Sheikh Mohammed Omar Kassem Alesayi v Bank Audi S.A.L.

The facts

The Defendant (the Bank) is a Lebanese bank with, it says, no presence in England and which does not “direct business” here or pursue commercial activities here. That is relevant in the context of the Civil Jurisdiction and Judgments Act 1982 as will become clear.

The Claimant is a wealthy Saudi Arabian national and a customer of the Bank. The Claimant's contractual relationship with the Bank is said to be governed by Lebanese law and subject to a jurisdiction agreement in favour of the Lebanese Courts. The Claimant has commenced these proceedings seeking a mandatory order from the English Court that the Bank transfer his funds out of Lebanon into accounts in Switzerland. The Defendant says that the Claimant is in breach of the terms of the banking contract because there is an exclusive jurisdiction clause in the banking contract upon which it relies which provides for the courts of Lebanon to have jurisdiction (and the Claimant in turn says that this only serves to highlight that the contract terms as they were (says the Claimant) from time to time during the Claimant's time as a customer since 1994 and later years are relevant and should be disclosed).

This is an application dated 13 October 2023 for disclosure made by the Claimant against the Defendant in circumstances where the Defendant disputes the jurisdiction of the English Court under CPR Part 11. The draft order lists a number of documents or categories which I have set out in the Annex to this judgment. The application relies on CPR 31.14 and/or CPR 31.12 and/or the overriding objective.

The rules

As a reminder, CPR 31.12 states:

31.12

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

(c) disclose any documents located as a result of that search.

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

And CPR 31.14 states:

31.14

(1) A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

(d) an affidavit.

(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

As far as the Defendant is concerned this application is wide-ranging and goes well beyond what a court ought to order in circumstances where the very issue of whether the court has jurisdiction at all is a live one. Says the Defendant, a Claimant who chooses to commence in a foreign jurisdiction (England in this case) should do so on the basis of sufficient material and that to order disclosure to enable the issue to be determined should be reserved for exceptional cases. To so order here, from the Defendant's perspective, would ‘set a dangerous precedent’.

To put that in my own words: the question arises as to how far a court ought to go in coercively making orders for access to documents where the court may actually later decide it either has no jurisdiction to hear the case or will not accept jurisdiction to do so. That is an important question and one which no doubt is one which raises common issues in other common law jurisdictions such as the USA: can (or when should) a party be given disclosure so as to gather information where there may ultimately be no jurisdiction to try the case at all?

The applicable law

The Civil Jurisdiction and Judgments Act 1982 s.15B(2) states that where a party to a ‘consumer contract’ is domiciled in this jurisdiction they may bring a claim as a consumer against a business where the Defendant is a party who meets the ‘Activities Requirement’ (as set out in s. 15E(1)(c)) i.e. that it:

“(i) pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled, or

(ii) by any means, directs such activities to that part or to the other parts of the United Kingdom including that part, and which falls within the scope of such activities”

When the claim was served, the Defendant sought to clarify on what basis the Claimant alleged that the courts of England and Wales have jurisdiction. The dispute here arises from the fact that the Claimant's position is that it cannot provide a full pleading on the jurisdiction point until the Defendant provides disclosure of various documents. On 11 July 2023 it did indicate in response to a Part 18 request that it relied on the ability to serve out of the jurisdiction under the consumer contract route under the CJJA 1982, relying on the “Activities Requirement” being made out. That position was put forward based on publicly available documents.

On 25 July 2023 the Defendant issued a jurisdiction application and an application to set aside service. The Claimant issued this application for disclosure, which reflects documents or classes of document which go beyond the level of disclosure given voluntarily. In particular the Defendant points out that it has disclosed for example the Claimant's entire client file on its records (though the Claimant would point out that for CJJA purposes the question of directing activities to the UK is not dependant on particular activity directed at the Claimant himself in the UK so that the file in itself would not be ‘the answer’ from the Claimant's perspective). In this judgment I have focussed on the draft order as originally attached to the application. The application is of high value and will be of interest to other court users.

Outline of Defendant's overarching opposition to jurisdiction

It is for the Claimant to make out its application but it is convenient for ease of exposition if I set out the core points of the Defendant's opposition. The Defendant's position (with my bold emphasis) is that there is no right to ‘interrogate’ a party in relation to documents which may establish jurisdiction. Rather the Defendant relies on Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV and others [2019] 1 WLR 3514, and in particular that case as summarised in Kalo v Bankmed SAL [2024] I.L.Pr 7 para. 6. Kalo in particular concerned the question of whether a business directed activities to the UK, for the purposes of the same provisions of the CJJA 1982 as are in play here. Quoting from the Judgment at para. 6:

“a. Limb (i) of the Kaefer formulation requires the court to ask if there is an evidential basis showing that the claimant has the better argument as to the application of the gateway, the burden of proof lying on the claimant as the party seeking to invoke the court's jurisdiction. However the test is “context-specific and ‘flexible’”.

b. Limb (ii) explains how the court is to approach that task, in a context in evidence may well be...