Harb v HRC Prince Abdul Aziz Bin Fahd Bin Abdul Aziz

This is the trial of the Claimant’s claim in this action. She claims an oral agreement made on or around 19th/20th June 2003 between her and the Defendant was concluded whereby the Defendant agreed to pay her £12m and to procure the transfer to her of two properties in Pier House Cheyne Walk Chelsea London (Apartment 108 and Apartment 129) (“the Properties”).

The agreement was said to be made orally and in order to satisfy promises and assurances given by the late King Fahd of Saudi Arabia (“the late King”) to provide for the Claimant financially for the rest of her life (he being the Defendant’s father). It was also in return for the Claimant agreeing to withdraw and then withdrawing certain factual assertions she had made about King Fahd (“the late King”).

The Defendant is a Royal Prince of Saudi Arabia.

The action has had somewhat of a lengthy procedural history. The events which are the subject matter of the claim occurred in 2003. The Claim Form was initially issued on 15th June 2009 (with less than 4 days of the six year limitation period remaining). It was issued by Stephen Hunt (as trustee in bankruptcy of the Claimant). The Claimant was declared bankrupt on 1st May 2008. Her total creditors according to the solicitors for the trustee in bankruptcy were in excess of £3m including at least £85,000 for gambling and large amount owed to relatives and friends for living expenses. The Claimant has had a lavish lifestyle.

Following the issue of the proceedings the trustee in bankruptcy obtained an order on 18th June 2010 from Mr Justice Norris giving him permission to discontinue the proceedings on terms as to payment of costs. The Claimant intervened in the proceedings and ultimately Mr Kevin Prosser QC (sitting as a Deputy High Court Judge) on 15th April 2011 set aside the notice of discontinuance and gave directions for the sale of the cause of action. On 27th October 2011 the Court of Appeal varied his order. On 8th August 2012 the trustee in bankruptcy assigned the action to the Claimant for £1,000. Consequently Master Teverson on 20th November 2013 ordered the Claimant to be substituted in the place of the trustee in bankruptcy and gave directions for the conduct of the action.

In response to the claim the Defendant raised a claim of sovereign immunity. An application based on that was heard by Mrs Justice Rose who delivered a judgment on 25th June 2014 dismissing it. The Defendant appealed. The Court of Appeal heard that appeal on 20th February 2015 and dismissed the Defendant’s appeal. On 9th March 2015 Deputy Master Cousins gave directions for the conduct of the trial. Those were varied by consent by Mrs Justice Asplin on 17th March 2015. The Court of Appeal judgment was handed down on 13th May 2015.

Their Lordships were troubled as to the point of determining the issue of sovereign immunity.

The concern arose out of paragraphs [7] and [8] of Rose J’s judgment which were as follows :-

“[7]. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father's estate is entitled to now. I should make it clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.

[8]. The second assumption is that if Mrs Harb's claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the prince would have been able to claim sovereign immunity in the English courts to defeat her claim.”

The difficulty is that neither the late King nor the late King’s estate was sued in this action and any attempt to bring what is now the late King’s estate in to the action would be objected to on the grounds of limitation. The claim against the Defendant is one of personal liability not as agent for the late King. Thus if the Claimant establishes that the Defendant is personally liable there is no question of sovereign immunity. Conversely if the Defendant establishes that he was acting as agent for the late King the claim fails irrespective of the claim to sovereign immunity.

This point also troubled the Supreme Court when it ultimately adjourned the Defendant’s application for permission to appeal.

The late King died on 1st August 2005.

On 16th January 2004 the Claimant commenced proceedings against the late King seeking financial provision under section 27 of the Matrimonial Causes Act 1973. In that action she swore an Affidavit on 15th January 2004 which was referred to in these proceedings. On 15th December 2004 Dame Butler-Sloss upheld the late King’s claim for immunity from suit in the matrimonial proceedings. On 26th May 2005 the Court of Appeal made an order prohibiting the publication of various documents. As I have said the late King died on 1st August 2005 and on 9th November 2005 the Court of Appeal held that the matrimonial proceedings had abated with the death of the late King.

I attach to this judgment an “agreed” factual chronology (although it will be seen that some of the facts are not actually agreed).

The claim can be discerned from the Amended Particulars of Claim. It is alleged that the Claimant married the late King in March 1968 when he was then the Minister of Interior of Saudi Arabia. It is said that at some point prior to 1970 he promised and assured the Claimant that he would provide for her financially in a manner that would enable her to live with the dignity and respect befitting his wife. Thereafter it is stated (as was indeed the case) that the late King provided money to the Claimant.

On 13th June 1982 the late King was proclaimed King of Saudi Arabia and it is said that he continued to provide money from time to time and repeated his promise to the Claimant.

Whilst it is admitted that the late King had a stroke in 1995 it is also said that he failed to provide financially for the Claimant and accordingly her solicitors wrote a letter on 7th May 2003 to the late King including an Affidavit of the Claimant of the same date (“the Affidavit”) she intended to rely upon in proposed proceedings under section 27 of the Matrimonial Causes Act 1973. I observe that those were the proceedings which were unsuccessful as set out above.

