Ghura & Ors v Dalal & Ors

Shokat Mohammed Dalal (“Shokat”) was a Blackburn Pharmacist who became an investor in the Dubai property market. He used both his own money and money provided to him by his older brother Khalid Dalal (“Khalid”). The question in this case is whether Shokat is personally liable to repay Kushinder Singh Ghura (“Nindy”) and his brother Apinder Singh Ghura (“Apinder”) and their friend Amarjit Singh (“Ama”) money which they or their companies paid to Khalid which were then deployed directly or indirectly in property deals in Dubai arranged by Shokat.

It became apparent to Nindy and Ama that these property deals in one way or another involved Hanif Khoda (“Mr Khoda”) and some of his companies, in particular Profile Group Limited (“Profile”). When the Dubai property crash came in the latter part of 2008, Profile became unable to repay its funders and Nindy and Ama (and their companies) in turn did not recover from Khalid all of the monies they had laid out: and so the question in this case has arisen.

It is not in dispute that on or about 1 July 2008 Chan Casuals Limited (Nindy’s family company) (“Chan”) paid £750,000 to KD Investment Company Limited (“KDI”) a company owned by Khalid: and that Boi Trading Company Limited (Ama’s family company) (“Boi”) also paid £750,000 to KDI. It is agreed that Nindy and Ama have between them been repaid £600,000: so that what remains unpaid is £900,000. Is Shokat bound to repay that?

It is not in dispute that on about 1 June 2008 Boi paid Khalid’s company Blackburn Clothing Company Limited (“Blackburn”) the sum of £1.763m (part of which had been funded by Apinder and Nindy and part of which had been funded by Ama) which payment to Blackburn was transferred to Shokat: and that on the same day just under €600,000 was paid by Apinder and Nindy’s Hong Kong company Vastlake Limited directly to Shokat. These two payments total 16,831,371.00 AED. This money was used by Shokat to make a 5% down payment to purchase plot D55 on a development called “The World”, a series of artificial islands being created Nakheel PJSC (“Nakheel”) a state backed property developer in Dubai (“D55” and “The World” respectively).

In fact although the 5% deposit was paid Nakheel never offered a contract so when the Dubai property crash came in the late autumn of 2008 Shokat (in whose name the deposit had been paid) was able to claim back the payment he had made: and under an award of the Dubai World Tribunal he recovered judgment and Nakheel was ordered to pay that sum “into court” at the Dubai World Tribunal. Immediately before the trial of this action it was anticipated that the sum would be released and that Shokat would be able to repay it to Apinder, Nindy and Ama, so that the dispute before me would essentially be about the costs of Apinder, Nindy and Ama’s claim in this action, and those of an interlocutory injunction which they had obtained against Shokat. But at the start of the trial it became clear that Nakheel was claiming a set off against Shokat in respect of other purchases by Shokat from Nakheel so that the sum would not be released. In this action I must therefore decide the following issues:-

It is not in dispute that on the 20 August 2008 Ama alone paid £400,000 to Khalid (a significant part of which was paid in cash). What is in dispute is whether Khalid solicited this payment on the basis that it was a loan to himself (so as to enable him to make a loan to or an investment with Shokat on his own account): or whether Khalid solicited this payment on behalf of Shokat (to enable Ama to make a loan to or an investment with Shokat on his own account). Ama seeks to make Shokat liable. Whether he can do so requires the determination of the following issues:-

When the Dubai property market collapsed, Nindy and Ama managed to salvage something from the wreckage as a result of direct negotiations with Mr Khoda. It is common ground:-

In a Counterclaim, Shokat claims that Nindy and Ama have failed to issue to him shares in AKA to which he has entitled and have caused AKA to deal improperly with the value in The Edge to Shokat’s detriment. Nindy and Ama say that after the original arrangements were made Shokat agreed that they could have first call on The Edge realisations to the exclusion of him and of other potential participants such as Khalid and Kashif Ahmed.

The outcome of this dispute turns on determining the following issues:-

There is a second (and discrete) limb to Shokat’s Counterclaim concerning what (if any) agreement was made about how a costs liability for proceedings in the Dubai World Tribunal is to be borne. Shokat says that he is liable for one third and that Apinder/Nindy and Ama are between them liable for two thirds. Apinder/Nindy and Ama say that they are only liable to pay 30%. I must therefore determine what (if any) agreement was made about legal costs.

One of the remarkable features of this case is that, notwithstanding that millions of pounds were passing from Apinder/Nindy and Ama and their respective companies to Khalid against Shokat, there is a complete absence of any contemporaneous formal agreement as to the nature and terms of the transaction. I must therefore endeavour to reconstruct what happened from the scant e-mails generated at the time of the transaction, and to assess the extent to which these reinforce or undermine the written and oral testimony about the oral agreements which it is said were made.

