmit

-

The original or a copy of the document by which the proceedings are instituted;

-

A copy of any Judgment given by default against a state which was defendant in the proceedings,

through the diplomatic channel to the Ministry of Foreign Affairs of the defendant state, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant state.

(3)

Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs …”

The 2004 Convention provides in Article 22 that service of process shall be effected:

“1…

(c)

in the absence of such a convention or special arrangement:

(i)

by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned, or

(ii)

…

2.

Service of process referred to in paragraph 1 (c) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs”

In Jones v Ministry of Interiorof the Kingdom of Saudi Arabia Lord Bingham of Cornhill said at [8]:

“This convention is not in force, and has not been ratified by the United Kingdom. But, as Aikens J observed in AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1WLR 1420, 1446, para 80: “its existence and adoption by the UN after the long and careful work of the International Law Commission and the UN ad hoc committee, powerfully

demonstrate international thinking on the point.””

Service requirements

Under section 12(1), the document “required to be served to institute proceedings” is the Claim Form (Footnote: ⁹⁸). In the present case the Particulars of Claim were attached to the Claim Form. CPR rule 7.8 then provides:

“(1)

when Particulars of Claim are served on a Defendant … they must be accompanied by –

(a)

A form for defending the claim;

(b)

A form for admitting the claim and

(c)

A form for acknowledging service.”

(These three forms constitute the so-called “Response Pack”).

Further rule 6.45 requires:

The facts relating to the transfer of documents

I have already set out in detail in the Procedural Chronology the FCO letter of 9 April 2015 relating to what happened on 10 February 2014. The central paragraph is:

“It was a very short visit and because of pressure of business, there was limited opportunity to hand over documents during the meeting. Therefore at the end of the meeting on 10 February, while the UK delegation was speaking to the Iranian delegation outside the Iranian MFA building (but within the Iranian MFA compound), Mr Chamberlain explained to the

Iranian officials that the UK had some documents to hand over. He then handed the documents over to his counterpart Mr

Mr Howarth’s second witness statement says this:

“72.3

I am instructed by the Defendants that on the afternoon of 10 February 2014, following a meeting in Tehran which took place outside the MFA, Mr Chamberlain approached the UK desk officer of the MFA, Mr Sahebi. Mr Chamberlain told Mr Sahebi that he had forgotten to hand some papers to the Iranian Charge d’Affaires to the UK, Mr Habibollahzadeh, at a meeting earlier that day. When Mr Chamberlain and Mr Sahebi reached the street, Mr Chamberlain had his driver give Mr Sahebi a cardboard box, which was taped shut and had Swedish Embassy markings. Mr Chamberlain’s driver put the (still unopened) box in the car boot of Mr Sahebi’s car. The documents were not therefore received at the MFA at all”.

The Swedish Embassy markings probably reflect that the Swedish Embassy had previously been protecting UK interests prior to what has been described as the

“diplomatic thaw” which took place in February 2014. An email from the FCO (Mr Bryant) of 31 October 2013 to Professor Sarooshi says “we have finalised everything and have sent all the necessary information to the Swedes”. Diplomatic relations between the UK and Iran did not resume until 20 February 2014. The visit on 10 February 2014 appears to have been part of the groundwork for re-establishing those diplomatic relations.

On 11 February 2014 Mr Chamberlain sent an email to Mr Sahebi in which he said

“As requested I’ve attached a note verbale for the service of process documents I gave you yesterday.” That note stated:

“The Iran Department of the Foreign and Commonwealth Office of the United Kingdom and Northern Ireland presents its compliments to the Ministry of Foreign Affairs of the Islamic Republic of Iran and has the honour to transmit by way of service the enclosed documents regarding the matter Heiser et al and other cases v Iran, this being a court proceeding instituted in the United Kingdom.”

