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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Al Haroun v Qatar National Bank QPSC & Anor [2025] EWHC 1588 (Comm) (26 June 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1588.html Cite as: [2025] EWHC 1588 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISIONCOMMERCIAL
COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
HAMAD AL HAROUN |
Claimant |
|
- and - |
||
(1) QATAR NATIONAL BANK QPSC (2) QNB CAPITAL LLC |
Defendants |
____________________
Rumen Cholakov (instructed by Stephenson Harwood LLP) for the Defendants
Hearing dates: 18 and 19 June 2025.
Further evidence: 20 June 2025.
____________________
APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
This judgment was handed down remotely at 10:00am on 26 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Justice Foxton:
i) Mr Al Haroun's application to amend, and substantially recast, his Particulars of Claim.
ii) The Defendants' application for reverse summary judgment or to strike out the existing claim.
iii) The Defendants' challenge to the court's jurisdiction.
The background
i) An SPA was to be signed between KRIC, an SPV associated with Mr Al Haroun and incorporated in Belize, and the SSIF to acquire the SSIF's shares in HBTF.
ii) There was a further contract by which Ettizan would acquire the HBTF shares from KRIC.
iii) There would then be a transfer of the shares from Ettizan to QNB.
i) Clause 3 of the Loan Agreement provides for the provision of "Guaranteed cheque for an amount of: QR.25.000.000/-from Mr Hamad Ahmed Al Haroun" and a similar cheque from Mr Ali Abdul Qarder Al Salahi. It is QNB's case that Mr Al Haroun provided a signed but undated cheque for QR 25.000.000 when the Loan Agreement was concluded, and that a second such cheque was provided by Mr Al Haroun on 22 October (such that it contends two signed cheques for QR 50.000.000 were provided by Mr Al Haroun).
ii) Clause 5 provides that Ettizan and Mr Al Haroun are jointly and severally liable for the obligations arising.
"Except as required by law or regulation or already in the public domain, anything contained herein or disclosed in connection with the transactions contemplated by this Agreement shall be treated as confidential by the Parties, and shall not be disclosed publicly in any manner."
i) There was an email from Mr Haroun from an Ettizan address on 4 October 2021 to a QNB email address asking Mr Ali Al Kuwari of QNB not to forget about extending the HBRF Agreement.
ii) Mr Al Kuwari replied the same day, stating:
"Consider it extended.
Spoke to Ali and QNB Capital, we'll also put in place a backup bridge loan just in case the main structure isn't finished on time. Quick question: should the agreement be in KRIC's name, Kuwait Capital's, or do we have a different set up in mind? Il let Razif contact you".
i) QNB alleges that it withdrew the complaint, and entered into a settlement agreement with Mr Al Haroun in August 2013 (which I shall refer to as "the Settlement Agreement", without prejudice to the issue of whether there was any such agreement) under which a further signed cheque in the sum of QR 31.000.000 was provided by Mr Al Haroun.
ii) Mr Al Haroun alleges that he was sentenced to 3 years' imprisonment in absentia, and that there was no settlement agreement, any document purporting to have that effect having been forged by QNB.
iii) QNB presented the further cheque which was not honoured, and then commenced
a fresh criminal complaint for which Mr Al Haroun was later sentenced to 3 years' imprisonment.
i) It was found that the signature apparently from the SSIF on the SPA was forged.
ii) It was found that KRIC was in breach of the SPA by reason of not having the funds to complete the transaction.
iii) The arbitration featured in the Decision of First Tier Tribunal Judge Hodgkinson of 5 October 2020 which upheld Mr Al Haroun's asylum application. That refers to KRIC's claim failing on the forgery ground, largely by reference to handwriting evidence, a conclusion as to the correctness of which Judge Hodgkinson expressed some doubt.
The proceedings
i) Jurisdiction challenges based on:
a) The Qatari jurisdiction clause in the Loan Agreement.
b) Forum non conveniens considerations.
c) The arbitration agreement in the HBTF Agreement.
ii) An alleged res judicata plea relating to the issue of forgery (which has not featured in this hearing).
iii) The summary judgment/strike out application.
