in the supreme court of judicature court …...lord justice chadwick : 1. these are appeals from...
TRANSCRIPT
Case No: 2002/2401
2003/2227
Neutral Citation Number: [2004] EWCA Civ 857
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Thursday 1 July 2004
Before :
THE RIGHT HONOURABLE THE VICE CHANCELLOR
THE RIGHT HONOURABLE LORD JUSTICE CHADWICK
and
LORD JUSTICE CARNWATH
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Between :
LESLEY JUNE AL-BASSAM Appellant
- and -
ABDULLAH SALEH AL-BASSAM Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Thomas Lowe (instructed by Cobbetts Lee Crowder of 39 Newhall Street, Birmingham B3
3DY) for the claimant (appellant in appeal 2002/2401)
Mr Charles Aldous QC and Mr Andrew de la Rosa (instructed by Macfarlanes, 10 Norwich
Street, London EC4A 1 BD) for the defendant (appellant in appeal 2
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Judgment
Lord Justice Chadwick :
1. These are appeals from orders made in proceedings brought by Lesley June Al-
Bassam, who claims to be the widow of the late Abdulaziz Saleh Al-Bassam,
against Abdullah Saleh Al-Bassam, the half-brother of the deceased.
2. Abdulaziz Saleh Al-Bassam (“the deceased”) was a national of Saudi Arabia. It is
common ground that he was a very wealthy man. At his death, on 17 November
2001, he was living in London. By a document dated 26 August 2001 and
described as a will (“the will”), he appointed the claimant (and her son from a
former liaison) to be his executors; and he left to her the whole of his estate. The
son has renounced probate.
3. The deceased and the defendant, Abdullah Saleh Al-Bassam, were sons of the late
Saleh Al-Bassam. The defendant claims to be entitled to the whole of the
deceased’s estate under the Shari’a law of inheritance. On 30 November 2001 he
filed a caveat against the grant of probate to the will. On 19 January 2002 he
obtained an “Heirs Identification Deed” from the Shari’a court in Riyadh, Saudi
Arabia, supporting his claim to be the sole Koranic heir to his brother.
4. On 2 February 2002 the claimant was granted administration ad colligenda bona
out of the Winchester District Probate Registry. On 18 March 2002 she
commenced proceedings (HC02C00630 – “the succession claim”) for declarations
that the deceased had died domiciled in England; that she was the wife of the
deceased at his death; and that his estate be distributed in accordance with the
terms of the will. On the same day she commenced parallel proceedings
(HC02C00631 – “the probate claim”) in which she asked the court to pronounce
for the will in solemn form.
5. On 16 April 2002 it was ordered that the succession claim and the probate claim
be consolidated. Particulars of claim were served in the consolidated action on 30
April 2002. On 15 May 2002 those particulars were amended to plead, in the
alternative, that the deceased had died domiciled in India. It is the claimant’s
pleaded case that, if (as she asserts) the deceased died domiciled in England or in
India, she is entitled to the whole of his estate under the terms of the will. But she
accepts that, if the deceased died domiciled in Saudi Arabia (as the defendant
asserts) or in Iraq, her claims as sole beneficiary under the will have effect subject
to Shari’a law (whether as the law of his domicile or as the law of his nationality)
and that, in that event (as she asserts), she is entitled to one third of the estate.
The issues in the proceedings
6. A defence and counterclaim in the consolidated action was served on 3 May 2002.
The issues raised by the defence may be summarised as follows:
(1) The marriage between the claimant and the deceased
It is said that the purported signature of the deceased on a marriage
certificate – purporting to record the civil marriage of the claimant and the
deceased at the Westminster District Registry Office on 23 December
1986 – is not the deceased’s signature; that, if (which is not admitted) the
claimant and the deceased went through a ceremony of marriage on 23
December 1986, the fact of their marriage was never disclosed to his
family or friends or acknowledged by the deceased during his lifetime; and
that the deceased continued to describe his marital status as “single” in
passports and immigration documents after the date of the supposed
marriage.
(2) The domicile of the deceased at his death.
It is denied that the deceased was domiciled in England or in India at the
time of his death, or at any time. It is said that his domicile of origin was
Saudi Arabia and that at no time did he acquire a domicile of choice in any
other jurisdiction. In particular it is said – and it is not, I think, in dispute –
that the deceased never owned a house in England or in India, that he had
no employment in England or in India and that he never sought to obtain
British or Indian citizenship.
(3) The substantive validity of the will
It is said that the law governing the substantive validity of the will – if
(which is not admitted) it was validly executed by the deceased – and, in
any event, governing succession to the deceased’s estate, is Islamic law:
“that law governs succession to the deceased’s estate whether he was
domiciled in Saudi Arabia or any other state in which the Islamic law of
personal status is applicable to the deceased’s estate”. The defendant
asserts that, under Islamic law “the will is wholly invalid and the
defendant is solely and immediately entitled to the whole of the
Deceased’s estate as his sole heir”. The basis of that contention is, first,
that the will and its contents offend against fundamental Islamic tenets;
and, second, that it was not registered in Saudi Arabia in accordance with
the law of that jurisdiction. It is said that the will offends against
fundamental Islamic tenets in the following respects: (i) that it purports to
provide for the deceased to be cremated – “a provision which is entirely
inconsistent with Islamic tenets and which is not severable from the other
provisions of the purported will”; (ii) that it purports to leave the whole of
the deceased’s estate to the claimant or, should she predecease him, her
son, neither of whom is a Muslim – “thereby wholly excluding the
defendant who is the sole heir under Islamic law, a purported disposition
of the deceased’s estate which is entirely inconsistent with Islamic tenets”;
(iii) that the will was purportedly executed during the deceased’s “death
illness” which itself renders the will invalid under the Islamic law of
personal status.
