Apex Global Management Ltd (Petitioner) v Fi Call Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Vos |
| Judgment Date | 19 March 2013 |
| Neutral Citation | [2013] EWHC 587 (Ch) |
| Docket Number | Case No: 10850/2011 |
| Court | Chancery Division |
| Date | 19 March 2013 |
[2013] EWHC 587 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Vos
Case No: 10850/2011
Mr Timothy Otty QC, Mr Mark Warby QC, Ms Emily Neill and Ms Rosa Zaffuto (instructed by Clifford Chance LLP) for the 3 rd and 5 th Respondents
Mr Robert Howe QC, Mr Daniel Lightman, Ms Shaheed Fatima, and Mr Paul Adams (instructed by HowardKennedyFsi LLP) for Apex Global Management Limited
Hearing dates: 22 nd and 23 rd January 2013, and 5 th March 2013
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
Apex Global Management Limited ("Apex" or the "Petitioner") is a company incorporated in the Seychelles owned and controlled by Mr Faisal Abdel Hafiz Almhairat, a Jordanian businessman ("Mr Almhairat").
Global Torch Limited is a company incorporated in the British Virgin Islands ("Global Torch"). The shares in Global Torch are held as to 50% by HRH Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud, the 3 rd Respondent ("Prince Abdulaziz" or the "3 rd Respondent"), and as to 25% by Mr Emad Mahmoud Ahmed Abu-Ayshih, the 4 th Respondent ("Mr Abu-Ayshih" or the "4 th Respondent"), and as to 25% by Mr Yasin Sabha, a Jordanian lawyer.
HRH Prince Mishal bin Abdulaziz Al Saud, the 5 th Respondent ("Prince Mishal" or the "5 th Respondent"), is the father of Prince Abdulaziz and the half-brother of the King of Saudi Arabia, Custodian of the Two Holy Mosques King Abdullah bin Abdulaziz Al Saud ("King Abdullah"). Prince Mishal was born in 1926 as the 14 th son of the late King Abdulaziz bin Abdulralunan Al Faisal Al-Saud ("King Abdulaziz").
Apex and Global Torch each hold shares in the 1 st Respondent, Fi Call Limited (the "Company", "Fi Call" or the "1 st Respondent") which was incorporated in England under the Companies Act 2006. Their shareholdings in the Company are the subject of two hotly contested petitions, both presented under section 994 of the Companies Act 2006 in December 2011 (referred to respectively as "Apex's petition" and "Global Torch's petition").
Prince Abdulaziz and Prince Mishal (together the "Princes") and Mr Abu-Ayshih have challenged the jurisdiction of the English court in relation to Apex's petition. Those challenges have taken a rather tortuous path. There was a three-day hearing in December 2012 before Morgan J in which all that was argued was the Respondents' application for the proceedings to be held in private. The remaining jurisdiction issues will be determined, if necessary, after I have decided this application. This application raises the deceptively simple question of whether the Princes are entitled to sovereign immunity under section 20(1) of the State Immunity Act 1978 (the "SIA"), bearing in mind the provisions of article 31 of schedule 1 to the Diplomatic Privileges Act 1964 (the " DPA").
Perhaps surprisingly, the final hearings of both Global Torch's petition and Apex's petition have been fixed for hearing in January 2014. There is, therefore, an element of urgency, since it will be necessary to know the identity of the Respondents to Apex's petition in good time to enable the parties to prepare for the final hearings. Moreover, appeals have been threatened by both sides on all issues.
It was agreed on all sides that this hearing should be in public, but that no detailed reference should be made in open court to the allegations in Apex's petition. Moreover I was invited to make, and did make at the start of the hearing, a temporary order restricting access to the court documents under Part 31.22 of the CPR. I did not wish to pre-empt the outcome of Morgan J's detailed consideration of the privacy application, to which I shall refer later in this judgment.
Chronological background
On 23 rd October 2009, the Company was incorporated in England under the Companies Act 2006.
On 6 th November 2009, the Company, Global Torch, Apex and Mr Almhairat entered into a shareholders' agreement, which was expressed to be governed by English law and whereby the parties submitted to the non-exclusive jurisdiction of the English court (the "Shareholders' Agreement").
On 15 th July 2010, the Economist magazine published an article indicating that Prince Mishal was a close confidant of King Abdullah, and that at least 5,000 people hold Princely rank in the ruling Al-Saud family in Saudi Arabia.
