HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice McFarlane,Lord Justice McCombe |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1106 |
| Docket Number | Case No: A2/2013/3145 + A2/2013/3214 + A2/2013/3213 + A2/2013/3212 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2014 |
[2014] EWCA Civ 1106
Lady Justice Arden
Lord Justice McFarlane
and
Lord Justice McCombe
Case No: A2/2013/3145
+ A2/2013/3430
+ A2/2013/3214
+ A2/2013/3213
+ A2/2013/3212
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, CHANCERY DIVISION
(Companies Court)
Vos, Norris and Mann JJ
10850OF2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justin Fenwick QC and Mr Daniel Saoul (instructed by Irwin Mitchell LLP) for the Appellant
Mr Daniel Lightman (instructed by Howard Kennedy FSI) for the Respondents
Hearing dates: Wednesday 21 st May 2014
Nature of these appeals and proceedings
This judgment states my conclusions on consolidated appeals by HRH Prince Abdulaziz Bin Mishal bin Abdulaziz Al Saud (referred to below as Prince Abdulaziz) against a series of related interim orders made in the course of these proceedings by Vos, Norris and Mann JJ in the period July to November 2013. In a nutshell, these orders — requiring the Prince's personal signature to two witness statements concerning disclosure, rejecting an application to vary that order, imposing an unless order for non-compliance, entering judgment and refusing relief against sanctions — have resulted in a judgment against the Prince for some $7m (I will use the round figure of $7m below). The Prince complains that these orders were wrongly made.
A brief description of the proceedings will suffice to give the context. Apex Global Management Limited ("Apex") and Global Torch Limited ("Global Torch") (Seychelles and British Virgin Islands companies respectively) set up an English company, Fi Call Limited ("Fi Call"), to develop and market internet telecommunications technology. Mr Almhairat, the second respondent, a Jordanian, is Apex's sole shareholder. Global Torch is owned by Prince Abdulaziz, Mr Abu-Ayshih and a Mr Sabha, who is not a party to these proceedings. The joint venturers have fallen out and have launched cross-petitions under the court's statutory jurisdiction to give relief against the unfairly prejudicial conduct of a company's affairs in sections 994 to 996 of the Companies Act 2006 ("CA 2006"). Both seek share purchase orders as well as pecuniary and declaratory relief. The respondents to Global Torch's petition are Apex and Mr Almhairat ("the Apex parties"). The respondents to Apex's petition are Global Torch, Prince Abdulaziz, Mr Abu-Ayshih and HRH Prince Mishal bin Abdulaziz Al Saud ("Prince Mishal") ("the Global Torch parties"). Fi Call is joined as a nominal respondent in both cases.
Both joint venturers make allegations of serious misconduct of the affairs of Fi Call. For the purposes of this judgment, only the general flavour is needed. The Apex parties contend that the Global Torch Parties have caused Fi Call to be involved in money laundering and of having run a campaign of threats and other unlawful conduct against them. The Global Torch parties have alleged that Mr Almhairat misappropriated monies belonging to Fi Call. The Global Torch parties challenge the authenticity of various emails and conversation tapes, which it says have been forged.
The Apex parties say that Global Torch is a corporate vehicle of Prince Abdulaziz. Prince Abdulaziz has also acted as Chairman of Fi Call but he is said not to be a lawfully appointed director of Fi Call. The Apex parties say that Prince Abdulaziz has acted as a de facto and/or shadow director of Fi Call. Mr Abu-Ayshih is an adviser to Prince Abdulaziz and is a director of and a shareholder in Global Torch, and a lawfully appointed director of Fi Call. Prince Mishal is the father of Prince Abdulaziz, and both Princes are members of the House of Saud.
Order of Vos J made on 31 July 2013
The cause of the Prince's difficulties is the order of Vos J on 31 July 2013. It led to a domino effect on his defence. The two relevant paragraphs of the order (I shall refer to these paragraphs as "the personal signature order") provided that the parties, excluding Fi Call but including Prince Abdulaziz, should personally sign certain statements required to be made in connection with disclosure in these proceedings. Under paragraph 14 of the order, the statement had to provide details about Fi Call's servers, relevant email accounts and mobile devices provided by Fi Call to the best of their knowledge, information and belief. Paragraph 15 required the statement to provide details of email accounts and mobile devices not provided by Fi Call which relevant to the proceedings. Vos J indicated that he would make this order on the first day of a case management conference held on 30 to 31 July 2013.
