HRH Prince Khaled Bin Sultan Bin Abdulaziz Al Saud v Ronald William Gibbs
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 30 March 2022 |
| Neutral Citation | [2022] EWHC 706 (Comm) |
| Docket Number | Claim No CL-L-2021-000009 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 706 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice. Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Richard Salter QC
Sitting as a Deputy Judge of the High Court
Claim No CL-L-2021-000009
Mr Simon Atrill and Mr Samuel Rabinowitz (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) appeared for the Claimants
Mr Matthew Parker QC (instructed by Clyde & Co LLP) appeared for the Defendants
Hearing date: 11 March 2022
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.
Mr Salter QC:
Introduction
This is an application by the claimants under CPR Part 18, seeking further information. It is supported by the fourth witness statement of the claimants' solicitor, Mr Khaled Khatoun. The first defendant (“ Mr Gibbs”) has made his fourth witness statement in answer. At the hearing before me on Friday 11 March 2022, the claimants were represented by Mr Simon Atrill and Mr Samuel Rabinowitz. The defendants were represented by Mr Matthew Parker QC.
The background to the application
The background to this application, in brief, is as follows. Mr Gibbs retired as a partner in Linklaters in 2006. In May 2006 he entered into a written consultancy agreement with the first claimant (“ HRH Prince Khaled”). In about 2011, HRH Prince Khaled transferred USD 25m to an account with Credit Suisse (“ the Credit Suisse Account”). The Credit Suisse Account was opened in the name of HRH Prince Khaled's sister, the second claimant (“ HRH Princess Deema”), but was to be managed by Mr Gibbs under a power of attorney. The funds in the Credit Suisse Account were subsequently invested by Mr Gibbs in various ways.
HRH Prince Khaled and Mr Gibbs entered into a written Settlement Agreement dated 2 December 2013 under which Mr Gibbs' consultancy agreement terminated on 31 December 2013. According to the claimants, in 2012 and 2013 the claimants' representatives (Mr Salih Kholaifi and General Ayed) asked Mr Gibbs to arrange to transfer the management of the funds remaining in the account and the investments that had been purchased with the transferred funds to Mr Kholaifi: but Mr Gibbs did not do so.
On 18 April 2018, Mr Gibbs entered into a written settlement agreement with Mr Kholaifi, acting on behalf of HRH Princess Deema (“ the April 2018 Settlement Agreement”). There are disputes as to the legal effect (if any) of that document, but (again in very broad summary) its terms stated that Mr Kholaifi would arrange for a letter signed by HRH Princess Deema to be sent to Mr Gibbs instructing him to liquidate the portfolio of investments listed in the “Summary of Investor Position as at 19.01.2018” appended to the April 2018 Settlement Agreement (“ the 2018 Investor Summary”) and to pay the proceeds into a designated bank account, and that Mr Gibbs would comply with that instruction.
By this action, begun by a claim form issued on 8 January 2021, the claimants seek as their primary claim the various accounts and enquiries which they say are necessary in order to find out what assets now represent the USD 25m originally transferred to the Credit Suisse Account, followed by the transfer and/or payment over to them of those assets. The claimants also seek damages and/or equitable compensation and compound interest. By way of alternative claim, the claimants rely upon the April 2018 Settlement Agreement and claim damages in respect of Mr Gibbs' alleged failure to transfer or to liquidate the assets and/or to transfer the proceeds of any liquidations.
Particulars of Claim were served on 26 January 2021. On 2 February 2021, Butcher J granted a Worldwide Freezing Order over Mr Gibbs' assets. That was continued by consent on 27 April 2021.
By his Defence, served on 20 April 2021, Mr Gibbs took issue with many of the allegations in the Particulars of Claim, and relied upon the April 2018 Settlement Agreement as superseding any prior obligations. According to paragraph 3(5) of the Defence, pursuant to that agreement:
.. Mr Gibbs has not yet completed the process of liquidating investments but intends to do so as soon as reasonably practicable and to make payment to Princess Deema representing 45% of the net proceeds of the sales of the Silver Arrows Marine Group, Elysium Yacht Limited and an apartment at the Regent Hotel in Porto Montenegro ..
