Asad Ali Meerza and Others v Tareq Al Baho and Others
| Jurisdiction | England & Wales |
| Judge | Peter Smith J |
| Judgment Date | 03 November 2015 |
| Neutral Citation | [2015] EWHC 3154 (Ch) |
| Docket Number | Case No: HC201100065 |
| Court | Chancery Division |
| Date | 03 November 2015 |
[2015] EWHC 3154 (Ch)
The Honourable Mr Justice Peter Smith
Case No: HC201100065
HC2015000031 & HC2015002330
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Romie Tager QC & Ian Clarke (instructed by Hughmans) for the Claimants
Adrian Davies (instructed by Wilson Barca LLP) for the First, Second and Third Defendants
Jawdat Khurshid (instructed by SC Andrew LLP) for the Fifth and Sixth Defendants
INTRODUCTION
This is the hearing of a Case Management Conference ("CMC") in the above actions.
In addition there was an application issued on 21st September 2015 by the Claimants. By that application they sought the following relief:-
1) Permission to amend the Particulars of Claim in claim no. HC2011000065 ("the First Action") in the form of the draft Amended Consolidated Particulars of Claim in claim no. HC2015002330 ("the Third Action");
2) Further or alternatively for an order that those draft Amended Consolidated Particulars of Claim in the Third Action stand as the Amended Consolidated Particulars of Claim in the First and Third Actions and in claim no. HC201500031 ("the Second Action"); and
3) Summary judgment in those actions in respect of the claims by the Third Claimant ("Sheikha Hind") against the First Defendant ("Mr Al Baho") the Second Defendant ("Mr Pinnell") and/or the Fourth Defendant ("BCP") including to the extent necessary permission to make this application pursuant to CPR 24.4 (1);
4) Alternatively Default Judgment pursuant to CPR 12 against BCP and/or Mr Al Baho in claim no. HC2015002330:
5) Payment out of the court of the sum of £78,418 lodged in Court by Sheikha Hind on 19th March 2015 as security for costs of Mr Al Baho, Mr Pinnell and BCP; and
6) Dismissal of the applications brought (variously) by Mr Al Baho the Second Defendant ("Sheikha Salem") Mr Pinnell and BCP.
Not to be outdone the following applications on behalf of various of the Defendants were before me:-
1) Application by Mr Al Baho and Sheikha Saleem dated 1st July 2011 to strike out Sheikha Hind's claim for non compliance with CPR Part 19 (3);
2) By Mr Al Baho, Sheikha Salem and Mr Pinnell dated 7th September 2011 seeking declaration that Sheikha Hind is not entitled to represent the Estate of the late Sheikh Salem Hamoud Al-Jaber Al-Sabah ("Sheikh Salem");
3) By the Third Claimant dated 7th September 2011 that if CPR 19 (7) applied she should be appointed to represent Sheikh Salem's estate ("the Estate").
4) By Sheikha Salem dated 8th December 2011 to strike out Sheikha Hind's claim under CPR Part 3.4 or for reverse Summary Judgment under CPR Part 24 for permission to bring contempt proceedings against all Claimants;
5) By Mr Al Baho and Sheikha Salem dated 14th February 2012 for permission to amend their Defence and to strike out Sheikha Hind's claim under CPR 3.3 or reverse Summary Judgment under CPR Part 24; and
6) By Mr Al Baho dated 20th May 2014 to strike out Sheikha Hind's claim.
In addition the Defendants sought to raise matters as regards further consideration of whatever was left after the numerous actions.
SURPRISE APPLICATION OF MR AL BAHO
On the second day of the hearing before me Mr Al Baho made a further application which he wished to be considered immediately at the hearing. He provided a draft of an application to the Claimants' Counsel late in the evening of the first day. That was supported by a skeleton argument prepared by Mr Davies who appears for Mr Al Baho, Sheikha Salem and Mr Pinnell. In both those documents Mr Al Baho sought an order that Sheikha Hind be required to be put to her election whether to proceed with her proceedings against the First Defendant in England or in Kuwait. He also sought an order that she should pay Mr Al Baho's costs of the application.
