Sharab v HRH Al-Saud

In this case the Claimant Daad Sharab (“Mrs Sharab”) claims the sum of $10m plus interest she contends was an agreed commission payable on the sale of the Defendant’s Airbus (“the Airbus”) for a sum of $120m to a Libyan entity for the use of Colonel Gaddafi, formerly the President of Libya. Further or in the alternative there is a claim for a contractual quantum meruit.

Mrs Sharab is a Jordanian national who was born in Saudi Arabia where she lived until she was 18 years old. She is an international business woman. She has a London residence comprising a flat in Welbeck Street where she ordinarily spends at least 3 months a year.

She runs her own consultancy business namely TAWCO (the Trans Arab World for Commercial Mediation) of which she is a director and the chairwoman. She provides commercial introductions between parties. She acts as an intermediary. She owns 100% of TAWCO a Jordanian company which has offices in Amman in Jordan.

The Defendant (“the Prince”) is one of the richest men in the world. The front cover of his autobiography published in 2005 refers to his being the 5^th richest man in the world. He has an estimated fortune of over $20 billion with extensive and substantial business interests throughout the world including through his company Kingdom Holding Company hotels such as the Savoy in London, the George V in Paris and extensive shareholdings in businesses in the West.

The specific quality that Mrs Sharab brought to this transaction was her undoubted close connections with Colonel Gaddafi. She set out in her witness statement how these close connections developed and it was not disputed by the Prince.

The case is in respect of the sale of the Airbus which belonged to the Prince to Colonel Gaddafi. It was sold for $120m and the Prince whilst acknowledging that Mrs Sharab did a lot of work in respect of achieving the sale (and indeed reviving it when it became difficult) has not paid her anything. This has led to the present litigation where Mrs Sharab claims $10m as a fixed price or alternatively a reasonable sum under the contract for her services.

It is interesting to note the way in which the case was put by Mrs Sharab and how the Prince responded.

Mrs Sharab’s present solicitors wrote a letter before action to the Prince on 17^th October 2006. In that letter it was stated that the Prince agreed in the summer of 2002 that in consideration of Mrs Sharab facilitating all necessary introductions and assisting in the negotiations leading to the purchase by the Libyan Arab Foreign Investment Company (LAFICO) in September 2006 when the final payment of the total agreed purchase price of $120m was paid that he would pay to Mrs Sharab $10m. In view of the non payment the letter went on to inform the Prince that proceedings would be issued in London if the payment was not received in full by close of business 31^st October 2006.

The Prince’s solicitors Hogan & Hartson replied by a letter dated 19^th October 2006. In the second paragraph it simply asserted that the Prince did not enter into an agreement as alleged in Mrs Sharab’s lawyer’s letter. It also stated that they understood that Mrs Sharab played no part in the ultimate sale of the aircraft in question and there is no basis for any sum due to her.

The third paragraph set out the stance that would be taken to challenge the jurisdiction of the claim. No payment was made and the proceedings ensued.

After setting the background of the Prince and herself and his agent Mr Fouad Alaeddin (“Mr Alaeddin”) a managing partner at the time in Ernst & Young based in that firm’s Riyadh office in Saudi Arabia she made reference to the dealings she had with the Prince having been introduced to him by Mr Alaeddin in 1997. The last important one was her negotiating with LAFICO in relation to a hotel development for the Prince between November 1999 and February 2001. Her case was that the Prince agreed that she would receive a commission for so doing and she was paid in full the sum of $500,000 on 27^th February 2001 when the Prince endorsed a bankers draft in her favour.

In paragraph 13 of her Amended Particulars of Claim she said there was an oral agreement made on 25^th August 2001 between Mr Alaeddin and herself at the Ayoush Restaurant James Street London to sell one of the Prince’s aircraft he having at that time a Boeing and the Airbus. She said it was already agreed that she would receive a fee of $2m if she affected a sale of either of the aircraft. She said that separately it was agreed that she would try and secure Libya’s investment in a project Toushca for which if successful she would receive a separate fee of $1m. This was an agricultural project in one of the Prince’s companies in Egypt which was being run by one of his companies the Kingdom Agricultural Company (“KADCO”).

She says that agreement was made as a result of the Prince telephoning her in early August 2001 and stating he had an Airbus and a Boeing and he wished to sell one of them. He invited her to meet him in Cannes. As a result of that on or about 7^th August 2001 she met the Prince on his yacht in Cannes where he repeated the fact that he wished to sell one or other of them as he said he had just ordered another aircraft. There is an issue about this aircraft as will appear in this judgment. She says that the Prince told her that one or other of the aircraft would need to be sold to a President or someone similar because of its specification and he suggested that Colonel Gaddafi was an obvious choice because he did not have an aircraft. Further he said he had heard that the Prime Minister of Lebanon had sent him a plane for viewing. She said that the Prince offered to pay her for so doing although the amount of commission was not discussed and he said that she should not start negotiating yet until such time as a new plane was ready and that was likely to be a considerable period of time.

Thereafter Mr Sharab pleaded that the Prince sent Mr Alaeddin to London on 25^th August 2001 and the sole purpose of his visit was to finalise the terms upon which she would act and that led to the agreement she says.

Mrs Sharab pleaded that she did not hear anything from the Prince until he telephoned her in August 2002 and instructed her to proceed with the negotiations. Thereafter she arranged a meeting with Colonel Gaddafi on or about 21^st January 2003 who expressed an interest in purchasing the Airbus rather than the Boeing but said he would need to see the aircraft before doing so. A couple of days later she telephoned the Prince from Libya explaining that he would need to send both aircraft to Libya for viewing.

Subsequently by arrangement on or about 10^th April 2003 the Prince arrived in Libya with both aircraft where the Claimant had been waiting since 5^th April 2003. Colonel Gaddafi picked the Airbus but insisted that it be left in Libya if he was to buy it as once it became known that he wished to do so there would otherwise be a risk that the aircraft would be interfered with outside Libya. He also asked the Prince to send Mrs Sharab and Mr Alaeddin to conduct the negotiations. Mrs Sharab says the Prince agreed to leave the Airbus in Libya while the price was negotiated by her with Mr Alaeddin.

The Prince then left Libya the same day in the Boeing. Mrs Sharab says that whilst his belongings were being transferred from the Airbus to the Boeing there was further discussion between her and the Prince whilst they were in the Boeing. She says that the price was varied so that she would receive a margin of the sale price. She says that the Prince agreed the following:-

Mrs Sharab contends that she had meetings with Colonel Gaddafi and ultimately on or about 18^th June 2003 succeeded in persuading him (on behalf of Libya) to buy the Prince’s Airbus for $120m and to commit $20m to project Toushca. She says that she sought reconfirmation of her entitlement to $10m something she had communicated to Mr Alaeddin. She says that on or around 15^th July 2003 she and Mr Alaeddin called the Prince from the grounds of the Corinthiea Bab Africa Hotel in Tripoli where they were staying using a satellite phone. Mr Alaeddin told the Prince that she had been successful in negotiating the deal but that she would only conclude it if he reconfirmed her commission was $10m. The Prince Mrs Sharab says confirmed that with Mr Alaeddin. After the conversation with Mr Alaeddin ceased the phone was handed to her and the Prince said to her “Daad, go ahead, $10m for you is ok”.

That led to two agreements (agreements 1 and 2) executed on or about 19^th July 2003 concluded by Mrs Sharab and Mr Alaeddin for two things. First there was an agreement between the Prince and LAFICO for the purchase of the Airbus in the sum of $70m. Second there was an agreement between KADCO and the Libyan Agriculture Investment Company (“LAICO”) in the sum of $70m, $20m of which was to be invested in project Toushca and $50m of which was to be paid to the Prince for the balance of the money owed for the Airbus.

That second agreement was drafted without reference to the fact that a substantial part of the apparent investment in KADCO was payment for the Airbus.

In or about August 2003 the Prince telephoned Mrs Sharab and confirmed that he had received the first payment of $70m. She asked him to pay her 50% of the commission but he refused telling her he would pay her full commission once he had received the full amount of $120m.

LAFICO failed to pay the second payment of $50m under the agreement or any further sum. Efforts were made by the Prince, Mr Alaeddin and Mrs Sharab to persuade Libya to pay the balance due. In December 2003 the Prince telephoned Mrs Sharab and informed her he had still not received the $50m and he asked her to visit Colonel Gaddafi to persuade him to pay the remaining monies which she did travelling on or about 18^th December 2003. She delivered to him a hand written letter dated 13^th December 2003 from the Prince concerning the Airbus sale and the investment in project Toushca.

On 15^th February 2004 there was a meeting with Mr Alaeddin, Mr Shadi the chairman of Afriqiyah Airways at which Mr Shadi notwithstanding his participation in the negotiations sought to maintain that the price of the Airbus was $70m and the balance would not be paid.

During the first week in March 2004 the Airbus was moved from Libya to Germany for maintenance. The title to the Airbus and the responsibility for its maintenance remained with the Prince and the transfer to Germany was by prior arrangement between the Prince and Libya. After the maintenance work was completed the Prince arranged for the Airbus to fly from Germany to Riyadh instead of returning it to Libya without either the agreement of the Libyans or informing them of his intentions.

Thereafter in 2004 there were discussions between Mrs Sharab and Colonel Gaddafi at various meetings in an attempt to resolve the matter. By April 2004 she telephoned the Prince and told him he must either return the aircraft to Libya or repay the first $70m. He replied he would not return the aircraft until the remaining $50m was paid. At the Prince’s request she flew to Libya again on or about 13^th April 2004 and emphasised to the persons involved in the transaction that they should pay the remaining money. However Colonel Gaddafi told her that he thought the Prince had taken the Airbus in bad faith and he no longer wanted it as it had been removed from Libya and had been sitting in an airport in Saudi Arabia without any security. He asked her to tell the Prince to return the first $70m and cancel the deal. Thereafter in May 2004 the Prince sent a letter to Colonel Gaddafi confirming that he would cancel the agreement on the basis that the $70m would be treated as compensation. Unsurprisingly that offer was not accepted.

The matter remained unresolved for another year until on or about 28^th August 2005 when the Prince telephoned Mrs Sharab and asked her to come and meet him at the George V which he owned. Thereafter on or about 30^th August 2005 she met the Prince in the lobby where he kept an informal office and he asked her for assistance in resolving the long outstanding problem. She advised him to go to Libya for Revolution Day and apologise to Colonel Gaddafi for taking the Airbus and he should then leave her and Mr Alaeddin to negotiate a settlement which she says the Prince agreed to. A meeting was arranged with Colonel Gaddafi and on 3^rd September 2005. She flew to Paris with her daughter and they together with the Prince and Mr Alaeddin then flew to Libya.

There was a public meeting which was broadcast on Al-Jazeera television with a subsequent private meeting between the Prince and Colonel Gaddafi at which only Mrs Sharab, her daughter, Mr Alaeddin and the manager of the Colonel’s private office were present (Mr Hijazi).

She says that the subject of the Airbus was discussed and Mr Hijazi became somewhat heated in the conversation with the Prince but that she effected a reconciliation the result of which was that Colonel Gaddafi announced that the plane would be bought finally and that the Prince said that he would leave Mrs Sharab and Mr Alaeddin to finalise it arranging their collection 24 hours later. Thereupon he left Libya.

Mrs Sharab then had a further private meeting attended only by her and her daughter and Colonel Gaddafi in which he agreed with her how to resolve the dispute with the Airbus.

On 4^th September 2005 Mrs Sharab and Mr Alaeddin had a meeting with the Libyan minister of Treasury, the chairman of LAFICO and the chairman of LAICO and Mr Hijazi. The discussions initially proceeded on the footing that the Airbus would not be purchased and the first payment of $70m would be returned by the Prince with a small discount for use.