Inevitably both sides sought to rely heavily upon what participants said and what they did after the transactions went sour. The general rule is that subsequent acts may not be referred to in order to ascertain the nature of the legal obligations into which parties had earlier entered. As Lord Hoffman pointed out in Carmichael v National Power [1999] 1 WLR 2042 at 2051A the one exception to this general rule is where the original agreement was oral, and subsequent events may be relied on as evidence tending to show what it was the parties thought they had agreed. But there is a clear limit on the extent to which this exercise is useful. That is because when things go wrong parties are likely to exploit whatever opportunity presents itself to limit their exposure (either their liabilities or their losses) and to interpret past events in a way that is most advantageous to their present needs. What they say and what they do after matters have gone wrong can therefore be a positively misleading guide as to what they actually agreed when all seemed set fair.

The evidence of all of the witnesses was infected with this vice. Their present recollection of the events of 2008 was coloured by what was to their present advantage and by an attempt to rationalise past action. Nor does the documentary evidence relating to subsequent events provide any surer guide, because it became clear that documents of apparent key significance had been fabricated by or on behalf of Ama/Nindy and Ama.

The witnesses called for the Claimants were Nindy, Apinder, Ama and Ama’s daughter Serena Bellamy. The documents disclosed Nindy, Apinder and Ama to be opportunists who exploited events to secure their maximum advantage. The same trait was evident in their testimony, and each of them recast events so as to afford themselves the maximum chance of recovering the hundreds of thousands of pounds which they have lost. It is not possible to say that their evidence was pure invention: as Mr Anderson QC pointed out in closing, if they were determined collusively to invent a false narrative they would have done a better job of it. They were undoubtedly prepared to fabricate documents: but for the principle narrative my assessment was that it had a kernel of truth which was distorted in the telling so as to render the account given in written and oral evidence unreliable. This was especially true of Ama, but Nindy and Apinder’s association also taints their evidence.

Two examples will illustrate what underpins my assessment.

First, documents fabricated at the direction of Ama to support a tax write off claim by Boi. In May 2008 Boi transferred to Khalid (or to his company) sums totalling £1.910m. Boi’s accounts for the year ending 31 July 2008 show £1.159m paid for an “investment” described as “acquisition of fixed asset investments”: and £750,000 being lent (which was included under the heading “debtors” in the accounts).

When the Dubai property crash happened Ama doubted whether he would get his money back by either realising the investment or calling in the loan. So he had two documents drawn up in December 2008 each headed “Deed of Guarantee and Indemnity”, one relating to the £1.159m investment and the other relating to the £750,000 loan. The completed documents were only disclosed during the course of the trial, even though (since they purported to record in the recitals to the Deed the very nature of the transaction) they were plainly relevant.

In the accounts for year end 31 October 2009 Boi wrote off both the £1.159m investment and the £750,000 loan. New accountants advised that because the £1.159m had been treated as an “investment” in the 2008 accounts no tax relief would be available: but given the terms in which the transactions had been described in the Deeds of Guarantee (produced in December 2008) there appeared to be a justifiable argument that both transactions were loans.

Ama decided to implement this plan. If the loans were to be written off it would have to be demonstrated both that the primary obligations of the borrower and the secondary obligations of the guarantor would yield no return. So Ama had a Deed of Release drawn up that was entered on the 23 June 2010 under which Boi released the guarantor and indemnifier. This document was not disclosed until during the trial. Then the accountants wanted to know if there was “a formal loan agreement at the time the two sums were advanced”: so in response to that, on 31 May 2011 Ama forwarded new front pages to the two Deeds of Guarantee and Indemnity originally dated 18 December 2008. That which related to the payment of £1.159m made two changes: (a) the document now described itself as “Loan Agreement Deed of Guarantee and Indemnity”; and (b) it said it was an “agreement… made on this 30^th day of May 2008”. That which related to the payment of £750,000 made similar changes, but re-dated the agreement 1 July 2008. These fabricated documents are documents of which disclosure was given in the ordinary course. In the Particulars of Claim in this action Nindy, Apinder and Ama say (and verify the statement) that Khalid is liable under the Guarantee dated 30 May 2008 even though it is plain that that document is fabricated and even though it is plain that Khalid was released on the 23 June 2010. Further, it is clear that having entered into the Deed of Release with Khalid, Ama thought better of it, kept it from Boi’s external accountants, and instructed them to tell HMRC in a letter dated 25 August 2011:-

“It is important to realise that our client has not released either the original creditors or guarantors from their obligation to make good the amounts borrowed”.

HMRC then decided to explore the basis upon which the loans were said to be impaired. It requested copies of all correspondence with all parties showing demonstrable attempts to recover the debts. This simply led Ama (in collusion with Khalid) to fabricate in March 2012 a whole series of backdated demand letters. These were duly sent on to HMRC by Boi’s external accountants who told them that “there is no possibility of the loans… being recovered”. These letters were not disclosed until February 2014 and further disclosure relating to them only occurred during the trial. Ama said he considered them to be “privileged”. But it seems to me that disclosure statements signed by him were quite simply false. It also seems to me that Ama was prepared to create, alter and suppress whatever documents he thought necessary to achieve his economic goal and to let others tell lies on his behalf to the same end.

