The Queen (on the application of Asim Siddiqui and Raed Siddiqui) v Westminster Magstrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham,Lord Justice Popplewell |
| Judgment Date | 17 June 2021 |
| Neutral Citation | [2021] EWHC 1648 (Admin) |
| Date | 17 June 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1374/2020 |
[2021] EWHC 1648 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Popplewell
and
Mr Justice Garnham
Case No: CO/1374/2020
David Perry QC and Victoria Ailes (instructed by Edmonds Marshall McMahon) for the Claimants
Rupert Bowers QC (instructed by Berkeley Square Solicitors) for the Interested Party
Hearing dates: 20th May 2021
Approved Judgment
Introduction
Asim Siddiqui and Raed Siddiqui, the Claimants in these judicial review proceedings, seek to challenge a decision dated 13 January 2020 of District Judge Blake, sitting at Westminster Magistrates' Court, to set aside a summons he had granted on 9 February 2019, and to stay the criminal proceedings that resulted from the issue of that summons. The Claimants invite the Court to quash the decision of 13 January 2020 and remit the matter to the Westminster Magistrates' Court with a direction to proceed in accordance with the judgment of this Court.
The Grounds of the Challenge are threefold:
(i) the District Judge erred in law in interpreting the term “all claims” in a settlement agreement between the parties as extending to criminal proceedings;
(ii) the District Judge erred in law in characterising the failure to disclose as fundamental in circumstances where he made no finding as to how this had come about and where all the evidence before the court was that it was not a deliberate attempt to suppress the agreement;
(iii) the District Judge erred in law in that the remedy of a stay was disproportionate, and that once the Settlement Agreement was disclosed, there was no unfairness in allowing the proceedings to continue.
On 27 October 2020, Sir Ross Cranston, granted permission on Grounds 1 and 3 but refused it on Ground 2. The Claimants renewed their application on Ground 2 before us. I indicate now that we regard that Ground as at least arguable and would give permission for it to be argued.
Before us, the Claimants were represented by David Perry QC and Victoria Ailes; the Interested Party by Rupert Bowers QC. We are grateful to all counsel for their written and oral submissions.
The History
The background to this application is not significantly in dispute.
The Claimants, who are both British citizens, are brothers. The Interested Party, Mr Bakhtiar Abbasi, is a member of the Claimants' extended family by marriage. He was the director of New Global Investments UK Ltd (“New Global”).
The Claimants allege that they are victims of a fraud perpetrated by Mr Abbasi. They allege that Mr Abbasi purported to be a successful property trader with access to high value London property, available for sale at below market value. Relying on Mr Abbasi's false representations, which it is said were supported by forged documents, the Claimants paid over substantial sums of money to him between October 2014 and July 2015. They understood that the money was to be invested in London properties and that arrangements were in place for the property then to be sold on to identified purchasers at a profit. It is said that forged letters from the National Crime Agency were later used to explain delays in release of the expected funds to the Claimants.
The Claimants, it is said, were left with neither the anticipated profits nor an interest in the properties, and their capital was only partially returned. The Claimants allege that they transferred some £7.66 million to Mr Abbasi and New Global and received back some £3.6 million. Accordingly, they say they lost approximately £4 million as a result of his fraudulent scheme.
