BB and Others v Doha Bank Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lord Justice Males,Lord Justice Lewison |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWCA Civ 253 |
| Docket Number | Case No: CA-2022-001018 |
| Court | Court of Appeal (Civil Division) |
and
[2023] EWCA Civ 253
Lord Justice Lewison
Lord Justice Males
and
Lady Justice Andrews
Case No: CA-2022-001018
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MR JUSTICE SWIFT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hannah Brown KC, Sandy Phipps and Veena Srirangam (instructed by Eversheds Sutherland International LLP) for the Appellant
Ben Emmerson KC and Kabir Bhalla (instructed by McCue Jury & Partners) for the Respondents
Hearing date: 28 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 8 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is an appeal by Doha Bank Ltd, (“the Bank”), which is the Third Defendant to the underlying claim, against the order of Swift J granting permission to the Claimants to amend their Particulars of Claim and dismissing the Bank's application to strike out the claim. Permission to appeal was granted by Snowden LJ on 12 September 2022.
The Claimants are Syrian citizens who allege that they were forced to flee their homes in Syria permanently in consequence of the unlawful actions of a jihadist terrorist group known as the al-Nusra Front, which is said to be affiliated to al-Qaida and has been proscribed by the UN Security Council, the EU, the UK, the USA, and other States. The Claimants have been granted anonymity on the basis that they have a genuine fear that they and/or their families will be at grave risk of serious harm, including of death, if the fact of their involvement in the proceedings becomes public.
The First and Second Defendants (“the Al Khayyat brothers”) are Syrian/Qatari businessmen who are alleged by the Claimants to “have a history of providing financial and other support to terrorist groups operating in civil conflicts in the Middle East”.
The Bank is incorporated in Qatar and has branches and representative offices internationally, including in London.
On 30 July 2019 the Claimants issued proceedings in the High Court claiming damages for “severe physical and psychiatric injuries, destruction of property, loss of profits and forcible displacement from their homes in Syria,” on the basis that the Defendants are liable under Syrian law for the damage caused by the unlawful acts of the al-Nusra Front because (in the case of the Al Khayyat brothers) they allegedly financed, or (in the case of the Bank) it allegedly facilitated the making of payments to that organisation.
The Al Khayyat brothers have yet to be served with the proceedings, and therefore have taken no active part in them to date. There is an order extending the time for service pending the outcome of a jurisdictional challenge by the Bank (which is the anchor defendant).
The Bank was served with the proceedings on 29 August 2019, but it has yet to file a defence to the claim because of what Swift J fairly described as its “lengthy and somewhat Byzantine history”. It is unnecessary to rehearse that history fully for the purposes of this appeal: it is set out in some detail in paragraphs 3 to 14 of Swift J's judgment [2022] EWHC 904 (QB). Suffice it to say that the Bank applied for the proceedings to be stayed on grounds of forum non conveniens. The Claimants served evidence in opposition to that application. This included a witness statement from a man claiming to be a former Syrian intelligence officer (“S”), who alleged that he had first-hand knowledge of what he described as the “pivotal role” played by the Al Khayyat brothers in “enabling Qatar to direct many millions of dollars to opposition groups in Syria, including Islamic extremist and terrorist organisations such as the al-Nusra Front”.
S also claimed that various attempts had been made by various “representatives of the State of Qatar” including State officials and members of the Qatari ruling family, to interfere with the proceedings and to stop him from giving evidence. He claims that the reasons for these attempts to preclude him from giving evidence are: “because I know that they know the truth about their financing and ideological support for the al-Nusra Front in Syria, truth which, in public, they have always denied.”
The Claimants' case, as originally pleaded, alleged in paragraph 4 that:
“The al-Nusra Front received funds from the Al Khayyat brothers, including through accounts held by them and/or entities associated with them at Doha Bank and/or through other accounts held at Doha Bank, in the circumstances set out below, as a result of which the al-Nusra Front was able to finance its operations and cause loss and damage to the Claimants”.
