Court of Appeal judges have warned lawyers they should expect no favours if they assume foreign litigation works under the same conventions as in England and Wales.
In Al-Zahra (RVT) Hospital & Ors v DDM, Lord Justice Haddon-Cave set aside service of proceedings against a UAE hospital and its doctors, having allowed an appeal from the defendants. The claim had been made by a mother for ante-natal care in the UAE before she moved to England to give birth to a baby with severe disabilities.
In the High Court, Mr Justice Foskett had ruled that two extensions of time had been properly granted.
The appeal court said Foskett J placed undue emphasis on the fact the defendant had been unresponsive to its initial correspondence. This was in circumstances where the claimant solicitors, London firm Leigh Day, had not taken the 'elementary precaution' of taking expert advice as to UAE law.
Haddon-Cave LJ said: ‘The co-operation of foreign defendants is not necessarily always to be expected as a matter of course. Indeed, the lack of response from a foreign defendant may make it all the more important for a claimant to consider obtaining early foreign law advice.’
The hospital had been expressly advised by its insurers not to respond to the claimant’s initial letter of claim from January 2014. It was established by corporate UAE-based lawyers that the claimant’s solicitors had not provided a notarised and attested power of attorney showing their authority to act on behalf of the mother, as generally required under UAE law.
Sir Timothy Lloyd, sitting alongside Haddon-Cave LJ, said Foskett J had been ‘clearly wrong’ to suggest the claimant had been hampered by the failure of the defendants to respond to correspondence.
He added: ‘If the prospective or actual defendant is not within the jurisdiction, those acting for a claimant cannot assume that their approaches to a foreign person or entity will receive any particular response, let alone a constructive response. From the point of view of the foreign party, there is, or at least there may be, no reason to respond. Claimants’ representatives need to bear in mind that, unless and until proceedings are validly served on the foreign defendant, that party is under no obligation to respond at all.’