Masood and Others v Zahoor and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PETER SMITH,Mr Justice Peter Smith |
| Judgment Date | 14 May 2008 |
| Neutral Citation | [2008] EWHC 328 (Ch),[2008] EWHC 1034 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC04C01331,Claim No HC04C01331 |
| Date | 14 May 2008 |
[2008] EWHC 1034 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Peter Smith
Case No: HC04C01331
Mr R de Lacy QC and Mr L Harris (instructed by CJ Jones) for the Claimants
Mr A Trace QC and Mr J Aldridge (instructed by Hogan & Hartson) for the First to Fifth Defendants
Mr C Harris (instructed by Stephenson Harwood) for the Sixth Defendant
Hearing dates: 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29 February and 4, 5, 6, 7, 11, 12 March 2008
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.
Peter Smith J :
INTRODUCTION
This judgment arises out of the trial that took place between 12th February and 12th March 2008. During that trial I heard evidence from 3 principal witnesses namely the First Claimant Sohail Masood (“SM”) the First Defendant Mohammad Zahoor (“MZ”) and the Sixth Defendant Parveen Saleemi (“PS”).
In addition I heard the evidence of a number of other secondary witnesses and evidence by video link of further witnes
ses.
In addition as the authenticity of a large number of documents was disputed I heard expert evidence from David Richard Browne a forensic document examiner on behalf of the Claimants Dr Audrey Giles on behalf of the First to Fifth Defendants and Robert W Radley a forensic handwriting and document examiner for the Sixth Defendant. Their reports developed during the process of the trial due to the late production of original documents for them to consider. However at the end of the day the experts were broadly agreed on a large number of documents as I shall set out further in this judgment.
The chronological document bundles at trial extended to 11 lever arch files but that was reduced to a core bundle. In addition there were a large number of documents from other proceedings as the parties have indulged in litigation against each other around the world for many years.
ATTENDANCE OF WITNESSES
There was some difficulty during the trial of securing the attendance of a number of witnesses.
First there was the potential evidence of a Mr Axelrod an Oregon attorney in the firm of Schwabe, Williamson and Wyatt Attorneys of Portland Oregon. He initially acted for SM and was introduced by him to MZ and thus the ISTIL group (“ISTIL”) the Second Defendant a Delaware Company now known as Metalsukraine Corporation Limited.
He provided a witness statement to the Claimant but the First to Fifth Defendants challenged his ability to give evidence because they said it referred to matters which were confidential and were subject to legal professional privilege. The First to Fifth Defendants made an unsuccessful application in Oregon before the commencement of the trial to restrain Mr Axelrod from giving evidence.
The Oregon Court in refusing the application determined that the witness statements did not disclose any breach of Oregon's Bar Association code of ethics, that the material was not confidential and that the trial Judge could decide finally whether on a line by line basis any part of the evidence should be held to be privileged.
The First to Fifth Defendants intimated that if Mr Axelrod came to give evidence they might well report him to the Oregon Bar alleging that he was in breach of his ethical code of conduct. After argument on Wednesday 13th February 2008 I determined that I would grant the Claimants an injunction against a cross undertaking in damages restraining the Defendants from threatening or taking any steps in Oregon which arise out of Mr Axelrod giving evidence. It was however subject to two provisos namely that the Defendants had liberty to apply during the trial to discharge if they thought it was appropriate and at the end of the trial the question whether the injunction continued after that date should be fully ventilated. I refused the First to Fifth Defendants permission to appeal against that ruling. In the event Mr Axelrod was not prepared to give evidence despite that injunction being in place to protect him. He required in effect a determination by me that the Defendants should not be entitled to make any complaint about him to the Oregon Bar Association. I did not see how I could possibly do that but I was willing to put an injunction in place and review whether it should continue. As I set out above, that proved not to be sufficient for Mr Axelrod so he ultimately did not give evidence.
