[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Mohammad v Bin Tarraf & Ors [2025] EWHC 776 (KB) (02 April 2025) URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/776.html Cite as: [2025] EWHC 776 (KB)

[New search] [Printable PDF version] [Help]

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 April 2025

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on Wednesday 2^ND of April 2025.

Mr Justice Constable:

Introduction

1. The Claimant, Siddik Mohammad, and the First Defendant, Mohammed Hilal Salim bin Tarraf were partners in Al Jazira Poultry Farm in the early 1990s, which was organised and operated through the Second Defendant, Bani Yas General Trade International, a business incorporated under the laws of Dubai, United Arab Emirates ('the UAE'). Mr Mohammad alleges that in November 1995, Mr bin Tarraf wrongly converted his, Mr Mohammad's, lawful interests in Bani Yas General Trade International. This was, it is claimed, followed by intimidation, threats, harassment and duress, which were approved of and acquiesced in by the government authorities and the Royal Family of Dubai. This is denied by Mr bin Tarraf. From around 2000, Mr Mohammad was granted refugee status in Canada on the premise that he and his family were persecuted in the UAE.
2. In 2002, Mr Mohammad brought proceedings against Mr bin Tarraf, amongst others, in the United States District Court in the Western District of New York, seeking $2m in damages for various allegations, which were dismissed for lack of jurisdiction.
3. In February 2017, Mr Mohammad issued proceedings against the three defendants in the Ontario Superior Court of Justice ('the Ontario Proceedings'). Although rejecting the contention that the claim had any 'real and substantial connection to Ontario', Gray J found that the Canadian court had jurisdiction under the doctrine of the forum of necessity, which he described as "a narrow doctrine under which the court, in a case in which it otherwise does not have jurisdiction, can nevertheless hear a case where there is no other forum in which the plaintiff can reasonably seek relief and receive a fair trial". Mr Mohammad had contended that he was unable to bring proceedings in Dubai, for want of a fair trial in circumstances where Mr bin Tarraf had connections to the Dubai Royal family. The circumstances in which these proceedings were, or were not, served on the defendants is considered more fully below. Mr bin Tarraf says they were not served and he did not become aware of the proceedings until after Mr Mohammad had successfully obtained a default judgment dated 15^th March 2019 ('the Default Judgment'), in the sum of CAN$16,500,000 plus interest.
4. The Default Judgment was registered in the High Court of England and Wales by Order of Master Eastman on 20 September 2019 pursuant to section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 ('the 1933 Act'), following an ex parte application by Mr Mohammad. By application notice dated 14 November 2019, Mr bin Tarraf applies to have that Registration Order set aside pursuant to section 4 of the 1933 Act. There have been considerable procedural delays between 2020 and 2024, for which neither party is to blame.
5. There is no equivalent application made by the Second or Third Defendants, who were not represented and did not appear.
6. Mr O'Brien KC, representing Mr bin Tarraf, advances three separate bases for the application, namely (1) the Ontario Court did not have jurisdiction in the circumstances of the case, applying s.4(1)(a)(ii) and s.4(2) of the 1933 Act; (2) Mr bin Tarraf did not receive notice of the Ontario Proceedings in sufficient time to enable him to defend the proceedings and did not appear (s.4(1)(a)(iii) of the 1933 Act); and (3) Mr Mohammad (or his representatives) failed to comply with his duty of full and frank disclosure when applying to the High Court to register the Default Judgment.
7. Mr Mohammad, represented by Ms Wills, contends principally that setting aside the Registration Order would be contrary to his rights under Article 6 of, and Article 1 of the First Protocol ("A1P1") to, the European Convention on Human Rights ("ECHR"), and that the 1933 Act should either be re-interpreted compatibly with those rights, or declared incompatible. The other points made by Ms Wills in opposition to the application I deal with as they arise below.
8. I am grateful for the assistance of both Counsel.

Section 4 of the 1933 Act

9. This states:

"4.- Cases in which registered judgments must, or may, be set aside.

(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment-

(a) shall be set aside if the registering court is satisfied-

…

(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

…

(2) For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3) of this section, be deemed to have had jurisdiction –

(a) in the case of a judgment given in an action in personam-

(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; or

(ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court; or

(iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or

(iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or

(v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place;…

…

(c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or paragraph (b) of this subsection, if the jurisdiction of the original court is recognised by the law of the registering court."

The Ontario Court's Jurisdiction

10. Section 4(1)(a)(ii) makes clear that on an application such as the present one, the registration of the judgment 'shall be set aside' if the registering court is satisfied that the courts of the country of the original court had no jurisdiction in the circumstances of the case.
11. Mr O'Brien contends that the Ontario Court had no jurisdiction in the circumstances where the term "jurisdiction" is specifically defined in s.4(2)(a) of the 1933 Act, and where none of the five conditions for jurisdiction are met. It is therefore contended that the mandatory condition for setting aside the registration Order is satisfied.
12. The Default Judgment was a judgment for damages against the three Defendants. It was plainly a judgment in personam. As such, section 4(2)(a) of the 1933 Act provides five bases upon which the Ontario Court will be deemed to have jurisdiction to have rendered such a judgment. These provisions were considered in Societe Cooperative Sidmetal v Titan International Ltd [1966] 1 QB 828. Widgery J made clear (at 850F) that subsection 4(2) specifies three classes of action (one of which is an in personam action), and gives in the case of each the conditions which have to be satisfied by actions of that class if the foreign judgment is to be registered. The relevant subsection for actions in personam is subsection 4(2)(a). This subsection, the judge said at [849F-G]:

"… gives an exclusive definition of the prerequisites of jurisdiction of the original court for the purpose of ascertaining whether or not subsection (1)(a)(ii) is applicable."

