On 10 November 2023, Mr Justice Henshaw handed down judgment in Bin Issa Al Jaber v Bin Ibrahim Al Ibrahim [2023] EWHC 2759 (Comm), following a four-week trial in May 2023.
The First Defendant, Sheikh Walid Bin Ibrahim Al Ibrahim, was represented in his successful defence by Nico Leslie, together with Andrew George KC of Blackstone Chambers. Shail Patel of 4 New Square acted for the Second Defendant.
The First and Second Defendants are brothers and connected to the Saudi royal family, their sister having been married to the late King Fahd bin Abdulaziz Al Saud. The First Defendant is also the founder and chairman of the Middle East Broadcasting Centre (“MBC”), one of the largest satellite television conglomerates in the Middle East.
The Claimant was Sheikh Mohamed Bin Issa Al Jaber, the founder and CEO of the MBI Group, a hotels and construction conglomerate, once listed as one of the richest businesspeople in the world with a fortune of more than US$12 billion. He claimed that he had extended an oral loan of US$30 million to the Second Defendant in 2002 in order to finance the founding of the Arab world’s first satellite television station and brought the proceedings with a view to enforcing that alleged loan. The Defendants’ case was that the US$30 million payment was an advisory fee paid in connection with assistance provided to the Claimant in connection with a substantial real estate transaction in Saudi Arabia.
The proceedings were long-running, with the jurisdiction decision of Mr Justice Burton having been handed down on 21 July 2016 ([2016] EWHC 1989 (Comm)), and upheld by the Court of Appeal in July 2018 ([2018] EWCA Civ 1690). At that stage, the first-instance judge had concluded that the Claimant was “clearly in the lead” on the merits, citing a contemporaneous transfer instruction and evidence from the MBI Group’s Chief Financial Officer as significant factors. It was also material that, given the passage of time and the working practices of senior Saudi businesspeople, there was little other documentary evidence extant.
At trial, Henshaw J explained the Court’s approach to historic cases where there is a dearth of documentary material and, in particular, the effect of a Notice to Prove served under CPR 32.19. The Defendants had served a Notice to Prove in respect of the purported transfer instruction on which the Claimant had relied at the jurisdiction stage. That was significant because disclosure obtained from a third-party Swiss bank shortly before trial raised questions as to the authenticity of that transfer instruction.
Dismissing the claim, Henshaw J rejected the Claimant’s evidence and further found that he could not rely upon the evidence of the MBI Group’s CFO. Whilst he held that it was unnecessary for him to make a positive finding of forgery in respect of the transfer instruction, he concluded that he was “entirely unpersuaded” that it was produced in 2002. On that basis, he dismissed the entirety of the Claimant’s factual case as to the existence of an oral loan and held that the payment in question was likely an advisory fee as the Defendants contended.
Although that disposed of the claim, the Judge accepted the Defendants’ case that if a loan had been concluded then, notwithstanding that the Claimant’s habitual residence at the time of the alleged loan was England, its governing law would nonetheless have been Saudi law further to the application of Article 4(5) of the Rome Convention. The Judge also resolved various issues of Saudi law, including (for what is understood to be the first time in the English courts) whether a loan must be concluded in writing, what is necessary to establish an agent’s authority, and the limitation period applicable to a debt claim.
The full judgment can be found here.