That arose in the following circumstances. During the course of the hearing on day one it emerged that Sheikha Hind had commenced proceedings in May 2015 against Mr Al Baho in Kuwait. Those proceedings at the very least duplicated some of the relief being sought against him in actions 1–3 in this Division. Mr Al Baho had issued his own proceedings in Kuwait against Sheikha Hind for defamation. I was informed by Mr Tager QC (who with Mr Clarke appears for the Claimants) during the hearing that the Kuwaiti Court had struck those proceedings out. Similar proceedings in this jurisdiction had been discontinued by Mr Al Baho in 2013.
Nevertheless during day one of the hearing before me there was a debate about the fact that it would be quite wrong for Sheikha Hind to pursue Mr Al Baho simultaneously in both jurisdictions. I suggested to Mr Tager QC that she should be put to her election and if she chose to continue in this jurisdiction she should undertake to stay the proceedings in Kuwait or have them dismissed. Quite reasonably Mr Tager QC asked for time to obtain instructions from her overnight. Overnight a draft application notice and supporting skeleton was prepared as I have said. Mr Tager QC told me at the start of the hearing on day 2 that he had obtained instructions and was able to undertake either to have the Kuwaiti proceedings stayed or dismissed and was willing to submit to such an undertaking being included in an order in this action.
That ought to have been the end of the matter. However shortly before the Court sat on the second day Mr Al Baho issued an application and served it on the Third Claimant shortly before the day's proceedings began. At the time it was treated by her legal team as a sealed version of the earlier draft application. It was only during Mr Davies' submissions that it became apparent to them that it sought an entirely different form of relief. It sought an order "pursuant to CPR 11.1 (1) the First Defendant disputes jurisdiction to bring the 2015 proceedings in England which had been issued by Sheikha Hind as there were parallel proceedings already on foot in Kuwait". It also sought an order that the earlier proceedings (i.e. the Third action) should be stayed pending the outcome of the proceedings in Kuwait.
This had not been foreshadowed in any part of the hearing or in any prior correspondence.
This application Mr Tager QC submitted was an abuse of the process and was opportunistic. It was he said a tactical move (one of the many he submitted) by Mr Al Baho to avoid liability in this action.
It is fair to say that Mr Davies in the light of his prior brief submissions on day 2 in respect of Sheikha Hind's application against Mr Al Baho for Summary Judgment (which had begun on the first day of he hearing and resumed on the second day) would have expected that she would succeed on that application. The above application was an attempt to forestall such a judgment. The Third Action had been issued on 5th June 2015 and the document called the Revised (July 2015) Draft/Amended/Consolidated Particulars of Claim was dated 30th July. Mr Al Baho provided Hughmans the Claimants' solicitors with a purported acknowledgement of intention to defend the day before the hearing. That was substantially out of time and therefore Mr Al Baho required permission to file that acknowledgment. He gave no explanation for the delay.
The acknowledgment had two boxes completed namely that they intended to defend the action and dispute the jurisdiction. The purpose of this tactical charade was so that it could be said that the application was based on the contention that the Kuwaiti action and the proceedings in Kuwait were earlier and the suitable forum conveniens for the resolution of the disputes between the parties. I pause to point out that the location in Kuwait would not be very convenient for Mr Pinnell or BCP. There is also a doubt about whether Mr Al Baho was resident in Kuwait or England or both. This could only be a successful plea if (1) Mr Al Baho had contested the jurisdiction in this country and (2) the Kuwaiti proceedings were the first proceedings. It is true that the Kuwaiti proceedings pre dated the Third Action which sought to be the consolidated action in this case.
However the position before that is somewhat different. In the earlier sets of proceedings Mr Al Baho filed acknowledgments to defend and sought to defend with no reservation as to jurisdiction. He plainly waived jurisdiction as regards those previous actions. Yet by his unannounced application he sought a stay of those proceedings. There is in my view no basis for staying those proceedings.
In my judgment Mr Tager QC is right when he submit that this application by Mr Al Baho is an abuse of the process and is purely tactical. He has been content to submit to the jurisdiction in this Court prior to his Counsel's undoubted perception in the morning of day 2 that he was likely to have a judgment against him under CPR 24.
Further he participated in the action before serving the acknowledgement and in particular responded to the Summary Judgment application. In such actions in my view he submitted to the jurisdiction. Mr Tager QC provided me with a decision of Sir Andrew Morritt the then Chancellor in Global Media International...
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