The Public Institution for Social Security v Mr Ely Michel Ruimy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 31 January 2023 |
| Neutral Citation | [2023] EWHC 177 (Comm) |
| Docket Number | Case Nos: CL-2019-000118 |
| Court | Queen's Bench Division (Commercial Court) |
[2023] EWHC 177 (Comm)
Mr Justice Jacobs
Case Nos: CL-2019-000118
(consolidated with CL-2020-000866 and CL-2021-000656)
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Stuart Ritchie KC and Christopher Burdin (instructed by Stewarts Law LLP) for the Claimant
Adam Kramer KC, Ian Higgins, and Sophia Dzwig (instructed by Latham & Watkins LLP) for the Defendants (Mr Ruimy and Aerium Finance Ltd)
Hearing date: Monday 16 th January 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on Tuesday 31 st January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A: Introduction and background
The application
Two defendants, Mr Ely Michel Ruimy (“Mr Ruimy”) and Aerium Finance Limited (“AFL”) challenge the court's jurisdiction, and have applied to set aside or seek to stay two sets of proceedings commenced by the Claimant (“PIFSS”). The first set of proceedings is CL-2020-000866 and it has been consolidated with claim CL-2019-000118, the latter being a substantial action against a very large number of parties. Mr Ruimy and AFL are the 39 th and 40 th defendants in the consolidated action. The second set of proceedings is CL-2021-000656, where Mr Ruimy and AFL are the 3 rd and 4 th defendants. The second set of proceedings has yet to be consolidated with other proceedings. It is likely, however, that some form of consolidation will occur if the jurisdictional challenges fail.
Those challenges, described in more detail below, raise a large number of issues, but a central and important question is whether the proceedings should be stayed on forum non conveniens grounds. A related question, which arises in the context of the first claim commenced by PIFSS against these defendants (CL-2020-000866, later consolidated with CL-2019-000118) is whether the proceedings should be stayed pursuant to Article 34 of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels Recast”).
Directions were given, at a case management hearing in July 2022, that the forum non conveniens and Article 34 issues were to be addressed prior to consideration of any other issues raised by the jurisdictional challenges of AFL/Mr Ruimy.
PIFSS' claim
The claim against Mr Ruimy and AFL has been pleaded in detail in Re-Re-Re-Amended Consolidated Particulars of Claim (“RAPOC”) served by PIFSS on other Defendants in the context of the first set of proceedings (CL-2019-000118). Those proceedings involve a large number of other parties and a trial is scheduled for March 2025. No similar pleading has been served in the second set of proceedings, but it will obviously be materially similar to the case set out in the RAPOC. The nature of the claim advanced is as follows.
PIFSS is a Kuwaiti public institution responsible for Kuwait's social security system and pension scheme. PIFSS alleges that the late Mr Fahad Al Rajaan, its former Director-General, obtained illegal secret commissions totalling US$874.2m, from some 9 separate schemes over a 20-year period. Mr Al Rajaan is the 1 st defendant to the proceedings, and he participated fully (at least to the extent that his health permitted) in those proceedings prior to his death on 6 September 2022. The proceedings are continuing against his estate, which is represented by his widow Ms Muna Al Wazzan, who is the 2 nd defendant to the proceedings. There are a large number of other defendants who are sued in respect of the various schemes. One of those schemes is alleged to have been operated by AFL/Mr Ruimy. This scheme has been referred to by PIFSS and the parties as the “Aerium Scheme”.
PIFSS alleges that Mr Ruimy is the chairman and joint founder of the Aerium Group, a European real estate investment manager whose parent company is Aerium Holdings SA (“Aerium Holdings”), a Luxembourg company. Aerium Holdings was at all material times the majority owner and/or controller of AFL, a company incorporated in England. Aerium Holdings is, on PIFSS' case, indirectly owned by Mr Ruimy. PIFSS alleges that Mr Ruimy was in control of Aerium Holdings and thereby the Aerium Group, including AFL. Mr Ruimy was himself a director of AFL between 2004 and 2009 and again between 2017 and 2020. PIFSS also says that Mr Ruimy (either alone or together with members of his family) was the majority owner and/or controller of the Aeriance Group of companies (“the Aeriance Group”) which provided services to the Aerium Group and also managed its own Aeriance funds.
PIFSS alleges that on various dates from September 2003 onwards PIFSS invested over US$2 billion in 20 funds managed (or in two cases introduced/advised) by the Aerium Group or the Aeriance Group. Those investments have been particularised in Appendix 7.1 to the RAPOC. PIFSS refers to a sharp increase in the amounts invested between January 2008 and March 2010.
