Fiona Havlish et Al v Islamic Republic of Iran et Al
| Jurisdiction | England & Wales |
| Judge | Mr Justice Teare |
| Judgment Date | 08 June 2018 |
| Neutral Citation | [2018] EWHC 1478 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2015-000606 |
| Date | 08 June 2018 |
Mr Justice Teare
Case No: CL-2015-000606
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AN WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Vernon Flynn QC (instructed by Boies Schiller Flexner (UK) LLP)
Hearing date: 8 th June 2018
APPROVED RULING
Mr Justice Teare Friday, 8 th June 2018
(11.11 am)
Ruling by Mr Justice Teare
This is an application without notice by the claimants, Fiona Havlish and others, for an order pursuant to CPR 6.16(1) that the court dispenses with service of the claim form in this matter.
The court's power to dispense with the service of a claim form may only be exercised in exceptional circumstances. The application must be supported by evidence and may be made without notice. Sometimes that power is exercised retrospectively, but in this case an order is sought that service is dispensed with prospectively. The notes to the CPR at 6.16(2) indicate that that is a permissible use of the power.
These proceedings concern efforts by the claimants, who are all representatives or relatives of individuals who were victims of the September 11th 2001 terrorist attacks in New York, to recover amounts due to them from the defendants, who are the Islamic Republic of Iran and other emanations of that State, which amounts are due to them from the defendants pursuant to a judgment from the United States District Court for the Southern District of New York.
As I understand the matter, the claimants seek to register that judgment as a judgment of this court and seek to enforce it on assets of the defendants within this jurisdiction. It is apparent from the evidence before the court that similar efforts are being made in other countries. The reason why this application is made and the circumstances which are said to be exceptional concern the inability of the Foreign & Commonwealth Office to serve the appropriate documents on the defendants in Iran in the normal way.
There are two particular letters from the Foreign Office to which I should refer. The first is a letter dated 13 August 2016 from the deputy head of mission at the British Embassy in Tehran to the Foreign & Commonwealth Office. The letter concerns this case and attempts made to serve the documents in this case on the Iranian authorities.
Mr Fender sets out in that letter the reasons why he does not believe that there is any realistic prospect of successful service and why there should be no further attempt to effect service. He states that he has been asked to serve legal papers on the Iranian authorities on a number of occasions and has not succeeded at any time. He states at paragraph 4:
“The practice of the Iranian Government is not to allow foreign embassies to have contact with government departments or authorities in Iran, except as arranged by the Ministry of Foreign Affairs (MFA). My belief, based on my experiences, is that the MFA has a policy of resisting service in cases which it believes to be against the interests of the Islamic Republic of Iran.”
He then refers to one particular case in which an attempt at service was made, but failed. He then says this at paragraph 9:
“On several occasions I then discussed the delivery of the papers with Mr Mohammed Sahebi, the deputy director for Western Europe in the MFA. He told me that MFA staff were not generally permitted to receive legal documents and that the only person authorised to do so was a Mr Esfahani-Nejad, the head of the MFA's Legal Affairs Department. Mr Sahebi advised that I should seek a meeting with him. He also made clear that I should not attempt to oblige the MFA to accept documents through any subterfuge and that damage to UK-Iran relations would result.”
Mr Fender then requested a meeting with Mr Esfahani-Nejad, but he declined to see Mr Fender. Mr Fender goes on at paragraph 11 to say:
“In the course of these exchanges, Iranian officials indicated that they believe some legal cases against the Iranian authorities are politically motivated, and that it would harm UK-Iran relations for the Embassy to be associated with them. The clear implication was that they would not cooperate with them.”
He concluded at paragraph 13:
“Based on my experiences, my belief is that the MFA has a deliberate policy of not accepting papers relating to some cases involving the Iranian authorities and is determined to obstruct the service of papers. I believe that this would also be true of the papers in the case of Fiona Havlish & Others. In view of the MFA's assertion that some of these cases are politically motivated, I also believe that damage would result to UK-Iran relations if we were to make further attempts to serve papers.”
The other letter to which I should refer is dated 6 April 2018. This is a letter from Mr Batchelor of the Premium Service Legalisation Office of the Foreign & Commonwealth Office. He refers to an earlier decision of this court — as it happens, one given by me — which concerned service of documents in Syria. He stated:
“However, several previous attempts at service of legal claims on the Government of Iran under the State Immunity Act, via the Ministry of Foreign Affairs (MFA) in Iran have been unsuccessful, despite the best efforts of the British Embassy in Tehran. We have detailed...
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