Dynasty Company for Oil & Gas Trading Ltd v The Kuristan Government for Iraq
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 04 March 2020 |
| Neutral Citation | [2020] EWHC 890 (Comm) |
| Date | 04 March 2020 |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2019-000509 |
[2020] EWHC 890 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
7 Rolls Building
Fetter Lane
London EC4A 1NL
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2019-000509
Mr J Ramsden QC and Mr R Dougans (instructed by Prieskel & Co LLP) appeared on behalf of the Claimant
Mr G Dunning QC and Mr D Speller (instructed by WilmerHale LLP) appeared on behalf of the Second Defendant
The First Defendant is not represented
JUDGE This is an application made by the second defendant for an order that, in effect, bifurcates the determination of issues concerning the jurisdiction of the court to entertain a claim brought by the claimant against the second defendant. The order sought is for an order that a hearing fixed to take place on 22 June 2020 be limited to the determination to (i) whether the second defendant is immune from the jurisdiction of the court by reason of the State Immunity Act 1978; and (ii) whether service of the claim form on the second defendant has been effected in accordance with section 12 of the State Immunity Act 1978.
The second defendant was served personally and within the jurisdiction in the arrivals hall at Heathrow Airport. The second defendant will submit at the jurisdiction hearing, that this is contrary to section 12(1) of the State Immunity Act 1978, which requires that any:
“… 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 …” in question.
It will be submitted that this provision applies as much to the second defendant as to the state because it is said that the second defendant was a minister of the relevant state for these purpose, being the first defendant.
The substantive immunity question is governed by section 14 of the Act and it is submitted by the claimant that if the requirements of that section are satisfied then that will provide a complete answer as to the jurisdictional issues that arise. There will no need then to determine the other jurisdictional issues identified by the defendant which the second defendant wishes to be put off to be dealt with on a subsequent occasion, that is to say domicile, act of state and foreign conveniens issues.
The claimant submits that the course proposed by the defendant is an invitation for delay, expense and is in every respect contrary to the basic principles that should apply to the case management in particular of jurisdiction disputes. The claimant submits with some force is that if bifurcation is to be ordered that could result in as many as two appeals stretching over a number of years if the issues concerning state immunity are dealt with separately and are then subject to an appeal to the Court of Appeal followed by, if the Court of Appeal overturns any decision concerning state immunity made in favour of the second defendant, a hearing in this court dealing with all the remaining issues, followed by yet another appeal with the result that the jurisdictional issues could take literally years to resolve. It is submitted that is something that the court should strive to avoid.
It is said the court should strive to avoid such an outcome, not least because the case law in relation to jurisdictional challenges over many years has emphasised the summary nature of the process or at any rate the ideally summary nature of the process, which is designed to ensure that the interest of a foreign defendant dragged before the English court is adequately protected whilst at the same time ensuring that the substantive dispute is resolved suitably speedily if jurisdiction is established.
The particular circumstances of this case are these. The proceedings were served on the evening of 31 October in the circumstances that I have explained. The jurisdictional challenge was served on 12 December and there were various extensions granted in relation to the filing of evidence but critically both parties agreed to the fixing of a hearing for the determination of all jurisdictional issues. Both parties at that stage estimated that one day would be sufficient. The application to fix was on 17 January and the application was listed for a hearing on 22 June 2020. That illustrates a point that I made in the course of argument which is that if the hearing on 22 June is to be vacated on the basis that what is required is a three-day or possibly four-day hearing then it is highly unlikely that it will take place earlier than six months from June, ignoring the summer vacation period. Thus, it is likely to be heard some...
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Hashwah and Others v Qatar National Bank (QPSC) and Others
...v Marlborough Fine Art (London) Ltd [2002] 1 WLR 1731Dynasty Co for Oil & Gas Trading Ltd v Kurdistan Regional Government of Iraq [2020] EWHC 890 (Comm)Dynasty Co for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq [2021] EWHC 952 (Comm); [2022] QB 246; [2021] 3 WLR 1095ETI ......