(4) The due execution of the will
Due execution of the will by the deceased is not admitted. It is pleaded
that, without prejudice to the issues as to domicile and substantive validity
and in the absence of any particulars as to when and by whom the will was
drafted or as to the instructions for its drafting given by the deceased, of
any evidence from the attesting witnesses or of a forensic examination of
the original document (and, in particular) of the deceased’s purported
signature, “the Defendant does not admit that the purported will was duly
and validly executed by the Deceased, that the deceased knew and
approved of the contents of the purported will or that he made the will of
his own volition and free from any undue influence”.
7. In his counterclaim the defendant repeated the allegations made in the defence;
and, in particular, the allegation that “Under the Islamic law of personal status
governing succession to the Deceased’s estate, the defendant became immediately
and solely entitled to the whole of the Deceased’s estate as the Islamic heir no
later than the time of the Deceased’s death”. The defendant sought declarations
that the law governing the substantive validity of the will and succession to the
deceased’s estate was Islamic law and that, under that law, the will was wholly
invalid and he was the deceased’s sole heir. He asked the court to pronounce
against the validity of the will and (if necessary) for a grant of administration of so
much of the deceased’s estate as is subject to the jurisdiction of the English court;
for revocation of the grant ad colligenda bona; and for an account of assets of the
estate in the hands of the claimant. The claim for an account was based upon
allegations (in respect of which he also sought declarations) that the claimant had
intermeddled in the deceased’s estate and misapplied its assets in making
payments not authorised by the limited grant which she had obtained.
8. The claimant served a reply and defence to counterclaim. As amended, that
pleading is dated 1 July 2002. The reply joined issue with the allegations made in
the defence as to the marriage between the claimant and the deceased. It denied
that the domicile of origin was Saudi Arabia – on the grounds that Saudi Arabia
did not exist as a separate kingdom at the time when the deceased was born. In
that context I note that it appears from the certificate of death which is in evidence
that the deceased was born at Al-Zubair in 1925. It is said that Al-Zubair – and
Basra where the defendant lived as a child – were in British controlled
Mesopotamia, a territory which subsequently became part of Iraq. On that basis
the claimant asserts that the domicile of origin of the deceased was Iraq; but,
given that it appears to be common ground that Iraq is a jurisdiction which would
apply Islamic law to questions of succession, it is difficult to see that the question
whether the domicile of origin was Saudi Arabia or Iraq can be of any great
materiality. The thrust of the reply was that, since the 1970’s (if not before), the
deceased had adopted England as his domicile of choice. In particular it is said
that, from the early 1970’s, he had lived in London for about 9 months of each
year; that he had obtained a visa which allowed him indefinite entry into the
United Kingdom; and that he “had largely abandoned an Islamic way of life”.
9. The reply joined issue, also, with the assertion that, if governed by Islamic law,
the will would be wholly invalid. It is said that neither the deceased’s expressed
wish to be cremated, nor his wish to leave the whole of his estate away from his
Islamic heirs could have that effect. The effect, if Islamic law governs succession,
is that the claimant’s entitlement under the will is limited to one third of the
deceased’s estate. Further, it is denied that the illness from which the deceased
died (which, as appears from the certificate of death, was bronchopneumonia) was
an illness from which he had suffered at the time when the will was made, so as to
engage the “death-illness” rule. And, in fairness to the claimant, I should set out
her response to the defendant’s challenge to the due execution of the will. She
pleads:
“ The Claimant does not know by whom the Will was
drafted. It was signed by the Deceased in the presence of
[two witnesses, naming them], both of whom have since
confirmed that they witnessed the Will in the presence of
each other and the Deceased and that the deceased was in
full command of his mental faculties. The Claimant had no
knowledge of its existence or terms until after the death of
the Deceased.”
Her assertion as to due attestation is supported by statements made by the attesting
witnesses.
10. It is right to say, also, that the fact that there was a ceremony of marriage on 23
December 1986 between persons who identified themselves as the claimant and
the deceased – and the authenticity of the certificate of marriage – is confirmed by
a statement made by the Superintendent Registrar who conducted that ceremony.
The marriage, and due attestation, are in issue; but, if he is to succeed on those
issues, the defendant will have to overcome substantial evidential difficulties. The
real battle in these proceedings, as it seems to me, is likely to be on domicile; and,
if the defendant succeeds on domicile, on substantive validity under Shari’a law.
On those issues the defendant is on much firmer ground.
The course of proceedings so far
11. By application notice dated 24 July 2002 the claimant sought an order, under CPR
Pt 23, (i) for disclosure by the defendant of all assets of the deceased then in his
possession or under his control and (ii) restraining the defendant from dealing
with any asset forming part of the deceased’s estate. The application was
prompted, as appears from the witness statement made by the claimant’s solicitor
on 23 July 2002, by the belief that:
“Mrs Al-Bassam is entitled to at least one third of the
deceased’s worldwide estate. The Defendant clearly has
knowledge as to the identity and whereabouts of the assets
in the Deceased’s estate. . . . There is every reason to think
that he has already put some of the assets of the deceased’s
estate beyond Mrs Al-Bassam’s reach or that he intends to
deal with those assets in that way in the future.”
The belief, or assertion, that the claimant was entitled to at least one third of the
deceased’s worldwide estate is, of course, founded on the premise that, even if the
defendant were to succeed on the issue of domicile, the will would be effective,
under Islamic law, to dispose of one third of the worldwide estate. That premise,
itself, rests on the propositions (i) that the will was duly executed – which
supposes that the issues of signature, attestation, knowledge and approval and
freedom from undue influence will be determined in the claimant’s favour – and
(ii) that the defendant’s challenge to substantive validity – on the grounds that the
will offends against fundamental Islamic tenets – will fail.
12. As a foundation for that application, and in the same application notice, the
claimant sought to amend further the consolidated particulars of claim by
including an allegation that the defendant had taken possession for his own use of
assets which were comprised in the deceased’s estate. It was asserted that, the
defendant having knowledge of the will and the claimant’s interest thereunder
since at least 14 January 2002, it was unconscionable for him to retain any of the
deceased’s assets and that he was liable to account for assets that were or had been
in his possession as constructive trustee.