"… the vast majority of the articles cited are incorrectly relied on and not relevant to the subject matter he claims they regulate. When comparing the actual text of these articles with the interpretations provided, there is a clear disconnect. The provisions are not relevant to the points being argued, and address fundamentally different legal topics than the ones mentioned by Prof Awad."
i) In addition, the First Report referred to what were said to be unpublished judgments of the Qatari Court of Cassation, copies of which have not been provided to the Defendants, with the result that the veracity and accuracy of these citations cannot be checked.
ii) At least one of the proposition for which an unreported judgment is cited is slightly surprising: the suggestion that in one decision "the Qatari Court of Cassation has acknowledged that parties who are unable to safely access Qatari courts are exempt from enforcement of jurisdiction clauses".
iii) No Arabic version signed by Professor Awad has been produced. When an Arabic version did appear, it contains on it non-professional email addresses, rather than an email address from the Egyptian law firm where the author of the First Report says that they head a team of 15 lawyers, and of which they say they are a founding member.
iv) Mr Al Haroun's former solicitors have stated that, so far as they are concerned, the English version of the First Report is the original.
v) No certificate certifying any translation has been produced (the report stating that the translation has been done in "house").
vi) The report is not verified by a statement of truth as required by PD 35 paragraph 3.3.
vii) None of the legal sources cited are attached.
viii) When referring to Article 820 of the Qatari Civil Code, its subject-matter is misdescribed in the body of the First Report but correctly described in the "Matrix of Legal Sources and Authorities".
"I have consulted informally with legal experts in Qatari law, and their insight have informed the arguments I present in this report".
The document sets out "Dr Awad's likely response" to criticisms of his report and documents "Dr Awad might reference" or "might highlight" or what "Dr Awad would argue".
i) I am satisfied that the matters pointed out by Dr Feshawi go beyond legitimate differences of interpretation, and cause serious concern as to the reliability of the First Report. In particular, I have found it difficult to see how the process of translation could change the numbering of articles of the Civil Code (particularly when the original includes those numbers in a linguistic notation requiring no translation).
ii) I can see no legitimate reason for criticising Dr Feshawi for raising these issues. It was entirely appropriate for him to do so.
iii) There are a number of unanswered questions about the email and witness statement and of the accompanying Arab text. The absence of any material linking the author of the First Report and these materials to a verified professional address is unfortunate.
iv) However, in the course of his submissions Mr Al Haroun handed up pages from a website which showed that a Professor Awad was part of the El Motahedon firm. In addition, Mr Al Haroun made the valid point that the attempts made by Stephenson Harwood LLP to contact El Motahedon had come to his attention directly from El Motahedon before they were deployed in the litigation, suggesting that Mr Al Haroun was known to the firm where Professor Awad works. Finally, I was sent emails showing that after the hearing, the El Motahedon had forwarded a copy of the email said to come from Professor Awad to Stephenson Harwood LLP, copied to one of the email addresses used in the communications
said to come from Professor Awad.
v) The result is that I am willing to proceed on the basis that there is an Egyptian lawyer called Professor Awad at El Motahedon, that he has at some point had involvement with Mr Al Haroun, and that he prepared the First Report.
vi) In all the circumstances, I do not feel able to place any weight on the allegations of attempted bribery and intimidation of Professor Awad. I accept Stephenson Harwood LLP's denial confirmed by witness statement that they received any response from the El Motahedon firm, still less one confirming the authenticity of the First Report. There is no reliable evidence of the alleged contacts with Professor Awad by unnamed intermediaries.
vii) Treating the First Report as genuine, the fact remains that no satisfactory explanation has been offered for the many basic errors it contains.
viii) Further, some of the positions taken in the First Report can, on a very cursory review, be seen to be obviously incorrect. In particular, on the key issue of limitation, Article 219 clearly provides the limitation period for claims in tort, as Dr Feshawi confirms, and the First Report offers no explanation as to why this is not so. The 15 year period which the First Report refers to, which appears in Article 403 and not Article 429 as the First Report suggests, appears in a section of the Civil Code dealing with termination of obligations and only applies to the extent that no other period is provided for (cf. Article 219).
ix) As I have noted, I am concerned that if the later communications
come from Professor Awad, they suggest a lack of impartiality.
x) Finally, Professor Awad is a lawyer who practises in Egypt who offers no detail of his "extensive direct engagement with Qatari law". While I accept Qatari law is influenced by Egyptian law, his direct experience of Qatari law, whatever it might be, cannot compare with that of Dr Feshawi who is the senior partner of a Qatari law firm, and who had headed its litigation department for 23 years.
i) For the reasons I have given, I do not feel able to place significant reliance on the First Report.
ii) Mr Al Haroun's "report" does not constitute admissible expert evidence.
iii) Dr Feshawi's report comes from a lawyer practising in the relevant jurisdiction and is supported by accurate citations. There is nothing to support the suggestion that Dr Feshawi may have been motivated by some form of grudge when pointing out the basic errors in the First Report.