This account has focussed on Boi and Ama. But Nindy and Apinder were also creating their own false document trail by creating Loan Agreements: and I am satisfied that they knew what Ama was about (even if they did not know the precise details of every fabricated document), that they colluded with Ama to create a false document trail and that they used used Ama’s internal accountant to help them achieve their own ends. E-mail traffic between April and July 2010 shows that Nindy prepared draft agreements both for Chan and for Boi, sending them to Boi’s internal accountant for review, and asking him to obtain Khalid’s signatures upon the documents. Khalid would only sign the documents if he was immediately released from the obligations recorded in the documents he signed: so the whole process was a complete charade designed to produce documents that could be used to deceive others.

An insight into the way Apinder, Nindy and Ama operated may also be gleaned from the internal accountant’s report of events on the 23 July 2010 in these terms:-

“Hello Apinder

I have managed to get Khalid to sign the Loan Agreement. He did it conditionally upon receiving the below letter from you and I told him there would be no problem in relation to this – I had to say to him that Nindy had agreed to prepare the letter – otherwise there was no way on this earth that he would have signed the agreement. Apinder – you will have to play the “bad cop” – because next time he gets in touch with me – I will tell him that Apinder is being a nuisance and refusing to do the letter – for exactly the reasons you outlined yesterday”.

I think it may fairly be said that Nindy and Apinder are also opportunists who will exploit events to secure the maximum advantage to them, even if it involves fabrication and deceit.

So far as Nindy and Apinder and their company Chan is concerned, they too sought to obtain tax relief on investments and loans they had made. To help them do so between April and July 2010 they fabricated two loan agreements (between Chan and KDI and between Chan and Blackburn). Disclosure of the agreement between Chan and KDI was given. But no disclosure was given of the agreement with Blackburn. No disclosure was given of a Deed of Guarantee and Indemnity also dated 15 February 2008 which Nindy and Apinder caused to be prepared: and one only knows of its existence from an incomplete Deed of Release dated the 26 April 2010 (the day Nindy sent the Loan Agreements for signature) which was disclosed by Khalid. I am therefore not satisfied that Nindy and Apinder have given full disclosure of the complete range of documents which they caused to be fabricated. All that can be said in their favour is that they did not in fact deploy them in the pursuit of their claim to write of the debts for tax purposes. Again it may fairly be said that Nindy and Apinder are prepared to exploit any opportunity to advance their position even if it involves fabrication and deceit, though they at least do recognise some boundaries.

A second example concerns the record of a meeting that was held on 19 September 2011 between Shokat, Ama and Serena Bellamy to discuss issues relating to then current proceedings concerning plot D55 at The World and the claims that might arise between the parties. The agenda for the meeting was based on a summary that Shokat had made of an earlier meeting. As matters were discussed Serena Bellamy made a note on Shokat’s computer by inserting text into a slightly modified version of Shokat’s original note. The detail does not at present matter. What Ama was trying to do was to create a record that he could use against Shokat in relation to the sharing of the proceeds of sale of certain assets. It is common ground that Serena made the record. Shokat says that the object of the exercise was that at the conclusion of the meeting the record would be reviewed, agreed between the participants at the meeting, and then sent to lawyers to draft an agreement based on the recorded matters. This did not happen.

What actually happened was that the meeting terminated abruptly because of other commitments. Serena Bellamy then, without telling Shokat, emailed a copy of her note to Ama’s mailbox. She then deleted the email from Shokat’s “sent items” so that he would not know it had been dispatched. But Shokat learned of this almost immediately because his computer was synchronised with his Blackberry, which informed him that the e-mail had been sent. When he discovered this he was angry, and it was agreed between himself and Ama that the e-mail would be deleted from Ama’s mailbox. Serena Bellamy deleted it (using Shokat’s computer) in his presence. The parties thus agreed that the document prepared by Serena Bellamy should not be put into circulation.

What then happened was that Ama retrieved the deleted e-mail from his recycle bin and circulated it. When proceedings started Ama and Serena Bellamy said that in fact Shokat had provided them with a print-out of this document, which demonstrated that he accepted its accuracy. But they did not disclose any print-out.

Serena Bellamy was the last witness called by the Claimants. In re-examination she produced what she said was the actual print-out created by Shokat and handed over at the meeting. She said that the print-out had been placed in a plastic sleeve in a file of miscellaneous documents concerning dealings with Shokat, but the file had been taken apart during the preparation of the case and its entire contents (save for the print-out) shredded because the contents were duplicated elsewhere. But the print-out was not shredded because Ama had said in October 2012 “Have you still got the original printout? Put it aside”. Notwithstanding that the significance of the documents was thereby recognised, it was not disclosed or referred to by Ama in the course of his evidence, and was only produced at the very last moment it could be produced and used by the Claimants.

I do not intend to give any weight to this document. I do not accept its authenticity, for I cannot see why Serena Bellamy should have adopted the subterfuge of sending the e-mail to Ama’s account and then deleting it from Shokat’s computer, nor why the parties should have gone through the performance of deleting the e-mail from Ama’s inbox, if everybody knew that in fact there was a hardcopy that had been produced by Shokat and given to Ama. But I rest my decision on the fact that everybody agreed that the email should be deleted: and if that was their agreement then they have agreed that it should not be deployed to the advantage or disadvantage of any of them.

