Sadruddin Hashwani v Nurdin Jivraj
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Walker |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] EWHC 998 (Comm) |
| Docket Number | Case No: 2013 Folio 355 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 23 April 2015 |
[2015] EWHC 998 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building
Fetter Lane
London
EC4A 1NL
The Hon Mr Justice Walker
Case No: 2013 Folio 355
In an Arbitration Claim
Mr Michael Brindle QC and Mr Brian Dye, instructed by Zaiwalla & Co, appeared for the Claimant.
Mr Rhodri Davies QC, instructed by Bermans LLP, subsequently Bermans (2012) Limited t/a Bermans, appeared for the Defendant.
Hearing dates: 7 and 8 October 2014.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Paul Walker, 23 April 2014.
Table of Contents:
| A. Introduction and outcome | 3 |
| A1. A sequel to a Supreme Court decision | 3 |
| A2. The present claim | 4 |
| A2.1 The claim as it stood in 2013 | 4 |
| A2.2 The revised claim | 5 |
| A3. The outcome | 7 |
| A3.1 Abuse of process: vexing Mr Jivraj with litigation twice | 7 |
| A3.2 A suggested universal guiding principle: inform the other side | 7 |
| A3.3 Other grounds on which Mr Jivraj succeeds | 8 |
| A3.4 Structure of this judgment | 8 |
| B. Background | 8 |
| B1. The Community | 8 |
| B2. The period up to 17 January 1994 | 9 |
| B2.1 Up to and including 30 October 1988 | 9 |
| B2.2 From 31 October 1988 up to and including 16 July 1990 | 10 |
| B2.3 From 17 July 1990 up to, but not including, 17 January 1994 | 12 |
| B3. 17 January 1994: issue of the December 1993 award | 13 |
| B4. Events from 18 January 1994 onwards | 17 |
| B4.1 From 18 January 1994 to 19 April 1995 inclusive | 17 |
| B4.2 From 20 April 1995 to 14 August 1995 inclusive | 18 |
| B4.3 From 15 August 1995 to 19 February 1996 inclusive | 19 |
| B4.4 From 20 February 1996 to 16 July 1997 inclusive | 21 |
| B4.5 From 17 July 1997 to 31 August 1999 inclusive | 22 |
| B4.6 From 1 September 1999 to 23 October 2000 inclusive | 23 |
| B4.7 From 24 October 2000 to 31 July 2008 inclusive | 24 |
| B4.8 From 1 August 2008 to 27 July 2011 inclusive | 26 |
| B4.9 From 28 July 2011 onwards | 29 |
| C. Mr Jivraj's strike-out application | 34 |
| D. Has the arbitration ended? | 42 |
| D1. Ending the arbitration: Mr Jivraj's contentions | 42 |
| D2. A final award issued on 17 January 1994 | 43 |
| D3. The period after 17 January 1994 | 48 |
| D3.1 18 January 1994 to 31 May 1995 | 49 |
| D3.2 First fallback: release in 1995 | 51 |
| D3.3 Period from 1 June 1995 to 31 January 1998 | 51 |
| D3.4 Second fallback: correspondence amounting to abandonment | 57 |
| D3.5 Period from 1 February 1998 to 31 December 2007 | 58 |
| D3.6 Third fallback: ten years of inactivity | 60 |
| D3.7 January 2008 onwards | 60 |
| D3.8 Mr Jivraj's remaining fallback positions | 61 |
| D4. Conclusion: no extant arbitration | 63 |
| E. Delay on the part of Mr Hashwani | 63 |
| E1. Delay: introduction | 63 |
| E2. Delay: Mr Hashwani's suggested knockout blows | 63 |
| E2.1 Delay: general aspects of the suggested knockout blows | 63 |
| E2.2 Knockout blow 1: Mr Jivraj's failure to do what Mr Hashwani wanted | 63 |
| E2.3 Knockout blow 2: PHPI's continued existence | 64 |
| E3. Delay: analysis by periods | 65 |
| E3.1 Delay: general aspects of analysis by periods | 65 |
| E3.2 Delay: 17 January 1994 to mid 2000 | 65 |
| E3.3 Mid 2000 onwards | 67 |
| E3.4 Delay: attempts to blame Mr Jivraj and Mr Ahamed | 69 |
| E3.5 Delay: considerations of fairness | 69 |
| E4. Delay: conclusion | 70 |
| F. An intention that a vacancy is not to be supplied? | 70 |
| G. Ability now to resolve disputes fairly? | 71 |
| H. The position if no appointment is made | 74 |
| J. Conclusion | 75 |
A. Introduction and outcome
A1. A sequel to a Supreme Court decision
The present claim concerns what the claimant, Mr Sadruddin Hashwani, now admits were arbitration arrangements made in 1990 between him and the defendant, Mr Nurdin Jivraj. Those who have studied the judgment of Lord Clarke of Stone-cum-Ebony JSC in Hashwani v Jivraj [2012] UKSC 40, [2011] 1 WLR 1872, which I refer to below as "Lord Clarke's judgment", will have read that on 29 January 1981 Mr Hashwani and Mr Jivraj entered into a joint venture agreement ("the JVA"). Both Mr Hashwani and Mr Jivraj are members of the Ismaili community. The JVA contained in article 8 an arbitration clause ("the JVA arbitration agreement") which provided that, in the event of a dispute between them which they were unable to resolve, that dispute should be resolved by arbitration before three arbitrators. Article 8 stated that one arbitrator was to be appointed by each party and the third arbitrator was to be the President of the H.H. Aga Khan National Council for the United Kingdom ("the UK Council") for the time being. Article 8(1) added what I shall refer to as "the JVA qualification requirement":
All arbitrators shall be respected members of the Ismaili community and holders of high office within the community.
