Sana Hassib Sabbagh v Wael Said Khoury and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWHC 3233 (Comm) |
| Docket Number | Case No: 2013 – 924 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 10 October 2014 |
[2014] EWHC 3233 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mrs Justice Carr DBE
Case No: 2013 – 924
Lord Anthony Grabiner QC, Mr Laurence Rabinowitz QC, Mr Simon Colton and Ms Emma Jones (instructed by Macfarlanes LLP) for the Claimant
Mr Andrew Hunter QC and Mr Andrew Scott (instructed by Jones Day) for the 1st Defendant
Mr Philip Edey QC and Mr Andrew Fulton (instructed by Baker and McKenzie LLP) appeared for the 2 nd, 3 rd, 4 th, 8 th and 9 th Defendants
Mr Alexander Layton QC, Ms Jessica Hughes and Ms Leonora Sagan (instructed by Olswang LLP) appeared for the 5 th, 6 th, 7 th and 10 th Defendants
Hearing dates: 23, 24, 28, 29, 30th July 2014
Introduction
Ms Sana Hassib Sabbagh, the Claimant ("Sana"), is the eldest of the three children and the only daughter of the late Hassib Sabbagh ("Hassib") and the late Diana Tamari. Hassib died intestate on 12 th January 2010, having suffered a cerebral haemorrhage on 29 th June 2002. Hassib was until that time one of the driving forces in the Consolidated Contractors Company group of companies ("the CCC group") alongside Mr Said Toufic Khoury the Second Defendant ("Said"), with whom he founded the CCC group in 1950. The CCC group is the largest engineering and construction group in the Middle East, now operating globally and valued recently at US$5 billion.
Sana seeks to pursue claims against various family members and companies owned and/or controlled by them in relation to alleged financial wrong-doing on their part since her father's stroke and subsequent death. The families involved, namely the Sabbagh and Khoury families, are well-known and prominent Lebanese families. The companies involved are all incorporated in Lebanon. The CCC group has been involved in high profile litigation in this jurisdiction in the past, specifically between 2005 and 2011 ("the Masri litigation") — see for example Munib Masri v Consolidated Contractors International Company SAL and others [2011] EWCA Civ 21.
Mr Wael Said Khoury, the First Defendant ("Wael"), is a cousin of Sana and now the non-executive chairman of the Eighth Defendant ("CCG"). Said is Wael's father (and so Sana's uncle). Mr Samer Said Khoury and Mr Toufic Said Khoury, the Third and Fourth Defendants respectively ("Samer" and "Toufic"), are Wael's brothers. Mr Samir Hassib Sabbagh and Mr Suheil Hassib Sabbagh, the Fifth and Sixth Defendants respectively ("Samir" and "Suheil"), are Sana's brothers. Mr Wahbe Abdallah Tamari, the Seventh Defendant ("Wahbe"), is another cousin of Sana.
Said is currently the president of the CCC group. Samer and Toufic are directors of CCG. CCG and Consolidated Contractors International Company SAL (Offshore), the Ninth Defendant ("CCIC"), are member companies of the CCC group. Since its formation in 1984, CCG has been the ultimate parent company for the CCC group. Each of the individual Defendants, except Samir, is a member of the board of directors of CCG. Hassib Holding SAL ("HH") is a Lebanese company of which Samer, Samir, Suheil and Wahbe are directors and which is owned equally by Samir and Suheil.
In summary, Sana, who lives in New York, claims that the Defendants have variously, since her father's stroke, conspired against both him and her to misappropriate his assets ("the asset misappropriation claim") and, since her father's death, to work together to deprive her of her entitlement to shares in CCG ("the share deprivation claim"). Wael is the anchor defendant for jurisdictional purposes. He resides and has at all material times resided in London. The other Defendants live or are based abroad. So, for example, Said, Samer, Toufic, Samir and Suheil are resident in Greece.
Proceedings were commenced by claim form issued on 9 th July 2013 (subsequently amended in September 2013). The claim form states that the claim is brought by Sana " both i) as a claim of her late father, which she is permitted to bring as his heir; and/or ii) in the Claimant's own right, as a victim of the wrongs done by these Defendants."