The point of referring to this event at this juncture is to characterise what occurred as deceitful, dishonourable and manipulative behaviour which the Claimants are prepared to deploy (for they presented the united front) in order to claim their money from Shokat. I do not trust the documents they produce. There is a real risk that even the contemporaneous documents they generated record events which they wish to record as having occurred, rather than events as they actually did occur; and a particular risk of being misled by the use of language favourable to the position of the creator of the document which is now said not to have been “challenged” at the time.

I regarded Shokat as the most credible of the factual witnesses (though that certainly does not mean he was completely reliable). I thought that in general (though not invariably) he was more likely to be closer to the truth than any of the Claimant’s witnesses. He was willing to acknowledge mistakes in recollection (though I have been alert to the possibility of unacknowledged mistakes): but there were times when he took too-ready refuge in assertions that he could not remember, and some occasions on which his recollection clearly was faulty (no doubt for the reason identified in paragraphs [12] and [13] above).

I did not hear evidence from Khalid. One of the great oddities of the case was that although Khalid’s Defence had been struck out and he was debarred from defending, the Claimants took no steps to pursue him the judgment. This was explained by the fact that Khalid is in a business partnership with Serena (Ama’s daughter) which partnership supplies Boi with goods to the value of about £3.5 million per annum. So the Claimants do not want to jeopardise that business or create difficulties for Khalid. That is why “fire” was concentrated upon Shokat though the key dealings were with Khalid. On the other hand, the Claimants did not call Khalid to support their evidence as to the content of various conversations where he was the other party to the conversation or where he was present at conversations between the Claimants and Shokat, even though Khalid’s willingness to assist them had gone so far as to participate in the fabrication of documents to help with Boi’s claims for tax relief.

These are my findings of fact material to the determination of the issues I have identified. They do not constitute a compete narrative of all of the events.

Khalid and Ama have a business relationship stretching over two decades. But until the events in question Nindy and Apinder had no such relationship. Nobody had any relationship or dealings with Shokat, though Khalid told Ama (sometime after 2006) that Shokat had moved to Dubai and was successful in the property world.

Ama was interested in putting some of the cash generated by Boi’s trading to use. In 2003/4 (the date he gave in oral evidence: his written evidence said 2007) he had missed out on an opportunity offered by Khalid to “flip” villas on The Palm at Dubai (i.e. putting down a 10% deposit and then selling on the benefit of the contract before the next contractual instalment payment was due) and was “gutted” at not making what he regarded as easy money. He wanted to make up for the lost chance.

The chance came in 2007. Khalid suggested that Ama or one of his companies should “put up” (to use a neutral term) some money that would be used to do deals in Dubai for (again to use a neutral term) “a return”.

Let me deal immediately with the language used and its legal effect. Ama was a Sikh: to him a “loan” at “interest” was a straightforward commercial transaction. Khalid was a Muslim: to him a “loan” at “interest” was forbidden usury. So the language each side used about the transaction differed. But they were agreed about the nature of the transaction: and it is the actual nature of the transaction (not the label they attached) which determines its legal character.

The transactions that were proposed were loans because they involved the fundamental concept of the repayment of an amount equivalent to that originally paid over. Ama was to advance money and would later receive back the whole of what he advanced plus a payment representing the time-value of the money.

Ama’s evidence was that Khalid said that the loans were to be made to Shokat, that Shokat would pay 2.5% or 3% per month, that the loans were “risk-free” and 100% guaranteed, that Shokat’s business partner was “a billionaire”, that Shokat had a lot of his partner’s property worth “billions” in his name, that he (Khalid) had been making similar loans to Shokat, and that Shokat had asked him (Khalid) to approach Ama.

There is no evidence that Shokat in fact conferred any authority upon Khalid to solicit such loans or to make any of the statements attributed to Khalid. I find that Khalid was not acting with the actual authority of Shokat in soliciting this money.

Ama says that he was reluctant to make any loan but “finally…thought that in view of [his] business relationship with Khalid there was goodwill available to [him] so that Khalid would find some way to refund [him] should anything go wrong with the loan”. In fact at 12:41 on 26 June 2007 Khalid informed Ama of the opportunity for “investment fixed return for 2 months”, and by 28 June 2007 Boi (Ama’s company) had paid Blackburn (Khalid’s company) £500,000 (“Loan 1”). It is known that Khalid transferred this to Shokat who invested it in Dubai and on 31 August 2007 repaid £580,000 to Khalid (giving an annualised return of 16%). Of that only £510,000 was returned by Khalid to Ama (giving an annualised return of 12%). Khalid kept a fat margin for himself.

In the light of this successful outcome Ama, introduced Nindy to the next transaction. Khalid wanted £400,000 for 4 months in return for an interest payment of £14,000 (an annualised rate of 10.5%). On 26 October 2007 Chan and Boi each put up £200,000, paying that money to Blackburn (Khalid’s company) (“Loan 2”).

