Commercial Bank of Dubai PSC v Mr Abdalla Juma Majid Al Sari

Hearing dates: 12, 13, 14, 15 and 18 November 2024

Draft judgment to parties: 9 December 2024

Further submissions: 10, 13, 14, 16 and 17 December 2024

Further draft judgment to the parties: 17 December 2024

Approved Judgment

This judgment was handed down remotely at 2pm on 19 December 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

This judgment addresses:

i) The Tenth Defendant's (“ D10”'s) application to set aside the order of Dias J granting the Claimants permission to serve proceedings on him out of the jurisdiction (“ the Service Out Application”)

ii) The Claimants' application for a Worldwide Freezing Order (“ WWFO”) against D10 (“ the WWFO Application”)

iii) The Seventh and Ninth Defendants' application to strike out or for summary dismissal of the Claimants' claims (“ the Summary Judgment Application”)

iv) The Claimants' application for permission to amend (“ the Amendment Application”)

This case raises a number of difficult and interesting arguments. Both junior counsel handled important parts of the case, and did so extremely well, with Ms Allsop arguing the issue estoppel/preclusion issues and Mr Trotter dealing with most of the legal argument on the Claimants' side.

Unfortunately, the 3 ¹/₂ day hearing estimate proved wholly inadequate for the matters to be determined. Even with the benefit of extended sitting days and an extra hearing day, I was left to follow up a large number of references and read the relevant parts of the 119 authorities the court was referred to, after the hearing. This has proved to be particularly challenging when moving from the general legal principles debated at the hearing to their application to the numerous different causes of action in the case, a problem exacerbated by the obscurity of the pleading, the fact that the skeletons addressed many of the issues raised very briefly, and no transcript of the hearing was available until 3 December 2024 (for the first day) and 10 December (for the second day). It became apparent that significant further time would be taken to obtain transcripts for the remaining three days (they became available on 18 December 2024), and I informed the parties that the judgment would need to be finalised before they became available, given the possibility of an appeal and the impending May 2025 trial date. It became apparent after the draft judgment had been circulated that there were certain points where the oral and written arguments had failed sufficiently to explain the issues for determination, or where an argument had been raised only orally and I had failed to address it. In some instances, there are issues which it is not possible to determine fairly without further argument. As a result, a further hearing will be necessary.

BACKGROUND

The claims arise out of long-running proceedings commenced by the First Claimant (“ the Bank”) in Sharjah in 2012 seeking to recover amounts adjudged due from the Al Sari family.

On 17 November 2014, the Bank obtained freezing order relief under s.25 of the CJJA 1982 against the First to Third Defendants and the companies who are now the Second to Fourth Claimants (“ the BVI Companies”) in support of the proceedings commenced by the Bank in Sharjah.

The Bank obtained judgment against the First to Third Defendants in Sharjah in 2016 (“ the Bank Sharjah Judgment”) in an amount exceeding £80m. It brought an action on the Bank Sharjah Judgment in the BVI in June 2017 and, on 7 June 2018, obtained summary judgment (“ the Bank BVI Judgment”).

It is the Bank's case that the Al Saris have been engaged in a protracted campaign to frustrate the enforcement of those judgments, and that they have been assisted in doing so by the Seventh to Ninth Defendants (“ the Globe Defendants”) and Mr Almheiri (“D10” and, with the Seventh and Ninth Defendants, “ the PCB Defendants”).

The BVI Companies were once owned by members of the Al Sari family, but following enforcement proceedings they are now controlled by the Bank, which holds a 100% indirect shareholding via the Fifth Claimant. The BVI Companies own London property with a value said to be of the order of £9m which is their only asset (“the Bridge Properties”)

On 19 February 2019, the BVI Court granted charging orders in the Bank's favour over the BVI Companies.

It is the Claimants' case, and I did not understand it to be suggested that this was not realistically arguable, that in March 2019 the First Defendant asked the Bank not to take enforcement steps against the Bridge Properties. That request met with a negative response.

