Dr Ali Mahmoud Hassan Mohamed v Mr Abdulmagid Breish
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 10 July 2019 |
| Neutral Citation | [2019] EWHC 1765 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2018-000563 |
| Date | 10 July 2019 |
[2019] EWHC 1765 (Comm)
Mr Justice Andrew Baker
Case No: CL-2018-000563
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Christopher Pymont QC and Benjamin John (instructed by Macfarlanes LLP) for the Applicant
Shaheed Fatima QC and Eesvan Krishnan (instructed by Stephenson Harwood LLP) for the First Respondent
Thomas Sprange QC and Kabir Bhalla (instructed by King & Spalding International LLP) for the Second Respondent
Felicity Toube QC (instructed by Quinn Emanuel Urquhart & Sullivan LLP) for the Third Respondent
Hearing dates: 20, 26 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 14 February 2019, as a determination of preliminary issues that had been ordered in the Applications by Dr Mahmoud issued in August 2018 seeking declaratory relief and the discharge of receiverships constituted here over certain LIA assets, I decided and by order of that date declared that:
i) the question of which body represents or has at any material time represented the executive authority and government of Libya falls to be determined, if it arises before this court, under English law; and
ii) the executive authority and government of Libya was represented on that date, and since at least 19 April 2017, by the Government of National Accord (‘the GNA’) and the Presidency Council (‘the PC’), and that is so if and insofar as relevant to and for the purpose of Article (6) of Law 13 of 1378 DP (2010) made by the then General People's Congress of Libya or for any other purpose to which the question might matter if it arises before this court in relation to the Applications.
My judgment explaining that decision (‘the February judgment’) is [2019] EWHC 306 (Comm). As part of his written submissions on consequential matters, Mr Breish sought clarification of the February judgment and, if appropriate, a further declaration. On 1 April 2019, I handed down a short further judgment (‘the April judgment’) explaining why, by order of that date, I declined at that stage to grant any further declaration: [2019] EWHC 786 (Comm).
The parties are intimately familiar with the case and with the February and April judgments. Anyone else with a need to understand this judgment should read them first.
I dealt with some other consequential matters on paper, by order dated 5 April 2019. It recited inter alia that Dr Mahmoud had confirmed that he stood on his existing amended position statement (as it was for the preliminary issue hearing) as stating his case for any final hearing of these Applications, and on that basis directed Mr Breish and Dr Hussein to file and serve position statements stating their cases for any such final hearing, following and upon the basis of the February decision, by 26 April and 10 May respectively. Mr Breish complied with that direction; Dr Hussein in substance did not, although he did serve a position statement of sorts within the time ordered.
The 5 April order directed a further hearing of the Applications, for case management, in June. This judgment follows that hearing, at which one point of substance was argued that has a significant bearing on the further case management of the Applications. However that point of substance is resolved, it was common ground between the partisan litigants (Dr Mahmoud, Mr Breish and Dr Hussein), and also the approach I favour, that the next stage in the Applications should be a hearing of further issues defined to give Dr Mahmoud the opportunity to seek to persuade the court, as he says he can, that his claim to the chairmanship of the LIA is well-founded without the need to consider every point raised between the parties that may be contentious. The proper definition of the next issues to determine – and in consequence the length of hearing and the pre-trial directions that are required – will be substantially affected by the point of substance that has been argued. There is also an application by Mr Breish for a stay of proceedings here, in view of certain developments in some legal proceedings in Libya. Any such stay would obviously affect when any next main hearing here could take place, and the court's view on whether any stay is appropriate might be influenced by the view it takes on the point of substance.
In the circumstances, the point of substance having been fully and ably argued, I propose to determine that point and settle matters of further case management on the basis of that determination, rather than leave it over to be an issue for the next substantive hearing.
The Point of Substance
As Ms Fatima QC for Mr Breish agreed, were I deciding now the point of substance arising, a convenient way of identifying and dealing with it is to consider paragraph 12.5 of the position statement Mr Breish has now served.
