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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Ahmad v Ouajjou & Anor [2023] EWHC 2666 (Comm) (26 October 2023) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2023/2666.html Cite as: [2023] EWHC 2666 (Comm) |
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KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
Shahraab Ahmad |
Claimant |
|
- and |
||
(1) Karim Ouajjou (2) Yasmin Al Sahoud Perez |
Defendant |
____________________
Goldstone (instructed by RWK Goodman) for the Claimants
James Pickering KC (instructed by Colman Coyle) for the Defendants
Hearing dates: 10th October 2023
____________________
Crown Copyright ©
MR JUSTICE JACOBS:
A: Introduction: outline of the applications and the parties' arguments
(1) The defendants seek to change their factual case as to the events which happened, and to rely on oral agreements allegedly made.
(2) Ms Perez seeks to deny that she was personally liable under the loan agreements which she admittedly signed (and indeed others which are alleged by Mr Ahmad to have been signed), on the basis that she was not acting in her personal capacity but was signing on behalf of the principal Spanish company which Mr Ouajjou operated, and of which she was an officer. The principal company was Axess Sp Sociedad Limitada. (Unless it is necessary to distinguish between them, I shall simply refer to "Axess" to refer to this company, as well as another company operated by the defendants called Axess Canarias Sociedad Limitada).
(3) Mr Ouajjou seeks to add a counterclaim. This is principally a claim in respect of certain monies which were provided to Mr Ahmad for investment purposes. Mr Ouajjou seeks, in essence, an account in respect of the investments that were made, together with payment of their current value. The various iterations of the amended defence and counterclaim, including that most recently served, also included a counterclaim in respect of certain rights assigned to Mr Ouajjou by Mr Guillaume Rambourg, who is a significant player in the relevant events. However, in his oral submissions on behalf of the defendants, Mr Pickering KC made it clear that this aspect of the counterclaim is not pursued.
B: The facts giving rise to the proceedings
The parties and principal players
The loan documents and their background
Loan |
Date of Transfer |
Advance by Guillaume Rambourg to Shahraab Ahmad (receipts in brackets) |
Advance by Shahraab Ahmad to defendants (receipts in brackets) |
Defendant recipient |
GR Loan 1 |
09 September 2020 |
€1,700,000 |
|
|
Loan 1 |
11 September 2020 |
|
€1,700,000 |
Axess SP |
|
27 October 2020 |
|
€ (-1,835,993.39) |
|
|
29 October 2020 |
€(-1,835,993.39) |
|
|
GR Loan 2 |
05 November 2020 |
€1,835,987.85 |
|
|
Loan 2 |
06 November 2020 |
|
€1,658,750 |
Axess SP |
GR Loan 3 |
09 November 2020 |
€2,200,000 |
|
|
Loan 3 |
10 November 2020 |
|
€2,200,000 |
Axess SP |
GR Loan 4 |
13 November 2020 |
€3,964,000 |
|
|
Loan 4 |
17 November 2020 |
|
€3,964,000 |
Axess Sp |
GR Loan 5 |
16 December 2020 |
€6,500,000 |
|
|
Loan 5 |
22 December 2020 |
|
€6,300,000 |
Axess Canarias |
Loan 5 |
29 December 2020 |
|
€199,967.10 |
Axess SP |
GR Loan 6 |
22 March 2021 |
€5,300,000 |
|
|
Loan 6 |
23 March 2021 |
|
€5,300,000 |
Axess Canarias |
Loan 7 |
25 May 2021 |
|
$1,200,000.00 |
Karim Ouajjou |
GR Loan 7 |
30 June 2021 |
€5,000,000 |
|
|
Loan 8 |
01 July 2021 |
|
€5,000,000 |
Karim Ouajjou |
Loan 9 |
13 September 2021 |
|
€600,000 |
Axess SP |
|
6 October 2021 |
|
$(230,531,84) |
|
|
|
|
|
|
|
Balance |
€24,664,000 |
€25,222,717.10 $969,468.16 |
|
|
|
|
|
|
"Deed
This Deed is Dated November 09th , 2020
Between:
Mr. Shahraab Ahmad of 49 Cathcart Road, London SW10 9JE, UK ("The Lender")
Ms Yasmin Al Sahoud Perez Calle Valenzuela, 8 BAJO izquierda 28014 Madrid ("The Borrowers")
Mr Karim Ouajjou Calle Valenzuela, 8 BAJO izquierda 28014 Madrid ("The Borrowers")
(collectively known as the Parties)
Further information on the Parties:
Ms. YASMIN AL SAHOUD PEREZ, of legal age, citizen of Spain with DNI 74861645A acting on her own, in her capacity as Administrator of the commercial company AXESS CANARIAS, S.L.U, a Spanish company with registration- CIF number: B76812775, and having its registered office situated in Camino Santa Rosa de Lima n° 43, San Cristobal de La Laguna, 38330 Santa Cruz de Tenerife.
Mr. KARIM OUAJJOU, of legal age, citizen of Morocco, provided with Spanish N.I.E number Y3770719K with address at C/ Valenzuela n°8, Bajo izquierda, 28014, MADRID, acting on his own.
