The High Commissioner for Pakistan in the United Kingdom v Prince Mukkaram Jah, His Exalted Highness the 8th Nizam of Hyderabad and Others (Defendants/Interpleader Claimants) National Westminster Bank Plc (Defendant/Stakeholder)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 21 June 2016 |
| Neutral Citation | [2016] EWHC 1465 (Ch) |
| Docket Number | Case No: HC-2013-000211 |
| Court | Chancery Division |
| Date | 21 June 2016 |
[2016] EWHC 1465 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
Mr Justice Henderson
Case No: HC-2013-000211
and
Mr Khawar Qureshi QC and Mr Jonathan Brettler (instructed by Stephenson Harwood LLP) for the Claimant
Mr Eason Rajah QC and Mr Leon Pickering (instructed by Withers LLP) for the 8th Nizam of Hyderabad
Mr Hodge Malek QC, Mr Dakis HagenandMr Jonathan McDonagh (instructed by Russell-Cooke LLP) for Prince Muffakham Jah
Mr Timothy Otty QC, Mr Harish Salve SA, Ms Clare ReffinandMr James Brightwell (instructed by TLT LLP) for India
Hearing dates: 2, 3, 4 and 17 March 2016
Introduction
I heard argument over four days in March 2016 on various applications for summary disposal of significant parts of the rival claims to beneficial ownership of a fund ("the Fund"), now amounting to approximately £35 million, which since September 1948 has been held by the National Westminster Bank Plc (or its predecessor, the Westminster Bank Ltd) ("the Bank") in an account ("the Account") which was opened in the name of the first High Commissioner for Pakistan in the United Kingdom, Mr Habib Ibrahim Rahimtoola ("Mr Rahimtoola").
The background to the opening of the Account, the legal proceedings in England to which it gave rise, and the general nature of the rival claims to beneficial ownership of the Fund, are briefly described in the judgment which I handed down at an earlier stage of the present action in January 2015: see The High Commissioner for Pakistan in the United Kingdom v National Westminster Bank Plc and Others [2015] EWHC 55 (Ch). I will refer to that judgment as "the Discontinuance Judgment", because the applications upon which I then had to rule related to the purported discontinuance by Pakistan of the proceedings which she had started against the Bank on 11 June 2013, i.e. the present action in its initial form. In general, I will not repeat in this judgment material contained in the Discontinuance Judgment.
For the reasons given in the Discontinuance Judgment, the court set aside the notice of discontinuance which Pakistan had served on 21 November 2013, and joined a number of other parties to the proceedings as interpleader claimants so that the question of beneficial title to the Fund could be adjudicated upon by the English court in the context of the present action. The court held that Pakistan had abused the process of the court by service of the Notice of Discontinuance, and that having waived her sovereign immunity by starting the present action, she could not then, by discontinuing it, reinstate the legal stalemate which had previously prevailed, and had precluded the English court from deciding the question of beneficial entitlement to the Fund for over half a century since the decision of the House of Lords in Rahimtoola v Nizam of Hyderabad [1958] AC 379: see the Discontinuance Judgment at [69] to [83].
If I may repeat what I said in the Discontinuance Judgment at [83]:
"The court has a discretion in the matter, but in my judgment everything tells in favour of setting aside the Notice of Discontinuance. That is the only way in which the proceedings begun by Pakistan against the Bank can achieve the objective which Pakistan must objectively be taken to have contemplated when it issued the claim form on 11 June 2013. Only in this way can proper and full effect be given to the waiver of immunity which Pakistan voluntarily gave by starting the proceedings."
In the event, there was no appeal by Pakistan from the order setting aside the Notice of Discontinuance, and on 4 March 2015 Stephenson Harwood LLP came onto the record as Pakistan's solicitors in place of those previously instructed. There was also a change of counsel, with Mr Khawar Qureshi QC and Mr Jonathan Brettler taking over from Ms Cherie Booth QC and Mr Oliver White.