The Claimants sought to recover their losses by way of a claim for damages in the High Court. Those proceedings were compromised by a settlement agreement dated 22 February 2018 the recitals to which include the following:
“WHEREAS
(A) Asim and Raed brought proceedings against Mr Abbasi and New Global in the High Court of England and Wales in claim number HQ17X00049 (“the High Court Action”) in respect of claims for (1) declarations and proprietary remedies following alleged frauds practised on them by Abbasi; and (2) damages for alleged deceit (again, practised by Mr Abbasi); and (3) sums due as debts under guarantees…
(D) Various sets of legal proceedings (collectively hereafter “the Dubai Cases”) have, in the interim, been instigated in Dubai, UAE as follows:
a. A case against Mr Abbasi under assigned case number 782/2017 in the Courts of Dubai concerning a request to place a travel ban on Mr Abbasi, and an associated grievance case under assigned case number 173/2017 with next hearing for judgment to take place on 6 th March, 2018 (“the Travel Ban Cases”);
b. A criminal case against Mr Abbasi in the Courts of Dubai under case number 66811, concerning a bounced cheque amounting to £11m (eleven million pounds sterling) decided in his favour over jurisdiction and now on appeal with next hearing to take place on 13th March, 2018 (“the Bounced Cheque Case”);
c. Cases against Mr Abbasi's brother-in-law, Aamir Hassan Qureshi, in the Courts of Dubai under case numbers 6881/2016, 6859/2016, 270/2017 and 271/2017 concerning 4 bounced cheques in the sum of AED20m and in respect of which Aamir is currently in prison (“the Aamir Cases”)
…
The relevant clauses of the settlement agreement are as follows:
IT IS HEREBY AGREED AS FOLLOWS:
1 Save that nothing in this clause 1 or its sub-clauses or this Agreement shall in any way operate so as to limit or prevent any Party from enforcing the terms contained herein, and subject to clause 3 below (which provides that the claims made in the High Court Action will only be compromised upon payment (as provided for below) of the Settlement Sum (as defined below)), in consideration of the Parties' mutual assurances, obligations and promises contained herein this Agreement is in full and final settlement of:
1.1 All claims Asim and Raed have against Mr Abbasi and/or New Global in relation to monies loaned/advanced to Mr Abbasi / New Global.
1.2 Any and all claims, rights, actions, demands, costs and expenses and causes of action of whatsoever nature which Mr Abbasi and/or New Global and/or any third party/parties or entities controlled or associated or connected in any way with Mr Abbasi and/or New Global have or may have against Asim and/or Raed or any company or other entity with which Asim and/or Raed are in any way connected or involved.
PAYMENT BY MR ABBASI
2 Mr Abbasi will pay to Asim the sum of £6.5m (six million five-hundred thousand pounds sterling – “the Settlement Sum”) inclusive of interest in cleared funds on or before the date falling four months from the date of this Deed, although Mr Abbasi will use his best efforts to make or procure payment by 30th April 2018.
3 If Mr Abbasi makes payment of the Settlement Sum on or by such due date, then the Parties will jointly write to the High Court of Justice in London, requesting that the High Court Proceedings be dismissed with no order as to costs.
…
5 In the event that the Settlement Sum is not paid on time, the claims made in the High Court Proceedings shall remain extant and Asim and Raed shall be at liberty to pursue those proceedings. In this respect it is agreed that such claims shall be compromised only upon receipt by Asim of the Settlement Sum by its due date in accordance with the terms of this Agreement.
On 6 February 2019, the Claimants, acting then through their solicitors, Scarmans, laid an information before the Westminster Magistrates' Court advancing against Mr Abbasi three charges of fraud by false representation, contrary to s.1 of the Fraud Act 2006 and four charges of forgery, contrary to s.1 of the Fraud and Counterfeiting Act 1981. They applied for the grant of a summons against Mr Abbasi.
In making that application, the Claimants failed to disclose the settlement agreement to the District Judge. It is accepted that that document should have been disclosed. The Claimants maintain that they had provided Scarmans with a copy of the settlement agreement and that Scarmans discussed with the First Claimant whether it was necessary to exhibit it to a witness statement prepared for the purposes of the proceedings. Scarmans advised the Claimant that the document did not need to be disclosed to the District Judge for the application for a summons.
On 9 February 2019, DJ Blake granted the summons and on 21 March it was sent to Mr Abbasi. On 23 August 2019, Mr Abbasi applied to set aside the summons on the ground that the settlement agreement, which precluded any prosecution, had not been disclosed.
On 5 December 2019 the District Judge heard the application. On 13 January 2020 he sent the parties the written ruling setting aside the summons and staying the proceedings. On 24 January 2020, he handed down his ruling in open court.
The District Judge's Ruling
The District Judge summarised the competing contentions and then set out his analysis from paragraph 21 of the ruling.
He held that persons making an ex parte application for the issue of the summons were under a duty of candour and that the respondents to the application to quash the summons (the claimants before us) were in breach of that duty by not bringing the settlement agreement to his attention.
He continued at paragraph 24
“Had I been aware of the settlement agreement I would not have issued the...
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