Mohammed v Bank of Kuwait and the Middle East K.S.C.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS,LORD JUSTICE SAVILLE,LORD JUSTICE MORRITT |
| Judgment Date | 21 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0521-7 |
| Docket Number | No QBENI 95/1240/E |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 1996 |
[1996] EWCA Civ J0521-7
Lord Justice Evans
Lord Justice Saville
Lord Justice Morritt
No QBENI 95/1240/E
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF JOHN MITTING QC
Royal Courts of Justice
Strand
London WC2
MR S NATHAN QC (Instructed by Landau & Scanlan of London) appeared on behalf of the Appellant
MISS M CARRS FRISK (Instructed by Messrs Denton Hall of London) appeared on behalf of the Respondent
The plaintiff is a citizen of Iraq. From 1982 until 1991 he was employed by the defendants, the Bank of Kuwait & the Middle East, in Kuwait, and latterly was their senior legal adviser there. In August 1990 the Iraqi forces invaded Kuwait. The plaintiff remained there until January 7th 1991 when he returned to Iraq on home leave. Therefore, he was away from Kuwait when the Allied forces invaded and subsequently drove the Iraqis out of Kuwait. The cease-fire between the Allied Forces and Iraq was on the 26th February 1991. The plaintiff never returned to Kuwait. There was evidence that he was unable to do so. First, because Kuwait banned Iraqi nationals from returning to Kuwait, and secondly because Iraq banned him and all Iraqis from leaving Iraq except with special leave which he was not given, with one exception. That was in July 1992 when he came to London as a member of a special delegation for which leave was given.
Whilst he was in London he consulted English solicitors with reference to claims that he had against the defendants. The first head of claim was for money he said was due to him on account or held for him on account as a customer, and the second was for payments which he said were due to him under his service contract. Those claims were described in the writ in the following way: a claim for Kuwaiti dinars 33,384 due from the defendant by way of payment in lieu of leave entitlement annual bonus, and indemnity upon termination of service pursuant to terms of the written contract of employment. There was an issue as to the termination of his employment although it was agreed that the employment had come to an end. The plaintiff says that in English law terms it was because the contract was frustrated by reason of extraneous events. The defendant claims that he deserted his post. That will be the principal issue of fact wherever the proceedings are tried. The claim for money due as having been held on account is no longer in issue and we are concerned solely with the second head of claim.
Soon after the plaintiff's visit to London his solicitors wrote a letter before action and subsequently they issued the writ in these proceedings on 24th September 1992. The writ was served on the defendant's branch office in London. On the evidence, that is more than a mere post box although the defendants have explained the limited scale of their activities here. The plaintiff meanwhile had returned to Iraq. The statement of claim was served on the 12th February 1995. On the wording of O. 12,r.8 of the Rules of the Supreme Court, the defendants then had 14 days within which either to serve a defence under O. 18,r.2 or to challenge the jurisdiction, as the rule is described, by issuing a summons. On 26th February they did the latter. The terms of the summons were as follows for an order that —
"All further proceedings in this action be stayed under the inherent jurisdiction of the Court and/or pursuant to RSC Order 12 Rule 8 of the grounds that:
(i) the Courts of the State of Kuwait are the appropriate forum for the determination of the issues in dispute in this action;"
and a subsequent ground (2) which is no longer relevant.
O. 12,r.8 (4) requires that the application made under that rule shall be supported "by an affidavit verifying the facts on which the application is based." The affidavit that was that of Miss Leslie which we have before us dated the same day, the 26th February 1993. She said that she had received her instructions from a Mr Kevin Burke of a firm of Kuwaiti lawyers who were the
defendant's legal advisers in Kuwait. She said that she was advised by Mr Burke that the defendants disputed the plaintiff's claims on various grounds. In support of the application for a stay of proceedings she said in paragraph 4 (1):
"(1) There can be no doubt that the Plaintiff's contract of employment was governed by Kuwaiti law. The contract was executed in Kuwait. The plaintiff was engaged to work, and did at all material times work, [in the defendant's] head office in Kuwait. The Plaintiff was paid in Kuwaiti currency in Kuwait.