The claim advanced by PIFSS against AFL/Mr Ruimy in relation to the Aerium Scheme concerns the sum of US$10.1m which is said to have passed as secret commissions from Mr Ruimy to Mr Al Rajaan between March 2008 and December 2010. PIFSS alleges that these payments were improperly made by Mr Ruimy to Mr Al Rajaan in exchange for Mr Al Rajaan's role in influencing PIFSS to invest substantial sums in funds managed and/or introduced by companies in the Aerium or Aeriance Groups. In short, PIFSS alleges that the sums paid were corrupt payments of bribes. Some of the payments from Mr Ruimy to Mr Al Rajaan were financed by AFL, which is sued on the basis that Mr Ruimy's knowledge of the corrupt payments is to be attributed to AFL.
The alleged secret commission payments under the Aerium Scheme comprise US$8.7 million taken, according to bank records, in cash, from Mr Ruimy's account, number 410510, at a Swiss bank, Mirabaud & Cie SA (“Banque Mirabaud”), and deposits, (also according to records, in cash) in an account at the same bank in the name of Ms Al Wazzan. This account is said to be held for Mr Al Rajaan. Appendix 7.2 to the RAPOC lists 49 separate payments between 2008 and 2010, all of which were received in account 5049765000 of Ms Al Wazzan. In addition to these payments, there were also two payments made to jewellers, apparently in settlement of two invoices addressed to Mr Al Rajaan; US$460,000 paid on 19 November 2009 to Gemcut SA and US$994,200 paid on 30 November 2009 to Hamilton Associates.
Trial of the allegations against Mr Al Rajaan's estate, Ms Al Wazzan, and a large number of other defendants involved in the various alleged schemes will be heard in England in March 2025. That claim will include the claim against Mr Al Rajaan's estate in relation to the Aerium Scheme itself. There are some defendants, originally joined to the proceedings, against whom the claim cannot proceed, in consequence of the decision of Henshaw J (upheld by the Court of Appeal) referred to below. These include Banque Mirabaud (originally the 11 th defendant) and a number of individuals associated with that bank, namely Pierre Mirabaud, Thierry Fauchier-Magnan, and Luc Argand (originally the 12 th – 14 th defendants). I shall refer to these persons collectively as the “Mirabaud parties”.
Following the Court of Appeal's decision in January 2022 to uphold the successful jurisdictional challenge by the Mirabaud parties, PIFSS have commenced proceedings against three of the Mirabaud parties (Banque Mirabaud, Mr Pierre Mirabaud and Mr Fauchier-Magnan) in Switzerland. It appears that Mr Argand is not a party to the Swiss proceedings. Since nothing turns on this, I will continue to refer simply to the “Mirabaud parties” as including the various Mirabaud-related defendants in the English and Swiss proceedings.
As described below, the proceedings commenced by PIFSS against the Mirabaud parties in Switzerland do not, at least any longer, include a claim in respect of the Aerium Scheme. Instead, the claim in those proceedings concerns a large number of other schemes in which the Mirabaud parties are alleged to have participated or assisted. At the heart of the forum non conveniens argument of AFL/Mr Ruimy is the proposition that the Aerium Scheme claims should be heard in Switzerland alongside the other claims advanced against the Mirabaud parties.
Procedural background to the present applications
There is a protracted and tortuous procedural background to the proceedings against AFL and Mr Ruimy and the present hearing.
The first of two claim forms issued in connection with the Aerium Scheme, in proceedings CL-2020-000866, was issued on 29 December 2020. It was consolidated with claim CL-2019-000118 by the Order of Henshaw J dated 22 June 2021 (“the 1 st claim form”). There is no dispute that the 1 st claim form was properly served on the English company, AFL, in January 2021. Some two years have now passed since service, and the delay in the resolution of AFL's jurisdictional challenge appears largely attributable to issues which have arisen in relation to service on Mr Ruimy.
Thus, as far as the 1 st claim form is concerned, there are disputes as to whether and when that claim form was validly served on Mr Ruimy. The potential dates of service are:
(i) January 2021 (London, disputed by Mr Ruimy);
(ii) June 2021 (Morocco, disputed by Mr Ruimy); and
(iii) November 2021 (London). Here, the fact of service is admitted, but Mr Ruimy alleges that it fell outside the period of validity of the...
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