A “fictitious and fraudulent claim or … a fictitious and fraudulent defence”
The claim was one in which “either there is a fictitious and fraudulent claim or there is a fictitious and fraudulent defence”, according to Michael Beloff KC, acting for the Claimant (in 2016).
The claim itself was for repayment under an alleged USD 30 million oral loan agreement, formed in 2001/2. Following a four-week Commercial Court trial, the Defendants, represented by Gresham Legal, prevailed and the Judge rejected the Claimant’s evidence finding, amongst other things, that he had given misleading evidence and invented other evidence during cross examination at trial.
Indemnity costs were awarded to the Defendants for two important reasons, which took the case out of the ordinary course:
- The Claimant had relied, for the very large part of the eight-year history of the proceedings, on an alleged bank transfer request, from January 2002, made of HSBC Private Bank in Geneva, which named the First Defendant and Second Defendant as the beneficiaries of the USD 30 million payment. However, the Claimant abandoned reliance on that document very shortly before trial, despite it previously being said to be “first and foremost” of just two documents on which the Claimant relied when resisting the Defendants’ jurisdiction challenge. The reason for the abandonment was that HSBC Geneva had provided its version of the transfer request for the USD 30 million payment, which bore several, material, differences to the Claimant’s version, including the absence of the names of either Defendant. In disposing of the claim, the Judge was not required to make a positive finding on the issue of fraud or forgery but was “entirely unpersuaded” that the transfer request was produced in January 2002, as asserted, and found no “plausible documentary or other evidential support” for that contention. The Judge assessed the Claimant as giving unsatisfactory and shifting evidence on this issue and considered that all the evidence pointed towards the document having been produced at some later stage. In ruling on the issue of indemnity costs, the Judge said that he found it difficult to see how the Claimant could not have realised that a key document upon which he had relied, and on which he placed a great deal of store, was not a genuine document.
- The Claimant had redacted, and attempted to conceal from the Court, relevant documentary evidence by informing the Court that the redactions only obscured the bank account details of a third party and the sum to be paid to that third party. Upon a successful application by the Defendants to have the redactions lifted, that representation to the Court was demonstrably untrue. The redacted information was highly relevant and undermined the Claimant’s attempt to rely on the redacted version of the document to attack the Second Defendant’s version of events. Moreover, when unredacted, the document supported the Second Defendant’s case. The Judge suspected that the redactions were a result of the Claimant’s approach to disclosure, described in his oral evidence, as him believing he only had to produce documents to prove his own points and nothing more; a wholly impermissible approach to the disclosure and redaction of documents in English High Court litigation. In awarding indemnity costs, the Judge considered that the Court had been seriously misled.
The case demonstrates the importance of proper scrutiny of the authenticity of disclosed documents, particularly in cases in which there are very few contemporaneous documents. It is also a paradigm example of the importance of legal professionals ensuring compliance with the procedural requirements for the redaction and withholding of documents, so that the integrity of the disclosure process, which forms a cornerstone of English High Court litigation, is maintained.
Also of interest, particularly to practitioners and litigants from Saudi Arabia and other Sharia jurisdictions, will be the English Court’s finding as to whether Verse 282 of Chapter 2 Surat Al Baqarah of the Qur’an requires an agreement for a loan to be in writing as a mandatory pre-condition, or whether writing is only a recommendation. Based on the expert evidence before it, the Court construed the Qur’anic verse as making a recommendation rather than imposing a mandatory pre-condition of writing for a valid loan agreement under Sharia law.
The case was long running and involved several legal teams at different times. The Claimant instructed no fewer than six different law firms during the eight-year history of the case. On the Defendants’ side, the previous roles of Enyo Law, for the First Defendant, and Macfarlanes, for the Second Defendant, are recognised and appreciated.
Gresham Legal instructed Andrew George KC (Blackstone Chambers) and Nico Leslie (Fountain Court Chambers), on behalf of the First Defendant, and Shail Patel (4 New Square) on behalf of the Second Defendant.
22 November 2023
 Sheikh Mohamed Bin Issa Al Jaber v. Sheikh Walid Bin Ibrahim Al Ibrahim  EWHC 1989 (Comm) (Paragraph 3)