The primary claim is that the Claimant accompanied by a friend of hers Hama Mustafa-Hasan (“Mrs Mustafa-Hasan”) went to the Dorchester Hotel on 19th June 2003. After a heated discussion the Claimant alleges that the Defendant agreed that he was willing to honour the terms of the late King’s promise to provide financially for the Claimant for the rest of her life and offered the sum of £12m and the transfer of the Properties to her. In return the Claimant was to agree to withdraw and then withdraw certain factual assertions she had made about the late King (“the Agreement”).

In purported performance of the Agreement at the Defendant’s request the Claimant says she made a statutory declaration dated 20th June 2003 where she withdrew the assertions she made in the Affidavit to which the Defendant had taken exception (“the Statutory Declaration”). In addition she also obtained letters signed by her then solicitor Sara Simon of Burton Woolf and Turk and her then Barrister Philip J Marshall QC promising to keep confidential the information that had been provided to them by the Claimant (“the Letters”). Finally she arranged for a full written document to be prepared (“the draft Contractual Agreement”) which was to be signed by the Defendant and herself dealing with the Agreement and provisions for its implementation.

The Claimant alleges that these documents (“the Documents”) were provided to the Defendant in various ways but he ultimately refused to pay the money and procure the transfer of the Properties.

The Claimant’s primary case is that the Agreement was made and she provided the consideration. Her secondary case is that the Defendant became similarly obligated by requesting and receiving copies of the original versions of the Documents and that he thereby became contractually bound to pay the money and procure the transfer of the Properties (“the Alternative Agreement”).

After I delivered the draft Judgment the Defendant in a note suggested that I should reconsider this aspect on the basis of paragraphs 13-16 of their written closing. I have considered those but I do not accept the analysis put forward by them. They refer to Mr Tager QC’s opening (T1/115-116) and his analysis of the scenario. I agree with that analysis. It is clear that the Claimant would not be entitled to her benefits under either form of agreement without providing the benefits required of her by the Defendant. That necessarily involved him being satisfied as to the nature of the retraction. However that requirement is satisfied by the production of the Documents to the Defendant and his silence.

One of the Defendant’s defences was that at all times he was acting as agent for the late King. Whilst it is admitted that the late King had a relationship with the Claimant in or around 1968 the claim that the late King married the Claimant (and that she is thus his widow) was not admitted.

The Re-Amended Defence admits that the late King made substantial payments from time to time and includes references to a Deed dated 1st March 2001 (“the 2001 Deed”) which was executed between (1) Faez Martini (“Mr Martini”) as agent for the Undisclosed Principal (namely the late King) and (2) the Claimant. By the 2001 Deed the late King through Mr Martini paid the Claimant £5m in consideration of certain warranties and undertakings that she gave in the 2001 Deed. Mr Martini deducted £100,000 from the £5m as a fee for his role in that arrangement.

The Defence admitted that the late King suffered a stroke in 1995.

Whilst the Re-Amended Defence put in issue factual matters surrounding the alleged Agreement the Defendant denies that any agreement was made as alleged by the Claimant although as I have said he accepted that some form of meeting took place on the day. In essence the Defendant’s case is that no agreement was struck; he gave the Claimant the indication that she would have to withdraw all allegations against the late King before he would speak to her.

The fall back defence is that the Claimant dealt with the Defendant as an agent for the King. In particular it is alleged that she was “fully aware that this was a capacity in which such responses were being sought and given” and any agreement that was made between the Claimant and the Defendant was in his capacity as agent for the late King.

Finally the Defendant was given permission to amend at the start of the trial to allege that if an agreement was formed as the Claimant alleged it was void for uncertainty because it refers to “certain factual assertions” or “certain allegations” or “certain allegations in relation to the conduct and behaviour” of the late King.

Two important points were pleaded in reply (paragraph 13 (ii) and (iii)).

In the former the plea is that it was denied that the Defendant was acting as agent or representative and the Agreement was made with him personally “or in circumstances in which he became personally responsible for discharging the obligations thereunder towards [the Claimant].”

In sub paragraph (iii) the Claimant denies that the Defendant told her that he was agent for the late King.

That somewhat obscure sub paragraph does not hide a contention that the Defendant if he establishes that he was acting as agent for the late King is liable for breach of his warranty of authority. That is hardly surprising given the absence of the late King or his estate from this action. As the late King and his estate have not been sued there is no claim or evidence led on their behalf which might put the Defendant’s supposed authority in issue so as to give rise to a claim for breach of warranty. The claim will fail simply because the Claimant failed to join the late King or his estate in this action before limitation ran out.

There are therefore 2 issues:-

There is a long history between the Claimant the late King and the Defendant. It is referred to in her witness statement and in the Affidavit. It does not seem to me to be necessary to go into that save in respect of construing what the Claimant was supposed to do as her part of the bargain. In addition I see no need to become involved in the issue for example as to whether or not she actually married the late King as the allegation is sufficient consideration on her part if she gives up that claim. Equally whilst she provided the texts of two versions of a book she has written recently about her life with the late King, I do not see any relevance of those materials in this action. Whatever went on before it led to the meeting on 19th June 2003 and that meeting either culminated in a binding agreement or it did not and that agreement (if made) was either made by the Defendant on behalf of the late King or with the Defendant being personally liable.