The test for granting permission to amend and summary judgment
The conspiracy and dishonest assistance claims
Limitation
i) On his own evidence, Mr Al Haroun was informed about the seizure by employees of Ettizan at the time, and he instructed lawyers to send a fax to QNB seeking freezing of the accounts on 22 January 2023.
ii) On his own evidence, he complained about the alleged seizure to the General Prosecutor of Qatar who revoked the seizure order within 4 weeks (albeit by then Mr Al Haroun says that the damage had been done).
iii) The claim against QNB is premised on Mr Al Emadi, its CEO at the time, becoming a director of Ettizan as a result of the seizure. This was clearly known to Mr Al Haroun in January 2013 because Mr Al Emadi was named in the amended commercial
registration certificate. Mr Al Haroun does not suggest that he only later learned of Mr Al Emadi's involvement. On the contrary, he states that he was advised not to pursue proceedings in 2013 after Mr Al Emadi was appointed Minister of Finance.
iv) Mr Al Haroun clearly knew by the time he was in a position to regain control of Ettizan in mid-2013 (by which time he says it was a worthless shell) that QNB had not frozen Ettizan's accounts.
v) Further, I would note that Mr Al Haroun arrived in this jurisdiction on 23 May 2015 and sought asylum on 22 October 2015. No explanation has been offered as to why proceedings could not have been commenced
in this jurisdiction then, even assuming that they could not have been
commenced
before.
vi) It should be noted that the claims arising from the January 2013 seizure order are similarly long-time barred under English law (I am not persuaded that there is any material difference in this case between the point at which time would begin to run under Article 219 of the Qatari Civil Code and the position under s.32 of the Limitation Act 1980). In these circumstances, it is not necessary in this context to address the possibility of disapplying the Qatari limitation period under ss.2(1) or 2(2) of the Foreign Limitation Periods Act 1984.
i) The loss allegedly suffered through the January 2013 seizure is said to have been completed within the period of four weeks of the seizure order, i.e. prior to the presentation of the cheque.
ii) There is no claim in the draft amended Particulars of Claim for any loss arising from the presentation of the cheque or the criminal proceedings. The loss claimed relates to the assets of Ettizan.
iii) No legal basis for any cause of action based on the presentation of the cheque is pleaded.
Entitlement to sue
The other issues raised
i) I am not persuaded that any liability which QNB might have in respect of the January 2013 seizure would fall within the exclusive jurisdiction clause in the Loan Agreement, such that any such claim would have to be pursued in Qatar or the high threshold for not enforcing that agreement overcome. The alleged presentation of the cheque after the seizure order had been made and revoked, and the relevant damage done and the cause of action complete, is not enough.
ii) I accept the draft Particulars of Claim provide no basis for the allegations made against QNB Capital, which are not arguable. The highest the pleading puts matters is that "the Claimant believes that the Second Defendant was or may have been involved … but the Claimant is unable to plead further pending disclosure". That does not allege, still less support an arguable claim against QNB Capital, and indeed the draft Particulars of Claim do not plead that QNB Capital was a party to the conspiracies pleaded or the seizure and its aftermath.
iii) I have not found it necessary to consider whether the pleaded facts reveal an arguable case against QNB itself arising from Mr Al Emadi's involvement.
The claim for procuring breach of contract
Limitation
i) Clearly Mr Al Haroun knew that the March 2014 Letter had been sent by QNB because he was involved in the arbitration in which it was deployed.
ii) Indeed, Mr Al Haroun caused Ettizan to instruct lawyers who prepared an RFA for a claim against QNB based on the production of the March 2014 Letter.
iii) Mr Al Haroun knew the result of the award when it came out in 2015, and of the failure of the attempt to challenge the award in February 2017.
iv) If the latter date is taken as the date when time begins to run (although there is a strong argument that the cause of action was complete and the requisite knowledge present when the award was published in August 2015) then the claim is obviously time-barred under English law as well, such that ss.2(1) and (2) of the Foreign Limitation Periods Act 1984 are not engaged.
Entitlement to sue
Is it arguable that there has been a breach of contract?
