Abu Qaoud v Tunisian National Tourist Office
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE DOUGLAS BROWN |
| Judgment Date | 16 July 2004 |
| Neutral Citation | [2004] EWHC 1755 (QB) |
| Court | Queen's Bench Division |
| Date | 16 July 2004 |
[2004] EWHC 1755 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Douglas Brown
MR. A. SPEIGHT Q.C. (instructed by Messrs. Salfiti & Co.) appeared on behalf of the Appellant.
MR. J. SMART (instructed by Messrs. Avadis & Co.) appeared on behalf of the Respondent.
(As approved by the Judge)
I have been hearing an appeal by the Tunisian National Tourist Office (TNTO) from the decision by Master Rose on 7th August 2003 to grant permission to the claimant, Mr. Abu Qaoud, to issue a writ of fieri facias (fifa) for the execution on the assets of TNTO and for an interim third party debt order—the old garnishee order nisi. He also made an order for the Legal Services Commission funding costs to be assessed. He made an order for costs and he refused leave to appeal.
TNTO appeal now with the leave of Eady J. They also seek permission to call two witnesses, the director of TNTO in London, Mlle. Hassan, and Mr. Fereqhue, an expert on Tunisian law.
Before the appeal began Mr. Smart, counsel for the claimant, applied on short notice for the permission to appeal to be revoked and alternatively for the appeal to be struck out under the inherent jurisdiction of the court. I refused those applications but indicated that the factual basis for them could be deployed in this appeal with particular reference to the application to rely on fresh evidence. I postponed giving my reasons. Before coming to the appeal I now give those reasons.
The appeal application was supported by a witness statement purportedly made by Mlle. Hassan. When the matter came before Eady J. he had another statement by Mlle. Hassan which differed materially from the first. Eady J. had no knowledge of the first statement because TNTO's solicitors (Salfiti & Co.) had persuaded the court office to allow the second statement to be substituted for the first statement which was, indeed, removed from the court file. I expressed the view during argument that that was an improper procedure on the part of the solicitors and the court staff, and I adhere to that view. The claimants' solicitors and counsel, of course, had the first statement.
In his recent skeleton argument Mr. Smart commented on the contradictions in the two statements, particularly in relation to the ownership and funding of TNTO. That produced, three days ago, two further statements, one from Mlle. Hassan and the other from Mr. Salfiti (the principal of the firm acting for TNTO). What emerged from those statements, and the oral explanations that Mr. Speight Q.C. felt able to give me, can only be described as disgraceful—indeed that was Mr. Speight's own description.
According to Mlle. Hassan, and this of course has not been explored in cross-examination, she gave information to a member of Mr. Salfiti's firm, now identified as a Mr. Adnan Sabar, a trainee solicitor. There has perhaps unsurprisingly been no evidence from Mr. Sabar, but I am told he put together a statement, which is to be found at p.190 in the appeal bundle. On the face of it, it is a regular statement by
a witness with a statement of truth by Mlle. Hassan with her initials. In fact, if her recent statement is right she did not see this statement and did not initial it. If that is right then this is, on any view, a forgery. It accompanied the application to appeal, which referred to part of its contents, and which contained a statement of truth, signed by Mr. Sabar who falsely represents himself to be an assistant solicitor.
At no time, until three days ago, did Mr. Salfiti inform the court or the claimant's solicitors that the first statement was not in fact Mlle. Hassan's statement of evidence, or the reason for its withdrawal. This was, I am told, quite deliberate on his part. It was accepted now to be an error of judgment for which he apologised. It was, in my view, extraordinary conduct by a solicitor.
On that material, however, I declined to accede to either of Mr. Smart's applications. Eady J. in his reason for giving permission was that:
"There is a reasonable prospect of showing that a wrong conclusion may have been drawn as to the identity of TNTO with the Republic of Tunisia."
If he had had knowledge of the two statements by Mlle. Hassan I think it probable that he would still have given permission for the same reason. He was not, after all, dealing with the application to adduce fresh evidence.
