Rana AL-Aggad v Talal AL-Aggad
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cockerill |
| Judgment Date | 22 March 2024 |
| Neutral Citation | [2024] EWHC 673 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2022-000230 |
[2024] EWHC 673 (Comm)
Mrs Justice Cockerill DBE
Case No: CL-2022-000230
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building
Fetter Lane
London
EC4A 1NL
Anthony Peto KC and Shane Sibbel (instructed by PCB Byrne) for the Claimant
Stephen Houseman KC and Richard Hoyle (instructed by Jones Day) for the First and Second Defendants
Fionn Pilbrow KC and Vanshaj Jain (instructed by Forsters LLP) for the Third Defendant
Hearing dates: 7, 8 February 2024
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. This judgment was handed down remotely by the judge and circulated to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Friday 22 March 2024 at 12:45
INTRODUCTION
These proceedings concern – unusually in the Commercial Court – a family dispute. The parties are the four children of Omar Aggad (“Mr Aggad”) and Malak Murad (“Mrs Murad”), now deceased. The Claimant Rana Al-Aggad (“Rana”) has launched proceedings in this court against the First Defendant (“Talal”), the Second Defendant (“Tarek”) (collectively, the “Brothers”) and the Third Defendant (“Lama”), who are all siblings and Saudi nationals. She claims in unlawful means conspiracy and also for breach of an agreement between the siblings.
The personal circumstances of Rana are key both to the claim and to the issues in this action. Because of the need for the Court to be addressed on confidential (including personal) matters there are two versions of the judgment: this is a redacted version which is publicly available (“the Open Judgment”) and a Confidential Judgement. That approach follows on from a dispute between the parties as to the appropriate approach to confidentiality which was the subject of a separate hearing before a deputy judge in October 2023. The Court has also been addressed upon and has considered the fundamental principle of open justice and the need to ensure that derogations from it are limited to those which are necessary and proportionate. The redactions applied to produce this Open Judgment have been made with that principle in mind.
For present purposes it suffices to say that Rana was educated in England but thereafter returned to Saudi Arabia where her family was based. Her father had given her a factory there and she proceeded to run it and the confectionary business associated with it very successfully. In 2004 she returned to Saudi Arabia to obtain a divorce, but in 2005 she, and her parents left Saudi Arabia. Rana was granted asylum by the Canadian Refugee Board on 12 July 2011.
From 2005 therefore the family was divided. Rana and her parents lived in Canada and her siblings remained in Saudi Arabia. This faultline between two groups of the family lies at the heart of the dispute. It is perhaps the family aspect to the dispute which has caused it to be so very hard fought. As will be explained further below the Defendants have taken every point which could conceivably be taken in fighting this jurisdictional battle. The case was originally listed for hearing in October 2023 but was adjourned following a late application by Rana to serve rejoinder evidence (in particular in relation to a new case on Canadian law raised by the Brothers), which then prompted a responsive application by the Defendants to serve surrejoinder evidence. The costs for both sides are enormous: Lama's costs to date exceed £400,000 – and the bulk of the running on this application has been made by the other parties.
This lends a certain degree of irony to the fact that before me it was said by both the Brothers and Lama that they have great sympathy and concern for their sister.
The claim is brought on two grounds:
1) The first claim is in breach of contract. The contract in question relates to the Aggad Investment Company (“AICO”), a Saudi company founded in 1975 by Mr Aggad in which Mr Aggad, Mrs Murad and the parties were shareholders, owning the entire shareholding of the company amongst them. Disputes arose between the two groups of the family. On 25 January 2009, Mr Aggad, Mrs Murad, Rana, Lama, Talal, Tarek and AICO concluded an agreement (the “2009 Agreement”), whereby, inter alia, AICO was to transfer to Rana certain sums of money. In return, Rana agreed to give up her shareholding in AICO. Rana's first claim in these proceedings is that she was never paid the sums owed to her pursuant to the 2009 Agreement.