The Claimant gave evidence and was extensively and vigorously cross examined by Mr Ian Mill QC who appeared for the Defendant together with Ms Shaheed Fatima.

Her evidence was unsure on some points of detail and bizarre (for example her belief that at the meeting in the Dorchester, the Defendant asked her to go upstairs for the purpose of maybe killing her). Equally bizarre was her assertion that the 2001 Deed was entered into by Mr Martini on behalf of the Defendant and not the late King. That latter point she clung on to for some time despite the fact that her Counsel in his opening said exactly the opposite.

One has to be careful however of seeking to suggest a witness’ evidence is unreliable because matters of detail as to where the meeting took place or in what room are not accurately recalled. The events were 12 years ago. I would be suspicious if a witness had a perfect memory of every detail that took place unless there was some contemporary documentation available as an aide memoire. There is some contemporary documentation but at the end of the day it is a matter of assessing how the Claimant performed under cross examination.

In my view she performed well and maintained the same position with regards the key points of the Agreement despite the firm cross examination. Mr Mill QC had an extremely difficult task because he had no material to put to the Claimant. Further he was severely handicapped (fatally so in my view) by the fact that the Defendant chose not to give evidence before me in support of his own case. In the Defendant’s closing the Claimant predictably is severely criticised as regards her evidence. I will deal with that criticism below. Notwithstanding that criticism I am of the view that she is telling the truth about the Agreement.

She is further supported by primary and secondary evidence.

The key supporting witnesses are Mrs Mustafa-Hasan and to a lesser degree Rania Harb (the daughter of the Claimant). Mrs Mustafa-Hasan is a long standing friend of the Claimant. It was not suggested that she was lying in her evidence. Her recollection was clear and she maintained it confidently throughout the cross examination. I found her to be a most compelling witness before me in the case and I accept her evidence. She supports the Claimant in her evidence that there was an agreement and she also gave evidence about delivery of original Documents to 12 Kensington Palace Gardens which is a house which might be owned by the Defendant or his mother or both of them. That delivery took place according to her evidence on 7th August 2003.

Both of the Claimant’s lawyers gave witness statements on behalf of the Claimant. Both were accepted without challenge by the Defendant.

Mr Marshall QC gave evidence about a conference that took place between him, his instructing solicitor Mrs Simon and the Claimant. He said it took place at 10.30am on 20th June 2003. He was informed by the Claimant that she had entered into an oral agreement with the Defendant the night before. He understood the agreement to be:-

Mr Marshall QC indicated that the translation ought to be by somebody who was independent.

He duly prepared a copy of his letter of 20th June 2003 and he drafted the statement (which became a Statutory Declaration) for the Claimant to sign retracting her comments and the draft Contractual Agreement. These documents he emailed to Mrs Simon at about 14.51.

Mrs Simon adopted his evidence as being true.

First is the Statutory Declaration declared by the Claimant on 20th June 2003. In paragraph 1 she confirms that she has had the opportunity to reflect upon “certain allegations” that she had made in relation to events that occurred over 30 years ago and in particular the suggestion that the late King was addicted to and misused illegal drugs.

Second the Statutory Declaration states in paragraph 2 that she now realised and accepted that she was wrong to make such allegations and that she might have been confused and misinterpreted events through the passage of time so that she wishes to apologise unreservedly for the fact that she had “falsely” accused the late King of misconduct and misbehaviour that she now accepted to be untrue.

The third paragraph affirms her respect and her regard for the late King.

The draft Contractual Agreement recites the making of the Statutory Declaration, the Letters by the lawyers and the payment of £12m to the Claimant by the Defendant and a letter from the Defendant to Mr Martini instructing him to hand over the keys to the Properties and thereafter to transfer legal title thereto to the joint names of the Claimant and her daughters.

As a result of those transactions the Claimant accepted the £12m and the Properties in full and final settlement of all promises made to her by the late King in full and final settlement of all legal and moral claims she might have against him wherever and howsoever arising. Clause 2 has a confidentiality clause but Clause 3 has an obligation on the part of the Defendant not to “cooperate with any attempt by any third party to impose upon the [Claimant] any legal, social, moral or other financial penalty or sanction arising out of any allegation by [her] or on her behalf in relation to the circumstances and nature of her relationship with the King”.

The preparation of these Documents (and of course the contemporaneous notes made by Mr Marshall QC referred to in paragraph 3 of his unchallenged witness statement) is supportive of the fact that there was an agreement but I accept it is not strongly supportive; they could equally have been prepared in escrow for finalising an agreement in the future.

On 19th June 2003 Mrs Simon records receiving a telephone call from the Claimant at 9am. In that she is told that the Claimant has an appointment with the Defendant at 11 am that day, that she had only recently returned from Geneva and that the Defendant was now in London. She informed Mrs Simon that they saw each other in Geneva and they would only need 10 minutes together.

