His Excellency Sheikh Khalid Bin Ahmed Al Hamed v His Excellency Sheikh Hamed Bin Ahmed Al Hamed

Hearing date: 26 September 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Stephen Houseman KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT

Mr Stephen Houseman KC:

INTRODUCTION

By these actions commenced together on 13 March 2024 the claimants seek:

(a) an order for recognition and enforcement at common law of a judgment of the Abu Dhabi Court of Cassation dated 22 February 2022 (“ADCC Judgment”) pursuant to CPR Part 7; and

(b) a domestic freezing injunction in support of foreign proceedings under s.25 of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”) pursuant to CPR Part 8.

I refer to these as the “Enforcement Action” and “Interim Relief Claim”.

The ADCC Judgment relates to the estate of the late Sheikh Ahmed Bin Hamed Butti Al Hamed who died in November 2012. It concerns a long-running dispute between his four sons involving litigation in the British Virgin Islands and California as well as civil and criminal proceedings in the United Arab Emirates.

The claimants are — or, in the case of the third claimant, represent the estate of — three of the four brothers. The first defendant is the youngest sibling. It is said that he directly or indirectly owns the second defendant (“AFIC”). He is accused of misappropriating over USD 1 billion, through AFIC or by other means, from their late father or his legal estate. The allegations include serious dishonesty with an international footprint involving offshore corporate structures.

On 13 March 2024 at a hearing conducted without notice, Mr Justice Picken gave the claimants permission to serve the defendants out of the jurisdiction pursuant to CPR 6.36/6.37. Such permission was based on PD6B 3.1(10) for the Enforcement Action and PD6B 3.1(5) for the Interim Relief Claim. Picken J also granted a domestic freezing injunction up to the value of AED 650 million pursuant to s.25 CJJA (“Freezing Order”). The Freezing Order was continued at the return date on 25 March 2024.

By their application notice dated 16 May 2024 the defendants seek to challenge jurisdiction and set aside service permission in respect of the Enforcement Action. Their principal argument is that the ADCC Judgment is not a final and conclusive judgment for a definite sum of money in favour of the claimants, such that this Court could not enforce it as a matter of principle or public policy. They dispute whether England is the proper place for enforcement in the absence of any executable domestic assets and in the context of pending foreign enforcement actions. Additionally, they criticise aspects of the presentation of the without notice application by or on behalf of the claimants.

There is no application to set aside the Freezing Order. The defendants do not challenge jurisdiction in respect of the Interim Relief Claim.

Both sides have been permitted to rely upon expert evidence of UAE law, in so far as it represents the law of Abu Dhabi, as to the status and effect of the ADCC Judgment. I have considered such evidence on the basis of submissions, so far as necessary to determine the present application.

RELEVANT BACKGROUND

The procedural backdrop is complex and need not be summarised. The defendants observe that a 95-page document described as a “ set of summaries of all the various proceedings” was exhibited by the claimants as part of their supporting evidence at the without notice hearing in March. It is not said to be inaccurate as a summary, but its size is invoked as a theme if not specific ground of alleged unfair presentation.

A month or so after the death of the sheikh, a so-called Limitation of Inheritance was decreed by a court in Abu Dhabi in accordance with Sharia principles. The legal estate was divided into 72 shares which were allocated amongst six heirs, namely his widow (9 shares), four sons (14 shares each) and daughter (7 shares). According to the claimants, each of the sons thereby became entitled to a 19.44% share in the value of the legal estate once administered according to law.

The proceedings that led to the ADCC Judgment were commenced in the Abu Dhabi Court of First instance (Case No.439/2018) in December 2018 by the two surviving older brothers (who I refer to for convenience as “the Brothers”) against, amongst others, the first defendant (“Sheikh Hamed”) and AFIC. There was no counterclaim seeking payment in the other direction. Various other parties were named on both sides of those civil proceedings. My summary concentrates on the current protagonists in the interests of simplicity.

The first instance court entered a monetary judgment on 29 September 2020 pursuant to the report of a court-appointed expert committee. The Brothers appealed to the Abu Dhabi Court of Appeal on the issue of AFIC's joint liability, whilst Sheikh Hamed and AFIC cross-appealed on liability and quantum. The appeal decision given on 29 November 2020 dismissed the appeal and allowed the cross-appeal in part.

Sheikh Hamed and AFIC then appealed to the Abu Dhabi Court of Cassation (“ADCC”). This is the highest non-federal court with jurisdiction over civil claims in Abu Dhabi. The Brothers successfully cross-appealed in respect of their own dismissed appeal concerning joint liability.

The ADCC Judgment was given on 22 February 2022. It is in Arabic and has been translated for the purposes of these proceedings. The translation runs to 17 pages, including 11 pages of substantive text in small font and compact format. The claimants say that it ordered the following amounts to be paid to them:

(a) AED 879,126,156 (which is about £186 million) plus interest to be paid jointly by Sheikh Hamed and AFIC to each of them according to their “ legitimate share” in the estate of their deceased father, i.e. 19.44% each of the total amount;

(b) AED 327,504 plus interest to be paid by Sheikh Hamed to each of them in the same share or proportion, representing sums withdrawn from their late father's bank account following his death; and

(c) AED 300,000 by way of compensation to be paid jointly by Sheikh Hamed and AFIC to each of them.

The dispositive section at the end of the ADCC Judgment deals separately with the two distinct appeals by reference to their respective appeal reference numbers: No.586/2020 and No.594/2020. The two appeal reference numbers may be mixed up in this summary. It is suggested that this dispositive wording is ambiguous or confused as to whether the relevant amounts are to be paid to the Brothers or to Sheikh Hamed and AFIC. This is said notwithstanding the fact that the only claim for payment was by the Brothers and AFIC had no “ legitimate share” in the testamentary estate.

There has been and could be no further appeal from the ADCC Judgment. There is no stay of execution of the judgment debt in Abu Dhabi. Under local law it became enforceable on and constitutes res judicata as from the date it was issued.

The Brothers subsequently obtained an execution order for the judgment debt, as it stood following the first-tier appeal decision, in the local execution court. That sum was reduced following an execution appeal brought by Sheikh Hamed to reflect the amount of the judgment debt stated in the meantime in the ADCC Judgment. As to this:

(a) The written judgment of the execution appeal court in July 2023 (“EAC Judgment”) contains a quoted extract from the dispositive section of the ADCC Judgment. In translation this extract says “ the Appellants” as compared with “ the appellees” in the translated version of the ADCC Judgment prepared and exhibited by the claimants. There is also reference to a “ material mistake” in the appeal reference numbering in the dispositive section of the ADCC Judgment, which did not inhibit or preclude execution according to local laws.

(b) The premise of such execution appeal and the terms of its outcome contradict the point now advanced by the defendants to the effect that the ADCC Judgment erroneously ordered the Brothers to pay the relevant sums. Neither Sheikh Hamed nor AFIC has attempted to enforce a judgment debt in their favour pursuant to this purported interpretation of the ADCC Judgment.

On 16 March 2022 Sheikh Hamed and AFIC issued a petition asking the Court of Cassation to reconsider its final monetary judgment. This petition was rejected on 18 August 2022. On 14 November 2022 they issued a further so-called ‘petition for review’ in relation to the ADCC Judgment. That was rejected on 14 December 2022. The following may be noted in this context:

(a) None of the criticisms of the ADCC Judgment now made in resistance to the Enforcement Action featured in either of the petitions pursued by the judgment debtors in Abu Dhabi during 2022 (together, “ADCC Petitions”).

(b) On the contrary, the premise of both petitions was that the ADCC Judgment imposed a payment...