EUPillar Dal Al Arkan Real Estate Development Co & Anor v Al Refai & Ors [2013] EWHC 4112 QB

Summary

The claimants were a Saudi Arabia property development company, and a Bahraini investment bank. The claimants were suing the bank’s CEO for breach of confidence, conspiracy, unlawful interference, defamation and malicious falsehood. In the course of the proceedings, the English court had made orders for preservation of evidence. The claimants breached the order. The defendants sought a declaration that the claimants were in contempt of court. They submitted that the English court had jurisdiction under Article 22(5) of Brussels. The claimants challenged the English court’s jurisdiction under Article 22 of Brussels I. In this context, the court considered the application of Article 22 in cases where the defendant was not domiciled within the EU. In particular, he considered whether the judgment of the English Court of Appeal in Chouldhary v Bhattar [2009] EWCA Civ 1176 was reached per incuriam. The English High Court held that “article 22 does not cover the committal application against Sheikh Abdullatif because he is not domiciled in a Community jurisdiction.” [59] In this context, Mr Justice Andrew Smith held: “49 [Sir John Donaldson MR] did not refer to the passages of the decisions in Group Josi and Owusu that I have cited above, and he did not refer at all to the Land Oberösterreich case, which contained the most recent and perhaps clearest statement of the ECJ’s views. Nor did he refer to the Jenard Report or any academic authority. I do not easily conclude that the Court of Appeal was not only unaware of the Land Oberösterreich case, but also had not seen the relevant passages of the other two ECJ cases. However, I find it impossible otherwise to explain why Sir John Chadwick’s judgment made no reference to them. […] 51 […] the relevant passages of the three ECJ judgments would, as I see it, have compelled Sir John Chadwick and the other members of the court to a different decision. Otherwise they would not have been observing the requirement of section 3(1) of the European Communities Act 1972, which covers both the Brussels Convention and the Brussels Regulation” […] 55 […] judgments given in ignorance of an ECJ decision are not necessarily given per incuriam.).” [49-51 and 55]. Although the Court of Appeal seemed to agree with the High Court’s judgment, it did not address the issue directly (but only obiter).