His Excellency Sheikh Khalid Bin Ahmed Al Hamed and others v His Excellency Sheikh Hamed Bin Ahmed Al Hamed and another

The judgment is of wider interest in reiterating the correctness of the Court of Appeal’s decision in Fonu v Demirel [2007] 1 WLR 2508 to the effect that it does not need to be shown, on an application for permission to serve out of the jurisdiction a claim seeking to enforce a judgment, that there are any assets available for execution in England. It suffices that there is a real prospect of a legitimate benefit to the claimant from the English proceedings. That benefit can be indirect or prospective.

The Defendants contended that the Claimants had failed to make a proper presentation to the Court on the without notice application for permission to serve out, as a result of not drawing the Court’s attention to the commentary in the White Book (2024, volume 1 at 6HJ.24) to the effect that a subsequent decision of the Court of Appeal (Linsen International Ltd v Humpuss Sea Transport Pte Ltd [2011] EWCA Civ 1042) may have revived the question as to whether there is any territorial limitation to the jurisdictional gateway for service out of a claim seeking to enforce a judgment or arbitral award (PD6B, para 3.1(10)).

The Judge held that there had been no material non-disclosure. He noted in particular that:

(a) Fonu v Demirel does not appear to have been cited to the two-judge interlocutory bench in Linsen meaning that such decision, in so far it has any precedential status, could be said to be per incuriam.

(b) The decision in Linsen was concerned with permission to appeal and the ex tempore judgment itself does not state that it was intended to be capable of citation in the future; c.f. Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.

(c) As observed in Parbulk II AS v PT Humpuss Intermoda Transporti TBK [2011] EWHC 3143 (Comm), Linsen was concerned with permission to serve out on a non-cause of action defendant pursuant to the Chabra injunctive jurisdiction, and so can be distinguished from Fonu v Demirel which was concerned (as here) with permission to serve out on a substantive defendant / judgment debtor.

(d) The commentary in the White Book may afford more status to Linsen than the decision itself warrants in light of the considerations set out above, as reflected in leading practitioner texts and subsequent decisions of experienced commercial judges.

Peter Head acted for the successful Claimants, instructed by CMS Cameron McKenna Nabarro Olswang LLP.

The judgment can be read here.