Loan 2 had not matured when the next opportunity came along, which was to lend £500,000 for 6 weeks for a return of £17,500 (an annualised rate of 30%). This time Nindy and Apinder took the whole of what was available. On 4 January 2008 Chan paid Boi £500,000, and Boi immediately transferred that on to Blackburn (“Loan 3”). Blackburn bundled this with other funds and advanced at total sum of just under £900,000 to Shokat between 9 and 15 January 2008. Shokat was not aware that any of this money derived from Nindy and Apinder.

Loan 2 should have been repaid on 26 February 2008. The principle was not repaid until 11 March 2008 when Boi received £400,000 from Khalid, the interest being left outstanding. Ama complained. Khalid said it was down to problems with currency transmittal and conversion. Ama said he wanted extra interest for the delay. Ama’s evidence is that Khalid said he could get no extra interest from Shokat and therefore could not pass any on.

Loan 3 should also have been repaid in mid-February 2008. But there was also delay in repaying this. So Ama used the repayment of the Loan 2 principle to repay Loan 3 to Nindy and Apinder (adding his own money to make up £507,623). Loan 3 was eventually repaid (less a currency transaction charge) together with the interest on Loan 2 by Blackburn to Boi on 8 April 2008 and Ama was able to recoup himself and to repay Nindy’s share of Loan 2 to him. There were some small interest payments still due but everything was sorted out by mid April 2008.

There then arose a further opportunity. On 22 April 2008 it was agreed between Khalid and Shokat that there would be an investment of £1 million at a return of 23% for a two month period from 27 April 2008 until 27 June 2008 (an annualised return of 138%). Shokat acknowledged :-

“Agreed if I keep for longer than 7 days thereafter then I will pay u a return on every week kept.”

Khalid had enquired if Shokat could “make sure you have his properties in your name”. But Shokat did not respond to that request. There is nothing in the context to suggest that this was anything other than a request by Khalid for the provision to Shokat of some sort security by Mr Khoda of Profile (the ultimate borrower). I do not read it as an indication that the £1 million was to be invested in a specific property deal that was to be carried out in the name of Shokat.

That same day Boi sent £1 million to Blackburn (of which £750,000 came from Nindy and Apinder and £250,000 came from Ama) repayable in two months on terms that they would receive a return of £15,000 (an annualised return of 18%) (“Loan 4”). On 24 April 2008 Blackburn sent the money to Shokat who invested it with Profile.

I find that this transaction between Chan or Boi on the one hand and Blackburn on the other was not at the time recorded in documentary form. I do, however, note that when documents were later fabricated they record the parties to the transaction as being KDI (a company belonging to Khalid) as borrower and Chan/Boi as lenders, and in the case of some documents also with Blackburn and Khalid entering into indemnity obligations. They do not record any personal obligations on the part of Shokat.

Loan 4 was repaid early, on 9 June 2008 with a “return” of £15,000 (although according to a schedule prepared by Shokat he paid Khalid £20,000).

It was probably at this point (between late April and late May 2008) that a meeting took place at Manchester. It was arranged by Khalid and attended by Ama, Nindy and Shokat (who was visiting the UK). Khalid had told Ama that although he had missed out on profiting from The Palm, there was an even more prestigious development being undertaken in Dubai called “The World” and that Shokat could get development plots from the developer Nakheel at cost price (and had bought two himself). It may be inferred from Shokat’s attendance at the meeting that he must by this point have been aware that Ama, Nindy and Apinder were behind some of the recent advances that had been made by Khalid.

At the meeting Shokat confirmed that there was a new opportunity, calling “The World” “the next big thing”, and saying that it was available by invitation only. He said that the development risks were low because Nakheel was state-backed, that the “islands” were very popular and were selling out fast, that he was able to obtain them without paying the customary agents’ fees, that the usual method of proceeding was to “flip” the contracts, gave the impression that he had already had some such successful dealing and had acquired two more islands for that purpose, said that there was a third island (D55) close by his own, and that there was a prospect of “flipping” (indeed of developing) the three islands together.

I find that Shokat believed these statements of opinion to be true, and that the statements of fact were true. As a matter of fact Shokat had intruded himself into the upper ranks of Dubai property investors and dealers and had been involved in about 1 billion AED of dealings at “The World”, which was undoubtedly regarded as following on from the success of “The Palm”, and was indeed selling out fast. Shokat or one or more of his joint venture companies had paid or were in the course of paying deposits on D94, D13, D54 and D103. Plot D94 had been acquired by an SPV and Shokat had then sold a 50% share in the SPV for more than twice the original acquisition cost of plot D94.

Ama says that Shokat also assured him that he, Nindy and Apinder did not need to worry about any contractual terms requiring the payment of further instalments because they would be out “long before that”; but that since prices were being driven higher “if he [Shokat] decided to retain the islands for more profit …then Shokat and his undisclosed partner would be responsible for further payments”. On the other hand, in cross-examination Ama acknowledged that it was Khalid who had informed the group “My brother has enough assets: you are not at risk”: and that Ama only assumed that this had originated with Shokat.

