Ras Al Khaimah Investment Authority v Azima
| Jurisdiction | England & Wales |
| Judge | Mr Justice Michael Green |
| Judgment Date | 21 August 2023 |
| Neutral Citation | [2023] EWHC 2108 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-002798 |
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[2023] EWHC 2108 (Ch)
Mr Justice Michael Green
Case No: HC-2016-002798
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Tim Lord KC, Frederick Wilmot-Smith and Sophie Bird (instructed by Burlingtons LLP) for the Defendant and Counterclaimant
Fionn Pilbrow KC and Aarushi Sahore (instructed by Charles Fussell & Co LLP) for the Second Additional Defendant to the Counterclaim
Tom Adam KC and Craig Morrison KC (instructed by Enyo Law LLP) for the Third Additional Defendant to the Counterclaim
Antony White KC and Ben Silverstone (instructed by Kingsley Napely LLP) for the Fourth Additional Defendant to the Counterclaim
Hearing dates: 27 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Monday 21 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
I am the assigned Judge in these proceedings and there are now two separate claims being brought by Mr Farhad Azima, the original Counterclaimant:
(1) The “ Hacking Counterclaim” which was tried by Mr Andrew Lenon QC, sitting as a deputy High Court Judge ( [2020] EWHC 1327 (Ch) – the “ First Judgment”) but was remitted for retrial by the Court of Appeal ( [2021] EWCA Civ 349). The Hacking Counterclaim is brought against the original Claimant, Ras Al Khaimah Investment Authority (“ RAKIA”) and the Additional Defendants: Mr Neil Gerrard, Dechert LLP and Mr James Buchanan.
(2) The “ Set Aside Counterclaim” which is a claim against RAKIA to set aside the First Judgment and Order of Mr Lenon QC and the Judgment and parts of the Order of the Court of Appeal on the grounds that they were procured by fraud. I permitted Mr Azima to bring the Set Aside Counterclaim ( [2022] EWHC 2727 (Ch)) 1 and the Court of Appeal dismissed the Additional Defendants' appeal ( [2023] EWCA Civ 507).
Accordingly at the eight to ten week trial listed for May 2024, I was set to hear both Counterclaims. However, Mr Azima now seeks default judgments against RAKIA on the basis that RAKIA has decided not to participate in the proceedings since last June 2022 and is therefore in default of various Rules and Orders of the Court. If Mr Azima is entitled to enter judgment in default against RAKIA, it will bring to an end the Set Aside Counterclaim, to which RAKIA is the only Defendant. Two of the Additional Defendants, Dechert and Mr Gerrard, oppose the default judgment being granted on the Set Aside Counterclaim, even though they are not defendants to it. Mr Buchanan is neutral on that application. Nobody opposes default judgment on the Hacking Counterclaim which will, in any event, continue against and be defended by the Additional Defendants.
Therefore, on 27 July 2023, I heard the following applications:
(1) Mr Azima's application for judgment in default of defence against RAKIA on the Set Aside Counterclaim;
(2) Dechert's and Mr Gerrard's precautionary applications to set aside any judgment in default on the Set Aside Counterclaim; and
(3) Mr Azima's application for an order striking out RAKIA's defence to the Hacking Counterclaim (alternatively for an unless order in relation to RAKIA's failure to provide disclosure); and consequential upon the striking out of RAKIA's defence, Mr Azima seeks default judgment against RAKIA.
RAKIA has not appeared and has not opposed either of Mr Azima's applications. Mr Tim Lord KC, appearing on this occasion along with Mr Frederick Wilmot-Smith and Ms Sophie Bird, on behalf of Mr Azima, says that this is therefore straightforward – RAKIA has not filed a defence to the Set Aside Counterclaim and Mr Azima is entitled
to judgment in default. He says that Dechert and Mr Gerrard have no standing to oppose this and in any event they are not entitled to rely on the First Judgment in their defence of the Hacking CounterclaimMr Tom Adam KC, appearing with Mr Craig Morrison KC on behalf of Dechert and Mr Fionn Pilbrow KC appearing with Ms Aarushi Sahore on behalf of Mr Gerrard, submitted that their clients have standing to oppose the application and that they would have good reason to set aside such a default judgment because they rely on the First Judgment in their defence to the Hacking Counterclaim and because they are seeking to uphold the First Judgment on various grounds that appear in their pleadings. They argued that Mr Azima's application should be dismissed or alternatively, if default judgment is to be entered, that their applications to set aside any such default judgment be granted.
