The Public Institution for Social Security v Banque Pictet & Cie SA & Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Carr,Lord Justice Peter Jackson,Lady Justice Simler |
| Judgment Date | 26 January 2022 |
| Neutral Citation | [2022] EWCA Civ 29 |
| Docket Number | Case No: CA-2021-000446 (formerly A4/2021/0302) |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 29
Lord Justice Peter Jackson
Lady Justice Simler
and
Lady Justice Carr
Case No: CA-2021-000446 (formerly A4/2021/0302)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
MR JUSTICE HENSHAW
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Beard QC and Louise Merrett (instructed by Stewarts Law LLP) for the Appellant/Claimant
Kenneth MacLean QC, James MacDonald and Tamara Kagan (instructed by Slaughter and May) for the Third, Eighth, Ninth and Tenth Respondents/Defendants
Jonathan Adkin QC and Charlotte Beynon (instructed by Peters & Peters Solicitors LLP) for the Fourth Respondent/Defendant
Philip Marshall QC and Simon Hattan (instructed by Eversheds Sutherland (International) LLP) for the Fifth Respondent/Defendant
Francis Tregear QC and Tony Singla QC (instructed by Herbert Smith Freehills LLP) for the Eleventh Respondent/Defendant
Daniel Jowell QC and Richard Blakeley (instructed by Milbank LLP) for the Twelfth Respondent/Defendant
David Davies QC (instructed by Macfarlanes LLP) for the Thirteenth Respondent/Defendant
Nathan Pillow QC and Tom Ford (instructed by Hogan Lovells International LLP) for the Fourteenth Respondent/Defendant
Hearing dates: 13, 14 and 15 December 2021
Approved Judgment
This judgment was handed down remotely at 10.30am on Wednesday 26 January 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
This judgment is divided into the following sections:
A. The parties
A. The Parties
The parties to this appeal are identified as follows:
i) The Claimant Appellant, the Public Institution for Social Security: “PIFSS”;
ii) The Defendant Respondents, together “the Respondents”:
a) The Third Defendant Respondent, Banque Pictet & Cie SA, domiciled in Switzerland: “Banque Pictet”;
b) The Fourth Defendant Respondent, Mr Philippe Bertherat, a former partner in Banque Pictet, domiciled in Switzerland: “Mr Bertherat”;
c) The Fifth Defendant Respondent: Mr Kamran Amouzegar, a former associate and employee of Banque Pictet between 1996 and 2003, domiciled in Switzerland: “Mr Amouzegar”;
d) The Eighth Defendant Respondent, Pictet & Cie (Europe) SA, domiciled in Luxembourg: “Pictet Europe”;
e) The Ninth Defendant Respondent, Pictet Bank and Trust Limited, domiciled in the Bahamas: “Pictet Bahamas”;
f) The Tenth Defendant Respondent, Bank Pictet & Cie (Asia) Limited, domiciled in Singapore: “Pictet Asia”;
g) The Eleventh Defendant Respondent, Mirabaud & Cie SA, a former limited partnership, domiciled in Switzerland: “Banque Mirabaud”;
h) The Twelfth Defendant Respondent, Mr Pierre Mirabaud, a former unlimited partner in Banque Mirabaud until 31 December 2009, cousin of Mr Fauchier-Magnan, domiciled in Switzerland: “Mr Mirabaud”;
i) The Thirteenth Defendant Respondent, Mr Thierry Fauchier-Magnan, a former unlimited partner in Banque Mirabaud until 31 December 2011, cousin of Mr Mirabaud, domiciled in Switzerland: “Mr Fauchier-Magnan”;
j) The Fourteenth Defendant Respondent, Mr Luc Argand, a Swiss lawyer, domiciled in Switzerland: “Mr Argand”.
Banque Pictet, Pictet Europe, Pictet Bahamas and Pictet Asia are referred to collectively as “the Pictet Respondents”. Banque Pictet, Pictet Europe and Banque Mirabaud are referred to collectively as “the Respondent Banks”.
B. Introduction
These proceedings arise out of claims brought by PIFSS in respect of the alleged corruption of its former Director General, the First Defendant, Mr Fahad Maziad Rajaan Al Rajaan (“Mr Al Rajaan”). PIFSS is a public institution in Kuwait which operates the national social security system and pension scheme (“the Scheme”). In order to fund the Scheme, PIFSS invests very substantial amounts of money with numerous financial institutions around the world. PIFSS alleges that between 1994 and 2014 Mr Al Rajaan illegally solicited and received bribes totalling at least US$847.7 million from numerous international financial institutions and intermediaries in return for causing or influencing PIFSS to invest substantial funds with or through those institutions and intermediaries (or related entities). This enabled the financial institutions, intermediaries and associated entities in question to earn fees or other benefits in connection with PIFSS' investments.
