Ahmad Abdel Rahman Nimer v United AL Saqer Group LLC
| Jurisdiction | England & Wales |
| Judge | Master Davison |
| Judgment Date | 18 January 2021 |
| Neutral Citation | [2021] EWHC 50 (QB) |
| Court | Queen's Bench Division |
| Docket Number | QB-2019-002345 |
| Date | 18 January 2021 |
[2021] EWHC 50 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Davison
QB-2019-002345
Mr Andrew Ayres QC and Ms Gabriella McNicholas (instructed by Bird & Bird LLP) for the Claimant
Mr John Taylor QC and Mr Christopher Langley (instructed by Hogan Lovells International LLP) for the Defendants
Hearing dates: 15, 16 & 17 December 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my reserved judgment on (a) the fifth defendant's application to stay the claim against him and (b) the other defendants' applications to set aside an order giving permission to serve proceedings on them outside the jurisdiction. Both applications have been made on the grounds of forum non conveniens. At the outset of the hearing, I rejected an application by the claimant for permission to cross-examine three of the defendants' factual witnesses and the defendants' expert witness, Dr Al Mulla. My reasons for doing so were given orally at the time. For completeness and for convenience, they are summarised in the postscript to this judgment.
The claimant is an accountant of dual Jordanian and Canadian nationality. In November 2011, when he was 49 years of age, he was appointed CEO of United Al Saqer Group LLC (‘UAS’), an Abu Dhabi conglomerate with a valuation in excess of US$8 billion. Prior to his appointment, he had worked with UAS in his capacity as a partner of Deloitte, the international accountancy firm. He was recruited by the second and fourth defendants, who are father and son and who I will refer to as HE Sheikh Mohammed and Sheikh Saif. They are respectively the chairman and vice-chairman / joint managing director of UAS. The fifth and sixth defendants are Sheikh Mohammed's sons also. The fifth defendant, Sheikh Zayed, is the other managing director and a director of UAS. The sixth defendant, Sheikh Abdalla, is a director of UAS.
As well as being the chairman of UAS, HE Sheikh Mohammed is the head of Al Qubaisat, a prominent tribe in the UAE and is, on any view, an important, well-connected and influential Emirati.
On the claimant's case, he had the benefit of a written employment contract dated 1 October 2011 countersigned by Sheikh Mohammed, which provided for consecutive 5 year fixed terms and very generous entitlements to salary and bonuses. By clause 7, it contained provisions which gave the claimant the right to receive five times his gross salary (and last annual bonus) upon early termination.
The claimant worked very closely with Sheikh Mohammed and his sons. From around 2015 relationships deteriorated. The claimant was transferred to RIC, a subsidiary corporation within UAS. He claims he was denied access to UAS's headquarters and sidelined or ‘frozen out’ of the business, ultimately signing a termination contract dated 29 June 2016 under which he received only a fraction of what was due to him under the written employment contract. He says that he was subjected to various threats and that these included denying the validity of the contract, (falsely) alleging that Sheikh Mohammed's signature on it was a forgery and threatening to instigate criminal proceedings against him whereby he would in consequence be detained or deported or both. The claimant claims that the termination contract is unenforceable pursuant to Abu Dhabi law because he did not truly consent to it and/or that it is voidable on account of duress, intimidation, and/or improper threats and pressure. He seeks compensation for the loss and damage which he has suffered, totalling in excess of AED 111,000,000 (roughly £24 million).
These proceedings were issued on 28 June 2019. The claim form was served on the fifth defendant, Sheikh Zayed, on 8 September 2019 when he was visiting London. Having served Sheikh Zayed and thereby established him as what is commonly called ‘an anchor defendant’, the claimant applied for permission to serve the other defendants out of the jurisdiction in the UAE. Permission was granted by order of Master Sullivan dated 28 February 2020 on the basis that they were ‘necessary and proper parties’. These other defendants have applied to set aside that order. They say that the court should decline jurisdiction on the same basis that the fifth defendant seeks a stay, namely that the UK is not a convenient forum for the claim and that it should be heard in Abu Dhabi.