In the February judgment at [13], I described Dr Mahmoud's claim as to how he was installed as chairman of the LIA. Paragraph 12.5 of Mr Breish's position statement attacks Resolution 12 (so as to cut Dr Mahmoud's claim off at source), by asserting that it is “ invalid/unlawful as a matter of Libyan law because the GNA and PC was not, in May 2017 (when the Resolution was made), and is still not, the valid/lawful executive of Libya.”
Mr Pymont QC for Dr Mahmoud says that line of attack cannot work, because the effect of the ‘one voice’ doctrine under which the court has recognised and declared the GNA and PC to have been the executive authority and government of Libya since at least 19 April 2017, is that Resolution 12 cannot be challenged here on the basis of any alleged unconstitutionality of the GNA and PC as such under Libyan law. Mr Pymont submits that Mr Breish's paragraph 12.5 is a challenge of that kind. If both of his propositions are sound, paragraph 12.5 should be struck out. (For completeness, I note that the preliminary issue determination did not decide whether the GNA/PC has continued to be the Libyan government since 14 February 2019; but no party suggests that anything has changed and I shall not lengthen this judgment by repeating that temporal qualification to the declarations made in February.)
‘One Voice’
I described and applied the ‘one voice’ doctrine in the February judgment. In particular, at [37], I said this of it: “ If the sovereign, acting through her executive, chooses to recognise and treat somebody as the executive authority of a foreign state even though the constitutional law of that state would or might say otherwise, that is her prerogative. She is not bound by such considerations and it is not for the courts to second-guess her choice by reference to such considerations. Hence, for example, in Sierra Leone Telecommunications Co Limited [‘ Sierratel’], where the law of Sierra Leone governed the question of who was authorised to represent the state-owned plaintiff company, but applying that law involved identifying who was the government of Sierra Leone, that sub-question was a matter for the ‘one voice’ principle of English law …”. At [44], I explained why therefore I rejected the then submission by Mr Breish that a question of the constitutionality of the GNA and PC as the executive authority and government of Libya, as a matter of Libyan law, could arise in determining the preliminary issue.
That was also the reason, or part of the reason, why I dismissed Mr Breish's application for a further declaration upon the preliminary issues hearing: see the April judgment at [3], [8]–[9], [12].
To the extent that I referred to Mr Breish's concession (as I held it to have been) that A = B (in the algebraic form I introduced in the February judgment at [50]), matters have moved on. Dr Mahmoud does not resist the pleading and pursuit now of a contrary case, if otherwise arguable, on the ground that it would involve the withdrawal of that concession.
Leaving aside, therefore, questions of prior concessions, nonetheless it seems to me a real issue arises whether it is open to the parties to reopen the conclusions I have just referred to as to the effect of the ‘one voice’ doctrine or whether, rather, they give rise to issue estoppel. It will only be necessary to grapple finally with that, however, if, following the further argument I have now had on the point, I might be minded to take a different view.
That further argument has involved revisiting some of the authorities I referred to in the February judgment, particularly The Arantzazu Mendi, Sierratel and Gur. Mr Pymont QC also relied on Banco de Bilbao v Sancha [1938] 2 KB 176 and authorities relied on by the Court of Appeal in that case. He submitted that a central purpose of ‘one voice’ recognition is that the court will treat the acts of a foreign government so recognised as the acts of a duly constituted executive authority of the foreign state in question; so there can be no further enquiry or challenge to the actions taken by the recognised foreign government on the basis that it is not duly constituted under local law. That, he submitted, is what it means to rule under ‘one voice’ that the foreign government recognised by HMG will also be recognised by the court as the government of the foreign state. For the reasons set out below, I agree with that submission.
As Lord Atkin put it in The Arantzazu Mendi at 265, “ … there is no difference for the present purposes...
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