AB Bank v Abu Dhabi Commercial Bank (2016)
The court had no jurisdiction to permit service out of the jurisdiction for an application for a Norwich Pharmacal order. The order was not "interim relief" under CPR PD 6B para.3.1(5) as the respondent held information but was not the alleged wrongdoer. The relief sought against the respondent was therefore final rather than interim.
A defendant applied for a Norwich Pharmacal order to be set aside.
The claimant was a Bangladeshi bank and the defendant was a bank based in Dubai. The claimant had been defrauded out of $20 million by a third party (P) after a meeting at the defendant's Dubai offices. There were no allegations of fraud against the defendant, but the Norwich Pharmacal order was granted without notice on the basis that the defendant had information about where the money had gone. The claimant also obtained an injunction requiring the defendant to provide information about specified matters. The claimant had relied on three gateways to jurisdiction for the grant of the order under CPR PD 6B, namely that the application concerned (a) the grant of an interim remedy; (b) the grant of an injunction to do or refrain from doing an act within the jurisdiction; (c) a claim against a necessary or proper party.
The defendant submitted that the court had no jurisdiction to make the order as none of those gateways were met. It argued that a Norwich Pharmacal order did not amount to interim relief under the Civil Jurisdiction and Judgments Act 1982 s.25; the injunction could be complied with in Dubai; and the proper party for the claim was P.
1) The gateway in CPR PD 6B para.3.1(5) was not available to permit service out of an application for Norwich Pharmacal relief in support of proceedings within the jurisdiction. That suggested that the object of the gateway was to enable service out of applications for relief in support of foreign proceedings, where the relief was sought against the defendant in the foreign proceedings and was interim as between the claimant and the defendant, such as a freezing order. In order for a claim to be for an "interim remedy" within the meaning of the PD 6B para.3.1(5) it had to be "interim" as between the applicant for relief and the respondent to the application. An application for Norwich Pharmacal relief was not interim in that sense. It was the final relief sought against the respondent. There would be no further proceedings against the respondent which would justify describing the remedy as interim. The remedy sought in the instant case was a final Norwich Pharmacal order based upon the duty of a person mixed up in a fraud to assist the person wronged by giving him information which would assist him in righting the wrong. Such an order might initially be made ex parte but that did not make it an interim remedy for the purposes of PD 6B para.3.1(5) (see paras 7-10, 16 of judgment).
(2) The second gateway relied on was CPR PD 6B para.3.1(2), namely that the claim was for "an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction". The order made by the court required the defendant to obtain and/or take all reasonable steps to procure the information listed, and provide a witness statement/affidavit to the claimant. The steps to procure the requested information would be taken in the United Arab Emirates. The injunction did not require any action within the jurisdiction. For that reason the claim also failed the second gateway (para.17).
(3) The third gateway relied on was that the claim was against a "necessary or proper party" under CPR PD 6B para.3.1(3). For that gateway to apply there had to be a claim against the "anchor" defendant and there had to be a real issue between the claimant and that defendant which it was reasonable for the court to try. The claimant had a fraud claim against P which it wished to serve, but it did not wish to serve the claim alleging fraud on the defendant; no allegation of fraud was made against the defendant. The claimant wished to serve a claim form raising a quite different cause of action, namely that which established a basis for Norwich Pharmacal relief. That claim would be established long before the fraud claim was established. The two claims would never be tried together. The defendant was therefore not a necessary or a proper party to the action alleging fraud. A party not shown to be arguably liable in any action could not be made a party to proceedings simply in order to obtain discovery, Unilever Plc v Chefaro Proprietaries Ltd (Discovery)  F.S.R. 135 applied, Lockton Companies International v Persons Unknown  EWHC 3423 (QB) not followed. Accordingly, there was no gateway through which the claim for Norwich Pharmacal relief could pass. It followed that the order for service out of the jurisdiction had to be set aside (paras 19-21).
(4) If the court had been required to exercise its discretion, it would have concluded that the instant case was not one in which it was appropriate to order service out of the jurisdiction because (a) there was a risk that compliance with a Norwich Pharmacal order might be a breach of UAE law and (b) there was a means by which the information could be provided in the UAE, namely by seeking the consent of the Central Bank. It would be far more appropriate for the defendant and the claimant to co-operate in making such an application rather than for the court to seek to exercise an exorbitant jurisdiction over a foreign bank (para.34).