Whilst it is in my view probable that Shokat did say that D55 would probably be “flipped” before the next contractual instalment fell due, it seems to me improbable that Shokat would have said that he personally would cover the payment (let alone that his “billionaire partner” would do so) in the event that it was not. All that had happened hitherto was that Ama, Nindy and Apinder had been an indirect source of loan finance for Shokat: Shokat had not hitherto funded their investment programme and there is no commercial reason why he should offer to do so at this point. On the Claimant’s case they were to receive the entire profit from dealing with D55: so Shokat (or his billionaire partner) would be paying a contractual instalment simply to preserve for themselves an entitlement to commission of an unknown amount.

Ama, Nindy and Apinder do not have a very clear idea of the nature of this arrangement. Ama says that the perception in his head was that he was investing in the idea that the island would be “flipped” and a huge return on his money would result: but he acknowledged that it would be fair to describe it as “an investment” with “a profit share” (rather than a fixed return), the intention being that Shokat would buy the land, then come to them with an “on-sale” price, and then give them the profit on the land less an unspecified “cut”. When litigation was commenced against Nakheel and The World LLC in late 2010 Ama was to refer to the transaction as the occasion “when you purchased the island for me and Nindy”. For his part Nindy says that he regarded himself as “investing in the island” but that he was not buying the island, or paying instalments, or finding a buyer; that Shokat was to control when the interest in D55 was sold, and that Shokat’s billionaire partner had sufficient assets to repay them if everything went wrong. Apinder was totally guided by Nindy. It is noteworthy that when in 2009 Nindy and Apinder sought to claim tax relief on the losses incurred on D55 and their accountants wrote to HMRC in order to provide “clarification” they had no hesitation in describing this as a “flipping” transaction.

Shokat became aware of an imminent price rise for Plot D55 and so informed Khalid. This led to a conference telephone call in the course of which Ama and Nindy said that they wished to proceed. On 30 May 2008 Boi paid £1,763,100 to Blackburn. Khalid transmitted this to Shokat on 3 June 2008. Meanwhile Nindy and Apinder sent further funds (originating with their Hong Kong company Vastlake Limited) to Shokat directly. Even though he had not received cleared funds, Shokat paid 16,831,374AED to Nakheel for plot D55 by personal cheque, negotiating for delayed presentation: D55 was “booked” to him (or to one of his companies) but no contract was signed. (The absence of a signed contract was later to enable Shokat to claim, and to be awarded by the Dubai World Tribunal, re-payment of this deposit). At the same time Shokat paid for D103 with a personal cheque and D54 with a cheque drawn on Angel Assets Ltd (a joint venture company). Nakheel sent a text to Shokat congratulating him on having got in before the price rise.

On 22 June 2008 Nindy and Ama went to Dubai. They had decided that they wanted to set up their own company (both to take advantage of any further opportunities that arose and to assert additional control over the transactions they had already entered) and this required their physical presence. (They used the opportunity to establish AKA). They also wanted to see with their own eyes what projects Shokat was involved in. So Shokat helped to arrange their trip. It included a helicopter trip over “The World”, arranged by Nakheel and undertaken in the absence of Shokat. Whatever was said in the course of that trip (and in the absence of Shokat) did not give Ama and Nindy any pause for thought. The next day they attended a presentation by Nakheel at which the development was “talked up”; and they witnessed the frenetic activity of invited participants buying apartments “off-plan” and immediately selling them on for a 10%-15% “mark-up”.

Shokat says that during this visit he offered to sell D55 for Ama and Nindy at a 100% profit to an Indian businessman: but that they turned down the chance and decided to stay in for a larger profit. Both Ama and Nindy deny that they were offered such an opportunity: and on this I believe them. I regard it as unlikely that they would have turned down the reality of a 100% profit for less than a month’s investment. This is, I think, wishful embellishment by Shokat of what did occur: namely that Ama and Nindy asked whether there had been any interest in “flipping” “The World” and that Shokat said that he had a couple of investors “sniffing around”.

During the course of the trip there was an evening meeting at a beachside shisha bar, at which Khalid was also present. Ama and Nindy say that at it Shokat explained that there was a further opportunity to provide funds of up to £1.5 million directly which Ama and Nindy thought was to be used for some sort of property development. Even they acknowledge that at this meeting Shokat did not quote any date, term or rate for any loan. Indeed, their evidence as to what was said in relation to this further opportunity is extraordinarily sparse, essentially amounting to no more than “Shokat asked for £1.5 million”, but that he had no part in negotiating any terms (which were subsequently negotiated with Khalid).

For his part Shokat denies making any such request of Ama and Nindy and asserts that he was not aware that the funds subsequently received from Khalid had been sourced from Ama and Nindy. I do not consider it likely that, at a meeting attended by his older brother Khalid, Shokat would have sought to cut Khalid out of the chain and to deal directly with Ama, Nindy and Apinder (or that, if he did, he would have failed to agree terms and would have left Khalid alone to negotiate the terms with which he (Shokat) was to be fixed). He had dealt with the three of them directly only as investors in “The World”. He knew that to some extent (he did not know exactly what) they had contributed along with others to loan packages “bundled” by Khalid. He says (and I accept) that Khalid had told him that such dealings were his (Khalid’s) business. So it is improbable that he would have solicited loans directly. What is likely is that in general conversation (given the eventual success of Loans 2 and 3 and the recent success of Loan 4, the frenetic market activity they had witnessed, but the slower progress of the “flipping” of D55) the possibility of further opportunities for simple loan-based transactions was discussed: and it is also likely (whatever Shokat may now say) that he realised that some part of the eventual funds came from the Claimants.

