Nasser v United Bank of Kuwait
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANCE,LORD JUSTICE SIMON BROWN,Sir Christopher Slade,Lord Justice Henry |
| Judgment Date | 21 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1454,[2001] EWCA Civ 556 |
| Docket Number | Case No: A2/2000/6479 FC2,Case No: A2/2000/0480 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2001 |
[2001] EWCA Civ 1454
Lord Justice Henry and
Sir Christopher Slade
Case No: A2/2000/0480
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
(Mr Justice Ian Kennedy)
Simon Edwards Esq (instructed by Messrs Charles Khan for the appellant)
Peter Irvin Esq (instructed by Messrs Wedlake Bell for the respondent)
The claimant in these proceedings, Mrs Nasser, with permission of Lord Justice Latham, appeals from an order of Mr Justice Ian Kennedy dated 26 th October 1999, whereby he struck out her claim for want of prosecution pursuant to Part 3.4 of the Civil Procedure Rules 1998 ("the CPR").
The Facts
The Judge aptly described it as a curious case. In 1985, the claimant hired a safe deposit box at the premises of the defendant, The United Bank of Kuwait plc ("the Bank"), at 15 Baker Street, London, to keep some jewellery and other things. On two occasions thereafter, her boxes were changed, once because she wanted a bigger box and once because the then existing box was defective. She asserted that, after a previous visit on 12 th January 1993, on 14 th or 15 th January 1993 she had visited the premises with her sister Rima Nasser to obtain a ring and watch from the box and to deposit various items of jewellery in it, at which time the contents were intact and complete. However, she asserted, when she again visited the premises on 8 th February 1993, she found that her key did not fit the padlock on the box which was brought to her, and when the padlock was removed by means of a hacksaw, she found the box was empty. She said that all three boxes had the same set of padlocks and the same keys.
Promptly, on 15 th April 1993 she issued a writ against the Bank claiming that she was entitled to delivery up by the Bank of the contents of the safe deposit box as bailee and/or by virtue of her contract, and damages. The alleged contents of the safe deposit box, consisting of some 86 items, were set out in a schedule to the statement of claim. Of these items, about 75 consisted of jewellery.
On 27 th May 1993 a defence to the action was delivered, followed by an amended defence of 28 th July 1993. On 20 th August 1993 an order for discovery, inspection and other matters was made.
In September 1993, the claimant's sister Rima Nasser, who is said to be the owner of some of the jewellery, visited Palm Beach Casino and saw a Mr Balawi wearing a ring said to be one of the items of the missing jewellery which belonged to her. He told her that this item and several other items of jewellery had been purchased by him from a Hatton Garden jeweller called Mr Shaikh. The claimant informed the police. Mr Shaikh was arrested on suspicion of handling stolen goods. He had been found in possession of jewellery which the claimant said came from her safe deposit box. A few days later he produced some documents which purported to show he had bought a part of the jewellery from a man called Mr Gomez. Mr Gomez himself has not been traced.
At some unknown date between August 1993 and 18 th February 1994 an application for summary judgment in the present action was made by the claimant. On 18 th February 1994 Master Prebble made two orders. By the first order he gave the Bank permission to defend the action and gave various further directions in regard to the exchange of lists of documents and other matters. Secondly, he ordered the claimant to provide security for costs in the sum of £10,000 within 14 days. There is no evidence to suggest that these two orders were not complied with.
On 10 th October 1994, the claimant and her mother, who was also said to be the owner of some of the jewellery, issued a writ against the Commissioner of Police of the Metropolis in respect of the jewellery found in Mr Shaikh's possession. I will call this the "interpleader action". The Commissioner having interpleaded, it was ordered by consent on 5 th November 1994 that an issue be tried as between the claimant and her mother on the one hand and Mr Shaikh on the other as to who was entitled to the jewellery.
On 30 th November 1994 the claimant amended her statement of claim in the action against the Bank. On 20 th December 1994 the Bank re-amended its defence. There was then a delay of about two and half months, after which there was an order for exchange of evidence and setting down. It is common ground that the trial date for April 1996 was fixed, although it is not clear when that happened.
