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Katharine_Alexander_phOn 13 October 2014, the Supreme Court heard the case of Al-Saud v Apex Global Management, which considered the appeal of various related interim orders stemming from a Saudi Prince’s refusal to comply with a personal signature order.

Background

A company owned by HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud, a member of the Saudi Arabian royal family, and Apex Global Management Ltd set up a third company dealing in telecommunications in a joint venture. The joint venture ended on bad terms, and the Prince and Apex cross-petitioned each other seeking relief from the court against the unfairly prejudicial conduct of the third company’s affairs. Underlying claims included money laundering, misappropriation of funds and forgery of emails and conversation tapes.

In relation to these proceedings, on 31 July 2013, Vos J ordered that the parties sign various statements regarding disclosure. These included the Prince signing a witness statement providing details of the joint venture, which were seen as crucial to the main proceedings.

The Prince claimed that as a member of the Saudi Arabian royal family, he was bound by a protocol which prevented him from both signing court documents and from personally partaking in legal proceedings. The Prince asked Vos J to reconsider his order, but Vos J refused, claiming the Prince should have no special treatment in English litigation, and must be treated the same as all the other parties to the litigation.

Stemming from the Prince’s refusal to comply with the personal signature order, various interim applications were made by both Apex and the Prince between September and November 2013. The orders resulting from these applications were:

  1. an unless order for non-compliance with the personal signature order, stating that unless complied with, the Prince’s defence would be struck out (Norris J on 9 September 2013). As a result of non-compliance, the Prince’s defence was struck out;
  2. judgment in default for US$7.7 million plus costs following an application by Apex (Norris J on 14 October 2013);
  3. a refusal of the Prince’s request to vary the terms of the personal signature order (Mann J on 30 October 2013); and
  4. the dismissal of the Prince’s application to stay the judgment, and for relief against sanctions (Mann J on 29 November 2013). Mann J perceived this as a hidden application to set aside the judgment.

Court of Appeal Decision

The Prince made consolidated appeals in relation to the above decisions at the Court of Appeal, claiming that the orders were wrongly made. The appeal was heard by Lady Justice Arden, Lord Justice McFarlane and Lord Justice McCombe. Lady Justice Arden gave the lead judgment, with which there was unanimous judicial consent.

With regard to the original order requiring the Prince’s personal signature, the Court of Appeal indicated that the court “should not lightly interfere”[1] with case management decisions. They also upheld Vos J’s argument that in English litigation, the parties should be treated the same, and the Prince “cannot simply assume he will have similar privileges”[2] as in the courts of his country. The Court of Appeal noted Vos J’s in-depth knowledge of the case and the importance of the disclosure process to the proceedings (for example: the communications which are accused of being forged). The Prince’s later attempt to claim a variation order failed due to a lack of change in circumstances between the time of Vos J’s initial order, and the time of application.

The Court of Appeal also upheld the unless order, rejecting the Prince’s argument that it was “disproportionate and draconian”[3] and confirming that a witness statement from the Prince’s legal representative would not be as valuable as one from the Prince himself, and would put Apex in a less favorable position that the Prince.

The judgment in default on Apex’s counterclaim against the Prince’s company was upheld, finding that Vos J has jurisdiction to enter judgment.

Finally, Lady Justice Arden dismissed the Prince’s application to stay the judgment. She too viewed it as a hidden application to set the judgment aside and stated that the Prince had “failed to comply with an order of the court and there is no reason why he should be relieved of the consequences of this”[4].

The Court of Appeal therefore dismissed all of the Prince’s appeals. As a result, the default judgment currently stands, awaiting Supreme Court judgment. It has been reported that Lord Neuberger, Lord Clarke and Lord Sumption granted permission to appeal to the Supreme Court on the condition that the US$7.7 million judgment sum was paid into the court by the Prince by 15 September 2014[5].

Appeal to the Supreme Court

Lord Neuberger, Lord Clarke, Lord Sumption, Lord Hughes and Lord Hodge heard the appeal on 13 October 2014. The facts present an interesting domino effect of orders, stemming from the Prince’s refusal to comply with Vos J’s personal signature order made on 31 July 2013 and Norris J’s unless order made on 9 September 2013. We await the Supreme Court’s judgment determining what approach the courts should take when deciding whether to stay a default judgment entered following breach of an unless order.

 

 

[1] HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Limited, Faisal Abdel Hafiz Almhairat [2014] EWCA Civ 1106, paragraph 21

[2] Ibid, paragraph 32

[3] Ibid, paragraph 46

[4] Ibid, paragraph 83

[5] Irwin Mitchell and HowardKennedyFsi replaced on Saudi Prince Supreme Court Fight, The Lawyer, 9 September 2014