On 10 September 2021, the defendants issued an application for summary judgment and/or to strike out parts of the claim. On 29 October 2021 HRH Princess Deema issued an application for summary judgment on her alternative claim based on the April 2018 Settlement Agreement. The first Case Management Conference was heard by Cockerill J on 12 November 2021, who ordered (inter alia) that those two applications should be heard by the same judge over two days in May 2022 or sooner. (The applications have, in fact, now been listed to be heard on 27 and 28 April 2022.) Cockerill J adjourned for hearing after the determination of these applications a further application issued by the defendants on 2 November 2021, seeking directions for preliminary issues in relation to the governing law of the claimants' primary claim. Cockerill J also gave permission for Amended Particulars of Claim, which were served on 17 November 2021, for an Amended Defence, served on 20 December 2021, and for a Reply, served on 23 February 2022.
The RFI and the defendants' responses
The claimants first made a formal request for further information of the Defence (“ the RFI”) on 13 May 2021. The RFI comprised 35 numbered requests, the majority of which were themselves sub-divided into several individual questions.
The defendants responded on 16 July 2021. That response (which incorporated the text of the RFI) extended to just over 28 pages. It provided some information in response to the great majority of the requests in the RFI, but raised the overall objection that the RFI was not concise or properly limited in its scope. It was verified by a statement of truth, signed by Mr Gibbs.
The claimants were not satisfied with the defendants' response to the RFI. Their solicitors consequently wrote on 2 August 2021 to say that the defendants' response was:
.. a largely inadequate document. Instead of taking the opportunity to clarify your clients' opaque and evolving case, your clients have sought to hide behind a ‘General Response’ which claims that the RFI was not concise to simply avoid engaging with vast swathes of it, and thus to refuse to clarify and explain their case in fundamental respects.
The fact that the RFI was detailed does not mean it was not concise. It was necessarily detailed in circumstances where your clients' case as presently put is not only inconsistent with the contemporaneous documentation and implausible, but is also vague and ambiguous ..
.. in order to understand your clients' Defence, and in order to prepare their own claims, the Claimants need clarity on what the Defendants say happened to the monies in question, and the nature and extent of the Claimants' interest in any related assets and investments.
The defendants' solicitors responded on 8 September 2021, saying that
.. Our clients do not accept that their Further Information was “largely inadequate”. Nor were they seeking to hide behind anything. The reality is that the requests made by your clients went far beyond what is permissible pursuant to Part 18 of the Civil Procedure Rules. Your clients do not need the vast majority of the information they sought in order to understand our clients' case – which is clear from the face of our clients' Defence – or to prepare their own – which they were able to do without any difficulty without engaging in any pre-action correspondence with our clients and thus without requesting any information from our clients ..
Our clients' position is therefore that they have satisfied any obligations which might be on them in respect of your clients' Request for Further Information ..
That letter was nevertheless 5 1/2 pages long and provided at least some response to the majority of the criticisms made by the claimant's solicitors in their 2 August 2021 letter.
On 1 November 2021 the claimants' solicitors wrote to the defendants' solicitors, indicating the specific requests from the RFI which (they said) needed to be further answered for the purposes of HRH Princess Deema's application for summary judgment. The defendants' solicitors responded by letter dated 26 November 2021, saying once more that “Our clients .. have provided all further information which they are properly required and able to provide”. That letter (which was six pages long) nevertheless provided additional information in answer to the claimants' requests.
A significant amount of further information was also provided in Mr Gibbs' fourth witness statement.
The requests in issue
Only 10 of the 35 requests in the RFI are the subject of the present application. They are Requests 16 to 18, 21, 27 to 29, and 32 to 34. In his oral presentation, Mr Atrill did not press his application in respect of requests 21 and 32.
Requests concerning the 2018 Investor Summary
Request 16 concerns the assets listed...
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...If they are not met the court has no jurisdiction to make the order sought: HRH Prince Khaled Bin Abdulaziz Al Saud v Gibbs [2022] 1 W.L.R. 3082 at §35. ii) They do not relate to “ matter[s] in dispute in the proceedings” (cf. CPR r.18.1(1)). iii) They are not “ concise” (cf. PD18 §1.2). T......
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...even setting aside privilege, the request does not meet the jurisdictional threshold for CPR, Part 18, as identified in Al Saud v Gibbs [2022] 1 WLR 3082 (at [35]) since it is not strictly confined to matters necessary and proportionate to enable the Claimant to prepare its case or underst......
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