The applications engage the three issues identified by the Privy Council in the case of Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7:
i) Is there a serious issue to be tried on the merits?
ii) Does the claimant have a good arguable case that the claim (against all defendants save the fifth defendant, who was served in England) falls within one of the gateways for service out of the jurisdiction?
iii) Is England ‘clearly or distinctly the appropriate forum for the trial of the dispute’?
The third question involves a two-stage approach. First, the court must determine the ‘natural forum’ for the dispute – the one with which it has the most real and substantial connection. Second, the court then has to consider whether, despite a foreign jurisdiction being the natural forum to resolve the dispute, England is the ‘appropriate forum’ for the trial. The burden is on the claimant to show that there are ‘special circumstances by reason of justice which require that the trial should nevertheless take place in this country’. This approach derives from the well-known case of Spiliada Maritime Corp v Cansulex Ltd [1984] 1 AC 460 and the more recent case of Cherney v Deripaska [2008] EWHC 1530 (Comm) and [2009] EWCA Civ 849.
In this case, there is no issue about questions i) and ii) above. There is also no dispute that the natural forum for the dispute is Abu Dhabi. The witnesses, other than the claimant, are all based in Abu Dhabi. (The claimant is based in Quebec, Canada.) The relevant events took place in Abu Dhabi. The contract is governed by Abu Dhabi law. The first language of the witnesses is Arabic and there are disputes about the interpretation and nuances of conversations conducted in Arabic. For these reasons, Abu Dhabi is indeed overwhelmingly the most natural forum for the dispute.
The issue between the parties is whether there are ‘special circumstances by reason of justice’ requiring that the case is tried here. The claimant says that those circumstances exist because (a) he has ‘well-founded reasons’ why he will not bring his claim in Abu Dhabi and (b) he has shown ‘on cogent evidence’ that there is a ‘real risk’ that he will not get a fair trial there. These words derive from a line of authority culminating most recently in Cherney v Deripaska; see in particular paragraph 29 of the judgment of Waller LJ:
‘[The court] has to make an evaluation taking account of all factors as to whether the claimant (despite [another forum] being the “natural forum”) has discharged the burden of showing that England is “clearly the proper forum”. That involves (1) assessing whether on the evidence a trial would be likely to take place in [the natural forum]; (2) if not, because [the claimant] says he will not go there, whether [the claimant] has shown that he has well-founded reasons why he will not go to [the natural forum] and (3) whether in any event [the claimant] has shown on cogent evidence that there is a real risk he will not get a fair trial there.’ (My italics.)
The evidence has focused on these two questions. The authorities already mentioned and some further ones provide a useful framework for the approach that I must take. But before coming to them, I will set out, in a condensed form, the propositions and evidence upon which the claimant relied.
The claimant's case
Fears for personal safety
The claimant's case had two broad strands.
Firstly, he pointed to the threats made against him in the context of his forced demotion and the termination of his employment. Further threats were made when he instructed lawyers in Abu Dhabi to enforce the settlement agreement (albeit that he now repudiates that agreement as having been entered into under duress). The general tenor of these threats was that he was ‘not equal to’ the defendants in terms of power, status or wealth and it would be better for him if he toed the line. He said that he was subjected to threats of harm, that these extended to his family (of whom he was very protective) and that his wife's health was affected. He said that his lawyer in the UAE, Mr Al Otoom, was also threatened. He said that he believed the defendants to be well capable of resorting to unlawful conduct, including the use of force, because they had, on his evidence, directly contemplated the kidnapping and rendition from Canada of Mr Jamal Shehadeh; (see further below).
Secondly, the claimant maintained that the defendants had threatened to instigate criminal proceedings against him for forging Sheikh Mohammed's signature on his employment contract. This carried with it the corresponding risk of detention in prison or deportation. As with the more general threats, the claimant said that he had reason to take this seriously because of the examples of the cases of Mr Hussein and Mr Al Qubaisi; (see also further below). In relation to this part of his case, the claimant said that the defendants had been and...
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