Sana Hassib Sabbagh v Wael Said Khoury
| Jurisdiction | England & Wales |
| Judge | Mr Justice Robin Knowles |
| Judgment Date | 31 May 2018 |
| Neutral Citation | [2018] EWHC 1330 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2013-000666 |
| Date | 31 May 2018 |
[2018] EWHC 1330 (Comm)
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Robin Knowles CBE
Case No: CL-2013-000666
Laurence Rabinowitz QC, John WardellQC, Simon ColtonQC andJames Walmsley (instructed by Mishcon de Reya LLP) for the Claimant
Philip Edey QC and Andrew Fulton (instructed by Baker & McKenzie LLP) for the Eighth Defendant
Jessica Hughes (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Fifth, Sixth and Tenth Defendants
Hearing dates: 27–28 February 2018
Judgment Approved
Introduction
The Claimant (“Sana”) and the Fifth and Sixth Defendants (“Samir” and “Suheil”) in this litigation are siblings. They are respectively the daughter and two (younger) sons of the late Mr Hassib Sabbagh (“Hassib”).
Hassib was one of the founders of what became the Consolidated Contractors Company group of companies (“the CCC group”), the largest group of engineering and construction companies in the Middle East. The Eight Defendant (“CCG”) is the Lebanese holding and ultimate parent company in the CCC group. The Tenth Defendant (“HH”) is a Lebanese company owned and controlled by Samir and Suheil.
The First Defendant, Mr Wael Said Khoury (“Wael”), is domiciled in England and Wales. The other Defendants are brought within the jurisdiction of the courts of England & Wales as necessary and proper parties to the litigation against Wael and under Article 6(1) of the Brussels Regulation.
The brothers, Samir and Suheil, together with CCG and HH, are also claimants in an arbitration seated in the Lebanon (together “the Arbitration Claimants” in “the Lebanese Arbitration”).
The Lebanese Arbitration was commenced against Sana after Sana had commenced this litigation. Sana contends that there is no agreement to arbitrate, and has taken no part in the arbitration. The tribunal in the Lebanese Arbitration has ruled that it has jurisdiction. This has been without argument on behalf of Sana.
As appears below, the Arbitration Claimants have tried and failed in an attempt to obtain from the courts of this jurisdiction a mandatory stay of the litigation here by reason of the Lebanese Arbitration.
Sana now applies for an interim injunction from this court to require the Arbitration Claimants not to prosecute the Lebanese Arbitration, to take steps to stay it, and not to seek recognition or enforcement of any award made in that arbitration. The proposed order would be subject to a permission to apply in material change of circumstances.
The two material claims
Two claims are material. They have been described individually as “the asset misappropriation claim” and “the share deprivation claim”.
In a decision dated 28 July 2017 ( [2017] EWCA Civ 1120) the Court of Appeal of England & Wales (Gloster V-P, Patten and Beatson LJJ) summarised these two claims as follows:
“7. On 29 June 2002 Hassib [Sana's father] suffered a severe stroke which incapacitated him for the rest of his life and, it is alleged, rendered him unable to make any business decisions or to manage his own affairs. In proceedings issued in the High Court on 9 July 2013 [Sana] alleged that the principal defendants conspired from a date shortly after Hassib's stroke to misappropriate assets belonging to Hassib and that since his death in 2010 they have also conspired to deprive her of her entitlement to the shares in CCG which she claims belonged to Hassib at the date of his death. These two claims have been labelled the asset misappropriation claim and the share deprivation claim and, for convenience, we shall adopt the same terminology.
8. The asset misappropriation claim relates for the most part to dividends from Hassib's shares in CCG which were used either to make investments in other companies and property or to meet expenses such as the running costs of an aircraft. It is not in dispute that before his stroke Hassib used and authorised CCIC [Consolidated Contractors International Company, a company in the CCC group and the Ninth Defendant] to pay family expenses and charitable donations out of his income from dividends and other investments. But the allegation is that, following Hassib's stroke, accumulated dividends and other income were used knowingly by the defendants (other than [the Seventh Defendant] and HH) to make improper or unauthorised investments in their own names and that, when sold, the proceeds of sale from these investments were not accounted for or applied for the benefit of Hassib. To the extent that they would otherwise have formed part of Hassib's estate on death, [Sana] seeks damages for conspiracy based on the value of the misappropriated assets.