This is supportive of the fact that there was a meeting in Geneva and that the Claimant had a meeting arranged with the Defendant at 11am that day.

The Claimant’s solicitors wrote to the Defendant on 26th June 2003 setting out their understanding of the Agreement and enclosing copies of all four Documents as drafted and confirmed that they were holding Documents pending completion signed by the Claimant, Mrs Simon and Mr Marshall QC and that they were ready to proceed to complete the transaction. The Defendant does not deny receiving that letter nor a chaser sent on 7th July 2003 and a more detailed one of 15th July 2003, both of which were sent by the Claimant’s then solicitors.

The Claimant was supported by her daughter Rania who gave evidence although her evidence was clearly peripheral to the main matters. I make the same observation of the statement of the Claimant’s mother which was accepted without challenge by the Defendant.

The Defendant did not give live evidence before me. Various reasons were given as to his non attendance; the last being a suggestion that King Salman of Saudi Arabia had forbidden him to give evidence. This was set out in a statement signed by the Ambassador of Saudi Arabia dated 15th July 2015. I considered this document when I decided to order the Defendant to attend and give evidence. It is not a satisfactory document. First it has an error in it so far as I am aware which says that it is contrary to the law effectively for a member of the Saudi Royal Family to give evidence in foreign court proceedings concerning matters related to the late King Fahd. I refer to the decisions of HRH Prince Abdul Aziz Bin Michal Bin Abdul Aziz Al Saud v Apex and Global Management Ltd [2014] EWCA Civ 1106 and Sharab v Al-Waleed [2013] EWHC 2324 (Ch). In the latter Prince Al-Waleed gave evidence before me and was extensively cross examined. Were there any prohibitions of the kind identified by the Ambassador he would not have done so. In the former an expert on behalf of Prince Abdul Aziz in that case gave evidence that members of the Saudi Royal family do not participate in a court case. He produced no objective written documents to substantiate the existence of the supposed protocol and failed satisfactorily to explain how Prince Al-Waleed came to give evidence before me.

The Defendant provided 2 statements (the translations of which into Arabic ultimately were signed by him) and those statements were his evidence in the case.

I had made it clear when I made the order for his attendance (dated 16th July 2015, and which I subsequently discharged on 21st August 2015) that I was hopeful that he would attend so as to do justice to his case. Given the oral nature of the dispute it is self evident that one of the protagonists who does not give evidence is seriously disadvantaged when compared with the position of the other party who does give evidence, presents himself or herself to the court and submits to cross examination. I am invited by the Claimant in her closing submissions to disregard his evidence completely. The basis for that submission is that the second witness statement which was served in English was stated as having been read to the Defendant in Arabic and he approved the witness statement in its entirety. The original version described 12 Kensington Palace Gardens as the Defendant’s own home but the Arabic version changed it to “my mother’s home” although in evidence Mr Martini described it variously as of unknown ownership, jointly owned 50-50 or as belonging to the Defendant.

I am not prepared to disregard the Defendant’s evidence completely.

Mr Mill QC in the closing submissions set out the principles to be applied to hearsay evidence. They are well known. Under section 4 of the Civil Evidence Act 1995 various factors are set out as to the weight if any to be given to hearsay evidence. It seems to me that the Defendant’s hearsay evidence should be given significantly reduced weight because of the factors set out in section 4(2) (a) (b) (in the sense that it was not contemporaneously made) (d) and (f).

I am satisfied that this evidence was put forward so as to avoid giving live evidence and being cross examined. Even if I am wrong in that regard the plain fact is that the Claimant gave evidence and was vigorously cross examined for a number of days on her evidence. The Defendant did not submit himself to such an ordeal.

The inexorable conclusion is that I should give little or no weight to the untested hearsay statements of the Defendant. That does not mean that the Claimant’s evidence is accepted as it is possible for it to be rejected as a result of her cross examination. I have not rejected her evidence despite the heavy criticism of it by Mr Mill QC in his closing submissions.

Equally I have considered the Defendant’s evidence notwithstanding the possible inference I could have drawn from his failure to give evidence under the decision of Wisniewskie v Central Manchester Health Authority [1998] PIQR 324 and Lennox Lewis v Eliades [2005] EWHC 488 (Ch) (a case in which both leading Counsel were involved at some stage) save that I do infer as I have said above that no good reason was given for his non attendance and it was in my view to avoid being cross examined. Mr Mill QC in his closing said I should draw an adverse inference because the Claimant’s evidence failed to mount a case to answer in relation to the formation of the Agreement, the satisfaction of the condition of the alleged Alternative Agreement, the Defendant’s capacity and the enforceability of the alleged Agreement (i.e. for voidness or illegality). In addition he submitted that the reason for the Defendant’s non attendance was sufficiently credible. I made several attempts to address the Defendant’s various concerns as to the giving of live evidence but they were of no avail. I wanted the Defendant to do justice to his case but he failed so to do. It is fair to say that the Defendant thereby seriously handicapped his advisors in the presentation of his case. They were deprived of the opportunity of presenting the Defendant as being a witness of truth who would affirm his evidence after cross examination.

