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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Saab & Anor v Jones Day Reavis & Pogue & Anor  EWHC 2616 (Ch) (05 December 2002)
Cite as:  EWHC 2616 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
|(1) AYOUB-FARID MICHEL SAAB||VALIGN=BOTTOM WIDTH=19%>|
|(2) FADI MICHEL SAAB||VALIGN=BOTTOM WIDTH=19%>Claimants|
|- and –|
|(1) JONES DAY REAVIS & POGUE|
|(2) MOHAMED AMERSI||Defendants|
STEPHEN RUBIN QC AND THOMAS BRAITHWAITE (instructed by RICHARDS BUTLER) for the First Defendant
Hearing dates: 28 October to12 November 2002, and 14-15 and 19 November 2002.
Crown Copyright ©
Mr Justice Peter Smith :
1. This is the trial of a number of Preliminary Issues originally set out in the Schedule to the Order of Master Bragge dated 23 October 2001. The lists of preliminary issues have been recently amended and on the first day of the hearing Mr Stephen Rubin QC who appears for the First Defendant ("JDRP") applied for an Order that they be abandoned on the basis that it was no longer appropriate for there to be a split trial in this matter.
2. The main thrust of his submissions was based on the overlap of issues between this stage which is essentially primarily concerned with establishing the factual disputes and thus liability if any, with the second stage which is the consideration of damages.
3. I agreed that the possibility of overlap in respect of one issue (issue number 24) existed. However, it seemed to me that it was of vital importance for the administration of justice for these parties in particular to avoid the unnecessary consequential costs of addressing experts as regards stage 2 without at least attempting to see whether the matter could be definitively resolved by making determinations as to the factual disputes which give rise to the primary claim.
4. In this context if JDRP's stance is accepted it would end the Claimants' action. The converse of course would not be true but that does not in my opinion affect the advantageous nature of the preliminary issues. This is reinforced in my view by the fact that JDRP never appealed the order of Master Bragge.
5. I accordingly deleted question 24 but otherwise rejected the application.
BRIEF FACTUAL ANALYSIS
6. The claim is in respect of breaches of contractual, tortious and/or fiduciary duties owed by JDRP and the Second Defendant ("Mr Amersi") respectively as Solicitors and/or answerable legal advisors to the Claimants ("the Saabs"). The claim against Mr Ameris has been stayed by consent.
7. JDRP is a very well known American international law firm with numerous offices. Mr Amersi was employed by them in their Geneva office from May 1, 1994 pursuant to a letter of offer of employment dated 24 January 1994. Mr Amersi is a qualified Solicitor and had until recently a practising certificate but now does not practice.
8. The claims arise out of the prospective development of a piece of land ("the Site") known as Mecrhef-Daraiya in the Kfarmatta district of Lebanon. The S
site is approximately 1.3 kilometres2 and is about 17 kilometres south of Beirut.
9. It had been purchased by the Claimants who are brothers some years before the dispute for investment purposes. I will call the First Claimant "Farid" and the Second Claimant "Fadi".
10. The c
Claim as I have said arose out of the proposed development of the Site. The proposed development was a substantial development ("the Project") being a combination of residential and commercial property. Attempts commenced in 1991 to start the development. Various ways of starting development were tried. Thus at one stage there was a possibility of John Laing Construction Ltd. through its Middle Eastern company being a developer of the Site. Other ways involved attempting to sell plots to individual investors but that fell away quite rapidly. The latter attempts involved an attempt to raise finance s by the private placement of shares in corporate vehicles. One point that caused difficulty was that the law of Lebanon prohibited foreigners from holding ownership of land.
11. Farid and Fadi had run various businesses originally founded in 1927 by their late father Michel A.Saab. In 1976 Farid left Lebanon because of the civil war outbreak to run their family interests from Cyprus. Fadi joined him in Cyprus in 1982. The core business was banking conducted through two banks, namely the Federal Bank of Lebanon ("FBL") and the Federal Bank of the Middle East ("FBME"). Despite its name FBME is actually a company incorporated and registered in the Cayman Islands. Farid is the Chairman of both banks. Fadi is presently acting Chief Executive of FBME and Co-Chairman of FBME and Deputy Chairman of FBL.
12. As I have said above the present dispute arose out of an attempt
s by the Saabs to raise finance to develop the Site.
13. JDRP is an American law firm of international repute.
14. Despite the apparent lack of connection with the law of England and Wales both parties submit that the general duties and liabilities of JDRP fall to be considered in the light of the duties of solicitors within this jurisdiction although, JDRP do not accept the Law Society Code of Conduct should be applied.
15. Mr Amersi qualified as a solicitor of the Supreme Court of England and Wales but was not practising by the time of the hearing of the preliminary issues. Between 1994 to 1999 he was "of counsel" to JDRP based in Geneva. Prior to that he had been seconded by Clifford Chance for six years to its then Saudi associate the law firm of Salah A-Hejailan ("LFSH") where he practised as Head of Banking Practice. Before that he was at Clifford Chance in London.
16. While in Saudi Arabia with LFSH and subsequently when he joined JDRP he was standing Counsel to the Saudi American Bank ("SAMBA") and provided legal services to it in respect of, he estimated, approximately ninety per cent of its banking related work.
17. SAMBA was owned thirty per cent by Citicorp (now Citibank), and Mr Amersi said that he had a close working relationship with all of SAMBA's CEO
's and for the purpose of the dispute in particular with a Mr Jim Collins who was seconded to SAMBA by Citibank.
18. Whilst at LFSH, Mr Amersi had been involved as an adviser to SAMBA and other Saudi banks including National Commercial Bank ("NCB"), Saudi French Bank and Riyad Bank.
19. Nevertheless, Mr Amersi did not hold himself out as being an expert, as I understand it, in Saudi law; his expertise was more in the area of international banking and finance.
THE INVOLVEMENT OF MR AMERSI AND JDRP
20. Mr Amersi and through him JDRP became involved in August 1994, about five months after he had joined that firm. He was contacted by a Stephen Paine of S G Warburg who wanted to introduce him to their client FBME. He was told by Mr Paine that FBME was owned by the Saabs and that they had a development project, being the Project at the Site, and that they were looking to raise finance for the Project by way of a private placement of shares. He also told Mr Amersi that the Saabs had tried to raise finance for the P
project previously but this had not been successful. He suggested to Mr Amersi that he might be able to put the Saabs in touch with potential Middle Eastern investors who might be willing to invest in the Project. Mr Amersi expressed interest in knowing more about the Project and meeting the Saabs to discuss the matter further. He also suggested to Mr Paine that it might be helpful if he could obtain copies of documentation.
21. Subsequently on 8 August 1994 Farid sent a package of some Project documentation which included copies of the Placement Memorandum, the Master Plan and Share Purchase and Subscription Agreement prepared in relation to the last finance_raising attempt. I should say that Mr Paine, having made the initial contact with Mr Amersi, had reported back to Mr Prohaska ("Buca"). He was employed by FBME between January 1993 and 1996, and in particular he was a director at its head office in Nicosia. His particular role was development of business in Russia and Central and Eastern Europe (he being Serbian) although he was involved generally in the business.
22. He had had a role in the Project prior to August 1994 but that role appears to have been somewhat limited save that he contacted various banks with a view to raising finance, namely S G Warburg, Barings and Indosuez in particular. In respect of Indosuez his discussions were with a Mr Perrin. In giving his evidence Mr Prohaska clearly gave the impression that Mr Perrin was not really interested in the Project and merely asked for information out of politeness.
23. This reflects separate contacts which Farid had had with Mr Perrin as set out in correspondence passing between them starting on 13 May 1994 and a short reply from Mr Perrin on 17 May 1994 showing Indosuez was not interested.
24. Buca spoke to Mr Amersi having received Mr Paine's letter of 4 August 1994. He also wrote to Farid who in turn by letter dated 8 August 1994 sent some of the documentation and a video to Mr Amersi. On that letter is a hand written note of Mr Amersi referring to a meeting he intended to have later with Buca and a Mr Lyons, one of the Saabs' business associates of Eastern and European Enterprises Ltd. That dinner meeting was in Geneva on or about 16 August 1994. The contents of that meeting, the later important meetings, which took place between 1 to 4 September 1994, the meetings on the 11 September 1994 through to 16 September 1994 and the meeting at the end of September 1994 are hotly disputed. Apart from two very brief notes of Mr Amersi dated 1/2 September 1994 no one apparently took or retained any notes of any discussions at the meetings. I will refer to the meetings in due course in this judgment as the crucial questions I have to answer involve a determination of the important issues that took place at those meetings.
25. Many parts of the meetings and events are disputed. It is impossible (and undesirable) for me to attempt to resolve every disputed issue as to fact. Thus for example to my mind it does not matter whether or not the terms of JDRP's retainer were discussed on the plane flying from Beirut to Zurich on 4 September 1994 or whether they were discussed in the lounge at Zurich airport on the 4 September 1994. Equally whether or not the party decamped to Lebanon on 2 September as opposed to 3 September is not to my mind significant, although the hotel bills provided by the Saabs support their version and I accordingly accept their version, as did Mr Amersi belatedly.
26. I also bear in mind that the evidence being given relates to events that took place eight years ago. I am cautious about accepting evidence of apparently crystal clear recollections of events. Equally, I do not necessarily accept anyone can have a precise memory of the extent of discussions that took place that far away. Thus whilst I might reject some witnesses' recollections it does not follow that the entirety of that particular witness' evidence should be rejected. The important determining factor to my mind to assist me, in evaluating what I find to be the actual events, is the performance of the witnesses in the witness box, being subject to the purifying ordeal of crossexamination.
27. I have had the advantage of seeing the key players extensively cross–examined, and it is that performance to my mind which enables me to come to the conclusions primarily in this case.
28. I am assisted further as always by reference to contemporary documents. If a person's evidence is at variance to contemporary documentation then the contemporary documentation is not to be lightly rejected.
29. Following the initial meeting between Buca, Mr Lyons and Mr Amersi matters developed beyond that leading to a major series of meetings over the 12 and 13 September 1994 at JDRP's London offices, leading to the signing of two key documents. The first of those was the agreement signed on 16 September 1994 ("the Placement Agreement") whereby the Saabs retained SAMBA as their placement agent to obtain investors for the Project.
30. The second arrangement was a letter of retainer of JDRP by the Saabs. This was signed on 23 September 1994, the same day I observe that the Saabs agreed to a retainer of Mr Cassin of Saud MA Shawwaf Law Office ("Shawwaf"). This is a Saudi Arabian law firm who were legal advisors to SAMBA. They were also associated with JDRP, although whether or not the Saabs knew about that is also a matter of significant dispute in this case. The key person who gave evidence before me on behalf of SAMBA was Mr Ghazi Jaswinder Dhoot ("Mr Dhoot") who was at the time the assistant general manager of corporate finance investor marketing at SAMBA, and was the head of the western province of that group based in Jeddah. He reported to Mr Roy Gardener who was the head of the corporate finance and investor marketing division and was also responsible for the central and eastern province based in Riyadh. He in turn reported to Mr Mously head of the private banking investment group, who in turn reported to Mr Collins the Chief Executive of SAMBA. Neither Mr Mously nor Mr Collins gave evidence before me although the latter was the subject matter of a witness statement served under the Civil Evidence Act 1985. He was not called because he was abroad. No explanation was provided as to why he could not be called and I attach no weight at all to any evidence of a witness which a party chooses not to call and that witness' evidence is not subjected to cross_examination.
COMPLAINTS AGAINST JDRP
31. I refer to the Re-amended Particulars of Claim dated 2 August 2002. The allegations of breach of contract and/or negligence are set out in paragraph 38. The allegation is that JDRP through Mr Amersi failed to act with all due professional care when advising and acting for the Saabs in connection with the Project generally, and in particular with regard to the selection of a suitable placement agent and negotiation of a placement agreement, failed to provide the Saabs with impartial strategic advice as to SAMBA's ability, failed to take any or any sufficient steps to ensure the Saabs secured the most advantageous terms available when entering into the Placement Agreement and failed to ensure that they were properly protected in circumstances where SAMBA failed to perform its obligations under the Placement Agreement.
32. There is an allegation of breach of fiduciary duty in paragraph 40 where it is alleged that JDRP through Mr Amersi failed to act with undivided loyalty to the Saabs, allowed their performance obligations to the Saabs to be influenced by their previous or existing relationship with SAMBA, placed themselves in a position where their duty to the Saabs and their own interests conflicted, placed themselves in a position where they faced a natural conflict of duty between their duty to the Saabs and their duty to SAMBA and acted for SAMBA without the informed consent of the Saabs.
33. The losses are primarily a loss of an opportunity to develop the Project. I am not concerned with quantum at this stage. The costings of the Project were some US$500,000,000.00 (Five Hundred Million United States Dollars) and the Saabs say that they have lost an opportunity of US$40,971,000.00 (Forty Million Nine Hundred and Seventy-one Thousand United States Dollars) together with increased liabilities of US$9,000,000.00 (Nine Million United States Dollars) plus on a loan liability that they had to another bank, Arab Banking Corporation ("ABC"). Finally, they claim some £111,721.14 (One Hundred and Eleven Thousand, Seven Hundred and Twenty-one Pounds Fourteen Pence) being unrecovered costs and expenses of contesting a jurisdiction issue in an action they brought against SAMBA in this jurisdiction. That represents the difference between the costs which they recovered from SAMBA and their actual costs. The totality of the claim as at the service of the schedule to the Particulars of Claim on 18 April 2001 was some £33,000,000.00 (Thirty-three Million Pounds) based on an exchange rate of US$1.00 = £0.66181 (United States Dollar one equalling Pounds Sterling Zero point Six Six One Eight One).
34. Despite the fact that the Saabs were billed a total of US$334,611.00 (Three Hundred and Thirty-four Thousand, Six Hundred and Eleven United States Dollars) by JDRP a major dispute exists between the parties as to the extent of the retainer. The significant dispute is in relation to the negotiations between the Saabs and SAMBA that took place in London on 12 and 13 September 1994 leading to the signing of the Placement Agreement. At those meetings JDRP contend that Mr Amersi was acting solely for SAMBA and that the Saabs knew that. The Saabs say the opposite. Their case is that they believed they retained Mr Amersi exclusively and that he was acting for them solely at the meetings and they were unaware that he was retained by SAMBA.
35. As I have said above no note of those meetings was ever kept. There is the Retainer Letter signed by the Saabs as I have said on the 23 September 1994 and I will deal with this further in the Judgment.
36. There is also a retainer letter between SAMBA and Mr Amersi dated 6 October 1994. That retainer letter was sent by Mr Dhoot to Mr Amersi. The retainer is "the engagement of [JDRP] in reviewing and assisting with the drafting of the information memorandum. The information memorandum will be drafted by [Mr Amersi] so that it is ready not later than 7 November 1994."
37. That letter provides for a fee of US$20,000.00 (Twenty Thousand United States Dollars), fifty percent of which was to be paid in advance. It was countersigned by Mr Amersi on 6 October 1994. On 26 October 1994 Mr Dhoot sent a further letter to Mr Amersi referring to their meeting in Beirut where it was agreed that the Saabs should alone assume responsibility for drafting the Information Memorandum. By that letter Mr Dhoot requested that Mr Amersi and Mr Cassin assume the responsibility for reviewing the underlying legal documentation on behalf of SAMBA and that that would not increase the fees. On 27 October 1994 Mr Amersi countersigned the letter accepting that basis.
38. Mr Cassin sought an increase of his fees from US$20,000.00 (as set out in his letter of 1 October 1994) to US$30,000.00 (Thirty Thousand United States Dollars). This was based on an increase of further work by thirty hours. He thus charged something like US$300.00 (Three Hundred United States Dollars) an hour, which was Mr Amersi's hourly rate also.