ARTICLE 1. PURPOSE OF THE CONTRACT
The purpose of this contract (the "Contract") is to formalize a loan agreement between the Borrowers and the Lender and to specify the conditions of repayment of the loan, The signing of this Agreement is formal recognition by the Borrowers that the funds were given to him by the Lender.
ARTICLE 2. PAYMENT AND REPAYMENT ARRANGEMENTS
The Lender will wire the Borrowers 1,836,000 Euros ("the Principal") immediately after signing this contract.
The Borrowers shall pay the Lender 8 percent interest on the Principal every 40 days, simple interest. This loan will automatically roll over unless terminated by either party. The termination conditions are stated in a separate clause below.
Every 40 days, The Borrowers will wire the Lender 146,880 Euros.
The Lender and Borrowers agree that this loan is for a specific PPE project. If the project does not go through in the first two weeks, the Borrowers have the right to return the principal to the Lender without any interest being incurred.
For the purposes of clarity, each Borrower shall be responsible for the full repayment amount 1,836,000 Euros plus 8 percent of the Principal, if the other Borrower fails to pay. The Lender shall receive no more than the 1,836,000 Euroes plus 8 pct of the Principal if repaid in the 40 day period.
If the 40 day period is breached, interest will continue to accrue at 8 percent every 40 days.
If the 40 day period is breached, the Lender shall be within his rights to being [sic] legal proceedings. The Borrowers agrees to shoulder the cost of any legal proceedings borne by the Lender.
ARTICLE 3. TERMINATION
The Borrowers can serve notice of termination at any time and return the Principal and accrued interest within 5 business days of termination. Interest will accrue on a calendar day basis excluding the 5 business days used to serve notice.
The Lender can serve a 40 day notice to terminate the contract.
ARTICLE 4. APPLICABLE RIGHTS
All disputes, disputes or matters arising or relating to this Loan Agreement shall be settled definitively in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
Executed as a DEED by [Mr Ahmad, Mr Ouajjou and Ms Perez]"
"Between 9 September 2020 and 1 July 2021 Mr Rambourg paid monies to Mr Ahmad pursuant to the Loan Agreements between them and immediately thereafter Mr Ahmad paid monies to ACSL, and on 1 July 2021 to Mr Ouajjou, pursuant to Loan Agreements between them. In this way Mr Rambourg performed his part of the GR Investment"
"On receipt of the monies pleaded in paragraph 22 above Mr Ouajjou deployed them for the purposes of the PPE Project and GR Investment".
The developments now alleged by the defendants
2021
The commencement and course of the litigation
(1) Mr Ahmad's original Affidavit in support of the freezing order application, together with its exhibit.
(2) The first witness statement of Mr Ouajjou in response to the summary judgment application. This is dated 20 June 2023, and contains Mr Ouajjou's factual case. There is a substantial exhibit.
(3) The first witness statement of Ms Perez dated 20 June 2023. This is relatively short and describes the circumstances in which she signed the loan documentation, as well as her limited involvement in the business of Axess.
(4) The third witness statement of Ms Perez, dated 11 August 2023, in which she describes the circumstances in which the original defence was served, and why permission to amend should be given. Her account is supported in a shorter 4th witness statement of Mr Ouajjou also dated 11 August 2023.
(5) A very short witness statement of Mr Ahmad, dated 8 September 2023, which declines to engage with the factual allegations raised by the defendants either in their proposed amended defence or in their witness statement. He maintains the case put before the court in his Particulars of Claim, and states that he does not believe that at this stage he should incur the costs of addressing disputed matters of fact.
(6) A very short witness statement of Ms Joutey, also dated 8 September 2023. This describes her involvement in certain settlement discussions in 2022. She says that she (as well as Mr Rambourg) mistakenly believed at that time that the PPE business was a legitimate and profitable business. The statement does not address the factual allegations in the amended defence or the defendants' evidence, although she does express surprise that they were now seeking to deny having entered into any of the loan agreements.
D: Legal Principles
40. There was no dispute about the test to be applied in the circumstances of this case. The dispute was whether the Judge had applied it properly or whether he had fallen into error by conducting a mini trial. In any event, it is important to bear in mind that the overriding objective applies and the question of whether permission to amend should be given must be considered in the light of the need to conduct litigation fairly and justly and at proportionate cost.
41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 . A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences: Three Rivers District Council v Bank of England (No3) [2003] 2 AC 1 .
42. The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.
"[26] The principles in relation to a defendant's summary judgment application were set out in Easyair Ltd v Opal Telecom Limited [2009] EWHC 339 (Ch) at [15]. Those principles have been recited in many subsequent cases, including perhaps most recently by me in JJH Holdings Ltd v Microsoft [2022] EWHC 929 (Comm) at [11]:
"(i) the Court must consider whether the claimant has a 'realistic' (as opposed to a 'fanciful') prospect of success; (ii) a 'realistic' claim is one that carries some degree of conviction, which means a claim that is more than merely arguable; (iii) in reaching its conclusion the Court must not conduct a 'mini-trial', albeit this does not mean that the Court must take at face value and without analysis everything that a claimant says in statements before the court; and (iv) the Court may have regard not only to the evidence before it, but also the evidence that can reasonably be expected to be available at trial. Furthermore, where a summary judgment application turns on a point of law and the Court has, to the extent necessary, before it 'all the evidence necessary for the proper determination of the question,' it 'should grasp the nettle and decide it' since the ends of justice are not served by allowing a case that is bad in law to proceed to trial."