13. Thus, an in personam judgment which cannot be brought within the terms of subsection 4(2)(a) is a judgment which ought not be registered because it is a judgment of a court which had no jurisdiction in the circumstances of the case for the purposes of the 1933 Act.
14. Ms Wills submits that (quite aside from her argument relating to the ECHR) this Court is not bound by the decision in Sidmetal and that the statute should be construed less restrictively. She argues that the statute itself does not state that section 4(2) provides an exhaustive regime for in personam claims, and the Court should construe the section so as to permit foreign judgments founded on jurisdictional foundations other than those listed to be registered in accordance with the 1933 Act. I cannot accept this submission. The decision of Widgery J is based upon a detailed analysis of statutory intention founded upon the close affinity of the extent to which judgments are enforceable at common law (albeit not completely identical). The careful analysis is, with respect, faultless, and is supported, at least indirectly, by the Supreme Court's decision in Vizcaya Partners Limited v Picard [2016] UKPC 5, in which it was observed (consistent with Widgery J's approach) that the 1933 Act is based on the common law and falls to be interpreted in accordance with the common law. I therefore approach the question on the basis that (subject to Ms Wills' argument on the ECHR) Sidmetal is a correct statement of law.
15. It is therefore necessary to consider whether any of the five criteria set out in section 4(2)(a)(i)-(v) are met. In her oral submissions, Ms Wills did not seek to persuade me that any of the criteria were met, but for completeness, I deal with them in turn below:

(1) Section 4(2)(a)(i): there is no evidence that Mr bin Tarraf submitted to the jurisdiction of the Ontario Court by voluntarily appearing in the proceedings. Mr bin Tarraf's evidence that he did not, set out at paragraph [9] of his First Witness Statement, is not disputed by Mr Mohammad's responsive evidence. This conclusion is consistent with paragraph [2] of the Default Judgment, which records that "the defendants…have not responded and have not appeared.";

(2) Section 4(2)(a)(ii): Mr bin Tarraf was not a plaintiff/claimant in, nor counter-claimed in, the Ontario proceedings. This is confirmed in Mr bin Tarraf's evidence on this point (at paragraph [10] of his First Witness Statement), again not in dispute. It can also be noted that the Default Judgment only refers to Mr Mohammad as the plaintiff and makes no reference to any counterclaim by anyone;

(3) Section 4(2)(a)(iii): there is no evidence that Mr bin Tarraf, before the commencement of the relevant proceedings, agreed to submit to the jurisdiction of the Ontario Court or the courts of Canada more generally. This is confirmed by Mr bin Tarraf's evidence in his First Witness Statement at paragraph [11], which is not disputed in Mr Mohammad's responsive evidence;

(4) Section 4(2)(a)(iv): there is no evidence that Mr bin Tarraf was at any relevant time personally resident in Canada (again, confirmed in Mr bin Tarraf's First Witness Statement at [12] and not disputed in Mr Mohammad's responsive evidence). The question of a principal place of business is not relevant to the claim against Mr bin Tarraf, but were it to be, this is considered further below;

(5) Section 4(2)(a)(v): the fifth criterion is whether Mr bin Tarraf had an office or place of business in Canada through which the transaction which is the subject of the dispute within the proceedings were effected. Mr bin Tarraf's evidence (at [13] of his First Witness Statement) states that he does not have an office or place of business in Ontario, or any other part of Canada, and has not done so in the past. He also confirms that the proceedings were not concerned with a transaction effected through or at an office or place of business in Ontario, or Canada. The latter point, at least, is consistent with the conclusion reached by Gray J in the Default Judgment which states: "All of the conduct complained of occurred in the United Arab Emirates". It is clear from the transcript of the hearing that Gray J rejected the argument made in oral submissions that any part of the transaction or breach occurred in Ontario. On the evidence before me, this is plainly the correct factual position. No part of the underlying dispute has anything to do with Ontario or Canada more widely. It all relates to what went on in Dubai. The only relevance of Ontario is that this is where Mr Mohammad resided, as a refugee, when filing the claim. This is sufficient to conclude that the fifth criterion is not met, and it is not necessary to resolve the potential dispute raised by Mr Mohammad in response to the First Witness Statement of Mr bin Tarraf, suggesting that Mr bin Tarraf's witness statement at paragraph [13], in respect of having a place of business in Canada, is wrong. Had it been necessary for me to do so, however, I would have accepted the explanation given by Mr bin Tarraf in his responsive witness statement which, on the basis of the documents attached, explains credibly how the confusion as to his potential interest in a business based in Canada arose (in respect of which there has been no responsive evidence).

