Al Saif Group v Robert Thomas Cable
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] EWHC 271 (QB) |
| Docket Number | Claim No: QB-2020-002695 |
| Court | Queen's Bench Division |
[2022] EWHC 271 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Griffiths
Claim No: QB-2020-002695
Tom Nixon (instructed by Eversheds Sunderland (International) LLP) for the Claimant
Christopher Buckingham (instructed by Mantilla & Stonerwood, Solicitors) for the Defendant
Hearing dates: 25–28 January 2022
THE HON.
The claimant (“ASG”) brings this action to claim monies due and unpaid under a Settlement Agreement between ASG and the defendant under seal dated 19 December 2013 (“the Deed”). Under the Deed, the defendant was to pay ASG by instalments sums equivalent to a total of 24,630,000 Saudi Arabian Riyals (SAR), which was, at the time the Deed was signed, about £4 million.
The defendant claims that the Deed “should be set aside, such contract having been induced by duress” (Defence and Counterclaim prayer for relief, para 1). He also counterclaims for repayment of the only payment he did make, which was £20,000. This is on the basis (in para 13 of the Defence and Counterclaim) that he made the payment as a direct result of “the threats of arrest and imprisonment” alleged to have been made by Mr Al Saif to the defendant on 22 November and 19 December 2013. There was provision for the defendant to cover legal expenses in clause 2.1 of the Deed.
The whole case, therefore, turns on whether the defendant can establish, both in fact and in law, his claim that the Deed is unenforceable or should be set aside on the basis that it was induced by duress, and that the £20,000 was paid under duress. (The Defence also pleads that no contract was entered into between the parties and/or that there was no consideration, but these points have been abandoned.)
I will also in this judgment refer to a document in substantially the same form as the Deed, but dated earlier, on 14 December 2013 (“the Contract”).
The allegation of duress
An important feature of the case is that the duress alleged and relied on is physical duress (duress to the person) and not economic duress. The defendant's Counsel made that clear in his submissions. Although the defendant gave evidence that he also feared the economic consequences to himself if he did not comply with the claimant's wishes, these are not pleaded in his Defence and Counterclaim and were not relied upon in submissions, perhaps recognising obstacles to establishing a claim of economic duress in the light of Times Travel (UK) Ltd v Pakistan International Airlines Corpn [2021] UKSC 40.
The duress to the person alleged in the Defence is that Al Saif Group, acting through its founder and director Mr Al Saif, “contrived a situation whereby the defendant was threatened with arrest and imprisonment by the Police of the KSA [i.e. Kingdom of Saudi Arabia]” (Defence para 3(iii)).
The particulars of this duress to the person are pleaded in para 6 of the Defence as follows:
“(e) On the 19th November 2013 the Defendant received an email from Mr Amir Sohail Rammay (Mr A.S. Rammay), the Chief Financial Officer of the Claimant, enclosing a translation of documentation relating to the Saudi Proceedings.
(f) On the 22nd November 2013 [Mr Al Saif] invited the Defendant to a meeting at his Riyadh home address and threatened the Defendant with immediate arrest and imprisonment. Two KSA uniformed Police Officers were present. In fear of the Defendant's liberty, the Defendant signed a document prepared by [Mr Al Saif]… and [Mr Al Saif] instructed the Defendant to hand write a letter, the wording of which was dictated by [Mr Al Saif]… (“the First Meeting”).
(g) On the 19th December 2013 [Mr Al Saif] invited the Defendant to his offices located in Riyadh KSA. At this meeting [Mr Al Saif] presented a typed document to the Defendant [i.e. the Deed] and informed the Defendant that if he did not sign the typed document the Defendant would be immediately arrested and imprisoned. In fear of the threat made by [Mr Al Saif], the Defendant signed the Settlement Agreement [i.e. the Deed]”.
The Saudi Proceedings referred to in para (e) of that passage are not defined in the pleading but it is evident from the reference to a translation being enclosed with the email of 19 November 2013, both of which I have seen, that this was a civil claim in the Riyadh General Court (“the Saudi Civil Action”) for the sum of 24,630,800 Saudi Arabian Riyals (SAR). That is, in round figures, the same as the figure of 24,630,000 SAR which the Deed dated 19 December 2013 later required the defendant to pay.
