BB and Others v Moutaz Al Khayyat
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] EWHC 1499 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-002712 |
| Date | 04 June 2021 |
[2021] EWHC 1499 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: QB-2019-002712
Ben Emmerson QC (instructed by McCue & Partners) for the Claimants
Hannah Brown QC (instructed by Eversheds Sutherland) for the Defendant
Hearing dates: 24 May 2021
Approved Judgment
Introduction
There were two applications listed before me for hearing on 24 May 2021:
(a) the application of the Third Defendant (“Doha Bank”) dated 18 May 2021 to strike out or exclude certain evidence served by the Claimants for the purposes of a hearing listed in October 2021 to determine Doha Bank's application for a stay of proceedings on the ground of forum non conveniens (“the stay hearing”) and for certain associated directions; and
(b) the Claimants' application dated 18 May 2021 for permission pursuant to CPR 32.7 to cross examine three individuals whose statements have been served by the Third Defendant for the purposes of the jurisdiction hearing.
The hearing on 24 May 2021 took place remotely, using a video-conferencing platform. It appeared on the cause list as a public hearing. An email address was given through which anyone who wished to observe it could obtain the link. Members of the press attended.
There was a third application, made orally at the hearing by Ben Emmerson QC on behalf of four of the Claimants, to withdraw their claims with no order as to costs.
This judgment deals with all three applications.
Doha Bank's application for the hearing to be held in private
Hannah Brown QC, for Doha Bank, applied pursuant to CPR 39.2 for a direction that the hearing of these three applications be held in private. I heard submissions on that question in private at the start of the hearing.
Ms Brown said that the evidence before the Court contained highly damaging and defamatory allegations against various individuals who are not before the Court and – if the forum non conveniens submission succeeded – would never have the opportunity to respond in the context of these proceedings. Given that an important part of the purpose of this hearing was to determine Doha Bank's application to strike out or exclude parts of that evidence, it was appropriate for the application to be held in private. Ms Brown observed that, at the last hearing before HHJ Coe QC, defamatory allegations had been made about efforts to interfere in these proceedings; these allegations had been widely reported; but many of them did not feature in the evidence which the Claimant was subsequently permitted to file.
Mr Emmerson did not actively oppose the application to hold the hearing in private, but did draw my attention to some relevant legal principles.
The public hearing then resumed and I read concise and cogent written submissions from Jess Glass of the Press Association, arguing that the principle of open justice required that the hearing be in public.
I refused Ms Brown's application for the hearing to be held in private. I gave short reasons at the time but indicated that I would give fuller reasons in writing. I have included these at the end of this judgment. The hearing then proceeded in public.
The claim
The eight Claimants are Syrian citizens. They live in the Netherlands. They benefit from an anonymity order made on 29 July 2019. On 30 July 2019, they commenced a claim in this Court for damages in respect of loss which they claim to have suffered in Syria as a result of the unlawful actions of a terrorist group, the Al Nusra Front (“ANF”), which is active there.
The First and Second Defendants, “the Al Khayyat brothers”, are international businessmen based in Qatar. The Claimants say that they are closely connected to the State of Qatar and that, as part of a plan to which the State was party, they provided finances to the ANF by causing large sums of money to be withdrawn in Turkey and/or Lebanon and carried over the border to Syria. These finances are said to have been passed to ANF, facilitating their terrorist activities, including those which caused harm to the Claimants.
The Al-Khayyat brothers are alleged to have channelled these funds through their accounts, or accounts of entities associated with them, held with Doha Bank.
The Claimants say that the Defendants knew, or ought to have known, that the funds were intended for the ANF and that Doha Bank, in allowing such funds to pass through their accounts, acted contrary to international and Syrian law.
The claim has been served on Doha Bank. It is common ground that, until the morning of the hearing before me on 24 May 2021, it had not been served on the Al Khayyat brothers, although they are aware of it and indeed have made witness statements which have been filed by Doha Bank. I was told at the hearing by Mr Emmerson that, on that very morning, the claim had been served on a firm of solicitors representing the Al Khayyat brothers. Ms Brown submitted that the firm in question was not authorised to accept service, so the Al Khayyat brothers had still not been validly served. This dispute is not among those I have to determine.
