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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Dar Al Arkan Real Estate Development Company & Anor v Al-Sayed Bader Hashim Al Refai & Ors  EWHC 1055 (Comm) (11 April 2014)
Cite as:  EWHC 1055 (Comm)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dar Al Arkan Real Estate Development Company and anor
|- and -
| Majid Al-Sayed Bader Hashim Al Refai and ors
(instructed by Addleshaw Goddard LLP) for the Claimants and Sheikh Abdullatif
Craig Orr QC, Nicholas Sloboda and Sophie Weber
(instructed by Slaughter and May) for Kroll Associates UK Limited
Hearing dates: 28 February and 21 March 2014
Crown Copyright ©
Mr Justice Andrew Smith:
i) Declarations that the claimants are in contempt of court in that they broke a so-called "preservation undertaking" (an undertaking to preserve some hard drives) and a "drives delivery order" (an order to deliver the drives to Dechert LLP ("Dechert"), the claimants' then solicitors, for safekeeping); and
ii) Orders that the claimants be fined and for the imprisonment of Sheikh Abdullatif Al Shalash ("Sheikh Abdullatif"), the managing director of the first claimants, Dar Al Arkan Real Estate Development Company ("DAAR"), and a director of the second claimants, Bank Alkhair BSC ("BA").
The preservation undertaking was given and the drives delivery order was made at the start of this litigation in June 2012, when the claimants obtained interlocutory orders against the first three defendants. Kroll allege that in breach of them the claimants failed to keep the drives intact and Sheikh Abdullatif deleted two files from one of them.
i) When the court should hear the committal application. Kroll contend that it should be heard well before the trial in the action, whereas the claimants and Sheikh Abdullatif contend that it should be heard after the trial;
ii) Whether, as the claimants contend, I should recuse myself from hearing the committal application; and
iii) What, if any, use may be made on the application of my judgment in these proceedings dated 12 December 2012 ( EWHC 3539 (Comm)).
When should the contempt application be heard?
i) In view of the gravity of the contempt, it is in the public interest that the court upholds its authority, and this demands that it respond promptly and decisively, and is seen so to act, so as to deter other litigants from similar conduct.
ii) Unless the application is heard before trial, the court will not be able to impose any effective and appropriate sentence because the claimants and Sheikh Abdullatif will otherwise ignore the contempt proceedings: in reality, as Mr Orr put it, it is "now or never".
iii) An early hearing will bring it home to the claimants that they must obey the court's orders, and so improve the prospects of the defendants having a fair trial.
i) Here there is unlikely to be evidence which is relevant to the allegations of contempt and is not already available.
ii) This is a very clear case of contempt.
iii) The allegations are of civil contempt, and they can legitimately be pursued in order to vindicate private rights.
i) The test of apparent bias laid down in Porter v Magill reflects Strasbourg jurisprudence, and there is no relevant distinction between the common law and the requirements of article 6 of the European Convention on Human Rights.
ii) Apparent bias is not demonstrated by "the mere fact that a judge, earlier in the same case or a previous case, has commented adversely on a party or a witness, or found the evidence of a party or witness to be unreliable": per Bingham LCJ, Lord Woolf MR and Sir Richard Scott V-C in Locabail (UK) Ltd v Bayfield Properties Ltd,  QB 451 at para 25.
iii) However, there are circumstances in which, as it was put by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300, "... a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact".
iv) Cases in which there is any real ground for doubt should be resolved in favour of recusal.
v) A judge should decline to hear a case only for proper and sufficient reason to do so: recusal is not an excuse for avoiding embarrassment.
I was referred to a number of authorities about when a judge should stand aside, but in the end the enquiry is fact specific: see the Locabail case at para 25.
i) I rejected as dishonest evidence of the claimants' witnesses, and
ii) As a result I reached conclusions adverse to the claimants and Sheikh Abdullatif on specific issues that are important to the committal application.
I set out at paragraph 3 above what is probably my most important finding for present purposes. My criticisms of the claimants' witnesses (to refer to only some of examples on which Mr Béar relied) included these: "I was driven to conclude from the cross-examination of Sheikh Abdullatif and Dr Almajthoob that they were dishonest witnesses and that their evidence was untruthful" (at para 49 of my December 2012 judgment); "I reject Sheikh Abdullatif's account of deleting the documents and his explanation for doing so, and do not accept that the claimants have now given a full and honest explanation about how and why they were deleted" (at para 66); and "I am driven also to reject as dishonest other parts of the evidence of the claimants' witnesses, including parts of their oral evidence when cross-examined" (at para 69).
The admissibility application
i) A declaration that it is inadmissible in evidence, or at least inadmissible as evidence of the facts that I found.
ii) A direction that Kroll may not rely on the conclusions in it.
iii) An order that "the Discharge Judgment and references to the findings in it be excluded from [Kroll's] evidence".
Mr Béar submitted that the proper approach is that explained by Lord Hope in Three Rivers District Council v Bank of England (No 3),  UKHL 16 where he said at para 32 that the findings made in Bingham LJ's report, being inadmissible as evidence, were "incapable either of being led in evidence at the trial or of being used by either side in any way in support of the competing arguments".