Sharab v Al-Saud
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Rimer,Lady Justice Arden |
| Judgment Date | 30 April 2009 |
| Neutral Citation | [2009] EWCA Civ 353 |
| Docket Number | Case No: A3/2008/2085 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2009 |
[2009] EWCA Civ 353
Lady Justice Arden
Lord Justice Richards and
Lord Justice Rimer
Case No: A3/2008/2085
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr John L Powell Qc
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Pymont QC (instructed by Hogan & Hartson) for the Appellant
Kenneth Craig (instructed by TLT Solicitors) for the Respondent
Hearing date: 26 February 2009
The claimant (“Mrs Sharab”) claims commission of US$10 million allegedly payable by the defendant (“the Prince”) for her services as agent in relation to the sale of an Airbus 340 aircraft by the Prince to Colonel Gaddafi, President of Libya (“the President”). She issued her claim form in November 2007 and on an ex parte application was granted permission for service on the Prince out of the jurisdiction. The Prince then applied for an order under CPR Part 11 declaring that the court had no jurisdiction to hear the claim, alternatively that it should not exercise any jurisdiction on the ground that this is not the appropriate forum for determination of the claim. Mr John L. Powell QC, sitting as a deputy judge of the High Court, dismissed the application. The Prince now appeals against the deputy judge's order.
The facts
The deputy judge's account of the facts was based largely on (i) a long witness statement by Mrs Sharab which was filed, together with supporting documents, in support of the application to serve the Prince out of the jurisdiction; and (ii) a much shorter witness statement by Mr Rodney Baker, a partner in the firm of solicitors acting for the Prince, which was filed in support of the Prince's application contesting the court's jurisdiction and which included information given to Mr Baker by the Prince and Mr Alaeddin (whose alleged role in events is described below). The following is drawn from the deputy judge's account.
According to her statement, Mrs Sharab was born in 1961 in Saudi Arabia, where she lived for 18 years before moving to Jordan. She divides her time between London, Jordan and Libya. Since 1988 she has “lived in London” for at least 3 months annually, except between 1995 and 1998 when she again lived in Saudi Arabia. She has an apartment in London which is held on a long leasehold in the name of an offshore company. She also has a house in Jordan “where I live when I am not away working in Libya, staying in London or travelling”. She has a teenage daughter who lives and attends school in Jordan. Owing to extensive business commitments she is only able to spend entire days with her daughter for about three months a year, two of which are spent in London during summer. She travels regularly to Libya where she has extensive business interests. She runs her own consultancy company, the Trans Arab World for Commercial Mediation (“TAWCO”), based in Jordan. She conducts most of her business on behalf of TAWCO from Jordan and some from London. A major part of TAWCO's business is effecting introductions for clients in Libya.
Mrs Sharab describes the Prince as a member of the Saudi royal family, being a grandson of the first king of Saudi Arabia and one of the world's richest men, with extensive and substantial interests throughout the world. Mr Baker did not comment on this description.
The events described by Mrs Sharab also involved a Mr Alaeddin, an accountant and managing partner of Arthur Andersen Middle East and latterly of Ernst & Young Middle East (which he joined, according to Mr Baker, in July 2002). Mr Baker describes Mr Alaeddin as having known the Prince for over 20 years as a client. In his capacity as a partner in the accounting firms referred to, he has provided and continues to provide professional services ranging from accountancy to business advisory and corporate finance services, under a retainer to the Prince and his companies. Mrs Sharab alleges that it was a matter of common knowledge that Mr Alaeddin was the Prince's personal representative. Mr Baker records Mr Alaeddin's categorical denial of this allegation and his assertion that he has never been an agent or personal representative of the Prince with authority to enter contracts on his behalf, nor has he held himself out as having such authority. Mr Baker also states that he was told by the Prince that Mr Alaeddin was never his agent or personal representative and that he had never given authority to Mr Alaeddin to enter into contracts on his behalf.