16. It was suggested within the skeleton argument served by Mr Mohammad that section 4(2)(c) of the 1933 Act may be of some relevance, although this argument was not developed orally. For the sake of completeness, section 4(2)(c) is not relevant. This is plainly an action in personam, and as such 4(2)(a) is the only relevant section. Even if this were not the case, 4(2)(c) only applies if the jurisdiction of the original court is recognised by the law of the registering court. It is plain that the basis of jurisdiction of the original court was the forum of necessity. This is not a concept recognised by this, the registering, Court: see Dragica Jovicic & Others v Serbian Orthodox Church, unreported, 17^th January 2020; see also Nait-Liman v Switzerland (51537/07) at [200]:

"200. Firstly, it transpires from the study conducted by the Grand Chamber that, of the 40 States examined, including Switzerland, 28 European States do not recognise the forum of necessity. It exists in only 12 of the States studied, including Switzerland…In addition, it has only recently been recognised and is subject to strict conditions in Canada. In contrast, the countries with an Anglo-American tradition do not recognise the concept. On the contrary, they apply the principle of forum non conveniens, which enables a court to refuse to examine a case if a court or another State has a more appropriate connection…"

17. Section 4(2)(c) of the 1933 Act is not therefore relevant.
18. As such, I conclude that, in the context at least of the claim against Mr bin Tarraf, none of the jurisdictional criteria in section 4(2)(a) have been met and the Default Judgment is not therefore a judgment which can be registered under the 1933 Act. Subject to Mr Mohammad's overarching point as to the 1933 Act's compliance with his Article 6 and/or A1P1 rights, this is sufficient to mean that the application to set the Registration Order aside succeeds.

Did Mr bin Tarraf receive notice of the proceedings in Ontario in sufficient time to enable him to defend them and did Mr bin Tarraf in fact appear in those proceedings?

19. Mr O'Brien submits that section 4(1)(a)(iii) concerns 'actual notice' on the part of the defendant, and that it is not directly concerned with whether or not the proceedings were validly served. Notwithstanding Ms Wills' argument to the contrary, which was not based in any textual analysis, this submission is plainly correct. This is apparent from the wording '(notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court)', which would be meaningless if the reference to 'notice' meant, in effect, the same as lawful service. Notice means actual notice (and possibly, although this is not relevant to the present case, constructive notice), notwithstanding lawful service.
20. Mr bin Tarraf's evidence is that he did not become aware of the Ontario Proceedings until more than six months after Default Judgment had been entered, and indeed not until the Registration Order had been made and served on Mr bin Taraff on 1 October 2019. The judgment of Gray J makes clear that Mr bin Tarraf took no part in the proceedings.
21. This is disputed by Mr Mohammad, whose evidential response to this is:

"I also undertake that Mohammed Hilal bin Tarraf used the farm for camels also and all the security team of the farm reported to him directly. This information is part of my [sworn] statement as well as my application to the IRB Canada. This information was also communicated to the Dubai Authorities and mentioned in the media reports. The United Kingdom High Court in a landmark judgement of Sheikh Mohammed concluded that:

"The ruler of Dubai, Sheikh Mohammed bin Rashid Al Maktoum, hacked the phones of his ex-wife Princess Haya and her attorneys during the legal battle over custody of their two children, Britain's High Court found Wednesday."

The Defendant One enjoys the same access to the systems in Dubai and knew exactly that there were proceedings in Canada. The documents attached to this statement prove that Defendant One intentionally ignored the processes of justice as a Royal Associate of Dubai."

22. Mr Mohammad also identifies a number of documents which he says prove that Mr bin Tarraf knew about and intentionally ignored the Ontario proceedings. However, the documents do not demonstrate that. They deal with service (a separate question to actual notice, and dealt with further below), Mr bin Tarraf's potential business in Canada (which I have dealt with above), and various other matters of no obvious relevance to the question of actual notice.
23. Mr bin Tarraf engaged in the US Proceedings in 2002 (whether or not there is a distinction, as pointed out by Ms Wills, as to the capacity in which he was then being sued and the capacity in which he was sued in the Ontario Proceedings). Mr bin Tarraf also engaged promptly and fully in these registration proceedings after the Default Judgment came to his attention. Mr bin Tarraf's conduct in this regard contradicts the assertion that Mr bin Tarraf knew about, but simply refused to engage with, the Ontario Proceedings. Against the background of his engagement in other legal proceedings with Mr Mohammad, the much more likely explanation for Mr bin Tarraf not having responded to the Ontario Proceedings is, as Mr bin Tarraf says in his evidence which I accept, because he was not actually aware of them. Furthermore, the manner in which the proceedings were in fact served which I describe below also make it unsurprising that Mr bin Tarraf had no actual notice of the proceedings (irrespective of whether service was or was not legally valid). The assertions on the part of Mr Mohammad that Mr bin Tarraf heard about the Ontario Proceedings through reports from security guards at the poultry farm and/or phone hacking by the Royal Family of Dubai, and simply chose to ignore them, are no more than unsubstantiated speculation. I therefore reject the contention that Mr bin Tarraf had 'notice' of the Ontario proceedings in sufficient time to enable him to defend the proceedings and it is clear that he did not appear.
24. The parties have both engaged in the separate question of whether Mr bin Tarraf was validly served in accordance with the relevant law. For the reason I have given, this is not directly relevant to the application of section 4(1)(a)(iii), for which the crucial question is 'notice'. I accept, however, it may be indirectly relevant in the sense that where service has been effected legally, it may be more challenging for a party to establish that, nevertheless, they did not in fact have notice.
25. In describing the circumstances of service, Mr Mohammad relies upon the witness statement of Mr Ali Mansour, dated 1 April 2021. Mr Mansour describes himself as an experienced process server hired by Process Service Network LLC. Mr Mansour states that he has 'a vague recollection of the circumstances surrounding the service'. Mr Mansour travelled to what he described as the Defendant's business address at 'Al Jazira Poultry Farm LLC, Al Ain Road, near Camel Market, Al Lisaili, near Al Marmum Dairy Farm, United Arab Emirates'. He says:

"On October 15, 2017 at approximately 4:45 p.m., I arrived at the address stated in paragraph 3 above and determined it to be a poultry and livestock farm with a guard at the gate. I advised him as to the nature of my visit and explained that I had attempted to obtain an appointment with "Mr. Tarraf' but was unable to do so. He called ahead to the office and then allowed me to proceed through the temporary gate. I arrived at the office and encountered another security guard and asked for "Mr. Tarraf' and was directed to a male who identified himself so me as Ali Bahadur, who stated that none of the owners were present. He stated that he was authorized to handle all affairs of the business in the absence of the manager. I advised him that I had legal documents from Canada for the 3 named defendants. He took the documents in hand but refused to sign the "Notification of Service of Process" form and stated that he was instructed to not sign for any legal documents. This occurred at 5:02 p.m."