The remaining issues raised
i) I accept on the limited evidence before the court that KRIC's claim against the SSIF failed for two reasons, only one of which was ostensibly connected with the March 2014 Letter. While it might be said that the evidence as to the lack of financing on the KRIC side might itself have cast doubt on the veracity of the signature purportedly applied on the SSIF side, that is a weak argument, and such material as there is before the court suggests that it was the handwriting analysis which was the key. In those circumstances, I have serious doubts as to whether the procuring breach of contract claim is arguable on this ground as well, but I would have wanted to see if better evidence could be obtained as to what exactly was decided in the award before reaching a final view.
ii) Had any "triple derivative" claim been asserted (it would appear that there is an intermediate company between Mr Haroun and KRIC, namely what has been described as a sister company of Ettizan), then it would not have been open to either QNB or QNB Capital to assert the obligation to arbitrate in the SPA, neither being party to the arbitration agreement in question.
iii) I accept that there is no arguable basis for a claim against QNB Capital in the draft amended Particulars of Claim. However, no such claim is asserted.
The jurisdiction application
Reliance on the jurisdiction and arbitration agreements
i) the exclusive Qatari jurisdiction clause in the Loan Agreement between Ettizan, Mr Al Haroun and QNB; and
ii) the LCIA arbitration agreement in the HBTF Agreement between Ettizan and QNB.
i) I am not persuaded that the conspiracy claim relating to the January 2013 seizure order falls within the jurisdiction clause in the Loan Agreement. The reliance on the fact of the presentation of the cheque after the seizure to support QNB's alleged involvement in the prior conspiracy is not sufficient to engage the jurisdiction clause when the dispute, properly characterised does not (see by analogy Mozambique v Privinvest Shipbuilding SAL [2023] UKSC 32, albeit in the context of s.9 of the Arbitration Act 1996).
ii) Had a cause of action been advanced premised on the presentation of a forged cheque in March 2013, I accept that it likely that this would have fallen within the exclusive jurisdiction clause in the Loan Agreement, although it would be necessary to consider the precise cause of action and how it was formulated before reaching a concluded view. The Loan Agreement provided for the provision of a guarantee cheque from Mr Al Haroun in the sum of QR 25.000.000 (clause 3) and imposes various obligations on Mr Al Haroun as guarantor, and it is not disputed that he is a party to the Loan Agreement in that capacity. A claim that a cheque of QR 25.000.000 from Mr Al Haroun's cheque book was presented with a forged signature is clearly a dispute arising out of the Loan Agreement. However, no such claim has been pleaded, and, at the jurisdictional stage, it is the facts as pleaded which are key (HRH Emere Godwin Bebe Okpabi v Royal Dutch Shell plc [2021] UKSC 3, [22] and [103]-[106]).
iii) I do not see how the claim in relation to the March 2014 Letter falls within LCIA arbitration agreement in the HBTF Agreement, because the pleaded complaint is the procuring of a breach of the SPA, and the claim is that of KRIC which is not a party to the HBTF Agreement.
A stay application
i) At stage 1, the defendant must establish that there is another forum which is "clearly or distinctly more appropriate than the English forum" (p.477E).
ii) If the defendant discharges this burden, then at stage 2 the burden of proof shifts to the claimant to show, using cogent evidence, that "there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country" (p.476E).
i) The claimant is required to prove "objectively by cogent evidence" the circumstances which require the English court to proceed with the claim, notwithstanding the fact that it is not the appropriate forum to hear it. It is not sufficient for the claimant's evidence to simply "raise grave doubts" about such circumstances ([23]).
ii) The burden of proving that a particular forum is not practically available falls solely upon the claimant, and this must be discharged by cogent, positive and objective evidence (ibid).
iii) Where there is a "divergence of opinion" between the experts on a question of foreign law or practice at stage 2, such that the "answer is not clear" to the court, "considerations of comity and caution" preclude the court from concluding that the foreign forum would not deliver justice to the claimant. The court will start with the working assumption, for which comity calls, that courts in other judicial systems will seek to do justice in accordance with applicable laws, and will be free from improper interference or restriction (ibid).
iv) There is no difference in the standard of proof applied to an allegation that the claimant will not practically be able to access the foreign forum due to their personal circumstances, and an allegation that they will not receive justice in that forum, the "overarching test" being "one of real risk that the claimant will not obtain justice in the foreign forum" ([32]).
i) I accept the evidence of Professor El Shazly that Qatari civil procedure allows remote participation in litigation, including the giving of evidence remotely (Article 17 of Law No (8) of 2023, promulgating the Judicial Authority Law). Professor El Shazly is involved in training members of the Qatari judiciary and local lawyers and I am satisfied he is able to speak to the practical realities of litigating in Qatar and not just the position "on paper". While the First Report asserts that claimants in substantive hearings cannot appear remotely, no source is cited for this proposition, and I am unable to place weight on bare assertions in the First Report for the reasons I have already set out. In any event, the First Report also states that attendance by a properly authorised attorney is an alternative to attendance in person.
