AB Bank Ltd, Off-Shore Banking Unit (OBU) v Abu Dhabi Commercial Bank PJSC
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 12 August 2016 |
| Neutral Citation | [2016] EWHC 2082 (Comm) |
| Docket Number | Case No: CLAIM NO. CL-2016-000127 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 12 August 2016 |
[2016] EWHC 2082 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Mr. Justice Teare
Case No: CLAIM NO. CL-2016-000127
Laura John (instructed by Holman Fenwick Willan LLP) for the Defendant
Andrew Ayres QC and Rachel Toney (instructed by DLA Piper LLP) for the Claimant
Hearing dates: 5 and 28 July 2016
On 29 January 2016 Cooke J., at a without notice hearing, made a Norwich Pharmacal Order against Abu Dhabi Commercial Bank PJSC ("ADCB Dubai"), a bank in the UAE. ADCB Dubai now seeks an order setting aside that order. The application raises the question whether the court has jurisdiction to permit service out of the jurisdiction of an application for the grant of a Norwich Pharmacal Order.
The factual background
The Claimant, AB Bank Limited, a Bangladeshi Bank, claims to have been the victim of a fraud. The facts alleged are set out in Particulars of Claim attached to a claim form issued on 30 June 2016 but which has not yet been served. It is alleged that the Claimant wished to raise funds in the UAE which it intended to lend in the domestic Bangladeshi market. To that end it entered into a Wakala or Sharia-compliant agency agreement with Pinnacle Global Fund PTE Limited, a Singaporean company. It did so with effect from 17 November 2013. In February 2014 a meeting took place in Dubai at the offices of ADCB Dubai. Officers of the Claimant thought they were dealing with employees of ADCB Dubai and that they were arranging for the setting up of a joint account. Pursuant to what they thought had been agreed the Claimant paid a sum of US$20m. into an account with ADCB Dubai for the purposes of the Wakala agreement. But between 2 March 2014 and 28 December 2014 that sum was paid out and the Claimant does not know to whom. The Claimant entered into discussions with Pinnacle for the return of the US$20m. Those discussions were in London and led to an amendment to the Wakala agreement pursuant to which the governing law of the transaction was agreed to be English and the English court was agreed to have jurisdiction in respect of any claims. The US$20m. has never been recovered.
The alleged fraud has no connection with England save that (i) the provisions of the amended Wakala agreement provide for English law and jurisdiction, (ii) that amendment was negotiated and executed in England and (iii) the amendment is said by the Claimant to be a continuation of the fraud.
No allegations of fraud are made against ADCB Dubai but it is said to be sufficiently mixed up in the events giving rise to the fraud that it is appropriate to make a Norwich Pharmacal Order against it. The Claimant considers that ADCB Dubai has information as to where the sums in question went. This information may assist the Claimant in advancing a proprietary claim.
The jurisdictional gateway
An order permitting service out of a claim form may only be made if the claim can be brought within one of the jurisdictional gateways set out in the Practice Direction to CPR Part 6. In Documentary Evidence 12 th. ed. at p.73 Mr. Hollander QC has said that there is no obvious basis for service out of the jurisdiction of a claim for Norwich Pharmacal relief. Nevertheless, three gateways are relied upon in this case.
"Interim remedy"
The first gateway relied upon is that the claim is for "an interim remedy under section 25(1) of the Civil Jurisdiction and Judgments Act 1982"; see PD 6B paragraph 3.1(5). The submission by Ms. John, counsel for ADCB Dubai, is that a claim for a Norwich Pharmacal order is a claim for substantive relief; see Lockton Companies International & Others v Persons Unknown and Google [2009] EWHC 3423 (QB). The relief sought, that is, the making of the Norwich Pharmacal order, is the final relief sought against the Norwich Pharmacal defendant. The contrary submission by Mr. Ayres QC, counsel for the Claimant, is that an interim remedy for the purposes of and in the context of PD 6B is relief which is granted in support of substantive foreign proceedings yet to be resolved. In the present case foreign proceedings may be commenced once ADCB Dubai, pursuant to the Norwich Pharmacal order, discloses the information it has as to where the US$20m. went. Counsel said that foreign proceedings are still "very much on the cards, but cannot get going until the Claimant finds out the first stop for its missing US$20m."