Therefore there are differences of account in that:

As to the approach to the evidence:

During the course of the hearing, after questions had been raised as to the weight/admissibility of Mr Howarth’s evidence on this point, it being based solely on his instructions, the Defendants made an application to adduce further evidence by way of a fourth witness statement from Mr Howarth dated 22 July 2019. This clarified that the instructions came from Mr Sahebi himself (Footnote: ⁹⁹). The Claimants objected to this late evidence.

In Foster v Action Aviation¹¹³Hamblen J said at [8]-[9]:

“8….this is a very late application and to allow evidence in would be a relatively exceptional course which the court is unlikely to take without good reason.

9.

In considering how to exercise my discretion I would regard the following considerations being of particular relevance; (1) the reason why the evidence was not put forward before, (2) the significance of the evidence, (3) the prejudice to the applicant if the application is refused, (4) the prejudice to the other parties if the application is allowed and (5) the need to do justice to all the parties having regard to the overriding objective.”

Following these principles, there is no good explanation as to why the evidence was not put in before, the evidence has potential significance in that it adds some weight to what is in Mr Howarth’s evidence by citing the source of his instructions and the potential prejudice to the applicant is not insubstantial. The Claimants sought to argue that they were prejudiced if the evidence was allowed in, on the basis that they may have carried out further enquiries. I am not convinced by that. I consider that the overriding objective is in favour of allowing in this brief, but not unimportant, evidence.

I shall first address the question as to whether, on the Claimants’ version, such documents as were handed over on 10 February 2014 were “transmitted” to the “Ministry of Foreign Affairs” of Iran.

Although the word “compound” has not been amplified, it seems to be a clear inference that they were on MFA premises. Further, the Defendants’ evidence does

There was a dispute as to whether, if the documents were handed over in the compound, on MFA premises, that would be sufficient for them to have been “received at the Ministry” within section 12(1). Mr Rainey QC submitted that this was not sufficient and that they had to be within the building itself. I do not accept this. If the information in Mr Chamberlain’s email of 10 February 2014 is correct, then the documents were transmitted and received at the MFA.

Which documents were given to Mr Sahebi?

The Defendants say that there is confusion as to which documents were said to be served on 10 February 2014 and there is no contemporary record to assist. Reference is made to letters from Professor Sarooshi requesting service of documents. These letters are:

It is accepted that if the documents attached to the letter of 25 February 2013 were in the box given to Mr Sahebi, then these were the documents required to be served. If there was only a Response Pack missing as suggested by the letter of 30 November 2012 to Master Whitaker, then service was not good but was capable of being cured (Footnote: ¹⁰⁰).

The Claimants submit that the FCO Certificate of Service dated 10 April 2014 should be treated as conclusive evidence of service. CPR Rule 6.44(5) provides that an official certificate by the FCO stating that a Claim Form or other documents have been duly served on a specified date in accordance with a request made under the rule “is evidence of that fact.” The question is to what extent, if any, has the evidence provided by the official Certificate dated 10 April 2014 from the FCO been undermined?

The Defendants say that it is not contemporary by being some two months late, it is not signed by Mr Chamberlain, but rather by Catherine Pochkhanavala-Gleeve (Footnote: ¹⁰¹). Neither of these points by themselves casts any real doubt upon the Certificate.

Nevertheless further points are made as follow:

Mr McGuiness’ statement at [11] relies upon the Claimants’ letter of 25 February 2013 which sets out the documents sent to the RCJ for onward transmission to the FCO for service pursuant to CPR 6.44(3). These contained three sets of copies in English of “English bundles” which were numbered 1-6. They contained the Claim Form (original and copy), copy Particulars of Claim, copy Orders made to date, Response Pack and various supporting documents. The letter also confirms that three sets of copies of translations into Farsi organised into the “Farsi bundles” numbered 1-6 were sent to Senior Master for transmission to the FCO for onward service on the Defendants.

