Ras Al Khaimah Investment Authority v Farhad Azima

Hearing dates: 22 nd November 2022

Tuesday, 22 November 2022

( 15:44 pm)

Judgment by Mr Justice Michael Green

This is the consequentials hearing following the handing down of my judgment on 1 November 2022 in which I decided to grant permission to Mr Azima to bring an additional counterclaim against RAKIA by which Mr Azima seeks to set aside for fraud the previous judgment of Deputy Judge Mr Andrew Lenon QC. My judgment has the neutral citation number [2022] EWHC 2727 (Ch) and I will use the same abbreviations and definitions as in that judgment. It followed a two-day hearing before me on 17 and 18 October. The full background is set out in that judgment and I will not repeat it here.

I am pleased to say that the parties have reached agreement on further directions and the costs of the applications. The only outstanding and contested matter is applications by all three additional defendants for permission to appeal to the Court of Appeal.

I should emphasise at the outset, as the additional defendants did too, that their application for permission to appeal and any appeal that may follow will not disrupt directions to trial that have been agreed between the parties. The trial is set down to commence in May 2024 and everyone understands that it is critical, particularly as this is a retrial taking place many years after the relevant events, that the trial date is kept, whatever the ultimate outcome of this application and appeal. Indeed, it is recognised that the permission that I have granted to bring the additional counterclaim will not add greatly to the evidence that would, in any event, have been given on the existing counterclaim at trial. It is really a legal argument as to whether the factual findings should additionally lead to the setting aside of the Deputy Judge's judgment in RAKIA's favour against Mr Azima. So it is in that context that I consider the applications for permission to appeal.

Whilst expressed in slightly different ways, the additional defendants are all essentially seeking to appeal on two broad grounds.

(1) First of all, that I lacked jurisdiction to enlarge the proceedings that had been remitted by the Court of Appeal and I was wrong to have concluded that I had jurisdiction to include the claim to set aside the Deputy Judge's judgment for fraud. That is the “jurisdiction issue”.

(2) Second, that, even if I have jurisdiction, that I was wrong to conclude that the proposed additional counterclaim did not constitute an abuse of process. That is the “abuse of process issue”.

It is important to note that none of the additional defendants are seeking permission to appeal on grounds relating to my finding that Mr Azima had a real prospect of establishing the Materiality Condition based on the new evidence that he has as to the extent of the alleged fraud practised on this court. Accordingly, they accept, for the purposes of this application, that Mr Azima has a real prospect of proving that there was “conscious and deliberate dishonesty” by or on behalf of RAKIA at the first trial and that this satisfied the Fraud Condition. They also accept that there is a real prospect of Mr Azima showing that the fraudulent evidence was an “operative cause” on the court's decision to grant judgment in RAKIA's favour, or that it would have entirely changed way in which the Deputy Judge approached and came to his decision.

But the additional defendants say that, despite Mr Azima having that real prospect of being able to set aside the judgment for fraud, I was wrong to conclude that he should be allowed to run that case in the light of the Court of Appeal judgment.

As is well known, but it is worth repeating, permission can only be given according to CPR 52.6 if the court considers that the appeal would have a real prospect of success or that there is some other compelling reason for the appeal to be heard.

As a preliminary, it is relevant to remember that Mr Azima only sought permission to bring the additional counterclaim against RAKIA and RAKIA itself has not opposed it. The judgment that he seeks to set aside was only in RAKIA's favour and the additional defendants were not even parties at the trial or before the Court of Appeal. To a certain extent, they have opportunistically argued the jurisdiction and abuse of process issues when the permission does not really affect them, even in terms of the length and scale of the trial or on case management grounds. Having said that, the court has to act within its jurisdiction and will be concerned not to allow a claim to go forward if it constitutes an abuse of process.

At the core of these permission to appeal applications is the general point that Mr Azima is seeking to do what the Court of Appeal said he should not do and should not be able to do, namely, to overturn the judgment on RAKIA's claims against him. The additional defendants say that he has already had plenty of opportunities to persuade the court that the judgment in RAKIA's favour should be set aside, but each time the court has come back and said: no, that judgment will stand whatever else happens.

I decided that...