As this was the only contentious issue, I will deal with the default judgment on the Set Aside Counterclaim first. I will not set out any detailed background to these proceedings as this has been rehearsed now many times in my previous judgments and is very familiar to the parties.
Default judgment on Set Aside Counterclaim
(a) Entitlement to default judgment
As stated above, and despite the opposition of the Additional Defendants, Mr Azima has been allowed to bring the Set Aside Counterclaim against RAKIA. The Court of Appeal seemed to go further than I did in holding (at [114] of [2023] EWCA Civ 507) that if the Project Update Reports had been before the first Court of Appeal “ they would obviously have remitted both the hacking counterclaim and RAKIA's claims for retrial in the light of the real prospect of satisfaction of both Highland Conditions.”
The date for RAKIA to serve a defence to the Set Aside Counterclaim was 6 December 2022. It did not do so. By notice dated 6 June 2023, Mr Azima applied for judgment in default. Mr Lord KC told me that Mr Azima waited that long to see what the Court of Appeal ruled. By CPR 15.11(1), if Mr Azima had not applied for default judgment, then the Set Aside Counterclaim might have been stayed.
Under CPR 12.3(1), a claimant “ may obtain judgment in default” if a defendant has not “ filed a defence to the claim (or any part of the claim)” and the relevant time limit has expired. None of the exceptions in CPR 12.3(3) apply.
Mr Lord KC submitted that Mr Azima was “ entitled” to judgment in default in these circumstances. However, as this is not a money claim, but is a “ claim for any other remedy”, Mr Azima must apply under CPR Part 23 to obtain judgment in default and cannot simply “ request” it under CPR 12.4(1) (see CPR 12.4(3)). In such an application, by CPR 12.12: “ the court shall give such judgment as the claimant is entitled to on their statement of case”.
The Privy Council has recently had the opportunity of considering the proper approach to the grant of a default judgment where it is for a remedy other than money – Lux Locations Ltd v Yida Zhang [2023] UKPC 3 (the relevant rule in the Eastern Caribbean Civil Procedure Rules being modelled on CPR Part 12 – see [56]). Lord Leggatt, giving the judgment of the Board, said that the court always retains a discretion as to whether to enter default judgment or not “ if the court considers that it would be unjust to do so” – see [56]. And in [51] Lord Leggatt explained why an applicant such as Mr Azima has to apply to the court:
“The underlying policy reason for requiring the safeguard of judicial scrutiny where a remedy other than money is claimed must be that granting such a remedy potentially involves greater interference with rights and freedoms of the defendant (and perhaps others) than entering a money judgment which the defendant can apply to set aside.”
That seems to me to be particularly apposite where the default judgment being sought would result in the First Judgment and the Court of Appeal judgment upholding the First Judgment being set aside on the grounds that they were procured by fraud. The point of requiring Mr Azima to apply to the Court for such a default judgment is so that there can be judicial scrutiny as to whether, despite the default of the defendant, it is appropriate, fair and just to grant the relief at that time and in those circumstances. Lord Leggatt recognised that such a default judgment, even if the claimant is prima facie entitled to it, may interfere with the “ rights and freedoms” of persons other than the defendant against whom the judgment would be entered.
In [72], Lord Leggatt set out what the Board considered to be the “ proper approach to an application for default judgment where the claim is for some other remedy”, and Mr Lord KC did not suggest that this did not apply to the applications before me. After stating that the Court needed first to determine if the relevant conditions were satisfied (there is no dispute as to this in this case), Lord Leggatt said as follows:
“(ii) Even if the relevant conditions are satisfied, the court should not grant a default judgment if there is material before the court at the hearing of the application which would justify setting such a judgment aside.
(iii) If there is no such material, the court should proceed to determine what remedy (if any) the claimant is entitled to on the statement of claim. For this purpose, the court will treat the allegations made in the statement of claim as true and legally valid unless (and to the extent that) it appears to the court that the statement of claim does not disclose any reasonable ground for bringing the claim or is an abuse of the process of the...
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