On 3 rd January 1996 Master Foster ordered that the claimant's original solicitors should cease to act for her in the interpleader action, apparently on the grounds that they had not been properly instructed. On 13 th January 1996 she returned to England from the USA where she had been living and learnt for the first time that her solicitors had taken themselves off the record. On 15 th January 1996 she instructed new solicitors, Messrs Russell Clayton & Co. On 16 th January 1996 the trial date which had been fixed for the hearing of the interpleader action arrived, but the case was not ready for trial. When the action came on for hearing before Master Topley, counsel for the claimant applied for an adjournment but, after refusal of his application, withdrew because he could not proceed without evidence. Master Topley then gave judgment for the defendants in the interpleader action. On 12 th February 1996 Wood J dismissed an appeal by the claimant in those proceedings.
Meantime no further progress had been made in the action against the Bank. On 13 th February 1996 the claimant received an Emergency Legal Aid Certificate in that action. On 14 th February 1996, some two months before the date fixed for trial, the Bank re-reamended its defence to include for the first time an allegation of fraud against the claimant. This substantially rested on the assertion that she had taken away all the jewellery on or before 12 th or alternatively 14 th/15 th January 1993. It depended heavily on the evidence of a Bank clerk, Lena Sabbagh, who had accompanied the claimant when she went to see her box on 12 th January 1993 and said that she remembered the occasion, because, whereas the box was so heavy when it was brought to the claimant that the clerk had got one of the messengers to carry it, the clerk was able to carry it in comfort when the time came for it go back into the vault. The allegation made by the re-reamendment was that, if which was not admitted, any of the relevant items were ever in the safe deposit box, the claimant removed them on or before 12 th, 14th or 15 th January and her claim was fraudulent. The defendants also relied on the evidence of Mr Shaikh, supported by two jewellers called Burridge, who would say that some of the items were delivered to them for display in their shop in Fleet, on a commission basis, and before the date of the alleged disappearance of the jewellery.
On 26 th February 1996, Master Foster ordered the claimant to give further security for costs, she being resident abroad, in the sum of £25,000 within 21 days, on the basis that the proceedings were to be stayed if she did not comply with the order. By this time, however as has already been mentioned, she was legally aided. Unfortunately neither side referred Master Foster to the authorities showing that security for costs should not generally be ordered against impecunious persons in such a sum as would stifle a genuine claim. The claimant failed and was apparently unable to raise the £25,000 or any part of it, so the proceedings were stayed.
On 12 th August 1996, the claimant obtained a Legal Aid Certificate with a stated monthly contribution. In July 1997, Messrs Russell Clayton & Co ceased to practice and the claimant's case was transferred to another firm of solicitors. The following month her Legal Aid certificate was likewise transferred. On 26 th August 1997 leading counsel advised the claimant to appeal out of time against Master Foster's order. At first the Legal Aid Committee were not minded to support the appeal, but they finally did so and on 8 th October 1997 the claimant issued her application for leave to appeal. On 14 th November 1997 Mrs Justice Ebsworth gave permission to appeal and gave certain further directions in regard to the filing of evidence.
On 23 rd January 1998 the Bank's solicitors wrote to the Legal Aid Board to tell them that in the course of the evidence on the appeal the claimant had disclosed that she had a bank account that contained £50,000. On 18 th April 1998, not surprisingly, the Legal Aid Board placed an embargo on further work on behalf of the claimant, though it seems that they were eventually persuaded that she was merely the custodian for her sister of the £50,000, which had been transferred to a bank account of her sister in Luxembourg. The Legal Aid Certificate was reinstated on 22 nd May 1998.
Eventually, on 22 nd June 1998 the hearing of the appeal from Master Foster's order directing the giving of security in the sum of £25,000 was heard by Curtis J, who allowed the appeal. The stay was thus removed. But the Legal Aid Board were still not satisfied, because on 1 st July 1998 they re-imposed the embargo.
Thereafter, to use the Judge's words, "over a period of some nine months until April 1999, they lifted it and put it back, lifted it and put it back, lifted it and put it back, something in the order of ten times, so that for about two thirds of that period the claimant's solicitors hands were tied". I take the following particulars from the...
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