Ultimately an agreement was concluded that the two agreements would be cancelled and that the Airbus purchase would be completed and the remaining $50m would be paid. Thus Colonel Gaddafi was not investing in the Toushca project. Thereafter the Prince sent an aircraft to Tripoli to collect Mrs Sharab and Mr Alaeddin and on that day the Prince telephoned Mrs Sharab in London and expressed his gratitude for her efforts and success he confirmed he would pay her the commission of $10m and he would send the settlement agreement signed by him to her in order for her to take it to Libya and get it signed by the Libyan parties.

The Prince signed his copy of the settlement agreement in Saudi Arabia on 10^th September 2005 and he telephoned Mrs Sharab the next day and asked her to ensure the Libyans signed the settlement agreement as soon as possible explaining he was keen to close the deal. She said she would only do so if she got the $10m commission as agreed. He confirmed this and stated it would be payable once the outstanding $50m was paid.

After receiving the settlement agreement signed by the Prince Mrs Sharab telephoned him in Saudi Arabia and asked for confirmation that he wished to proceed and would pay the commission. He confirmed this but refused to put it in writing and a few days later she flew to Libya with the settlement agreement and spare parts list in order to obtain the signature of the Libyan parties.

There were various things which Mrs Sharab assisted in but ultimately by March 2006 the settlement agreement had still not been fully implemented. She had been holding the Prince’s counterpart of the settlement agreement effectively in escrow but the Prince bypassed that and in March 2006 obtained a copy of the settlement agreement directly from Libya and made arrangements to receive payment of the $50m outstanding. In September 2006 the Prince transferred the ownership of the Airbus to Libya and LAFICO transferred the $50m to the Prince.

Therefore Mrs Sharab contends she has affected the successful introduction albeit over a lengthy period and she is now entitled to $10m.

That is Mrs Sharab’s version of events.

The Prince’s Amended Defence is a laconic document. It leads no positive case and does not explain what his version of the events is in any significant way. One finds a similar opaqueness when his witness evidence is considered. His case gradually crept out during the course of the trial. For example the Prince’s case as finally presented was that if there was any contract it was agreed on the yacht in Cannes. His case is that the agreement was made in Cannes and was that Mrs Sharab agreed to provide services for him but it was on the basis that any commission due to her would be payable at his discretion. This was clarified during the trial by him accepting that he would have to act reasonably in assessing the compensation. He has determined that she is entitled to no commission despite acknowledging that she made substantial contributions towards the initial opening of the doors to Colonel Gaddafi and the later reopening when the agreement got into difficulties.

However none of that is for me. Mrs Sharab has permission to bring proceedings in this court only in respect of an agreement which she can establish was made within this jurisdiction i.e. the agreement she pleads was struck in the Ayoush Restaurant. If the agreement was struck elsewhere there is no jurisdiction to hear it in these courts although Mr Pymont QC who appears for the Prince accepted in argument that it was part of my jurisdiction to decide whether there has been any such agreement. However I am not allowed to adjudicate on the terms of the agreement despite the fact the Prince repeatedly referred to the term of his discretion and also the fact that he was entitled to determine Mrs Sharab was entitled to no commission because she had “stabbed him in the back” when she went over to the Libyans.

The Prince (doubtless acting on advice) was determined not to submit to this jurisdiction unless he was forced to and equally was determined to say as little as possible about the overall merits.

Thus in responding to the plea of the meeting in Cannes the Prince accepted that the meeting took place but that he did not offer to pay Mrs Sharab as alleged and averred that he told her and she accepted that if she were to achieve a completed sale of one of the aircraft and an investment in project Toushca on terms acceptable to him he would consider making a payment to her but the making and the amount of any such payment were entirely matters for his discretion and would depend on his own assessment of her contribution to achieving such a sale.

What is hidden in that plea is the jurisdictional point that the Prince is saying that the contract if any was concluded in France and therefore out with the jurisdiction of this court.

He admitted the visit to Libya in April 2003 with the two jets and that Colonel Gaddafi had asked him to send Mrs Sharab and Mr Alaeddin to conduct the negotiations.

He admitted there were discussions on the Boeing as alleged in paragraph 19 of the Amended Particulars of Claim but denied there was any agreement as alleged by Mrs Sharab. He does not however say what was discussed.

He admitted that Mrs Sharab carried out negotiations for the sale of the Airbus but denied it was done in furtherance of the Agreement as pleaded. Nevertheless he did not put forward any positive alternative case to explain why she would do this. He admitted that agreements 1 and 2 were concluded but did not admit the precise role of Mrs Sharab and Mr Alaeddin.

The rest of the Amended Defence in respect of the implementation of the agreement and the subsequent settlement agreement follows the same level of lack of clarity.

The Prince challenged the granting of permission given to Mrs Sharab by Lindsay J on 24^th December 2007 and issued an application contending that the court had no jurisdiction to try the claim because it was not the appropriate forum to try it. That application was supported by a witness statement of Mr Baker the Prince’s solicitor dated 10^th March 2008. He had no information from the Prince in relation to matters set out in that witness statement; it was entirely from Mr Alaeddin. Neither the Prince nor Mr Alaeddin provided a witness statement. Mr Alaeddin did not give evidence at the trial before me although he apparently provided a witness statement for the Prince’s side but it was never relied upon. Mrs Sharab’s lawyers do not ask me to draw any adverse inference from Mr Alaeddin’s absence. However it is fair to say that his absence makes the decision in this case one that is basically down to a contest between Mrs Sharab and the Prince as to the events which happened as there are no contemporary documents.

Mr Baker’s evidence is based on the understandings given to his firm by Mr Alaeddin who was quite clearly unable or unwilling to provide any evidence to Mr Baker seriously to counter what Mrs Sharab said happened at the Ayoush Restaurant (see the weak evidence in paragraphs 10-15 of Mr Baker’s first witness statement dated 10^th March 2008) provided some scant evidence.

Mr Baker obtained from the Prince a statement that Mr Alaeddin was never his agent or personal representative and he had never given Mr Alaeddin authority to enter in to contracts on his behalf. Mr Baker submitted in paragraph 28 that the law governing the underlying sale was Libyan law and that the forum should be Libya. Doubtless the Prince was hoping that if that was successful Mrs Sharab’s case would be metaphorically kicked into the judicial long grass of Libya.

The application came before Mr John Powell QC who delivered a detailed judgment on 31^st July 2008. He went through all of the facts that were deposed to by Mrs Sharab in her witness statement and considered those in the light of the limited material put forward on behalf of the Prince.

He concluded that Mrs Sharab had demonstrated a good arguable case that Mr Alaeddin had the Prince’s actual authority to make the contract and the contract was made and varied as maintained by her.

The Prince appealed. On 30^th April 2009 the Court of Appeal dismissed his appeal. The Court of Appeal in so dismissing the Prince’s appeal agreed that the Deputy Judge was right to find a good arguable case and that the evidence before the court as to what happened in Cannes prior to the meeting did not give rise to an agreement but the meeting in London between Mrs Sharab and Mr Alaeddin was sufficient to create a binding contract and that Mrs Sharab had established a good arguable case that Mr Alaeddin had authority to act on behalf of the Prince in making the August 2001 agreement and further that it was a good arguable case that the August 2002 telephone conversation between her and the Prince can be relied upon as providing evidence of that authority and if necessary as a ratification of the earlier agreement. A Court of Appeal assessment of the Deputy Judge’s judgment was that it was (subject to one point which is not relevant) sound (paragraph 59 of the judgment).

The House of Lords refused permission to appeal.

None of these observations bind me as trial Judge. I had the significant advantage of seeing the only 2 witnesses give evidence.

Mrs Sharab provided 2 witness statements dated 24^th September 2007 and 14^th May 2012. The Prince provided 2 witness statements dated 1^st September 2010 and 27^th June 2013. In addition I had a Civil Evidence Act Notice in respect of a statement by Mr Rajab on behalf of Mrs Sharab but that added nothing at all.

The case therefore turned entirely on the credibility of Mrs Sharab as opposed to that of the Prince. Before the trial the Prince had applied to give his evidence by video link rather than coming to court. The shortcomings of video link evidence are well known. It was vital in my view for me as trial Judge assessing the credibility of these two witnesses to have the best evidence available for me. That would be the witnesses in the box confronted with the other side’s case and such documents as there were so that I could see their reaction live in front of me. The reason why the Prince wanted to give evidence by video link was that he was fearful that Mrs Sharab might serve further proceedings on him.

This was because a claim to a general quantum meruit had been struck out by Sir William Blackburne before the trial on 20^th December 2012. This prevented Mrs Sharab bringing a restitutionary claim in the proceedings but her claim for quantum meruit survived if the parties were found to have agreed a contract at the restaurant in Mayfair but made no agreement as to the remuneration. That would be on the basis that she would be entitled to reasonable remuneration for her services.

Mrs Sharab gave an undertaking not to serve the Prince whilst he was within this jurisdiction for the purpose of this trial. In the light of that undertaking he himself undertook to attend trial and I made no order on his application for video link evidence. He did attend the trial.

Both parties were cross examined extensively and vigorously for 2 days each.

On the question of the quantum meruit claim if it arose, I had the benefit of 2 expert reports one by Mr Said El-Turk dated 12^th April 2013 on behalf of Mrs Sharab and one by Mr Greg Cope dated 11^th April 2013 on behalf of the Prince.

I have referred to the witness statements of the parties above.

I attach the Agreed Chronology in the case.

Three aircraft feature in the case. First there was an agreement dated 30^th October 1996 between Gulf Air Company (1) and Kingdom 11 USA Ltd whereby the latter agreed to purchase a Boeing 767-3P6ERMSN27255. The price paid was $62m. This is the Prince’s first Boeing.

Second is an agreement dated 25^th March 2000 whereby the Prince purchased the Airbus MSN-151 for $95m. The purchase was from the Sultan of Brunei. Of that purchase price $15m was paid in cash and the balance ($80m) was to be satisfied in the form of an issue of a 13.5% interest in the Trade Centre Company Ltd not later that the date of completion of the project. It provided that if the arrangement to transfer the shares did not materialise by the date of the full completion of the project then the Prince would pay the $80m instead to the Brunei Investment Agency.

This is the Airbus which is the subject matter of the present claim. The evidence shows that it was an extremely luxuriously fitted out. Jets like this regularly include (I was told) a 9 hole golf course somewhere (as both experts confirmed T6/75-76 and T6/165; although they might have been indulging in a bit of leg pulling at my expense). The Prince gave evidence to the effect that he understood that the cost of the aircraft to Prince Jefri was $250m. There was not real dispute as to that. The purchase in relative terms was a bargain. The Sultan of Brunei was selling it as part of a fire sale realising assets which his brother had acquired using monies which he had misappropriated.

The third agreement is one dated 14^th June 2002. By this agreement the Prince agreed to purchase a Boeing 747-400 for $47.6m for delivery on or about 16^th September 2002 (“the new Boeing”).

It was the acquisition of this third jet which was one of the reasons why the Prince wanted to sell either the early Boeing or the Airbus. There was some evidence to suggest that the Prince might have acquired the Airbus because it was good value in the hope that he might indeed sell it to Colonel Gaddafi. I say that because the lifting of the sanctions against Libya in 1999 led to a significant belief that Libya would then be opened up to all manner of business. In this context the hope would be to persuade Colonel Gaddafi to buy a jet that was commensurate with his status as a potentate in a Middle Eastern country.

After he made the decision to dispose of one of his jets the Prince wrote a number of letters to Colonel Gaddafi inviting him to consider buying a jet from him. Those letters did not receive any reply from Colonel Gaddafi and the Prince did not know why there was no reply.