Mrs Sharab relates that she first met the President in about March 1988 at a conference in Tripoli, after which she was encouraged to introduce clients to the Libyan Arab Foreign Investment Office (“LAFICO”). She describes several large transactions in relation to which she acted as introducing agent on behalf of clients dealing with LAFICO and the President.
According to Mrs Sharab, when living in Saudi Arabia between 1995 and 1998 she was “introduced to the Prince's affairs” by Mr Alaeddin. She describes a series of tasks which she maintains she was asked by Mr Alaeddin to carry out on behalf of the Prince. She states that, at Mr Alaeddin's request, she arranged for the Prince to meet the President in Libya in 1999 and that thereafter she worked for the Prince in relation to various projects and matters in Libya.
The specific events with which the claim is concerned commenced, according to Mrs Sharab, with a telephone call from the Prince at the beginning of August 2001, in which he stated that he had two aircraft (an Airbus and a Boeing) and wished to sell one of them. He requested her to meet him in Cannes and to arrange a meeting there with the chairman of LAFICO to discuss tourism investment issues and an agricultural investment project in Egypt (“Project Toushca”) run by one of the Prince's companies. Mrs Sharab met the Prince in Cannes on about 7 August 2001, when he reiterated his wish to sell one of his aircraft and suggested that the President was a potential buyer. Her account continued:
“During this conversation, the Prince told me that he would pay me commission for effecting an introduction to the President and arranging the deal, but we did not discuss how much commission I would be paid.
The Prince instructed me not to start to negotiate the sale of the aircraft until the new plane was ready. That was likely to be a considerable period of time as he had a number of personal requirements and extra equipment to be added. He said he would sent Mr Alaeddin to agree a contract with me. I left Cannes on or about 8 August and returned to London.”
Mrs Sharab next describes meetings on about 15 August and 22 August relating to the other matters on which the Prince had requested her assistance, before turning to a meeting in London which is central to the present claim:
“On 25 August 2001, the Prince sent Mr Alaeddin after me to London to meet with me and discuss the proposed sale of one of the Prince's aircraft to Libya for the President, as the Prince had informed me he would do. We met in a London restaurant, Ayoush, James Street, London W1. The sole purpose of Mr Alaeddin's visit, so far as I was aware, was to discuss this deal and agree the terms on which I was to act. Mr Alaeddin told me that the Prince would pay me US$2 million commission if I could sell either one of the aircraft to Libya for the President and US$1 million commission if I could secure an investment in Project Toushca. No prices were discussed at this stage as to how much the Prince wanted for each aircraft as it was not yet known which one, (if at all), would be able to be sold. The Prince wanted to obtain an investment of US$20 million in Project Toushca. As Mr Alaeddin represented the Prince, I considered this to be a firm offer, which I accepted verbally. When I did so I was acting in a personal capacity and not through TAWCO, as indeed was the position in all of my dealings with the Prince. Nevertheless, I told Mr Alaeddin that I would still like to hear confirmation of this commission directly from the Prince.”
According to Mr Baker's statement, Mr Alaeddin's account is different. He acknowledges that he used to meet Mrs Sharab at the Ayoush restaurant when he was in London on business, generally in the summer months. He estimates that he met her there on approximately five occasions. At these meetings they discussed many issues concerning Libya, some related to the Prince's business and others not. He recalled discussing the possible sale of one of the Prince's aircraft to Libya and the possible investment by Libya in Project Toushca on one or more of these occasions, although he did not think that he would have travelled to London specifically to meet Mrs Sharab at the Prince's request. He did not recall putting any offer to her nor discussing specific commission amounts with her, in relation either to the proposed aircraft sale or the investment in Project Toushca, at those meetings. He certainly had no recollection of the figures referred to in Mrs Sharab's statement. In relation to the aircraft sale, he doubted that they would have discussed figures at such an early stage, when it had not even been decided which of the Prince's two aircraft was to be sold. He did not recall offering or entering into any sort of agreement with Mrs Sharab, for the figures alleged in her statement, at the meeting. He simply did not have the authority to enter into contracts on behalf of the Prince and it was not his job to do...
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