39. JDRP have produced internal documentation in relation to their apparent retainer by FBME dated 14 October 1994. I will review this further in this judgment. In addition they have produced conflict check requests of the same date. I have commented already that the Saabs paid JDRP some US$334,611.00 (Three Hundred and Thirty-four Thousand, Six Hundred and Eleven United States Dollars) in respect of unparticularised bills first requested on 3 October 1994 and ultimately requested (final balance US$79,000.00 (Seventy-nine Thousand United States Dollars) on 9 July 1995).
40. The important meetings of 12 and 13 September 1994 were according to JDRP attended by Mr Amersi acting solely for SAMBA. Despite that no evidence of any retainer documentation has been produced. The disclosed letters do not appear to relate to this part of JDRP's retainer as I have said above.
41. The difficulties in this regard appear to have arisen solely out of the way in which Mr Amersi conducted his practice. This was amplified (if that is the right word) when he was cross_examined by Mr Sutcliffe QC acting for the Saabs. He apparently kept no notes of anything as a matter of policy. The only notes that have ever been produced are those dated 1 and 2 September 1994 and those are controversial, as I shall set out below. He never had any retainer letters (save the one ultimately executed on 23 September 1994 by the Saabs). When he was at Clifford Chance (formerly Coward Chance) he had no policy of keeping any detailed notes nor any retainer letters. He apparently carried this practice forward when he joined JDRP. A small insignificant number of notes were shown to be in existence when proper disclosure was provided during the course of the trial.
42. The ethos within JDRP was very different it being a US law firm. They have forms, which the lawyers were supposed to fill in, in respect of new clients and conflict checks ("CAM forms"). They also had forms that were required to be completed to log hours done on cases. They had a bulky manual but Mr Amersi apparently did not familiarise himself with it. It was the usual practice that new employees would be introduced to the manual and the procedures.
43. Mr Amersi joined JDRP on 1 May 1994. He said that the conflict forms were completed by his secretary, which I find to be a quite extraordinary state of affairs. He had no knowledge he said initially of any practice about keeping notes or letters of retainer and it is plain that his hourly record sheets were virtually non-existent. By November 1994 this had reached a crisis level, as the internal report prepared by Lin Cantlay the London Administrator disclosed by JDRP in relation to his billings in November 1994 shows. That shows a lamentable way of conducting oneself as a lawyer advising clients. Further on 5 November 2002, that is to say the seventh day of the trial, JDRP disclosed computerised time records prepared to show hours done by Mr Amersi and Mr Cassin. It is plain when one looks at the records in question (as regards Mr Amersi) that they were all produced by Mr Amersi in November 1994 in a hurry no doubt as a result of complaints about his time keeping records in the JDRP internal report to which I have already made reference. Mr Amersi effected not to recall any of this but I find that incredible and reject his evidence in that regard. He kept no records of any details of any retainer or hours. It is plain when one compares the belatedly disclosed records that his evidence is unreliable. Thus in his first witness statement he initially said Farid did not contact him (in contrast to Mr Dhoot) after the meetings of 12 and 13 September 1994. On 14 September 1994 he made a pointed contact with Mr Dhoot.
44. Similarly he effected to remember in his first witness statement quite clearly that Farid did not contact him. As the case developed however, it was as Mr Sutcliffe QC put to him (which he denied) necessary for him to justify his case to show there was such a discussion. He therefore produced a fresh witness statement not only saying he now recalled a conversation on the 14 September but giving detailed evidence as to what was discussed about the retainer. I found his explanation for his failure to include this (namely that the witness statements would be too lengthy) unconvincing. This, on his evidence, was a vital call as it was, he says, the time when all the terms of the retainer were finally orally agreed. I reject his evidence.
45. When reference is made to the time keeping records it is to be seen that he logged no hours for any work done on the 14 September 1994. For this reason also I reject his evidence. I am firmly of the view that there was no conversation between him and Farid on the 14 September 1994.
46. There are other areas in this period when Mr Amersi's evidence is unsatisfactory. There has definitely been created a first draft retainer letter dated 9 September 1994. That was disclosed by the Saabs. The next disclosed document (again by the Saabs) was one of a more detailed form dated 14 September 1994. The evidence is that it was sent by fax by Mr Amersi (with a copy of the proposed placement agreement) to Farid who saw it on the 15 September 1994. Mr Amersi suggested that there were drafts before that retainer letter of 9 September 1994. The Saabs denied that and I accept their evidence. When his timetable of actions between 4 September and 9 September was examined in cross examination it was clear there was no time for him to create a series of drafts let alone to discuss them with Farid.
47. The hourly records disclosed show a number of disturbing features. They were printed off on 31 May 1995. That is because as I understand it JDRP changed its computer system at that time. They show the relevant project for which the work is done, the date that it was done, the lawyer name, the office and the hours and provide a narrative. It is however attributed to SAMBA as client. Its number is at the top.
48. The document produced is one continuous document yet it plainly purports to cover (on JDRP's case) time which must have been done by Mr Amersi for the Saabs.
49. According to his evidence he was first asked to act for SAMBA on the morning of 12 September 1994. It is difficult to see therefore how any work done before that date can be work done for SAMBA. His case is that up until then he was acting for the Saabs (including the cost of attending the dinner at the Square Restaurant on Sunday 11 September 1994). Paradoxically there are no hours charged for the 11 September. However, hours are charged for the 12 and 13 September. He apportions them as between the Riyadh office and Geneva office on a fifty percent basis. Thus the activities of Mr Amersi whether acting for the Saabs or SAMBA are all mixed up in the one record. I have already observed that he has no chargeable hours for the 14 and 15 September.
50. Equally, the records for the 12 and 13 November 1994 show him not doing any work. Yet when he delivered a hand written bill before those dates on a piece of hotel note paper to Farid he claimed he was going to spend seven hours a day on each of those days working for the Saabs.
51. Mr Amersi was quite unable to explain any of these matters in any satisfactory way. I find his evidence based on these matters to be unreliable. He to my mind has never grappled with his position in this matter. The situation was exacerbated in my view because he never kept any records, never gave any letters of instruction. Even the instruction letter signed on 23 September 1994 was on his evidence ambiguous, as I shall explain when I deal with it in detail later in this Judgment.
52. Before reverting to this I shall deal with a point which JDRP took which was to suggest that the Saabs in reality had no option but to agree with whatever SAMBA wanted because of pressure they were under in relation to the Project.
53. That pressure was said to be twofold. First it was suggested that the Saabs had been unsuccessful in finding backers despite extensive exercises conducted in the previous two years. The second argument was that by September 1994 the Saabs' financial position had become so desperate that they could not afford to let the SAMBA opportunity lapse.
54. The Saabs' riposte is that they could have walked away from SAMBA if they had been properly advised by Mr Amersi and that they would have found another placement agent. Whether in fact that was a possibility is a matter of expert evidence at stage 2 (having been issue 24, which I removed from the issues). The question as to whether objectively there were such prospects is a stage 2 issue. Whether the Saabs subjectively have such a view is a matter for this stage.
DIFFICULTIES OF THE SAABS
55. There is no dispute that in the early 1990's FBME and FBL came under financial pressure. Whether that was because they had lost money in foreign exchange transactions or whether they had an unexpected run on their deposits is neither here nor there. In this regard I accept Fadi's evidence that it was a combination of both. As the crisis developed they approached ABC and borrowed initially US$25,000,000.00 (Twenty-five Million United States Dollars) in two loans. Those loans were consolidated and by 1994 had reached US$20,000,000.00 (Twenty Million United States Dollars).
56. They were secured on the Site and other land owned personally by the Saabs. They themselves were not personally liable to ABC. The liability was Saab Financial Services Ltd.'s, and they provided the land as third party security for its debt. Saab Financial Services Ltd. was the beneficial owner of FBME. The Saabs were the beneficial owners of FBL.
57. By early 1994 it is clear that ABC were anxious to see some capital repayment. Mr Johnston who gave evidence on behalf of the Saabs was the officer at ABC responsible for the loan facility. It is clear that by May 1994 he was requiring substantial capital repayments. In May 1994 he granted what was the fourth extension of the facility until September 1994.
58. That itself fell therefore for review at the same time that the Saabs were in negotiations with SAMBA. It is clear that they hoped the arrangements with SAMBA would lead to capital sums becoming available, which could be utilised to make debt repayments to ABC. It is equally clear that ABC (for example) had rejected an equity swap for the debt in respect of the Project and by September 1994 were reluctant to consider a further extension without capital repayments.
59. There was no question of Saab Financial Services Ltd. reneging on its obligations. As Mr Johnston said in his evidence all interest had been paid, but his concern was that the loans had become "evergreen", i.e. they were never going to be repaid. He was looking towards repayment within eighteen months.
60. It seems to me that the Saabs were anxious to negotiate the deal with SAMBA as a way of repaying the loans. However, I reject the suggestion that they were so desperate that they had no choice but to agree with SAMBA. I accept Farid's evidence that they would, if the SAMBA deal had failed, have sought another placement agent in an attempt to extend time with ABC. This point is supported by Mr Amersi's note made on Swissair notepaper on 4 September 1994 when he was contemplating fall-back visits to 20 other financial institutions in the event that the negotiations with SAMBA did not come to fruition. Alternatively, I accept Farid's evidence that he would have found the money by an orderly realisation of the other properties in the portfolio (which covered the ABC loan in full) or he might even have been able to obtain the money by FBME/FBL.
61. His evidence was supported by Mr Johnston. He said that if no orderly sale or arrangement with SAMBA had come to fruition ABC would not have sought to enforce its security with an immediate demand and a taking of possession. That was unreal, he said in response to a question from me, because of difficulties of realisation of land securities in Lebanon. He said that they would have simply negotiated an orderly arrangement along the lines suggested by Farid.
62. My conclusion therefore on this evidence is that the Saabs were anxious to conclude a deal but not so anxious from a financial point of view that they would agree anything in order to keep SAMBA.
63. Equally, I am quite confident in my mind having seen Farid and Fadi that they genuinely believed that they would be able to seek to find another placement agent if the SAMBA arrangement broke down. Whether that was objectively possible is a matter for stage 2.
64. In this context it is true to say that there had been extensive marketing operations through a Mr Yamani, through the Consulting Center for Finance and Investment ("CCFI") and numerous approaches to banking organisations in the Middle East and Europe. Part of those involved approaches to ABC and SAMBA, which were rejected by both of them before Mr Amersi became involved. Equally, an approach had been made to Bank Indosuez and that too had been rejected. It may be objectively that the Saabs have a difficult case on issue 24 but I do not intend to prejudge that. I am sure nonetheless having seen Farid and Fadi that they would have been able to negotiate an extension with ABC (which would have removed any pressure to achieve a result) and would have attempted to find other placement agents. Therefore to my mind the fact that they had been unsuccessful in 1993 and 1994 did not mean that the SAMBA approach was the final and last opportunity.
65. It follows therefore that these negotiations with SAMBA should not be viewed to my mind against a backcloth of desperation on the part the Saabs to keep SAMBA at all costs, and I reject such a contention as made by JDRP.
66. I should say something more about Mr Amersi. He is at the centre of the allegations made against JDRP. He qualified as a barrister initially in the early 1980's and did a pupillage at 1 Brick Court. After pupillage (some six months) he decided that he would prefer work as a solicitor. He joined Coward Chance (as it then was) around 1984/5 and re-qualified as a solicitor. He worked for Coward Chance then Clifford Chance from 1988 until 1994 being seconded to its associate firm LFSH [see para 15 above where LFSH is defined] where he practised as the head of Banking Practice. In January 1994 he was offered employment with JDRP commencing on the 1 May 1994 as "of counsel" with a salary of US$325,000.00 (Three Hundred and Twenty-five Thousand United States Dollars) subject to review in December 1994. That review led to an increase to US$330,000.00 (Three Hundred and Thirty Thousand United States Dollars).
67. He commenced that employment as I said on the 1 May 1994 and operated out of the Geneva office. Whilst he was at LFSH he had built up a substantial connection with SAMBA. He described himself as "standing counsel", but there is as far as I can see no significance in that status; it just meant as far as I could see that he did a lot of work for SAMBA. He says in his witness statement that by the time he joined JDRP he was doing ninety percent of their banking related work.
68. He was not under any restrictive covenant or otherwise and his attraction to JDRP was plainly his ability to bring SAMBA and possibly other work to it. This he did. Although based in Geneva the work he did for JDRP for the next two years was based mainly in the Middle East. After two years he became more involved in Eastern Europe. Ultimately he left JDRP in 1999 when he (with others) formed an investing and consulting firm operating principally in the United States Gramercy Communications Partners. Although in paragraph 1 of his witness statement he said that it was operating principally in the United States, it transpired in cross-examination that its business had ceased active management, and that, as far as I can see, all that happens now is the management and repayment of funds provided to it.
69. More significantly he said in his witness statement that he was a qualified solicitor and that he held a practising certificate. This, at the time of the making of the witness statement and the confirmation of its veracity when giving evidence, was untrue. His practising certificate had expired because he had failed to renew it annually it having expired on 31 December 2000. Further it transpired that he was struck off the Roll for failing to obtain the practising certificate. Mr Amersi effected not to understand how this happened. He said that he had discovered that he no longer had a practising certificate a couple of weeks before he gave evidence. He excused this because he said that the correspondence might have been sent to his New York address. He also further excused it by saying that he did not personally address renewal of practising certificates leaving it (like writing up his attendance notes to which I shall make reference in this Judgment) to his secretary. I have no reason to disbelieve this, but it is to my mind reflective of Mr Amersi's casual attitude to the duties of a solicitor.
70. Thus he said he had no detailed knowledge of the Guide to the Professional Conduct of Solicitors. He said that he was not aware for example of Practice Rule 1 of the Conduct Guide which provides that solicitors shall not do anything in the course of practising as a solicitor which compromises or impairs or is likely to compromise or impair his duty to act in the best interest of his client. He appears to have had no guidance on this from Coward Chance, he said.
71. When he joined JDRP (a US law firm) he appears not to have concerned himself as to what his duties and responsibilities were when employed by such a firm, despite the fact that they had a comprehensive manual which he never bothered to read.
72. As to the way in which he conducted his practice he said initially, in effect, that he took no attendance notes. He clarified that on the second day by suggesting that he took no formal attendance notes of the type of long and detailed notes he had subsequently seen taken by people to record what had happened. He suggested in his evidence, on the second day of his giving it, that he did write aides-memoires but he had no specific policy about them. He, in response to a question by me, said that the aide memoires would be filed away by his secretary and he would not see them again. Only two hand written notes of Mr Amersi's have been disclosed in this case and they relate to events in Cyprus and Beirut on 1, 2 and 3 /4 September 1994. There are other documents for which privilege was asserted by SAMBA (but not of course in the associated litigation brought by it against JDRP) which apparently relates to advice he gave to SAMBA.
73. No internal notes recording advice having been given to the Saabs have been disclosed.
74. The time keeping records of Mr Amersi can in my mind only be described as a shambles. Equally, his approach to retainers is casual and confused. The letters ultimately produced themselves present problems, as I shall set out in this Judgment.
75. Initially, in the draft retainer letter of 14 September 1994 he estimated that he would be spending about 120 hours at US$300.00 (Three Hundred United States Dollars) per hour ((total US$36,000.00) (Thirty-six Thousand United States Dollars)). That figure was rapidly overtaken by events. On 3 October 1994 he requested an on account payment of US$18,000.00 (Eighteen Thousand United States Dollars), which was paid. This represented fifty percent of his estimated time charges, i.e. the US$36,000.00 (Thirty-six Thousand United States Dollars). In addition he requested simultaneously and was paid US$10,000.00 (Ten Thousand United States Dollars) as an advance for travel and out_of_pocket expenses. A further US$86,100.00 (Eighty-six Thousand One Hundred United States Dollars) was paid on the 29 October 1994, a further sum of US$31,625.00 (Thirty-one Thousand, Six Hundred and Twenty-five United States Dollars) was paid on the 12 November 1994, and a further sum of US$30,670.00 (Thirty Thousand Six Hundred and Seventy United States Dollars) was paid on the 9 December 1994.