13. The defendant’s response to the application of 24 July 2002 was to issue a
counter-notice, dated 26 September 2002, seeking an order that, in advance of the
court’s consideration of the claimant’s application under the notice of 24 July
2002, the court should decide preliminary issues as to the substantive validity of
the will under Islamic law. The issues which the court was asked to decide were
these: (i) is the will invalid under Islamic law because its provisions contravene
that law, in particular in requiring that the deceased’s body be cremated; (ii) is the
will invalid under Islamic law by virtue of the “death-illness” rule; (iii) does the
claimant have any entitlement to one-third or any other proportion of the
deceased’s estate under Islamic law if (either of) those first two questions is
answered in the affirmative; and (iv) would an English grant of representation to
the deceased’s estate, or a declaration by the English court that the claimant is
beneficially entitled to the whole or part of the deceased’s estate under English
law, be recognised as valid and enforceable under Saudi Arabian law.
14. At first sight, the defendant’s suggestion that it could be appropriate to decide the
first three of those issues in advance of any decision on domicile or due execution
of the will, might seem misconceived. Those issues could not arise, in the context
of the proceedings before the English court, unless (i) the claimant succeeded on
the issue of due execution and (ii) failed on the issue of domicile. If the claimant
failed to satisfy the court that the will was duly executed, there would be nothing
left in the proceedings. Questions of Islamic law would never arise. And if the
claimant succeeded on that issue, and satisfied the court that the deceased died
domiciled in England (or, it seems, in India), questions of Islamic law would be
irrelevant to substantive validity and succession.
15. The real object of the defendant’s counter-notice was to persuade the court that
nothing which it might eventually decide would have any effect in relation to
those assets which were situate in Islamic law jurisdictions – because its decisions
would not be recognised in those jurisdictions – and so the defendant should not
be put to the trouble of complying with any order that might otherwise be made
under the claimant’s notice of 24 July 2002. That is made clear by two sentences
in a witness statement, dated 26 September 2002, made by the defendant’s
solicitor in support of the counter-notice:
“. . . The relief sought by the Claimant on her application is
so wide as to require the Defendant to carry out expensive
and burdensome investigative work in circumstances where
the Claimant can have no possible claim under Islamic law
to any assets of the deceased’s estate which may be situate
in Islamic law jurisdictions.
In consequence of the advice received by the Defendant, it
is my view that the work that the Defendant would need to
do to comply with the Order sought by the Claimant and the
embarrassment that would be caused to the Defendant and
his family as a result of any freezing order, are wholly
unnecessary” [emphasis added]
16. That passage must be read in the light of passages in two earlier witness
statements made by the same solicitor. In the first (dated 6 September 2002) he
had said this:
“. . . Even if the will was executed by the Deceased it would
not be recognised under Islamic law in any jurisdiction
where that law would be applied to succession to the
deceased’s estate. This includes, amongst other
jurisdictions, Saudi Arabia and Kuwait.
Moreover as between the United Kingdom and the Arab
states (including Saudi Arabia and Kuwait) there are no
reciprocal enforcement of judgment treaties or
arrangements such that if the Claimant succeeded in her
claim in English proceedings, any judgment in her favour in
such proceedings would be recognised and enforced. Her
claim would fall to be governed by Islamic law and would
not, for the reasons stated above, be recognised.”
In the second witness statement (dated 23 September 2002) the solicitor described
a meeting with the Head of the Social Rights Department of the Ministry of
Interior of Saudi Arabia. The witness statement contains the sentences:
“His Excellency confirmed that he had reviewed a copy of
the Will and that the Ministry of Interior had decided the
Will is null and void.
His Excellency confirmed that if an English court ruled that
the Deceased was domiciled in England such a judgment
would have no influence on the decision which has already
been reached by the Ministry of the Interior that the
Deceased was a Saudi Arabian national at the time of his
death.”
17. It is said, of course, that decisions of the Ministry of the Interior do not bind the
courts in Saudi Arabia. But the evidence contained in the witness statement of 23
September 2002 must have been put before the court in these proceedings for a
purpose. As I have said, the purpose, in the present case, was to persuade the court
that there was no point in making the order sought by the claimant in her
application of 24 July 2002; because no order the court might make (either on that
application, or on the determination of the proceedings) could have any effect in
relation to assets in Islamic law jurisdictions. That overlooked, perhaps, (i) that
the defendant had submitted to the jurisdiction of the English court, (ii) that he
had, himself, invited the English court, by counterclaim in these proceedings to
declare that he was the sole heir to the whole of the deceased’s estate (wherever
situate) and (iii) that the order would operate in personam – and so would be
enforceable against the defendant personally.
18. The claimant’s application and the defendant’s cross application came before Mr
Justice Hart at the beginning of October 2002. By an order made on 6 November
2002 the judge dismissed both of those applications. He refused permission to
appeal. Permission to appeal was granted to the claimant by this Court (Lady
Justice Arden) on 28 November 2002. The appeal was fixed for a hearing on 23
July 2003.
19. The defendant did not seek to appeal Mr Justice Hart’s order of 6 November 2002.
He commenced proceedings in the Shari’a court at Riyadh, in Saudi Arabia,
seeking a determination by that court as to the validity of the will. In substance,
the issues raised by those proceedings were the issues which the defendant had
sought to have determined as preliminary issues in the existing English
proceedings.
20. Some three weeks before the claimant’s appeal from the order of 6 November
2002 was to be heard by this Court, the defendant’s solicitors caused notice of the
Saudi proceedings to be served on the claimant in London. The claimant
responded with an application, by notice dated 9 July 2003 in the English
proceedings, for an anti-suit injunction restraining the defendant from continuing
the proceedings which he had commenced in Saudi Arabia. The ground, expressed
in the application notice, was that the initiation and continuation of proceedings in
Saudi Arabia which had the same object and which covered the same issues as the
English proceedings in which the defendant had already taken an active part was
vexatious and oppressive, or an abuse of process.