It is not necessary to apply the Wisniewskie principle nor disregard the evidence put forward in the Defendant’s witness statements. One does not have to go that far in this case when it is obviously vital for oral testimony on the agreement to be put forward. This is especially so when the Claimant has an independent witness (albeit a friend of hers) who supports her. When balancing the two types of evidence the conclusion is inevitable namely I reject the Defendant’s evidence where it is at variance with that of the Claimant and Mrs Mustafa-Hasan.

The Defendant called 2 live witnesses, Mr Martini and Omar Jrayed (“Mr Jrayed”).

Mr Martini was a clever quick witted individual with a 48 year diplomatic career in the Saudi Embassy as Head of Protocol. I found him to willing to dovetail his evidence or fail to deal with matters to support the position of his sometime Employer the Defendant. Thus I was sceptical of his evidence that there was nothing wrong with the late King marrying either a Palestinian or Christian without them needing to convert (T5/11). His answers as to why he had the Properties transferred into his name were unsatisfactory as were the circumstances which led him to take £100,000 from the £5m being paid to the Claimant under the 2001 Deed. Equally his reluctant acceptance that he had received (in January 2003) read and forwarded (in March 2003) the Claimant’s Arabic appeal to the Defendant by fax when he must have known the true position was unacceptable. Where his evidence was at variance of that of the Claimant I reject it.

Mr Jrayed brought very little to the case and when he brought it he brought it badly. He could not remember the details in his witness statement; he could not remember the year of the events I do not accept his evidence as having any significance and once again where it departs from that of the Claimant I unhesitatingly prefer that of the Claimant. I simply cannot believe that being asked to recall many years after this event he would have had any recall of it whatsoever.

The criticisms of the Claimant fall into two categories. First there is a criticism of her claim and her conduct and second there is the criticism of her evidence. The former is of course merely prejudicial; the latter goes to her credibility as a witness.

It is fair to say that the Claimant does not project an attractive personality in her claim. In effect she was seeking substantial funds from the Defendant as a price for her silence in respect of private matters that affected the late King.

This was not her first foray into this method of extraction of money. On 1st March 2001 she entered into the 2001Deed with Mr Martini.

In that she obtained £5m (less £100,000 which Mr Martini deducted as a fee for himself). The sum was obtained in exchange for the transfer of a flat in Beirut (which probably had questionable value then and is still empty today) and the copyright of all the material identified in the 2001 Deed (clause 1). These materials (“the Materials”) related to the information and documentation she possessed relating directly or indirectly to the “Undisclosed Principal”. This was plainly the late King. Mr Tager QC opened it as being the late King but the Claimant somewhat surprisingly insisted in her evidence and in cross examination that it meant the Defendant which is preposterous.

This was plainly payment to buy her silence in respect of her relationship with the late King.

In addition to the £5m she had received substantial sums over the years as identified in her witness statement.

She used £3m to pay her debts. Within the next 2 years the balance of £1.9m was also gone. It is fair to say that she maintained a high maintenance lifestyle as she says to which she had become accustomed whilst being supported by the late King.

She accordingly approached the Defendant for some more money in late 2002.

Whether or not the claim is attractive does not affect the determination of the claim. Either she has a contractual claim or she has not.

Under the 2001 Deed she agreed that she would keep confidential any information or knowledge or documentation that she had in her possession or control at any time or in the future might have in her possession in relation to (inter alia) the Materials and/or the Undisclosed Principal. Under clause 2 (c) she agreed expressly that she would not herself write or cause to be written her life story, autobiography, diary, memoirs or any other form of information document or account of events relating to the Materials and/or dealings with the Undisclosed Principal. She also agreed that she would not cooperate or offer assistance to any third party to enable it to publish any material and finally she agreed that she would hand over all documentation that related to those items including photographs, materials and documentation in relation to them.

There was a dispute as to the extent of the Material that was handed over.

What is not in dispute is that after the 2001 Deed the Claimant has written two versions of her life story. As the Undisclosed Principal is the late King any cause of action under the 2001 Deed will fall to be enforced by his estate and not the Defendant (contrary to the Claimant’s apparent belief). She has obtained considerable sums for the sale of the book rights.

Another example of her unattractive behaviour was the letter her solicitor wrote on 4th March 2003 to the Defendant. She was cross examined on this (T2/445-46). It was a naked attempt to extort money the Defendant contends in his closing (paragraph 5.5.1). I agree. I could not see that in March 2003 she had any credible cause of action which could be threatened against the Defendant. As the exchange showed it is impossible for there to be any viable cause of action in her favour as against the Defendant at that time.

The Defendant in his closing criticises extensively the evidence she gave which was said to be inconsistent with her witness statement. I would have been surprised if someone had given consistently the same detail of evidence in respect of the relevant meetings. Where a person sat, where a person joined in a meeting or where they went or who else was in the lobby seemed to me to be items which it is unrealistic to expect the Claimant to have a clear recollection of 13 years after the events.