ii) I accept that to be in a position to instruct Qatari lawyers himself, Mr Al Haroun is required to execute a power of attorney (Article 54 of Law 23 of 2006), and that to do this, he will need a document which verifies his identity.
iii) If Mr Al Haroun needs to visit Kuwait in order to renew his Kuwaiti identity card (which has expired), I am satisfied that there is a real risk of him being arrested and extradited to Qatar. I am also satisfied that there is a real risk of Mr Al Haroun being arrested by the Kuwaiti authorities. He has been convicted and sentenced in absentia in Kuwait, and while a pardon has been issued by the Emir in respect of those convictions, the nature and circumstances of the original convictions and commentary
around the pardon have persuaded me that a real risk of arrest remains.
iv) I accept that there is a real risk that Mr Al Haroun cannot renew his Kuwaiti ID (which has expired) at the Kuwaiti Embassy in London because biometric requirements introduced in Kuwait require his presence in Kuwait.
v) Given Mr Al Haroun's evidence that POAs issued to Qatari lawyers in connection with proceedings in 2013 and 2015 had lapsed, and the likelihood that these are time and subject-matter limited, I am not persuaded that I can exclude a realistic possibility that a new POA is required (even assuming that the same lawyers were willing to act).
vi) However, I am satisfied that Mr Al Haroun can establish his identity for the purposes of executing a POA through the identity document he was issued by the UK authorities when granted indefinite leave to remain in this jurisdiction. Indeed it is apparent that he has already used that document to instruct lawyers in Switzerland. A letter from the Swiss Federal Department of Justice of 9 August 2024 deployed by Mr Al Haroun states that on 10 July 2024, Swiss lawyers acting for him sent a letter "accompanied by a power of attorney" and a copy of "the applicant's English passport." I accept that the document in question was not a passport, but it is a photographic ID document issued by the UK authorities which Mr Al Haroun has confirmed he has used for the purposes of international travel. I was offered no cogent explanation of why this document could be used to grant a POA to Swiss lawyers but not Qatari lawyers.
vii) It follows that Mr Al Haroun has failed to meet the burden imposed on him at stage 2 of the Spiliada test of showing a real risk that Qatar is not available to him as a forum. Had this issue been live, and a stay granted, it would have been open to Mr Al Haroun to apply to lift the stay had events shown that instructing a Qatari law firm in this way was not possible. The merits of some puddings can only be properly tested by consumption.
i) Mr Al Haroun submitted an expert report from Dr Kristian Coates Ulrichsen, an academic who I accept has considerable expertise as to the extent to which civil liberties and human rights, including the right to a fair trial, are respected in states in the Gulf region, including Qatar. Dr Ulrichsen has provided a balanced and nuanced report, which is careful not to overstate the position.
ii) Dr Ulrichsen states that "judicial independence in Qatar is more robust than in most neighbouring states", but cites a number of examples of cases which have given rise to international concern about the independence of the Qatari judiciary. It is notable that the examples involve criminal offences with a political flavour, or cases in which a member of the ruling family benefited from what is said to be an unjustifiably favourable result in a legal dispute in the Qatari courts. Dr Ulrichsen fairly notes that these "may be isolated cases or they may be symptomatic of a deeper set of issues and I do not possess the necessary information to make a qualified judgment".
iii) I do not regard the fact that QNB is 50% state owned as sufficiently cogent evidence of there being a real risk of state interference in Qatari court cases in which it is involved. The QNB is an essentially commercial undertaking active in the banking sphere. It is clear that it does lose cases in the Qatari courts. The issues in this case do not engage control of a strategically significant industrial sector or a media outlet, but are essentially financial. The amount of money in issue is, for QNB, of very small proportions.
iv) While the former CEO executive who became a director of Ettizan in the aftermath of January 2013 seizure later became Minister of Finance in July 2013, he was fired as a Minister in May 2021 and sentenced to 20 years' imprisonment for corruption and money-laundering in January 2024. There was no suggestion that Mr Al Kuwari, who signed the 14 March 2014 Letter was either a government figure or a member of the ruling family.
v) In these circumstances, Mr Al Haroun has failed to present cogent evidence of the kind required to satisfy the stage 2 Spiliada test. The court's working assumption "that courts in other judicial systems will seek to do justice in accordance with applicable laws, and will be free from improper interference or restriction" has not been displaced.
vi) Had I not struck the proceedings out, I would, therefore have stayed them.