21. The claimant’s appeal from the order of 6 November 2002 was stood out of the
list pending the determination of her application for an anti-suit injunction. That
application came before Mr Justice Lewison in September 2003. By an order
made on 2 October 2003 he granted relief, substantially in the terms sought,
restraining the defendant from continuing the existing Saudi proceedings and from
instituting further proceedings in Saudi Arabia for the purpose of establishing his
right to succeed to assets comprised within the deceased’s estate, wherever
situated. He granted the defendant permission to appeal from his order, on the
ground that an appeal would raise points of principle and would have a realistic
prospect of success.
22. So it is that the appeals formally before this Court are (i) the claimant’s appeal
(under reference 2002/2410) from the order made by Mr Justice Hart on 6
November 2002 and (ii) the defendant’s appeal (under reference 2003/2227) from
the order made by Mr Justice Lewison on 2 October 2003.
The decision of 6 November 2002.
23. Mr Justice Hart recognised that, on general case management grounds, it would
make little or no sense to try as preliminary issues the questions which were set
out in the defendant’s counter-notice of 26 September 2002. At paragraph 13 of
the written judgment which he handed down on 6 November 2002 he said this:
“I have considerable difficulty in seeing why it should
make sense to try any of these questions as preliminary
issues on general case management grounds. The first three
of those questions would only arise if it were held that the
deceased died domiciled in Saudi Arabia. If he did, then
they are obviously relevant. If he did not, but died
domiciled in England or in India, then they are irrelevant to
the question of succession so far as this court is concerned,
although they might become relevant when considering
whether to make in personam orders against the defendant
in respect of assets forming part of the estate situate in other
jurisdictions. So far as the present form of the proceedings
is concerned, the first question which needs to be decided is
not the content of Islamic law but the question of domicile.”
I should add, by way of explanation, that the judge had already indicated that he
was proceeding on the basis that the will was formally valid – by which I
understand him to mean that he was assuming due execution.
24. The judge observed that the suggestion that it was appropriate to try the questions
of Islamic law as preliminary issues had arisen only as a response to the
claimant’s application for an interim order for disclosure and a restraint on
dealings, and to the amendments to allege constructive trusteeship which she
needed to make to her pleading as a foundation for that order. He identified the
defendant’s objective in the following passage, at paragraph 16 of his judgment:
“. . . [Counsel for the defendant] expected to be able to
establish first that the claimant had no claim to any part of
the estate under Islamic law, and secondly that all relevant
Islamic law jurisdictions would in any case refuse to
recognise or enforce either an English grant of
representation to the claimant or a declaration by this court
of the claimant’s beneficial entitlement to any part of the
deceased’s estate, but would instead apply Saudi Arabian
Sharia law to the question of succession as the law of the
deceased’s nationality. He submitted that making orders as
sought by the claimant would inevitably create a conflict
between the English court and the Saudi Arabian
authorities.”
And he went on, at paragraph 17, to explain the significance, in that context, of
the fourth preliminary issue:
“If, on the hearing of the putative preliminary issue, the
English court were to come to the conclusion that the Will
was void in Islamic law for either of the reasons advanced,
that would not be an end of the matter. The court would
then be faced with the question whether to make the orders
sought pending the trial of the domicile question. As I
understood [counsel’s] submissions, this was the merit
(from his point of view) of the fourth preliminary issue. He
would seek to establish that, even if this court were to
proceed to find that the deceased was domiciled in England
at his death, so that the whole estate fell to be distributed to
the claimant, that result would be of no practical assistance
to her since the order would not be recognised in any
relevant Islamic jurisdiction. Relevant Islamic jurisdictions
for this purpose were jurisdictions in which the deceased’s
assets were now situate”.
25. In his submissions to the judge, counsel for the defendant had relied (as he does in
this Court in a different context) on the proposition that the English court would
recognise a judgment of a court of a relevant Islamic jurisdiction. The proposition
is founded on Rule 131 in Dicey and Morris on the Conflict of Laws (13th
Edition,
2000, page 1025):
“The courts of a foreign country have jurisdiction to
determine the succession to all property of a deceased
person which is situated in such a country. This jurisdiction
is unaffected by the domicile of the deceased.
Such determination will be followed in England.”
It was submitted on behalf of the defendant that, if it could be established on a
preliminary issue that the courts of relevant Islamic jurisdictions would apply the
law of nationality and ignore any order of the English court, it would follow that
the English court would have to acknowledge that the claimant’s case could not
succeed.
26. The judge rejected that submission. At paragraph 18 of his judgment he said this:
“Whatever virtue such an argument may have as a matter of
realpolitik, it is in my judgment conceptually confused. The
conceptual confusion is between the law which the English
court will apply in the exercise of its jurisdiction and the
extent to which the English court will recognise a foreign
judgment. If the deceased died domiciled in England, the
English court will apply English law to the material validity
of the will with the result (in this case) that the English
court would regard the claimant as entitled to the
worldwide moveable estate. If, however, the English court
were faced with the fact that a foreign court had decreed a
different result in relation to moveables within its
jurisdiction, the effect of Dicey Rule 131 would be that the
English court would recognise that judgment in working out
the consequences of its own ruling. Such recognition would
only be afforded to the foreign judgment if it complied with
the basic requirements of English private international law
for that purpose. It is quite possible to envisage
circumstances, therefore, in which the application of
English choice of law rules and English recognition of
judgments rules produce an apparent conflict as to the
destination of the relevant foreign moveables. The conflict
is resolved, I would suggest, by recognising the foreign
judgment. But unless and until the English court is faced
with a foreign judgment which its own rules bind it to
recognise, it must simply apply its own choice of law rule
[emphasis added]. In the case of the will of an English
domiciliary that rule is quite clear: English law must be
applied. There is no scope for the English court to say that
English law only applies to moveable outside the
jurisdiction of a court which might, if asked in suitably
constituted proceedings, apply a different law. To hold
otherwise would simply be to disobey the English choice of
law rule.”
