Shehabi v Kingdom of Bahrain

There is an application before me today to adjourn a hearing that has been fixed on 22 and 23 February 2022 to hear an application made by the Defendant in these proceedings.

By way of background, the claim that is advanced by the Claimants is one based on harassment. They contend that they have been subject to unlawful interception of their communications and surveillance conducted by agents of the Defendant. They claim that there was hacking activity by embedding software onto devices owned by the Claimants and that was done covertly in order to allow their activities to be placed under surveillance. That is a summary of the claims that are made.

The claim, as I say, is brought under the Protection from Harassment Act 1997 and it is alleged that both Claimants have suffered personal injury. In the Particulars of Claim, dated 9 November 2020, the First Claimant alleges that:

Similarly, the Second Claimant alleges that, as a result of the activities alleged against the Defendant, that he has suffered an exacerbation of an adjustment disorder from which he had already suffered and he similarly relies upon an expert report from a consultant psychiatrist dated 14 April 2019. Those are claims in tort.

Some time was taken with the necessary steps to obtain permission to serve the Claim Form out of the jurisdiction. Extensions of time were sought and granted to enable that to be done but, eventually, the Claim Form was served on the Defendant. Shortly afterwards, solicitors for the Defendant came onto the record, Schillings International. Following their instruction the solicitors for the Defendant then made an application which was filed on 28 September 2021. The Application Notice sought the following:

That application was therefore on two bases: firstly, the assertion of sovereign immunity; and, secondly, a challenge to the series of orders which consisted of extensions of time for service of the Claim Form and permission to serve the Claim Form out of the jurisdiction. The second challenge is largely based on alleged failures by the claimants to make full and frank disclosure to the court on the occasions of the ex parte hearings where these orders were made. That is separate from the principal challenge on the grounds of state immunity.

The Defendant’s solicitor, Magnus Boyd provided a witness statement in support of the application, dated 28 September 2021. In it, he set out the evidence relied upon by the Defendant in support of the application. In paragraph 4 he said this:

He referred to the Particulars of Claim that had been filed and he gave a summary of the claims that are made by the Claimants. Section C of his witness statement is headed “State immunity” and he says the following:

In the remainder of his witness statement, Mr Boyd dealt with the second aspect of the application concerning the challenge made to the extension of time orders. Those are not relevant for today’s purposes. The issue has assumed importance before me today is the question of state immunity.

I made a directions order on 7 October 2021 listing the Defendant’s Application before a judge of the Media and Communications List with a time estimate of two days. The hearing was then duly listed to be heard on 22 and 23 February 2022. The Claimants served and filed a third witness statement of their solicitor, Yai Ida Aduwa, dated 25 October 2021. She set out evidence in response to Mr Boyd’s witness statement. She noted::

Mr Boyd served a second witness statement on 14 January 2022. The witness statement deals only with the issues relevant to the challenge to the extension of time orders. It does not touch upon the questions or raise any evidence in relation to the issues surrounding state immunity.

That was the position until, on 27 January 2022, Schillings International, issued an Application Notice seeking the following orders:

In the evidence in support of the application, contained in the application notice, the solicitor for the Defendant, Mr Boyd, stated the following verified by a statement of truth:

That application was referred to me and I made an order, without a hearing, on 2 February 2022:

In the reasons I in the order, I said the following:

Yesterday, after some correspondence between the relevant parties, a notice of change of solicitor was filed by Volterra Fietta, the firm now instructed on behalf of the Defendant. Filing of the notice of change meant that the application issued by Schillings to come off the record became otiose. The Defendant’s new solicitors then communicated with the Claimants’ solicitors and the Court to indicate that they had come on the record and that they intended to issue an application seeking an adjournment of the hearing fixed for 22 February. An Application Notice was issued late last night seeking an order in the following terms:

Mr Volterra’s witness statement, dated 10 February and filed late last night, set out the evidence in support of the application to adjourn. It says the following:

He then set out some of the history of the correspondence between Schillings and Dr Saud before stating this, in para.16:

A skeleton argument for the application to adjourn was filed last night by Professor Dan Sarooshi QC and Penelope Nevill, the newly instructed counsel. The application has obviously been brought on very quickly and I am grateful to the Claimants’ solicitors and counsel for making themselves available to hear an application made at very short notice.