By August 2001 the Prince decided to bring in Mrs Sharab to help him with a sale of a jet to Colonel Gaddafi.

There were several reasons for this. First there was the undoubted reputation of Mrs Sharab in the Middle East as being a successful business woman who had very strong links with Colonel Gaddafi. I was referred to a number of articles and photographs which show that to be the case. She had a special ability to open doors to get to Colonel Gaddafi. This is sometimes important because lower officials do not necessarily allow access to Colonel Gaddafi. This was not confined to Libya; it is a phenomenon found extensively in the Middle East. The result is that Colonel Gaddafi might not actually be aware of things that were happening. It is fair to say that Colonel Gaddafi equally might well have exploited that when it suited him and pretended that he did not know anything about events of which he was fully aware. Dealing with the likes of Colonel Gaddafi was a Byzantine and tortuous affair. That is not disputed. The ability of Mrs Sharab to get to Colonel Gaddafi was clearly a very valued asset and was successful quite clearly.

The Prince had used her connections in relation to several other transactions following the lifting of the sanctions in 1999. She set them out in her witness statement and none of this was disputed save in one respect. In paragraph 41 in relation to the obtaining of a plot of land for a hotel development for the Prince Mrs Sharab says that Mr Alaeddin his agent negotiated expressly with her that she would receive $500k commission. She relied upon this as evidence to show that previously the Prince had agreed through his agent a fixed commission with her. The Prince’s evidence on this was somewhat equivocal. In paragraph 6 of his witness statement he referred to the number of projects that Mrs Sharab worked with Mr Alaeddin for him in Libya. One was for a project to develop a Movenpick hotel in Tripoli and the acquisition of the site. This is where the $500k commission was paid and the Prince said this in his witness statement “I did not discuss the Claimant’s remuneration for her role with her directly but it was clear to the Claimant she would be rewarded in the event that the project was successfully established. I believe (emphasis added) that the Claimant was paid the sum of $500k in recognition of her efforts….”

He was extensively cross examined on this paragraph (T4/71-77 and 97-113).

His primary case about obtaining the commission/remuneration was that whatever the agreement it was always to be at his discretion. During the cross examination on paragraph 6 it was pointed out to the Prince that there was no discussion referred to about him paying the commission in respect of the hotel project at his discretion. His answer (T4/100) was that it was always by his discretion. He accepted that was not in paragraph 6 of his witness statement but said it was there by implication. He accepted he had no discussion with her at all and it was all left by implication. When he gave me a detailed explanation of this implication of his discretion Mr Freedman pointed out that none of that was in his witness statement and his only explanation for that was the traditional one of witnesses namely “blame the lawyers”.

Mrs Sharab’s evidence on this point was clear. I found the Prince’s evidence confusing and the reality was that whilst he would not admit this it was a small hotel project for him and in the context of the business transactions he does $500k is a modest amount. It also happened 14 years ago. Given all of that I can understand his recollection as being hazy. Mrs Sharab is not quite in the same position because these transactions are far more personal to her. Having heard both of them I conclude that Mrs Sharab’s evidence is to be preferred namely that she was to obtain a commission of $500k when the agreement was entered into and that it was negotiated with Mr Alaeddin. I find that there was no evidence to support the Prince’s suggestion that she was aware by implication that it would be subject to his discretion. He did not even say either in his evidence or on cross examination that on this case he had exercised his discretion and decided she should have $500k. His only recollection of the $500k was that he “believed” that she was paid that sum. None of this in my view is sustainable and for that reason I reject the Prince’s evidence about the $500k. This clearly establishes a previous transaction where Mrs Sharab was paid a fixed fee agreed in advance.

In August 2001 it is common agreement that the Prince telephoned Mrs Sharab to tell her he was in Cannes and wished to sell one of his aircraft and thus asked her to come to Cannes to meet with him. Mrs Sharab gives detailed evidence about what went on at that meeting. The purpose of the meeting was to engage her to intervene on behalf of the Prince with Colonel Gaddafi to try and sell one of his jets to him he having purchased one and wished to be able to sell one of his current jets when the new one was ready. He told her that the specification required it to be sold to a presidential person and suggested that Colonel Gaddafi was the obvious choice because he did not have an aircraft and had heard that the Prime Minister of Lebanon for example had sent a plane for viewing. Mrs Sharab said that she had a discussion during this conversation about commission in that the Prince told her he would pay commission but there was no discussion about how much commission she would be paid. She said that he instructed her not to start to negotiate the sale of the aircraft until the new plane was ready and that was likely to be a considerable period of time. She said that he would arrange to send Mr Alaeddin to agree a contract with her.

The Prince’s evidence was set out in paragraph 15 of his witness statement. He denied having any discussion about commission and observed that on the previous dealings that his practice was not to agree an introducer’s commission at the outset but to assess the appropriate level of compensation at the end of the transaction. I have rejected this already.

He accepted that he arranged a meeting between her and Mr Alaeddin but that was limited to devising a strategy as how to affect a sale to Colonel Gaddafi. They were both in agreement that there would be some delay implementing the attempts to sell a plane to Colonel Gaddafi. We now know from the late disclosure that the 747 was not acquired until June 2002 which makes the arrangements and lack of events between then and August 2002 perfectly understandable.

Once again Mrs Sharab in my view gave her evidence confidently and consistently with her witness statement.

By way of contrast the Prince started badly by having to correct the opening part of paragraph 12 when he said that he had “recently entered into an agreement to acquire a new large aircraft…..” as I have shown above he was out by one year. He therefore had to correct the evidence to say that he was beginning the negotiations then. In fact this provides further reinforcement for Mrs Sharab’s understanding of the delay and the cross examination of her on this point (T2/76-78) was misconceived.

His evidence in his witness statement (paragraph 15) was to the effect that he had told her that any commission would be at his discretion and assessed by him.

This is a very important point and it was completely demolished by Mr Freedman in cross examination. He had no recollection outside his witness statement. On a number of occasions he asked to see what he had said in his witness statement. I can understand that when one is dealing with a complicated case where there are large amounts of factual details set out in a witness statement. However this case was limited to a small number of issues and it was surprising that the Prince was unable to give any evidence spontaneously without simply repeating what was said in his witness statement. He accepted he had no recollection beyond the witness statement (T4/117/15).

He retreated from his witness statement where he referred to an express discussion as to how he would reward her. When he was cross examined it became by implication again. He then thought there might have been a discussion between them but he was not sure when. The discussion was not detailed but would be casually over lunch when she asked “how do you work, how do you operate” so that she got an impression as to how he operated. Finally he said he did not remember anything about it (T4/123/8). It should be noted for those who read the transcripts that by the word “yes” he acknowledged to me that he had no memory of any of the conversation beyond being reminded of it in writing (T4/127). As I said at the time I cannot criticise anybody who has difficulty remembering events which took place 12 years ago and his only aide-memoir is a witness statement which itself was 9 years after the event. I do not accept that his memory is accurate and that inaccuracy was demonstrated by his inability to say precisely what was discussed. Mrs Sharab by contrast was very clear and as I have already observed she has a greater incentive to remember this event than the busy Prince with large numbers of business transactions and this was but one meeting which was never recorded or put down in writing and is not capable of being cross checked by any contemporaneous documents.

There is the point as to why he would not discuss the commission with her directly and would send Mr Alaeddin. The answer is to my mind clear; the Prince does not condescend to become involved in the detail; that is why he retains people like Mr Alaeddin. On his own evidence he did arrange for Mr Alaeddin to meet Mrs Sharab later to discuss the tactics of attracting Colonel Gaddafi and it is logical and natural in my view that he would also discuss the extent of the commission.

That is in line with my belief and finding as to what happened in respect of the Movenpick hotel. It is a natural follow up from the discussions that took place on the yacht which were clearly generalised. If he wanted to get into the detail of what would be the tactics to deal with Colonel Gaddafi he had the perfect opportunity to on the yacht in Cannes but it was a classic situation in my view of “one does not hire a dog and bark oneself”.

I also accept Mr Freedman QC’s observation in cross examination that the Prince made up the situation that he was waiting for Mrs Sharab to contact him as to when Colonel Gaddafi would be available rather than as she says that it was left for him to contact her when he was ready in the light of his proposed acquisition of a new jet. That version he put forward in his evidence was said for the first time in the witness box and I reject it. Mr Freedman QC made it clear that he was suggesting the Prince was lying. The Prince denied that “I said to your Lordship that I don’t lie. That is the truth. …..I don’t lie at all under oath, and even not under oath your Lordship……” (T4/149/18). This was one of a number of challenges the Prince threw down by stating that like George Washington he like never told an untruth. In my view the Prince’s evidence on this point was all confusion. He had no recollection as to what was said and his evidence was hopeless. This is hardly surprising; the events were a long time ago and as he acknowledged when he is on his yacht in Cannes he would have stacks of meetings for 4 or 5 hours a day. When I asked him whether he could remember any of those he could not remember any of the detail. Finally his suggestion that he had no follow up discussion with Mr Alaeddin after his meeting with Mrs Sharab is incredible. Even on his own version he would have discussed it because he would want to know what discussions took place about the strategy. He met Mr Alaeddin on a weekly basis. He advised the Prince for over 22 years and was clearly a trusted advisor and was given in my view a wide ranging authority.

Mrs Sharab’s evidence is that there was a meeting with her and Mr Alaeddin at the Ayoush Restaurant James Street London. Whilst the Prince was not aware where the meeting would take place on his own evidence he had arranged to set up a meeting to discuss aspects of these proposed dealings between Mr Alaeddin and Mrs Sharab. Mrs Sharab says that Mr Alaeddin represented the Prince and that she would be entitled to a $2m commission if she could procure the sale of one of the two jets to Colonel Gaddafi and a further $1m commission if she could secure an investment in project Toushca. She said that no prices were discussed at that stage and that she considered it a firm offer which she accepted. Once again her evidence was compelling. Once again in my view it is perfectly logical that she and Mr Alaeddin are meeting to discuss these matters. She was thereafter merely to await the transaction being activated by the Prince.

The Prince has of course no direct testimony to give in relation to the meeting and all he says is that Mr Alaeddin was not authorised to agree a level of commission. I reject that evidence. The earlier transaction concerning the Movenpick hotel shows that he did have such an authority and I find it inconceivable that he would not have agreed those figures and that he would not have subsequently reported them back to the Prince if he had no authorisation. He had weekly meetings with the Prince. If he did not like what Mr Alaeddin had agreed he could simply repudiate it because at that stage of course nothing was being done about earning the commission. Further in so acting I find that Mr Alaeddin was merely doing things as he had done in the previous arrangements that Mrs Sharab was involved in on behalf of the Prince.

On that basis Mr Alaeddin had the actual authority on behalf of the Prince. There was a short debate about whether or not he would have had apparent authority. He would certainly in my view have been held out by the Prince as being authorised; that is on the finding that I made that the finalisation of the terms of the commission was to be agreed between him and Mrs Sharab. Mr Pymont QC on behalf of the Prince objected that was not pleaded. This does not really matter because the evidence to be seen is what the Prince is saying as regards what Mr Alaeddin is to do. A plea of apparent authority is not necessary given the way in which Mrs Sharab puts her case which I find is the true position.