The First to Fifth Defendants wished to call a Mr Knight. He is a partner in the China/Hong Kong firm of Price Waterhouse Coopers (“PWC”). His evidence was set out in a witness statement dated 26th April 2005. His predecessor firm Coopers and Lybrand (“C&L”) had been instructed in 1997 on behalf of the Third Defendant (“ISTIL Guernsey”) first for an intended listing on the London Stock Exchange (“LSE”) and second for its eventual admission to the Alternative Investment Market (“AIM”). He was the partner at C&L in charge of both assignments. The First to Fifth Defendants wished to call Mr Knight to challenge the evidence of a Mr Lindberg who gave live evidence on behalf of the Claimants. Mr Knight was initially unwilling to give evidence and the First to Fifth Defendants served a notice under the Civil Evidence Act 1995. I indicated that bearing in mind that there were large issues of credibility in this case whilst hearsay evidence would be admissible it would inevitably carry less weight when measured against live evidence to the contrary which had been tested under cross examination. In the light of that observation it was unsurprising that the First to Fifth Defendants wished to seek that Mr Knight give live evidence. He proved extremely reluctant. They were compelled to issue a witness summons. Apparently Mr Knight was unwilling even to give video evidence via Hong Kong because PWC did not wish him to give such evidence. This is a disappointing attitude from a large organisation especially given the importance of his evidence as perceived by the First to Fifth Defendants. Accordingly although Mr Knight was out of the jurisdiction I indicated that I would give the First to Fifth Defendants liberty to issue an application for his committal for failure to respond to the summons which I gave them permission to issue. Of course the application would never be effective unless Mr Knight returned within the jurisdiction but nevertheless it proved to be a sufficient concern on his part. He subsequently attended and gave evidence from Hong Kong via video link.
There were similar problems over the attendance of other witnesses via video link. Video link is not the best way in which to hear live evidence. However sometimes one has to accept that is the only way such evidence can be given. The problems about it are well known. It is often not easy to see whether or not witnesses are being prompted off screen. Indeed when some of the Claimants' witnesses gave evidence from Pakistan it was obvious that there was such prompting and I expressed a view that it should be stopped. However that unwieldy form of evidence is infinitely better than evidence comprised in a witness statement.
At the end of the day ultimately the parties were able to secure the attendance of all witnesses they wished to attend either by live evidence or video link save that of Mr Axelrod.
Equally although the late production of various documents caused difficulties for the Experts all parties had a full deployment of all their relevant Experts.
Thus I am satisfied that all parties had full opportunity to deploy the evidence in their case. I should in that context also add that the trial overran by some two weeks. This was mostly due to the lengthy cross examination of witnesses. I do not criticise anyone for that; the estimate of the length for cross examination is notoriously difficult. However the Court was able to accommodate this overrun so that all the trial was heard in its entirety, together with a period of reflection to enable detailed closing submissions to be prepared by all parties for which I am grateful. That overrunning however impinged in what I expected to be judgment writing time which has had a knock on effect and a consequential slight delay in the production of this judgment. The writing of the judgment has also been interrupted by my sitting on Interim Applications which could not be avoided. Nevertheless the judgment has been delivered within 10 weeks of my reserving it.
THE CLAIMS
This action as now constituted representing two sets of proceedings:-
i) The original High Court Proceedings (action no HC04C01331) comprising claims:-
a) By C1, C2 and C3 against D2 and D3 for remuneration under contracts for services rendered to D2 and D3;
b) By C1 against D3 for unpaid salary;
c) By C1 against D1 for damages for malicious falsehood.
ii) Proceedings in the Royal Court of Guernsey pending trial in this action which include a claim by C1, C2 and C4 against D1, ISTIL Group Inc (the predecessor of D2) and D3-D6 to title to 8% of the issued share capital in D3 (“ISTIL Guernsey”) and rectification of its share register or compensation.
iii) In addition related proceedings were to be heard at the same time or immediately after the action;-
a) Proceedings in this Court under action number HC02C0711 in which ISTIL Group Inc and D2 were Claimants and D1 and Reventox Consulting Ltd (incorporated in...
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