More significant are the Letters of her solicitor and Counsel (and the contemporaneous note referred to earlier in this judgment) and the correspondence which support her primary contention that the Defendant entered in to a binding agreement as she contends.

This is not a complicated case factually; it turns entirely on one short discussion between the Claimant and the Defendant which took place in the presence of Mrs Mustafa-Hasan.

I have therefore come to the conclusion (I accept after considerable doubt) based on the evidence of the Claimant, the supporting evidence of her other witnesses and the Documents referred to above that there was the Agreement as she alleges.

The Defendant has 3 further bases to challenge the claim. First it is submitted that the Agreement/Alternative Agreement is void for uncertainty. Second it is submitted that the Agreement/Alternative Agreement is void for illegality and finally it is asserted that the Defendant entered in to the Agreement/Alternative Agreement with the Claimant (if it is established) as agent for the late King. If that latter point is established then the Claimant has sued the wrong person and it is too late by reason of limitation (as the Court of Appeal observed) to sue the late King’s estate. I will deal with those in turn.

The Claimant in her Amended Particulars of Claim (paragraphs 7.2 and 9) alleges that the Agreement and the Alternative Agreement required her to withdraw “certain factual assertions”. In the solicitor’s letter of 4th March 2003 nine factual matters in respect of the relationship she had with the late King are set out. One of those allegations related to alleged drug abuse.

She repeated those allegations in the Affidavit dated 7th May 2003 and expanded upon them to set out what she said was the whole of her relationship with the late King.

The Defendant in paragraph 15 of his second witness statement indicated that after the conversation in the Dorchester on 19th/20th June 2003 he was expecting a personal apology and a total withdrawal of all her allegations against the late King.

In her witness statement the Claimant said that the Defendant sought a retraction only in respect of the late King’s alleged drug addiction. Mr Tager QC opened the case on the basis that the Agreement or the Alternative Agreement was in exchange for a retraction of the allegation concerning the drug addiction. The Claimant in her evidence (T2/126) (for example) said that the Defendant raised his hand and swore by the almighty God that if [she] retracted whatever was written in her Affidavit he was ready to give her her rights. She changed that to it being the main or only requirement. On being pressed by Mr Mill QC (T2/128-132;T2/137-138) she settled for drug addiction only.

Mrs Mustafa-Hassan’s evidence was that she understood that the Defendant would ensure that the Claimant would receive her monies if she retracted what she said in her Affidavit (paragraph 18 of her witness statement) (T3/143).

The Statutory Declaration relates to “certain allegations and the draft Contractual Agreement refers to “certain allegations in relation to the conduct and behaviour” of the late King.

The Defendant contends that all of these descriptions mean that the Agreement/Alternative Agreement lacks contractual force because it is too vague or uncertain.

I do not agree. It is clear to me that the allegations referred to in the Statutory Declaration and the draft Contractual Agreement relate back to the matters referred to in the solicitor’s letter dated 4th March 2003 and in the Affidavit.

I was referred to various extracts from Lewison on the Interpretation of Contracts (5th Edition 2011) by Mr Tager QC in his closing. It is clear that the Courts are generally unwilling to hold a contract void for uncertainty particularly where it has been partly performed (paragraphs 8.13 and 8.14). In any event intrinsic evidence is admissible to explain what expressions mean in the Agreement. The reference to “certain allegations” in my view is plainly a reference back to the documents that I have referred to. After all these were the matters which were raised by the Claimant in the months leading up to the meeting in June 2003.

I have no difficulty in construing the Statutory Declaration and the draft Contractual Agreement to referring to all of those matters. Therefore the allegation of voidness fails.

The illegality arises out of paragraph 2 of the Claimant’s Statutory Declaration where she said:-

“I now realise and accept that I was wrong to make such allegations against the King and as a result of the passage of time I may have become confused and misinterpreted events, and I wish to apologise unreservedly for the fact that I have falsely accused His Majesty of misconduct and misbehaviour that I now accept to be untrue”.

The Defendant fastens on the word “falsely”. The Defendant points out that in her evidence before me in cross examination the Claimant said that she did not believe the allegations that she said were false in her Statutory Declaration were untrue (T3/96-98). Thus the Defendant submits she has made a false statement in the Statutory Declaration. It is suggested therefore that she is guilty of a misdemeanour pursuant to section 2 of the Perjury Act 1911 which provides that if a person being required or authorised by law to make any statement on oath for any purpose and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true he should be guilty of a misdemeanour.

It is the Statutory Declaration that is being attacked by the Defendant. This is somewhat unusual because the Defendant’s case is that the Statutory Declaration is true namely that the allegations were false. He wishes the Claimant to be penalised on the basis of her evidence that she believed that the statement in the Declaration withdrawing the allegations is untrue i.e. she believed that they were true and not false.