It is accepted that by August 2002 the Prince had decided to proceed with the sale of one of his aircraft and he contacted Mrs Sharab for her to proceed to implement that which was agreed the previous year. She says in her witness statement that she was unable to arrange a meeting with Colonel Gaddafi for some months because of his existing schedule but on 21^st January 2003 she went to Libya spoke to Colonel Gaddafi who said that he would need to see both aircraft. This was a difficult task especially as approximately 5 or 6 aircraft were being offered to him at that time. She reported back to the Prince and he arranged to go to Libya on or about 10^th April 2003 with both aircraft. He met Mrs Sharab there who had been in Libya since about 5^th April 2003 awaiting his arrival. The Prince met Colonel Gaddafi and there was a discussion about the aircraft ultimately Colonel Gaddafi saying he was interested in purchasing the Airbus rather than the Boeing for safety reasons as it had 4 engines and the Boeing only had 2.

A further significant point was that having selected the Airbus Colonel Gaddafi was insistent that it remained on Libyan territory until the matter was concluded. This was said to be for safety reasons because he was concerned that people might interfere with the aircraft before it was delivered. This was one of many concerns Colonel Gaddafi had for example Mrs Sharab said he did not touch papers with original ink on in case they had poison in them.

Mrs Sharab’s case is that all of the Prince’s personal possessions were on the Airbus and they had to be transferred to the Boeing as he was leaving the Airbus behind. That took time and she and the Prince sat in the Boeing for a couple of hours while that operation was carried out. During that period there were more discussions about the deal. She says that the Prince told her that the Airbus cost him $90m. She contends that there was a discussion between the Prince and herself whereby the commission was changed so that she would receive a margin of sale price. She says the Prince told her that if she could sell the aircraft for between $100m and $110m he would pay me $2m commission but if she was able to negotiate a price above $110m she could keep everything above that $110m. She says he also confirmed the $1m for the Toushca project.

There is an immediate difficulty about that. If she achieved a price of $109m she would be paid $2m commission. If she achieved £111m her commission would drop down to $1m. There is therefore a gap between $110m and $112m in her calculations. She answered that in cross examination by saying the commission was to be whichever was the higher. That was not of course in her witness statement and on the facts had not arisen. I reject Mr Pymont QC’s suggestion that that is supportive of there being no agreement as she contends. In my view it is a point which can be easily missed when you are looking at a transaction in the round in relatively relaxed surroundings.

The Prince denies discussing any of the commission that would be payable as alleged by Mrs Sharab. His evidence was very brief on that (see paragraph 25 of his witness statement). He was asked to provide details in a request for further information. But answer 7 [A/5/52] he said it was a matter of evidence. Once again the consideration of the meeting by the Prince in his evidence was extremely sparse.

Unsurprisingly the Prince was extensively cross examined on this part as this is the important uplift agreement from Mrs Sharab’s point of view (T5/55-81).

The Prince’s evidence in paragraph 25 of his witness statement was brief. Most of it is based on assumption that he would never agree to the matters put forward by Mrs Sharab.

He did not even give any details of the discussion that took place about the price that would be sought for the Airbus. In other words his evidence said nothing about what was discussed at that meeting which Mrs Sharab said took place during 2 hours when they were together on the Boeing. Her evidence was clearly set out in her witness statement and (as with all her evidence having seen her) she remained firm and consistent as to what she said was her case. The Prince’s all had to be drawn out in cross examination.

The Prince was extensively cross examined on this paragraph and paragraph 24 (T5/55-81).

In his Amended Defence (paragraph 17) he stated that nothing was discussed on this occasion that altered the basis upon which the parties agreed to proceed.

Predictably a request for clarification of that paragraph was sought which was rebuffed on the basis that it was a request for evidence. The evidence when it came did not address what was discussed either as regards content. The Prince was unable to explain why his witness statement was so brief. For example in paragraph 24 of his witness statement he said that there was a discussion about the sale price that he wished to achieve but he does not identify what was the price he was wishing to achieve or any part of that discussion which he accepted in cross examination lasted possibly 1 hour. He was asked about the fact that Mrs Sharab said she was told the purchase price was $90m (not the correct figure of $95m). He said that was possible but he didn’t recall (T5/60/21). He was unable to say what was the maximum price he was seeking, ultimately “thinking” it was $120m. He denied he had agreed commission with her at that meeting as she alleged. He said ultimately the discussion was $120m but was unable to explain why that was not in his witness statement.

Further I find his observations about her supposed body language and mental status incredible. In my view the Prince just made that up as he was giving evidence. It is significant that it did not feature in his evidence by witness statement nor in his pleading. His evidence wavered from there being no discussion to a discussion that Mrs Sharab tried to start but he stopped it. It was said to be short because of his requirement of $120m which was not referred to in his witness statements and was contrary to earlier evidence that he couldn’t recall exactly what was the price he wanted for the Airbus.

As with many parts of the Prince’s evidence it was confusing and unreliable. Having heard Mrs Sharab the contrast between her evidence and the Prince could not be more stark. I simply do not accept what little he said about the discussion that took place on the Boeing. I accept Mrs Sharab’s evidence entirely. It is clear that the Prince wanted to incentivise her at that vital stage of just having persuaded Colonel Gaddafi to consider the Airbus by agreeing the terms as she said. I accept her evidence that the Prince did not really believe that he would get more than $110m for the Airbus (a profit of $15m). This is especially so because of the competition and the difficulties of dealing with Colonel Gaddafi which Mrs Sharab had plainly ameliorated. The Prince accepted on a number of occasions that she had provided help yet of course his claim in this case is that she is not entitled to anything at all. I will deal with his reasons for denying her entitlement as he sees it further in this judgment.

It seems to me that obtaining $110m for an aircraft that had only been purchased a few years earlier for $95m is a good profit. I do not accept Mrs Sharab’s arguments about the doubts about the true cash price paid to the Sultan of Brunei by the Prince. I do not accept that the Prince was evasive on that but I do accept that the Prince was evasive on a number of other significant aspects (see below) which further undermines any credibility I can give to his evidence when contrasted with the firm evidence of Mrs Sharab.

At the end of the day I simply found his evidence confusing and too unreliable and Mrs Sharab’s was more credible on any dispute of fact between them .

The Prince left Libya on the Boeing on the same day leaving Mrs Sharab and Mr Alaeddin to conclude the negotiations. These were very difficult negotiations as Mrs Sharab sets out in her witness statement (which was unchallenged to a degree by the Prince). It is clear that whilst Mr Alaeddin might have been negotiating the technical matters Mrs Sharab’s presence was invaluable because she had the special relationship with Colonel Gaddafi. I reject the suggestion by the Prince made in his evidence on several occasions that he had any kind of direct relationship with Colonel Gaddafi. It was Mrs Sharab who opened the door initially and as shall be seen later in this judgment she negotiated extensively the price and intervened again after the sale agreement ran into the sand. Ultimately by about 18^th June 2003 after a number of visits to Libya Mrs Sharab negotiated a price of $120m and in addition a commitment of $20m to project Toushca. The actual details of the agreement took another month or so to render into a binding contractual document. During this period of negotiation the Prince wrote a letter to Colonel Gaddafi dated 18^th May 2003. This letter deserves very careful consideration because it provides a very strong piece of evidence undermining the credibility of the Prince.

Mrs Sharab had made a fleeting reference to this letter in paragraph 58 of her witness statement. She was not cross examined on the contents of the letter by Mr Pymont QC. The Prince did not refer to the letter in his witness statement at all. The letter contains a number of untruths. The second bullet point says “The aircraft price of $135m represents what the aircraft cost us. This includes the various extras and modifications that were made to the aircraft since we bought it. This amount is borrowed from a bank in Switzerland and the bank is waiting for payment to it this being in accordance with the agreement concluded with your Excellency....” The letter is signed by the Prince.

It was an attempt to persuade Colonel Gaddafi to pay $135m on the basis that the Prince would only receive what he had laid out on the aircraft and the extras.

We have seen that the purchase price was $95m (even on the basis of rejection of the Claimant’s criticisms of the $80m part of that price). The aircraft had not had any money spent on it by the Prince during the period of his acquisition.

Once again unsurprisingly he was cross examined on this letter (T5/29-38).

When the extract was put to him his first response was:-

“Q. We can see from there that there were no substantial sums spent on modifications to the aircraft whilst that was owned by you; correct? So if we then go back to the letter in bundle D1 that we were looking at in D1 at tab 45, it follows from that that when you said that "The aircraft price of $135 million represented what the aircraft cost us, including extras and modifications that were made to the aircraft since we bought it", that was untrue, wasn't it?

A. We bought it at 95, your Lordship and the objective was to maximise our sale price. So when you said 135, you had to give some justifications. So, yes. And actually, not only that, we have done zero modifications on it, not only minor modifications, we have done no modifications whatsoever.

Q. So it was not true when you said it cost $135 million, including modifications?

A. When I sell the plane, I have the right to sell it at any price I want.

Q. What you don't have the right to do is to lie about the original cost of the aeroplane --

A. I didn't lie.

Q. -- to the prospective purchaser. You don't have that right, do you?

A. It is my business to put any price I want. It is my plane, I have the right to sell it for any price I want.

Q. You are a man who jealously guards his reputation, so much so it is right, isn't it, that you have issued proceedings about your reputation against Forbes in this country?

A. Sure, sure.

Q. That is because you jealously guard your reputation?

A. Yes.

Q. Is it the case that you regard it as something that is available to you, if you wish to do it, to lie about the original cost of an aircraft in order to get a better price from the buyer?

A. We didn't lie, we just put justifications for the increase in price.

Q. What is the justification of saying that it cost $135 million, if in fact it cost $95 million?

A. I could have bought it for $10, I have the right to sell it for whatever price I need to sell it for.

Q. What is the justification -- I will ask the question again -- of saying that it cost $135 million, if in fact it cost $95 million?

A. I mean, what I buy it for is my discretion. The important thing is not this. The value of this plane was not 135, or 159, this plane costs Prince Jefri who was corrupt at that time, $250 million plus so at $135 million, that is a still a bargain for the Libyans.

Q. You see, it might be said that it is corrupt to say to a buyer that you have paid $135 million for an aeroplane when you know that you only paid $95 million. How do you react to that suggestion that that is corrupt?

A. I react by saying the value of this plane is $250 million, that is what the -- that is what Brunei began with, by saying that is the value of the plane, and we were able to bargain them down to $95 million, because they were very eager to invest in Saudi Arabia and to invest in the Kingdom Centre that we have over there, which is a high-rise tower that was completed a few years ago, and the ownership of the Brunei became confirmed just a few months ago.

Q. You are avoiding the question deliberately, aren't you?

A. I'm not. Please, you ask and I will reply openly.

Q. The question is: how do you justify saying that an aircraft cost you $135 million, when you know it cost you $95 million?

A. Okay, you have to compare not 95 to 135, but 135 to 250, which is the real value of the plane.

Q. That is not what your letter says, the letter doesn't talk about the real value, the letter is very specific, it says: "The aircraft's price of $135 million represents what the aircraft cost us."

A. Because the counterparty would not really care much about how much I paid for it, they care much about what is the real value of this whole thing, how much it cost.

Q. If that is the case, why did you bother saying how much the aircraft had cost you?

A. That is a tactic used with the Libyans.

Q. Do you mean it is a lie used with the Libyans?

A. It is not a lie. It is a tactic. It is not a lie. You can call it a lie; I call it a tactic.

MR JUSTICE PETER SMITH: Sorry, this aircraft was never offered for less than 135 million. You then say "The aircraft's price of $135 million, represents what the aircraft cost us". But it didn't, it cost you 95.

A. Correct.

MR JUSTICE PETER SMITH: So when you say it cost 135, that is untrue.

A. If you tell him 95, he is going to say "Why am I paying 95?"

MR JUSTICE PETER SMITH: Of course.

A. He is going to say "I pay 95 only", because they wanted to pay the same price that I bought it for, while the value is $250 million, your Lordship.