In April 2019 the Seventh Defendant (“ Globe”) commenced proceedings against the BVI Companies in the Sharjah Courts (“ the Globe Sharjah Proceedings”) to recover amounts said to be due under a disputed transaction by which it is said that the BVI Companies are liable to Globe. The alleged liability, said to have been owed to the Ninth Defendant (“ MAS”) and assigned to Globe, is alleged to be recorded in a suite of documents referred to as the “ Globe Documents”. The Claimants allege that the Globe Documents do not record or embody a genuine transaction, but are a fraudulent device used by the Al Saris, who they say control Globe, to frustrate enforcement of the Bank Sharjah and BVI Judgments.

The documents filed in the UAE proceedings, and the various court judgments, are not always clear or consistent in terms of the arguments raised and the reason for dismissing them, and they include some points which are not relevant to the issues before me, and, for that reason, do not feature in the summary which follows.

It is the Claimants' case that the Globe Sharjah Proceedings were intentionally served on a local lawyer (Mr Ali Al Aidarous) on the BVI Companies' behalf. It is said that Mr Al Aidarous is associated with the Al Saris and was acting under a power of attorney executed while the BVI Companies were under the Al Saris' control. The Claimants allege that this was done because Mr Al Aidarous could be relied upon not to actively oppose the claim, and a quick judgment could be obtained. A defence of very limited scope was served.

While the Globe Sharjah Proceedings were in their early stages, on 27 June 2019 the Second Defendant's lawyer sent the receiver of the BVI Companies a purported tenancy agreement relating to the Bridge Properties between the BVI Companies as landlords, and certain children in the Al Sari family and the Sixth Defendant as tenants (“ the Tenancy Agreement”). The Tenancy Agreement was on particularly unfavourable terms so far as the landlords are concerned.

The Sharjah Court asked Mr Al Aidarous to evidence his authority to act on the BVI Companies' behalf. As a result, the Globe Sharjah Proceedings came to the attention of the receiver of the BVI Companies (appointed by the BVI court). He appointed new lawyers to defend them. The BVI Companies denied the validity of the transaction sued on and the genuineness of the Globe Documents. The First Instance Sharjah Court commissioned a report from experts who held that the Globe Documents did not establish Globe's claim, that the claim was “nothing but fraud” and the Globe Documents “fabricated”. The First Instance Sharjah Court upheld the experts' conclusions and dismissed the claim on 17 March 2020 (“ the Globe First Instance Judgment”)

On 31 January 2021, the Sixth Defendant obtained an interim injunction from the Court of First Instance of the Dubai International Finance Centre (“ DIFC”) to prevent the BVI Companies from dealing with the Bridge Properties in breach of the Tenancy Agreement, and the Sixth Defendant also issued proceedings in the DIFC for specific performance of the Tenancy Agreement (“ the DIFC Tenancy Proceedings”).

Globe appealed the Globe First Instance Judgment to the Sharjah Court of Appeal, arguing that the experts had exceeded their mandate in concluding that the Globe Documents were fabricated and asking the Sharjah Court of Appeal to appoint new experts. The Sharjah Court of Appeal appointed a panel of three experts “to determine the contractual relationship between the parties” and to answer various other questions. The experts produced a report describing the terms and legal effects of the Globe Documents, and identifying what were said to be acts of performance of the transactions, but which did not in terms address the issue of whether they were fabricated. On 6 April 2021, the Sharjah Court of Appeal overturned the Globe First Insurance Judgment (“ the First Globe Appeal Judgment”) and gave judgment for the sum said to be due.

By a petition issued on 21 July 2021, the Bank and the BVI Companies asked the Sharjah Court of Appeal to suspend and cancel the First Globe Appeal Judgment. These challenges were brought under Articles 169(1) and (6) of the Civil Procedure Law (as then in...