Thus the Defendant submits that the Agreement or the Alternative Agreement were illegal as to performance because of the falsity of the statement in the Statutory Declaration see Chitty on Contracts (31st Edition 2012) paragraphs 16-007, 16-012 and 16-014. It is submitted that the Claimant made the Statutory Declaration and she made it knowing her declaration was false or she did not believe it to be true. That accordingly makes the claims even if established unenforceable.

I reject this submission for a number of reasons. First the statement under the Statutory Declarations Act is not caught by the Perjury Act in my view as it is not made as being required or authorised by law. Second the provision of a Statutory Declaration is a substitution for any requirement in any Act to provide an oath and nothing more. This Statutory Declaration was not made pursuant to any statutory requirement.

Third and most significantly it must be established that there is an untruth. The difficulty that the Defendant faces is that the attack on the Claimant is as to her “belief” and not as to the statement of facts in the Statutory Declaration. She might believe that what she has said is true. However it does not follow that what she believes is correct. She might therefore withdraw the statements and say she falsely accused but that depends on whether or not the facts were true.

There has been no investigation as to the factual allegations beyond the existence of them. There is accordingly no basis for suggesting that she has made a false statement and therefore no question of illegality.

The Defendant denies that he is personally liable contending that he acted on behalf of the late King.

The burden of proof in that regard is plainly upon him.

In his first witness statement in paragraph 8 he sets out the closeness of his relationship with the late King and that he had his trust to perform duties for him “and so I became his agent”.

In paragraph 10 he said “in representing the King, I passed information to him and obtained instructions from him. I had no independent authority to bind the King in any way”. In paragraph 11 he said that the King made all his decisions and that the Defendant’s role at all times on instructions to bring information and documents together and communicate these to him so that he could take the decisions. Finally in paragraph 12 he says “there was no formal written agreement between the King and myself setting out this agency relationship. Neither of us regarded this as necessary given our close personal relationship”.

In his Re-Amended Defence (paragraph 26 (c)) the Defendant alleges that the Claimant was fully aware of the capacity in which the responses were being sought and given by him at the meeting in the Dorchester on 19th /20th June 2003. That is not repeated in his witness statement and it was not put to the Claimant. There was some cross examination about the relationship (T2/40-44 and T2/159). At various points in that cross examination it is fair to say that the Claimant referred to the Defendant as being a representative of the King and about having to speak to somebody who holds court in the name of the father and describing him as the CEO of his father. Her evidence in this aspect was confused. What is clear is that it was not suggested to her that she knew the Defendant was acting in a representative capacity. The cross examination was designed to elicit her belief and nothing in my view clear came out of the confused exchange.

The 2001 Deed was entered in to by Mr Martini on behalf of the late King. However that does not assist the Defendant in my view for a number of reasons. First the Defendant was not involved in the 2001 Deed. Second the agency is clearly spelt out in the 2001 Deed.

The Defendant provided no disclosure to support the agency. He adduced no evidence showing other instances of his agency which could have assisted him and no evidence from any other witnesses to support it. Mr Martini could have given evidence about this agency I would have thought. The only reference he makes to an agency is in his second witness statement (paragraph 10) in relation to the 2001 Deed and commenting that he has the “equivalent of a power of attorney of the [Defendant] prepared in or about 2008 which allows me to deal with certain matters on the [Defendant’s] behalf……….”

The Defendant’s statements are so vague and un-particularised that they cry out for investigation. That opportunity was not available because he did not attended for cross examination. Once again I can give little or no weight to these generalised untested assertions as to his agency. I therefore determine that on the balance of probabilities he has failed to establish that he was acting as agent for the late King when he entered in to the negotiations and concluded the Agreement in June 2003. He is therefore in my view personally liable. There may be many reasons why the Defendant would be willing to assume personal liability for (what is for him) a relatively modest amount. I will not speculate but I have of course been deprived of an opportunity to explore that because of the Defendant’s absence.

This failure on the part of the Defendant to adduce evidence means that even if he is an agent he must show (and he has failed so to do) that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability (Yeung Kai Young & Anr v The Hong Kong and Shanghai Banking Corporation [1981] 1 AC 787 per Lord Scarman).

Norris J in my view accurately summarised the law in the decision of Innovatis Investment Fund Ltd v Ejder Group Ltd [2010] EWHC 1850 (Ch) at paragraphs 54-56 as follows:-

“54 I deal, first, with the question of agency. Although it was Mr Sevket's case that the deal was done direct between Mr Lasshofer and Mr Kebil, or Mr Dhillon on behalf of Mr Kebil, that was not the position that emerged in the evidence. There is no doubt in my mind that the transaction which was entered into at some point on 13^th and 14^th August was entered into directly between Mr Lasshofer and Mr Sevket. If Mr Sevket wishes to say that he entered that transaction as an agent, then that must appear clearly from the evidence.

55 In Yeung Kai Yung vhttp://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2010/1850.html&query=Innovatis+and+v+and+Ejder&method=boolean - disp68#disp68 Hongkong and Shanghai Banking Corporation [1981] AC 787, 795 Lord Scarman declared the true principle to be this:

"The true principle of law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is held to have expressly or impliedly negatived his personal liability".

