Sharab v Al-Saud
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] EWHC 1893 (Ch) |
| Docket Number | Claim No: HC07C03194 |
| Court | Chancery Division |
| Date | 31 July 2008 |
[2008] EWHC 1893 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Claim No: HC07C03194
John L. Powell Q.C. sitting as a Deputy High Court Judge
THE CLAIM AND THE ISSUE FOR DETERMINATION
The Claimant (“ Mrs Sharab”) is a Jordanian national. The Defendant (“ the Prince”) is a Saudi Arabian national. Mrs Sharab's claim is for unpaid commission of US$10m allegedly payable by the Prince for her services as agent in relation to the sale of an Airbus 340 aircraft for US $120m to Colonel Muammar Gaddafi, the President of Libya (“ the President”). Mrs Sharab contends that she was engaged as agent pursuant to an oral contract made between her and the Prince's agent, Mr Fouad Alaeddin (“ Mr Alaeddin”), at a restaurant in London in August 2001 (“ the alleged contract”). She further contends that the contract was varied, again orally, at a meeting in April 2003 between her and the Prince in the latter's Boeing aircraft when parked at an airport in Libya (“ the alleged contract as varied”). She advances her claim on the basis of the alleged contract as varied, alternatively on a quantum meruit basis. The Prince disputes that any such contract or variation was made and that he is in any way liable.
Mrs Sharab applied ex parte for permission to serve her claim form out of the jurisdiction upon the Prince. Permission was granted. By his acknowledgment of service, the Prince disputes jurisdiction.
The issue for determination is whether the Prince is entitled to an order under CPR Part 11 declaring that the court has no jurisdiction to hear this claim, alternatively should decline to exercise any jurisdiction it may have. It is the Prince's case that the appropriate forum for the determination of any commission claim by Mrs Sharab is Libya.
THE PROCEEDINGS TO DATE
Proceedings were issued on 23 November 2007. At the same time, an application notice was issued seeking permission pursuant to CPR 6.20 to serve the Prince out of the jurisdiction in Saudi Arabia, supported by two witness statements, one from Mrs Sharab and the other from Mr Neil Meakin, a partner of Mrs Sharab's solicitors (“ Mr Meakin”).
The application for permission came before Lindsay J. ex parte on 21 December 2007. He ordered that Mrs Sharab be granted the permission sought and that the Prince should have 24 days from service of the claim form on him to respond, including by filing and serving an acknowledgment of service.
Solicitors acting on behalf of the Prince filed an Acknowledgement of Service dated 25 February 2008, stating the Prince's intention to contest this court's jurisdiction. On 10 March 2008, the same solicitors issued an application notice under CPR Part 11, seeking an order declaring that the court had no jurisdiction to try the claim because it was not the appropriate forum to try it. That application was supported by the first witness statement of Mr Rodney Baker, a partner of the Prince's solicitors (“ Mr Baker”). Mr Baker contends that the appropriate forum to try the claim is Libya. Norris J. gave directions on 9 March 2008 for service of further evidence and for adjournment of the application for a one day hearing, which in the event took place on 3 July 2008.
Further statements were served by Mr Baker and Mr Meakin attaching letters from experts as to issues of Libyan law and court practice. Dr Mohammad Tumi, the managing partner of Tumi Law Firm of Tripoli, Libya, (“ Dr Tumi”) was instructed on behalf of the Prince. His opinion as to relevant issues is contained in letters dated 6 March 2008, 21 May 2008 and 1 July 2008. Dr D. Ben Abderrahmane of Ben Abderrahmane & Partners, also of Tripoli, Libya, (“ Dr Abderrahmane”) was instructed on behalf of Mrs Sharab. His opinion as to relevant issues is contained in letters dated 23 April 2008 and 24 June 2008.
Substantial skeleton arguments supported by several authorities were provided by counsel for both parties, Mr Ken Craig for Mrs Sharab and Mr Christopher Pymont QC for the Prince. The hearing was followed by salvoes of further written submissions and authorities. The further submissions pertained in part to the judgment of Christopher Clarke J. in Cherney v. Deripaska [2008] EWHC 1530 (Comm) which was handed down on 3 July 2008, the day of the hearing in the present matter. I record my gratitude to both counsel for their submissions.
THE FACTS
Mrs Sharab gives her account of events in a long statement. This and an attached bundle of documents run to some 275 pages, although many documents are English translations of documents written in Arabic. Mr Baker gives a short account (some 8 pages) of his understanding of relevant events in his first statement. His account is drawn principally from Mr Alaeddin's comments on Mrs Sharab's statement. These comments were obtained by a senior assistant solicitor of Mr Baker's firm at a meeting with Mr Alaeddin. Mr Baker's first statement also reflects unspecified subsequent communications. Mr Baker deals with the position of Mr Alaeddin, the alleged contract at the restaurant in September 2001 and the Prince's case as to why the claim does not satisfy criteria for service out of the jurisdiction. Neither Mr Alaeddin nor the Prince has himself provided a witness statement.
Mrs Sharab
According to her statement, Mrs Sharab has, over the years, had links with Saudi Arabia, Jordan, London and Libya. She 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 interest in the name of an offshore company. She also has a house in Amman, 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 3 months a year, 2 of which are spent in London during summer. She travels regularly to Libya where she has extensive business interests.
Mrs Sharab is a business woman of some personal wealth and substance. She runs her own consultancy company, the Trans Arab World for Commercial Mediation (“ TAWCO”), based in Jordan. She is a director and the chairman of the company and owns 65%of its equity, the balance being owned by her father. The company has offices and around 20 employees in Jordan and retained profits amounting to 20m Jordanian Dinar (approximately £14m) and annual fee income of between 1m and 5m Jordanian Dinar. 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. She gives examples of clients including enterprises of international repute.
The Prince
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. This does not appear to be in dispute, despite the lack of specific comment by Mr Baker.
Mr Alaeddin
In their statements, Mrs Sharab and Mr Baker describe Mr Alaeddin as 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 (and thus after the alleged contract). He adds that Arthur Andersen Middle East was a completely separate partnership from Arthur Andersen in London, that Mr Alaeddin was not a partner of the latter firm and that he only rarely visited its offices during his regular trips to London. According to Mrs Sharab, Mr Alaeddin is a family friend from Jordan, whom she has known for a long time.
As to Mr Alaeddin's relations with the Prince, Mr Baker describes Mr Alaeddin as having known the Prince for over 20 years as a client. In his capacity as a partner of first Arthur Andersen Middle East and then Ernst & Young, Mr Alaeddin 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 gives evidence to like effect.
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 into contracts on his behalf, nor has he held himself out as having such authority.
Background history: Mrs Sharab and Libya
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. These included transactions involving the purchase by LAFICO of interests in hotel companies, including companies owning hotels in London and Jordan. Another series of transactions involving LAFICO was the subject of a successful claim in this jurisdiction by Mrs Sharab against Mr Usama Salfiti for payment on a quantum meruit basis for services rendered by her. Ferris J.'s judgment in her favour was the subject of an unsuccessful appeal to the Court of Appeal: Sharab v. Salfiti ( 12.12.96 unreported). In his judgment Ferris J. described Mrs Sharab as “clearly a woman of considerable...
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