I have set out the pleadings in some detail at the outset because the case must be decided on the basis pleaded. Although not settled by Counsel, at least two Counsel for the defendant have been content with the original Defence and Counterclaim and have chosen not to amend it. At a Costs and Case Management Conference before Master Eastman on 29 July 2021, the defendant was represented by Counsel and there was discussion of the issues in the case for the purpose of setting the limits of disclosure (para 4 of the Order of Master Eastman). This included (I am told) discussion of the defendant's pleading. At the trial before me, the defendant was represented by different Counsel from the same chambers as Counsel who appeared before Master Eastman. Again, there was focus on the precise nature of the case being argued, based on the pleading.
The defendant's Counsel did not attempt to go beyond the pleading, nor did he apply to amend it. Instead, he argued that his case was correctly and sufficiently pleaded as it was. It is therefore, not only correct, but also just, that the case should be decided on the pleaded case and that I should pay attention to precisely what is said in the Defence and Counterclaim to have constituted the duress to the person which entitles the defendant to resist enforcement of the Deed.
The Deed upon which this action is brought is dated 19 December 2013 and it is common ground that it was executed on that date. It is now also common ground that, subject to the plea of duress, it is enforceable against the defendant.
It will be seen from the plea in para 6 (g) of the Defence (quoted in para 7 above) that the defendant's case is not that the police were present when he executed the Deed (that being alleged only on 22 November 2013 when he signed the Typed Confession and the Handwritten Agreement which I consider at para 109 below) but that Mr Al Saif told him that, if he did not sign it, he would be “immediately arrested and imprisoned”, and that he then signed it “in fear of the threat”. This is then the basis of the plea that the defendant was “induced to enter into [the Deed]… by duress” in para 11 of the Defence.
The central issue, as to whether the Deed is unenforceable by reason of duress to the person in the form of a threat of immediate arrest and imprisonment if it were not signed, depends on multiple disputes of fact, which I will resolve in the course of my detailed examination of the evidence.
I will first find the facts, deciding those which are in dispute, and then consider and apply the law applicable to those facts.
THE WITNESSES
I heard evidence from Mr Al Saif and the defendant Mr Cable. I also heard evidence by video link from Mr Jeremy Marshall (Head of Litigation and a partner in Irwin Mitchell LLP at the material times) on behalf of the claimant, and from Mr Lindsay Sales (a former colleague of the defendant in Saudi Arabia) on behalf of the claimant.
All four of the witnesses had weaknesses.
Mr Al Saif and the defendant were not independent witnesses, of course, but, more than that, both of them said things which were incredible and neither of them persuaded me that they were credible or reliable. I will examine their evidence on the key events in due course, but I will at this point give more general examples.
Mr Al Saif queried his signature to documents on the basis that they were in the bundle as copies (although their authenticity was not challenged) and he countered a number of questions with an enquiry about why the question was being asked. He denied having read, seen or received an email dated 19 November 2013 which was from his Chief Financial Officer to Mr Cable and in which Mr Al Saif was the only other person copied in (a document I consider at para 87 below, which is of some importance in the case). He strongly denied in cross examination that he had been (wrongly, it seems) imprisoned in Saudi Arabia between 2009 and 2012, but would not explain how this was consistent with his signed and filed witness statement dated 16 September 2016 in support of an English private prosecution in which he said “On 26 April 2009 I was arrested and detained on account of false allegations of forgery and bribe… I was released on 23 February 2012”. I take account of the fact that his English was not always fluent (and he had some initial difficulties in reading passages of English aloud when asked to do that) but, even so, his wariness meant that he did not present as a witness likely to say or accept anything against his own interests, even when documents appeared to make that unavoidable.
Mr Cable admitted signing a false statement in Saudi legal proceedings and presented that as an error of judgment rather than a failure of integrity (see para 180 below). He satisfied Mr Sales that he was “both a credible person and being honest in what he was telling me” at the time of the events in November and December 2013 which are central to the evidence in this case. But Mr Sales was clearly very surprised by what he heard in the course of the trial (before he gave evidence, as the last witness). Mr Cable had not told him the full story at all, and this was established...
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