MR JUSTICE PETER SMITH: You are quite right, but the value is something that you didn't state. You didn't tell him "You are going to get a bargain, if you pay me 135, because the aircraft is worth 250 million", what you actually do is you tell him a lie, you tell him the aircraft has cost you 135 when it didn't.

A. It Libyans would not have understand what this value mean. They only understand how much you paid for it. They are not sophisticated like UK-based people.

MR JUSTICE PETER SMITH: If I sold this pen to you and I said, although it looks an ordinary pen, it is actually filled with platinum inside and is worth a million dollars, but I will give it to you as a special price of 750,000", and you pay the 750,000 on the basis of my statement that it is filled with platinum. If you then open it and you find it is full of ink and only worth 50 cents, you would be very upset, wouldn't you?

A. Not if I have done my homework and my due diligence. If I have done my due diligence, I would not be upset.

MR JUSTICE PETER SMITH: Sometimes, when you buy something, you rely upon what people tell you they're selling. In an area where people are honest with each other, you take a man at his word.

A. But, your Lordship, the value of this plane was 250 million, and Prince Jefri paid for that $250 million, and I know exactly the design of it.

MR JUSTICE PETER SMITH: Prince Jefri could probably afford to take that hit, because he wasn't spending his own money. We know all of that. But I come back to this fundamental question: if I tell you something, and you rely on what I say as being the truth of the situation and it turns out that it is not truthful, you would be very upset about it, would you not?

A. But not if I have done my due diligence. You can put any value you want on it. If I have done my homework and my due diligence and I take responsibility for that -- and they have done their homework also, the Libyans, and they said "That's good. That's a price we accept", at 120, eventually, obviously, not 135.

MR JUSTICE PETER SMITH: I think, Your Highness, when you speak to your lawyers after this case, you might be disappointed and you might want to consider the way that you enter into contracts, if that is the way you go, because you cannot, as a seller, say things which are untrue to induce a contract and expect the contract to survive.

A. This is not a normal -- you are dealing with the Libyans, who are really -- you know, it was -- it was not very straightforward and they were deliberately not honouring their commitments. I understand what you are saying, your Lordship. I understand this very well. But to the Libyans, when they come and they renege, and they come and say "We are going to go down from 120 to 70", and when they say "We will cancel everything", you know, they just reneged. And Saleh El Ghoul and Fouad Alaeddin were authorised just to go and to do whatever they can to finalise this deal and, eventually, we got the 50, and they got the plane.

MR JUSTICE PETER SMITH: Just because they behave badly, it doesn't justify you behaving badly, does it? You have your reputation that you want to maintain and you don't go their levels, you don't stoop to them. What you should do is you play honest. What you say to him is "Yes, we paid 95, but the plane was worth 250. Therefore, it is not unreasonable, whatever price I paid, to charge you 135. You are still getting a bargain, because that is $115 million below what it is worth", and then all the cards are on the table and you are playing honest broker. But what you tell him, untruthfully, is that the plane cost you 135, when it actually cost you 40 million less than that and it is untrue.

A. But it is none of his business, your Lordship, to know how much I paid for it.

MR JUSTICE PETER SMITH: Then why did you tell him?

A. Because they wanted the justification for the value of the plane and, if you tell them the value, they don't understand the value, because they say it has been depreciated, it has been used by Prince Jefri and used by the Sultan of Brunei, and they would say "No, 251 back to -- from the 251 to whatever you want to pay for it".

MR FREEDMAN: You have heard the line of questions from his Lordship and you've heard my questions.

A. I do.

Did you do anything wrong when you wrote "The aircraft's price of $135 represents what the aircraft cost us"?

A. In normal circumstances, this would not happen, this does not happen.

Q. Did you do anything wrong? Do you recognise that you didn't tell the truth?

A. In normal circumstances, this shouldn't happen, for sure.

Q. Do you recognise that you didn't tell the truth?

A. You have to see the -- what led to that.

Q. Do you recognise that you didn't tell the truth?

A. We recognised that we were dealing with a rogue state and we had to act in kind.

Q. Did you recognise that you weren't telling the truth?

A. We were not understanding -- we were just strengthening our bargaining position with them right now at that time.

Q. Does the truth then depend on context always?

A. No, we are always truthful, but this is a very unique situation and unique case whereby the Libyans were involved and they are not straight. So Saleh El Ghoul and Fouad Alaeddin were authorised to do whatever they could to finalise it.

Q. And it wasn't truthful to say that extras and modifications had been made to the aircraft since you bought it, because, as you said, there were zero modifications?

A. I told you, not my modifications. We have done zero modifications.

Q. Zero modifications.

A. I'm confirming that to you: not minor; zero modifications were done. The main reason for buying the plane was it needed no modifications whatsoever, so I'm confirming that.

Q. The second sentence was a lie as well?

A.

You call it a lie; I call it a tactic used by Saleh El Ghoul and Fouad Alaeddin.

There is no doubt that the Prince knew he had paid $95m only for the Airbus and he knew that zero modifications had been carried out on the plane. He knew therefore that the letter was saying things that were not true. He justified this as being the way in which you have to deal with the Libyans in effect because they are slippery and indulge in matters like that. I am not here (nor would it be appropriate) for me to comment on the commercial morality or business ethics of the way in which apparently Middle Eastern potentates do business between them. That is not the point. The point is that this letter demonstrates that the Prince was willing to participate in sending documents which he knew contained untruthful material.

This will be demonstrated in other documents to which I shall refer to in the judgment. It is a further factor that I bear in mind in assessing whether or not I can rely upon the Prince’s evidence. It is in my view a further piece of evidence (i.e. the willingness) to participate in untruthful statements and documents (despite his challenge to the contrary set out in T5/148/18) “I don’t lie at all under oath, and even not under oath your Lordship....” This was a voluntary additional nailing of his colours to “the trusty sword of truth” at T4/149 as being truthful in everything he said. Mr Freedman QC took up the challenge of the gauntlet that the Prince had thrown down and comprehensively demonstrated that the Prince’s assertion was not correct in everything he said or wrote. It will be seen from the next exchange that I gave him the possibility of accepting that as the events were 10 years ago he had a fuzzy memory about it. I remind myself what I said about the assessment of evidence in EPI Environmental Technologies Ltd Inc v Symphony Plastic Technologies Plc [2004] EWHC 2945 (Ch) at paragraph 74.

It was put strongly to me on behalf of Mrs Sharab that this and other examples (see below) showed that the Prince lied and that should lead inexorably to a conclusion that he is telling untruths now in the witness box.

I do not think it is necessary for me to go that far. Having seen the Prince in the witness box and the evidence he gave I found his evidence completely unsatisfactory. His memory had clearly gone as regards the detail of any of these transactions. His attempts to bolster that defect in the witness box were frankly pathetic and he demonstrated great amounts of confusion.

Equally his justification of this and other letters namely dealing with the tricky Libyans shows that he is prepared to be involved in things that are said that are untruthful when it is necessary. When I put those factors together the only inevitable conclusion is that I am unable to accept any evidence on the part of the Prince unless it is independently corroborated. None of his evidence is corroborated in respect of the matters that are the disputed areas in this litigation. It follows from that that I will unhesitatingly accept everything that Mrs Sharab says about the relationship between her and the Prince in relation to this transaction in preference to that of the Prince.

To demonstrate the difficulties I had with the Prince’s evidence I am taking the unusual step of appending the transcript parts identified by the Claimant in respect of his evidence to this judgment.

I should also observe that these untruthful statements were only uncovered after contested disclosure applications in respect of the purchase of the Airbus and the purchase of the Boeing 747. Originally disclosure was resisted on the grounds of relevance.

The Prince himself accepted that Mrs Sharab was likely to have a better understanding than him because she has somewhat fewer meetings and that he was therefore not in a position to challenge what she said (T4/96/18). He also conceded that his recollection was not good at all and he could not answer questions without looking at his witness statement to see what was said there (T4/135/2/3).

The evidence of Mrs Sharab is that on 15^th July 2003 she and Mr Alaeddin called the Prince from the gardens of the Corinthia Bab Hotel in Tripoli where they were staying using a satellite phone. She said that she told Mr Alaeddin that she would only proceed with affecting the deal if her total commission was confirmed at $10m as previously agreed with the Prince because she had succeeded in agreeing a sale price with the Libyans of $10m over $110m. Mr Alaeddin spoke with the Prince first and informed him that she had negotiated a sale for that price and $20m for the investment in project Toushca and he repeated what she said to him. When he finished talking he passed the phone to me and the Prince said “Daad, go ahead $10m for you is ok”. Mr Alaeddin confirmed “ok $10m for Daad”.

The Prince started badly again in his evidence. In paragraph 28 he said he could not recall precisely how he learnt that Mrs Sharab and Mr Alaeddin had reached an agreement in principle with Colonel Gaddafi but accepted that there “would have been” a telephone conversation but he could not recall the specific telephone conversation. He said that he categorically denied that he ever offered to pay nor confirmed he would pay the level of commission alleged and gives various reasons in paragraph 29. None of those matters is relevant or credible in my view. In particular the suggestion that at all times he could have negotiated with Colonel Gaddafi direct is unreal. I simply do not accept that. Mrs Sharab was the door opener and without her I do not believe for one minute the Prince would have got anywhere near being in a position to negotiate the sale of the Airbus to Colonel Gaddafi and he knew that full well.

In cross examination (T5/91) he was suddenly able to remember details of the conversation via the satellite phone. He later remembered that Mr Alaeddin brought up the commission in the discussion (T5/91) (a new recollection not revealed before). Once again I unhesitatingly prefer the evidence of Mrs Sharab to that of the Prince and reject this late “recall”.

There were two agreements executed on 19^th July 2003 which had been negotiated by Mrs Sharab and Mr Alaeddin. The first one (“Agreement 1”) was made between the Prince (1) and LAFICO (2) for the purchase of the Airbus in the sum of $70m and the second agreement (“Agreement 2”) made between the Prince’s company KADCO (1) and the Libyan Agricultural Investment Company (“LAICO”) in which the sum of $70.7m would be paid in respect of the aircraft of which $20.7m was for the project and $50m was the balance of the monies owed on the Airbus.

$70m was paid in August 2003. Mrs Sharab asked for 50% of her commission when the Prince received the $70m however he refused and said that the commission would only be paid when the balance of the purchase monies was received.

The Prince in his witness statement (paragraph 31) had no recollection of this request. However he was “confident” that Mrs Sharab’s allegations were untrue because he would never be involved in any details such as a bank account.

In cross examination (T5/93) the Prince recalled that there had been a discussion about the commission although he did not recall her asking for 50%. He said for the first time that he told her when she raised the issue of commission that he would exercise his discretion of what to give her. That was not in his original witness statement and it was in my view a mantra like repetition of discretion which the Prince felt he had to say on every opportunity whereas I find there was no such discussion on any occasion. His memory again is unreliable at the very least and he might have convinced himself of the truthfulness of his own evidence when it is plainly unreliable and incorrect or he might be lying. Either way I cannot accept his evidence. Once again I prefer Mrs Sharab’s evidence and find that there was such a conversation as she said that he put her off paying until he received the full $120m.

Colonel Gaddafi did not pay the balance. It was due on 31^st July 2003. The Prince and Mrs Sharab wrote letters to Colonel Gaddafi to no avail.

The reasons why this was occurring remain obscure. It was suggested that the official responsible for releasing the monies (Mr Shadi) looked at Agreement 1 (he not being aware of what had gone on) and expressed the view that the amount of money payable was $70m which is what the agreement said. Separately it was suggested that the Colonel’s cousin was holding up releasing the monies because he wanted to receive a payment to permit the release. Finally it was suggested that the Libyans had become aware of the price the Prince had paid for the Airbus or believed it was not worth $120m. That latter point is obscure. In some correspondence there is reference to the Libyans having advice as to the worth of the Airbus before and after the agreement. It was all very secondary and obscure and I make no finding as to what precisely the Libyans had received in relation to advice about the worth of the aircraft and when they had received it.