76. In 1995 US$79,216.00 (Seventy-nine Thousand, Two Hundred and Sixteen United States Dollars) was paid on the 23 January 1995 and a further sum of US$79,000 (Seventy-nine Thousand United Stated Dollars) was requested on the 9 July 1995 and was paid sometime after that. The total amount paid by the Saabs to JDRP was US$334,611.00 (Three Hundred and Thirty-four Thousand, Six Hundred and Eleven United States Dollars). He claims that all this was due diligence work done for SAMBA (apart from the US$18,000.00)
77. SAMBA paid US$20,000.00 (Twenty Thousand United States Dollars) in total to JDRP, the first US$10,000 being paid on 23 October 1994 and the second US$10,000 on 21 December 1994.
78. The Saabs also paid a total of US$117,500.00 (One Hundred and Seventeen Thousand, Five Hundred United States Dollars) to Shawwaf, a Saudi Arabian law firm whose role is much disputed in this case. For present purposes I will only address the payment history. A sum of US$27,500.00 (Twenty-seven Thousand, Five Hundred United States Dollars) was requested on 1 October 1994 and paid three days later. A further US$20,000.00 (Twenty Thousand United States Dollars) was requested on 9 July 1995 and paid on 22 August 1995. Putting aside a directorship, a further sum of US$30,000.00 (Thirty Thousand United States Dollars) was requested on 29 October 1994 and paid on 21 December 1994.
79. No breakdown of these figures has ever been provided by JDRP. Nor, as I understand JDRP's case, has there ever been a proper apportionment as regards the attributes of these payments. By that I mean JDRP's case is that a large amount of these sums was payable by the Saabs under the terms of the Placement Agreement, that was reimbursement of sums that were payable by SAMBA to JDRP for services they provided to it.
80. There are a number of problems about this. First the sums are said to be payable under clause 5(c) of the Placement Agreement which provides as follows:-
"… SAMBA will be reimbursed for all its out of pocket expenses including any services incurred for legal services,…. Prior to SAMBA incurring (i) expenses in excess of US$1,000.00 (One Thousand United States Dollars) for any one particular item … SAMBA will seek the consent of the Saabs which will not be unreasonably withheld."
81. The only request that could possibly be said to be in accordance with that provision is the request dated 9 July 1995 for the last payment of US$79,000.00 (Seventy-nine Thousand United States Dollars). Further no bills addressed to SAMBA in respect of these items have ever been disclosed. Nor has any breakdown of the costs as between the Saabs as clients and SAMBA as clients ever been produced. I have already commented that SAMBA was charged US$20,000.00 (Twenty Thousand United States Dollars) direct by JDRP.
82. No satisfactory supporting records have been produced by JDRP to substantiate the amounts claimed despite requests. The computerised print out was produced during the course of the trial purporting to record the chargeable hours incurred by Mr Amersi on the Project. This document itself is questionable. Somewhat surprisingly Mr Amersi said in evidence to me that he had only seen this a few days before he gave evidence. Second Mr Amersi said that it was not an accurate record of his hours. I can well understand why he might say that now, because on examination it bears no relation to the time he claims he was spending. A few examples will suffice to show this.
83. JDRP's case is that any work done before Monday 12 September 1994 was work done on behalf of the Saabs. It is their case that they told the Saabs at the start of the first meeting on 12 September 1994 that SAMBA was going to retain JDRP and that all of the time that was devoted to the meeting to finalise the arrangements, if possible, was SAMBA time.
84. There were visits in August 1994 which do not appear. Significantly, there were events between 1 and 4 September 1994 to which I shall refer in this Judgment,yet no hours are recorded for those days. Any hours done before 12 September are, as I have said, chargeable to the Saabs, yet the printout provided does not discriminate between Saab charge hours and SAMBA charge hours. Thus it records Mr Amersi charging for the 12 and 13 September on the same page as charges before that date.
85. There was an important meeting in Beirut on 1 October 1994 yet there is no entry for that. The fees to 14 November 1994 were actually paid on 12 November 1994 (a total as I have said of US$31,625.00 (Thirty-one Thousand, Six Hundred and Twenty-five United States Dollars)). An hourly breakdown was provided purporting to cover the time spent from Monday 31 October and prospectively for 12, 13 and 14 November. The latter three represented 21 hours at 7 hours a day. On the printout on 31 October 1994, 6.25 hours are recorded. The corresponding figure on the hand written schedule is 3 hours. On 1 November 1994 the printout shows 4.5 hours against 2.75 hours. On 2 November 1994 the printout shows 2 hours against 2.5 hours. The entry for 3 November 1994 shows 2.25 hours against 2.75 hours. After the 6 November 1994 the hand written schedule has round sum hours of seven hours each day. The corresponding figures in the print out are broadly the same, save in respect of the prospective hours of 12, 13, and 14 November where the hours on the printout are effectively 2.5 hours, 0.25 hours and 13 hours.
86. Further on the printout, in the main, the hours are split as regards Mr Amersi's time equally between Geneva and Riyadh. He told me that this was as a result of an arrangement of an internal nature as between the Riyadh office and the Geneva office. This causes further difficulty. The Riyadh office is effectively the office of Shawwaf, so it is said. This private arrangement might have only internal significance. Nevertheless, Shawwaf, as I have already observed, separately billed for work and was paid for it. There is an obvious possibility of double charging when half of Mr Amersi's time is attributed to the Shawwaf office.
87. This is most unsatisfactory. Mr Amersi said that he did not see this printout until shortly before the trial. I find that very surprising. The reason I find it surprising is that it is quite clear from an internal document of JDRP's, dated 18 November 1994, which was actually copied to Mr Amersi, that before that date he had prepared little or no internal records. He suggested in cross-examination that he did prepare hand written records but the problem was that his secretary had difficulty accessing JDRP's computerised records. I reject that. It is quite clear from that note that there were great difficulties about Mr Amersi's working practice. It starts with an apparent lack of familiarity with the conflict and CAM forms (being the forms that record the time on particular cases): the forms were apparently incorrectly filled in, leading to confusion whether a third party was involved. That is demonstrated by the CAM form dated 14 October 1994 where FBME is described as the client and it is in respect of a development of real-estate in Lebanon. Someone (probably Lin Cantlay) has handwritten across it "SAMBA matter", but the connection with SAMBA is not clear . Mr Amersi says he never saw this document. It is incomplete.
88. The report Lin Cantlay prepared also commented that many of Mr Amersi's projects "start out as general advice in to the feasibility of particular commercial activity with no specific third party in mind. It is only at a later stage in the process that individual third parties emerge and Mr Amersi understands that these must then be conflict cleared before further action is taken."
89. It is quite clear in this saga that Mr Amersi, as shown by that note, failed to address, to my mind, properly the conflicts that arose by reason of the different roles he claims he carried out during the course of the transactions. This is exacerbated by the fact that Mr Amersi, according to the note, prepared virtually no time submissions and that there was a backlog. At this time SAMBA and this Project in particular represented the lion's share, he said, of his work. There is thus a recipe for disaster, as shown by this internal report. Mr Amersi did not properly start procedures involving conflict checks; he did not address his true client position correctly; and he failed to record his hours accurately. This report Mr Amersi claimed not to remember but I reject that evidence. It is a severe criticism of his working practices less than five months into his new job. It shows that he failed to address (from a billing point of view) different clients. His billing records were written up afterwards (probably after this report was initiated in late October early November). There has been no correlation between the hours recorded on the printout and the hours on the handwritten notes. No billing apportionment, as I have said, as between the Saabs and the SAMBA has ever been provided.
90. This was demonstrated by Mr Amersi repeatedly referring to a "collegiate" approach to the preparation of documents. He failed to appreciate the difficulties and misunderstanding this would cause. For example, he was the Saabs' lawyer at the dinner on 11 September 1994. He had allegedly met them beforehand at the Capital Hotel. Suddenly at the vital meeting on Monday 12 September 1994 he announces to the Saabs that he is no longer acting for them but is now acting for SAMBA. Nevertheless in tandem with this he conducts negotiations with the Saabs for agreement of his retainer by them.
91. JDRP's case is that Mr Amersi was acting for the Saabs up to and including the dinner at the Square Restaurant on 11 September 1994. It is their case that at the meeting of the 12 September 1994 it was announced that they were then to act for SAMBA but could continue to act for the Saabs on other matters if they did not conflict with SAMBA's retainer. I will deal with my findings in this regard later in this Judgment. At the moment however, such an arrangement is bound to cause conflict, self_evidently. How did the Saabs know when it is acceptable for them to use JDRP and how are they to know when it is not acceptable? The records, as I have said, do not distinguish between the clients and that shows, to my mind, that Mr Amersi never properly addressed issues of conflict as between the Saabs and SAMBA.
92. The reason for this is obvious. In reality Mr Amersi saw himself as a dealmaker. He was thus bringing together the Saabs and SAMBA for mutual benefit. He forgot that he was a lawyer who owed duties to different clients that might cause conflict. It is clear that he purported to act for both sides at stages during this saga. Of that there is no doubt. What he was doing for the Saabs in particular is open to doubt. It is by no means clear that the clients knew he was acting for the other party. The Saabs deny it. SAMBA denies it in proceedings it has brought against JDRP, but Mr Dhoot says (in these proceedings) that he knew to a limited extent.
93. A good example of this type of difficulty was the alleged introduction of a concept of gatekeeper fees in the retainer letter, which have no relevance (on JDRP's case) to retainer issues.
94. Another example is that in his Swissair note he said he was (inter alia) providing legal advice to the Saabs. I asked him what advice, bearing in mind the fact that they had Lebanese lawyers in respect of the Project, Shawwaf, to advise on Saudi law, and questions of English law for him to advise on. His answers showed the difficulties he was in.
95. Equally I reject his evidence that he told the Saabs that the Project documentation was of poor quality and would have to be revisited. If he had, he would not have allowed them (as his clients) to meet SAMBA on that basis. Mr Dhoot raised other objections. It is clear that it would be to the disadvantage of the Saabs that the details would only be addressed after they were signed up with SAMBA (as happened). Yet Mr Amersi never addressed this, to my mind.
96. In the next part of the Judgment I propose to set out my views of the various witnesses called before me, based, as I have said, primarily on their performance under cross-examination, in particular with reference to contemporaneous documents which were put to them. Coming to the conclusion I do in respect of the witnesses I will then go on to analyse the various key events and then to consider a number of key issues.
97. I found Mr Farid Saab generally a reliable witness. However, his memory in relation to events was incredibly detailed and I do not accept for one minute he would have that recollection of events as precisely honed as he said in his evidence bearing in mind the fact that the events were eight years ago. He has dovetailed some of his evidence in relation to documents. However, on most issues I accept his evidence in preference (for example) to that of Mr Amersi and Mr Dhoot.
98. Mr Fadi Saab gave evidence well in my judgment. He was willing to concede points (far more than his brother). Thus he was willing to concede there were difficulties about FBME's finances but he did not envisage those difficulties would not be capable of solution.
99. I found Mr Spinks to be an entirely honest witness and accepted his evidence completely. I reject the suggestions that were put to him that he was lying on various matters. In particular I reject any suggestion that he was advising the Saabs in relation to the meeting of 12/13 September 1994. I equally found Mr Aoun to be an impressive witness but less impressive than Mr Spinks. Nevertheless I accept his evidence in preference to that of Mr Amersi for example as to whether they met when in Lebanon between 1-4 September 1994. The timing of such a visit as suggested by Mr Amersi does not to my mind bear scrutiny. I find that there was no meeting with Mr Aoun before the second half of September 1994. I also accept that he (Mr Aoun) was not consulted over the arrangement of the Placement Agreement negotiations.
100. Those two findings of course seriously undermined part of JDRP's case, which was that there was no difficulty about the Saabs carrying on the negotiations because they were taking advice from third parties over the telephone. I find that they were not taking any such advice, which position is confirmed by both Mr Spinks and Mr Aoun.
101. I found the evidence of Mr Steingaszner generally acceptable. His evidence was useful because he had worked for SAMBA between January 1982 and January 1991. Whilst he was working there he found no absolute requirement that Saudi law be applied to commercial arrangements that SAMBA entered into. It is true that his knowledge ended in 1991 (from the point of view of his employment by SAMBA) but he still remained active in other capacities in Saudi Arabia.
102. His evidence was supported by that of Mr Wells, a very experienced US qualified lawyer who had practised in Saudi Arabia for 24 years. He is the longest serving Western lawyer in Saudi Arabia. I found him to be an impressive witness. I found his evidence compelling and credible. He too was of the opinion that there were no obstacles which definitively prohibited SAMBA from contracting on anything other than a Saudi law basis prescribed by SAMBA.
103. In this context I found the evidence of Mr Edge not as impressive as that of Mr Wells, and, where his evidence contradicted that of Mr Wells, I unhesitatingly prefer that of Mr Wells. Mr Edge, whilst he had expertise in relation to the law of countries in the Middle East, did not have the kind of practical significant experience of the depth of Mr Wells. For example he had never advised in relation to a Placement Agreement and, having nothing like the experience of Mr Wells, did not to my mind fully have the "feel" of a practitioner well used to dealing with SAMBA as a matter of practicality.
104. This has led me to a conclusion in relation to the possibilities of Saudi law / Saudi jurisdiction. The second part of that question can be answered quite shortly. All relevant witness agreed that in the Saudi Courts Sharia law would be applied irrespective of the choice of law designated by the parties by agreement. This is hardly surprising because the Sharia law is a matter of religious duty and has to be followed as a matter of course by the courts in Saudi Arabia. It emerged late in the evidence that there was a possibility that a tribunal appointed by the Saudi Arabian Monetary Authority ("SAMA") would have a more relaxed approach to commercial agreements.
105. It seemed to me that all the parties acknowledged that this strict law could be got round in various ways. Thus Mr Steingaszner gave evidence of a relaxed approach by SAMA where high net worth individuals who had more than US$500,000.00 (Five Hundred Thousand United States Dollars) to invest could be considered able to look after themselves. SAMA also applied clearly a pragmatic approach in relation to Saudi banks' operations outside Saudi Arabia. One such example was the use of subsidiary offices in (for example) London or Geneva for the assumption of obligations to avoid the Saudi law / jurisdiction issue. The Escrow Agreement entered into in January 1995 was one such agreement. Both SAMBA and its UK subsidiary entered into this agreement yet it applied English law. Finally in this context the draft shareholders' subscription agreements, whereby the individual investors have to subscribe for shares in the proposed-formed companies for the development of the Site, applied Lebanese law. That is not surprising in the context of the Lebanese formed company but it is surprising in the context of a suggestion that SAMA would not allow investments by Saudi individuals to be governed other than by Saudi law.
106. Part of the problem in this context related to a blurring of desires on the part of SAMBA and regulations on the part of SAMA. All witnesses were agreed that there were no formal regulations that required Saudi law /Saudi jurisdiction. SAMBA would be anxious so far as possible, at the very least, to ensure that any agreement had a Saudi law jurisdiction clause. The reason for that is set out above, namely that the Saudi courts would apply Saudi law. Mr Dhoot emphasised the significance of this when he acknowledged that he knew that Saudi law prohibited claims for consequential loss, a vital factor from the point of view of a Bank. Having seen the witnesses above mentioned, Mr Wells, Mr Steingaszner and Mr Edge, I come to the conclusion that there is nothing in the requirements of SAMA which necessarily meant the Placement Agreement would have to be governed by Saudi law and/or Saudi jurisdiction.
107. However, SAMBA, for the reason I have set out above, would be anxious to secure that. There were ways in which it could be circumvented. SAMBA would circumvent it when it suited it, as I have set out above. For the purposes of Part 2 of the issues the assessment of the possibilities on an objective basis is not before me. What is before me is the subjective beliefs of the parties.