He pointed out that, in the circumstances which he had to address, the conflict
between the English choice of law rule (Dicey Rule 137) and the English
recognition rule (Dicey Rule 131) had not yet arisen. There was no judgment in a
relevant foreign jurisdiction which called for recognition.
27. In the light of that analysis – which, if I may say so, seems to me correct – the
judge observed that determination of the questions of Islamic law as preliminary
issues in these proceedings “would merely postpone the point at which this court
has to make a decision about whether or not to make the interim orders, without
making that decision an easier one to arrive at”. He pointed out that “The fact that
the relevant Islamic jurisdictions would not recognise any order of this court
which applies a law other than the law of nationality will be the case (if it is the
case) in relation to whatever order this court makes at any stage”. So, even if the
claimant were to succeed on the first two of the proposed preliminary issues
(cremation and “death-illness”) and so establish some entitlement as a beneficiary
interested in the deceased’s estate, the interim orders would or might,
nevertheless, be of no practical benefit to her. The question of practical benefit
would turn on whether the orders would be recognised in each of the jurisdictions
in which moveables were situate; and, as to that, the judge observed, at paragraph
22 of his judgment, that “since the defendant has kept resolutely silent as to
where, outside the jurisdiction, any assets of the estate are located, . . . , I do not
think I am able to draw any sensible inference as to the location of assets, either
now or at the date of death”.
28. Having decided that there was no merit in deferring consideration of the
claimant’s application for interim relief until after the determination of the
questions of Islamic law, the judge turned to consider the claimant’s application
“on its merits”. He observed that the allegations which the claimant sought to
make by amendment to her pleadings advanced a case “that the defendant knows
where relevant assets are, has taken control of them, is refusing to give the
claimant any information concerning them, and is dealing with them in a manner
inconsistent with the claimant’s beneficial entitlement”. He accepted that there
was material before the court which supported the first three of those allegations,
but described the fourth as “a matter of pure inference from the first three”. He
pointed out that the claim that the defendant was liable to account to the claimant
in relation to assets under his control was based on her assertion of rights as a
beneficiary (not of rights conferred by the limited English grant ad colligenda
bona which she had obtained) and that there was nothing unconscionable in the
defendant resisting that claim if he were correct in his stance that, as the heir
under Islamic law, he was not required, under that law, to recognise her rights as a
beneficiary. He was not required to recognise that she had rights as a beneficiary
unless and until she established the validity of the will under Islamic law; and that
– on his case – was something she would not be able to do so, either in the English
court or elsewhere.
29. On the basis of that analysis the judge posed the question whether it was
appropriate to order the defendant to account in advance of any determination of
the claimant’s entitlement. He answered that question in the negative. He said this,
at paragraph 30 of his judgment:
“If the claimant does succeed in establishing her
entitlement, the court will at that stage no doubt be invited
to make in personam orders for accounts and inquiries
against the defendant. If, as the claimant fears, she is met at
that stage with the same degree of non-disclosure and non-
cooperation which has been experienced to date the court
will then have to consider the means by which practical
effect will be given to its orders. What I find difficult to see
is how the claimant’s position will be protected by making
interim orders to the like effect at this stage. Whether or not
the defendant purports to comply with them it is probable
that the process of enforcing or verifying the compliance
would be time-consuming and expensive, and would
distract from the resolution of the real issues at stake in the
proceedings. The defendant has already had ample time in
which to make the dispositions which the claimant fears.
There is no evidence that intervention by the court now
would result in the position being materially different in the
future from what it now is. For those reasons I decline to
make the interim orders sought or to allow the claim to be
amended so as to introduce at this stage the claim that the
defendant is liable to account as a constructive trustee.”
The decision of 2 October 2003
30. As I have said, the claimant appealed from Mr Justice Hart’s order of 6 November
2002; but the defendant did not cross-appeal from so much of that order as
dismissed the application for the trial of preliminary issues. Instead – mindful,
perhaps, of Mr Justice Hart’s analysis of the distinction between the application of
English choice of law rules and the English rules as to the recognition of foreign
judgments – the defendant commenced proceedings in Saudi Arabia. The claimant
applied for injunctions restraining the defendant from continuing those
proceedings and requiring him to discontinue those and any other proceedings
begun by him to establish the validity (or invalidity) of the will or the succession
to the deceased’s worldwide estate. On 2 October 2003 Mr Justice Lewison made
a restraint order substantially in the terms sought. He stopped short of requiring
the defendant to discontinue the Saudi proceedings (pending the final outcome of
an appeal from his order); but directed that no steps be taken in those proceedings
other than those necessary to procure an adjournment.
31. The judge reminded himself of what was common ground between the parties;
and of what was in dispute. At paragraphs 8 and 9 of his judgment he said this:
“It is common ground that the deceased was a Saudi
Arabian national at the date of his death. It is common
ground that, so far as the Saudi Arabian court is concerned,
succession to moveables situated in Saudi Arabia would be
governed by Saudi Arabian law. It is common ground that
Saudi Arabian law will not recognise a decision of the
English court and that there is no treaty between this
country and Saudi Arabia for the reciprocal enforcement of
judgments. It is also common ground that, under Shari’a
rules of succession, there is no need for a grant of probate
or other court intervention to give title to the Koranic heirs
to the assets of a deceased. It is also common ground that
the defendant is the deceased’s sole heir; he does not
therefore need the intervention [of] the courts of Saudi
Arabia to take control of such of the deceased’s assets as
are within that jurisdiction.
However, there is a dispute about the validity of the will. If
the will is valid under Shari’a law, a Saudi Arabian court
would hold that the defendant is entitled to two thirds of the
assets in Saudi Arabia. If it is invalid under that law, the
defendant would be entitled to all the assets in Saudi
Arabia. That dispute must be tried somewhere.”
The judge observed, at paragraph 16 of his judgment, that the claimant had “a
plainly arguable case” both on domicile and on the substantive validity of the will
under Islamic law.