26. Mr bin Tarraf's evidence includes the following responsive evidence:

"The Claimant's Witness Statement refers to service of the Ontario Proceedings being effected "at the poultry farm and camel" (sic). To the extent that the Claimant's Witness Statement intends to refer to Al Jazira Poultry Farm LLC, Al Ain Road, near Camel Market, Al Lisaili, near Al Marmoom Dairy Farm, United Arab Emirates, I do not have any interest in the farm operating under the direction of that company at that address (the "Farm"). For the avoidance of any doubt, I am not (and have not at any relevant time for the purposes of the Application been) in effective control of the Farm, nor do I (and have not at any relevant time for the purposes of the Application) manage or have any involvement in any security at the Farm.

As I state in my First Witness Statement (at paragraph 27), I have an interest in the land on which the Farm was located. The Third Defendant (Al Jazira Poultry Farm LLC) leased the land from me and used it to operate the Farm.

…

In summary, the Claimant purports to have served the Ontario Proceedings on me by a USA Service Provider, leaving the Ontario Proceedings at the premises of a business with which I have no connection or interest in (other than leasing land to it), and where the employee with whom the documents were allegedly left did not even provide a signature. The Ontario Proceedings did not come to my attention or notice in any way as a result of this process."

27. Ms Wills submits, first, that I should consider myself bound by the determination of Gray J in the Ontario Proceedings that (as he says at paragraph [2] of his judgment, 'the Defendants have been personally served…'. This conclusion, it is said, is supported by the exchange between the judge and counsel for Mr Mohammad at the hearing of the motion for the Default Judgment, in which counsel confirmed the fact of service, and there was before the judge a short affidavit of service from Mr Mansour (in briefer terms than the extract from his later witness statement, above). It is said that were this Court to conclude that proceedings had not been personally served, it would be usurping the role of the Ontario Court or somehow acting in an appellate capacity over the Ontario Court. This is not correct. I must consider the question of service, insofar as relevant as a matter of fact on the evidence before me for the purposes of determining the proper application of the 1933 Act. I am plainly not bound by the conclusions of Gray J. Nor does reaching a different conclusion imply any criticism of the decision reached in the Ontario court: Gray J was hearing the motion for the Default Judgment ex parte in circumstances where (as the Default Judgment records) that motion had not been served on Mr bin Tarraf and he was not represented. The judge, in those circumstances, did not have the same evidence before him as I have the benefit of before me.
28. How service of the Ontario Court proceedings is validly effected is a matter of Ontario law. That is, before me, a question of fact upon which the Court can hear expert opinion evidence. Mr bin Tarraf relies upon the evidence of Ms. Sarah N. Engle-Hardy, a Canadian lawyer practising in Toronto, Ontario, from whom two reports have been served. Ms Engle-Hardy is a Canadian qualified lawyer, and a member of the Law Society of Ontario, working for the law firm Cozen O'Connor LLP, practicing in Toronto.
29. Ms Engle-Hardy's conclusion, in summary, is that the Ontario Proceedings were not validly served on Mr bin Tarraf.
30. Ms Engle-Hardy explains that:

(1) Pursuant to Rule 16.01 of the Rules of Civil Procedure ("Ontario CPR"), an originating process in an action – a statement of claim – 'shall be' served personally as provided in Rule 16.02, or by an alternative to personal service pursuant to Rule 16.03.

(2) Rule 16.02(1)(a) provides that personal service on an individual, other than a person under disability, shall be made "by leaving a copy of the document with the individual".

(3) Rule 16.03 provides for alternative service in limited circumstances. Before a party may serve through one of the alternative means of service set out in Rule 16.05, that party must demonstrate through affidavit evidence an unsuccessful attempt to serve the individual personally before turning to an alternative method of service (Graf v Periyathamby et al, 2018 ONSC 1757, citing Ridings Financial Services Inc. v. Singh, [1998] O.J. No. 3797 (Ont Gen Div))

(4) Rule 17 of the Ontario CPR governs service outside of Ontario. Rule 17.05(2) provides that an originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state [under the Hague Convention] may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service is made in that manner could reasonably be expected to come to the notice of the person to be served.