Before analysing and drawing conclusions on the evidence, I must first determine whether the Claimants have to prove on the balance of probabilities: (1) which documents were given to Mr Sahebi and (2) whether Mr Sahebi was within or without the MFA at the material time. The Claimants say that they need only show that they have a good arguable case on these issues.

The Claimants’ argument relies on the following authorities:

The requirement on a Defendant to file a defence or acknowledgement of service arises when the particulars of claim are “served on a defendant”. CPR rule 9.2. By PD 12 para 4.1 in order to obtain default judgment “the court must be satisfied that- (i) the particulars of claim have been served on the defendant (a certificate of service on the court file will be sufficient evidence)”. Therefore the court must be satisfied as to service. In Shiblaq v Sadikoglu (Footnote: ¹⁰⁸)Colman J at [22] said that the Claimant must prove that valid service has been effected on a particular date. (Footnote: ¹⁰⁹)

It seems to me that for purposes of obtaining a default judgment it is necessary to prove proper service, as required by the above authorities specifically on this point. None of the cases cited by the Claimants are in respect of obtaining a default judgment.

Conclusions on Service of Process

I now take account of the points made on both sides and come to my conclusions as to

My findings are in fact on the balance of probabilities. It follows that if the threshold test is lower, namely a “good arguable case”, then that must be satisfied. I find that the documents were handed over “within the MFA compound”. They were therefore “transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State” and “received at the Ministry”. The documents transmitted and received on that occasion comprised a full set of documents, namely those sent to the Court on the 25 February 2013 for service.

The reasons for the finding as to the place where the documents were received are in summary:

In those circumstances I do not regard other points made by the Defendants, such as the fact that the Certificate certifies service which had taken place two months earlier, or that no documents were annexed to the Certificate of Service, as casting any real doubt on where service took place.

As to the finding that a complete set of documents was served:

One more point made by the Defendants was that in the three bundles sent to the Senior Master on 25 February 2013 English Bundle 1 contained “the Claim Form (an original sealed version of this document is included in one of the sets with a copy being included in the other two sets)”. It is said (a) that it is not clear if the copies were photocopies of the sealed claim form or just copies of the claim form; (b) that neither a photocopy of the sealed claim form nor an unsealed copy would suffice.

What is required to be filed for service, according to CPR Rule 6.44(3) is “a copy of the claim form.” This was done. If relevant, which I do not believe it to be, the probabilities are that photocopies of the sealed claim form were in two bundles. Further, in Weston v Bates (Footnote: ¹¹²)Tugendhat J held that for the purposes of service of “a claim form” under Rule 6.40(3), what constitutes a claim form is a matter of substance. Therefore there is nothing in this point.

For those reasons I find that there was good service of the proceedings on 10 February 2014.

Outline

The second service question is whether the default judgment was validly served upon the Defendants. The Claimants say that this was served either:

2 September 2015

I have already set out under the “Procedural Background” section in this judgment an extract from Mr Ben Fender’s witness statement dated 6 March 2016 in which he says that he had been unsuccessful in serving the documents regarding the default judgment. It should be remembered that Mr Fender was part of the diplomatic Mission in place in Teheran in 2015. Notwithstanding this, the Claimants rely upon these paragraphs in Mr Fender’s statement:

“3.

I first tried to deliver the documents to the MFA on 2

September 2015 under cover of a formal noteverbale from the

British Embassy. This note asked the MFA to forward the documents to the Ministry of Information and Justice.

Thus the documents were presented by a senior FCO official, along with a note verbale. Mr Fender sought to leave the documents at the MFA. He was not permitted to do so.

Service by email on 6 September 2018

On 25 May 2018 Soole J made an Order for service by email. I have set out the terms of the Order under the Procedural Background section of the Judgment. The

Soole J’s Order is, as the Claimants accept, solely declaratory of sufficient compliance. Except for the fact that he was prepared to make the Order ex parte, it does not take the matter any further. Either as a matter of law transmitting the documents by email to the Iranian MFA complies with section 12(5) or it does not. A without notice order cannot validate it.