[27] As to (iv), the Court will "be cautious" in concluding, on the evidence, that there is no real prospect of success; it will bear in mind the potential for other evidence to be available at trial which is likely to bear on the issues and it will avoid conducting a mini-trial: King v Stiefel [2021] EWHC 1045 (Comm) at [21] (per Cockerill J).
[28] Furthermore, as Fraser J also recently put it in The Football Association Premier League Limited v PPLive Sports International Ltd [2022] EWHC 38 (Comm) at [25] , on a summary judgment application the Court must "always be astute, and on its guard" to an applicant maintaining that particular issues are very straightforward and simple, and a respondent attempting to dress up a simple issue as very complicated and requiring a trial.
E: The parties' arguments
The argument for Mr Ahmad
The argument for the defendants
F: Discussion
Withdrawal of admissions
"[22] When considering withdrawal of a plea, different considerations arise depending on whether what is to be withdrawn is an admission or an averment. In relation to an averment which a party wishes to pursue, the party is concerned not merely with whether the averment is true, but also whether and how it can be proved. On the other hand, in relation to an admission in response to an averment by the opposite party, what the party is concerned with is simply whether what is alleged against it is true. No question arises of it being able to prove or disprove the allegation evidentially distinct from the question as to whether the allegation is or is not true.
[23] It seems to me, therefore, that the first and important question in this case is to identify what aspect of the proposed amendments are properly characterised as withdrawals of admissions and what aspects are merely withdrawals of averments."
"Paragraphs 15 to 48 are not admitted, save that:
a) Pending a contrary position being revealed in disclosure from Mr Ahmad the dates for each of the Loan Agreements are correct;
b) It is noted the PoC rehearse in part some of the written terms of the Loan Agreements;
c) To the extent required the Defendants will rely on a proper interpretation of the terms of the Loan Agreements at trial, which is not as pleases in the PoC;
d) No basis is pleaded for the implication of the terms alleged, or any terms;
e) Pending a contrary position being revealed in disclosure from Mr Ahmad the amounts for each of the Loans are correct; and
f) Paragraphs 5 to 29 and 30(a)-(f) are repeated"
"On 9 November 2020 Mr Ahmad as 'Lender' and Mr Ouajjou and Ms Perez as "Borrowers" entered into a loan agreement under deed in the terms as attached at Appendix 2 (the 'Loan 2 Agreement'). The said loan was 'back-to-back' with a loan made by Mr Rambourg to Mr Ahmad on 5 November 2020 pursuant to an agreement dated 30 October 2020 ('Back-to-Back Agreement 2')."
"A reference to a Loan Agreement is a reference to the Loan Agreements between Mr Rambourg and Mr Ahmad, as pleaded in the PoC, or to the Loan Agreements between Mr Ahmad and the Defendants, as pleaded in the PoC, or to both as the context requires".
"19. On 10 November 2020 Mr Ahmad as 'Lender' and Mr Ouajjou and Ms Perez as 'Borrowers' entered into a loan agreement under deed in the terms as attached at Appendix 3 (the 'Loan 3 Agreement') The said loan was 'Back-to-back' with a loan made by M Rambourg to Mr Ahmad on 9 November 2020 pursuant to an agreement concluded on or shortly before that date ('Back-to-Back Agreement 3')"
20. The express terms of the Loan 3 Agreement included, insofar as material, identical express terms to those of the Loan 2 Agreement, save that the Principal sum was 2,200,000 and the 8% interest (payable every 40 days) on the same was 176,000, the first payment of which fell due on 20 December 2020.
22. Pursuant to his obligations under the Loan 3 Agreement on 10 November 2020 Mr Ahmad as Lender wired the sum of 2,200,000 to the Borrowers' nominated account (the 'Loan 3 Sum').
C.4 Loan #4
23. On 13 November 2020 Mr Ahmad as 'Lender' and Mr Ouajjou and Ms Perez as 'Borrowers' entered into a loan agreement under deed in the terms as attached at Appendix 4 (the 'Loan 4 Agreement'). The said loan was 'back-to-back' with a loan made by M Rambourg to Mr Ahmad in three tranches on 13 November 2020 pursuant to an agreement dated 12 November 2020 ('Back-toBack Agreement 4')."
"7.1 An admission made under Part 14 may be withdrawn with the court's permission.
7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including
(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
(b) the conduct of the parties, including any conduct which led the party making the admission to do so;
(c) the prejudice that may be caused to any person if the admission is withdrawn;
(d) the prejudice that may be caused to any person if the application is refused;
(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and
(g) the interests of the administration of justice."
CONCLUSION