Particulars of Claim followed dated 15 th January 2014 alleging conspiracy against all of the Defendants. The value of the share deprivation claim is estimated at in excess of US$520 million and is pleaded as Sana's primary claim. The value of the asset misappropriation claim is estimated at the relatively modest sum of some US$75 million.
By this time, however, Wael, Said, Samer, Toufic, Samir, Suheil, CCG and CCIC had served acknowledgments of service indicating an intention to dispute jurisdiction. Wahbe and HH followed suit in March and June 2014 respectively.
Those intentions were made good when, in October and November 2013, all the Defendants (save for Wahbe and HH) issued applications for a stay of the proceedings on the grounds that either the Court has no jurisdiction to hear the proceedings, alternatively should not exercise any jurisdiction that it might have. Wahbe issued the same application in March 2014, followed by an application from HH in June 2014 to set aside service.
Accordingly, no defences have been served to date by any of the Defendants. Nor has disclosure taken place, although Sana's advisers have had access to certain company records. Rather, the Defendants bring jurisdictional challenges as set out more particularly below ("the jurisdiction applications"). These applications are the matters for present determination.
Consistent with the significant volume of material generated for the jurisdictional applications mentioned more particularly below, the jurisdictional issues have created the opportunity for each side to level heated personal accusation and counter-accusation at the other.
Thus for Sana it is said that the jurisdiction applications appear to have been raised solely for the purpose of delaying the progress of Sana's claims and that the Defendants' attacks are typical of the " plagues of modern litigation" referred to by Phillips LJ in New Hampshire Insurance Co and others v Philips Electronics North America Corp [1998] CLC 1062 (at 1067). It is said that the Defendants and their advisers have shown a general disregard to the Claimant and the Court in the manner in which they have conducted their defences. Reference is made to the Defendants' alleged notoriety in this jurisdiction for their alleged involvement and conduct in the Masri litigation.
For the Defendants it is said that Sana has sought to " shoe-horn" her claim into England by the " device" of framing her claim in conspiracy and naming the only one of her cousins who lives in England as an " anchor" defendant. The Court is invited to " see through [her] charades, to recognise [her] claim for the blatant exercise in forum shopping that it is, and to decline or refuse to exercise jurisdiction accordingly" (see paragraph 5 of the written skeleton argument for Wael). Samer (in his third witness statement) describes Sana as " an extraordinarily greedy and selfish person", " renowned in both families for her parsimony and greed".
For the purpose of these applications alone, the Court has been provided with no fewer than thirty bundles of documents. Those bundles contain forty-two witness statements, together with the following expert reports (accompanied by sixteen bundles of exhibits):
a) on Lebanese law: from Professor Elie Bacache for Sana; from Professor Marie-Claude Najm, Mr Rene Abirached and Professor Hadi Slim for the Defendants;
b) on Greek law: from Professor Lekkas for Sana; from Professor Polyzogopoulos for the Defendants;
c) on the availability of Lebanon as a forum: from Dr Reinoud Leenders for Sana; from James Fallon, Professor Slim, Mr Abirached and President Sami Mansour for the Defendants.
To that one adds some three hundred pages of written argument and six bundles of authorities. The hearing itself lasted five days, involving some eleven counsel spread amongst four teams of representatives.
The position is thus very far removed from that envisaged by Lords Templeman and Goff in Spiliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 (at 465 G – H) where it was hoped that future submissions on the merits of trial in England and trial abroad would be measured " in hours and not days". Nor is it consistent with the recent opinion of Lord Neuberger in VTB Capital plc v Nutritek International [2013] UKSC 5 at paragraphs 82 to 83:
" 82. The first point is that hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost. There is also a real danger that, if the hearing is an expensive and time-consuming exercise, it will be used by a richer party to wear down a poorer party, or by a party with a weak case to prevent, or at least to discourage, a party with a strong case from enforcing its rights.
83. Quite apart from this, it is simply disproportionate for parties to incur costs, often running to hundreds of thousands of pounds each, and to spend many days in court, on such a hearing. The essentially relevant factors should, in the main at any rate, be capable of being identified relatively...
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