Dar Al Arkan Real Estate Development Co & Or v Majid Al-Sayed Bader Hashim Al-Refai & Ors (May 2014)
CPR r.81.4 had extra-territorial effect. A committal application could be made in respect of a foreign company director and served on him outside the jurisdiction, when it was alleged that he was responsible for the contempt of a company that was subject to the jurisdiction of the English court.
The appellant (S) appealed, and the respondent (K) cross-appealed, against a decision ( EWHC 4112 (QB)) concerning the extra-territorial reach of proceedings for civil contempt.
S, who was domiciled and resident in Saudi Arabia, was the director of two companies (D) incorporated in Saudi Arabia and Bahrain. K had applied for S and D's committal after a without-notice injunction obtained by D was discharged on the basis of D's breaches of court orders ( EWHC 3539 (Comm)). The judge held that the committal proceedings against S were within the scope of CPR r.81.4(1) and r.81.4(3), and that service out of the jurisdiction was authorised by CPR r.6.36 and PD 6B para.3.1(3). However, he rejected K's argument that the English court had exclusive jurisdiction under Regulation 44/2001 art.22(5). On that point, he considered himself bound by Choudhary v Bhattar  EWCA Civ 1176,  2 All E.R. 1031, notwithstanding his belief that it had been decided per incuriam of the relevant Luxembourg jurisdiction. S appealed against the decisions relating to the CPR, and K cross-appealed on the art.22(5) point.
S submitted that (1) the presumption against the extraterritoriality meant that CPR r.81.4(1) could not enable a committal order to be made against a foreign director who was outside the jurisdiction; (2) the requirements of CPR r.6.36 and PD 6B para.3.1 were not met because the application was not "a claim" brought on a "claim form"; there was no "real issue" between K and D in respect of the committal. K submitted that Choudhary had been decided per incuriam and ought not to be followed.
(1) CPR r.81.4 provided a mechanism for the exercise of the court's disciplinary powers over corporate contemnors who were subject to its jurisdiction. Were the court to have no power over the directors and officers of companies which disobeyed court orders, its disciplinary powers over corporate contemnors would be significantly weakened. The question was whether the object of the CPR in providing such a mechanism required r.81.4 to be given extraterritorial effect. That depended on whether its content and context indicated that the presumption against extraterritoriality was negated. There were pointers both for and against the negation of the presumption. However, the need to ensure that the court was able to control proceedings properly brought in the jurisdiction, and the anomalies that would result from the provision not being applicable to foreign directors, provided an underlying reason of principle for reading r.81.4(3) as including foreign directors outside the jurisdiction. That conclusion was not put into question by Masri v Consolidated Contractors International Co SAL  UKHL 43,  1 A.C. 90: committal proceedings were very different from the court's power under CPR Pt 71 to obtain information from judgment debtors. The rationales for the two procedures were very different and it was for the public good that the order of the court was not to be disregarded. The judge had been correct in concluding that the nature of contempt proceedings meant that the instant case was closer to the decision in Seagull Manufacturing Co Ltd (In Liquidation) (No.1), Re  Ch. 345 than that in Masri, Seagull considered, Masri distinguished. S was the director of companies which were subject to the jurisdiction of, and were in contempt of, the English court. The rule of attribution in CPR r.81.4(3) was not equivalent to enforcing English penal law in another jurisdiction. K was simply seeking to enforce, in England, an order made by the English court against D (see paras 26, 32-44, 48-50 of judgment). (2) As to the requirements of CPR r.6.36 and PD 6B para.3.1, the essential question was whether "proceedings" within the meaning of r.6.2 included an application for committal. That involved determining whether such an application was made on a "claim form", which was defined by reference to "claim", which included applications to commence proceedings. It was clear that an application for committal was the commencement of proceedings. The argument that not all contempt applications involved separate proceedings was to be rejected. One of the reasons that CPR r.81.10(3)(a) required the setting out in full of the grounds for a committal application was that an application made under r.81.10(2) involved new proceedings. Moreover, S's interpretation of r.6.2 and r.81.10(2) would result in a number of anomalies. Finally, there was clearly a real issue between K and D as to whether D fell within the scope of CPR r.81.4(1), and as to whether there was jurisdiction to seek an order for S's committal (paras 55-58). (3) (Obiter) It was not necessary to decide the cross-appeal on the applicability of Regulation 44/2001 art.22(5). However, since there had been argument on whether Choudhary was decided per incuriam, the court would say that the judge's reasoning on that matter was compelling, Choudhary considered (para.64).
LTL 23/5/2014 :  EWCA Civ 715