31. Ms Engle-Hardy's view is that leaving a copy of the Statement of Claim with an individual solely identified as "Ali Bahadur", who was instructed to not sign for any legal documents, at a location that was not Mr. Bin Tarraf's residence or place of work, and which he had not visited since 2003 and 2004 (as set out in the witness evidence of Mr bin Tarraf at paragraph 9 of his Second Witness Statement) was insufficient to effect personal service. She also concludes that, absent evidence of prior unsuccessful attempts of service, Mr Mohammad was not entitled to serve by alternative service pursuant to Rule 16.03.
32. Ms Engle-Hardy's evidence is that service outside the jurisdiction without leave under Rule 17.02 of the Ontario CPR was not permissible as the claim did not fall within any of the categories to which that Rule applies. She sets out each of the categories of claim at paragraph 3.2 of her supplemental statement and it is clear from those, as she says, that each and every matter listed in Rule 17.02 requires some nexus to Ontario. This is not the case with Mr Mohammad's claim.
33. Service outside the jurisdiction with leave under Rule 17.03 of the Ontario CPR was not applicable, because Mr Mohammad did not seek such leave, and service without leave pursuant to 17.04 requires the additional requirement of, in effect, the Rule 17.02 'nexus'. Ms Engle-Hardy therefore concludes that the requirements for valid service outside Ontario were not fulfilled.
34. Ms Wills criticises this conclusion on the basis that Ms Engle-Hardy failed to consider the potential application of Rule 2 of the Ontario CPR which provides that a failure to comply with the rules (i.e. the failure on the part of Mr Mohammad or his representatives to seek leave to serve proceedings outside the jurisdiction in advance of doing so) is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and that the Court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute. It is said that it can reasonably be inferred that Gray J must have had a combination of Ontario CPR Rule 17 and Rule 2 in mind when concluding that the proceedings had been validly served, and the Default Judgment can be taken as the provision of retrospective relief under Rule 2 validating the previous irregular service.
35. It is simply not possible to reach this conclusion on the evidence before me. Not only does Ms Engle-Hardy not identify this scenario as legally plausible, neither does Mr Mohammad's own expert, Mr Tucker, to whom I refer further below. It is not possible sensibly to read the Default Judgment as an accession to an application which was not made, based on a contemporaneously unarticulated argument. Indeed, had such an application for retrospective relief been advanced, it would by definition have been based on conceding that service had, in fact, not been effected in accordance with the Rules. This is the opposite of Mr Mohammad's counsel's submission in the ex parte motion for Default Judgment, which was that the proceedings had been validly served (albeit in circumstances where, in fact, no leave had been sought to serve outside the jurisdiction in circumstances where, pursuant to CPR 17.03, it was required). The much more obvious conclusion is that Gray J said what he did about service because he took Mr Mohammad's counsel's submission at face value, on an ex parte application.
36. Even if this analysis is wrong, and it can properly be concluded that permission for service outside the jurisdiction was open to Mr Mohammad, Mr bin Tarraf then relies upon evidence from Omar Al Heloo, a UAE-qualified lawyer who practises in Dubai, UAE. He deals with the validity of service as it was in fact effected in Dubai. His view is that none of the four options for service ((i) through diplomatic channels; (ii) pursuant to an agreed method of service; (iii) by requesting the foreign court to serve by an alternative method of service; or (iv) in accordance with the process of service of a UAE court proceeding) were complied with. This is disputed by Ms Wills on the basis that Mr Al Heloo confirms that the UAE Civil Procedures Law promulgated by Federal Law No. 11 of 1991, Article 9(2) provides that service on a private legal person can be delivered 'to their legal representative, or whoever acts in his stead. If not present, to one of their office's employees.' However, there is no evidence before the Court upon which I could reasonably conclude (contrary to Mr bin Tarraf's evidence) that Mr Bahadur was connected in any of these ways to Mr bin Tarraf.
37. In rebutting the evidence of Ms Engle-Hardy and Mr Al Heloo, Mr Mohammad has relied upon two reports prepared by Nelson Tucker, who is the CEO of 'Process Service Network'. This is an investigation and service of process firm said to specialise in international and hard-to-serve cases. Mr Tucker is a member of the American Bar Association, and describes himself as 'one of only three [qualified experts] in the United States on international service of process issues.' Mr Tucker does not state what those qualifications are. Whilst stating that he has no interest in the outcome of the proceedings, 'Process Service Network' is the organisation the employee of which purported to serve the Ontario Proceedings. In circumstances where the issue is whether the service effected by the company of which Mr Tucker is the CEO was valid, I do not regard Mr Tucker as someone who might properly be regarded as independent. Nor, on the basis of his evidence, is there a reasonable basis to conclude he is qualified in either Canadian law or the law of UAE, so as to be a suitable expert to give opinion evidence on the legal issues before me. Mr Tucker's report is also non-compliant with the CPR, and there is no statement that Mr Tucker is aware of the requirements placed by the CPR on independent experts. This is plainly unsatisfactory, and it may be for this reason that Ms Wills did not place any emphasis on his views in her oral submissions.
38. In any event, the substance of Mr Tucker's evidence does not begin to engage with any of the detail in the reports provided by Ms Engle-Hardy or Mr Al Heloo. I accept the cogent evidence of Ms Engle-Hardy (which also concurs with my own reading of the relevant Rules) and, to the extent relevant, that of Mr Al Heloo. It is clear that Mr bin Tarraf was not served validly with the Ontario Proceedings in accordance with the laws of Ontario.
39. In these circumstances, whether or not section section 4(1)(a)(iii) of the 1993 Act is read to equate 'notice' with lawful service, this mandatory basis for setting the Registration Order aside as against Mr bin Tarraf is made out.