Between February and September 2019 PIFSS launched three sets of proceedings against, amongst others, the ten Respondents. As set out in the Amended Consolidated Particulars of Claim, it alleges that there were multiple (at least seven) schemes under which bribes were paid to Mr Al Rajaan and then concealed or laundered. There are presently (by reference to wider proceedings commenced subsequently by PIFSS and the Re-Re-Amended Consolidated Particulars of Claim) 37 active defendants; the claims against 22 of them will, whatever the outcome of this appeal, be heard in England.
In summary, the claims against the Respondents relate in the first instance to two of the alleged schemes, referred to as the “Pictet Scheme” and the “Mirabaud Scheme”. The Pictet Scheme is said to involve the Pictet Respondents, Mr Bertherat and Mr Amouzegar. The Mirabaud Scheme is said to involve Banque Mirabaud, Mr Mirabaud, Mr Fauchier-Magnan and Mr Argand. PIFSS contends that the Respondents paid or aided and/or abetted the payment of bribes to or for the benefit of Mr Al Rajaan under these two Schemes (“the Pictet/Mirabaud bribery claims”) and, with the exception of Mr Argand, also participated in the laundering and concealment of those bribes (“the Pictet/Mirabaud accessory claims”). It is also alleged that the Respondents (again with the exception of Mr Argand) participated in the laundering and concealment of very substantial other bribes paid by other defendants pursuant to other schemes (“the wider accessory claims”). The claims against the Respondents relating to the Pictet/Mirabaud bribery and Pictet/Mirabaud accessory claims amount to some US$105.6 million; the claims against the Respondents relating to the wider accessory claims amount to some US$425million.
PIFSS seeks to sue the Respondents in England on the basis that the principal defendant, Mr Al Rajaan, is now domiciled in England (as is his wife, the Second Defendant, Ms Al Wazzan). Mr Al Rajaan has submitted to the jurisdiction of the Court (“the Court”) and is the anchor defendant for the purpose of Article 6 of the (2007) Lugano Convention (“Article 6”) (“the LC”) and Article 8 of the Brussels I Regulation Recast (“Article 8”) (“BRR”). As a result, PIFSS contends that the Court has jurisdiction over all the Swiss domiciliaries and Pictet Europe, together with common law jurisdiction over Pictet Bahamas and Pictet Asia pursuant to CPR PD 6B 3.1(3) (as necessary or proper parties to the claims).
During the course of October and November 2019 the Respondents variously issued applications under CPR Part 11 disputing the jurisdiction of the Court. In a judgment dated 6 November 2020 (“the Judgment”) Henshaw J (“the Judge”) held as follows:
i) The Court's jurisdiction is excluded in relation to the Pictet/Mirabaud bribery and Pictet/Mirabaud accessory claims against the Swiss and Luxembourg domiciled entities, and the former partners of those entities, under Article 23 of the LC (“Article 23”) or Article 25 of the BRR (“Article 25”) on the basis of exclusive jurisdiction clauses (“EJCs”) in contracts between PIFSS and the relevant entities;
ii) Although the requirements of Article 23/25 were not met in relation to the wider accessory claims, because of his findings in i) above, it was not expedient for the Court to hear and determine the wider accessory claims in order to avoid the risk of irreconcilable judgments within the meaning of Article 6/8;
iii) It was also not expedient for the Court to hear and determine the Pictet bribery claims, the Pictet accessory claims or the wider accessory claims against Mr Amouzegar (who could not take the benefit of any EJC) or the Mirabaud bribery claims against Mr Argand (who also could not take the benefit of any EJC) in order to avoid the risk of irreconcilable judgments within the meaning of Article 6;
iv) As a result of the above findings, England was not the convenient forum for the claims against Pictet Bahamas and Pictet Asia.
Accordingly, by order dated 14 December 2020 (“the Order”), he ruled that:
i) The Court did not have jurisdiction to try PIFSS' claims against Banque Pictet, Pictet Europe, Mr Bertherat, Mr Amouzegar, Banque Mirabaud, Mr Mirabaud, Mr Fauchier-Magnan and Mr Argand;
ii) The Court would decline to exercise its jurisdiction to try PIFSS' claims against Pictet Bahamas and Pictet Asia.
This is PIFSS' challenge to the Judgment and Order. It is said that questions of general importance are raised. Amongst other things, PIFSS suggests that existing English appellate authority on Article 23/25 conflicts with binding authority of the Court of Justice of the European Union (“the ECJ”); questions of expedience have not previously been considered in the context of claims for fraud or by reference to the types of legal relationships that arise on the facts here; there is no directly relevant prior authority on the questions that arise in relation to Article 6/8.
C. Preliminary observations
The Judge had before him not only a large number of parties but also a vast volume of material, including 20 lever arch files of documents relating to issues of Swiss law alone. The hearing before him took four days, followed by further written submissions. The position is thus very far removed from that...
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