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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> The Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) & Ors [2025] EWHC 1481 (Comm) (16 June 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1481.html Cite as: [2025] EWHC 1481 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
London |
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B e f o r e :
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THE REPUBLIC OF MOZAMBIQUE (acting through its Attorney General) |
Claimant |
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- and |
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(6) PRIVINVEST SHIPBUILDING SAL (HOLDING) (7) ABU DHABI MAR INVESTMENTS LLC (8) PRIVINVEST SHIPBUILDING INVESTMENTS LLC (9) LOGISTICS INTERNATIONAL SAL (OFFSHORE) (10) LOGISTICS INTERNATIONAL INVESTMENTS LLC (11) MR ISKANDAR SAFA (Deceased, represented Pro Tem by Mr Azoury) |
Defendants |
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- and |
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(1) MS CLARA MARTINEZ THEDY DE SAFA (2) MR AKRAM ISKANDAR SAFA (3) MS ALEJANDRO SAFA |
Respondents |
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Frederick Wilmot-Smith (instructed by Signature Litigation LLP) for the Defendants
Robert Howe KC, Andrew Holden and Niamh Davis (instructed by Forsters LLP) for the Respondents
Hearing dates: 9 October 2024 and subsequent written submissions to 5 February 2025
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Crown Copyright ©
Robin Knowles J, CBE:
Introduction
"33. Sadly, shortly after the trial Mr Safa died. As the point for handing down this Judgment approached, contested applications were issued by Mozambique and by the Privinvest Companies to appoint representatives of his estate for the purpose of these proceedings. The determination of these applications may involve consideration of questions of Lebanese and French law, and there have been jurisdictional reservations by Mr Safa's family.
34. I received additional written argument from Mozambique and from the Privinvest Companies. With the benefit of that argument, I made an Order dated 28 June 2024, and in keeping with the terms of that Order which owe much to careful discussion between a number of the legal teams (here and abroad), I record that the following matters are not determined in or by this Judgment:
(a) All questions as to the consequences of the death of Mr Safa. These are reserved for subsequent consideration and are to be determined together with what are contested applications to appoint representatives of his estate ("the Reserved Issues").
(b) In relation to claims against and made by Mr Safa ("the Safa Claims"), this Judgment states only what the outcome of the determination of the Safa Claims would have been had Mr Safa not died prior to the Judgment.
(c) This Judgment does not determine which person or persons shall be representatives and/or party to the determination of the Safa Claims.
(d) For the avoidance of doubt, the Reserved Issues include all questions as to the participation or otherwise of Mr Akram Azoury (a member of the Lebanese Bar) and [the Respondents] (members of Mr Safa's family) in these proceedings (whether as joined parties, or as representatives pursuant to CPR, r.19.12)."
Mozambique's proposed claim against the Respondents
"Mr Safa is liable to the Republic for the reasons and in the amounts pleaded in [Mozambique's Particulars of Claim in these proceedings].
the Safa Heirs have succeeded to Mr Safa's liabilities to the Republic and are liable to the Republic in the same manner and to the same extent as Mr Safa, subject to the limits pleaded ".
Jurisdiction
" to take jurisdiction over [the Respondents] and to make orders relating to both the administration of Mr Safa's estate in Lebanon, and to make orders relating to both the administration of Mr Safa's estate, and the succession to Mr Safa's estate".
"The concept of estate in the meaning of the aggregate of all the assets owned by a deceased person less all his/her liabilities does not exist in Lebanon. In addition there is no mandatory procedure under Lebanese law similar to the estate administration.
Under Lebanese law, the rights, assets and debts left by the deceased vest immediately upon death on the heirs."
"A patrimony consists of everything a person can own. It is indivisible and encompasses both assets and liabilities. This includes obligations arising from pending litigation.
Upon the death of the decedent, there is no vacancy of the patrimony since it is transferred to his heir
The transfer pertains to an entire patrimony being handed over. heirs are personally liable for its debts, though this liability is limited to what they inherit.
In this case, one can speak of the inheritances of assets. Here, the heirs will be pursued as holders of a hereditary patrimony by only the creditors of the deceased. The creditors of the heirs will not compete with those of the deceased. It is the heirs who control the hereditary assets and are responsible for the debts of the deceased. They hold the corpus, employing a term favoured by Von Savigny, which acts as a vanguard to the ownership that will be definitively established over the assets that remain after all the deceased debts are settled.