Breach of duty of full and frank disclosure

40. The day following the hearing, the Court received an unsolicited submission from Mr. Mohammad disputing the ability of the Application to raise the question of full and frank disclosure, on the basis that the application notice of 14 November 2019 does not raise this ground, and there was no application to amend that application notice. In response to this point, Mr O'Brien points out, whilst accepting these facts, that the point is not a new one, having been raised in correspondence from Mr. Tarraf's then solicitors as early as April 2020, and referred to specifically in Mr. Tarraf's Part 18 Request for Further Information. The allegation was addressed in the evidence served by Mr. Tarraf, and its existence as an argument was previously canvassed before the Court in the application to rely upon expert evidence (and was referred to by Senior Master Cook in his Ruling). It was relied upon in the skeleton argument for the application hearing before me, and was dealt with orally by Ms Wills in submissions, without suggesting the point was not open to Mr. Tarraf, or that Mr Mohammad was in any way prejudiced by having to deal with the point. Given my conclusion on the other grounds, consideration of this argument is plainly not determinative of the application. It is nevertheless appropriate for me to deal with the substance of the matter, which has long been in play between the parties. To the extent necessary, I grant formal permission to the Applicant to amend its application to include the argument.
41. The application to register the Default Judgment was made without notice under r.74.3(2)(b), and without a hearing. Mr Mohammad at the time was represented by Griffin Law. There was therefore a duty to make full and frank disclosure of all matters relevant to the application, including all matters of fact or law which were or may have been adverse to the application. The 'golden rule' is well known: see Knauf UK GmbH v British Gypsum Ltd [2002] EWCA Civ 1570; [2002] 1 WLR 907 at [65], in which Henry LJ, when handing down the judgment of the Court, referred to Brink's Mat Ltd v Elcombe and Ors [1980] 1WLR 1350 and other authorities and stated:

"…those authorities in this court bring their reminder of the essential principles: that there is a "golden rule" that an application for relief without notice must disclose to the court all matters relevant to the exercise of the court's discretion; that failure to observe this rule entitles the court to discharge the order obtained even if the circumstances would otherwise justify the granting of such relief; that a due sense of proportion must be maintained between the desiderata of marking the court's displeasure at the non-disclosure and doing justice between the litigants;"

42. As also set out in Memory Corp Plc v Sidhu (No.2) [2000] 1 WLR 1443 at 1459-1460, per Mummery LJ:

"there is a high duty to make full, fair and accurate disclosure of material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case".

43. An application under the 1933 Act must, pursuant to CPR74.4(4), be accompanied by written evidence which confirms that the registration could not be set aside under Section 4 of the 1933 Act. The party making an application must therefore put their mind impartially to those factors which go to the grounds upon which a set aside application could reasonably conceivably be made. This would plainly include providing full information as to satisfaction of the jurisdictional criteria (under section 4(1)(a)(ii)) and whether there are arguments by which it might be said that there was not notice (notwithstanding lawful notice)), pursuant to Section 4(1)(iii).
44. The key passage of the evidence put before Master Eastman is as follows:

"On 15 October the defendants were served with statement of claim and certified and notarized translation of the statement of claim in Arabic language, they were noted in default on 22 December 2017, however none of the defendants have sought to defend the claim or otherwise contact the plaintiff or his lawyer before or after that date.

Subsequently, the Claimant brought a motion for Default judgment on the Statement of Claim to the Ontario Superior Court of Justice, in which it was deemed that the only significant and real issue before the court was whether the it could exercise its residual discretion, to assume jurisdiction based on the forum of necessity exception to the real and substantial connection test.

On 16 March 2019, the Ontario Superior Court issued a default judgment in favour of the Claimant. The court established that his case was one of the exceptional cases, where in the absence of any other forum, the Claimant would be allowed to seek relief as the need to ensure justice, justifies the assumption of jurisdiction.

…

The courts of England and Wales does not directly apply the forum of necessity and according to §.4 of the of the Foreign Judgments ( Reciprocal Enforcement) Act 1933 ("1933 Act") a foreign judgment can only be enforceable if the original court had jurisdiction on a territorial or consensual basis.

However, in the decision by the Supreme Court in Vedanta Resources plc and another v Lungowe and others [2019] UKSC 20, it was held that the English court has jurisdiction over claims against both an English parent company (Vedanta) and its Zambian subsidiary (KCM) in respect of environmental damage allegedly caused by mining operations, because there was a real risk that substantial justice would not be obtained in Zambia.

The Ontario Superior Court (original court) by adopting the forum of necessity, had jurisdiction on a territorial or consensual basis therefore, satisfying the requirements as set out by §.4 of the 1993 Act. This is entirely consistent with English law, not only because substantial justice would not be available in the United Arabic Emirates and if Mr. Siddik ever return to the UAE he could be imprisoned, subject to harm and possible death, but also, if the case is not enforceable and recognised by the English courts it will become an irreconcilable judgment and Mr Siddik Mohammad will never get justice."

45. Mr O'Brien identifies on behalf of Mr bin Tarraf a number of failures to fully and frankly inform the Court when the application to register the Judgment was made:

(1) It is said that the application failed to draw attention to the fact that the Ontario Court did not purport to take jurisdiction on any of the bases referred to in section 4(2)(a) of that Act, and that the application incorrectly stated that the Ontario Court "by adopting the forum of necessity, had jurisdiction on a territorial or consensual basis therefore, satisfying the requirement as set out by section 4 of the 1933 Act". I accept that this was, far from full and frank disclosure, a clear misstatement of the legal position on jurisdiction, by seeking to elide the forum of necessity concept with a territorial or consensual basis for jurisdiction. Gray J explicitly rejected the existence of jurisdiction on a territorial or consensual basis, and this should have been brought explicitly to the attention of the judge;

(2) it is said that the duty was breached by failing to exhibit Gray J's reasons for entering the Default Judgment. Although Ms Wills argued that this was not necessary, I disagree. Section 74.4(1) specifically requires 'the judgment' to be exhibited to the evidence, and the contention that this could (particularly in light of the duty of full and frank disclosure) be limited to the document which effectively constituted the order, and excluding the reasons for the order, is without merit. On any view, had the full judgment been exhibited, Master Eastman is likely to have recognised more fully the limited nature of the Ontario Court's assumption of jurisdiction. By failing to exhibit the reasoning, the error in failing properly to articulate the legal position (or, at least, to set out accurately the competing arguments) was compounded;

(3) finally, it is said that the evidence failed to draw attention to the fact that the Ontario Proceedings were not served on Mr bin Tarraf, or that there were serious grounds for disputing that they were not so served. This is also well founded, not least in circumstances where Mr Mohammad or his representatives were or should have been aware that proceedings were served out of the jurisdiction without having previously sought leave of the Ontario Court, as plainly required by Ontario CPR Rule 17.03.