108. I am satisfied having seen the Saabs that they would be nervous about Saudi law application and jurisdiction issues. This nervousness would not flow from any particular point; it would be from a belief that if they were litigating against SAMBA in Saudi Arabia they would not perceive that they would get a fair hearing.
109. As I have said above there are distinct disadvantages to the application of Saudi law. In addition to the inability to claim consequential loss damages, interest is not recoverable. These matters would be of advantage to SAMBA. Having seen Mr Amersi and Mr Dhoot I have no doubt that they would wish to secure these advantages for the benefit of SAMBA if possible. I have also no doubt that as part of the persuasion in negotiations the impression would be, and was, given that these were SAMA requirements, when they were not absolute requirements of SAMA that could not be got round in some way or another. Accordingly, I do not believe that it could not have been said either by Mr Amersi or by Mr Dhoot with any subjective credibility that Saudi law and/or jurisdiction was required by SAMBA as a matter of absolute requirement. To give that impression would be misleading in my view.
110. I am quite satisfied, having seen the witnesses, that that impression was given to the Saabs during the currency of the negotiations culminating in the final meeting on 16 September 1994. I am fortified in that belief because it is clear on the evidence that the Saabs approached those issues with great concern. It is equally clear based on the evidence of Mr Spinks and Mr Aoun that they did not have their own lawyers to advise them at this time. Mr Amersi said that he said nothing about the question of law and jurisdiction during the repeated discussion of this issue on the days 12, 13 and 16 September 1994. I find that impossible to believe and I reject it. The parties were hazy about the extent of the discussions from the point of view of time, but it is quite clear that the matter was discussed early on in the week and revisited at a later stage on 16 September 1994. The Saabs then apparently conceded this key point. It is said by JDRP that they conceded it because it was stated to be a "deal breaker" by Mr Dhoot, and possibly by Mr Amersi. I do not accept that. The reason I do not accept it is that it would only be of concern as a deal breaker if the Saabs had no choice but to take SAMBA as the placement agent. I do not believe that the Saabs in their mind thought that SAMBA was the only possibility. The extent of the reasonableness of their belief in percentage terms is a matter for Part 2. Nevertheless, I am of the opinion that they would not have believed that this was their last chance. Something else therefore must have led them to give up on this point. They were not, as I have set out above in this judgment, under such desperate financial pressure that they could not address the ABC issue and obtain further delays.
111. It follows from the above that there must be some other reason for their change of mind. That can only be because they were led to believe they would be in no worse position if they agreed that Saudi law would be applicable.
112. The jurisdiction issue was resolved. It is by no means clear on the evidence how it was resolved. Mr Amersi and Mr Dhoot say that on the Tuesday 13 September 1994 they waived the jurisdiction clause. This, it is said, was done by deleting such a clause from the end of a draft Placement Agreement which was before the parties at that time. The Saabs deny they had any document before them at that time. I reject that evidence. I do not see how the parties could have had a serious discussion about the terms of a proposed agreement on Tuesday 13 September 1994 without there being a document. It would have simply carried on the generalised unspecific discussions that took place on the Monday. It is impossible to believe that the parties would address this serious arrangement without a draft. I say that in particular because a draft was readily available from the word processing records of JDRP and they were meeting in JDRP's offices.
113. The jurisdiction clause then was re-raised on the basis of part of the negotiations on the Friday, so it is said. It is interesting to note that in the litigation brought by SAMBA against JDRP (in respect of which I have seen some things) and the litigation that the Saabs brought against SAMBA there were suggestions that the jurisdiction clause was re-instated not as a basis for conferring jurisdiction on a court of competent jurisdiction but on the basis of showing that SAMBA would only be liable for wilful default if such a court determined it. I found that unconvincing. It seems to me to be plain that there were continued or revised negotiations on the Friday about this clause, and, ultimately, the result was that the parties agreed a clause which was intended to enable any party to sue if a court was willing to assume jurisdiction. Now that might lead to a scramble, in the sense that the first party to commence proceedings in its preferred jurisdiction might well hold the proceedings. That is not an uncommon occurrence in respect of commercial agreements. It is however of more commercial sense than the matter put forward by JDRP. Its stance was that the clause enabled SAMBA to decide whether or not it would consent to proceedings being commenced in another jurisdiction (see in this regard in particular Mr Dhoot's evidence). This would lead in effect to the clause actually putting the Saabs in a worse position than a position that they had been in on the Tuesday with the jurisdiction clause completely deleted because in effect SAMBA would decide whether or not to submit to jurisdiction. When I pressed Mr Dhoot about this, in particular by reference to a converse situation, namely could the Saabs do the same to SAMBA if SAMBA commenced proceedings in Saudi Arabia, his answers were unconvincing. I cannot believe that the parties intended the Saabs to be worse off by the Friday clause than the one that they had agreed in principle on the Tuesday.
114. Equally, nobody at any of these meetings could ever have with any credibility suggested to the Saabs that they would be no worse off if Saudi law applied as opposed to English law. The Saabs in their evidence say that Mr Amersi and Mr Dhoot assured them that they would not be prejudiced by the application of Saudi law because similar protection would be afforded to them by English law. Both Mr Dhoot and Mr Amersi deny that. To my mind the impression was given to the Saabs that they would be no worse off. That impression was given primarily by Mr Dhoot and he brought in the question of appearances in front of the SAMA tribunal. I do not believe Mr Amersi expressly embraced that situation. As a lawyer he could not do so without misrepresenting the position in a way that he would have known to be untrue. I do not believe he said anything, but he allowed the Saabs to be given an impression that they would be no worse off. There is to my mind no other reason for the Saabs to give up on this point on the 16 September 1994.
115. Whether Mr Amersi thereby acted in breach of any duties I shall deal with further in this Judgment. Suffice it to say that at this stage I am quite satisfied that no lawyer acting for the Saabs would have advised them that they would not be disadvantaged by entering into the agreement they did as opposed to one governed by English Law.
116. I found Mr Soubra's evidence weak and of no assistance to me at all.
117. I found the evidence of Lin Cantlay and that of Vernon Cassin to be truthful honest and acceptable. The acceptance of their evidence however involves serious criticisms addressed to Mr Amersi to my mind, as I will set out further in this Judgment.
118. I found the evidence of Mr Amersi generally unsatisfactory. I will in this Judgment below deal with it in a more detailed way, but generally I found his evidence was contrary to the ordinary meaning that could be attributed to his contemporary correspondence. I found his attempted explanation for the self-evident meanings of billing letters unsatisfactory. I found his recollection of the discussions of meetings to be selective being highly detailed when it suited him but conveniently lacking in detail when it did not suit him. The most graphic example of that was in respect of his billing records to which I have already made reference when he effected not to recall any of this and effected not to recall any meetings with Lin Cantlay. This I find incredible in the context of the detailed criticisms of his performance set out in her report. Further Mr Amersi's evidence was unreliable because he adopted a cavalier approach to his duties as a solicitor and a lawyer. Thus he affected never to have read JDRP's instruction manual. Significantly its first form was issued 15 May 1994 (15 days after his appointment) and was revised 1 October 1994 (at a vital stage in the current dispute). If he had read it he would have noticed first that he failed properly to address the duties imposed on him in relation to conflict. If he had addressed that issue properly he would have discovered that from JDRP's point of view he became in a conflict situation as soon as he announced on 12 September 1994 that he was then thereafter acting for SAMBA. I reject his evidence that he mentioned it briefly in a telephone conversation on the Friday. I am quite satisfied that the first the Saabs knew he was proposing to act for SAMBA was on the Monday of the meeting to which they were called less than an hour earlier. The second point that he would have noticed is that his procedure for opening accounts and billing of hours was simply non-existent as regards the requirements of JDRP's internal manual.
119. The contrast with the records and attention to detail of Mr Vernon Cassin could not be more stark. His records were a model of accuracy and followed the manual. A telling answer he gave was in relation to the retainer letters, which Mr Amersi was preparing for the Saabs. Mr Cassin had never seen these before and he agreed that had he seen them they would have given him concern. Neither he nor Mr Dhoot were aware of the scope of those retainer activities as to which I shall say more below. Mr Dhoot believed (and I accept) that as far as he was concerned Mr Amersi was only allowed to act for the Saabs on the ABC extension. Clearly there was no conflict there, and there was a substantial interest in SAMBA ensuring that they had an input to ensure that the proposed transaction was not destroyed by ABC taking precipitous action in calling in or seeking to enforce its loan.
120. The same lack of attention to detail was demonstrated in Mr Amersi's opening of a new client form. It was first opened on 14 October 1994 and FBME and the Saabs were identified as the clients. This document, according to Miss Cantlay, has to be sent to the central records of JDRP in Cleveland, Ohio. Once received there it can be processed and the matter given a client number. This never happened because the form was never completed in a way to enable it to be sent. This was down entirely to Mr Amersi. I disregard his attempts to blame his secretary; he is responsible for her actions and the idea that the matter should be delegated by him to a secretary once again reflected his casual approach to things. As Miss Cantlay's report showed, by the end of October at the earliest virtually no time had been billed by Mr Amersi since he had started in May. I cannot believe that Mr Amersi was unable to recall this. It must have been dreadfully embarrassing for him to have to explain why he had failed to address the issue properly. He said in his evidence that nobody explained the procedure to him, but to my mind that is contrary to what Miss Cantlay said. The experience she had in London (and I have no reason to suggest that the same would not happen in Geneva) is that new staff were carefully explained the procedures. Mr Amersi was not of course a US lawyer; he would be even more concerned to find out the right procedures as he was a joining a firm culture, which was alien to him. A Similar approach occurred in respect of his billing records. Miss Cantlay said that JDRP had special forms where hours were filled in and sent to Ohio. None has been disclosed in this action. She accepted that the various hour calculations given by Mr Amersi on slips of hotel notepaper and the like would not be acceptable. Her evidence was supported by Mr Cassin who followed a commendable procedure. He recorded his hours on his laptop daily. They were then transposed into the correct forms sent to Cleveland and ultimately returned to him for him to check. None of this happened as regards Mr Amersi.
121. After the meeting with Miss Cantlay, she attempted to fill in a form manually with SAMBA as a client but did not proceed with that. Ultimately, such of Mr Amersi's hours as went through the system were attributed to Mr Cassin's new file that was opened on 10 October 1994. FBME thereby "disappeared" as a client of JDRP in respect of its internal records.
122. This was significant to my mind. Although Mr Rubin QC protested that the validity of the fees claimed by JDRP was not an issue, that, to my mind, is not the point. It shows a significant confusion in Mr Amersi's mind. He never addressed in any serious way the possibilities of conflict that would arise. He felt able (and I so find) to believe he could act for the Saabs and SAMBA simultaneously. No other explanation is a possible justification for what has happened.
123. After the discussions with Miss Cantlay, FBME was deleted as a client and SAMBA became a client; the hours being attributable to it.
124. This is quite extraordinary. Any hours recorded by Mr Amersi before 12 September 1994 can only be attributable to work he has done on behalf of the Saabs and not SAMBA. Yet on the print out of records (which came into being after the meeting with Miss Cantlay) hours are attributed for that period which are Saab hours. Yet the Saabs never came into existence as clients. Had they done so,as Mr Cassin had pointed out, a conflict check, which is an essential requirement, would have inevitably thrown up a connection between SAMBA and the Saabs. If the original new client form filled in by Mr Amersi and/or his secretary had gone through, the connection with SAMBA would have been revealed. Conversely, Mr Cassin's correctly filled-out new client matter form referring to SAMBA, and identifying the Saabs as potential conflicts, would have revealed the form in due course filled in by Mr Amersi with FBME as clients.
125. None of this happened because Mr Amersi never properly addressed these issues.
126. We see a similar confusion as I have said in relation to the billing. Mr Amersi never delivered a proper bill to anyone. He excused this by saying this was his practice. That is contrary to the JDRP practice, and contrary to the evidence of Miss Cantlay and Mr Cassin. The reason why is that he formed the view that everything he did (in whatever capacity) was going to be charged to the Saabs. He would ask them for money and they would pay. Mr Dhoot was not concerned because he was not paying either. This general proposition does not explain everything, but it once again shows a lack of attention to detail on the part of Mr Amersi. All he was concerned about was bringing the Placement Agreement to fruition. He never addressed to my mind the potential difficulties that might arise from him initially acting for the Saabs and then later starting to act for SAMBA.
127. I found Mr Dhoot's evidence similarly unsatisfactory. His witness statements were sketchy in relation to the main meetings. For example he made no reference to the meeting of 16 September 1994 beyond a passing reference to it in paragraph 10 of his witness statement. He suddenly affected to recall great matters of detail. His explanation as to why these matters were not in his witness statement ("I was not asked") is surprising, given the detail of the same events which appears in Mr Amersi's witness statement. My impression of Mr Dhoot was that he was a lot closer to Mr Amersi than he suggested. They had formed a close working relationship in Saudi Arabia. They are still connected through Mr Dhoot's company, Tristem Corp., although Mr Dhoot (unconvincingly to my mind) attempted to play down this connection.
128. It is interesting to note that in the SAMBA litigation brought against JDRP, their Particulars of Claim assert that Mr Amersi, without the knowledge of SAMBA and in breach of duties owed to SAMBA, was in a conflict of interest in that he had assumed obligations to advise the Saabs and had in fact advised the Saabs and that their remuneration for that advice included a success fee calculated as a percentage of the sums raised on successful placement. I was concerned during the course of the trial that those proceedings had not been consolidated. Privilege has been asserted in these proceedings in a piecemeal and unsatisfactory way on behalf of SAMBA. Initially only two attendance notes were produced on disclosure, they being notes of Mr Amersi of 1 September 1994. The authenticity of those notes is not challenged. However, as documents purporting to recall contemporary events they are completely useless. The meetings they cover extended over a period of 3 days. Mr Amersi hardly prepared a detailed note of those meetings. He omitted to mention gatekeepers, (which according to him was a vital point). He omitted to mention the fact that he alleges (which I have rejected) that he told the Saabs extensively of the deficiencies of their existing documentation. He missed a meeting at FBME's offices in Cyprus on the morning of 3 September 1994. In his witness statement he insisted that the dates he attended the Lebanon were 2 to 4 September when it is plain (as he was forced to concede) that he actually went to Lebanon on 3 September 1994 departing on 4 September.
129. During the course of the proceedings further documents were produced. The list had to be corrected, and it is quite clear that privilege was wrongly asserted in respect of some documents.
130. Mr Dhoot said in his evidence that SAMBA had not consulted him in relation to their claim. That is surprising given the fact that he is the only person who is able to give any credible evidence. His evidence is that he was well aware of the retainer of Mr Amersi by the Saabs (although he dovetails this with the ABC loan only). He also of course says he was aware of a success fee but he calls it a gatekeeper fee.
131. These too are factors which show that Mr Dhoot's evidence given, as it is, so long after the event cannot be relied upon.
132. That is not to say, as I have said, that I reject all the evidence. I am quite satisfied that at the start of the meeting on 12 September 1994 Mr Amersi told the Saabs that he was now acting for SAMBA. I am quite satisfied that the Saabs then said that means it is good to have somebody on the other side of the table. Mr Amersi said nothing more to my mind. He failed to explain to the Saabs that he was no longer acting for them. The reason for that is that he considered himself able to continue to act for them. As he made no comment Mr Dhoot was therefore blissfully unaware of the full extent that Mr Amersi was continuing to act for the Saabs. That extent is fully set out in the draft remuneration letters to which I shall make reference. The letters plainly show a continued and extensive relationship and I reject Mr Amersi's various attempts to explain away these letters.
133. Neither the Saabs (because they would not understand the significance not being lawyers) nor Mr Dhoot (because he did not know) would be concerned about that state of affairs. Mr Amersi ought to have been but he was not. The proper reaction ought to have been that of Mr Cassin. As soon as Mr Amersi announced he was acting for SAMBA he ought to have followed the conflict procedure. He failed to do so because whilst he might be a good negotiator, a good presenter and a good dealer he never properly addressed the correct lines as regards retainer, client duty and conflict.