On 2 nd December 2011, Global Torch's petition was issued under section 994 against Apex, Mr Almhairat, and the Company seeking various orders in relation to shares and alleged misappropriations, and an order that Apex, Mr Almhairat or the Company should purchase Global Torch's shares in the Company at a price to be determined by the court.
On 12 th December 2011, Apex's petition was issued under section 994 against the Respondents seeking an order that the 1 st to 5 th Respondents should be ordered to purchase Apex's shares in the Company at a fair and proper valuation.
On 9 th February 2012, Apex issued an application notice seeking the Court's permission to serve Apex's petition on each of the 2 nd to 5 th Respondents outside the jurisdiction on the grounds that the Shareholders' Agreement and a share sale agreement dated 29 th March 2011 were governed by English law and jurisdiction and/or that it was brought under an enactment namely section 994 of the Companies Act 2006 which allowed it to be brought.
On 14 th February 2012, Mrs Registrar Barber granted Apex permission on paper under CPR Rule 6.36 to serve Apex's petition out of the jurisdiction on each of the 2 nd to 5 th Respondents.
On 24 th February 2012, Mr Registrar Baister made a further order granting Apex permission under CPR Rule 6.36 to serve Apex's petition outside the jurisdiction on each of the 2 nd to 5 th Respondents, and giving those Respondents liberty to apply to vary or set aside that permission under CPR Part 23.10.
On 15 th May 2012, each of the Princes issued application notices (dated in error 15 th May 2011) disputing the jurisdiction of the Court on various grounds including that they had "state, sovereign, and/or diplomatic immunity or privilege from jurisdiction of the Courts of the United Kingdom" under section 1 of the SIA and/or by virtue of being a diplomatic agent claimed under the DPA, and under article 31 of schedule 1 (referred to in error as Schedule 2) to the DPA. The application notices also sought orders (a) that the Court had no jurisdiction and/or would not exercise jurisdiction over the Princes, (b) discharging the order granting permission to serve the proceedings outside the jurisdiction on the Princes, and (c) that service of Apex's Petition was of no effect as against the Princes.
On 21 st June 2012, the 4 th Respondent issued an application notice (dated in error 21 st June 2011) seeking an order that the Court had no jurisdiction over the 4 th Respondent, and seeking to set aside the permission to serve outside the jurisdiction.
On 12 th July 2012, Global Torch served its defence to Apex's petition.
On 6 th December 2012, the 2 nd to 5 th Respondents issued applications seeking orders that the hearings then listed for 17 th December 2012 should be heard in private.
On 23 rd November 2012, Ambassador Mohammed bin Nawaf Al Saud, the Ambassador for the Kingdom of Saudi Arabia in London wrote to the Princes' solicitors in relation to their status (the "Ambassador's letter"). The precise terms of the letter are set out hereafter in the section on the evidence.
Between the 19 th and 21 st December 2012, Morgan J heard a number of applications concerning the privacy of these proceedings including an application by the 2 nd to 5 th Respondents pursuant to CPR rules 39.2(3)(a) and/or (g) that the hearings of certain applications in Apex's petition be in private, save insofar as pure issues of law in relation to questions of sovereign, state and/or diplomatic immunity are raised and so that those issues of law may be heard in public. The applications which were sought to be the subject of a private hearing are: (1) the applications by Prince Abdulaziz and Prince Mishal for a determination that each of them had sovereign, state and diplomatic immunity and/or a determination that the court had no jurisdiction in relation to them in particular because the case against each of them has no reasonable prospect of success; (2) the application by Mr Abu-Ayshih for a determination in relation to him that the court had no jurisdiction in particular because the case against him has no reasonable prospect of success; and (3) the applications of the Apex parties for orders that: (a) Global Torch give particulars of the allegations of fraud, dishonesty, unlawful conduct and commercial impropriety against Mr Almhairat; (b) the two petitions be tried together; and (c) there be preliminary issues in the two petitions.
On 22 nd and 23 rd January 2013, the first two days of argument took place in relation to the applications before me. I adjourned the hearing so that I could seek the assistance of the Secretary of State for Foreign and Commonwealth Affairs (the "Secretary of State") as to the status of the Princes.
On 24 th January 2013, I wrote to the Secretary of State seeking his assistance and/or certificate under section 4 of the DPA or in the exercise of his other powers. The details of my letter are set out hereafter.
On 12 th February 2013,...
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