Jaldhi Mideast DMCC v Al Ghurair Resources LLC
| Jurisdiction | England & Wales |
| Judge | Christopher Hancock |
| Judgment Date | 21 July 2023 |
| Neutral Citation | [2023] EWHC 1889 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2017-000077 |
[2023] EWHC 1889 (Comm)
Christopher Hancock KC
Case No: CL-2017-000077
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Rory Brown (instructed by GSC Solicitors LLP) for the Applicant
Emmet Coldrick (instructed by Clyde & Co LLP) for the Respondent
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on Friday 21 July 2023.
Christopher Hancock KC:
Introduction and background .
The relevant background is as follows.
(1) These proceedings were commenced in February 2017. The Claimant's claim against the First Defendant (“ AGR”) related to losses arising out of the arrest, in December 2016 in Malaysia, of the vessel “Captain Silver”.
(2) Initially, AGR was represented by London solicitors, Campbell Johnston Clark Limited. However, they came off the record in August 2018. AGR has not taken any further active part in the proceedings.
(3) On 6 September 2018, judgment in default of defence was granted by Phillips J. The default judgment was in respect of liability only. The Claimant applied for damages to be assessed. On 9 July 2019, Moulder J ordered that AGR is liable to pay the Claimant damages for breach of contract in the sums of US$774,908.04 and GB£33,157.47 (“the Judgment Debt”). The Judgment Debt remains unpaid.
(4) With a view to identifying assets against which the Judgment Debt could be enforced, the Claimant applied for an order requiring AGR to give information as to its assets. On 22 October 2019, Bryan J ordered AGR to provide information about its assets, including all of its bank accounts and all of its assets worldwide over US$10,000 in value (“the 22 October 2019 Order”).
(5) That order was served on AGR by email on 23 October 2019 to the al-ghurair.com email addresses listed in paragraph 1 of Teare J's order of 16 May 2019, which had granted permission to serve documents in the proceedings by email. The first address in the list was an email address of the Second Defendant (“ Mr Al Ghurair”).
(6) Initially, no response was received. But on 28 November 2019, Mr Al Ghurair wrote to the Claimant's solicitors, Clyde & Co, by email from the address of his office manager, Salma Abdulmajeed (“the 28 November 2019 Letter”).
(7) The 28 November 2019 Letter stated, amongst other things: “… I want to put this on record that I absolutely agree to pay the final awarded amount of USD 774,908.04 and GBP 33,157.47 but unilaterally I will not be able to pay/settle from AGR as I am not the only authorized banking signatory. The other authorized banking signatures for AGR are Abdul Aziz Al Ghurair (Chairman Executive Committee, AGI) and Ibrhaim Al Ghurair (General Manager, AGROP & Acting CEO, AGI), who will have to sign to effect/make the awarded payment”. Mr Al Ghurair enclosed various letters from him to the other authorized banking signatories, to which he said he had received no response.
(8) On 3 December 2019, the Asset Disclosure Order was made by Bryan J. It was in similar terms to the 23 October 2019 Order, but this time bearing a penal notice.
(9) The same day, 3 December 2019, Clyde & Co sent the Asset Disclosure Order to AGR by email, by way of information only, not service. A covering letter, marked for Mr Al Ghurair's attention, urged AGR and Mr Al Ghurair to take legal advice and drew attention to the severe penal consequences, including imprisonment and asset seizure, if the order was not complied with. No response was received.
(10) On 25 January 2020, pursuant to CPR 81.8(2) and as an alternative to personal service, Andrew Baker J granted permission to serve the Asset Disclosure on AGR and Mr Al Ghurair by email. The Asset Disclosure Order was served accordingly on 28 January 2020.
(11) On 30 January 2020, Clyde & Co LLP were copied in to an email, from Ms Abdulmajeed's email address but signed “Essa Al Ghurair, GM, Al Ghurair Resources LLC”. It attached a letter from AGR, signed by Mr Al Ghurair as General Manager of AGR, to Al Ghurair Investment LLC (“AGI”) (“the 30 January 2020 Letter”). The letter requested that Abdul Aziz Al Ghurair sign bank transfer mandates providing for the payment by AGR of the Judgment Debt to the Claimant.
(12) The 30 January 2020 Letter enclosed a letter dated 8 September 2015 from AGR to “All Relationship Banks” giving instructions as to authorised signatories. This appears to indicate that Mr Al Ghurair cannot authorise payments without the co-signature of Abdul Aziz Al Ghurair or Ibrahim Al Ghurair.
