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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Apex Global Management Ltd & Anor v Fi Call Ltd & Ors [2016] EWHC 2053 (Ch) (05 August 2016) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2016/2053.html Cite as: [2016] EWHC 2053 (Ch) |
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CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF FI CALL LIMITED
AND IN THE MATTER OF THE COMPANIES ACT 2006
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
APEX GLOBAL MANAGEMENT LIMITED FAISAL ALMHAIRAT |
Petitioners |
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- and - |
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FI CALL LIMITED GLOBAL TORCH LIMITED HRH PRINCE ABDULAZIZ BIN MISHAL BIN ABDULAZIZ AL SAUD EMAD MAHMOUD AHMED ABU-AYSHIH HRH PRINCE MISHAL BIN ABDULAZIZ AL SAUD |
Respondents |
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Set Aside Application only) for the Petitioners
Justin Fenwick QC and Daniel Saoul (instructed by Mishcon de Reya) for the Second and Third Respondents
Hearing dates: 25 & 26 April 2016
Further written submissions 3, 9 & 10 May 2016
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Crown Copyright ©
Mr Justice Hildyard :
(1) Whether it is necessary and appropriate to determine the dispute at the instance of Global Torch as part of the Counterclaim, notwithstanding that (a) Mr Almhairat and Apex did not participate at the main trial, (b) there is an outstanding default judgment against Prince Abdulaziz in respect of Apex's share of the Al Masoud moneys and (c) there is a pending application by Prince Abdulaziz to set aside that Default Judgment (see paragraphs 126 to 127 and 132 to 133 of my Main Judgment); and if so, what that determination should be.(2) Whether the Default Judgment should be set aside, either by reason of the answer to question (1) above, or because Prince Abdulaziz, in a separate application of his own, is (notwithstanding his earlier failed appeals) permitted to proceed to show and does succeed in demonstrating an entitlement to a summary determination that Apex has already been paid its share of the Al Masoud moneys (and see paragraphs 74 to 78 of my Main Judgment); and to whom the moneys which the Supreme Court required the Prince to pay as security for the Default Judgment should now be paid.
(3) Whether, if the answers to questions (1) and (2) are both in the negative, Prince Abdulaziz is in the alternative entitled to seek to set aside the Default Judgment on grounds of fraud (see paragraph 74 of my Main Judgment).
(4) What should, according to the answers to the above questions, be done with the moneys (in the principal sum of US$8,699,958) presently held by the Prince's solicitors to the order of the Court under the terms of an undertaking given to the Supreme Court as recorded in an Order of that Court dated 22 December 2014 (see paragraph 76 of my Main Judgment).
(5) What order should be made as to the costs of (a) the appeal to the Supreme Court in relation to the dispute (in the context of which the above undertaking was given) and (b) this supplemental matter.
Question (1): Should the dispute be adjudicated as part of the Counterclaim?
What is the position revealed by the material available as to the basis on which the three payments into accounts of Fi Call Limited were made?
"If neither Mr Almhairat or Apex had benefitted from the first Al Masoud share purchase, it is questionable why Mr Almhairat would have been willing to extend the Option Deed and by doing so, facilitate the second purchase by Mr Al Masoud and second payment of $10,000,000 in July 2010, in the same manner as the 1st tranche i.e. again to HRH Prince Abdulaziz."
Question (2): should the Default Judgment be set aside?
"Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter."
Is there a procedural bar?
Merits of the Prince's application
"it would require a particularly clear case before any court could properly conclude that the claim against [the Prince] was plainly bound to fail…"
Question (3): if the answer to the preceding questions is 'no', is it open to Prince Abdulaziz to seek to set aside the Default Judgment on grounds of fraud?
"26. … The competing considerations here are the finality of litigation set against the desirability of allowing the allegation of fraud to be tried out. In the context of an application after trial to adduce new evidence, this was considered by the Court of Appeal in Owens v Noble [2010] EWCA Civ 224, [2010] 1 WLR 1489. There, the court determined that the true principle was that "where fresh evidence is adduced in the Court of Appeal tending to show that the judge at first instance was deliberately misled, the court will only allow the appeal and order a retrial where the fraud is either admitted or the evidence of it is incontrovertible. In any other case, the issue of fraud must be determined before the judgment of the court below can be set aside" (see paragraph 27 of Smith LJ, paragraph 50 of Elias LJ, and paragraph 72 of Sedley LJ.