…..
(4) I am advised by Mr Burke on behalf of [the defendants] that, save for the Plaintiff all potential witnesses in this action are based in Kuwait. The Plaintiff lives in Iraq. Both he and any other witnesses would therefore have to travel to England if the matter proceeded to trial here."
Paragraph (5) involved a reference to Article 96 of the Kuwaiti Code which "provides for a summary procedure in relation to employment disputes of this kind. It will be seen that provision is also made in Article 96 (2) for conciliation to take place as a precondition to any resolution of a dispute by the Court of First Instance". She continued:
"In the light of Article 96 of the Kuwait Code, I believe proceedings in Kuwait would be less expensive and more expeditious than proceedings in this country.
(6) There is no link between the Plaintiff's claim and this jurisdiction."
In due course much further evidence was placed before the court.
Then after two adjournments there was a hearing before Master Foster who gave judgment on the 3rd August 1994, dismissing the defendant's application. There was an appeal to the judge. The hearing took place on 3rd May 1995. There was on that occasion one further affidavit, Mr Kosky's third affidavit for the plaintiff sworn on the previous day, the 2nd May. So it was more than two years after the summons was issued when that hearing took place. Unsurprisingly, circumstances had changed. The plaintiff by then was living in North America, having apparently stayed in Iraq from July 1992 after his visit to London until about April 1995.
The judge reached the opposite conclusion from the Master. He held, correctly, that the issue must be determined in accordance with the principles stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460. These principles require consideration, first, of the question whether Kuwait was an appropriate alternative forum for the resolution of this dispute. That proposition was not seriously contested and the learned judge duly found that it was. It is now conceded before us. The second question is whether that forum was "available to the plaintiff" meaning, as the judge held, available in practice to him. He held that it was, meaning that the Kuwaiti forum was available to the plaintiff within Spiliada principles as at the date of the hearing before him, 3rd May 1995. He also held or found that it was not available to the plaintiff during 1991 and 1992, that is to say, during the period when the writ was issued in September 1992, and served some time thereafter, and possibly also including the date when the present application was made, that is, 26th February 1993. He held that that finding was not relevant to the issue he had to determine because he, as he held, was solely concerned with the position as it was shown by the evidence before him to be at the time of the hearing before him.
Having reached that conclusion, he proceeded to consider various specific objections which the plaintiff raised to Kuwaiti jurisdiction and, in relation to these specific matters, observed correctly with reference to Lord Goff's speech in Spiliada that the burden of proof was on the plaintiff rather than the defendants. He found that none of these objections was made out. They were, first, a possible limitation defence which the learned judge described as technical and, secondly, three points which the judge considered together. The plaintiff said first that he had had difficulty in instructing Kuwaiti lawyers; second, that he himself could not go to Kuwait for the purpose of any hearing; third, he feared that his claim would not be fairly dealt with by the Kuwaiti courts. All of those matters were dealt with in detail in the affidavit evidence for both parties, and the learned judge's findings were expressed as follows at pages 17 and 19 of his judgment. He said:
" ….. first ….. I do not believe that the plaintiff would experience great difficulty or insurmountable difficulty in instructing Kuwaiti lawyers. Although it would be expensive to do so, it would be possible for a Kuwaiti lawyer who was visiting either America or England ….. to obtain the plaintiff's instructions personally."
He said in relation to the second difficulty:
"I accept that the plaintiff genuinely and for reasons which appear to him to be legitimate is unwilling to set foot again in Kuwait. I am unable on the evidence to judge whether the fears he expresses about his liberty or his safety if he goes to Kuwait are well grounded or misplaced. I am, however, satisfied that his presence in Kuwait is not essential to the conduct of his claim and although it is obviously less satisfactory that it should be conducted in his absence it will not create an insuperable barrier to the accurate prosecution of his claim in Kuwait that he is unable to be present or that he feels himself unable to be present. Therefore whilst I acknowledge the difficulty I do not...
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