46. It is clear that the evidence put before Master Eastman did not properly alert the judge to those matters which (at the very least arguably) would justify setting aside the judgment, as specifically required by CPR Rule 74.4. I therefore conclude that there was a substantial failure to make full and frank disclosure, both in relation to jurisdiction and service.
47. A breach of the duty of full and frank disclosure will generally require that any order reached without such disclosure will be set aside: Millhouse Capital UK Ltd and others v Sibir Energy Plc and others [2008] EWHC 2614 (Ch), per Christopher Clarke J (as he then was) at §104:

"The obligation of full disclosure, an obligation owed to the Court itself, exists in order to secure the integrity of the Court's process and to protect the interests of those potentially affected by whatever order the Court is invited to make. The Court's ability to set its order aside, and to refuse to renew it, is the sanction by which that obligation is enforced and others are deterred from breaking it. Such is the importance of the duty that, in the event of any substantial breach, the Court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given him."

48. The judgment of Popplewell J (as he then was) in Banca Turco Romana SA v Cortuk [2018] EWHC 662 (Comm) at [45] underlines the importance of the penal element to be recognised within the overall exercise of discretion:

"It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness. Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make. It is a duty owed to the court which exists in order to ensure the integrity of the court's process. The sanction available to the court to preserve that integrity is not only to deprive the applicant of any advantage gained by the order, but also to refuse to renew it. In that respect it is penal and applies notwithstanding that even had full and fair disclosure been made the court would have made the order. The sanction operates not only to punish the applicant for the abuse of process, but also, … to ensure that others are deterred from such conduct in the future…"

49. This, penal, approach applies even if full disclosure would not have changed the outcome of the application. In Tugushev v Orlov [2019] EWHC 2031 (Comm), Carr J (as she then was) said at [7(x)]:

'[t]he court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties…'

50. Indeed, the Court's approach would be significantly watered down if the Court only applied the sanction of setting aside the order in circumstances where the order would not have been made but for the non-disclosure. The applying party is essentially (bar costs) no worse off if the only orders which the Court sets aside in the face of an absence of full and frank disclosure are ones which the applying party would not have obtained anyway.
51. In the present case, subject to consideration of the matters which follow, there is no good reason to depart from the usual position where the sanction for failing to comply with this duty is setting the Registration Order aside. For the reasons I have given above, had the Court properly been appraised of the facts, it is extremely unlikely that Master Eastman would have registered the Order (let alone done so ex parte). In these circumstances, it is even clearer that the Order should be set aside.

Incompatibility with the ECHR

52. Under Article 6 of ECHR, a person has a right to real and effective access to the court. Execution of a judgment given by any court must therefore be regarded as an integral part of the 'trial' for the purposes of Article 6 : see Hornsby v Greece (18357/91) at [40].
53. It is argued by Ms Wills that the denial to Mr Mohammad of the opportunity to enforce his judgment in England, by reason of the proper construction of the 1933 Act, would be to condemn him to trying his case in the UAE, where he is incapable of receiving a fair trial. I accept, for the purposes of this application, that Mr Mohammad is incapable of pursuing his claim fairly against Mr bin Tarraf in the UAE.
54. Mr O'Brien points out, with some justification, that notwithstanding various Part 18 requests, the ECHR argument had previously been articulated in only the most general terms. It had been reasonable to assume that the argument focussed on the incompatibility of the 1933 Act with Article 6 in circumstances where it did not allow the registration of judgments obtained from courts having assumed jurisdiction by the forum of necessity. The Claimant provided the requisite Notice of Incompatibility to the UK Government, but the Government has chosen not to intervene.
55. Mr O'Brien argues that to accede to this argument would be to permit Article 6 to create a substantive civil right to register a foreign judgment against a defendant in circumstances where it is well established that the Court cannot do this. Article 6(1) is focussed on the fairness of procedure in the context of civil rights and does not guarantee any particular content for the civil rights in issue. He relies upon Roche v UK (32555/96) at [117, 119]:

"…the Court may not create through the interpretation of Article 6(1) a substantive right which has no legal basis in the State concerned (see Fayed, cited above, pp.49-50, §65). Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law…"

56. As recognised in Roche, the dividing line is sometimes very difficult to discern, but I will approach the matter, for present purposes, on the basis that it can properly be argued that the rights under the 1933 Act are part of the procedural machinery of the state by which substantive rights are protected (part of the broader 'access to court'), which engages Article 6.
57. Mr O'Brien then argues that there is no international norm by which the absence of a forum of necessity (or the absence of recognition of that concept elsewhere) is itself incompatible with Article 6. See Nait-Liman at [201]-[202]:

"201. In view of … the fact that the concept of a forum of necessity is not generally accepted by the States, it cannot be concluded that there exists an international custom rule enshrining the concept of forum of necessity.