134. This is graphically demonstrated by his participation in some correspondence that passed between Farid and Mr Baker in April/May 1995. By then Michael Baker had joined SAMBA as head of the new merchant banking group in January 1995 and had become involved in the Project. Apparently, there were difficulties over his intervention (this is a stage 2 issue). Whatever those difficulties, Mr Amersi, somewhat surprisingly, (and with the assistance of Mr Dhoot) was able to suggest and draft a letter that Farid would send to Mr Baker. When Mr Baker received the letter apparently he was not well pleased with its contents and sent a letter in reply. Mr Amersi had a role in drafting that also (not telling Mr Baker that he had been involved in the missive that he had received). He sent a fax to Farid telling him he was going to get a letter from Mr Baker and suggesting a formal reply. Thus Mr Amersi felt able (with Mr Dhoot) to draft letters to be sent in response to a letter he had drafted on behalf of SAMBA which was supposed to be his only client.
135. Well intentioned though it might have been it is quite an extraordinary thing for a solicitor to do.
136. Similarly, there was an issue raised as to the designation of JDRP as advisors to SAMBA on the Project documentation and not being referred to as advisors to the Saabs. Mr Rubin QC attaches significance to this but I reject his contention. It is quite clear that when the documentation was first drafted for finalisation in January 1995 neither had JDRP as an advisor. The reason for this is because it was not wished to publicise JDRP and Mr Amersi as being involved with SAMBA. This arose entirely out of him previously acting for SAMBA when he was at LFSH. Mr Dhoot explained this in his evidence, as there was a possibility that Mr Collins would be embarrassed about this in meetings involving the proprietor of LFSH. Mr Dhoot's note is explicit in this regard, dated 11 February 1995. I reject Mr Amersi's ex post facto justification for non-inclusion as being under some supposed policy on the part of JDRP. He was therefore willing at that stage (because it benefited him personally) to have a misleading document put out in respect of JDRP.
137. When the documentation came to be finalised in May/June 1995 I am quite satisfied that JDRP was named only as an adviser on the part of SAMBA for the reasons given by Farid. Of course, that was contradictory because whatever else was the position Mr Amersi had in any event advised the Saabs on some aspects of this documentation as early as August 1994. Yet JDRP were never identified as advisers to the Saabs. This is another example of the slackness of the approach of Mr Amersi.
A REVIEW OF KEY EVENTS
138. I have already covered the major key events in outline. Where the evidence of the Saabs conflicts with that of Mr Amersi I prefer the evidence of the former. Thus I accept the Saabs version of events in relation to the meeting in Geneva with Buca and the subsequent meetings in Cyprus/Lebanon between 1 and 4 April 1994. I find that Mr Amersi was very enthusiastic about the scheme. It was going to be a big event for him. It would be bound to enhance his prestige in JDRP, a firm which he had only joined in May of that year. It would be the second big investment of SAMBA in the Lebanon. I accept that there was stated to be an appetite for investment from Saudi Arabia in Lebanon. Mr Collins, according to the Saabs, repeated this to them at the meeting at the Square of the 11 September 1994. Mr Collins has not given evidence although a Civil Evidence Act statement has been served in respect of him. There was no reason put forward as to why Mr Collins could not have given evidence; JDRP simply seem to have taken a decision not to call him. I give no weight to his evidence when it has not been tested by cross-examination, and accept the evidence of the Saabs.
139. I have already commented that I do not accept that Mr Amersi was critical of the Project documentation as presented to him in early September 1994. If he had been critical he would have expressed it in writing, and I do not believe he would have taken the Saabs to a meeting with one of his best clients, SAMBA,if the documentation was in the state he says now he believed it to be. If he had any views he kept them to himself. There would be good reason as to why he might do that. He would then be on_board the contract and would expect the matter to be renegotiated and redrafted after the Saabs were committed under the terms of the Placement Agreement. In his confused mind he would not see that as a problem. The reality could be quite difficult for the Saabs. If they went with SAMBA and that did not proceed to fruition, it might be that would prevent the future placement of the Project with another Placement Agent. Those are Part 2 matters, but I am firmly of the opinion that if Mr Amersi believed the documentation was bad as he said it was, he would have acted differently.
140. I am unable to decide (and see no point in attempting to decide) how the matters developed beyond that leading up to the meeting at the Square restaurant on 11 September 1994. Nothing can be gained from attempting to decide whether things were discussed and said at the Capital Hotel before that or at some later stage, as nothing turns on the precise chronology. Mr Amersi attended this dinner as the lawyer advising the Saabs. The others there were the SAMBA team. The purpose of the meeting was to see whether the parties would feel sufficiently interested in each other at that level to decide that they could do business with each other in respect of the Project. There was, I find, no detailed discussion of the Project at that time, but it is quite clear that SAMBA was sufficiently interested for it to move swiftly.
141. Whether the meetings the next day were fixed at that time or, more likely, the following day,is not significant. According to the evidence of Mr Amersi and Mr Dhoot (and I have no reason to discount this) the meetings on the next day were scheduled at short notice on the Monday. This arose after a meeting with Mr Dhoot and Mr Collins when he authorised him to go ahead, and a subsequent meeting between him and Mr Amersi when he was instructed to set the matter up.
142. The first day, it seemed to me, was devoted to exploratory matters of principle with a debate around these principles but no firm conclusions. I find that the second day was a more detailed application of those principles by reference to a draft of a formal Placement Agreement ("the boiler plate agreement"). I am quite satisfied that the meeting broke up on Tuesday with Mr Amersi being left to prepare a draft which reflected the discussions. He did so and faxed it to Farid on 14 September 1994, although he only probably saw it on 15 September 1994. He in turn faxed it to his brother and Buca in Cyprus and obtained observations from them. I accept he might have sent something to Mr Aoun, but I also accept that Mr Aoun did not advise him on the documents.
143. I reject Mr Amersi's evidence that he had a further discussion with Farid before the meeting of 16 September 1994.
144. On 16 September 1994 the document ultimately was agreed but after further long periods of negotiation.
145. To my mind SAMBA moved from being interested on the Sunday to seriously interested by the end of 13 September 1994. I say that because by 14 September 1994 Mr Cassin had provided a quote to SAMBA for doing the due diligence work. That would only have been gone through if SAMBA had a serious expectation that it was very close to finalising the deal with the Saabs. Mr Dhoot had obtained authority from Mr Mously to waive the jurisdiction clause and Mr Amersi had prepared a draft reflecting the discussions.
146. There was much debate about whether or not fees were to be payable to JDRP on success or whether fees were payable to third parties through the medium of JDRP.
147. Farid affected never to have heard of gatekeeper payments in the Middle East. I find that surprising and I reject it.
148. I equally reject however the suggestion by Mr Amersi that the reference in his retainer letters to gatekeeper fees was a reference to third parties who would only be relevant as introducers to high net worth individuals. The reasons why I reject it are two-fold. First the need for such gatekeeper payments does not, to my mind, arise if SAMBA is the placement agent. I found his attempted justification as to the need for gatekeepers in that situation, if SAMBA negotiated with such gatekeepers, unconvincing. It was not supported by Mr Dhoot. Second, if the matter was as innocuous as he said, his letters could have easily said these payments are gatekeeper fees payable to third parties. The letters are not so phrased. In that context I reject his evidence in particular that the letter of 14 September 1994 had become academic by the time it was apparently signed on the 23 September 1994. On its face it contemplates future work. It also, plainly to my mind, is intended to operate during a Placement Agreement with SAMBA. I reject Mr Amersi's evidence that its reference to gatekeeper fees was primarily designed to cover a situation if he effected a placement with a third party. Finally, of course by the 14 September 1994 the prospects of the matter proceeding in favour of SAMBA were advanced greatly, hence Mr Cassin's fee quote. I reject Mr Dhoot's evidence that he would be unconcerned if Mr Amersi had taken this business proposal to a different placement agent. That seemed to me to be extremely unlikely. It will be remembered that Mr Amersi was doing ninety-five percent, according to his evidence, of SAMBA's banking work. The idea that he would take a large contract somewhere else and Mr Dhoot would not protest is most unlikely. It is clear that whilst Mr Dhoot had been involved apparently in a number of attempted placements of this type he had only been successful in two, and only one of those was of any significant size. If the Agreement had gone to fruition it would have produced a substantial fee (less the retainer fees which whilst large are modest when compared with the success fee payable to SAMBA). The due diligence timetable was to start the next week.
149. It seems to me that Mr Dhoot noticed the gatekeeper reference when (for some reason) he saw the retainer letter, raised it briefly with Mr Amersi, who, being embarrassed about the large fee, gave a false explanation to Mr Dhoot that it was by reference to gatekeeper fees.
150. My firm conclusion is that the success fee was as set out in the letters, namely a success fee payable to JDRP, and that the change that occurred in the letter of 14 September 1994 was merely a mechanism as to where the payments were to be made as opposed to evidencing payments to gatekeepers.
151. This issue does not affect the liabilities as far as I can see; it is one as to credit. I have already commented that Mr Amersi made no reference to gatekeepers in his notes of 1 September 1994. Nor was there any mention of gatekeepers in his notes prepared either on the flight to Zurich or at Zurich. All the references are to fees payable to JDRP and I have no convincing evidence to contradict the clear unambiguous wording in the letters.
152. I am quite satisfied therefore that, whilst Mr Amersi announced on 12 September 1994 that he was then going to act for SAMBA, he was still acting for the Saabs, and indeed, as an examination of the documents shows, continued to negotiate with them over the terms of his retainer.
153. In this part of my Judgment I intend to review the contemporary documentation in the light of the explanations (in particular Mr Amersi) given in respect of such documentation.
154. Mr Amersi had been introduced as a result of a recommendation from Stephen Paine of S G Warburg to Buca. The purpose of the introduction was that (as Mr Paine said in his letter of 4 August 1994) Mr Amersi might have clients with potential interest in the Project. On 8 August 1994 he was sent some of the Project documents by Farid and he arranged dinner with Buca and Mr Lyons. He confirmed that to Farid by a fax dated 15 August 1994. That meeting took place and Mr Amersi wrote in favourable terms to Mr Stobart on 17 August 1994, and wrote in a similar vein to Buca on 23 August 1994. He finalised the arrangements to visit first Cyprus on 1 September 1994 then going on to Beirut, returning from Beirut to Geneva on 4 September 1994, in a fax he sent of 31 August 1994 to Buca. The final paragraph in that letter is significant in my view "Mr Dhoot is considering his own schedule and will revert to me in the course of today". In the event Mr Dhoot was not able to come, but it is quite clear that at that stage Mr Amersi was contemplating introducing the Project to SAMBA. I reject his evidence that he had other people seriously in mind at that stage, because there would be no reason for him to attempt to get Mr Dhoot to come if he had other placement agents as prospective candidates.
155. This is not surprising. He had had a long relationship with SAMBA and Mr Dhoot, and they were obviously used to working together in tandem in respect of projects of a similar nature to this one.
156. The meetings took place between 1 and 4 September (I have already dealt with Mr Amersi's error in relation to events). This is not surprising. He has produced two very brief notes dated 1 and 2 September. Those notes can only be described as limited as an aid to the discussions that took place. For example, they do not purport to cover beyond a summary of the nature of the land in respect of an aspect the whole time spent in Beirut. No criticism of the documentation is expressed. Although Mr Amersi in his evidence suggested he had offered criticism of the Project documentation, describing it as "poorly drafted and was not of a high standard", I have already observed that I have rejected such evidence. His notes do not recall any criticism and his letters do not record any criticism.
157. Up until this time Mr Amersi's role was solely as somebody who might bring to the Saabs a client who would invest in the Project. Thereafter, his role changed. He was thereafter to be retained by the Saabs. He produced notes during the flight from Beirut to Zurich setting out the hours he was going to spend (totalling 120 hours) and that he was proposing to charge US$300 (Three Hundred United States Dollars) per hour plus expenses plus "success fee of blank percent on capital raised and if closing occurs". Farid was given these notes at some stage (the precise timing is disputed but irrelevant for the present purposes). He wrote on those a figure of 1 ½ %, and ultimately a success fee of 2% of the total placement values was stated.
158. These are the so called gatekeepers fees to which I have already made reference. I do not accept Mr Amersi's evidence as to what these fees were for. To my mind these provided the substantial motivation for Mr Amersi to remain interested in the Project on behalf of the Saabs. It would provide him with a major coup, as I have said, for the firm that he had only joined a matter of months earlier. It did not differ from the practice which had appertained in his previous firm, and he would regard himself as the introducer of SAMBA. To my mind, as soon as he saw the viability of the Project, he only realistically had in mind SAMBA as the placement agent. Nevertheless, because of the attractiveness of the Project, he initially sought to cover himself against the eventuality that SAMBA, for reasons beyond his control, might not take up the Placement Agreement. In that eventuality of course he had linked himself to the valuable Project by being retained by the Saabs on these lucrative terms. He was also covering the fact that the Saabs might not be willing necessarily to go with SAMBA. By introducing a review of 20 institutions or investors on his hourly costings he thus locks the Saabs in to him even if they do not go with SAMBA.
159. Thus for example, on the Swissair notepaper Farid prepared a timetable of potential investors, the first one being SAMBA.
160. On 5 September 1994 Mr Amersi sent a fax to Farid indicating that the initial soundings would be with SAMBA 2 days later, and that he would arrange a meeting in either Geneva or London later in the week to discuss the outcome. This letter, in so far as it has any significance as regards when the fee proposals were put, suggests Farid's evidence is more accurate, as it refers to the stop over in Zurich rather than on the flight. His comments about the Project are that it is "certainly innovative and way ahead of its time". That might be explained as the kind of positive statement that one might make to ensure that there was a continued prospect of entering into relations. However, I am bound to say that, if the Project was as badly prepared as he now says in his witness statement, he would have not expressed himself in those terms and, at some stage before the Saabs committed themselves to SAMBA, he would have been bound to address the issue in written terms as to the suitability of the documentation.
161. A meeting was ultimately arranged between the SAMBA team and the Saabs for dinner at the Square restaurant, as I have indicated earlier in this Judgment. There is a dispute as to whether or not a letter of fee instruction either similar to the one dated 9 September 1994 (Mr Amersi's case) or in the form of the 9 September 1994 (Saabs' case) was handed by Mr Amersi to the Saabs at the meeting on the 12 September (Mr Amersi's version) or at a meeting in his room at the Capital Hotel on the Sunday (Saabs' version).
162. I am not in a position to resolve that dispute nor should I. I do reject Mr Amersi's evidence that he warned the Saabs before 12 September that he might have to act for SAMBA. I have also rejected his evidence that there were a series of drafts produced between the hand written notes on the Swissair flight and this draft. There is not sufficient time for that to have happened. Further it contradicts the tone of the letter of 9 September 1994. If there were earlier drafts there would be absolutely no need for example for him to thank them for the hospitality shown and covered presumably by previous drafts. His wording is important. He refers to the understanding "we have reached with respect to this firm's fees for assisting you on this matter". The next paragraph says "As we agreed our fees will comprise a time element and a success element". He then sets out the hours of work that he intends to do. The letter refers to the success fee and suggests it be finalised at a rate to be paid "to us" when the arrangements with the investment bank or prospective investors are in the process of being finalised.
163. Mr Dhoot gave evidence to the effect that he saw a fees letter passed from Mr Amersi to Farid. Farid denies having received any fees letter. This, to my mind, is an example of Farid retrospectively altering parts of his evidence to improve his case. I reject his evidence. I am quite satisfied that he was shown a fees letter draft either in the form of the 9 September 1994 (more probably) or the form of a slight modification of that (less probably). Most probably that occurred on Monday 12 September 1994.