32. The judge reminded himself, also, of the principles which should govern the
exercise by the English court of its undoubted jurisdiction to grant an anti-suit
injunction; in particular, he reminded himself of the guidance given by Lord Goff
of Chieveley, first in Société Nationale Industrielle Aerospatiale v Lee Kwee Jak
and another [1987] 1 AC 871, 892A-893C, 894A-H, 896F-H and, more recently,
in Airbus Industrie GIE v Patel and others [1999] 1 AC 119, 138G-H, 140B-D.
He addressed the questions (i) whether the defendant had submitted to the
jurisdiction of the English court and (ii) whether the English court was the natural
forum in which to resolve the disputes between the parties.
33. He answered each of those questions in the affirmative. In relation to the first he
said this, at paragraph 19 of his judgment:
“. . . by making his independent counterclaim and seeking
declarations as to the validity of the will in Shari’a law, the
defendant has submitted to the jurisdiction and he
reinforced that submission by seeking trial of those
questions as preliminary issues. I therefore accept
[counsel’s] submission that a reasonable bystander would
have assumed that, at least until the beginning of July this
year, the defendant was content for an English court to try
the questions of Shari’a law on expert evidence.”
He recognised that there was much to be said for having questions of Shari’a law
decided by Shari’a courts, who would be more likely than an English judge “to be
fully sensitive to the nuances of Islamic law, based (as they are) on the religious
beliefs of Islam”. Nevertheless, that point was weakened by the defendant’s
readiness, in the English proceedings, to submit those questions to adjudication by
an English judge; and there were many factors (which he identified) which
pointed to proceedings in England. He concluded:
“Questions of Shari’a law will only arise in the English
proceedings if the English court finds that the deceased died
domiciled in Saudi Arabia. If the court finds that the
deceased died domiciled in England, it will apply the law of
domicile to assets over which it has jurisdiction. Thus, if the
defendant succeeds on the question of domicile, he has no
need of a judgment of the Saudi Arabian courts.”
I confess that I do not find the logic of the final sentence in that conclusion easy to
follow. It may be that the judge is saying no more than that, if the English court
finds that the deceased died domiciled in Saudi Arabia it will, itself, determine the
substantive validity of the will in accordance with Islamic law; so that there will
be no need of any further judgment in Saudi Arabia.
34. The judge then turned to the question whether an anti-suit injunction would
deprive the defendant of a legitimate advantage. He identified the advantages to
the defendant in proceeding in Saudi Arabia under three heads: (i) the defendant
would have questions of Shari’a law decided by Shari’a judges, (ii) he would be
entitled to at least two-thirds of the deceased’s assets located in Saudi Arabia and
(iii) he could expect that, if he obtained a judgment in Saudi Arabia before the
English court had itself given judgment, the English court would recognise that
judgment as regards Saudi Arabian assets. In relation to the third of those heads,
the judge indicated two caveats. First, there was no clear judicial authority for the
proposition – derived from Dicey Rule 131 – that the English court would
recognise the judgment of a Saudi Arabian court in relation to moveable situated
in that jurisdiction. Second “the English court may be concerned to ascertain
whether the claimant’s human rights, and in particular her right to a fair trial, have
been infringed”.
35. The judge’s concern that an English court might deny recognition of the judgment
of a foreign court - on the grounds that the proceedings in the foreign court had
been inconsistent with the Convention right to a fair trial – was prompted by his
analysis of the decision of the European Court of Human Rights in Pelligrini v
Italy (2002) 35 EHRR 2. He referred, also, to two decisions in the English courts –
Lubbe and others v Cape plc [2000] 1 WLR 1545 (HL) and Marioner v Larmer
[2002] EWCA Civ 774, [2003] QB 620 – which, as he held, reinforced that
concern. That led him to consider, in some detail, whether there was a real
possibility that the defendant would not receive a fair trial in the proceedings
which the defendant had commenced in Saudi Arabia.
36. In addressing that question the judge referred to a number of reports from the
usual competent bodies – the Foreign & Commonwealth Office, Amnesty
International and the State Department of the United States of America – and to a
report by the special rapporteur from the United Nations. Those reports
emphasised that the independence of the judiciary in Saudi Arabia was prescribed
by law and was generally respected in practice; although concerns were expressed
as to the freedom of the judiciary from influence from the Ministry of Justice and
from high-ranking members of the Saudi Royal Family and their associates. As
the special rapporteur put it: “certain structural conditions exist that could
potentially undermine that independence”. The judge had evidence, also, from two
practitioners in Saudi Arabia and from a respected academic to the effect that the
Saudi Arabian judiciary is independent. He observed that the claimant had
adduced no evidence from an expert to cast doubt upon the integrity of the Saudi
Arabian legal system. But, as he put it, “I am not called upon to decide which of
those competing views is correct”. He directed himself, at paragraph 29 of his
judgment, that “the test is at the lower threshold, of a real possibility, that is a
possibility which is not fanciful”.
37. Adopting that test, the judge held, at paragraph 33 of his judgment, that there was
“more than a fanciful possibility that the claimant will not receive a fair trial
according to the standards of the European Convention on Human Rights”. In
reaching that conclusion he gave weight to four factors: (i) the views attributed to
the Head of the Social Rights Department of the Ministry of the Interior (to which
I have referred earlier in this judgment); (ii) the possibility that the outrage caused
to Islamic sensibilities by the cremation of the deceased (on which the defendant
laid great stress) “might well influence a Shari’a court in rejecting the will
entirely”; (iii) the position of the Al-Bassam family “as being within the category
of associates of the Royal Family; and (iv) “the lack of weight given [in the
Shari’a court] to the evidence of a woman and of non-Muslim witnesses”.
38. The judge did not regard the possibility that the claimant would not receive a fair
trial according to the standards of the European Convention on Human Rights as
determinative of the question whether to grant the anti-suit injunction which she
sought. It was a factor which (as he said) he was “entitled to take into account in
deciding to grant the claimant the relief she seeks”. As I have said, he recognised
that there were legitimate advantages of which the defendant would be deprived if
he were restrained from continuing his proceedings in Saudi Arabia. He asked
himself whether it would be unjust to deprive the defendant of those advantages.