202. The Court further notes that there is also no international treaty obligation obliging the States to provide for a forum of necessity."

58. In Nait-Liman, the Grand Chamber concluded that the inclusion within the statutory jurisdictional basis of a forum of necessary under Swiss law of an additional element of 'connection' was a proportionate limitation on the right of access to the Courts (in Nait-Liman, in the context of bringing a claim for damages caused by acts of torture in Tunisia). It therefore seems reasonably clear, therefore, that the failure to recognise a judgment of a foreign nation whose Courts assumed jurisdiction on the basis of necessity in circumstances where the UK is one of many nations that does not itself recognise that concept would be insufficient in itself to conclude that the limitations within 1933 Act were in breach of Article 6.
59. Nevertheless, it is clear to me that the 1933 Act's jurisdictional test is narrower for registering foreign judgments for the purposes of enforcement than the circumstances in which an English court may accept jurisdiction over a claim to be heard in substance. So, even if it is found in the first stage of the well-known test from Spiliada Maritime Cort v Cansulex Ltd [1987] AC 460 that there is a some other forum more suitable on grounds of connection with the dispute, it is clear that the court may at the second stage nevertheless permit the matter to continue to be heard in the High Court of England and Wales if there were special circumstances based on cogent evidence which justify it in the interests of justice. Those circumstances may include the ability of the party resisting a stay to receive substantial justice in the third country. The concept of denial of justice is relevant within forum non conveniens to ensure that the court does not relinquish jurisdiction without verifying that an alternative forum exists. It might be noted at this point that notwithstanding the fact that denial of justice elsewhere be taken into account when considering whether to stay proceedings on grounds of forum non conveniens, this is plainly not the same as or equivalent to a principled right (or obligation) to assume jurisdiction on grounds of necessity, which exists in other countries either by enactment of the legislature or as a creation of case-law. There is an important conceptual distinction; it is not merely a semantic difference as argued by Ms Wills.
60. It is also clear that the way in which the High Court of England and Wales does, or does not, assume jurisdiction over disputes whose centre of gravity lies internationally has moved on considerably since 1933, and it may be that a restriction on the enforcement of foreign judgments in circumstances where a court may have assumed jurisdiction over the dispute had it been commenced in the High Court is, even if meeting the legitimate aim of managing the extent of access to the Courts, a disproportionate restriction on access to the courts. Equally, it may be justified as proportionate in circumstances where the 'hard edge' within the 1933 Act jurisdictional criteria provides certainty, which is of itself of sufficient benefit to justify the approach, and would therefore fall within the generous margin of appreciation permitted to states.
61. When this was explored in oral argument, Mr O'Brien submitted that the Court's articulation of the potential incompatibility provided a focus to the Claimant's case which had, hitherto, not existed; had it existed, it may have been that the Government would have considered it more important to make submissions. That it has not done so means that the Court does not have before it the full facts (i.e. evidence about the potential legitimate aims of the 1933 Act and/or its proportionality). Mr O'Brien cautions the Court against any finding of incompatibility in circumstances where, on the facts of this case, there is no breach of Article 6.
62. In this, Mr O'Brien is correct. Mr bin Tarraf had no actual notice of the Ontario Proceedings; he was not validly served, and he was not able to defend the proceedings and he did not appear. This is a mandatory basis upon which the 1933 Act requires the Order to be set aside as of right (under Section 4(1)(a)(iii)), independently from any question of the basis of the original court's jurisdiction. Such a restriction on the registration of foreign judgments is plainly compatible with Article 6: the inability of a defending party to have contested the claim is a legitimate consideration when the legislation defines the circumstances in which a foreign judgment is or is not capable of registration. Indeed, enforcing a judgment obtained against a party who was not on notice of the proceedings and was not able to take part would be incompatible with the Article 6 rights of the judgment debtor (see, if authority were needed for such a proposition, Beer v Austria (30428/96)).
63. Therefore, irrespective of any criticism of the ambit of section 4(1)(a)(ii) and 4(2) of the 1933 Act, it cannot be a breach of Article 6 (or A1P1) for this Court to set aside a Default Judgment pursuant to section 4(1)(a)(iii) obtained in circumstances where actual notice was not given in sufficient time for the defending party to take part in the proceedings. In these circumstances, it is unnecessary for me to, and indeed would be wrong of me to, make any determination as to the potential incompatibility of the 1933 Act's jurisdictional criteria with Article 6 (or, to the extent relevant, A1P1).
64. Although it is not necessary to do so, in light of this, I also conclude that in light of the substantial breach of the duty to give full and frank disclosure when applying to register the Default Judgment, it would not have been disproportionate in this case to grant the set aside application on this ground alone, irrespective of the arguments raised in relation to the ECHR.
65. In conclusion, the Order of Master Eastman registering the Default Judgment shall be set aside as against Mr bin Tarraf, the First Defendant.

The Second and Third Defendants

66. The grounds upon which the application has been advanced by Mr bin Tarraf are specific and personal to him. It may be that, if the Second and Third Defendants applied for similar relief, many of the same considerations would apply (particularly in the context of full and frank disclosure), potentially with the same outcome. Nevertheless, setting aside the registration of the Default Judgment against those parties would effectively be a decision made of the Court of its own initiative, without application or supporting evidence. In the circumstances of this case, I do not regard it as appropriate for the Court to do so. It may be that the point is academic if the Second and Third Defendants have no assets within the jurisdiction, but in any event, it is appropriate that the setting aside of the Order is limited to the party who has made the application.