164. I have already observed that Mr Amersi attended the dinner as the adviser to the Saabs on 11 September 1994. His evidence is that the subsequent meeting was not arranged that night but was only arranged next morning. That is confirmed by Mr Dhoot. I have no reason to disregard that evidence, and I prefer that to the statement of Farid that the meeting the next day was arranged on the Sunday night. I do not see the SAMBA team would be in a position to agree that on Sunday night.
165. I am not in a position to decide whether or not the Saabs first went to SAMBA's office or JDRP's London office. Nothing significant turns on that. What is important however, is that the meeting was arranged with the Saabs at short notice and was clearly arranged at the instigation of SAMBA because they were interested in advancing the Project.
166. The Saabs attended and, having heard the Saabs and Mr Amersi and Mr Dhoot, I find that both sides' recollection of the discussion about the retainer is inaccurate and has been dovetailed by both of them to better their respective cases. There was a conversation about Mr Amersi "being on the other side" but that was in the context of Mr Amersi telling the Saabs that he was going to act for SAMBA. I find he did not also say however, that he could no longer act for the Saabs. I also find that Mr Dhoot was aware that Mr Amersi was going to act for the Saabs but he was not aware of the precise extent of the activities that he was going to do.
167. The reality is that neither the Saabs nor Mr Dhoot were concerned about the fact that Mr Amersi might be acting for both parties because Mr Amersi did not appear to be concerned about it. The reason for this is because Mr Amersi never addressed the fundamental conflict issue, for reasons that I have already set out in this Judgment. He never explained what the difficulties might be. Clients are entitled to be informed of the possible conflicts.
168. Any other conclusion seems to me to be inexplicable. I find the suggestion put forward by Mr Amersi explaining the retainer letter of 14 September 1994 as quite extraordinary. The purpose of the 14 September 1994 retainer letter was to show the finalised terms agreed between him and Farid over his retainer by the Saabs. This was conducted openly at the meeting at various stages. It is inconceivable to my mind that documents about the retainer of the Saabs could be produced at a meeting on the basis that he was only acting for SAMBA. Equally it is most unlikely that the Saabs could believe that he was not also acting for SAMBA. Thus I am quite satisfied that on day one generalities were discussed, and on the following day, the Tuesday, those generalities were discussed in the context of a template document produced by Mr Amersi. He could only have done that in the context of having access to that in his capacity as lawyer for SAMBA.
169. The Saabs did not object to him acting for SAMBA, although they could have done so because he was already their lawyer. SAMBA did not object either, to my mind. However, the lay people, whatever their level of sophistication, are not necessarily as aware of the potentials for conflict that might occur in this situation. I refer to the Judgment of Millett LJ, as he then was, in Bristol and West Building Society –v- Mothew  Ch 1 at page 18-19 where he provides an analysis of the situation where a fiduciary might have a double employment role. It seems to me that Mr Amersi was in such a position as a result of his announcement on 12 September 1994. This put him in a difficult but not necessarily impossible situation. It becomes impossible when there are disputes about the terms of the proposed agreement and Mr Amersi attempts to resolve those disputes. As Millett LJ pointed out in the Mothew case, he must act for each party in good faith for the benefit exclusively of that party. It is self evident to my mind that when it came to the jurisdiction and law issues Mr Amersi was no longer in a position to offer impartial advice unless he put out of his mind commercial advantages that accrue to SAMBA as a result of the jurisdiction and/or the law. The most significant answer in this context was the one volunteered by Mr Dhoot when he revealed, tellingly to my mind, that he was aware of the irrecoverable nature of consequential loss under Saudi law. This demonstrated the motive for the way in which the supposed legal inhibition of SAMA regulations was deployed by SAMBA (Mr Dhoot in particular) on, no doubt, several occasions.
170. I do not see, as I have said, the draft letter of 9 September 1994, properly read, can be construed as anything other than Mr Amersi continuing to act for the Saabs in relation to the Project. This is reinforced by changed wording of the letter of 14 September 1994, which he sent by fax to Farid (with the boiler plate of the proposed SAMBA agreement). It is clear from this letter, sent after two days of negotiation, coupled with the quotation by Mr Cassin of the same date for the fees of Shawaaf (about whom I shall say some more in this Judgment) for their due diligence exercise as on behalf of SAMBA, that both Mr Amersi and SAMBA were progressing the matter rapidly.
171. The situation was of an initial explanatory dinner discussion on the Sunday; by the 14 September Mr Dhoot had full authorisation from his superiors, the terms of the agreement had been broadly agreed by reference to the draft documentation varied in the light of the discussions on the Tuesday, and copies had been sent out to the Saabs. Equally the terms of Mr Amersi's retainer by them in respect of the transaction were finalised and reflected in the letter of 14 September 1994, which he sent out for consideration.
172. It is true that there is no retainer letter as between SAMBA and Mr Amersi. I do not find that surprising because I accept that the relationship between Mr Amersi and Mr Dhoot was sufficiently frequent, and thus casual, that they knew how much the fees would be for such a transaction.
173. The wording of the letter of 14 September 1994 is plain to my mind. In the covering letter Mr Amersi refers to the revised fee letter for JDRP. He describes the work in paragraph 4 of the first page as being "our mutual understanding with respect to this firm's fees for assisting you on this matter". He then sets out a basis of US$300 per hour and, on a provisional basis, he attempts to split the hours (still arriving at 120 hours). There is a difference in the application of the hours. Gone are any of the 40 hours that were intended to be spent on visiting other prospective banks and investors (as set out in the letter of 9 September 1994). Mr Amersi nevertheless wishes to retain his 120 hours. He therefore reallocated the 40 hours which are no longer needed to the other investors. Of those hours 20 are allocated to item (a) giving a total of 70 hours, and the justification for that is extended to cover "3 days on each trip and meetings in London". To my mind that could only mean the meetings that were taking place during that week. No other explanation is credible. It shows that Mr Amersi is charging the Saabs for attending the negotiating meetings. The second item, paragraph (b), is also significantly changed. This is intended to be 30 hours spent on "performing legal due diligence recommending to your advisers the changes that needed to be effected to the existing documentation". He is thus charging the Saabs for due diligence as well as SAMBA. No other explanation is credible. Finally the third area, item (c), has the balance 20 hours, but this time it is to be spent on "reviewing these changes and co-ordinating with respect to the final forms of the placing documentation".
174. All of that seems obviously to me to be covering a situation whereby Mr Amersi is setting out the work that he has done and the work that he intends to do on the Project on behalf of the Saabs. Mr Amersi, in his evidence, suggested that the letter was intended to be used only if the agreement with SAMBA did not come off. I reject that explanation. It flies in the face of the identification of the work done. It flies in the face of his covering letter, and it flies in the face of the reference to London meetings and the fact the work also expressly refers to it being done "prior to SAMBA embarking on marketing".
175. Remember Mr Dhoot says he glanced at this letter because he recalled the reference to the success fee and asked Mr Amersi what it was about. He said in his evidence that he was told it was a gatekeeper fee. I have set out already why Mr Amersi might have said that to him. The gatekeeper fee was not an issue for the reasons that I have dealt with earlier in this Judgment. Significantly, the gatekeeper reference in the letter is on the same page where the proposed duties on behalf of the Saabs are set out. Mr Dhoot affected not to have noticed that. He equally affected not to have noticed the fact that on that page the only word in capitals is SAMBA and he said he did not notice that. I reject that. I find that he read the letter, saw it and understood precisely what was happening. He knew to my mind that Mr Amersi was acting for the Saabs and was billing them. He was not overly concerned about the costs because under the terms of the Placement Agreement all of his costs were going to be repaid by the Saabs. He was quite happy to have Mr Amersi bill the Saabs for his time at the meetings because that deflected the argument that Farid had about whether or not he should pay SAMBA's costs of negotiating the Placement Agreement. This was neatly got round by this billing arrangement for SAMBA's benefit. There is no evidence to show Mr Amersi ever billed SAMBA for the time spent during these days. It is true that in the fees print out hours are recorded for the 12 and 13 September. Those hours are split as to 3 ½ hours attributable to Riyadh and 3 ½ hours as to Geneva. The same is done on the 16 September although there are only five hours there. There is no evidence to show that the hours actually were anything like seven hours (they were somewhat less). However, bearing in mind the fact that Mr Amersi had put both undisputed Saab hours and undisputed SAMBA hours under the same billing record, there is nothing inconsistent with my finding that he was in effect billing the Saabs for the time he spent on the 12 and 13 September and not billing SAMBA.
176. This is reinforced by two subsequent letters. First, on 6 October 1994 (a unique document) Mr Dhoot set out a proposal that Mr Amersi be entitled to charge a fee of US$20,000.00 (Twenty Thousand United States Dollars) for reviewing and assisting with the drafting of the Information Memorandum. Mr Amersi and Mr Dhoot suggested that this included fees for the negotiations in the week 12 to 16 September 1994. I reject that. The wording of the letter does not support that, and those answers were to my mind inventions to bolster the suggestion that SAMBA was being charged by Mr Amersi for his time spent during those days. This letter itself changed on 26 October 1994 but the fees remained the same. Interestingly, and demonstrative of Mr Amersi's casualness, the first part of those fees were paid on the 23 October 1994 and the receipt is acknowledged by JDRP (Riyadh branch) on that date. The second payment was made pursuant to a request from Mr Amersi dated 30 November 1994 where he asked that the US$10,000 (Ten Thousand United States Dollars) be remitted by cheque to Vernon Cassin at the Riyadh office. He requested that the cheque be made out in favour of JDRP. Mr Cassin confirmed and could not explain why a cheque payable to JDRP would be sent to Riyadh because JDRP had no bank account in Saudi Arabia. Ultimately according to the printouts these sums appear to have been credited against SAMBA's accounts by JDRP.
177. The second point of significance is the way in which Mr Amersi dealt with payments made by the Saabs. On 3 October 1994 he sent Farid a fax. The second item there was in relation to money and it says as follows;-
"I also wonder whether it would be possible to give to Maurice Aoun 2 cheques made out in the name of [JDRP]. One should be in the amount of US$18,000 representing 50% of our estimated time charges for assisting you on this matter and the second amount of US$ 10,000.00 as an advance for travelling expenses and other out of pockets ."
178. Mr Amersi said that this was his inadequate attempt to tell the Saabs that he had decided only to charge them half of the estimate (which the figures are) because the work after that was going to be charged to SAMBA. This is a quite extraordinary explanation for the letter. It bears no relation to the text. There would have been absolutely no difficulty, if this was the case, for Mr Amersi to have written and have said words to the effect that "this is a bill for the time that I did for you up until 12 September 1994 when as you know I then ceased to act for you and started to act for SAMBA."
179. The only possible explanation for this letter is that it is an on account request for payment of the fees that were agreed. The letter is quite clearly provisional and shows that he is going to continue to act for the Saabs. The only basis on which he can continue to act for the Saabs is in respect of the retainer letter of 14 September 1994. That document by this time had been signed by Farid in the circumstances set out by him, as I accept. Simultaneously, on the same day, he signed a letter in respect of Mr Cassin's fees.
180. When it comes to accounting Mr Amersi is further in difficulties because, when he produced on a piece of note paper from the Al Bustan hotel timesheets showing a total of 288 hours, he intermingled Saab time (i.e. the US$18,000.00) and time which he contends he spent on behalf of SAMBA and credited one against the other.
181. This, the Saabs say, shows that he continued to act for them and billed them. However, I do not accept that. That is an after the event elaboration. It seems to me that the Saabs well knew that they were supposed to pay a sum in accordance with the retainer letter. They well knew (because Mr Amersi told them) that he was going to act for SAMBA. Under the terms of the Placement Agreement they had to reimburse SAMBA's costs. They therefore made these payments knowing that they were part of the progress of the Placement Agreement and were happy so to do. Mr Amersi's confusion is demonstrated, as I have said, by his combined crediting of the hours for the purposes of recovering payment.
182. Significantly in this context JDRP never delivered to anybody a final reconciliation showing the totality of the hours that they have done and the basis for the work that was done.
183. Accordingly on this analysis I am quite satisfied that Mr Amersi during the meetings 12 to 16 September 1994 purported to act for both the Saabs and SAMBA. I will address the consequences of that finding further in this Judgment when I come to set out the answers to the various preliminary issues for determination. I pause to note however, three things. First, Mr Amersi on the Monday acted in breach of the JDRP manual in relation to conflicts. Mr Cassin confirmed this, saying it would have concerned him had he known about it. Second, it would be up to Mr Amersi, as the lawyer, to be best placed to identify a conflict. It is hardly surprising that laymen do not object to a course of events if the lawyer sees nothing wrong about it and says nothing about it. Third, if Mr Amersi was the Saabs' lawyer (as I find) he could not have advised them that Saudi law was as good as English law. He would have been bound to advise them that they would be disadvantaged if they entered into a contract governed by Saudi law. He would also be bound to advise them that, if they entered into a contract which conferred jurisdiction on the Saudi courts, unless the matter got in some way before a SAMA tribunal, that the courts would apply Saudi law whatever the choice of law chosen by the parties. Whether he actually said that Saudi law was as good as English law is a matter for debate.
184. I am quite satisfied that the change of attitude by the Saabs position on the Friday is only explicable on the basis that they received the assurance to that effect. I have already rejected the suggestion that they were desperate and had no choice but to sign up with SAMBA. It is self_evident, if only from Mr Amersi's own initial quotations, that there were other possibilities that could have been explored. They went with SAMBA because SAMBA was attractive and that attractiveness was presented, initially by Mr Amersi, and then as a result of the congenial dinner at the Square restaurant on the 11 September 1994. Whether Mr Amersi said those words or Mr Dhoot does not really matter. If Mr Dhoot said them Mr Amersi could not, as the Saabs' lawyer, have allowed that state of affairs to be left unchallenged because he would know it was wrong. I am quite satisfied they were said however.
185. Equally I have already determined that SAMBA were not so obdurate that they would not contract otherwise than with Saudi law. Mr Amersi knew this because it had been done when Mr Steingaszner was on the scene. There are the other documents to which I have already made reference. No satisfactory explanation justifying this apparent departure has been adduced before me. Mr Amersi well knew that this was a ploy used by Mr Dhoot because that is what Mr Dhoot wanted for the benefit of SAMBA to avoid consequential loss.
186. Mr Rubin QC suggested in his closing submissions that even if the Saabs had negotiated under English law it would inevitably have been the case that a consequential loss exclusion would have applied. No evidence on this basis was adduced. The Escrow Agreement had no such limitation and one cannot ignore, as I have posed to him in argument, the plain fact that in English law if those terms were introduced by SAMBA as being "boiler plate" requirements they could have been challenged under the provisions of the Unfair Contract Terms Act 1977. I do not express any opinion as to the likelihood of such a challenge, but nevertheless it demonstrates that the English Courts would have enabled a party, even if a consequential loss claim was excluded, to have challenged that position. Such an option would not be available in Saudi Arabia.
187. By the end of the negotiations Mr Amersi, I find, was so attracted personally because of the success fee, because of the size of the transaction, that he lost a proper sense of objectivity and confused in his mind the well-understood desires of SAMBA to restrict its exposure with his duties to the Saabs his client to resist those. Mr Rubin QC submitted that it was extremely unlikely that the Saabs in September, with the prospect of a deal which would yield them a large amount of money in a very short time, would address the issues as to consequential loss and the like in the event that the deal went off. He thus echoes things that regularly happen when parties' enthusiasms for transactions overwhelm their caution. However, his submission overlooks a number of matters. First the Saabs were bankers. Bankers are not known for being wildly optimistic. The Saabs were plainly cautious about matters. This reinforces the unlikely scenario of them entering into the negotiations without the benefit of legal advice. Second, the Saabs, as already seen, had the obligations under the Placement Agreement being diluted because SAMBA would only contract on a best endeavours basis. Third, the boiler-plate agreement originally exonerated SAMBA from any liability. What was negotiated back in was a lesser standard of gross negligence and wilful default. The Saabs would therefore be clearly addressing consequences in the event that the agreement was broken. The discussion over indemnity can only be on that basis. For all of those reasons I reject Mr Rubin QC's submission in that regard.