In other words, the question which must be asked is as to whether, absent any order of the court, email service is sufficient compliance with section 12(5).

Section 12(5) - Discussion

There are two ex parte High Court decisions. I will come to these in a moment. I shall consider the arguments first in the absence of authority.

The relevant contentions for me to evaluate are:

In relation to 2 September 2015, the Claimants rely on Certain Underwriters at Lloyds London v Syrian Arab Republic and ors (Footnote: ¹¹⁴). In that case, Mr Andrew Henshaw QC, sitting as a Judge of the High Court, had to consider, ex parte, service under Section 12(1). Here the documents were taken to the Syrian MFA where the reception consignee refused to accept the documents and insisted that the couriers remove them from the premises. Teare J’s order of 14 December 2016 provided that service on the First Defendant by transmission by the FCO by courier to the Syrian MFA “shall be deemed to be good and sufficient service”, and that transmission by the FCO by courier to the Syrian Ministry of Justice to the Second and Third Defendants would similarly be deemed good service on them (Footnote: ¹¹⁵). At [19] the Judge said that the word “received” meant that the documents must actually reach the relevant Ministry, but did not require them to be accepted upon delivery; otherwise the recipient could evade service simply by declining to accept delivery. He therefore held at [23] that the documents had been transmitted to and received at the Syrian MFA, notwithstanding the representative’s insistence upon their immediate removal. The Judge said:

“[19]… the Act contains no definition of the words ‘transmitted’ or ‘received’ in section 12, … It seems likely that the word ‘received’ is intended, at least, to indicate that it is not sufficient merely for documents to be transmitted in the sense of being dispatched: they must actually reach the relevant Ministry. Conversely, section 12 does not in my view require the documents to be accepted upon delivery: otherwise the recipient could evade service simply by declining to accept delivery…..

22.

The Claimants also referred to two of the numerous definitions of the word “receive” in the Oxford English Dictionary, which include at 16a and b:

“To have (a thing) given or handed to oneself …” and

“To get (a letter, etc.) brought to oneself or delivered into one’s hands”

. 23. In the present case, the documents were not merely transmitted to the Syrian MFA but actually arrived within the Ministry’s premises. Further, it appears from the FCO’s letter quoted in § 16.iv) above that the consignee knew the identity of the sender, but refused to take the package and instead insisted on its removal from the premises. In these circumstances, there was no further step that could have been taken in order to effect service, and in my judgment no further step which needed to be taken. The documents had been transmitted to and received at the Syrian MFA, notwithstanding that the Ministry’s representative insisted on their immediate removal. I do not consider that the reception consignee’s refusal to take the package into his hands prevented it from having been received at the Ministry for the purposes of section 12, and I conclude that service under that section was complete when DHL proffered the package to the consignee.”

The words “transmitted” and “received”/“receipt” in sections 12(1) and 12(5) are not terms which are generally to be found in English procedural rules relating to service. They are to be found in Article 16 of the Basle Convention, which pre-dated the 1978 Act, and Article 22 of the 2004 Convention, which post-dated the 1978 Act.

The main focus in relation to 2 September 2015 is what is meant by the judgment having to be “received” at the MFA for time to begin to run for applying for the Judgment to be set aside (Footnote: ¹¹⁶). It seems to me that a document, or anything else, cannot be received if a person expressly refuses to accept it. The rules as to ordinary service are drafted in a way such that service cannot be evaded by non-receipt or nonacceptance¹³². This is not the case with section 12(5). Nor can the outcome of a state being able to evade service by refusing to take documents override the natural meaning of the word ‘receive’ (Footnote: ¹¹⁷). Thus, I am afraid I disagree with the ex parte decision in Certain Underwriters. I note also that the dictionary definitions referred to in that case at [22] tend not to support a finding that refusing to receive/accept a document amount to it being received. In the circumstances there was not service of the judgment on 2 September 2015.