What is crystal clear however is that none of the delay was down to Mrs Sharab. Indeed she worked hard to try and remedy the situation travelling several times to Libya with Mr Alaeddin at the request of the Prince.

In March 2004 the Airbus was moved from Libya to Frankfurt in Germany for maintenance. At this time the title and responsibility for maintenance technically remained with the Prince and the transfer to Germany was by prior arrangement between the Prince and the Libyans. When the maintenance work was completed the Prince arranged with the pilot for it to be flown to Riyadh not to Libya. This was done without the agreement of the Libyans and without the Prince informing the Libyans of his intentions.

There was a vigorous debate between Mr Pymont QC and myself about the legitimacy of this action on the part of the Prince. It is plain that whatever the legalities the Prince was frustrated at the lack of payment and probably entitled so to be under the terms of the Agreement (subject of course to what is said in the letter dated 18^th May 2003).

The Prince believed this snatching of the Airbus was successful in that he persuaded Colonel Gaddafi to negotiate with him. The Prince believed he was in a position of strength because he had the Airbus and $70m. I am not actually convinced of the strength of his position. The last thing I would have thought the Prince would want to do would be to take on the unpredictable Colonel Gaddafi by acting in the way he did. He might be able to use the aircraft but I doubt whether any person or organisation (of a sovereign nature the only potential buyers) would purchase the Airbus while the present dispute was outstanding. True he had received the $70m but he was $50m out of pocket at that stage. I believe that the Prince thought the taking of the aircraft by him would put him in a strong position and that Colonel Gaddafi would promptly negotiate.

That might well be the position in “ordinary” commercial disputes or possibly even “ordinary” disputes between Middle Eastern Potentates. However the one predictable thing that could be said about Colonel Gaddafi is that he was unpredictable. It was reported back to the Prince that the Colonel was extremely upset about the taking of the plane whatever the rights or wrongs. That to my mind led him to do nothing. He could afford to leave the position as it was with the matter unresolved. The Prince’s ploy achieved nothing between March 2004 and August 2005, a total of nearly 17 months. Although the Prince repeated in the witness box what he said in his witness statement namely that this was one of the “two crucial steps in forcing a resolution of the issues…” (paragraph 51 of his witness statement) I simply reject that. Facts speak for themselves. I cannot believe that it can be argued with any credibility that the snatching of the Airbus did anything other than prolong the dispute. This is further reinforced by how the matter was resolved. In that context I also reject the Prince’s other so called crucial step as being significant namely the settlement he reached personally with Colonel Gaddafi in Tripoli on 1^st September 2005.

Mrs Sharab in her witness statement (paragraph 96) sets out that she was telephoned by the Prince which she was in London and asked to meet him in the George V in Paris which is owned by the Prince through one of his various companies. The meeting took place in the lobby of the hotel where apparently the Prince had a private area which was his de facto office. She says it was a discussion that took place between the Prince and herself with nobody else present and lasted for about an hour. She said that he wanted the position closed as quickly as possible and then she would receive her commission. Mrs Sharab said that she told him it was his fault and he was making the problems and recommended that he go to Libya for the Revolution Day Celebrations which last for one week from 1^st September and apologise to Colonel Gaddafi for taking the plane. She suggested that he should do no more than this and then leave her and Mr Alaeddin to negotiate a solution. She said that the Prince agreed to do so and gave her a free hand to negotiate a settlement.

The Prince did arrange to go to Libya and Mrs Sharab and her daughter flew from London to Charles de Gaulle then transferred to Le Bourget airport where they boarded the Prince’s plane to fly onto Libya. Mrs Sharab was surprised it was a rented plane. This was despite the fact that at the airport was the original Boeing and the Airbus plus the new Boeing 747. Although the Prince told her that his family were using his private plane in fact that was not true. The Prince acknowledged in his evidence before me that the reason he did not want to use one of his own jets was that he was fearful Colonel Gaddafi would impound it at Tripoli. This is not the normal form of negotiations in commercial disputes but it demonstrates how unpredictable Colonel Gaddafi was, how weak the Prince’s position had become despite his snatching of the Airbus and how necessary Mrs Sharab was in trying to mend the collapse in the relations between Colonel Gaddafi and the Prince. In fact Mrs Sharab said that as a matter of private proper hospitality she believed that Colonel would not have insulted a guest by acting that way. I am not sure that is correct necessarily. After all later in her contacts with Colonel Gaddafi when he asked her to come to Libya he had her arrested and she was kept in confinement for 20 months.

The first point to note on the meeting is as set out above it was arranged by Mrs Sharab after the Prince’s ploy of snatching the Airbus had not achieved anything in 17 months. It is plain that the Prince turned to Mrs Sharab because the situation had reached a Mexican standoff. I do not suppose for one minute it was helped with his “compromise” suggestions whereby he kept the Airbus and $70m part payment as compensation for losses that he said he had incurred. I will deal with those losses further in this judgment but the polite word for the losses is “speculative”. I would not have expected them to have fooled Colonel Gaddafi and his team for one minute. That of course was another Prince ploy which is available when he is dealing with Libya.

I was shown a 47 second DVD clip of the start of this meeting when Mrs Sharab introduced various persons to Colonel Gaddafi. One cannot conclude too much about this but she was clearly warmly welcomed by Colonel Gaddafi and then went on to introduce the various people (including the Prince) to him. Her demeanour was in marked contrast to that of the Prince who in my view looked very sheepish at the start. That reflected the difficulty of the meeting which itself is exemplified by the fact that the Prince was unwilling to take one of his own planes to this meeting in fear that Colonel Gaddafi might retaliate. That shows the lack of a true relationship between him and Colonel Gaddafi if he could seriously think that. The suggestion that he made in evidence that he was able to broker a deal at any time because of his links with Colonel Gaddafi is plainly ridiculous.

According to Mrs Sharab’s evidence after the initial greetings there was further discussion in her presence and her daughter’s presence, Mr Alaeddin’s and Mr Hijazi the manager of the President’s private office with Colonel Gaddafi. Initially there was no discussion according to her evidence about the aircraft only politics and the revolution and Colonel Gaddafi’s argument with the Prince’s uncle. Mr Hijazi opened the subject of the Airbus in front of Colonel Gaddafi and the Prince and attacked the latter for keeping the $70m. She expressed the view that this would be an unusual stance to be taken in the presence of Colonel Gaddafi and must have been pre arranged in order for Colonel Gaddafi not to have to express his anger personally.

After that Colonel Gaddafi and the Prince talked privately outside the tent. Her evidence is that after they returned she had discussions with Colonel Gaddafi who did not want the aircraft anymore and would only give it away as a gift. She suggested that the outstanding $50m would be paid. The Prince departed saying that he would leave “Daad” and Mr Alaeddin to meet with the office manager and others to finish the outstanding matter. The Prince then left. After that Mrs Sharab had further private discussions with Colonel Gaddafi who intimated that he would order his office to solve the matter and that she should come to the office at 9am the following morning.

Her evidence is that the next day (4^th September 2005) she together with Mr Alaeddin attended the office at 9am but there appears to have been a vigorous discussion with Mr Alaeddin and those representing Colonel Gaddafi. There were further discussions which became more heated and she left the meeting and called Colonel Gaddafi and informed him of what was going on and he told her to take the necessary steps to conclude a deal in accordance with the discussions she had had with him the day before. She returned to the meeting and said that they had met Colonel Gaddafi the day before and that he had approved the purchase of the Airbus on the terms that he agreed with her. Mr Hijazi suddenly confirmed that and it took only a short time thereafter to conclude a new agreement in accordance with those terms (the “Settlement Agreement”) whereby Agreements 1 and 2 were cancelled, the purchase of the Airbus would be completed and the $50m due in respect would be paid and that the Libyans would be released from the $20m investment in the Toushca project. The agreement was to be subject to English law and any disputes which could not be resolved were to be dealt with by arbitration in London (this being the suggestion of Mr Alaeddin providing the best method of protection for the Prince).

The Prince’s evidence on this vital meeting is again brief (paragraph 44 of his witness statement). He denies he apologised to Colonel Gaddafi and simply repeats the terms set out above by Mrs Sharab except that he says he agreed those with Colonel Gaddafi leaving Libya the same day with Mrs Sharab and Mr Alaeddin being responsible for drafting the agreement.

Only the Prince is able to give evidence of what took place between him and Colonel Gaddafi. It does not follow that I have to accept what he says and I do not. It is not significant to the overall picture. What is significant is that it was Mrs Sharab’s efforts and hers alone that enabled this meeting to take place. It must have been very demeaning for the Prince to realise that despite all his wealth and power he could not produce a result with Colonel Gaddafi. The reason for that is plain; Colonel Gaddafi was equally strong willed and would not react in a way that the Prince might predict him so to do. Mrs Sharab brokered the meeting. Given Colonel Gaddafi’s attitude I find it difficult to accept that Colonel Gaddafi would simply turn around in a short conversation with the Prince and agree to pay the $50m. There must in my view have been something more to motivate him to agree that. The release of the $20m obligation to project the Toushca investment is a small possibility but it seems to me that Colonel Gaddafi is the type of person who would be more moved had he received an apology. The only thing in my view that could have created a change of mind is if the Prince had actually apologised. However even if he did not apologise he would not be in the tent with Colonel Gaddafi without Mrs Sharab’s efforts.

I therefore conclude that contrary to the Prince’s suggestion in paragraph 51 of his witness statement the meeting between him and Colonel Gaddafi whilst it took place could only have done so because of the large effort put in by Mrs Sharab.

Thus far she has been the major broker in the sale in the first place and the restoration created by the Settlement Agreement in the second place.

I accept the Claimant’s criticism of the Prince’s evidence in paragraph 102 of her closing. The Prince on the one hand acknowledged that Mrs Sharab had a role but continually attempted to reduce it. In fact it is in my view impossible to exaggerate her importance in the deal. The Prince’s failure to recognise that I accept completely undermines his credibility as a witness and is a further piece of material which I am entitled to rely upon to show that I prefer Mrs Sharab’s evidence because the Prince’s is so unreliable. I agree that the five examples given in that paragraph support Mrs Sharab’s case. Ultimately the Prince acknowledged in cross examination that his great coup in removing the Airbus to Riyadh was counterproductive “when I took possession of the plane, things went sour with the Libyans completely…” (T5/86). That is the end of the Prince’s contention as to the effect of the snatch back in paragraph 51 of his witness statement.

This was achieved by Mrs Sharab and Mr Alaeddin after the Prince left. I have no doubt that Mr Alaeddin had a role in that. On 4^th September 2005 Mrs Sharab was telephoned by the Prince who expressed his gratitude for her efforts and success. This was admitted by the Prince in his Amended Defence.

Subsequently Mrs Sharab flew to Libya with the Settlement Agreement and a spare parts list which was signed by the Libyans on 21st September 2005.

She had obtained the counterpart copy of the Settlement Agreement signed by the Libyans after she had taken the one with the Prince’s signature on to them. There were problems between that date and April 2006 which delayed matters. The position is not clear and in my view nothing turns on it. It is quite clear that Mrs Sharab was becoming concerned as to her position and as her letter dated 6^th November 2005 to LAFICO shows she was holding on to the counter part Settlement Agreement due to the Prince until outstanding matters were resolved. There were clearly difficulties over the maintenance contract in particular the fact that the Airbus had some American parts in it which might cause difficulty for Colonel Gaddafi who was still not free to deal with the United States but she still was providing efforts to overcome these difficulties (see for example her letter of 1^st March 2006). However it was quite clear she was concerned about her personal relationship with the Libyans by this time and she clearly thought that the Prince was delaying matters.