I did not strike out the appeal since it is, on the face of it, the conduct of TNTO's solicitors, or their clerk which, although quite deplorable, is not the conduct of the client. The forgery, for what it seems to me accepted to have been, of the witness statement does not prevent the court from doing justice on the appeal. I will however refer to this aspect of the case when considering the potential weight of the new evidence.
The background to this matter is briefly this. Mr. Abu Qaoud originally (and many years ago) obtained judgment against the Republic of Tunisia after a dispute with the Arab League with whom the Republic of Tunisia is apparently connected in some way. In 1994 Master Rose gave judgment in his favour for £1,991.50p, and ordered that damages be assessed. Those were ultimately assessed in the sum of £20,225. Together with interest and costs the total due in June 2003 was £61,566.64p. That sum has not been paid. Late attempts to set aside the judgment failed and, although notice of appeal was given, the appeal apparently has been abandoned after a failure to pay £35,000 into court which was ordered as a condition of leave to appeal.
The claimant now seeks to have that sum met by TNTO as a Department of the Tunisian State. The immunity question was expressly not relied on by counsel appearing before Master Rose, it appears, on Master Rose's raising of the question
of State immunity as one would expect him to do. A belated attempt has been made to raise the question of State immunity in this appeal and I will return to that.
The claimant's case was that TNTO was in fact a Department of State and in support of that there was put before the Master a report from Dunn & Bradstreet Ltd. to the effect that TNTO was run as a Department of the Tunisian Government. Together with that there was an apparent admission by Mr. Salfiti in his witness statement that the claimant's case was factually true and there was also an almost complete failure to deny that TNTO was a Department of State in correspondence. Mr. Salfiti was repeatedly pressed to respond to the Dunn & Bradstreet report, a copy of which was sent to them, but never did so. The claimant's solicitors had tried to proceed by Tunis Air, also represented by Salfiti & Co., and Tunis Air had obtained an injunction restraining the claimant from proceeding against them. Beyond one letter claiming that TNTO were in the same position as Tunis Air, there is no statement by Salfiti & Co. that TNTO was not a Department of State until the matter came on before the Master.
The Master had ordered both parties to serve evidence for a hearing on notice, but no evidence was provided by TNTO, except Mr. Salfiti's witness statement. There was, for example, no evidence from the Tunisian Embassy, from TNTO's management or any expert evidence. It is conceded in this appeal that evidence of that kind could have been available with reasonable diligence and with disarming frankness Mr. Speight, Q.C. has said that this was due to incompetence, either on the part of TNTO or the solicitors, or both. It is in my view highly material that beyond that no explanation was given to the Master (or indeed to me) as to why such evidence was not available and placed before the Master.
Turning to Master Rose's decision, he said this at para. 5:
"The claimant's solicitors had in January 2003 written in the clearest terms….as
"I was reminded by Mr. Smart in reply,
… to the manager of TNTO, the letter of 2003, page 2 of the exhibit. The claimant's letter is in these terms:
'Since the Tunisian National Tourist Office is a Department of the Tunisian Government, we confirm we are to instruct bailiffs to attend your offices and upon your assets.'"
Paragraph 6:
"I mention that now, in August 2003, TNTO has had solicitors acting for it since January. It does seem to me to be very significant that neither nor the solicitors, nor any witness on behalf of TNTO has actually made a statement denying that the TNTO is a Department of the Tunisian Government."
Then in para. 12 in this really quite short judgment, after a fairly short hearing, the Master said this:
"Also this occurs to me, since January, when the claimant's solicitors put the solicitors for TNTO on notice about what he says about TNTO being a Department of the Government of Tunisia, there has been all this time for the opposing party or the Tunisian Republic itself, to take issue with the evidence. They have not done so. I say the Republic of Tunisia has had time to join issue. They have had this application and notice that they were subject to claims. On 27th June 2003 I endorsed directions on it, and the claimant was to notify the first defendant by (1) sending a copy of the application and form N349 to the Tunisian Embassy in London; and (2) by the means by which the writ from statement of claim were ordered to be served on the first defendant. Mr. Giles…"
I interpolate that was counsel for TNTO —
"… mentioned that he was instructed that the Ambassador himself, on behalf of the Tunisian Government, had given instructions to those who instruct him that an application was to be made...
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