27. An application to set aside a default judgment is not entirely analogous to an application to adduce new evidence of fraud after a trial, because CPR Part 13.3(1)(a) expressly sets the level of proof necessary by providing that the defendant must show a "real prospect of successfully defending the claim" rather than that the evidence is incontrovertible. But nonetheless, it is axiomatic that there must be finality to litigation and the rules of court must be obeyed, so a default judgment cannot be set aside as a matter of course just because an arguable fraud is alleged, however long after that judgment the application is made. At some point, the court must leave the applicant to seek to vindicate its rights by bringing a fresh action based on the fraud as envisaged by the decision in RBS supra. The question of precisely when that point arises will depend on all the circumstances of the particular case, and can be resolved by the application of the CPR and the rules that I have already summarised."
Question (4): Should the moneys held to the order of the Court now be released?
Question (5): What order should be made as to the costs in (a) the Supreme Court and (b) this supplemental matter?
"Save that the respondents should not be ordered to pay the appellant's costs of the appeal in the Supreme Court, the question what order to make with regard to the costs in the Supreme Court be reserved to a High Court Judge (possibly Hildyard J) to be determined at the same time as a decision is made about the moneys held as security as set out in paragraph 1 of this order."
1 November 2009G | Loan Agreement. |
6 November 2009 | Shareholders Agreement – signed 6 November 2009. |
2 January 2010 | Mr Almhairat issues a Withdrawal Notice under the Loan Agreement dated 1 November 2009G. |
12 January 2010 | HRH Prince Abdulaziz makes a loan of £1,000,000 in accordance with the Withdrawal Notice. |
7 February 2010 | Mr Al Masoud pays $10,000,000 to HRH Prince Abdulaziz Mishal Bin Abdulaziz Al Saud, for 7,333,333 (£1) shares to FI Call Limited being the 1st tranche of investment per the SPA. (See E1) |
The SPA, Option Deed and Finders Fee Deed were all signed by Mr Almhairat. | |
17 February 2010 | FICALL account, Al Mawarid (Beirut) Bank opened and $1,999,985 received into this account from transfer instruction dated 16.2.2010 by HRH Prince Abdulaziz. (Per transfer instruction reference E2 at Appendix 9) |
11 March 2010 | FICALL account, ABC Jordanian Bank opened and $3,999,973 received into this account from transfer instruction dated 11.3.2010 by HRH Prince Abdulaziz Al Saud. (Per transfer instruction reference E3 at Appendix 9) |
15 March 2010 | FICALL account ABC Jordanian Bank receipt of $1,999,871 into this account from transfer instruction dated 13.3.2010 by HRH Prince Abdulaziz. (Per transfer instruction reference E4 at Appendix 9) |
15 March 2010 | Share certificate issued by the London based Company agent for 7,333,333 shares of £1 each in FI Call Limited to Mr Al Masoud. |
24 March 2010 | Finders fee of $500,000 was paid to Saud Al-Toukeifi in accordance with the Finders Fee Deed dated and signed 7 February 2010 by Mr Almhairat. |
24 May 2010 | Mr Almhairat writes to Mr Al Masoud agreeing to extend the Option Deed by 45 days. |
30 June 2010 | Mr Al Masoud pays $10,000,000 to HRH Prince Abdulaziz, for 7,674,455 £1 shares in FI Call Limited being the 2nd tranche of investment in accordance with the Option Deed as extended by the letter dated 24 May 2010. |
7 July 2010 | $10,000,000 was remitted to the FI Call Limited (Seychelles) account at RBS Coutts ("Coutts Geneva") by HRH Prince Abdulaziz Mishal Bin Abdulaziz Al Saud. |
Note 1 In this Supplemental Judgment I adopt, unless otherwise expressly stated, the abbreviations used in my Main Judgment. [Back] Note 2 In each document it is recorded that the payments were made “against the purchased shares of FiCall company by Salman Al Masoud (First Purchase)”. [Back]