Special Briefing: Qatar Airways Group v Middle East News FZ LLC [2020] EWHC 2975 (QB)

Articles | Tue 1st Dec, 2020

Last week judgment was handed down in the case of Qatar Airways Group v Middle East News FZ LLC [2020] EWHC 2975 (QB), a jurisdiction dispute. The decision raises a number of interesting points for private international lawyers, but the purpose of this article is to explore three points in particular: 1) whether foreign law must be pleaded at the jurisdictional stage; 2) the application of the tort gateway; and 3) Saini J’s reasoning under the forum (non) conveniens leg of the analysis.

Background

The factual background can be summarised as follows. In June 2017 Saudi Arabia, the UAE, Bahrain and Egypt imposed a sea and air blockade upon Qatar. The Claimant owns and operates Qatar Airways, and the Defendants were alleged to have connections to the Arabic news channel Al Arabiya. Although flights were permitted into and out of Qatar via permitted air corridors, the Defendants released a video in which it was suggested that there was a real danger that the Claimant’s flights in the middle east would be shot or forced down. The Claimant alleged the video was, intentionally and foreseeably, damaging to its business and that it deliberately conveyed false and misleading messages. In legal terms, it was alleged that the video amounted to malicious falsehood, unlawful interference with its business, and that it was also made and issued pursuant to conspiracy between the Defendants and others aimed at harming the Claimant.

The Claimant obtained permission to serve proceedings out of the jurisdiction on the First, Third and Fourth Defendants on 31^st December 2018 The Second Defendant is a UK company. By an application noticed dated 29^th August 2019, the Defendants sought to set aside the order for service out of the jurisdiction. The Defendants also sought to apply for a strike out/for summary judgment in respect of the claim against the Second Defendant.

The key takeaways

Saini J’s judgment is lengthy and addresses a wide range of points. For the purposes of this Special Briefing I have focused solely on the points that are likely to be relevant to our readership.

1. Applicable law and failure to plead foreign law at the jurisdictional stage

This issue was considered under the “serious issue to be tried” leg of the jurisdiction challenge. The Defendants alleged, inter alia, that the Claimant’s failure to plead foreign law was fatal to the worldwide tort claims and that there was therefore no serious issue to be tried. The Defendants submitted that there was a formal requirement on the Claimant to plead, and prove, the tort laws of all the world (or at least the main countries relied upon) at the jurisdiction stage. The Claimant sought to rely on the evidential presumption that foreign law is the same as English law. In response, the Defendants contended that it was inappropriate in principle to rely on that presumption.

At the outset, Saini J noted that the principle argued for by the Defendants would result in  an unattractive position; if the Defendants were correct and foreign law had to be pleaded at the jurisdictional stage, the pursuit of worldwide tortious claims would be impracticable both in terms of costs and preparation, even where there was a gateway and England was the forum conveniens [175]. Saini J then provided a helpful synthesis of the relevant legal principles that (in his judgment) applied to this dispute. I can do no better than his summary, so I have set out the relevant paragraph in full:

“181.  In my judgment, the current state of the law and practice (in Rome II and common law cases) may be summarised in the following propositions which I have drawn from a number of Court of Appeal and first instance decisions:

1. In a case where foreign law would apply in principle it is enough to establish a serious issue to be tried to justify service if: (i) the claimant relies on the presumption and does not plead the content of foreign law; (ii) there are real prospects of success applying English law concepts; and (iii) the defendant does notcontend, or provide evidence, that any potentially applicable foreign law is different in a way that would mean that there are no real prospects of success.
2. In accordance with the overriding objective, and if they become relevant following pleadings, the foreign law aspects of a claim should be managed in a proportionate manner at a CMC. Like other areas of potential factual disputes, issues of foreign law cannot in most cases be dealt with practically or justly at the jurisdiction stage.
3. This general rule is subject to departure in exceptional situations or where the nature of the substantive issues makes it inappropriate to apply the presumption at the jurisdiction stage. The classic example is infringement of foreign intellectual property rights. Another example is illustrated by Shaker v Al Bedrawi [2003] Ch 350, [29], [32], [64]-[72], where it was inappropriate to rely on the presumption to presume that US companies would be regulated by technical aspects of European companies law. There may be other situations.”

The position described above was the same analytical approach adopted by Underhill LJ in FS Cairo v Brownlie [2020] EWCA Civ 996, and Saini J clearly preferred this approach to that taken by McCombe LJ (of the majority) and Arnold LJ (of the minority). Applying Underhill LJ’s approach, Saini J held: “[the Claimant] is entitled to rely upon the evidential presumption that foreign law is the same as English law such that unless and until it is shown that foreign law applies to part of the claim, and is materially different, the concepts of English law will be sufficient to show that that part of the claim is civilly actionable under any applicable foreign laws.” [171]. Accordingly, the question of a real prospect of success could be assessed by reference to English law concepts (see Dicey Rule 25(2)).