I was told that there is no English decision on this question. "Interim relief" is defined in section 25 of the Civil Jurisdiction and Judgments Act as "interim relief of any kind which [the Court] has power to grant in proceedings relating to matters within its jurisdiction, other than (a) a warrant for the arrest of property or (b) provision for obtaining evidence." It was not suggested that an application for a Norwich Pharmacal order was a "provision for obtaining evidence."
I accept that in determining whether a claim is for an interim remedy one has to have regard to the object of PD 6B paragraph 3.1(5). The object of that gateway is to enable the court to permit service out of the jurisdiction of an application for interim relief in the context of foreign proceedings. The usual example of such relief is a freezing order in support of foreign proceedings. Although, as a matter of English law, the basis upon which a Norwich Pharmacal order is justified is different from the basis upon which a freezing order is justified both orders are in a real and practical sense orders in aid of foreign proceedings. A freezing order is designed to ensure that a defendant retains assets against which a judgment can be enforced if and when judgment is obtained in the foreign proceedings. A Norwich Pharmacal order is, in the present case, designed to ensure that the Claimant has the necessary information to enable him to bring proceedings in a foreign jurisdiction. Each remedy is in a real sense "interim".
However, it is to be observed that the gateway is not available to permit service out of an application for Norwich Pharmacal relief in support of proceedings within the jurisdiction (because that would not be an application for an interim remedy under section 25). It is difficult to conceive of a reason why the draftsman would wish to provide a gateway for service out of an application for Norwich Pharmacal relief in support of foreign proceedings but not in support of domestic proceedings. That suggests to me that the object of the gateway was to enable service out of applications for relief in support of foreign proceedings where the relief was sought against the defendant in the foreign proceedings and was interim as between the claimant and the defendant, such as would be the case with a freezing order. Where the only actual or intended proceedings against a defendant are within the jurisdiction, service out of an application for interim relief would not be required either because the defendant was within the jurisdiction or because permission had been granted to serve the substantive proceedings out of the jurisdiction. That would explain why PD 6B para.3.1(5) applies only in the case of foreign proceedings.
I consider this to be a compelling reason for accepting the submission of ADCB Dubai in this case. In order for a claim to be for an "interim remedy" within the meaning of the PD 6B para. 3.1(5) it must be "interim" as between the applicant for such relief and the respondent to the application. An application for Norwich Pharmacal relief is not interim in that sense. It is the final relief sought against the respondent. There will be no further proceedings against the respondent which would justify describing the remedy as interim.
This issue has been aired in other jurisdictions. In Secilpar SL v Fiduciary Trust Limited (2004) the Court of Appeal in Gibraltar (Glidewell P., Stuart-Smith JA and Otton JA) considered that the Chief Justice had been "clearly right" to hold that an application for Norwich Pharmacal relief was interim. However, the contrary was not argued before the Court of Appeal, though it may have been argued before the Chief Justice. The Chief Justice had held that the order was interim because it is "ancillary to proceedings ongoing in another jurisdiction and is in no way final in the sense that it determined liability or concludes those proceedings".
In Morgan and Morgan Trust Corporation Limited v Fiona Trust and others (2006), a decision of the Court of Appeal in the British Virgin Islands, the issue arose whether a Norwich Pharmacal order was an interlocutory order which could only be appealed with leave. The approach of the Gibraltar Court of Appeal was followed. In addition it was said that the order was interim because it had been made without notice and so was not a final order and, when the order was made inter partes, it was made "until further order". That decision was challenged in a later case in the British Virgin Islands, TSJ Engineering Consulting Limited v Al-Rushaid Petroleum Investment Company (2010), but was followed by the Court of Appeal. An argument very similar to that advanced before me by Ms. John was advanced, namely, that a Norwich Pharmacal order was made when a cause of action existed to establish a duty to provide certain information and that when that cause of action was established and the order made there were no outstanding issues to be determined so that the order was final, not interim. That argument...
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