SHAWWAF / JDRP
188. This is an interesting but in the event insignificant side issue. JDRP operated in Saudi Arabia at that time. Foreign law firms were not allowed to practise as foreign law firms in Saudi Arabia. A façade (and that is the right word) was operated for a number of firms whereby in this case JDRP partners would for the purpose of Saudi law be treated as employees of a sponsoring Saudi firm. In this case that was Shawwaf. Similar arrangements applied in respect of Clifford Chance when Mr Amersi was employed by them. Outwardly anything involving Saudi Arabian issues even when it was carried out by a JDRP employee would come out under Shawwaf notepaper. Mr Cassin, resident for many years, and who had previously carried on in a similar way in a previous association, would be acting for Shawwaf. In reality all the work he did "belonged" to JDRP and would be accounted for as between JDRP and Shawwaf in a ratio to be agreed having regard to expenses.
189. Equally, Mr Cassin, who introduced Mr Amersi to JDRP, was anxious that that introduction bolstered his presence in Riyadh, and no doubt enhanced his salary prospects when as he put it the senior partner viewed the bonuses by looking into his "black box" as he described it.
190. It is thus to be noted that half of Mr Amersi's time on the SAMBA records are attributable to Riyadh. I accept the explanation of Mr Cassin; this was merely an internal accounting exercise for JDRP purposes.
191. Mr Cassin however used notepaper interchangeably. I have seen letters written by him in October 1994 where, whilst they bear the Shawwaf heading, they also refer to JDRP. I have also seen letters written at the same time where there is only a reference to Shawwaf. No letter went to the Saabs which expressly referred to JDRP. Somebody with an eagle eye might have noticed the fax header which refers to JDRP Riyadh. I doubt whether Farid noticed this. However, he says he did and he raised it with Mr Amersi, and Mr Amersi said this was an out of date fax machine. I find this to be most unlikely. I do not accept that Farid saw the fax header. His reference to this conversation to my mind is one of his attempts to fine tune his evidence in anticipation of dealing with awkward points that might arise in cross-examination. I am nevertheless quite satisfied that nobody on the Saabs' side appreciated that Shawwaf and JDRP were connected.
192. Equally however, I am satisfied that no attempt was made to operate a deception. This is to my mind a figment of the Saabs' imagination created by the bitterness of the litigation. When one is involved in litigation like this one tends to attribute sinister motives to the actions of the other party all the time. Having seen Mr Cassin, who was to my mind a thoroughly honest witness, I am quite satisfied that there was nothing sinister; it was merely a billing process, and that he was at all times intending to assist Mr Amersi on the due diligence. It was billed in the Shawwaf name because the Shawwaf firm would provide input as to Saudi law, for which they would be charged, whereas JDRP would provide input in relation to the co-ordination and the due diligence which Mr Amersi would charge for.
193. There is therefore nothing sinister in this point and nothing of significance. I do not accept that the Saabs, as I have already said, did not know that Mr Amersi was acting for SAMBA.
194. One final point in this context, of course, is that Mr Cassin expressed surprise at the retainer letter of 14 September 1994 and expressed surprise at Mr Amersi's announcement on the Monday and he accepted that Mr Amersi was in breach of the JDRP manual. These are matters which I will refer to further when I deal with the preliminary issues, but it reinforces once again the hopelessness of Mr Amersi's position in my view.
APPLICATION TO RE-AMEND PARTICULARS OF CLAIM
195. In the light of the way in which the evidence had gone, particularly in relation to the late disclosed billing records and JDRP manual, I invited Mr Sutcliffe QC to consider those matters and Mr Amersi's evidence and whether in the circumstances he ought to seek permission to re-re-amend his Particulars of Claim, dovetailing to the manual.
196. Mr Sutcliffe QC responded to my request and added some additional amendments also. Mr Rubin QC did not in the event oppose any of the amendments, save those set out in paragraph 40A and following of the proposed amendments which introduced for the first time an allegation that Mr Amersi made fraudulent representations in relation to Saudi law. I refused permission to re-amend the Particulars of Claim to include that allegation, and I indicated that I would give reasons for that in this Judgment. The reasons are as follows. First, the cause of action became time-barred in September 2000. The Claim Form was issued on the 8 August 2000. If I granted permission to amend to include this allegation the retrospective effects of that order would deprive JDRP of a limitation defence.
197. That is justification enough in my view for refusing the permission to amend. Mr Sutcliffe QC sought to rely on CPR 17.4 which allows an amendment if "the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings".
198. Mr Sutcliffe QC submitted that the addition of an allegation of fraud against JDRP arises out of substantially the same facts. I do not agree. There is a world of difference between alleging that a firm of solicitors has been negligent through its employees and alleging that the firm is liable in deceit through fraudulent statements made by the employee ostensibly in the course of his duties. Putting aside the issue as to whether or not that could be said to be within his ostensible or actual authority (as to which I express no view at the moment) it seems to me the two are not the same. This position was addressed by Millett LJ as he then was in Paragon Finance Plc –v- D B Thakerar & Co (a firm)  1 All ER 400 at page 417, where he said this
"in all our jurisprudence there is no sharper dividing line than that which separates a case of fraud and dishonesty from cases of negligence and incompetence"
There is some Judicial comment on that in the case of Darlington -v- O'Rourke  1 Lloyd's Law Reports 33. I do not read that decision as expressing any criticism of the views of Millett LJ as he then was. If it did I would be faced with a conflict of Court of Appeal authorities and I would unhesitatingly follow the observations of Millett LJ.
199. There is to my mind a clear distinction between negligence on the one hand and fraud on the other.
200. Even if I am wrong on that I would have exercised my discretion against granting permission for the following reasons. First, Mr Amersi gave evidence over a week before the application. He was cross-examined for 4 days by Mr Sutcliffe QC. At no stage during the course of that cross-examination nor in the week between Mr Amersi's departure from the witness box and his return to Geneva and the closing submissions did he indicate that he considered that in the light of Mr Amersi's evidence a fraud claim could be made out. The proposal was only intimated with the delivery of the draft with his skeleton argument on Monday 18 November after close of evidence.
201. I was thus deprived of an opportunity of seeing Mr Amersi confronted with this issue and having an opportunity to defend himself. That is also unfair to Mr Amersi and JDRP. Whilst an amendment can be raised at the end of the trial the circumstances will be exceedingly rare see Ketteman –v- Hansel Properties Ltd.  A.C. 189.
202. Further the Saabs have stayed their proceedings against Mr Amersi, although there is power for them to seek to lift the stay. On such an application of course they would have to apply to the Court with the proposed Re-amended Particulars of Claim and justify the application. That would be done on notice to Mr Amersi's solicitors who, whilst they heard of this proposed application on Monday, were not surprisingly unable to instruct Counsel to appear let alone deploy arguments.
203. If I acceded to the application and made a finding that would be unfair to Mr Amersi, when he had not been heard on it and it would be bound to impact on his defence. It seems to me impossible for the applications as a matter of discretion to be heard at this late stage.
204. Mr Sutcliffe QC said that it was made late because it was only clearly available as a possibility late. It seems to me that that is wrong. First, the allegation is that Mr Amersi knew that Saudi law had the restrictions complained of by the Saabs. He did have that knowledge. If he made the statements, the statements would therefore be untrue but also knowingly untrue, i.e. he made them knowing they were untrue or reckless as to whether they were true. That is a situation which has been known to the Saabs to my mind for many years. Mr Wells' evidence shows that the Saudi law limitations were well known. Mr Dhoot confirmed that. There is no reason to suppose that if the Saabs had asked any respectable lawyer practising in Saudi Arabia to express a view as to the limitations of Saudi law the result would be obvious. That would inevitably lead to a conclusion that any self-respecting lawyer could not express the view it is alleged that he expressed. That is more than enough material to mount an allegation of fraud. The point was so obvious that Mr Dhoot knew it. Of course Mr Sutcliffe QC did not have the advantage of cross–examination, but it is quite wrong to cross-examine someone, finish the cross–examination, and then allege a fraud after he has departed.
205. There may be issues as to whether or not the limitation point could be got round based under the Latent Damage Act 1986 and/or Section 32 of the Limitation Act 1980. These are matters which the Saabs must prove. They were not alleged in the proposed Re-amended Particulars of Claim, nor was Mr Rubin QC able to deal with such arguments deployed by Mr Sutcliffe QC in argument only. I could not accept Mr Sutcliffe QC's statement from the Bar as to the date of knowledge for example.
206. For all of those reasons an application to amend on that basis at this stage was to be refused.
APPLICABLE CODE OF CONDUCT
207. Mr Amersi was at all material times a Solicitor of the Supreme Court holding a practising certificate in England and Wales. However, to my mind, he did not, during the course of these events, practise as such. He at all times was employed by JDRP, an American law firm. According to the evidence of Mr Cassin he was virtually a partner but without obtaining partnership status. The reason for this is, as I understand Mr Cassin's evidence, non-qualified US lawyers could not be partners in a US law firm. Mr Amersi therefore had a large measure of autonomy, but I do not regard his conduct as being that of a Solicitor of England and Wales. It must not be forgotten that the claim is against JDRP not Mr Amersi. It seems to me impossible to prescribe the duties of the Law Society Code to Mr Amersi and make JDRP vicariously liable for breaches of that Code when they themselves are not subject to the same Code.
208. It is true that JDRP adduced no separate code applicable to US law firms. In the absence of any such evidence it seems to me that I should apply the principles enshrined in case law in the common law jurisdiction rather than the specific Law Society Code.
209. Even if the Code of Conduct did apply, it seems to me that its application is not rigid, in the sense that compliance with the Code will not necessarily exonerate the solicitor nor will a breach of the Code necessarily involve a solicitor being found to be negligent. In this context I refer to the well known decision of Edward Wong Finance Co. Ltd. –v- Johnson Stokes and Master  A.C. 296 and the text set out in Jackson & Powell, Professional Negligence paragraphs 10-084 to 10-091.
210. I accordingly reject any contention that Mr Amersi was prohibited from acting in this matter because of paragraph 12.06 of the Code and the commentary note 3 on that. To my mind that is too high a standard and is not reflected by the Clark Boyce v Mouat nor the Mothew case. I can well understand why the Code would say that as a matter of best practice but breach of that is not evidence of negligence.
211. I must deal with the fact that Mr Collins, whilst an important witness in particular in relation to conversations which Farid said he had with him, and who would have been important evidence in respect of SAMBA's practices, was not called. A Civil Evidence Act Notice was served in respect of his evidence relying on the fact that he was abroad. There was no policy difficulty in bringing witnesses to court merely because they were abroad. Thus JDRP were able to secure the attendance of Mr Amersi and Mr Cassin although they were no longer employed by them and were abroad. No explanation was given as to why Mr Collins did not attend to give live evidence.
212. Accordingly I give no weight to his evidence in his Civil Evidence Act Notice because it has not been tested by cross examination.
213. A more significant absent witness was Mr Clossey. He was the partner to whom Mr Amersi reported whilst working in the Geneva office. His evidence would have been significant in relation to the gatekeeper fees issue. Mr Amersi, in paragraph 50 of his first witness statement, said that he telephoned Mr Clossey to discuss the practical arrangements regarding payment of introduction fees. He went on to say that the variation in the form of the payment procedure for introduction fees in the letter of 14 September 1994 arose as a result of Mr Clossey's concerns. Mr Clossey would have been a vital witness on this aspect. He could also have given evidence about the billing procedures and the policy in relation to gatekeeper/introduction fees. So far as I am aware Mr Clossey remains a partner in JDRP, yet he was not called. No explanation was given as to why he was not called and, in the absence of any explanation, my conclusion is that he was not called because he would not have supported Mr Amersi in respect of this aspect.
INTERNAL ACTIONS OF FARID SAAB
214. On 17 September 1994 Farid sent a fax to Mrs Elpida Farrell his secretary in Cyprus giving instructions as to the arrangements to be made for the due diligence team arriving on 19 September 1994. I have already commented on the closeness of these arrangements in respect of the negotiations the previous week. In the first paragraph of his letter he says that Mr Amersi "whilst co-operating with the delegation will be representing the Saab interests". Mr Rubin QC submits that this supports JDRP's contention that Mr Amersi was not acting for the Saabs but he was representing their interests. This, Mr Rubin QC says, shows that the Saabs were of the belief that having somebody "on their side" in the other camp was something of significance. I disagree. The note to my mind shows that Mr Amersi is acting for the Saabs. I do not see how the phrase "representing the Saab interests" can have any other connotation. It reflects the expression used by Mr Amersi himself, for example in his retainer letter of 14 September 1994.
215. The authenticity of this document was not challenged. Nor was it said that it was a self-serving paragraph invented by Mr Saab at the time. It therefore carries a piece of contemporary evidence to which I can attach weight which supports the Saabs in their contention that Mr Amersi by the 17 September 1994 was still acting for them. On JDRP's case of course he had ceased so to act from the 12 September 1994.
216. I go now to consider the various preliminary issues for consideration. I approach them on the basis of Mr Amersi's duties and retainer being those set out in the retainer letter of 14 September 1994, as I have already indicated in this Judgment.
DUTIES IN CONTRACT AND TORT
1. Did JDRP and Mr Amersi owe a duty to the Saabs to act with all due professional skill and care when advising and acting for the Saabs in connection with the Project generally and in particular in the selection of a suitable placement agent in relation to the marketing of the Project?
The answer to that question is yes.
2. Did JDRP and Mr Amersi owe a duty to the Saabs to provide the Saabs with impartial strategic advice as to SAMBA's abilities to act as placement agent to the Project (in particular as to SAMBA's abilities to market the placement to potential investors who matched the Saabs' preferred investor mix as indicated by the Saabs to Mr Amersi and SAMBA)?
The answer is yes, and the scope of his duties in that regard are set out in the retainer letter of 14 September 1994.
3. Did JDRP and Mr Amersi owe a duty to the Saabs to help the Saabs to secure the most advantageous terms available for their placement agreement with SAMBA and act with all due professional skill and care in and about the negotiation on behalf of the Saabs of the placement agreement with SAMBA?
Yes, but, as I have determined they were also acting for SAMBA, it was incumbent upon JDRP and Mr Amersi to withdraw if they were no longer able to discharge the duties they owed both to the Saabs and SAMBA when a conflict arose. It is self evident that they ought to have withdrawn when there was a dispute over the jurisdiction and choice of law and indemnity issues.
4. Did JDRP and Mr Amersi owe a duty to the Saabs to act with undivided loyalty towards the Saabs?
If so, did JDRP and Mr Amersi breach that duty?
The answer to both questions is yes.
5. Did JDRP and Mr Amersi owe a duty to the Saabs not to allow the performance of their obligations to the Saabs to be influenced by their previous or existing relationship with SAMBA?
If so, did JDRP and Mr Amersi breach that duty?
The answer to both questions is yes.
6. Did JDRP and Mr Amersi owe a duty to the Saabs not to place themselves in a position where their duty to the Saabs and their own interests might conflict?
If so, did JDRP and Mr Amersi breach that duty?
Yes, the duty was broken because Mr Amersi failed to appreciate the difficulties he was creating in respect of the terms which he knew SAMBA would wish to impose as a matter of commercial benefit to them. He was also in a position of conflict because of the large success fee he had successfully negotiated as being payable to JDRP by the Saabs.
7. Did JDRP and Mr Amersi owe a duty to the Saabs not to place themselves in a position where they faced an actual conflict of duty?
If so, did JDRP and Mr Amersi breach that duty?
The answer to both questions is yes. Once there were disagreements over the terms of the Placement Agreement, Mr Amersi, and thus JDRP, could no longer act for both parties, and he should have said so.
8. Did JDRP and Mr Amersi owe a duty to the Saabs not to act for their own benefit or for the benefit of a third person (namely SAMBA) without the informed consent of the Saabs?