It was pleaded in paragraph 33 that “the Al Khayyat brothers are closely connected to the State of Qatar”, and in paragraph 34 that “the Al Khayyat brothers' involvement in the financing of terrorism, which is the subject of this claim, has been, at least in part, both motivated and enabled by their connections to the State of Qatar”. Paragraphs 45 to 48 set out details of the alleged funding. Paragraph 47(1) asserted that the Al Khayyat brothers received weekly bank transfers exceeding US$8.3 million in value from various sources “including the office of the Emir of Qatar” into their personal accounts at the Bank. Paragraph 47(2) and (4) pleaded that this money was then transferred to accounts with banks in Turkey and withdrawn by the brothers in cash or withdrawn by cheque in Lebanon “for the ultimate benefit of the al Nusra Front”. It was pleaded in paragraph 47(3) that two named Bank officials were aware of the transfers but objected to the freezing of the relevant accounts. Paragraph 47(5) pleaded that the money brought into Turkey was then forwarded at the Turkish border to a named individual who purchased weapons and ammunition for terrorist groups operating in Syria.
Paragraphs 58 to 60 averred that the Bank was aware or ought reasonably to have been aware of the fact that the funds which passed through its accounts were used to make payments to fund terrorist activities, and set out the facts on which the Claimants relied in support of that allegation.
Whilst the office of the Emir of Qatar was specifically alleged to be the source of part of the funds allegedly used to finance terrorist activities, and it was pleaded elsewhere (e.g. in paras 45, 53, 54, 57(4) and 57(5)) that “Qatari intelligence and military personnel” were involved in the facilitation of the Al Khayyat brothers' passage into Turkey and/or transfers of funds to the al-Nusra Front or affiliated groups in cash or from Turkish banks, the Particulars of Claim contained no clear allegation that the Defendants or any of them were acting on behalf of the Qatari State in allegedly financing the al-Nusra Front. However, that was the clear inference to be drawn from the evidence of S, who spoke in terms of the Al Khayyat brothers “enabling Qatar” to divert many millions of dollars to terrorist organisations. Indeed on S's evidence, the involvement of the Qatari State provided the motivation for the alleged attempts by State agents to pervert the course of justice which are set out in his witness statement.
In July 2021, the Claimants indicated that they wished to amend the Particulars of Claim to plead expressly that the Bank had facilitated a conspiracy between the Al Khayyat brothers and “members of the Qatari ruling elite” to fund the al-Nusra Front (“the State Conspiracy case”). They relied upon evidence from a man named Basel Hashwah, which sought to implicate senior figures in the Qatari Government and the Engineering Office of the Emiri Diwan (the Emir's “supreme executive authority”) in the alleged terrorist financing.
Mr Hashwah's evidence, in summary, was that it was “inconceivable” that the alleged terrorist financing could have taken place without the express prior approval of the former Prime Minister and Foreign Minister of Qatar; that the former Head of State Security and head of the Private Engineering Office of the Emiri Diwan were at the “epicentre” of the financing; and that the Private Office of the Emiri Diwan set up construction projects as a “front” whose “principal purpose was to set up a conduit for funnelling cash to Syria.”
The proposed introduction of the State Conspiracy case by an amendment which the Bank indicated it would not oppose, was countered by the Bank's contention that the court lacked jurisdiction to hear a claim put on that basis, on grounds of state immunity. That argument subsequently succeeded in very similar proceedings brought by different Syrian claimants, including the aforementioned Mr Hashwah, to which the Bank was also a defendant (“the Hashwah proceedings”): see the decision of HH Judge Pelling KC (sitting as a judge of the High Court) in Hashwah and others v Qatar National Bank and others [2022] EWHC 2242 (Comm). The claimants in the Hashwah proceedings were refused permission to appeal to this court against that decision. We were told by leading counsel for the Claimants, Mr Emmerson KC, that those claimants have issued fresh proceedings pursuing a claim on an alternative basis, which have been transferred to the King's Bench Division.
In the present case, the Bank's decision to raise the issue of state immunity caused the Claimants to reconsider their position. In August 2021 they withdrew the proposed amendment, but they did so in circumstances that led to considerable uncertainty as to the case which the Defendants had to meet, notwithstanding that the Claimants said they were reverting to their case as originally pleaded...
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