I now turn to service by email. In TheEuropean Union v Syrian Arab Republic (Footnote: ¹¹⁸)Teare J, again ex parte, referred to section 12(1). He said that the subsection was a mandatory requirement as to the mode of service. Relying on the Court of Appeal decision in Anson v Trump (Footnote: ¹¹⁹) he accepted that there had been proper service by email.

In the passage cited by Teare J in Anson Otton LJ said at page 1411F:

“transmission must be given a meaning which is consonant with modern communication technology and commercial practice. I would hold that “transmission” means the process from the moment that the document is dispatched by the sender to a time when the complete document has been received into the recipient’s fax equipment.”

As Teare J recognised, the issue in Anson concerned whether service by fax was effected when the fax was received into the recipient’s fax machine, even though it may not be read till later. The Court of Appeal held that it was so effected. However, that was in the context of an RSC rule permitting service of a defence by fax and providing that “…service is effected by the transmission to the business address of such solicitor”.

Again I have had the benefit of argument which Teare J did not have. In the light of the above, I do not believe Anson can assist as to transmission for the purposes of section 12(5). In my judgment, albeit that the statute does not rule out service by email, there cannot be service by email for the following reasons:

APPENDIX: INFORMATION IN RELATION TO THE US JUDGMENTS

Common elements in relation to all US Judgments

The Khobar Towers Bombings.

Heiser I – extracts from the US Judgment

“11.

The attack was carried out by individuals recruited principally by a senior official of the IRGC [Iranian Revolutionary Guard Corps], Brigadier General Ahmed Sharifi. Sharifi, who was the operational commander, planned the operation and recruited individuals for the operation at the Iranian embassy in Damascus, Syria. He provided the passports, the paperwork, and the funds for the individuals who carried out the attack.

12.

The truck bomb was assembled at a terrorist base in the Bekaa Valley which was jointly operated by the IRGC and by the terrorist organisation known as

Hezbollah. …

13.

The terrorist attack on the Khobar Towers was approved by Ayatollah Khameini, the Supreme leader of Iran at the time. It was also approved and supported by the Iranian Minister of Intelligence and Security (“MOIS”) at the time, Ali Fallahian, who was involved in providing intelligence security support for the operation. Fallahian’s representative in Damascus, a man named Nurani, also provided support for the operation.

14.

Under Louis Freeh, the FBI conducted a massive and thorough investigation of the attack, using over 250 agents.

…

16.

In addition, as a result of this investigation, the FBI also obtained a great deal of information linking the defendants to the bombing from interviews with six admitted members of the Saudi Hezbollah organization, who were arrested by the Saudis shortly after the bombing. Id.At 11-30. These six individuals admitted to the FBI their complicity in the attack on the Khobar Towers, and admitted that senior officials in the Iranian government provided them with funding, planning, training, sponsorship, and travel necessary to carry out the attack on the Khobar Towers. (Exh. 7 at 11, 13-14, 27; see also Dec 18, 2003 Tr at 24-30). The six individuals also indicated that the selection of the target and the authorization to proceed was done collectively by Iran, MOIS, and IRGC, though the actual preparation and carrying out of the attack was done by the IRGC. (Dec. 18, 2003 Tr at 25)

17.

According to Director Freeh the FBI obtained specific information from the six about how each was recruited and trained by the Iranian government in Iran and Lebanon, and how weapons were smuggled into Saudi Arabia from Iran through Syria and Jordan. One individual described in detail a meeting about the attack at which senior Iranian officials, including members of the MOIS and IRGC, were present. (Dec.18, 2003 Tr. At 23.) Several stated that IRGC directed, assisted, and oversaw the surveillance of the Khobar Towers site, and that these surveillance reports were sent to IRGC officials for their review. Another told the FBI that IRGC gave the six individuals a large amount of money for the specific purpose of planning and executing the Khobar Towers bombing.