56 The circumstances in which that may be done were the subject of a classic analysis by Donaldson J in Teheran-Europe v  ST Bolton Tractors [1968] 2QB 53, at pages 59-60. He pointed out that

"An agent can conclude a contract on behalf of his principal in one of three ways:

(a)

By creating privity of contract between the third party and his principal without himself becoming a party……

(b)

By creating privity of contract between the third party and his principal whilst also himself becoming a party to the contract ...

(c)

By creating privity of contract between himself and the third party, but no such privity between the third party and his principal….."

In the third case, in relation to the third party the concluder of the contract is a principal, but in relation to his principal he is an agent. The consequence of that arrangement is that the only person who can sue the third party, or be sued by him, is the agent”.

After I reserved judgment the Defendant provided a note analysing the Claimant’s agency authorities (which were relied upon for the first time in her reply in closing submissions). I have considered that note.

It seems to me that where A contracts with B it is to be presumed absent anything else that they are the parties to the contract and they are the parties who can sue and be sued upon it. If B for example wishes to say that he contracted as an agent it is my view that the burden is plainly on him to establish that. I do not see that there is (as the Defendant puts it in his supplemental closing (paragraph 3.1)) a presumption as such; it is simply a question of fact in each case that one is entitled to assume that when A contracts with B there are no other third parties involved.

The principles are in my view accurately summarised in the Innovatis case set out above.

In the present case there is in my view no suggestion that the Claimant can bring her case against the Defendant if it is established that she knew the Defendant was contracting as agent for the late King. At best all that can be said in my view is that the Defendant says that he was acting as agent for the late King but did not disclose that to the Claimant. If that is the correct factual analysis then the position is that the Claimant can sue the Defendant on the Agreement and vice versa see Bowstead and Reynolds on Agency (20th Edition 2014) paragraph 9-012. I disagree with the submissions in the Defendant’s supplemental closing that Yeung Ki did not establish a general proposition. The general proposition is summarised in paragraph 55 in Innovatis. Equally where an agent concludes a contract on behalf of his principal the consequences were accurately set out by Norris J in the same decision in paragraph 56.

The actual facts of those cases in my view are relevant to this consideration of the general propositions.

As I have set out above the Defendant has not adduced any credible evidence to suggest that there was actually an agency. It follows that the Agreement was made between the Claimant and the Defendant where both were principals.

I accept the analysis put forward by the Claimant in her closing that there is no evidence that the Defendant said anything to the Claimant that could be regarded as excluding any liability on the ground that he was acting on behalf of the late King. He clearly understood that the Claimant was expecting payment from him and for him to arrange the transfer of the funds. That is how the Claimant understood him and how the Claimant explained the Agreement to her lawyers contemporaneously.

The affairs of the Saudi Royal Family are not easy to discern to outside sources. Merely because the Claimant described the Defendant as being a representative of the King is in my view not significant. The plain fact is that the Defendant would enter in to agreements for the benefit of the late King but not necessarily on behalf of the late King.

I have determined that the Claimant’s primary case is successful. In case I am wrong I need to consider the Alternative Agreement.

I can deal with this quite shortly I am quite satisfied on the basis of Mrs Mustafa-Hassan’s evidence (which I prefer to that of Mr Martini) that she delivered the original Documents as she says in her corrected witness statement. I have doubts about the reliability of Mr Martini’s evidence for the reasons I have set out above and where he is at conflict with that of Mrs Mustafa-Hassan I unhesitatingly prefer her evidence.

The Defendant therefore having obtained the original Documents without handing over any money failed to implement his part of the Alternative Agreement.

I accordingly determine that the Claimant’s case is made out under both the two bases.

The remedy in respect of the £12m is straightforward. As regards the Properties it is more difficult. The Defendant does not own the Properties and it is asserted that he cannot procure their transfer. The Properties are currently held in the name of Mr Martini he said for the benefit of the late King’s estate. Who is entitled under the late King’s estate is not clear and it might be that it has to be divided up amongst a large number of relatives.

It seems to me the proper remedy is an order for specific performance which is what I will order. If the Defendant demonstrates by credible testimony that he is unable to comply with the order for specific performance then I will entertain under the usual liberty to apply provisions an application by the Claimant to seek an award of damages instead.

I am grateful as ever to all the legal teams for the helpful way in which the papers were put together for the trial and the cases were presented. I have not found this an easy case to decide but ultimately the Defendant’s failure to attend has meant that his evidence is substantially weakened. I wish to emphasise that I am not punishing the Defendant for his failure to attend; it merely means that I can give far less weight to evidence which is untested and general which cries out for questioning when weighed against evidence which has been subject to a very thorough and penetrating cross examination by Mr Mill QC. At the end of the day I preferred the Claimant because of her own evidence and because of that of Mrs Mustafa-Hassan and the limited contemporaneous documents which all support her. That overwhelms the untested evidence of the Defendant. The Defendant’s legal team have presented the case as thoroughly as they could have done but their efforts were severely undermined by the failure of the Defendant to give live evidence in the case.

Blue – Defendant’s account