Furthermore, I consider it unlikely that Shokat would have pressed Ama and Nindy to make personal loans to him, because in June 2008 Hanif Khoda had paid up on some of his transactions with Shokat, and Shokat had made a personal profit of between £3 million and £3.5 million. That would, however, provide a context for the conversation about the money-making opportunities that were available.

What is apparent is that Ama, Nindy and Apinder sent £1.5 million to Khalid’s company on 1 July 2008 (“Loan 5”). On 2 July 2008 an e-mail exchange between Khalid and Shokat confirmed that the amount that Khalid had forwarded to Shokat for investment was £1.4 million and the rate at which it had been converted (it equalled 10,194,000AED). It is apparent that Khalid had kept £100,000 for himself out of what Ama, Nindy and Apinder had provided: and that he also received back from Shokat a commission of about £80,000 in dirhams. Shokat paid 10 million AED to Profile on 5 July 2008.

As to the money paid over for investment, the agreed terms as between Khalid and Shokat were a loan period of 4 months at a return of 40%. Khalid, however, had agreed with Ama and with Nindy that they would receive a return of 5% per month for 4 months.

On 20 August 2008 Ama alone made a further loan in the sum of £400,000, paid to Khalid in cash, and on terms that he would receive 5% per month for 6 months (“Loan 6”). Ama’s evidence is simply that Khalid asked him if he “would like to make a further loan to Shokat”: though in the Particulars of Claim (which Ama endorsed with a Statement of Truth) it was said that he relied on a representation by Shokat at the June 2008 meeting that he remained confident and bullish about the property market in Dubai which despite difficulties in the global economy would receive a “soft landing”.

Khalid paid this together with other money to Shokat over a number of days, but Shokat appears from the documents to have had no immediately available application for the funds.

On 15 September 2008 Lehman Brothers collapsed. After a short period of calm, turmoil ensued. Before the real market collapse there was a meeting between Ama, Nindy, Apinder, Khalid and Shokat at the Mumtaz Restaurant in Bradford on 21 October 2008 (and so just before Loan 5 was due for repayment). I have no doubt that Shokat saw the need to calm any fears the Claimants had as regards the on-sale of D55 and probably also the imminent repayment of Loan 5 (though no-one gives direct evidence that Loan 5 was in fact raised at the meeting). In my judgment the convening of this meeting by Shokat does not evidence or constitute an acknowledgement by him that he was personally liable to the Claimants for any advances they had made. It does evidence a recognition of the fact that the Claimants were a potential source of trouble.

Following that meeting Shokat recognised that “flipping” D55 for a significant profit was not a real possibility. So he tried (without involving the Claimants) to cancel D55 and to recover the down-payment: but all Nakheel would contemplate was a transfer of the credit to another contract.

Loan 5 was, as I have said, due for repayment on 1 November 2008. It was not repaid. Khalid was put under huge pressure to repay, especially by Ama. Khalid in turn put pressure on Shokat to send funds: and Shokat responded by sending money, some of which was recovered from Profile and some of which was raised from his own assets. By 3 December 2008 he had sent £814,165 to Khalid: and of this Khalid gave £600,000 to Ama, Nindy and Apinder as a part repayment of the principle due on Loan 5. As a result of the part payment by Khalid, Nindy and Ama began to put direct pressure on Shokat. Shokat’s response was not to say “Your deal is with Khalid” but instead to text:-

“Nindy pls be patient as im working on it with u guys as top priority. as and when funds come in im passing onto to u guys….honestly my only worry is investors money. that’s what i have sleepless nights over….”

On 18 December 2008 there was a meeting attended by Ama, Nindy, Apinder, Khalid and Shokat. The Claimants put pressure on Khalid and Shokat to explain where the rest of their money was coming from, for they themselves were facing difficulties caused by the collapse of parts of the “rag-trade”. At this meeting it became clear to the Claimants that the money they had paid to Khalid had eventually found its way to Profile. Shokat sought to explain how, when Mr Khoda floated one of his operations on the Mumbai exchange, funds would flow through to Profile, and so to himself and thence to Khalid and ultimately the Claimants. This, in my view, was a simple outlining of the economic realities and not a recognition of some direct legal responsibility to the Claimants: and in fairness, Counsel for the Claimants did not suggest that anything said at this meeting altered the position at all.