2) The claim in conspiracy arises out of the fate of AICO after the death of Mr Aggad in January 2018. Rana contends that the Defendants conspired by unlawful means in 2018 to procure a judgment in Saudi Arabia behind her back and, thereafter, the filing of amended articles of association for AICO. It is said that because she was based outside Saudi Arabia and it was either difficult or impossible for her to appear in Saudi proceedings this had the effect of depriving her of the practical ability to exercise rights under or dispose of shares in AICO inherited from her father.
3) In slightly more detail the allegations are that:
a) Pursuant to Sharia law, Rana was entitled to inherit 5,250 AICO shares;
b) The Defendants knew that because of Rana's personal history she did not want to hold assets situated in the Middle East in her own name;
c) Rather than become an AICO shareholder, Rana wished to dispose of these shares but was concerned that she would not get their value from her siblings;
d) AICO's articles of association had to be amended following Mr Aggad's death. The co-operation of Rana and Mrs Murad was necessary for this to progress. Rana wished to stall this process, knowing that would provide her leverage in negotiations with the Brothers who were the principal movers in the business;
e) Rana alleges that the Brothers commenced secret proceedings in Saudi Arabia for the distribution of the inherited AICO shares, to enable them to amend the AICO articles of association and omitted her address and telephone number from the Statement of Claim, as well as failing to disclose to the Saudi Court that Rana had not been properly served;
f) Rana says she was injured by the registration of AICO shares in her name, and the amendment of AICO's articles of association, that claim being equivalent to the economic value of the AICO shares that she inherited. This is because in order to exercise her rights under the relevant AICO shares or sell those shares she would have (directly or via a power of attorney) to participate in proceedings in Saudi Arabia which is (she says) impossible for her.
The hearing before me has been brought to determine the jurisdiction challenges brought by Rana's siblings. For the purposes of this jurisdiction dispute (though not for other purposes) it is accepted that Rana cannot return to Saudi Arabia.
There are two challenges. The first is brought by the Third Defendant, Rana's sister Lama. Lama was served as of right by personal service within the jurisdiction (at Heathrow Airport) on 15 July 2022. This is said to have been an opportunistic service while Lama was on a “short visit”. Her ties to this jurisdiction are in issue, though it is common ground that Lama spends time here every year. The Part 11 Application contends the claims against her should be stayed on forum non conveniens grounds in favour of Saudi Arabia. She makes no case that there is a third jurisdiction which would be the forum conveniens, although she has indicated a willingness to submit to the jurisdiction of the courts of Jordan (in connection with the Brothers' case on Jordan as forum conveniens).
Lama was used as the “anchor” defendant to obtain permission to serve the Brothers out of the jurisdiction under the ‘necessary or proper party’ gateway in CPR PD 6B, paragraph 3.1(3). The Brothers were served out of the jurisdiction pursuant to the Order of Butcher J on 11 August 2022. There is no challenge to the contention that the First and Second Defendants are necessary and proper parties to the claims against the Third Defendant if those claims proceed – or that jurisdiction cannot be established against them if service on Lama is set aside. The Brothers' Part 11 Application seeks to set aside service out on forum conveniens grounds, contending that Saudi Arabia, alternatively Jordan, is the appropriate forum.
There are therefore two key disputes – although the parties have agreed a list of issues which runs to nine main issues with a multiplicity of sub issues. The first is whether Saudi Arabia is the forum conveniens.
The legal test applicable in a forum non conveniens application remains that outlined in Lord Goff's judgment in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (“ Spiliada”). The test has two limbs whereby:
1) First, the burden is on the defendant to establish that there is another forum which is “ clearly or distinctly more appropriate than the English forum”: Spiliada, 477E (“Stage 1”). This has also been put thus: the “only sensibly available forum” to try the action: see Gulfvin v. Tahrir [2022] 4 WLR 66 at [18]–[23]. If the defendant does not discharge this burden, the application fails.
2) Secondly, if the defendant discharges its burden under Stage 1, then the burden of proof shifts to the claimant to show, using cogent evidence, that “ there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country”: Spiliada, 476E (“Stage 2”).
Rana accepts (for the purposes of Spiliada stage 1) that Saudi Arabia is the natural forum, though she...
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