What gave rise to the proceedings before the Supreme Court was that in July 2008 Mr Hashwani purported to appoint Sir Anthony Colman as an arbitrator under article 8 of the JVA (an event which I shall refer to as "the 2008 purported appointment"). The Supreme Court agreed with Mr Jivraj that the appointment was invalid as Sir Anthony did not meet the JVA qualification requirement.
Mr Hashwani advanced a contention that the JVA qualification requirement became void with effect from 2 December 2003 under the Employment Equality (Religion or Belief) Regulations 2003 ("the 2003 Regulations"). His contention was that the JVA qualification requirement constituted an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services. All members of the Supreme Court agreed with the part of Lord Clarke's judgment which rejected that contention. Lord Clarke's judgment explained that an arbitrator's role was that of an independent provider of services not in a relationship of subordination with the parties who received his services, and was not one of employment under a contract personally to do work. The result was that, applying relevant legal principles, the 2003 Regulations were not applicable to the selection, engagement or appointment of arbitrators.
The Supreme Court also held unanimously that, even though the 2003 Regulations implemented Council Directive 2000/78/EC in relation to discrimination on grounds of religion or belief, it was not necessary to refer the matter to the Court of Justice of the European Union. The reason why this was not necessary was that in a number of cases the Court of Justice had resolved the relevant issues so that the principles had become acte clair.
A complaint by Mr Hashwani dated 24 November 2011 was lodged with the European Commission in relation to the failure to refer the matter to the Court of Justice. That complaint has yet to be resolved.
In the present proceedings I am concerned with an aspect of the history which paragraph 3 of Lord Clarke's judgment noted as part of the background. Lord Clarke's judgment did not refer to it again. By late 1988 Mr Jivraj and Mr Hashwani had agreed to part company. Lord Clarke's judgment recorded that after some issues between them were resolved the parties then agreed to submit the remaining issues "to arbitration or conciliation" by a single member of the Ismaili community, namely Mr Zaher Ahamed.
Lord Clarke's judgment gives an overview of Mr Ahamed's work in a single sentence:
He issued a determination in December 1993, whereafter he had further exchanges with the parties until 1995, when he declared himself defeated.
A2. The present claim
A2.1 The claim as it stood in 2013
On 12 March 2013 Mr Hashwani issued the present claim, comprising a claim form and a draft order ("the 2013 claim"). It was accompanied by a witness statement made by Mr Hashwani on 12 March 2013 ("Hashwani 2013"). In that witness statement Mr Hashwani asserts that in 1990 he and Mr Jivraj entered into what he describes as a "Pre-Conditions arbitration agreement", which was implemented by the appointment of Mr Ahamed as arbitrator under an agreement of 14 July 1990 which he refers to as "the Ahamed arbitration agreement".
The 2013 claim did not set out the grounds relied upon. Instead it said that "brief details" of the claim were given in Hashwani 2013. This was unsatisfactory. Hashwani 2013 ran to 161 paragraphs. It combined evidence and argument in a way which made it impossible to know what matters were relied upon in support of any particular head of relief. This deficiency was remedied following a case management order in July 2013.
What was apparent, however, from Hashwani 2013 was that Mr Hashwani now takes a stance in which he admits two things which Mr Jivraj had maintained throughout the litigation concerning the 2008 purported appointment. They were both things which, at least until after the Supreme Court gave judgment on 27 July 2011, Mr Hashwani had denied. These two things are that Mr Ahamed acted as an arbitrator, and that his determination of December 1993 constituted an award issued to the parties in London on 17 January 1994. Mr Hashwani goes on to say in Hashwani 2013 that the award thus issued did not identify what figure was payable by whom, and submits that Mr Ahamed failed to make a final award and bring the disputes to a conclusion.
The draft order accompanying the claim form mainly sought relief under the Arbitration Act 1950 ("the 1950 Act"), that being the statute in force in 1990, when the arbitral proceedings before Mr Ahamed were begun. In the draft order Mr Hashwani sought, among other things, an order permitting either party to revoke Mr Ahamed's authority, an order...
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