A major plank of Prince Abdulaziz's case on these appeals is that, as a member of the Saudi Royal Family, he is bound by a "protocol" or social convention binding on all such members, under which he is prevented from taking part in litigation personally or from signing court documents.
On the day following Vos J's ruling, the Prince's representatives asked Vos J to reconsider his order (which had not then been drawn) but Vos J declined to do so. Vos J asked whether the Prince would be a witness. He was told that he might be. He held that Prince Abdulaziz must be treated like every other party. Vos J did not give a judgment on this point but he stated in the course of argument:
"I am afraid that they are a party to these proceedings and I am afraid their protocols are valid in Saudi Arabia but not here. I cannot have this as a precedent for the future of this litigation. Prince Abdulaziz is a party to this litigation. He must be treated like every other party. The rules of the court must apply to him as to any other party. If he chooses not to make them applicable, then whatever consequences are appropriate will follow. I am sure that the matter will be carefully considered and I am sure that common sense will be exercised by the other parties to these proceedings. But the order must be in the form that would usually be made."
Summary of my conclusion on the appeals
In my judgment, for the reasons giving below, Vos J made no reviewable error in making the personal signature order as vigorously submitted to us on Prince Abdulaziz's behalf. The principal challenge made on these appeals, therefore, in my judgment fails, though I will need to deal with a number of other arguments as I set out my reasons below. Before that, I will continue with the narrative of the essential facts before taking each order which is challenged in turn.
Events and orders following the order of Vos J
The dates for compliance with paragraphs 14 and 15 of the order of Vos J were 6 and 12 August 2013 respectively. A witness statement was then served on Prince Abdulaziz's behalf but was signed not by him but by Mr Abu-Ayshih, Prince Abdulaziz's trusted adviser. In addition it did not deal with mobile devices.
Apex then applied for an "unless" order against Prince Abdulaziz on the grounds of his non-compliance with Vos J's order in the form of an order striking out his defence unless he complied with it within a set period. On 9 September 2013 Norris J made an order ("the unless order") giving Prince Abdulaziz until 4 p.m. on 18 September 2013 to comply and directing that, in default, his defence be struck out and that he be debarred from defending the Apex petition. Norris J refused permission to appeal. This is the second order which Prince Abdulaziz appeals and he was disbarred from defending Apex's section 994 petition.
Prince Abdulaziz did not submit a witness statement signed by him personally and as a consequence on 18 September 2013 his defence was struck out.
On 4 October 2013 Apex applied for the court to enter judgment under CPR 3.5 against Prince Abdulaziz in the sum of $5.984 million plus interest. Apex's amended statement of case in the proceedings contained two prayers: (1) a counterclaim made in response to the Global Torch section 994 petition, and (2) relief sought on Apex's own section 994 petition. The judgment in default was part of the relief sought in (1). In order to make its application, Apex abandoned certain heads of relief without prejudice to the relief which it sought under (1).
CPR 3.5 provides:
"(1) This rule applies where—
(a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and
(b) the party against whom the order was made does not comply with it.
(2) A party may obtain judgment with costs by filing a request for judgment if—
(a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and
(b) where the party wishing to obtain judgment is the claimant, the claim is for—
(i) a specified amount of money; …"
By order dated 14 October 2013 ("the judgment"), Norris J entered judgment for Apex against Prince Abdulaziz for $7,734,934.79 plus costs pursuant to CPR 3.5(2). This is the third order which Prince Abdulaziz appeals.
Prince Abdulaziz then applied to Mann J to vary the personal signature order. (He also applied for relief from sanctions but there was no time to deal with that application at the same time and Mann J adjourned it and dealt with it on 29 November 2013). He sought the permission of Mann J to file the statements required by paragraphs 14 and 15 of the personal signature order by providing the requisite information in a witness statement signed by his solicitor, Mr Jeremy Marshall, partner...
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