Ultimately she wrote to the Prince on 20^th April 2006 (D2/130/420). In that she set out that the Prince was insisting on keeping the money and the aircraft and was refusing to settle matters. That is a clear reference to the difficulties over the maintenance contract. She also said this “in a personal capacity, I inform you that I will stand by the Libyan side because my attempts to finalise this matter with you have only yielded failure and disinterest. Further I consider that they are in the right I do not know to what or to where this matter will end, with your insistence on your position which is not supported by strong authority or conclusive legal position…..” This is the so called “stab in the back letter” which the Prince relies upon to justify his decision not to pay anything to Mrs Sharab despite her undoubted significant efforts as set out earlier in this judgment.

What Mrs Sharab did not know was that a month earlier the Prince had obtained a fresh counterpart of the Settlement Agreement signed by the Libyans direct thus circumventing the one that she was holding on to as a bargaining chip. Having secured that document the letter of credit was negotiated and finalised on 31^st August 2006. That itself had taken considerable time as the letter of credit was originally opened on 27^th April 2006. Mrs Sharab was not aware of this.

From September 2006 Mrs Sharab says she telephoned the Prince’s offices about 14 times but was not able to speak to the Prince. Clearly he had no further use for her having finally completed the sale of the Airbus. She also sent him faxes on 19^th September 2006, 2^nd October 2006 and 12^th December 2006 asking him to pay the commission. She did not mention the figure of $10m. The Prince never replied to any of those letters but in cross examination fastened on the fact that she did not make reference to the $10m as evidence to show that she made it up afterwards (T5/195-201). Mrs Sharab had been cross examined briefly on the correspondence which confirmed (as is apparent from reading it) that there was no mention made of $10m commission as a figure. This reflects what is said in paragraph 46 of his witness statement that he recalled after the Settlement Agreement was signed she regularly referred to a commission due to her but this was always a “generic” reference and never to a specific figure.

However in cross examination the Prince acknowledged for the first time that he knew precisely what sum Mrs Sharab was seeking because Mr Alaeddin had referred him to it when he attempted to mediate between the Prince and Mrs Sharab (T5/197 et seq). His evidence of what confirmation he received from Mr Alaeddin was hazy. He clearly had no clear recollection of it at all (T5/203). This was part of a stance to give the impression that the Prince was only aware of the $10m sum when he received the letter before action from Mrs Sharab’s solicitors dated 17^th October 2006. That letter had a number of errors which Mrs Sharab acknowledged in cross examination; the date of the agreement was wrong and there was no mention made of the discussion in Libya in April 2003.

However the Prince’s lawyers’ response is illuminating in what it does not say.

It provides no positive case. It denies that the Prince entered into the agreement that is alleged by Mrs Sharab and alleges that she had no part in the ultimate sale of the aircraft and that there was no basis for sums due to her and finally that he is not resident in the jurisdiction and there is no basis for litigation within this jurisdiction.

The reason for this coyness is difficult to understand. If it was his case that the agreement was at his discretion he could have said so but he did not. Equally he did not reply to any of Mrs Sharab’s letters when he could easily have done so and said precisely the same thing. That in my view is telling. It is a further piece of evidence which helps me decide that the case is not as put now by the Prince. It would have been the simplest of things (when everything was fresh in 2006) to have asserted what he now says. He was unable to explain why his case was not put out clearly.

Further he knew all the time via Mr Aleaddin the fee that Mrs Sharab was seeking.

Two important themes came out of the Prince’s evidence. First there was the repeated emphasis that any payment that was due to Mrs Sharab was at his discretion. Second there was the statement in his evidence that Mrs Sharab “stabbed me in the back”. This in the Prince’s eyes disentitled her to any sum however much meritorious the efforts she had done. In his defence paragraph 12 (c) the Prince admitted that there was a meeting on the yacht in Cannes and that any payment was made was to be made at his discretion. In cross examination he accepted that this would be subject to a requirement that he would calculate it reasonably.

There is no reference in the Defence to any question of Mrs Sharab’s entitlement not being available to her because she had stabbed him in the back. Nor is it clearly discernable in the Defence that what the Prince is saying is that any contractual arrangements that there were were made in Cannes not the UK. The purpose of that was to emphasise that whilst it was open to me to conclude whether there was an agreement in Cannes it was not open to me to investigate the terms of such an agreement because I had no jurisdiction so to do.

That is not to be found clearly in my view in the Prince’s opening not in his evidence nor in his closing.

I have already dealt with the ambiguities and contradictions of the Prince’s evidence as to what was discussed in Cannes. His evidence does not support his plea.

The position of the Prince was only clearly made out during argument between Mr Pymont and myself in closing. I refer to T7/74-86. From that exchange the Prince’s case is honed down to the following. First there was an agreement in Cannes and nowhere else. Second he did not agree to pay her a fixed commission the agreement was that he would have a discretion (subject to the reasonableness) as to what commission he would pay her. That contract cannot be adjudicated on in this jurisdiction although the existence of the contract and its terms can be to enable me to decide where and upon what terms the parties agreed a contract. The breach of that contract the Prince says must be litigated in France.

If the agreement is made at the Ayoush restaurant then it is a contract in the UK and subject to the jurisdiction of the English Court. If Mrs Sharab’s evidence is believed the agreement is for a fixed fee as varied (if that is believed) by the agreement on the jet in Libya. The question of reasonableness will not apply unless I find that there was an agreement as alleged by Mrs Sharab but do not accept her evidence that the fees were agreed. In that eventuality the English contract will be subject to an implied term that she is entitled to a reasonable fee for her services.

Both Counsel accept that that will be a very difficult line to follow because Mrs Sharab’s credibility is severely damaged if not ruined by my rejection of her primary case as to the amount. It will be very difficult to reject that evidence but conclude that was nevertheless some form of agreement.

Under the English contract the question of “being stabbed in the back” is not put forward as a Defence. That was despite the fact that being stabbed in the back was described by the Prince as being the most important aspect in the Arab world. Despite that importance it was not in his solicitor’s reply, it was not in his Defence, it was not in his witness statement and it was not alluded to in the written closing submissions on his behalf. Despite all of that it was clearly important to the Prince because he mentioned it on numerous occasions in cross examination. Mr Pymont QC accepts however that that is not a basis for a Defence if I find there is an English contract. If it is for a French contract I cannot adjudicate on it.

The Prince and his lawyers have clearly tiptoed along a delicate line. As part of that tiptoeing whether by solicitor’s letter, pleading, witness statements or submissions there has not been much put forward as a positive case.

If I conclude that the contract was made in the United Kingdom for a fixed price and that Mrs Sharab has substantially performed it then the stabbing in the back even if established is no Defence. The analysis would be that the stabbing in the back must be some kind of repudiatory breach which the Prince accepted and thereby relieved him from his obligation to pay anything to Mrs Sharab. That has nowhere been put forward by the Prince. It is difficult to see how that could properly be the case. If she has accrued the right to the commission that is a debt due to her. The Prince therefore even if she committed this repudiatory breach after the contracts had been entered into and the actions alleged occurred could only abate the commission thereby incurred if the Prince had suffered some loss which he could set off against the sum that was due to her. It is like the position where a vendor of land receives part of the purchase price (not the deposit) and then discharges the contract by reason of a repudiatory breach committed by the purchaser i.e. he fails to complete for example. On that analysis absent a provision which entitles him to retain the part paid purchase price he must return it less any damages that he has allegedly suffered. The ability to pocket a part paid purchase price when a purchaser fails to complete is a popular misconception.

Drawing all these threads together I find that no clear conclusion can be drawn in favour of either party over the correspondence post September 2006 except that I find that the Prince’s failure to put a positive case is because he did not believe he had a positive case. As I have said that is supportive evidence to lead me to reject his Defence to Mrs Sharab’s claim. It is not the main point however. The main point of this case is determined on the credibility of Mrs Sharab in evidence subject to two days cross examination and the credibility of the Prince subject to the same length of cross examination. Anything else is peripheral as there are no documents for example of a contemporaneous nature which allude to either side’s case.

I approach both parties’ evidence on the basis that allowances must be made for errors that occur in evidence and cross examination because this is in respect of events which are up to 12 years old. There are no contemporaneous documents to enable either party to refresh any memory.

I accept that it is impossible to conclude that there was an agreement made at the Ayoush restaurant that was binding that made no reference to the amount of commission. If I reject Mrs Sharab’s evidence as to the $2m commission I cannot see that I can accept her evidence that there was an agreement on that date. The purpose of the expert evidence is to determine what would be a reasonable level of commission absent the express agreement. On my conclusions of the evidence it does not arise but for the sake of completeness I will deal with the expert evidence.

In paragraph 5 of his closing the Prince reiterates that he always acknowledged that there was an arrangement made between him and Mrs Sharab on the yacht in Cannes whereby he would pay her a reasonable sum in effect if she was to achieve a completed sale. This is not correct and his solicitor’s first letter said the opposite. He told me he would still be prepared to abide by that arrangement (T5/194) and he accepted the discretion had to be exercised reasonably (T5/213). I do not understand why he has not done that. It is not a question of jurisdiction. The failure on his part to pay that sum I accept is only justiciable in France. Even then it would only be justiciable if I determined that is where the agreement was made.

I do not so determine. I am quite satisfied that the final agreement was made in the Ayoush restaurant after the initial preliminary discussions on the yacht in Cannes. I also find that agreement was varied as Mrs Sharab contends on the Boeing in Libya when the $10m fee was agreed. In so doing I am preferring her evidence to that of the Prince.

I should refer to two matters concerning Mrs Sharab’s evidence which concern me. First in his witness statement (paragraph 48) the Prince insinuated that Mrs Sharab was receiving secret commissions from the Libyans. There was no evidence for that whatsoever and the allegation was not put to her. It is somewhat dishonourable on the part of the Prince to make such an allegation supported by a statement of truth and then in effect implicitly abandon it.

Second during exchanges between Mr Pymont QC and myself concerning the Prince’s letter dated 18^th May 2003 (see above) which he sent to Colonel Gaddafi Mr Pymont suggested that if I find that the letter was written in a misleading or even fraudulent way then I should also implicate Mrs Sharab (T7/105/23). He never put that to Mrs Sharab. In fact Mr Pymont QC seemed to think he did not have to. The short answer to that is as I said at the start of the trial if a witness is going to be criticised in closing it is only fair to that witness to be given the opportunity to be confronted with that and provide an answer. It is also only fair to the Judge because the Judge wants to assess how the witness reacts before him when challenged on the basis of dishonesty or making misrepresentations. It is not acceptable for Counsel not to put those points and expressly or by implication criticise a witness. It would have been perfectly feasible for Mr Pymont to have questioned Mrs Sharab on the basis that “you say the Prince has been dishonest in respect of this letter but you too must have been dishonest because you were a party to that”. That he never did. I therefore reject his criticisms because they were not put and I disregard them. It is particularly important in this case because whilst it is quite clear that the Prince actually knew what price he paid for the Airbus and actually knew what money he spent on improving it (none) Mrs Sharab has no direct knowledge of either of those matters. She is entirely dependant on what the Prince tells her. It does not follow therefore in any event that even if the Prince made representations or even was dishonest that Mrs Sharab knew about it. That demonstrates the curse of the failure to put questions in cross examination.

