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The Commercial Court (Mr Andrew Henshaw QC sitting as a Judge of the High Court) has given an important judgment on alternative/dispensation of service on a state and submission to jurisdiction for the purposes of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”) and the State Immunity Act 1978 (“SIA”).

The Claimants were the insurers of the hull of an aircraft which was completely destroyed as a result of the hijacking of EgyptAir flight 648 bound from Athens to Cairo on 23 November 1985.  They brought proceedings against the Syrian Arab Republic ("Syria"), the Syrian Air Force Intelligence and its then-Chief, General Muhammed Al Khuli and a number of Libyan Defendants in the US District Court for the District of Columbia for damages for acts of state-sponsored terrorism that resulted in the hijacking.  The District Court found that the hijacking was an act of international terrorism committed by the Abu Nidal Organisation which was sponsored and supported by Syria at the time of the hijacking and that the hijacking caused the destruction of the aircraft for which the Defendants were liable. The Claimants obtained a final judgment for over $50 million on 14 May 2012.  

In September 2015, the Claimants brought proceedings against the Defendants in England on the basis of that judgment. The absence of diplomatic relations between Syria and the UK rendered it impossible to serve the proceedings on the Defendants through the usual diplomatic channels so orders for alternative service were instead obtained to permit service via the Foreign and Commonwealth Office ("the FCO") by courier to the Syrian Ministry of Foreign Affairs ("the Syrian MFA"). However, upon the arrival of the documents at the Syrian MFA, and in the knowledge that they had originated at the FCO, the Ministry refused to accept them.  The issues for the Court were firstly whether the English proceedings had been served on the Defendants in accordance with the requirements of the SIA or alternatively whether service should be dispensed with, and secondly whether the Defendants had submitted to the jurisdiction of the US Courts. 

On the first issue, the Court observed that section 12 of the SIA required proceedings to be served by being "transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State" and that service shall be deemed to have been effected when the proceedings were "received at the Ministry". So while the documents had to actually reach the relevant Ministry they did not have to be accepted; indeed the rejection of the documents did not prevent valid service from having taken place, Pocket Kings v Safenames [2009] EWHC 2529 (Ch) followed. Alternatively, the Court held that service of the proceedings and other documents be dispensed with given the truly exceptional circumstances of the absence of diplomatic relations between Syria and the UK, the Syrian MFA's refusal to accept delivery of the documents, the steps which the Claimants had already taken of sending the documents by email to the Syrian MFA and by email and courier to the Defendants' Counsel in the US proceedings being likely to have already brought the proceedings to the Syrian Defendants’ attention and there being no further step which the Claimants or the FCO could reasonably be expected to take to effect service given the unavailability of courier redelivery and the rejection of recent emails by the Syrian MFA mailbox.

On the second issue, it was necessary for the Claimants to show that the Defendants had submitted to the jurisdiction of the US Courts for the purposes of both section 31(1)(a) and section 31(1)(b) (via section 2 of the SIA) of the CJJA. The Defendants took no part in the proceedings which led to the final judgment but thereafter took a number of steps in relation to an appeal from that judgment which the Claimants contended constituted submission. The Court held that the Defendants submitted to the jurisdiction of the US courts by appealing the final judgment on its merits without expressing any reservation as to jurisdiction or any objection on sovereign immunity grounds; it was only after the Defendants sought the voluntary dismissal of that appeal that, in responding to the Claimants' enforcement motion, these matters were raised and by then it was too late. The US judgment therefore qualified for recognition and enforcement in the UK pursuant to section 31(1) of the CJJA.

Tim Otty QC and Naina Patel acted for the Claimants, instructed by Jane Andrewartha at Clyde & Co.  

A copy of the judgment can be found here.