If so, did JDRP and Mr Amersi breach that duty?
The answer to the first question is yes. In respect of the second question the answer is also yes, but that has to be measured by my finding that the Saabs knew he was acting for SAMBA. My conclusion however is that the Saabs were not in a position to give informed consent because they as laymen were not aware of the difficulties of conflict that such a role would have on Mr Amersi and his ability to perform the duties he owed both to the Saabs and SAMBA simultaneously.
SELECTION OF PLACEMENT AGENT
Issues 9, 10 and 11 were abandoned by the Claimants in their closing submissions.
DRAFTING OF THE PLACEMENT AGREEMENT: SAUDI LAW
12. Did JDRP and Mr Amersi advise the Saabs that any contract with SAMBA would have to be governed by Saudi law? If so, was this advice negligent? Did they thereby breach duties owed to the Saabs as set out in Paragraphs 38.1, 38.3, 38.4 and 40 of the Particulars of Claim.
I do not believe Mr Amersi advised that any contract with SAMBA would have to be governed by Saudi law. However, Mr Dhoot on the balance of probabilities said that. Mr Amersi, as the Saabs' lawyer, had a duty to dissent from that. He said nothing and was therefore in breach of the duties, because he knew that what Mr Dhoot was saying was not a correct summary of the position. If he did not know that, then he was in any event negligent.
13. Did JDRP and Mr Amersi advise the Saabs that they would not be prejudiced by the application of Saudi law as set out in Paragraph 39.6(c) of the Particulars of Claim? If so, was this advice negligent? Did they thereby breach duties owed to the Saabs as set out in Paragraphs 38.1, 38.3, 38.4 and 40 of the Particulars of Claim.
The answer to this question is the same as the answer given under 12. Mr Dhoot might well have said this on the balance of probabilities and Mr Amersi never corrected it. He either knew it was wrong or he did not know that it was wrong. On either eventuality his failure to act was negligent as no reasonable lawyer could allow a client to enter into a contract on the belief that they would not be prejudiced by the application of Saudi law.
14. Did JDRP and Mr Amersi breach duties owed to the Saabs in failing to advise the Saabs that they should stand up to SAMBA's insistence that the Placement Agreement should be governed by Saudi law and insist instead upon English law? If SAMBA had not been prepared to agree to English law should JDRP and Mr Amersi have advised the Saabs to seek an alternative placement agent?
The answer to this question is that JDRP and Mr Amersi ought to have advised the Saabs that SAMBA's insistence was not based on any legal principle but was a commercial matter. It was open to the Saabs, they should have been advised, to consider whether or not they wanted to enter into the Placement Agreement on those terms or seek to persuade SAMBA to change those terms, and, in the event that that persuasion was unsuccessful, to seek an alternative placement agent. JDRP and Mr Amersi owed no duty to advise the Saabs that they should seek an alternative placement agent. That was a matter for the Saabs, provided they were properly advised as to the legal principles. JDRP and Mr Amersi, in failing to draw to the Saabs' attention that there was no legal basis for SAMBA's insistence deprived the Saabs of having a proper opportunity to consider their options fully.
15. Did the Saabs rely on the advice given by JDRP and Mr Amersi? Would the Saabs have relied on the advice that should have been given by JDRP and Mr Amersi?
The answer to both questions is yes.
16. If the Saabs had been properly advised:
16.1 Is it likely that the Saabs would have insisted that English law (or any law other than Saudi law) should apply?
16.2 Had the Saabs so insisted, what is the chance, expressed in percentage terms, that SAMBA would have agreed to a law that would have permitted the Saabs to claim damages for loss of opportunity and interest, resulting from SAMBA's failure to secure the placement of shares in the Project?
16.3 If SAMBA had not agreed to a different governing law, is it likely that the Saabs:
(a) would have agreed to Saudi law?
(b) would have sought to obtain an alternative placement agent?
(c) if so, is the loss of the opportunity or profit that the Saabs allege that they have sustained by not having instructed a suitable alternative placement agent a loss which (a) falls within the scope of any duty owed by JDRP to the Saabs and/or (b) as a matter of law was caused by JDRP's breach of duty set out in paragraphs 12 to 14 above and/or (3) as a matter of law, is too remote.
(d) would have abandoned the Project?
The answers are as follows:
16.1 Yes, the Saabs would have insisted that English law and not Saudi law should apply. I am quite satisfied that they were sufficiently seriously concerned about the implications of the application of Saudi law as I have already found in this Judgment that the only reason they gave up on these points was because they received assurances that Saudi law was no different. No other explanation is credible for their capitulation on this issue on Friday 16 September 1994, having argued it on Monday and Tuesday and then having reverted back to it on the Friday.
16.2 In my view SAMBA would have conceded the point. There are a number of reasons for this. First, the transaction was very attractive to SAMBA.I based that finding on the speed with which the matter proceeded following the initial meeting on the 11 September 1994, the negotiations over the 12 and 13, the finalisation on the 16 and the due diligence operation commencing the next week. That reflects a very keen interest. The reasons for that are three fold. First, SAMBA was involved in the Soldere project as a sub–agent, and this would be a natural development on what was perceived as an attractive area to get into early following the cessation of hostilities. Second, I find that there was unsatisfied investor interest available to SAMBA and I accept what Farid says was said to him by Mr Collins in that regard. Third, SAMBA would believe that its exposure would be minimal anyway because it would be entitled under the due diligence procedure (as indeed happened) to conduct a full investigation, and if there were problems identified in that due diligence to terminate the agreement. They were so confident that they apparently agreed a variation of their standard form of agreement to remove the absolute cessation of the relations on 31 January 1995. SAMBA were in a stronger position because they had no credible opposition to the stance. The reason for that was that Mr Amersi said nothing and therefore Mr Dhoot was able to look and appear to be very confident. It was in reality a bluff because SAMBA, as I have found, had negotiated on a different basis before. Indeed a jurisdiction point had been conceded by Mr Dhoot having spoken to Mr Mously overnight during the negotiation on Monday/Tuesday 12/13 September 1994. Applying principles set Allied Maples –v- Simmons and Simmons  1 WLR 1602 at page 1611 A, I find that there was a more than speculative chance ( indeed a substantial chance) that SAMBA would have agreed to a provision as set out in 16.2. In particular it is important that the Saabs do not have to establish that SAMBA would have conceded, and that it is merely a question of having the possibility in substantial chance terms of that occurring. I have rejected the evidence of Mr Dhoot that they would have walked away from the transaction for the reasons set out above. I have also determined that the Saabs would have felt confident that they could place the contract with other possibilities. I have also determined that, whilst they were under pressure from ABC, that pressure was not such as to require them as a matter of absolute necessity to finalise the SAMBA deal. Looking at those matters, and with the Saabs assisted by a lawyer calling the Dhoot bluff in relation to the SAMA attitude, my conclusion is that SAMBA, as I have said, would have concluded the deal on those terms, and I assess the chances of that as being 50%.
16.3 (a) The answer would be no.
(b) The answer is yes.
(c) The answer is yes. I should elaborate that a little further. The submission of Mr Rubin QC on behalf of JDRP is that a loss based on that is too remote. He relies upon the well-known decision of the House of Lords in SAAMCO  AC 191 at page 214. There Lord Hoffman distinguishes between a duty to provide information and a duty to advise as to what course of action should be taken. He indicated that where the duties were to provide information the responsibility only arises for the consequence of the information being wrong. He also observed that if there was a duty of care which imposes upon the informant responsibility for the losses which occurred even if the information given were correct, this was not in his view fair or reasonable as between the parties.
217. Mr Rubin QC, in the course of his careful written and oral closing submissions, submits that Mr Amersi was under a duty to provide information as to Saudi law and not a duty as to advising the Saabs as to what decision they should make. I accept that submission. I do not accept the development of those submissions, that even if Mr Amersi gave correct advice the position would be the same.
218. One has to look at the retainer of JDRP as set out in the letters of 9 September 1994 and 14 September 1994. As I have found Mr Amersi was clearly putting SAMBA well to the forefront although not exclusively. One has to look at the consequences of his negligent advice as to the Saudi law issue. The negligent advice led the Saabs to give up their opposition to the clause because there was no point in continuing it. What would have been the position if Mr Amersi had given the correct advice? They would have known that the position as to Saudi law was not as SAMBA said, and that would have fortified them, as I have said, in the negotiations. Supposing SAMBA did not relent however, they would have then had an opportunity to seek alternative placement agents. That opportunity was lost by Mr Amersi's negligent advice. The reason for that of course is that the opportunity simply did not arise, because there was no need for the Saabs to consider an alternative placement agent in the light of Mr Amersi's advice as to Saudi law. Alternative placement agents were clearly within the ambit of possibilities covered by JDRP's retainer, as the letters make self evidently clear. During the period of the negotiation of 12 to 13 September 1994, at best it can be said the retainer letter which evidenced the scope of duties was that of 9 September 1994. It follows that Mr Amersi would have been aware that alternative placement agents were a possibility, but he would have likewise been aware that, if advice was given to the effect that Saudi law was the same as English law, the preferred placement agent, SAMBA, to which he had been steering the Saabs, would have been the only logical choice.
219. I do not see this arises out of the need to find a duty on the part of Mr Amersi to advise a particular course of action. I cannot see that he would be under such a duty, as the overall decision of such a commercial nature would in my judgment be that of the Saabs, provided they had been given all the correct information to enable them to come to a properly considered and informed decision. This cannot be said, to my mind, to fall within the part of SAAMCO identified by Mr Rubin QC as being "responsibility for losses which would have occurred even if the information which he gave had been correct…". That is to confuse a separate matter. It is true that this part of the questions is being considered in the light of SAMBA not conceding the point but, nevertheless, it is part of the clearly foreseeable consequences, in relation to Mr Amersi's retainer, that the Saabs would consider what to do if SAMBA did not give way. That decision-making process was clearly affected by the provision of wrong information, with the consequential result that the opportunity to go elsewhere was lost. It is lost because it is not utilised by the Saabs because of the incorrect information that Mr Amersi gave. It is not the same position if the correct information has been given.
220. Equally I do not accept Mr Rubin QC's submission that the point is neatly illustrated in respect of the jurisdiction issue. The reason I say that is because I am unpersuaded that any loss arising out the jurisdiction issue would exceed the costs that were irrecoverable in establishing the right to sue SAMBA. That being the case there is not the apparent inconsistency identified by Mr Rubin QC, that suggests that, if Mr Amersi was negligent in relation to the jurisdiction clause, the Saabs' losses have been increased, but, if SAMBA would not have agreed a variation the Saabs, would have walked away and therefore lost the opportunity of seeking an alternative placement agent. The reason for that of course is that, even if Mr Amersi was negligent in respect of the jurisdiction clause, the negligence was not effective to cause any greater loss than the extra costs, because the Saabs successfully instituted proceedings as they wished albeit with a little bit of difficulty.
DRAFTING OF PLACEMENT AGREEMENT: JURISDICTION
17. Did JDRP and Mr Amersi advise the Saabs that the term allowing the parties to sue each other in "a court of competent jurisdiction" would enable the Saabs to issue proceedings against SAMBA in England without difficulty in the event of a dispute arising? If so, was this advice negligent? Did they thereby breach duties owed to the Saabs as set out in Paragraphs 38.1, 38.3 and 40 of the Particulars of Claim.
My determination on this is that JDRP and Mr Amersi did advise the Saabs that the term allowing the parties to sue each other in a court of competent jurisdiction, but that advice was not in breach of duties. The reasoning for this is as follows. I accept Mr Amersi's evidence that the "boiler plate" form of agreement used by SAMBA had a Saudi jurisdiction clause. I equally accept that that was abandoned by negotiation, as confirmed in evidence by Mr Dhoot having spoken to Mr Mously. That is why it does not appear in the draft Placement Agreement sent out on 14 September 1994. The jurisdiction point having been abandoned by negotiations, the parties would have been free to litigate in whatever jurisdiction was willing to accept jurisdiction for the proceedings. Nobody would therefore have an absolute right to choose which Court would be the forum for the determination of any disputes. I reject the Saabs' evidence that they understood they were going to have a clause which gave them an exclusive right. The wording, as reintroduced on the 16 September 1994 plainly does not do so, and cannot have been intended to do so. Conversely, I reject Mr Amersi's and Mr Dhoot's evidence that the clause was intended to enable SAMBA to decide whether or not it would submit to jurisdiction. That would make a nonsense of the clause, as it would in effect enable SAMBA to insist that the proceedings could only be commenced where it wished. His reasoning also fails to address the possibility of the Saabs having a corresponding right to object to any proceedings that SAMBA might bring.
The clause as to jurisdiction was reinstated as part of the negotiation on 16 September 1994 when the Saabs sought to visit again the limitation of liability. As part of that exercise SAMBA through Mr Dhoot negotiated a provision in the form that it finally evolved. I find that Mr Amersi drafted that provision; I do not accept that it was a creation of the Saabs. That might appear to put Mr Amersi in some difficulty because he is acting for both sides. In fact the ensuing clause to my mind was acceptable to either party as each of them understood that the result was that it enabled either party to commence proceedings wherever they wished but allowed the other party to make representations as to the suitability of the relevant forum. Therefore I conclude that his advice was not negligent and not in breach of any duties.
18. Did JDRP and Mr Amersi breach any duty owed to the Saabs in failing to advise the Saabs that there should be a clause in the contract which clearly enabled the Saabs to commence proceedings against SAMBA in the UK or in another country of their choice should that prove necessary? If SAMBA had not been prepared to agree to such a clause, should JDRP and Mr Amersi have advised the Saabs to seek an alternative placement agent?
The answer on this question is that JDRP and Mr Amersi were not in breach of any duty enabling the Saabs to have an exclusive right to choose the jurisdiction, as that was not what was intended nor was it agreed. I do not see that JDRP and Mr Amersi were under any duty to advise the Saabs to seek an alternative placement agent. Their duty was limited to giving information in the context of there being other alternative placement agents leaving the decision as to whether to go elsewhere to the Saabs.
19. Did the Saabs rely on the advice given by JDRP and Mr Amersi? Would the Saabs have relied on the advice that should have been given by JDRP and Mr Amersi?
This does not arise.
20. If the Saabs had been properly advised:
20.1 Is it likely that the Saabs would have insisted on a different wording relating to jurisdiction? If so, what wording would they have insisted upon?
20.2 Had the Saabs so insisted, what is the chance expressed in percentage terms, that SAMBA would have agreed to alternative wording that would have prevented SAMBA from challenging the jurisdiction of the English Courts?
20.3 If SAMBA had not agreed to a different wording, is it likely that the Saabs:
(a) would have agreed to the clause as it was in fact worded?
(b) would have sought to obtain an alternative placement agent?
(c) If so, is the loss of the opportunity or profit that the Saabs allege that they have sustained by not having instructed a suitable alternative placement agent a loss which (a) falls within the scope of any duty owed by JDRP to the Saabs and/or (b) as a matter of law was caused by JDRP's breach of duty set out in paragraphs 17 and 18 above and/or (c) as a matter of law, is too remote.
(d) would have abandoned the Project?
My answer on these is that the questions do not arise because the clause was agreed by the parties and was not understood to have been intended to be exclusive. The Saabs obtained precisely what I find they intended to obtain, namely the right to sue in a different jurisdiction to the Saudi Courts. I find that they never understood that they were going to obtain an exclusive right to litigate in that alternative jurisdiction, but that SAMBA, in the event of such proceedings having been instituted, would have had the right to seek to persuade that court not to assume jurisdiction. I also find that the converse was equally open, namely that if the Saabs had been faced with proceedings in Saudi Arabia they would have had a like right.
221. Issues number 21, 22 and 23 have been abandoned by the Saabs.
222. I deleted issue 24 from the consideration of the Preliminary Issues at this stage at the start of the hearings.
223. Those are my rulings on the Preliminary Issues at this stage.