In Lebanese law, the heir has the option to either accept or renounce the inheritance. Consequently, the heir is responsible for settling the debts owed to the creditors of the deceased and can be sued for these debts, but only up to the value of the inheritance received.
under Lebanese law, when an individual dies, his legal personality ceases to exist, and his claims, debts, rights and obligations (with limitations) are transferred to his heirs. This can be established by [the Code of Obligations and Contracts] and article 2 of the Law of Succession. Lebanese courts refer to the transmission of obligations as follows:
"Whereas it is known that an heir succeeds the deceased in his rights and obligations in proportion to his share of the inheritance, unless he completely rejects the inheritance.""
Discussion
"Viegas concerned dealings with the deceased's assets situated in England. This was the basis on which the issue of the claimants' standing, as some of the alleged heirs, to bring claims in England to collect those assets in, fell to be characterised as one of administration of estates governed by the law of England and requiring grants of representation here. By contrast, the Republic's claim is not brought by alleged heirs seeking to collect in English assets for the estate; but against the heirs, asserting their personal liability in respect of debts to which it is common ground they have personally succeeded under the relevant (Lebanese) law."
Joinder and amendment
"The court may order a person to be added as a new party if
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue."
Service out of the jurisdiction
Gateways
" the claims against Mr Safa were based on a variety of causes of action arising out of the events which give rise to the Judgment. The claim against [the Respondents] is based solely on their alleged liability as successors to Mr Safa's liabilities under the relevant provisions of Lebanese succession law".
"Necessary or proper party"
"[a] claim is made against a person ("the defendant") on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and (a) There is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) The claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim."
"A number of authorities relating to the jurisdiction under this gateway were cited to me, from which the following principles relevant to the issues in the present case can be extracted:
i) The "necessary or proper party" gateway is anomalous, in that, by contrast with the other heads of jurisdiction, it is not founded upon any territorial connection between the claim, the subject-matter of the relevant action, and the jurisdiction of the English courts: AK Investment at [73];
ii) The prospect of proceedings having to take place in more than one jurisdiction will never be enough, in and of itself, to justify the joinder of a foreign defendant: AK Investment, per Lord Collins at [73], adopting the well-known dictum of Lloyd LJ in Golden Ocean Assurance Ltd v Martin [1990] 2 Lloyd's Rep 215 at 222:
"... caution must always be exercised in bringing foreign defendants within our jurisdiction under Order 11 r 1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction."
ix) The question whether B is a "proper party" to the claim against A is answered by asking: "supposing both parties had been within the jurisdiction, would they both have been proper parties to the action?" AK Investment at [87], (applying Massey v Heynes & Co (1888) 21 QBD 330; Nilon Ltd especially at [15]. B will be a proper party if the claims against A and B involve one investigation or there is a sufficient "common thread" between them."
" the claim against Mr Safa and the claim against [the Respondents] do not depend on one investigation, and there is no common thread whatsoever between either the legal or the factual issues in dispute in the respective claims (or, in respect of the claim against Mr Safa, which were in dispute before the judgment was handed down)."
"It does seem to me that in circumstances where the heirs are on any view closely associated with Mr Al-Rajaan, and where there is prospective enforcement against assets in Switzerland which would otherwise belong to the heirs, there is every reason why it is necessary and proper for them to be joined as parties to the present proceedings, so as to ensure that they are bound by the result. If so, then they would not be in a position to assert in the context of Swiss enforcement proceedings that there was in fact no liability on the part of the estate to PIFSS. If the position were otherwise and they were not joined to the present proceedings, PIFSS would potentially be in the position of having to prove again the liability which, on this hypothesis, they had successfully established by virtue of a trial which is going to last the best part of a year. Absent joinder, PIFSS would therefore potentially have to surmount a substantial obstacle to enforcement in Switzerland, because the heirs could contend that they were not bound by the result of the major trial that is going to take place. I consider that this would be a most undesirable consequence."
"If there is to be a general power to serve proceedings out of the jurisdiction to assist the enforcement of an English judgment debt, that is a matter for the Rules Committee."
Appropriate forum
"[h]ad there been a hearing involving Mrs L which determined that there was such a right of indemnity, and then Mr L had resisted enforcement by the receiver on the basis that there was not, there would have been an obvious risk of inconsistent judgments (as well as the duplication of resources arising from trying the same issue twice in two jurisdictions)".
Conclusion