Doha Bank's application for a stay
Doha Bank submits that it is domiciled in Qatar, where it has its headquarters; that England and Wales is not the appropriate forum for resolution of this claim and that Qatar is clearly and distinctly more appropriate. It points to the fact that none of the parties is domiciled or resident in England or Wales; none of the wrongful acts alleged took place here; none of the loss alleged was suffered here; all its witnesses are likely to be based in Qatar and speak Arabic; relevant documents are likely to be in Qatar; some of them will be protected by confidentiality obligations imposed by Qatar law; the Qatari courts are well-placed to apply Syrian law (which is likely to be the applicable law); and Qatar has a fully functioning and modern court system, which is well able to try the dispute.
For these reasons, on 24 December 2019, Doha Bank applied for a stay of the proceedings on the ground of forum non conveniens.
The Claimants do not accept that Qatar would be an appropriate forum. They submit that, given that the allegations are against individuals with a close connection to the State of Qatar and allege the complicity of that State in terrorism, it would be impossible for the courts of Qatar fairly to try the claim.
The stay hearing was listed with a time estimate of 3 days between 16 and 19 November 2020.
The Claimants' application to adjourn the stay hearing in November 2020
A week before the listing window, the Claimants applied for an adjournment. That application came before HHJ Coe QC, sitting as a High Court Judge, on 11 November 2020. She explained in detail the circumstances in which the application to adjourn had been made and her reasons for granting it: see [2020] EWHC 3567 (QB). The following summary will suffice for present purposes.
Mr Emmerson told the judge that, in the period running up to the adjournment hearing, there had been a conspiracy, committed by agents of the State of Qatar, to pervert the course of justice and “derail” these proceedings. At [6] of her judgment, the judge described the alleged conspiracy as involving “significant, prolonged and determined attempts to identify the claimants; attempts to bribe and offer other inducements to people to supply information about the case and about the names of the claimants; approaches being made to a consultant with the claimants' solicitors; approaches to a translator and, more recently; approaches to an individual who [had] provided a statement setting out the basis for some of the allegations which are made not only against the defendants but also against the Qatari state and Qatari officials generally”.
The judge considered that these allegations were pertinent to the stay application, because they would be relevant to the ability of the courts of Qatar to try the claim fairly. She therefore reluctantly took the view that the stay hearing should be adjourned.
In an order dated 11 November 2020 (“the Order”), the judge gave directions for the Claimants to file evidence by 8 January 2021 “limited to events said to have occurred prior to 9.00 am on 11 November 2020”. They were also given liberty to apply for permission to serve additional evidence “regarding events of a different character, or a different order of magnitude, from the events said to have occurred prior to 9.00 am on 11 November 2020”.
The Claimants' evidence
In January 2021, pursuant to the Order, the Claimants served a number of witness statements, with exhibits, from: Majed Saleh; Anas Idress; Roduan Kharoub; Wael Elkhaldy; Arthur Johan Willem De Leeuw; Basel Hashwah; and Matthew Jury (the Claimants' new solicitor). Taken together, this evidence covers a very wide range of subjects and travels far beyond the alleged attempt to interfere with these proceedings. Much of it relates to things said to have been done by the Al Khayyat brothers and others on behalf of the State of Qatar many years before the proceedings began.
Doha Bank's application to strike out or exclude this evidence
Submissions for Doha Bank
For Doha Bank, Ms Brown submitted as follows. The Order, read in context, permitted the Claimants to file further evidence of the alleged attempts to interfere with the proceedings taking place between 9 October 2020 (the date on which Doha Bank filed evidence in response to the Claimants' evidence for the jurisdiction hearing) and 9 am on 11 November 2020. The vast majority of the Claimants' evidence related to: the substantive merits of the claim; attempts to interfere with the...
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