There is a further failing in respect of Mrs Sharab’s expert Mr El-Turk. In paragraph 66 of his closing Mr Pymont said:-

“to the extent that the Court is inclined to pay any regard to the evidence of Mr El-Turk it is submitted that he was a partisan witness who sought to give evidence as to fact and to argue the case in favour to Mrs Sharab”.

Apart from an allegation of fraud it is difficult to see a more serious allegation that can be made against an expert bearing in mind his duty to the Court and the serious consequences that can now potentially visit upon experts. It was never put. It is quite inappropriate for Counsel to make such a serious criticism of a witness in his closing when that witness has not been given an opportunity to respond to that in live evidence in front of the Judge. I repeat that if a witness is to be criticised in a closing fairness and justice require that criticism to have been explored in the live evidence. I reject that criticism as being both inappropriate and in any event incorrect. There was nothing in Mr El-Turk’s evidence (see below) which in my view suggested he was partisan.

I found Mrs Sharab to be an impressive witness. Her recollection of the various events was clear and she remained unshaken by the cross examination. The Prince’s was somewhat different. The Claimant in her closing appended extracts from the cross examination of the Prince to show his evidence was unreliable. I append that cross examination. It accords with my analysis of the Prince’s evidence. I found his evidence confusing, regularly changing on occasions and unreliable.

In addition to the letter of 18^th May 2003 the Prince had further difficulties.

On 2^nd May 2004 he wrote to Colonel Gaddafi (D2/69) and said that he had had to buy the 747 instead of the Airbus and that he could not have bought the 747 if the Libyans had not agreed to purchase the Airbus. It is now apparent on late disclosure during the course of the trial that the 747 was purchased by an agreement dated June 2002 and completed in September 2002 about a year prior to the sale of the Airbus to the Libyans.

Further in claims to justify holding on to the $70m in the context of intended cancellation of the contract the Prince told the Libyans that he had incurred expenses on the Boeing 747 project i.e. $8.7m. In a later calculation he said the amount was $22m. He dealt with this in an unsatisfactory way in cross examination (T5/167/3-10). It was not true and he must have known it at the time. He instructed his employees in effect to invent anything to justify retaining the $70m. This too was “tactics” a legitimate course of conduct when dealing with Libyans.

Mrs Sharab in her closing submits that these were untruths and were deliberate lies. She gives a number of reasons for this first that they are “too whopping” to be mistakes. Second there was clear motive for both of them. In the letter of 18^th May 2003 the motive was to obtain a higher price by a false representation relevant to the apparent value of the aircraft. In the claim for consequential losses the reference to the Boeing 747 were made up so as to obtain more money. Both of these it is submitted demonstrate that when he says he does not lie on oath or at all he is telling a further untruth.

There was a further difficulty for the Prince in respect of his discussions with Mr Alaeddin. Mr Alaeddin submitted an invoice for his services to date dated 19^th May 2004 (D2/72). The amount claimed was $465,500. The Prince’s hand written notes are instructive:-

“On this matter there is no agreement whatsoever!! We can neither accept nor tolerate these bills that have no basis – just because there are indications that F/FA’s efforts have failed with Libyans; this should not be translated into a hit and run situation – this bill is with no basis and is rejected immediately”.

In cross examination he accepted there had been an agreement but the note was a pressure mechanism (T4/172-175). He not only accepted that but accepted in cross examination that the bill had actually been paid (although he could not remember when). Further no explanation was provided as to the basis on which Mr Alaeddin was to be remunerated after May 2004. It is clear that he did a considerable amount of work after that date yet no invoices have been produced. It is simply unbelievable that there are no invoices. (See T4/177).

There is a further hand written note by the Prince on the letter: – “as for my arrangement with the lady in Amman, Jordan, I will stand by that. No more, no less!!” The Prince in cross examination suggested that this was a reference to a discretionary payment. I reject that. It does not explain the phrase “No more, no less.” I conclude that that can only refer to a fixed sum see T4/179-T4/182. I stress again that this is only a secondary piece of evidence to support my primary conclusion based on the relative performances of Mrs Sharab and the Prince in the witness box. I have already observed that the matters complained of by Mr Sharab in her closing were only uncovered as a result of disputed disclosure applications.

He was extensively cross examined on these matters and his answers were basically that these kind of activities were acceptable when one deals with Libyans. He virtually admitted that he had said things that were untruthful in the letters.

I conclude that contrary to the Prince’s assertion in his evidence when he threw down the gauntlet about him telling the truth outside court that that itself was not true. These letters show that when the occasion demanded it the Prince was prepared to write things in letters that he knew were untrue.

It is not necessary for me to determine that he was telling lies in the witness box. He came close to admitting it as the extract of his cross examination on the 18^th May 2002 letter above shows. His reluctance to accept reality and in effect putting his veracity on the line with his statement then being shown not to be entirely correct is a significant factor which supports my impression of his evidence as a whole. As a witness he is unreliable as to the events that occurred. There are a number of reasons for this.

First he has in reality no clear recollection of what happened so long ago. This is in complete contrast to Mrs Sharab. The reason for that is because the Prince does lots of deals and this was but one of them. For Mrs Sharab this was undoubtedly a very important deal for her and it is therefore likely that she would remember things far more clearly than he did. Second his evidence changed over a number of times and third as he is a man who is clearly prepared to write false letters it shows that I cannot accept his assertion that he never tells lies in contracts and written documents. All of those lead inexorably and inevitably to support a conclusion that his evidence is completely unreliable. It reinforces the poor impression he gave in the witness box in contrast to Mrs Sharab.

He accepted this:-

“Judge: [Mrs Sharab] might remember things more clearly, perhaps because she has somewhat fewer meetings than you have during the year and therefore you are not in a position to challenge what she says.

“A: I accept that, Your Lordship” (T4/95).

He also accepted that he really had no idea what happened 13 or 10 years down the line [T4/95]. Finally he accepted (T4/135) when I raised a concern about the fact that he was unable to answer questions about what happened without looking at his witness statement. His answer was “Yes. My recollection and telling is not good at all. I am sorry.”

The main part of the dispute turns on whether I accept Mrs Sharab’s evidence or that of the Prince. For the reasons that I have set out extensively above I have overwhelmingly concluded having seen them both give evidence and being cross examined that I prefer Mrs Sharab’s case. I have set out above extensively my conclusions in the disputed areas of evidence.

Finally I should deal with the contention that the Prince made for the first time when he was cross examined that Mrs Sharab had back stabbed him. The basis for that is the letter above dated 20^th April 2006 which is completely misinterpreted. It is plain when taken in context that what was going on was that Mrs Sharab was pointing out bluntly to the Prince that in regard to the final failure to complete it was his fault not the Libyans. That was based on her understanding that the Libyans wanted to be sure that they were going to be in a position to maintain the aircraft after they had purchased it. I see no reason why the problems about that could not have been rectified fairly rapidly. It is not back stabbing for an agent to point out bluntly to the principal what they see as a problem. It is the kind of thing that a good agent would do. It is no use to a principal to have an agent who lackey-like simply agrees with everything the principal says. In effect the Prince is criticising Mrs Sharab for her speaking bluntly to him. That in my view is not back stabbing. This is reinforced by the fact that it was only raised for the first time in oral evidence. I reject it. I do not believe Mrs Sharab back stabbed the Prince as alleged or at all. It is clear that she was becoming fairly desperate but that is hardly surprising giving the length of time that the matter had taken and (I suspect) the large amount of commission which was riding on it. Colonel Gaddafi and the Prince could take a more leisurely approach to all of this because whilst these figures are large they are not excessively large so as to cause either Colonel Gaddafi or the Prince difficulties.

I therefore determine that she is entitled to the $10m commission which she claims.

Both experts gave evidence well and impressively. I have already rejected the suggestion that Mr El Turk was partisan. He was certainly laconic (which is not actually a criticism). I found him compelling as a witness as regards the transaction in question.

Equally I found Mr Cope compelling in relation to his expert evidence.

The difficulty of Mr Cope however was that his evidence did not relate to the kind of transaction under consideration. Persuading a person as volatile as Colonel Gaddafi or even trying to get to see Colonel Gaddafi and then negotiate the sale of a prestigious jet to him is not run of the mill business. Mr Cope acknowledged that in cross examination. Mr Cope has no experience of these transactions at all. His evidence is only of use if one is dealing with an ordinary sale of a jet by way of a normal business operation. His evidence therefore with respect to him misses the point entirely. By contrast Mr El-Turk’s evidence was in relation to such activity. He gave several examples of his own activity in these kind of transactions and his evidence in that regard was not significantly challenged.

I therefore accept Mr El-Turks’ evidence. He gave evidence in his report of a number of transactions where he obtained significant fees far in excess of the type of the fees Mr Cope was talking about.

During cross examination Mr Pymont QC asked him whether he would object to producing the documentation in respect to those transactions. This kind of “informal” disclosure application put to witnesses when they are being cross examined is unacceptable. First the witness is in the box and is under pressure. Second he undoubtedly will feel the pressure of a need to comply because he would not wish to look obstructive in the eyes of the judge. Third there may be any number of reasons as to why those relevant documents might not be produced such as third party confidentiality. The witness does not have any opportunity to have advice in that regard.

Further in this case the Prince’s solicitors received the expert report in April 2013. They raised a number of questions but they did not ask for these documents. Mr El-Turk left the witness box but was unable to produce the documents in time.

There is no basis therefore for criticising him for not producing the documents and no basis for challenging his evidence as to the level of commission that he obtained.

He identified a number of factors which would lead to the commission. I accept that the profit that is due to be made is not relevant (see Para 6.7 of his report) but otherwise I accept his report and in particular Para 6.13. This transaction was unique, the seller was unique, the buyer was certainly unique and Mrs Sharab’s ability to influence the buyer was a very key point. None of that was challenged in cross examination. I should say that there is no clear evidence as I have already said to suggest that the Airbus was bought for considerably less than $95m. The Airbus appears to be worth between $40-$50m if it was a normal Airbus for commercial use. The fit out costs can be considerable. I have no idea how much it costs to put a 9 hole golf course inside a jet but I cannot imagine it is cheap nor would the Jacuzzi and the very specialised internal special furnishings shown in the pictures produced to me of the Libyan rebels besporting themselves in the Airbus after they captured it (assuming the various bullet holes can be repaired).

I have already set out the large amount of expertise that Mrs Sharab brought to this contract which is unique and the considerable efforts she took in negotiating it and attempting to finalise it after it all fell apart initially. I agree with Mr El-Turk that the circumstances of the transaction were unique and that Mrs Sharab would therefore be entitled to claim a large commission. Mr El-Turk in Para 7.9 of his report suggests that the commission could be 10% of the purchase price. That was about $12m. He suggests a higher figure if the profit was greater but as I have said I have no evidence to show that the Airbus cost less than 95 million dollars. His minimum figure is 7.5%. Taking into account his evidence and the uniqueness of the contract and the performance of Mrs Sharab I would conclude if this arose that it would be reasonable for her to be paid $10m. That is to say 8.33%.

President of Libya. I know how his brain working.

Para 34 - T2/40/23 to T2/41/6

Para 37 - T4/97/19 – T4/99/9

will happen if the deal is consummated.

Para 37 - T4/101/10 to T4/102/25

Para 40 - T4/103/5 to T4/106/9.

implication she should get to know that.

Para 44 - T4 / 2 / 7 – 12.

begun, not an agreement. That is the only correction.

Para 50 - T4/117/12 to T4/128/2

something I do full-time.

Para 51 – (T4) Line 22 onwards of page 120 to page 121, line 2

to give her any amount and certain time.

Para 56 - See T4/135/2-3

all. I'm sorry.

Para 61 (3) - T4 / 147 to T4 / 149