Professor Sarooshi has set out in his skeleton the legal principles governing adjournment:

The argument presented in the skeleton argument and in submissions today is that the Defendant’s legal advisors now have insufficient time to prepare for the hearing that is due to take place on 22 to 23 February. The argument that has been advanced I found difficult at times to follow. Professor Sarooshi referred to potential cross-examination at the hearing and the need to obtain documents from Schillings as reasons why an adjournment was required. I have set out the witness evidence that has been filed by the parties relevant to the hearing on 22 to 23 February. From that, it appears to have been common ground that there was no real dispute of fact. The matters advanced in the Particulars of Claim were not challenged by the Defendant, at this stage, and that the issues to be resolved in relation to state immunity were legal issues. That certainly accorded with my understanding of the way in which state immunity challenges take place. Therefore, I sought to ascertain why the time that is left between now and 22 February would be insufficient for the new solicitors and counsel to prepare. All of the evidence has been filed. The issue is one substantially of legal submissions. Professor Sarooshi is an expert in the field and he, I imagine, would have no difficulty in advancing the legal submissions based on state immunity for the Defendant if the hearing went ahead as scheduled.

Matters are complicated a little bit by the correspondence. After they had come on the record, the Defendant’s solicitors sent a letter confirming that they acted now for the Defendant. The letter contained the following paragraph:

Reference there to the provision of appropriate documentation to make a determination begs a series of questions, the first of which is it suggests that the documentation that has previously been filed in accordance with the directions would not enable the court to make the proper determination regarding the claim for state immunity. Leigh Day, the solicitors for the Claimants, responded to that letter by them expressing concern about the suggestion of adjournment and stated:

In their response, the third letter of 10 February, Volterra Fietta on behalf of the Defendant said this:

The reference to Volterra Fietta not having the full documents is to the fact that, although a large number of documents have been provided to the new solicitors (including all the key documents relating to the application), Schillings are exercising a lien over the remaining papers pending satisfactory discharge of their outstanding invoices. However, the reference to the application being complex and extremely document heavy is difficult to understand in the context of what has been filed by way of evidence thus far. As appears from the summary of the exchange of evidence above, there is no substantial dispute of fact between the parties. Indeed, the parties appear to have agreed hitherto that the issue is one to be determined as a matter of law. In that context, the reference to the application being “extremely document heavy” is difficult to understand. I have not received a satisfactory explanation today as to why it is suggested that preparation for the hearing of the application – scheduled for 22^nd and 23^rd February - requires the new solicitors to carry out a very detailed analysis of this “extremely document heavy” material.

At times during Professor Sarooshi’s submissions I gained an impression that the adjournment application might be heralding the arrival of a substantial change of tack on behalf of the Defendant in respect of the issues that fall for determination at the hearing on 22 and 23 February, but ultimately that is not the way the application was presented today.

Mr Silverstone, on behalf of the Claimants, has submitted that the Court has not been given an adequate explanation for this belated application to adjourn. He has referred to the conflict that there now exists in the evidence of Mr Boyd, provided in the application notice of 27 January, setting out the history of the difficulties of getting instructions from the Defendant which dates back, according to Mr Boyd, to December 2021 and the unpaid solicitors’ bills, and the evidence of Mr Volterra, who, on behalf of the Defendant, disputes the account of events given by Mr Boyd. He does not go into detail, save to state that the Kingdom of Bahrain’s position is that it did give instructions but these were not followed by Schillings. That leaves the position very opaque, but I noted that Mr Volterra’s evidence does not challenge Mr Boyd’s claim that the Defendant was not paying its former solicitors. For present purposes, I can only note that there is a dispute on the evidence between two solicitors which is incapable of being resolved at this hearing.

Nevertheless, to the extent that because of its falling out with its previous solicitors, the Defendant now finds itself with less time to prepare for the hearing on 22 and 23 February than it might have liked, that appears to be a self-inflicted wound. I have to consider whether, in all the circumstances, and applying the principles that I have set out above, I should grant an adjournment.