(13) Clyde & Co sent a brief response to the 30 January 2020 Letter the same day. No response was received. The Judgment Debt remained unpaid and the information and disclosure required by the Asset Disclosure Order was not provided.
(14) On 23 September 2021, the Claimant issued a Contempt Application against AGR and Mr Al Ghurair, which sought an order for committal against Mr Al Ghurair. By order dated 29 September 2021, as an alternative to personal service, Foxton J granted permission to serve the Contempt Application on AGR and Mr Al Ghurair by email.
(15) The Contempt Application and supporting evidence were served on AGR and Mr Al Ghurair by email on 1 October 2021. No response was received.
(16) On 3 December 2021, the Contempt Application was listed for hearing on 14 June 2022. On 8 December 2021, the Claimant gave notice of the hearing date to AGR and Mr Al Ghurair and asked whether they would agree to seek an earlier hearing date. No substantive response was received.
(17) Shortly before the hearing on 14 June 2022, there were communications between the Claimant's owner, Mr Vira Chand Bothra, and Mr Al Ghurair. In those circumstances, at the first oral hearing on 14 June 2022, at which neither AGR nor Mr Al Ghurair appeared or were represented, Knowles J adjourned the hearing of the Contempt Application.
Mr Bothra met with Mr Al Ghurair in Dubai on 20 June 2022. At that meeting Mr Al Ghurair informed him that he was keen to pay the judgment debt owed to Jaldhi, but that his brothers, Abdul Aziz Al Ghurair and Ibrahim Al Ghurair, were not cooperating. He also said that AGR's non-compliance with the asset disclosure order was on account of the non-cooperation of his brothers.
The adjourned Contempt Application was heard by Knowles J on 15 July 2022. AGR and Mr Al Ghurair failed to attend the hearing and were not represented. Knowles J found AGR and Mr Al Ghurair to be in contempt of court. He imposed a fine of £100,000 on AGR and a sentence of 12 months' imprisonment on Mr Al Ghurair. In the course of his judgment, Knowles J said as follows:
“24. The Court will pass sentence or impose sanctions in circumstances where it will remain open to the LLC and Mr Ghurair to approach the Court and to ask the court to purge the contempt or to return to the question of sentence or sanction in light of any compliance with the court's order for asset disclosure albeit late compliance. The court will consider such an application on the part of the LLC or Mr Ghurair on its merits at any point in time that it is made. I wish there to be no misunderstanding given the clarity in the present case of awareness of obligation that already exists, but is very much in the interests of the LLC and Mr Ghurair to approach the Court soon, very soon, if either or both wishes to invite the court to return to the matter in the way that I have indicated.
25. The sentence or sanctions that I impose in the present case will apply but the court can return to them…
… 28. So far as Mr Ghurair is concerned, the Court imposes a sentence of imprisonment of 12 months. I have been asked to consider and I do in any event, as is my duty, the question of whether that sentence should be suspended or not. There is no material in the present case that would cause me to suspend that sentence. That is a different matter, I emphasise, to whether the sentence is adjusted, reduced or suspended in the context of an approach by Mr Ghurair, especially in good time, asking the court to accept late compliance and asking the court to purge his contempt.
29. I have taken into consideration what was described by the claimant through Mr Coldrick as the arguable mitigation in the case. That was the term used to refer to the wish of Mr Ghurair that the judgment debt be paid and the difficulty he has in achieving that without cooperation as he says from one or more other people. I do not regard that as arguable mitigation, with respect, and indeed it focusses on the question of payment of the judgment debt. I see nothing that has stopped Mr Ghurair from himself causing the LLC through himself to provide details of asset disclosure. It was always and still is open to him to say that there is a limit to what he knows but he has not said anything at all.”
Paragraph 4 of the Order of Knowles J provided as follows:
“Liberty to apply. Without prejudice to the generality of the foregoing:
(a) The Defendants may apply under CPR r.81.10 to discharge this Order.
(b) The Defendants may apply for discharge from the sentences imposed by this Order.”
The fine has not been paid, Mr Al Ghurair has not served his prison sentence and no disclosure of AGR's assets has been given. As far as the Claimant is aware, Mr Al Ghurair has remained out of the jurisdiction.
In August 2022, Mr Al Ghurair instructed English solicitors, GSC Solicitors LLP (“GSC”) and on 1 September 2022 he issued the applications that are now before this Court.
The applications are supported by Mr Al Ghurair's...
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