He answered that question at paragraph 45 of his judgment:
“In my judgment, the advantage which the defendant would
gain from prosecuting his proceedings in Saudi Arabia is
not one of which it would be unjust to deprive him, having
regard to the nature of the advantage, the reasonable
concerns of the claimant about her ability to conduct
proceedings effectively in Saudi Arabia and to have a fair
trial, the stage at which the current action in England has
reached and the defendant’s overall conduct.”
It was for that reason that the judge made the order that he did.
The need for case management directions
39. As I have said, there are formally before this Court the claimant’s appeal from the
order made by Mr Justice Hart on 6 November 2002 and the defendant’s appeal
from the order made by Mr Justice Lewison on 2 October 2003. During the
hearing of the appeals, however, it emerged that the real issue between the parties
was whether questions of Shari’a law should be decided in the English courts or in
the Shari’a court at Riyadh. And, on further analysis, it became clear that that
issue did not need to be decided at this stage.
40. If the issues as to due execution raised by the defendant in the English
proceedings were determined against the claimant, she would have no claim under
the will and issues as to its substantive validity would fall away. If the claimant
were to succeed on the issues as to due execution and were to establish that the
deceased died domiciled in England, issues as to the substantive validity of the
will would be determined by English domestic law. In those circumstances, as Mr
Justice Hart pointed out in a passage from his judgment to which I have already
referred, the questions of Islamic law on which the defendant relies (cremation,
“death-illness”, exclusion of the Muslim family) would be irrelevant to
substantive validity and succession in the English court; although, as he said,
“they might become relevant when considering whether to make in personam
orders against the defendant in respect of assets forming part of the estate situate
in other jurisdictions”. The position would (I think) be much the same if the
claimant were to establish her alternative case - that the deceased died domiciled
in India. It is only if the claimant succeeds on due execution but fails on domicile
that it will become necessary for the English court to determine those questions of
Islamic law in order to reach a decision on substantive validity and succession.
41. Further, the determination of issues of Islamic law by the Shari’a court at Riyadh
at this stage would not obviate the need to proceed to a trial in the English
proceedings on the issues as to due execution and domicile. It would remain
necessary to decide those issues in order to determine, in the present proceedings,
the right to succession to assets situated this country and in other non-Islamic
jurisdictions, whatever the decision in the Saudi proceedings. The determination
of those issues in the Saudi proceedings will be of relevance to the English
proceedings (if at all) only after the issues as to due execution and domicile have
been decided. As I have said, if the claimant succeeds on due execution but fails
on domicile, it will become necessary for the English court to determine questions
of Islamic law in order to reach a decision on substantive validity and succession.
In that event I am prepared to assume (without deciding the point) that the English
court would consider itself bound, in the light of Dicey Rule 131, to recognise and
follow any determination of the same questions already made by the Shari’a court.
And, if the claimant succeeds on domicile, the English court might be expected to
have regard to a judgment in the Shari’a court when deciding whether (and, if so,
how) to give effect to its decision by orders in personam against the defendant.
But those are not matters which will arise in the English proceedings until after
the issues as to due execution and domicile have been decided.
42. What is required, therefore, are case management directions which will have the
effect of bringing before the English court the issues which that court can, and in
the wider context of this litigation should, decide before addressing issues of
Islamic law; so that, in the light of the decision of the English court on those
threshold issues, a decision can be made whether the English proceedings should
then be dismissed, or stayed until issues of Islamic law (in so far as they remained
live in the English proceedings) are determined in the Saudi proceedings, or
should proceed on the basis that those issues will be decided in the English court
with the assistance of expert evidence.
43. With some encouragement from the Court, counsel for the claimant applied to
amend his appellant’s notice so as to seek directions for the trial of preliminary
issues. We indicated that we would allow that application to amend. The
application for directions should be remitted to a judge of the High Court. We
were told that four weeks have already been set aside for the hearing of these
proceedings in October 2004. There is no reason to think that a trial of the
threshold issues could not be accommodated within that existing slot. The judge
will wish to consider whether, in addition to the threshold issues as to due
execution and domicile, it would be sensible to resolve the marriage issue at the
same hearing.
The disposal of these appeals
44. The question for this Court, therefore, is how properly to dispose of the two
appeals now before it in circumstances in which the High Court may be expected
to give directions for the trial of what I have described as the threshold issues of
due execution and domicile within the next four months.
45. I would allow the appeal from the order of 2 October 2003 to the extent of setting
aside the indefinite or perpetual restraint imposed by paragraph 1 of that order. It
seems to me impossible to support a final order restraining the defendant, for all
time, from continuing the proceedings which he has commenced in Saudi Arabia;
whether on the judge’s reasoning or on other grounds urged on behalf of the
claimant on this appeal. The judge was correct to voice his concern that the
judgment of a foreign court, given in proceedings which, in the eyes of the
English court, had failed to meet the requirements of a fair trial, would not be
recognised here. But that, as it seems to me, is because, in deciding whether to
recognise a foreign judgment, the English court will apply its own recognition of
judgment rules and will have regard to its own obligation to act in a manner which
is not inconsistent with the Convention right to a fair trial.
46. The question whether or not the English court should recognise the foreign
judgment arises after the foreign judgment has been given. At that stage it can be
seen whether the proceedings in the foreign court did, or did not, meet the English
recognition of judgment rules. For the English court to restrain a party from
continuing foreign proceedings – either because it fears that those proceedings
will not lead to a fair trial or on the grounds of concern that, if that fear turns out
to have been well founded, it will not be able to recognise the foreign judgment –
goes well beyond anything necessary to protect its own process. It is not for the
English court to restrain a party in proceedings before it from suing in another
jurisdiction on the grounds of its own perception as to the fairness or unfairness of
proceedings in that other jurisdiction – a fortiori, where the country in which the
party seeks to sue is not itself bound by the European Convention. In so far as the
judge, when granting the anti-suit injunction in the terms that he did, allowed
himself to be influenced by a perception that the claimant would, or might, not
receive a fair trial in Saudi Arabia, he exercised his discretion on a basis which, as
it seems to me, was seriously flawed.