9. The share deprivation claim depends on Hassib having retained ownership of shares in CCG at the date of his death. [Sana] relies on a confirmation by the Commercial Registry in Beirut (“the Commercial Registry”) dated 16 January 2010 that its register contained an entry which records that, as at 10 May 2009, Hassib continued to hold 399,915 shares in CCG. She alleges that following her father's death, the defendants conspired to deprive her of her entitlement under Lebanese law to a third of this shareholding by unlawfully procuring the transfer of the shares to HH.”
I am satisfied that the claims pursued in, or the issues truly in dispute in, the Lebanese Arbitration, commenced by the Arbitration Claimants shortly after Sana commenced the present litigation in this jurisdiction, are within the two claims described above. There is ample material to demonstrate this identity of claims or issues, but perhaps the clearest is a passage in a Memorial on Jurisdiction dated 8 October 2015 submitted by three of the Arbitration Claimants. This stated at paragraph 201 that the claims brought by the Arbitration Claimants in the Lebanese Arbitration “correspond in substance” to the share deprivation claim and the asset misappropriation claim.
Mr Philip Edey QC (appearing with Mr Andrew Fulton and whose joint argument for CCG represents the position of all the Arbitration Claimants, with Ms Jessica Hughes also appearing) contends that the presence of an allegation of dishonest conspiracy in the litigation in this jurisdiction distinguishes the two claims from the claims also pursued in the Lebanese Arbitration. In my judgment the contention does not, with respect, meet the key point for present purposes which is, as I have said, that the claims pursued in, or the issues truly in dispute in, the Lebanese Arbitration are within the two claims described above.
Article 45 of the Articles of Association of CCG
The Arbitration Claimants rely on Article 45 of the Articles of Association of CCG (“the Articles”) to give jurisdiction to the Lebanese Arbitration in respect of the two claims.
That Article is in these terms:
“Disputes
Every dispute arising during the course of the existence of the company or during its liquidation, whether between shareholders themselves or between shareholders and the company itself, shall be solved through mediation or else through arbitration according to the regulation put in place by the First Board of Directors …, provided that the general shareholders assembly has approved it.
Disputes are divided into two kinds:
A) Individual disputes in which the aggrieved party has the right to file a claim according to the directives of Article 166 of the Trade Act against the company, and which the shareholders are not permitted to halt through the balloting process via the general shareholders assembly for the purpose of releasing from responsibility the members of the Board of Directors
B) Disputes involving the general interests of the company; these cannot be directed against the Board of Directors or against one of its members except in the name of and on behalf of a group of shareholders, and in accordance with a decision from the regular general shareholders assembly.”
The decision of the Court of Appeal of England & Wales
It was in its decision dated 28 July 2017, from which I have quoted above, that the Court of Appeal of England & Wales addressed, at the request of the Arbitration Claimants, the question whether a mandatory stay of the litigation in favour of the Lebanese Arbitration must be imposed. The Court of Appeal concluded, in favour of Sana, that the answer was no.
The reasoning of the Court of Appeal was as follows:
“ Article 45: asset misappropriation claim
122. It was common ground that the only way by which the claimant could be bound by Article 45, in relation to the asset misappropriation claim, was in her capacity as Hassib's heir. Sana was not, and nor did she claim an entitlement to have been, a shareholder in CCG at any time relevant to this claim.
123. Moreover, as the judge recorded at [246]–[248], the parties' experts on Lebanese law were in effect agreed that Sana would only be bound insofar as the asset misappropriation claim was based on the contract containing the arbitration clause; that is the articles of association. Therefore, regardless of the scope of Article 45, the claimant would only be bound by it if the asset misappropriation claim was based on CCG's articles of association.
124. In our view the asset misappropriation claim is not based on CCG's articles of association, either when made by Sana in her own right or when brought in her capacity as Hassib's heir....
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