Arab Monetary Fund v Hashim (No. 4)
| Jurisdiction | England & Wales |
| Date | 1992 |
| Year | 1992 |
| Court | Chancery Division |
Practice - Writ - Consolidation - Two actions consolidated - Writ in second action not served - Whether second action “pending” - Whether jurisdiction to order consolidation - Whether service of first writ empowering court to grant leave to serve concurrent writ out of jurisdiction on defendant not party to first action -
A cause or matter becomes “pending” for the purposes of R.S.C., Ord. 4, r. 9(1) as soon as the writ is issued and the court therefore has jurisdiction to entertain an application for the consolidation of two or more causes or matters even though one or more of the writs have not been served (post, p. 559D).
Where, therefore, an action in which the writ which had been served had been consolidated with an action where the writ had never been served and a defendant who was not a party to the first action applied to set aside, inter alia, a subsequent grant of leave under Ord. 11, r. 1(1)(c) for the service of a concurrent writ on him out of the jurisdiction: —
Held, dismissing the application, that the order for consolidation had been validly made and therefore, since the first writ had been served, the court had had jurisdiction to make the order under Ord. 11, r. 1(1)(c) (post, p. 559E).
The following cases are referred to in the judgment:
Foseco International Ltd.'s Patent, In re [
Helenslea, The (
Kleinwort Benson Ltd. v. Barbrak Ltd. [
Kloeckner & Co. A.G. v. Gatoil Overseas Inc. [
Sherwood v. Ray (
Strathgarry, The [
The following additional cases, supplied by courtesy of counsel, were cited in argument:
Drywood's Case (1597)
Golden Ocean Assurance Ltd. v. Martin [
Hagen, The [
Littleton's (Gilbert) Case (1600)
Mackender v. Feldia A.G. [
Monro (George) Ltd. v. American Cyanamid and Chemical Corporation [
Russell (John) & Co. Ltd. v. Cayzer Irvine & Co. Ltd. [
Schothorst and Schuitema v. Franz Dauter G.m.b.H. [
Trafalgar Tours Ltd. v. Henry [
Tyne Improvement Commissioners v. Arnement Anversois S/A [
SUMMONS
By a writ dated 10 July 1989, the plaintiff, the Arab Monetary Fund, commenced an action, 1989 A. No. 5700, against the defendants, Mohammed Mahdi Saleh Bahiralulloom, Oakwood Investment Co. Ltd., Jamma International S.A., Alia Al Wahab, Jalal Ohan Stephan and Samir Fadil Awn. On 8 December 1989 Hoffmann J. ordered that action to be consolidated with an earlier action, 1988 A. No. 9317 by the plaintiff against Jawad Mahmoud Hashim and 15 other defendants claiming, inter alia, damages for breach of fiduciary duties, breaches of contract, breaches of trust and wrongful interference with the plaintiffs' property and assets. On 15 June 1990 Hoffmann J. ordered that the writ dated 10 July 1989 be renewed for 12 months pursuant to
With the consent of the parties, judgment was given in open court.
The facts are stated in the judgment.
Daniel Serota Q.C. for the fifth defendant.
Charles Flint for the plaintiff.
29 November. Hoffmann J. read the following judgment. This is an application to set aside an order for the renewal of a writ which I made on 15 June 1990, an order giving leave for the issue of a concurrent writ for service out of the jurisdiction which Master Cholomondeley Clarke made on 14 June 1991, and the service of that writ on the applicant, Mr. Jalal Stephan. I find no grounds for setting aside either of the orders or the consequent service and dismiss the application. With the consent of the parties, I am giving this judgment in open court.
The applicant is a resident of Texas who was joined with five others as defendant in an action commenced by the Arab Monetary Fund (“A.M.F.”) by a writ dated 10 July 1989 (Ch. 1989 A. No. 5700). On 8 December 1989 I ordered this action to be consolidated with an earlier action (Ch. 1988 A. No. 9317) which the A.M.F. had commenced against Dr. Jawad Hashim and others. I shall call this “the main action” and the action to which Mr. Stephan was a party “the secondary action.” The A.M.F. is an international banking organisation set up by treaty between a number of Arab states and having its headquarters and corporate existence in Abu Dhabi. Between 1977 and 1982 Dr. Hashim was director-general of the A.M.F. and Mr. Stephan was, or from time to time acted as, finance director and head of the investments department. The A.M.F. claims that during his period of office Dr. Hashim, with the active assistance of Mr. Stephan and others, stole some US$50m. of its money. These funds are alleged to have been laundered through numbered bank accounts in Switzerland and it is said (partly on the basis of statements by Dr. Hashim) that some of the money was paid to Mr. Stephan.
On 1 January 1983, after the departure of Dr. Hashim and Mr. Stephan, Mr. Salah al Hafidh took up a post as internal auditor of the A.M.F. He carried out investigations which gave rise to a suspicion of fraud. As a result, on 31 May 1983 the new director-general, Mr. Ghobash, commissioned Ernst & Whinney to investigate. The partner in charge of the investigation reported orally to Mr. Ghobash from time to time and on 11 June 1983 prepared a draft of a preliminary report. The formal report is dated 16 September 1983.
The Ernst & Whinney report said that there was “evidence to suggest” that during the period 1 January 1979 to 30 April 1982 a substantial number of “irregular transactions” were carried out by former officers of the A.M.F. The report did not identify them but the nature...
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