(1) Certain Underwriters at Lloyds London v (1) Syrian Arab Republic
| Jurisdiction | England & Wales |
| Judge | and,Andrew Henshaw,Mr Andrew Henshaw |
| Judgment Date | 01 March 2018 |
| Neutral Citation | [2018] EWHC 385 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2015-000667 |
| Date | 01 March 2018 |
[2018] EWHC 385 (Comm)
Mr Andrew Henshaw QC
(sitting as a Judge of the High Court)
Case No: CL-2015-000667
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Otty QC and Naina Patel (instructed by Clyde & Co LLP) for the Claimants
The Defendants did not appear and were not represented
Hearing date: 5 February 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Andrew Henshaw QC
(sitting as a Judge of the High Court)
| (A) INTRODUCTION | 4 |
| (B) BACKGROUND TO THE CLAIM | 5 |
| (C) SERVICE OF THE PROCEEDINGS | 6 |
| (D) SUBMISSION TO JURISDICTION OF THE U.S. COURT | 12 |
| (1) Principal facts relating to submission to US jurisdiction | 13 |
| (2) Submission under English law | 17 |
| (3) Submission under US federal law | 25 |
| (4) Conclusions as to submission by First Defendant | 27 |
| (5) Conclusions as to submission by Second and Third Defendants | 29 |
| (6) Other requirements | 31 |
| (E) INTEREST | 31 |
| (F) COSTS | 33 |
| (G) CONCLUSIONS | 34 |
Mr Andrew Henshaw QC:
(A) INTRODUCTION
The Claimants have brought proceedings under CPR Part 8 on the basis of a final judgment rendered in their favour on 12 April 2012 and filed on 14 May 2012 by the United States District Court for the District of Columbia, in the sum of US$ 51,574,997.89 together with any post-judgment interest that may accrue. The United States not being a party to any relevant Convention with the UK for the mutual enforcement of judgments, the claim is brought at common law.
The final hearing of the Claimants' claim took place on 5 February 2018, and I received on 6 February 2018 the Claimants' supplementary note on certain matters on which I had invited written submissions.
None of the Defendants was present or represented at the hearing. I therefore considered at the hearing whether or not to proceed, taking account by analogy of the factors identified by the Court of Appeal in R v Hayward, Jones and Purvis [2001] EWCA Crim 168, [2001] 2 Cr. App. R. 11 at § 22.5. For the reasons I gave at the hearing, I concluded that it was right to proceed. Briefly, I was satisfied that:
i) all reasonable steps had been taken to give the Defendants sufficient notice of the hearing (as well as of the proceedings), and the Defendants had been given ample opportunity to attend. I elaborate on these matters in section (C) below;
ii) there was no reason to believe that an adjournment would be likely to result in the Defendants attending the hearing at a later date;
iii) there was no reason to believe that any of the Defendants wished to be represented at the hearing; and
iv) although the matters raised were serious, there was a public interest in the matter proceedings without further delay.
In all the circumstances, the Defendants had in my judgment foregone their right to appear or be represented at the hearing, and were voluntarily absent.
I therefore indicated that I would proceed, and would assume that had they been present then the Defendants would have taken all available points. I am satisfied that the Claimants have done everything possible to assist me in identifying and considering the arguments available to the Defendants.
The key issues arising are:
i) whether the present proceedings have been served on the Defendants in accordance with the requirements of the State Immunity Act 1978, alternatively whether service should be dispensed with; and
ii) whether the Defendants submitted to the jurisdiction of the US courts.
The Claimants accept that even if judgment is given in their favour, separate issues may arise about immunity from enforcement pursuant to section 13 of the 1978 Act. Those are not issues for determination at this stage.
(B) BACKGROUND TO THE CLAIM
The Claimants' claim in the United States District Court arose from the 1985 hijacking of EgyptAir flight 648 and the loss to which that gave rise. The Claimants brought two sets of proceedings in the US District Court under action numbers 06-CV-731 (filed in April 2006) and 08-CV-504 (filed in March 2008) against the present Defendants and a number of Libyan defendants. The latter were dismissed from the actions following the enactment of the Libya Claims Resolution Act of 2008.
The US District Court's “ Findings and Fact and Conclusions of Law” records that the claims against the present Defendants came before the court as the subject of an evidentiary hearing held from 3 to 7 May 2010 pursuant to which the court made its findings. The District Court's summary of findings includes the following points:
i) The plaintiffs' claim was for damages for acts of state-sponsored terrorism that resulted in the hijacking of EgyptAir flight 648 on 23 November 1985 while bound from Athens to Cairo, resulting in the complete destruction of the aircraft, which was insured by the plaintiffs, and the terrorist shootings of the American victims of the hijacking.
ii) Having heard and reviewed the evidence the District Court determined that the hijacking was an act of international terrorism committed by the Abu Nidal Organization (“ ANO”), which caused the destruction of the aircraft, and that the shootings occurred during and as a result of the hijacking.
iii) The court also determined that the ANO was sponsored and supported by Syria at the time of the hijacking, and that the present Defendants were liable by reason of having “conspired with and provided substantial and material support to the ANO terrorist organization” and “provided material support and resources and conspired with the ANO in the planning, training, support for, and commission of the EgyptAir hijacking”, because “the lead ANO terrorist operative, Omar Ali Rezaq, was trained and supported by the Syrian defendants”, and because “the Syrian defendants intended that their support of the ANO would promote and cause extrajudicial killings of American citizens, as well as necessarily result in the property destruction of the EgyptAir airplane incidental to the goals and objectives of the Syrian defendants and the ANO terrorists.”
The “ Findings and Fact and Conclusions of Law” also recorded that:
i) the Syrian defendants were served with process on 28 June 2003 but neither answered nor appeared;
ii) service had been perfected on each of the Syrian defendants, in accordance with US law, by delivery of the required documents (accompanied by Arabic translations) to the Head of the Ministry of Foreign Affairs via international courier service, including tracking information and a delivery record from the international courier service indicating that the shipment (containing two copies of the summons and the complaint, a notice of suit, and a translation of each into the official language of the foreign state) was signed for at the Syrian Ministry of Foreign Affairs on 30 July 2006; and
iii) a five-day hearing on liability and damages was held, commencing on 3 May 2010, during which the court accepted evidence in the form of inter alia live testimony, live video-link testimony, affidavit, de bene esse deposition, original documentary evidence and expert evidence from eight well-qualified experts on various subjects related to the issues before the court.
(C) SERVICE OF THE PROCEEDINGS
It is necessary to decide whether the present proceedings have been validly served on the Defendants.
Section 12 of the State Immunity Act 1978 provides, so far as relevant, that:
“12(1) Any writ or other document 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.”
Section 14 provides that references to a State are to include references to any Government department (such as the Second Defendant), and the Court of Appeal held in Propend Finance Pty Ltd v Sing (17.4.97, 1997 WL 1103759) that this extends to individual employees or officers of the State such as the Third Defendant:
“The protection afforded by the Act of 1978 to States would be undermined if employees, officers (or as one authority puts it, “functionaries”) could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity. Section 14(1) must be read as affording to individual employees or officers of a foreign State protection under the same cloak as protects the State itself.”
The House of Lords held in Kuwait Airways Corp v Iraqi Airways Co (No.2) [1995] 1 W.L.R. 1147; [1995] 3 All E.R. 694 that (save where there is agreement to the contrary under s.12(6) of the Act) the requirements of section 12 are mandatory and good service cannot be made without adhering to them. As a result, service on a State's Embassy in the UK was insufficient. The House of Lords approved the statement by Evans J at first...
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