In the court's order of 16 January 2015, directions were given for the appropriate new parties to be joined to the proceedings as defendants to the Bank's stakeholder application and as interpleader claimants to the Fund. The significant new parties, for present purposes, are:
(a) the 8 th Nizam of Hyderabad;
(b) his younger brother, Prince Muffakham Jah; and
(c) the Union of India and the President of India (together, "India").
The other interpleader claimants, Shannon Consulting Ltd and (joined on 22 July 2015) Hillview Assets Holdings Ltd, are assignees of (respectively) Prince Muffakham Jah and the 8 th Nizam, through whom they claim. They have no independent claims of their own, so may at this stage be disregarded.
By the order of 16 January 2015, directions were also given for a trial of the issue of beneficial entitlement to the Fund. Pakistan was directed to file and serve amended particulars of claim setting out her claim to a beneficial interest, to which the other claimants were to respond with a defence and counterclaim, to which points of reply could then be served. Further consideration of the matter was adjourned to a case management conference, which took place on 22 July 2015. By then, India had applied by an application notice dated 14 July 2015 for an order for summary judgment against Pakistan and/or an order striking out her amended particulars of claim. In the alternative, India sought summary judgment or strike-out relief in relation to a plea of non-justiciability advanced by Pakistan in paragraph 19 of the amended particulars of claim. India's application was supported by the 8 th Nizam and Prince Muffakham Jah (together, "the Princes"), although they had not yet issued their own applications for similar relief. For her part, Pakistan (through her new legal team) had indicated that she would issue an application seeking summary judgment and/or strike-out relief against both India and the Princes on the grounds of limitation.
Directions were therefore given at the CMC for all these actual or proposed applications for summary determination of all or parts of the claims to be listed for hearing together, with a timetable for evidence in the meantime. Directions were also given:
(a) that the High Commissioner for Pakistan in the United Kingdom should represent all claims to the Fund that might be made by or under the authority of the State of Pakistan;
(b) that the President of India should likewise represent all claims to the Fund that might be made by or under the authority of the Republic of India; and
(c) that Mr Christopher Lintott, a solicitor and partner of Pennington Manches LLP, be appointed as administrator of the estate of the 7 th Nizam, for limited purposes including investigation of the estate's claims to the Fund.
For reasons which I need not elaborate, it is now common ground that further consideration of Mr Lintott's role, and of any claims which the 7 th Nizam's estate may have to the Fund, should await determination of the applications which are now before me.
Those applications are as follows:
(a) India's application of 14 July 2015, referred to above;
(b) Pakistan's cross-application dated 27 July 2015 for summary judgment etc against India and the Princes, principally but not exclusively on limitation grounds; and
(c) three applications by India and the Princes, each dated 6 January 2016, for orders striking out Pakistan's limitation defences, on the basis that they have no real prospects of success and/or constitute an abuse of the process of the court.
In broad terms, the applications give rise to five separate questions, helpfully identified in a written summary of India's position provided by her counsel on the first day of the hearing:
(a) Does Pakistan's claim to beneficial ownership of the Fund have any real prospect of success?
(b) Does Pakistan's assertion that the doctrine of non-justiciability and/or act of state applies, so that the court will decline or abstain from exercising jurisdiction in relation to the subject matter of the proceedings, have any real prospect of success?
(c) Do the limitation defences invoked by Pakistan against India and the Princes involve an abuse of the process of the court?
(d) Do those limitation defences have any substantive merit? and
(e) Does India's claim against the Bank have any real prospect of success, or is it legally unsustainable for the reasons (other than limitation) advanced by Pakistan?
In considering these questions, I have had the benefit of very full written and oral submissions from India, Pakistan, and each of the Princes. The Bank filed no evidence, and played no part in the hearing, while reiterating its consistently held position that it will pay the Fund (subject to proper provision being made for its costs and expenses) to whichever party the court finds to be entitled to it, combined with a general willingness to assist the court. Now that the effective involvement of the Bank in these proceedings is probably nearing its end, this provides a convenient opportunity for me to express my appreciation for the consistently helpful and constructive role which it has played in the proceedings, through its solicitors (Ashurst LLP) and counsel (Mr Adam Zellick).
Summary judgment and striking out: general principles
(1) Summary judgment
CPR rule 24.2 provides that:
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no...
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