Asturion Foundation v Aljawharah Bint Ibrahim Abdulaziz Alibrahim
| Jurisdiction | England & Wales |
| Judge | Mr Justice Adam Johnson |
| Judgment Date | 26 March 2024 |
| Neutral Citation | [2024] EWHC 757 (Ch) |
| Year | 2024 |
| Court | Chancery Division |
| Docket Number | Case No: HC-2015-001414 |
[2024] EWHC 757 (Ch)
Mr Justice Adam Johnson
Case No: HC-2015-001414
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
PROPERTY, TRUSTS AND PROBATE (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
David Mumford KC and James Kinman (instructed by Bryan Cave Leighton Paisner LLP (BCLP)) for the Claimant
Rupert Reed KC Simon Atkinson (instructed by Simmons & Simmons LLP) for the Defendant
Hearing date: 26 th March 2024
Tuesday, 26 March 2024
( 15:48pm)
Judgment by Mr Justice Adam Johnson
I have to give judgment on a number of matters arising from my earlier decision in these proceedings.
Permission to Appeal
The first point is whether to grant permission to appeal. I have determined that I will refuse permission.
This was a case in which the parties, and more particularly their experts, offered views as to the effects of Liechtenstein law which were entirely polarised on the key issues in the case. Those issues were as to (1) the proper purposes of the Claimant Foundation, a Liechtenstein body, and (2) the internal competencies under Liechtenstein law of a board member of the Foundation, namely Maître Assaly. Embedded within these key issues were a large number of sub-issues on which again the experts held largely polarised positions.
In the end, having listened to detailed cross-examination of the experts, I came to the clear view that I preferred the evidence of the Defendant's expert, Dr Bosch. His view, which I found entirely persuasive, was that (1) the purposes of the Foundation were sufficiently pliable to permit the Founder the ability to direct dispositions of Foundation assets during his lifetime, and (2) the Foundation was structured in a manner designed to confer decision-making and procedural competence, as far as possible, on Maître Assaly, as the Founder's longstanding and trusted adviser.
It seems to me that this was an exercise in evaluation of the type referenced by the Privy Council in its recent decision in Perry v Lopag Trust Reg [2023] UKPC 16, [2023] 1 WLR 3494 at [14]. Moreover, it was an exercise of evaluation which depended principally, if not entirely, on consideration of the written and oral evidence of the experts and was, therefore, at that end of the spectrum of cases on the application of foreign law which is most closely akin to evaluations involving determinations of fact. Further, it was an evaluation conducted in an area of foreign law, the Liechtenstein law of foundations, which has no parallel in English law and which is, therefore, effectively alien to English lawyers but in which Dr Bosch is a recognised and well-renowned expert. It seems to me that the Court was entirely justified in placing confidence in his expertise.
The Grounds of Appeal are by and large an attempt to revive many of the same points dealt with at trial and to persuade me that, on proper analysis, I should have preferred the views of Dr Walser and not those of Dr Bosch. These are almost all points which have already been expressly considered and rejected in my Judgment. Insofar as there are points which were not expressly referenced in my judgment, they did not have to be. As Lord Hodge pointed out, again at [14] of the Perry decision: “ … Not all the matters which have influenced the judge in forming a view on which evidence to prefer will always be recorded in any detail in a judgment or can be ascertained from reading a transcript of the proceedings.”
It is true, as Ground 1 of the Grounds of Appeal indicates, that certain English law questions arose for consideration as to the scope of the section 26 of the Land Registration Act 2002. However, those were subsidiary points, not strictly arising given my findings on Liechtenstein law, and the comments made about section 26 in my Judgment are strictly obiter. I therefore do not see that as providing proper justification for an appeal.
Bearing in mind all those points, I do not see any real prospect of my overall evaluation being overturned on appeal and see no other compelling reason why there should be an appeal.
Permission to appeal is therefore refused but on terms that the Claimant will have until 30 April to file an Appellant's Notice with the Court of Appeal.
Stay Pending Appeal
The next question is whether there should be a stay pending appeal. This question arises because the Foundation as Claimant has lodged a Notice of pending land action on the Land Register, which presently operates as an inhibition on a sale or disposition of the property at the heart of these proceedings, known as Kenstead Hall. I am satisfied that, absent any appeal, there is no good reason for that Notice remaining in place and consider it should therefore be vacated, either under the machinery in section 4 of the Land Registration Act 2002 or by way of exercise of the Court's general jurisdiction.
Mr Mumford KC, though, has instructions to seek permission to appeal, as I have indicated, and so he seeks a stay. It seems to me clear that he should be entitled to one until the appeal is concluded by whatever means. I think the reason is a simple one, which is that the balance of justice and convenience between the parties requires it. One need only look at the competing alternatives. If there is no stay, but there is an appeal by the Foundation which is ultimately successful, then the position of the Foundation may be irremediably damaged in the meantime if Kenstead Hall is sold or transferred by the Princess and the proprietary interest claimed by the Foundation is, therefore, violated.
On the other hand, if there is a stay, but the Princess later prevails on appeal, it is difficult to see that she will have been prejudiced in the meantime. She will still have Kenstead Hall. It is true that she will not have been able to do anything with it in the meantime, but there is nothing to suggest that she either intends or wishes to. One might, therefore, equally well say that there is no need for a stay. But it seems to me that if there is any doubt, it should be resolved in favour of maintaining the status quo.
I will, therefore, make an Order for a stay with the effect that the present Notice will remain in place for the time being. If the Princess wishes in due course to persuade the Court of Appeal to vary that Order, if it grants permission to appeal, she will be at liberty to do so.
Costs
The next question or set of questions concerns costs. A number of points arise in connection with the costs of the proceedings. I start with some brief background.
This has been a very long-running action. The claim was issued, I understand, about nine years ago. The costs of the Princess, the Defendant, are considerable; expressed in round figures, they come to about £6.6 million. The action was a claim by the Foundation, Asturion Foundation, to seek to recover title to an English property, Kenstead Hall, which was transferred to the Princess in 2011 by Maître Assaly, who at the time was a member of the board of the Foundation, as I have mentioned.
In the end, I determined that in effecting the transfer, Maître Assaly was acting within the purposes of the Foundation and acting within the scope of his internal competencies. I thus resolved, in favour of the Princess, what seemed to me the two primary issues in the case.
The Princess, though, also had a back-up case, in case she was wrong on the primary issues of purpose and as to the scope of Maître Assaly's competence and authority. She thus sought to rely on the operation of certain principles of Liechtenstein law, referenced principally in Article 187a of the Liechtenstein Civil Code, which are concerned with the representative authority of corporate officers and agents. She also sought to rely on the English law doctrine of ostensible authority.
Given my primary findings, these points were not relevant to the overall outcome, but I said in my judgment that if they had been relevant, I would have found in favour of the Foundation, and so any contravention of the Foundation's purpose or any lack of proper authority on the part of Maître Assaly could not have been cured by reference either to Article 187a or to the English law doctrine of ostensible authority.
The Foundation itself also had certain secondary and indeed tertiary claims advanced on the footing that, even if legal title to Kenstead Hall had been transferred to the Princess, it was able either to rescind the transfer of title or, if not, then advance other personal claims against the Princess in unjust enrichment and/or for damages for knowing receipt arising from the circumstances in which the transfer had taken place.
I held that on the facts these secondary and tertiary claims failed also, although they prompted some debate on certain legal issues relating principally to matters such as choice of law and the proper scope of section 26 of the Land Registration Act...
To continue reading
Request your trial