Sunday, 9 August 2009

The Torture Tapes: Case dismissed

The case brought by Bassam Nabulsi against Sheikh Issa has been dismissed in the US District Court in Houston. The expert witness on the subject of service of process in the UAE appearing for the Defendant (Sheikh Issa) was Dr Faraj A. Ahnish of Hadef and Partners a UAE law firm. While making no reference to the matter by name, the summary of Dr Ahnish's evidence is below, reproduced courtesy of H&P.
The Houston Court's opinion and order are here. The dismissal is being appealed.
Dr. Faraj A. Ahnish, Managing Partner of Hadef & Partners' Abu Dhabi office, recently acted as expert witness in respect of a civil claim filed by an individual against a UAE citizen (the Defendant). The claim was brought before the United States District Court for the Southern District of Texas, Houston Division (the Court).
Pending before the Court was the Defendant’s motion praying that the claim be dismissed on, amongst other grounds ‘‘improper service’’ of notification of the Plaintiff’s Statement of Claim and excluding the expert witness statement and testimony prepared by a professor of law on the Plaintiff’s request.
The Court in its Memorandum Opinion and Order (in support of its judgment) allowed the Defendant’s motion for excluding the expert witness statement and testimony filed, by that expert, on behalf of the Plaintiff. The Court noted that:

he has no experience with or expertise in U.A.E. law. Moreover, the Plaintiff acknowledges that [his] “testimony on U.A.E. law essentially echoed the testimony of Defendant’s legal expert (that is, the deposition testimony of Dr. Faraj A. Ahnish).” Accordingly, the Defendant’s motion to exclude the testimony of Professor Khan will be granted”.
The Court then went on to consider the Defendant’s motion to dismiss the claim for improper services. The Court cited the governing rule under US law on this subject. It acknowledged that the US relevant federal rule of Civil Procedure authorises the court to dismiss a case for “insufficient service of process”. It stated that due process under the United States Constitution requires that:

before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.”

The Court then cited US federal rules on service of process on individuals located in a foreign country. Next, the Court considered the facts and circumstances relating to the purported service of process on the Defendant by a professional process serving company based in the US.

The facts relating to the purported service process were carefully analysed in Dr. Ahnish’s expert Witness Statement and the conclusion arrived at was that under the relevant provisions of UAE law, the service purported to have been effected on the Defendant would not be regarded as proper or sufficient service of a civil Statement of Claim. The conclusion arrived at in Dr. Ahnish’s Witness Statement was based on careful examination of the provisions of UAE law on service of court process.

The Court upheld the opinion of Dr. Ahnish’s opinion in its entirety in respect of service of process under UAE law. The Court stated:

“Citing the Expert Witness Statement of Dr. Faraj Abdullah Ahnish, the (Defendant) argues that the method used to serve him is not prescribed by the laws of the U.A.E. Ahnish has identified two reasons why the service officer’s service attempt was not sufficient under U.A.E. law: (1) The service officer was not authorized to serve process under U.A.E. law, and (2) [the service officer] did not provide documentation of service.
(1) Authorization to Serve Process in U.A.E.
Citing Article 5 of Federal Law No. 11, Ahnish states that process may be served in the U.A.E. by either (1) a summons clerk who is appointed and trained by the relevant governmental authorities, or (2) a private process server who works for a company authorized by the government of the U.A.E. to serve process.
Ahnish states that: “having reviewed the process adopted by the service officer in the current case vis-à-vis the provisions of the Civil Procedures Law, it is my view that the service of process as described by the service officer is fundamentally defective to the extent that it “defeats the purpose of the process” on the following accounts:
a) It was effected by a private person who under the Civil Procedures Law does not qualify as a summoner or a notification clerk. The service officer is not an employee of a U.A.E. company or a branch of a foreign company established in U.A.E. for the purpose of providing summons processing services;
b) The service officer does not obviously have any outsourcing contract or similar arrangement with the U.A.E. Ministry of Justice for providing summons processing services. . . .”

The Court went on to observe:

“Without disputing that neither [the service officer] nor his company have been authorized to serve process in the U.A.E., plaintiffs argue that common sense should override the requirements of U.A.E. law so long as [the service officer] used the “general methods of service available in the country of service.” As evidence that the Defendant was served in accordance with the “general methods of service available” in the U.A.E., plaintiffs cite Ahnish’s deposition testimony that the U.A.E. does not have any law that specifically prohibits service of suits from outside the country, and that service effected through an agent and service effected by leaving documents with a person at a place of business are allowed.”
The Court reached the conclusion that:

“the only credible evidence as to whether [the service provider’s] service attempt was made in a manner prescribed by U.A.E. law is the expert testimony of Ahnish.”
The Court further observed:

“Citing Article 7 of the Civil Procedures Law of the U.A.E., Ahnish contends that the service provider failed to provide a “notification document” required under U.A.E. law for service of process. According to Ahnish the required elements of a “notification document” include (1) the date and time of notification; (2) information about the party requesting service; (3) information about the party being served; (4) information about the “Notification Officer;” (5) the subject of the notification; and (6) the “full name of the person to whom notice is delivered and his signature, seal, or thumb print on the original [notification document] to acknowledge receipt or indicate refusal and the reason for such refusal.”

The Court then ruled that the above conclusions provide a sufficient basis for dismissing the claim for lack of jurisdiction without having to consider other motions for dismissal as brought by the Defendant.

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