47. In those circumstances, it is for this Court to exercise its own discretion. But it is
not necessary to decide what this Court would, or should, have done if the matter
had been before it in October 2003. The question for this Court is whether an anti-
suit restraint (and, if so, in what terms) should be imposed in the circumstances as
they now are. I would impose an interim restraint until after the determination by
the High Court (or further order in the meantime) of what I have described as the
threshold issues of due execution and domicile. I would do so on the basis that a
limited restraint of that nature deprives the defendant of no legitimate advantage
and is necessary to protect the process of the English court from misuse.
48. The defendant has not shown any reason why he needs an order of the Shari’a
court at Riyadh within the next few months – that is to say in the period before the
English court has determined what I have described as the threshold issues of due
execution and domicile. In those circumstances, to require the claimant to contest
proceedings in Saudi Arabia at a time when she needs to be devoting her time and
resources to the preparation of her case for a trial in England of the threshold
issues may be seen as oppressive. It is pertinent to keep in mind that the threshold
issues are issues which the defendant is content to have tried in England; and
which are not raised in the Saudi proceedings. In my view a limited restraint is
needed to protect the process of the English court from misuse.
49. I would dismiss the appeal from so much of the order of 6 November 2002 as
dismissed the claimant’s application for disclosure of assets, for a restraint on
dealing with assets and for the provision of authority to enable the claimant to
have access to overseas assets – that is to say, for the relief sought in paragraphs
(1), (2) and (4) of the draft order annexed to the application notice of 24 July
2002. It seems to me that Mr Justice Hart was plainly right to refuse that relief for
the reasons which he gave. I note that the defendant indicated through counsel at
the hearing of the appeals that he was willing to provide to the claimant’s
solicitors a summary of the assets of the deceased’s estate by location; and to
lodge with the court (to be released to the claimant with the court’s permission if
and when she were found to be entitled to inherit all or part of the deceased’s
foreign estate) an affidavit identifying in detail the assets of which he had
knowledge. On that basis I understand that the claimant is content not to pursue
her application for disclosure and a restraint order at this stage.
50. By her application of 24 July 2002 the claimant sought the relief set out paragraph
(3) of the draft order – that is to say, an order requiring the defendant to transfer to
her assets of the deceased’s estate situate in England and Wales which are in his
possession or under his control. The judge did not address that head of relief; nor
was it pursued as a separate head on the appeal. It may be that the claimant
accepts that there are no assets of the deceased’s estate now within this
jurisdiction which are in the defendant’s possession or under his control. For my
part, I do not find it easy to see why the claimant should not be entitled, in her
right as the person having a grant ad colligenda bona in respect of the deceased’s
estate in England and Wales, to have transferred to her assets of the estate now
within the jurisdiction. But, as the point has not been pursued in this Court, I need
say no more about it.
51. I would allow the appeal from so much of the order of 6 November 2002 as
dismissed the claimant’s application to amend her particulars of claim – paragraph
(5) of the draft order annexed to the application notice of 24 July 2002. It seems to
me that there is force in the criticism that, in dismissing the application to amend,
the judge has elided the question of amendment with the related (but distinct)
question whether, if the amendment were allowed, it would be appropriate to
make the disclosure and restraint orders sought. Having decided (correctly, as I
would hold) not to make orders for disclosure and restraint, he appears to have
lost sight of the need to consider whether (absent such orders before trial) the
claimant should nevertheless be allowed to pursue, at trial, a claim based on
allegations of constructive trusteeship. Had he considered that as a discrete
question he would, I think, have been compelled to the view that there was no
reason why she should be shut out from pursuing that claim.
52. In that context it is pertinent to note that the judge, himself, raised the question
whether the proposed amendment should be rejected for want of jurisdiction. He
pointed out (at paragraph 15 of his judgment) that, if the claims sought to be
introduced by amendment had been advanced in a separate action, the claimant
would (absent submission to the jurisdiction by the defendant) need to satisfy the
requirements of CPR6.20 in order to obtain permission to serve proceedings out of
the jurisdiction. But the judge seems to have been satisfied on that point by the
submission, made by counsel for the claimant, that the new claims fell within the
compass of the claims in respect of which the defendant had already conceded
jurisdiction to the English court – those claims having included a claim for an
order “that the estate of the deceased may be distributed in accordance with the
terms of the Will”. The judge recorded that the contrary was not argued by
counsel for the defendant.
53. In the course of the hearing of the appeals the defendant sought to raise want of
jurisdiction as an answer to the application to amend the particulars of claim.
After some hesitation counsel sought permission to file a respondent’s notice upon
which to base a challenge to the judge’s decision not to dismiss the application to
amend on that ground alone. For my part I would refuse permission to introduce
the point at this stage. It is common ground that a jurisdictional challenge was not
pursued before the judge; it was raised only at a late stage before this Court. I am
not persuaded that, if fully argued, it would have had any real prospect of success.
It seems to me that, for whatever reason, the defendant was content, in 2002, to
have disputes as to the entitlement to assets in his late brother’s estate (wherever
situated) resolved in the English court. He should not, now, be permitted to resile
from that position.
Conclusion
54. I would allow the appeal from the order of 6 November 2002; but only in respect
of the judge’s refusal to allow the amendments to the particulars of claim. I would
allow the appeal from the order of 2 October 2003 to the extent indicated in this
judgment. In place of the indefinite and perpetual restraint imposed by paragraph
1 of that order, I would impose an interim restraint until after the determination by
the High Court (or further order in the meantime) of what I have described as the
threshold issues of due execution and domicile.
Lord Justice Carnwath:
55. I agree.
The Vice-Chancellor:
56. I also agree.
Order: Appeal allowed. A minute of order to be lodged with court.
(Order does not form part of the approved judgment)