Privinvest Shipbuilding SAL (Holding) and Others v Filipe Jacinto Nyusi
| Jurisdiction | England & Wales |
| Judge | Sir Julian Flaux C,Lord Justice Underhill,Lord Justice Phillips |
| Judgment Date | 29 February 2024 |
| Neutral Citation | [2024] EWCA Civ 184 |
| Year | 2024 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001851 |
[2024] EWCA Civ 184
Sir Julian Flaux CHANCELLOR OF THE HIGH COURT
Lord Justice Underhill
and
Lord Justice Phillips
Case No: CA-2023-001851
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KB)
MR JUSTICE ROBIN KNOWLES
Royal Courts of Justice
Strand, London, WC2A 2LL
Duncan Matthews KC and Frederick Wilmot-Smith (instructed by Signature Litigation LLP) for the Appellants
Rodney Dixon KC and Russell Hopkins (instructed by Seladore Legal Limited) for the Respondent
Hearing date: 7 February 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 29 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction and background
The Appellants are some of the defendants in the main proceedings brought against them by the Republic of Mozambique claiming, inter alia, that three sovereign guarantees entered by the Republic were procured by fraud and bribery. The Appellants bring a Part 20 Claim against the Respondent, who is the President of Mozambique, as Fourth Party, for a contribution or indemnity and for damages in the tort of deceit. The claims against the Respondent are concerned with his alleged activity outside this jurisdiction, primarily before he became President and, in any event, not in his public capacity.
The Part 20 Claim Form was issued on 15 January 2021. By an Order dated 21 May 2021, Cockerill J granted the Appellants permission to serve the Part 20 Claim Form on the Respondent out of the jurisdiction. That Order gave permission to effect service either (a) by direct service in accordance with CPR 6.42(3)(a) at the Presidential Palace in Maputo or the Office of the President in Maputo or elsewhere in Mozambique or (b) by service through methods other than through diplomatic channels as permitted under Mozambique law and CPR 6.40(3)(c). Although that Order also refers to service under CPR 6.15, that is, service by an alternative method, it is accepted that that is a mistake and that no order for service by an alternative method has been made. Cockerill J said in terms on 21 May 2021 that she was not granting alternative service at that point.
On 19 October 2021, the Claim Form and other documents were left with police officers at the security checkpoint at the Presidential Palace who accepted them to give to the Respondent. Later the same day, another set of the documents was left with an official at the security desk at the Office of the President. The process server sought to serve the Respondent personally at both addresses but was not permitted access to him. The Appellants contend that this was good service in accordance with (a) of Cockerill J's Order. The Respondent did not acknowledge service at that time and did not claim state immunity.
The Appellants continued to seek to effect service through the Mozambique Courts which confirmed receipt of the documents in December 2021 and commenced proceedings to effect service in March 2022. There was a delay whilst an appointment in the Respondent's diary was sought to enable a Court official to serve the documents on him. An appointment was eventually obtained and the documents were served on the Respondent through the Mozambique court on 14 April 2023. On 5 May 2023 the Respondent acknowledged service indicating that he intended to contest the jurisdiction.
On 16 June 2023, the Respondent issued an Application Notice applying for an Order that the English Court has no jurisdiction to hear the Part 20 Claim against him because he has immunity and that he was not validly served with the Part 20 Claim Form in October 2021.
That application was heard by Robin Knowles J on 1 and 2 August 2023. By his Order dated 19 September 2023, the judge declared that the Respondent had not been validly served on 19 October 2021, that the Respondent has immunity from jurisdiction pursuant to section 20 of the State Immunity Act 1978 and that the Court does not have jurisdiction to hear the Part 20 Claim against him.
Permission to appeal against that Order was granted by Elisabeth Laing LJ on 29 September 2023. On 4 October 2023, Popplewell LJ refused a request for the appeal to be expedited. In the meantime, before this appeal was heard, the judge heard the trial of the main claim in Michaelmas Term 2023 and judgment is awaited.
Provisions in relation to service and relevant legislation
CPR 6.40 contains general provisions about the method of service of a claim form on a party out of the jurisdiction. 6.40(3) and (4) are relevant and provide:
“(3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served –
(a) by any method provided for by –
(i) Omitted
(ii) rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or
(iii) rule 6.44 (service of claim form or other document on a State);
(b) by any method permitted by a Civil Procedure Convention or Treaty; or
(c) by any other method permitted by the law of the country in which it is to be served.
(4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served.”
CPR 6.42 is headed: “Service through foreign governments, judicial authorities and British Consular authorities”. It provides:
“(1) Where a party wishes to serve a claim form or any other document in any country which is a party to a Civil Procedure Convention or Treaty providing for service in that country, it may be served –
(a) through the authority designated under the Hague Convention or any other Civil Procedure Convention or Treaty (where relevant) in respect of that country; or
(b) if the law of that country permits –
(i) through the judicial authorities of that country, or
(ii) through a British Consular authority in that country (subject to any provisions of the applicable convention about the nationality of persons who may be served by such a method).
(2) Where a party wishes to serve a claim form or any other document in any country with respect to which there is no Civil Procedure Convention or Treaty providing for service in that country, the claim form or other document may be served, if the law of that country so permits –
(a) through the government of that country, where that government is willing to serve it; or
(b) through a British Consular authority in that country.
(3) Where a party wishes to serve the claim form or other document in –
(a) any Commonwealth State which is not a party to the Hague Convention or is such a party but HM Government has not declared acceptance of its accession to the Convention;
(b) the Isle of Man or the Channel Islands; or
(c) any British overseas territory,
the methods of service permitted by paragraphs (1)(b) and (2) are not available and the party or the party's agent must effect service direct, unless Practice Direction 6B provides otherwise.”
Paragraph 5 of Practice Direction 6B is headed: “Service in a Commonwealth State or a British overseas territory”. Para 5.1 provides:
“5.1 The judicial authorities of certain Commonwealth States which are not a party to the Hague Convention require service to be in accordance with rule 6.42(1)(b)(i) and not 6.42(3). A list of such countries can be obtained from the Foreign Process Section (Room E02) at the Royal Courts of Justice.”
Mozambique is a Commonwealth State, but it is not a signatory to the Hague Convention on service abroad of judicial and extra-judicial documents in civil and commercial matters signed on 15 November 1965. Accordingly CPR 6.42(3)(a) and PD6B para 5.1 would seem to be of immediate relevance.
On 31 July 2023, immediately prior to the hearing before the judge, the Respondent's solicitors had an email exchange with the Foreign Process Section (“FPS”) from which it is clear that the only method of service available in Mozambique is “Agent to Agent” under which the FPS does not get involved. Instead, someone seeking to serve would have to get a solicitor or process server in Mozambique, then complete a Letter of Request. The Letter of Request and documents for service should then be sent to the FPS with a covering letter and Form N224. The FPS will then get the Letter of Request signed by the Senior Master. The documents and signed Letter of Request (which is addressed to the Mozambique competent judicial authority) will then be returned by the FPS and all this documentation should be forwarded to the solicitor or process server in Mozambique for them to effect service through the Mozambique judicial authorities. It also appears from information obtained from the FPS and conveyed to the judge at the hearing below by counsel then acting for the Appellants that the FPS has no physical list of countries within PD6B para 5.1 as such.
Section 20 of the State Immunity Act 1978 is headed: “Heads of State” and provides:
“(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.
(2) The immunities and privileges conferred by virtue of subsection (1)( a) and ( b) above shall not be subject to the restrictions by reference to nationality or residence mentioned in Article 37( 1) or 38 in Schedule 1 to the said Act of 1964.
(3) Subject to any...
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