Unlike Underhill LJ, Saini J noted that McCombe LJ did not directly resolve the question of the formal application of the presumption in Brownlie. The approach taken by McCombe LJ, as Saini J described it, was one where the primary emphasis at the jurisdiction stage was on the analysis of evidence, pleadings and the possible application of Dicey Rule 25, which together constituted a “common sense” assessment of whether there were real prospects of success [186]. On this approach, even if a foreign cause of action was not proved by the Claimant (and the contrary had not been proved by the defendant), an expectation that a cause of action existed under the foreign law was sufficient to establish a serious issue to be tried at the jurisdiction stage, irrespective of the application of the presumption [186]. Saini J was satisfied that the evidence indicated that an equivalent cause of action would exist under the foreign laws: see [177]-[178] and [187]. Accordingly, in terms of proving a serious issue to be tried, the Claimant’s failure to plead foreign law was not fatal under the approach articulated by both McCombe LJ and Underhill LJ.

2. Jurisdictional gateway

At [326], Saini J set out an instructive summary of the key principles relating to the Tort Gateway under CPR 3.1(9). I would refer readers to that paragraph – it is too extensive to set out all the key points here. In terms of the malicious falsehood claim, however, Saini J considered this clearly satisfied the tort gateway: see [327]. The defamation case law supported the fact that CPR 3.1(9) is satisfied by publication within the jurisdiction (see, for example, Eady J in King v Lewis [2004 EWHC 168 (QB) at [2]). Both CPR 3.19(a) and (b) were held to be made out. The same applied to the claim for unlawful interference – though publication was not a technical part of the cause of action, the key parts of the unlawful interference involved publication and the publication occurred in England [328]. As for the conspiracy claim, “some significant damage” was shown to have occurred in England to a sufficient standard, so 3.1(9)(a) was satisfied.

3. Forum conveniens

The Defendants sought to submit that England is not clearly the most appropriate forum for the trial of claims and that the Claimant had not adduced cogent evidence that it would face a real risk of substantial injustice in the appropriate forum. The relevant legal principles that apply in the forum conveniens analysis have been set out in a longer form Special Briefing that can be found here.

The Claimant had conceded in its application that “UAE might be considered a natural forum” and it was common ground that the UAE courts would have jurisdiction, as would the Dubai International Financial Centre [356]. The Defendants argued these were clearly the most appropriate fora: see [359]-[364]. Saini J did not consider there was a risk of real injustice before the UAE courts on the basis of both the constitutional protections in place and the reported findings of a number of independent NGOs [372]. However, Saini J ultimately concluded that England was the most appropriate forum.  The following factors were decisive [377]:

• Claimant’s connections to the UAE and England: The Claimant no longer had substantial connections to the UAE as it had been barred from the UAE due to the Gulf crisis, whereas there were significant connections to England. The UK is where 78% of the Qatar Airways’ worldwide E-Commerce revenue is paid.
• Neutrality of proceedings in the UAE: Saini J considered that the UAE, given the highly political circumstances of the case, would not be a neutral forum. Any judgment given would have less international force.
• Location of the Claimant’s loss: The majority of the Claimant’s loss had occurred outside the UAE, largely due to the fact that the Claimant could not fly to the UAE due to the blockage. Publication of the video in the UAE was lower than publication in England. Saini J also considered that the greatest impact of the video was via third party news and there was no suggestion of significant UAE news consumption via third party websites. It was clear that there had been substantial publication in England.
• UAE’s legal system: The UAE’s legal system was less well equipped to handle the trial in this matter. There would be extensive disclosure exercises and live witness evidence, and the English courts were well equipped to handle these aspects of the case. The evidence was that disclosure was unavailable in the UAE courts, and that live witness evidence was not much used. The case of Al Jaber v Al Ibrahim [2016] EWHC 1989 (Comm) was relied on in this regard.
• “Hostile environment” factors: The most important factor was that the political situation created profoundly serious issues for the pursuit of any claim in the UAE by the Claimant. Evidence was adduced that indicated that the UAE state has a strong anti-Qatari stance. In particular, specific measures taken by the UAE meant that the Claimant was no longer free to do business there – its business operations had been closed down; it no longer had officers there; and it no longer had functioning bank accounts there. There was also evidence that it was a criminal offence for persons in the UAE to express sympathy for Qatar, so there was a risk that anyone involved in the Claimant’s litigation in the UAE would be committing a crime. Finally, the Claimants had difficulty finding local lawyers that would represent them, and their English lawyers did not have offices in the UAE. Equality of arms would be difficult to achieve.
• Location of the Claimant’s witnesses: As a result of the political circumstances, the Claimant’s Qatari witnesses and employees would be unable to travel to the UAE. The option of evidence by video-link was not a fair restriction to impose on the Claimant, particularly given the Defendants’ witnesses would be able to give live evidence.
• Applicable law: English law would apply to the claims for loss suffered in England, though a mosaic of foreign laws would apply for losses suffered abroad. However, for an international claim such as this, it was likely that a mosaic of applicable laws would be applied wherever the claim was tried. The Defendants had also not indicated any intention to rely on foreign law, so this factor was given diminished weight.

For all of those reasons, Saini J considered England was the appropriate forum.

Conclusion

The judgment in Qatar Airways Group contains several helpful expositions of important areas of private international law. It is also the most recent application of the Court of Appeal’s reasoning in FS Cairo v Brownlie, and practitioners in this area will definitely want to keep in mind Saini J’s reasoning on the issue of whether foreign law must be pleaded at the jurisdictional stage.

About the Author

Henk Soede was called to the Bar in 2019 and is chambers’ newest recruit. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.