Mehdi Khosravi v Al Aqili Trading LLC and Others
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] EWHC 123 (QB) |
| Court | Queen's Bench Division |
| Date | 28 January 2016 |
| Docket Number | Case No: HQ14X00101 |
[2016] EWHC 123 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir David Eady
Sitting as a High Court Judge
Case No: HQ14X00101
Duncan Macpherson (instructed by Ballantyne Grant) for the Claimant
David Head (instructed by Hogan Lovells International LLP) for the First and Sixth Defendants
Hearing dates: 8 and 11 December 2015
Introducing the issues
The first and sixth Defendants are within the British American Tobacco group of companies ("BAT"): they make three applications now before the court. The fifth Defendant is also part of the group, but it has not been served and takes no part in these applications. (Nor do the second to fourth Defendants.)
There are two applications dated 29 September 2015. These Defendants seek to set aside various orders made by the Master whereby extensions of time were granted for service of the claim form. For this purpose, they pray in aid CPR 11(1), and/or CPR 3.1(7), and/or 23.10(1). Alternatively, they apply to strike out the claim form and the particulars of claim, relying upon CPR 3.4(2).
The third application was dated 5 November 2015 and seeks, in the further alternative, summary judgment and an order dismissing the claims in their entirety, pursuant to CPR 24.2.
Mr Head placed the strike-out and summary judgment applications in the forefront of his argument, as his clients wished to emphasise the perceived merits of their proposed defence — rather than rely upon any procedural or technical deficiencies. It became apparent in the course of submissions that there was an element of fluidity in the case put forward on behalf of the Claimant, as to whether Mr Macpherson sought to defend the current formulation of his claim, as pleaded, or whether he would prefer to amend the particulars and to defend the reformulated version. No draft was placed before the court, however, and I must therefore proceed to address the case as currently presented. Although the Claimant has been represented by a number of solicitors at various stages of the proceedings, I have been asked to note that so far no lawyer has put his/her name to the pleading.
It is notable that foreign law has not so far been pleaded in support of the claim and the issues of strike-out and summary judgment should accordingly be approached in the light of English law. Indeed, the letter before action cited specifically a number of UK statutory provisions and judicial citations (see e.g. at paragraph 37). It is nonetheless clear that the Claimant wishes now to rely upon the law of the United Arab Emirates ("UAE"), and in particular as to vicarious liability. That would appear to reflect the jurisdiction within which the primary events sued upon took place, although whether choice of law would make any substantive difference remains obscure. Mr Head would wish to argue, for example, that UAE law would present the Claimant with formidable hurdles in trying to establish a cause of action in conspiracy and also generally in relation to vicarious liability. I am certainly not in a position to make any determination on those issues as the pleadings and the evidence now stand.
These Defendants were served, with both the claim form and the particulars, on 8 September of last year. From these it emerged that the Claimant is alleging that the second, third and fourth Defendants were responsible inter alia for committing very serious physical assaults upon him back in September 2008 and that he seeks to attribute responsibility also to these Defendants as principals or, at least, as being vicariously responsible on some basis. The damages sought run into hundreds of millions of pounds. They, however, deny any liability, direct or indirect, for the physical mistreatment the Claimant alleges that he received, and indeed for any form of wrongdoing. By now, therefore, it will be obvious that they are entitled to unambiguous clarity and to detailed particulars of the facts upon which these grave charges are to be laid at their door.
It seems that the Claimant has had some difficult hurdles to overcome in setting out his case: whether he has managed to overcome them, even now, is a matter which lies at the heart of the present applications. The procedural background is informative in this context. The claim was issued as long ago as 10 January 2014 (i.e. some 20 months prior to service upon these Defendants). Originally, the first to fourth Defendants only were joined. It was only on 8 September 2015 that permission was obtained to add the fifth and sixth Defendants. The first Defendant should thus ordinarily have been served no later than on 10 May 2014, but on seven occasions extensions of time were sought and obtained from Masters pursuant to CPR 7.6. Mr Head argues that the reasons given to the court were, every time, wholly inadequate to justify the grant of any such extension: that is why the application was made on 29 September to have them set aside.
It would seem clear from the evidence, and especially from the contemporaneous documents which I consider below, that there never was an agency relationship, as such, between either of these Defendants and any part of the Al Aqili group. The first Defendant is a holding company and had no contractual or commercial relationship of any kind with that group. But there were BAT companies which supplied tobacco products to Al Aqili for sale in Iran and Iraq. Some of those arrangements were not by way of written contracts, but where there were agreements in writing they contained express "no agency or partnership" clauses (exhibited to the evidence adduced by these Defendants). Furthermore, although for a time some Al Aqili companies had distributed BAT products in Iran on their own account, rather than as agents, all commercial relationships between them in relation to that territory had come to an end by November 2006. A new distributor for Iran had been appointed and any sales thereafter by Al Aqili in Iran were unauthorised. Al Aqili continued to distribute in Iraq until March 2008, when finally all links appear to have been severed.
Mr Head places considerable weight on these documents in arguing that the allegation of agency is bound to fail and should thus be struck out. Of course, it would in theory be possible for a corporate entity to give instructions to an individual to commit a criminal offence or to commit a tortious wrong without there being any underlying commercial relationship between them (whether of agency or otherwise). Accordingly, the clear evidence as to a termination of the distributorship would not necessarily be a complete answer in itself. There could in some circumstances be an ad hoc relationship or combination for the specific purpose of kidnap or assault. It is, however, necessary to test the pleaded case in this regard with particular care and also the evidence adduced in support of it. In general terms, I remind myself that the need for cogency and particularity is correspondingly greater when a pleading is advanced in support of a serious allegation of criminal behaviour. A defendant has a right to know and understand the nature of the charge he has to meet: the mere fact that an assertion is made in a pleading does not mean that it is worthy of going to trial.
A summary of the claim now pleaded
In broad terms, the Claimant's case as now pleaded may be summarised as follows. The second Defendant was between 1994 and 2006 authorised to supply BAT tobacco products within Iran by reason of a licence granted by the state-owned Iranian Tobacco Company ("ITC"). As I have said, it is also alleged that the first Defendant had appointed the second Defendant as its agent for this purpose, which is denied. The Claimant further contends that ITC repeatedly warned BAT (albeit only from 2006 onwards) that those within the Al Aqili group were prepared to resort to violence including murder. It is also central to his case that all the Defendants were motivated by a desire to have terminated an enquiry into the smuggling of cigarettes into Iran, which had been initiated by President Ahmedinejad following his appointment in August 2005. It is said that the smuggling of cigarettes was controlled by the Iranian Revolutionary Guards Corp ("IRGC"), with whom the Al Aqili group maintained a close relationship and, in particular, through a man called General Rezaei.
It is alleged that the General had tried and failed to persuade the President to call off the investigation into smuggling and that all the Defendants had a common interest in achieving this objective. At some point in about February or March 2008, it is claimed that the BAT Defendants threatened to cease their supply of cigarettes to the Al Aqili group unless they found a way of bringing the enquiry to a close. It is implicit in this allegation that these Defendants, knowing by that time of Al Aqili's propensity to violence, were prepared to sanction its use in achieving that purpose.
Next, it is claimed that at a meeting in March 2008 a plan was devised to use unlawful means to try to bring about the end of the enquiry by implicating the Claimant. Mr Head places emphasis on the inherent implausibility of this scenario. Why, he asks, would it occur to anyone that he should be thought capable of exerting influence on the Iranian government? He describes himself as a...
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