I am unpersuaded that the amount of work that is required to be done by the Defendant and its legal representatives to prepare for the hearing on 22 and 23 February means that they cannot fairly prepare for the hearing. As matters stand, there is no substantial dispute of fact in the witness evidence. The issue for determination is one that the parties hitherto treated as an issue of law. The Defendant has not told me that it wants to change its position or that it now wishes to file further factual evidence relevant to the issues to be decided. Professor Sarooshi’s suggestion in his submissions that there might be need for cross-examination seems to me to be wholly speculative. The Court has not been asked to make a direction for cross-examination, and it begs the question of cross-examination of whom and on what factual dispute. There does not appear to be a relevant dispute of fact on the basis of the witness evidence that has been filed thus far. I reject any contention that the Defendant would not have a fair hearing on 22-23 February.

I have to judge the situation as it stands today. Ultimately this is a case management decision. Professor Sarooshi submitted that Mr Silverstone’s complaint that the Claimants will be prejudiced by further delay was not supported by any evidence. I think the Court is entitled to take notice of the fact that delay in litigation takes its strain on individual claimants and, obviously, these Claimants would wish for matters to progress. But it is not the case that the court is only concerned with the prejudice to the parties.

The impact upon the administration of justice is a factor that may not in the past have received the attention it deserves when the court is considering whether to grant an adjournment. In real terms, this is the disruption caused to the court and other litigants. The allocation of a fair share of the court’s (limited) resources is now very much part of the Court’s consideration of the overriding objective. Here, as long ago as 7 October 2021, the court provided a timetable for this application to come before the court. This provided both parties with a fair opportunity to advance the evidence upon which they wanted to rely in good time before a hearing.

If I were, today, to adjourn the hearing on 22 and 23 February, that will cause inconvenience to other litigants. That will arise in two ways. Firstly, in the time left between now and 22 and 23 February, it is unrealistic to expect that the Court will be able to accommodate the cases of any other litigants. Second, if the matter is adjourned to some point beyond 11 April, which is the order that is sought, then that will take up further court time that could have been allocated to resolving the cases of other litigants. True it is that the fundamental question is whether the hearing will be fair and, if I thought that the Defendant could not have a fair opportunity to present its case on 22-23 February, I would be bound to adjourn it, no matter the inconvenience and delay caused to the Claimants and other litigants. But, at the moment, I am not satisfied that there is any risk of unfairness in the proceedings going ahead as they were originally scheduled on 22 and 23 February.

The Defendant’s solicitors have raised a point that the current directions timetable requires them to file a bundle for the hearing on Tuesday next week. That is a matter easily solved. I will direct that the Claimants will be responsible for filing the court bundle in accordance with the court’s directions. On the current state of the evidence, that should not be a difficult task for the Claimants’ solicitors to perform. The legal issues to be resolved will be dealt with in the skeleton arguments. There is over a week before the hearing. I am satisfied that there is sufficient time between now and Thursday next week, which is the deadline for the service of the skeletons, for the Defendant’s argument fairly to be prepared by the Defendant’s representatives.

If it turns out, following the change of legal representation, that the Defendant wishes to change of course, for example if it wishes to seek permission to file further evidence, then that will be a matter that will have to be addressed in due course. It may mean that the hearing cannot fairly take place on 22 and 23 February. In all probability, such an application would probably have to be heard on 22 February, but I anticipate the court will look carefully at any such application.

I am not presently persuaded on the basis of the arguments and the evidence that has been put forward to me today that there is a justification for adjourning the hearing. Largely, as I have said, the difficulties that the defendant is experiencing are self-inflicted wounds. There is a conflict of evidence between the Defendant and its former solicitors. The Court and the Claimants have been provided with scant detail of what has been going on. I cannot resolve the dispute, but it does not provide a convincing basis upon which to adjourn the hearing. As I say, the reasons for that falling-out between the Defendant and its former solicitors are unclear but the Defendant has not satisfied me that there is insufficient time between now and 22 February for the new legal team to be ready for the hearing. If there is to be a change of tack by the Defendant, then it will have to make a further application for an adjournment. Any such application would likely require a very clear explanation by the Defendant of why circumstances requiring a change of solicitors justify the adjournment of a hearing which, as I have said, has been fixed for some period.

The order I will make today is I refuse the application for an adjournment. I will vary the previous direction of the Court requiring the Defendant to prepare and file the hearing bundle next week. That will be varied to reallocate this task to the Claimants. The skeleton arguments will be filed in accordance with the directions the Court has previously made.