18.

Louis Freeh has publicly and unequivocally stated his firm conclusion, based on evidence gathered by the FBI during their five-year investigation, that Iran was responsible for planning and supporting the Khobar Towers attack. Blais at *4

……

It is undisputed that Saudi Hezbollah committed the attack on the Khobar Towers. It has been established by evidence satisfactory to this Court that Saudi Hezbollah and defendants Iran, MOIS and the IRGC conspired to commit the terrorist attack on the Khobar Towers.

Defendant Iran, “is a foreign State and has been designated a state sponsor of terrorism pursuant to section 69(j) of the Export Administration Act of 1979 … continuously since January 19, 1984 …

Defendant MOIS is the Iranian Intelligence Service, functioning both within and beyond Iranian Territory. Acting as an agent of Iran, MOIS performed acts within the scope of its agency, which caused the death of Rabbi Meir Kahane and the wounding of Irving Franklin and Carlos Acosta. Specifically, MOIS acted as a conduit for Iran’s provision of support in the form of, inter alia, documents, training and funding to Sheik Abdel Rahman and the Islamic Group.

After his arrest, Nosair was indicted and tried first in New York State Court, where he was convicted only of weapons offenses … … An investigation which began subsequent to both Nosair’s arrest and the first World Trade Center bombing, lead to the indictment and conviction of Nosair along with nine other individuals, including Sheik Abdel Rahman.

Nosair is a member of the Islamic Group, a radical Islamic fundamentalist terrorist group headed by Sheik Abdel Rahman. As head of the organization, Sheik Abdel Rahman issued “fatwas” to conduct “jihad” against the United States … Proof of this terrorist organisation, the role of Rahman and Nosair in the organisation, and its responsibility for the assassination of Rabbi Meir Kahane has previously been established … (affirming Nosair’s conspiracy conviction upon finding that the government presented sufficient evidence as to his motivations for the murder of Rabbi Meir Kahane and attempted murder of Acosta and Franklin).

Nosair’s killing of Rabbi Meir Kahane and shooting of Irving Franklin and Carlos Acosta were found by the jury to have been accomplished with the statutory motive – to maintain or increase his position within a racketeering enterprise, here the jihad organization … (finding that Rabbi Meir Kahane’s murder was consonant with the purposes of the jihad organization and that the murder was in furtherance of Nosair’s membership therein). This organization was “opposed to nations, governments, institutions and Individuals that did not share the group’s particular radical interpretation of Islamic law”, as charged in the indictment ….

… other members of the Rahman led jihad organization were shown to have been involved in the murder of Rabbi Meir Kahane, and Sheik Abdel Rahman commented that “he would have been honoured to issue a fatwa regarding the murder”.

… Mr Lang testified on Plaintiffs’ behalf as an expert in the area of terrorism, counter terrorism, and the investigation and analysis of terrorist events … he, provided sworn testimony that Defendant Iran, acting through Defendant MOIS, provided material support to the Islamic Group, including inter alia, facilities, transportation, weapons, training and financial support …

Mr Johnson was a member of the State Department’s Office of Counterterrorism at the time of the November 5, 1990 shooting. … He testified that as early as 1990, the State Department reported information that Iran was providing support to the Islamic Group headed by Sheik Abdel Rahman … He also expressed the opinion that Nosair was part of an international Islamic jihadist conspiracy carried out through the Islamic Group, which at the time of Rabbi Meir Kahane’s murder, received direct support from the government of Iran …

The conclusions of Mr Lang and Mr Johnson that Iran provided material support to Sheik Abdel Rahman and the Islamic Group were based upon publicly available sources including the State Department’s 1992 patterns of global terrorism, … and a number of different public articles reporting Iranian training and financial support of the Islamic Group and Sheik Abdel Rahman during the time period contemporaneous with the killing of Rabbi Meir Kahane.