There are two documents dated 18 December 2008 (one of which formed part of the original disclosure and one of which was produced during the trial). Each is headed “Deed of Guarantee and Indemnity” and is signed by Khalid. One provides for Khalid and his company (KDI) to guarantee and indemnify Boi in respect of loans which it made to Blackburn in the sum of £1,159,985 in May 2008 (which probably refers in part to the monies for D55). The other provides for Khalid and Blackburn to guarantee and indemnify Boi in respect of a £750,000 loan which it made to KD Investments on 1 July 2008 (and so obviously relates to Loan 5). Such is the extent of fabrication in this case that one cannot be sure that these documents were created on the date they bear: indeed, it seems to me that these were later creations. All one can say is that it is clear that no such document was put forward for Shokat to sign, at the meeting on 18 December 2008, or ever. No-one tried to record any personal obligation on the part of Shokat.

Further pressure was exerted by Nindy in January 2009: and in response Shokat texted:-

“Im working on it. I have quite a lot of things in the pipeline for both issues [sc. The World and the balance of Loan 5]. The only thing ive been concentrating on is how to solve this”

But in fact no more money was produced. So the balance of Loan 5 and the whole of Loan 6 and the interest on both remained outstanding.

One of the things that Shokat had in the pipeline was an acknowledgement of the loans made by him to Profile between the 15 June 2008 and 5 October 2008 on which there was outstanding the sum of 77 million AED and £100,000. Shokat prepared the acknowledgement on about 15 January 2009: but Mr Khoda would not sign it. He had, however, given post-dated cheques drawn on Profile’s account, and was exposed to criminal penalties in Dubai in the event that these bounced. So there was some leverage against him.

Late disclosure at trial revealed an Assignment dated 10 February 2009 whereby Blackburn purported to assign to Boi the benefit which Blackburn was said to have had in a contract dated 1 June 2008 for the sale by Nakheel to Profile of D55. (It is accepted on all sides that there was no contract dated 1 June 2008 for the sale of D55, and it is the very absence of such a contract that has enabled recovery of the money). I am satisfied that this document is a complete fabrication, and is an attempt by Ama (and probably also Nindy and Apinder, since it refers to the whole of The World monies collected by Blackburn) to recover their money by fair means or foul.

Nindy joined with Shokat in the pursuit of Mr Khoda. This is in itself slightly odd. If Ama, Nindy and Apinder genuinely believed that Shokat had promised to repay all the advances they had made to Khalid, and that he was personally rich and had assets that could be made available (which they now seek to attach in these proceedings), joining in the pursuit of Mr Khoda seems a somewhat laborious course to pursue.

On 20 May 2009 there was a meeting at a hotel in Mumbai with Mr Khoda of Profile attended by Shokat and Nindy (along with another funder, Kashif Ahmed, who was also a British retailer). At this meeting Mr Khoda informed the “investors” that he had a property portfolio in Dubai worth £30 million, and he agreed (he hoped in return for a surrender of the cheques) to hand it over to a consortium consisting of Shokat, Ama, Nindy, Khalid and Kashif who would (as Nindy described it in a contemporaneous e-mail) “hold shares to the proportion of what we are owed”. As to what they were owed Nindy commented:-

“Obviously our money in [The World] is separate to this, but as we were leaving the meeting Hanif and I were in the lift alone, and we were talking about [The World] money and I suggested I wanted that to be securitised also.”

This was agreed by Mr Khoda and Shokat. It is a good example of the Claimants’ strategy of seeking to get their money back from someone, irrespective of whether that person has any legal liability to them. The reference to the money being “securitised” is explained by the nature of the agreed arrangement. The property portfolio was not to be liquidated for 12 months, giving Mr Khoda the chance to raise funds to pay off the sums due from Profile. If he failed so to do, then the consortium could liquidate at the best price, repay their debts and hand over any excess to Mr Khoda, any shortfall being covered by Mr Khoda. To facilitate the transfer of assets Mr Khoda was to grant a power of attorney to Imtiaz Khoda in Dubai. Amongst the assets to be dealt with was a plot at Jebel Ali: it was the credit on this contract, worth 4,699,795 AED or £783,300, that was owned by The Edge. The contract itself was also thought to have value (i.e the land was thought to be worth more than the contract price). In some of the discussions that followed it was treated as being worth 15 million AED net (i.e. after discharging the 10.5 million AED or 13 million AED liability under the contract).

On 23 May 2009 Shokat circulated the consortium members and asked them to send details of the monies they were owed. Nindy said that he was owed the balance of the £750,000 that he had sent on 1 July 2008, which was £450,000 (after deducting the £300,000 he had received back in December 2008): and he claimed one half of The World money. Khalid did not at that point submit his figures. Ama’s accountant sent a spreadsheet. When doing so he informed Shokat that Ama and Nindy already had a Dubai company (AKA) which had never been used and to which other shareholders could easily be added: and Nindy warned AKA’s local Dubai accountants that Shokat would be making contact.

Khalid eventually sent his figures in. Shokat was then able to calculate the respective participations of the consortium members. He put his own (and associated investors’) share at 50.9%. He awarded 11.29% to Ama, 9.26% to Nindy, and 1.88% to Khalid. This left Kashif Ahmed with 26.67%.

Ama queried the amount that had been allocated to him because it appeared to take into account a “shortfall” which Ama said had not occurred: but otherwise he acknowledges he accepted the figures. Nindy queried the amount that was allocated to himself and Apinder because he said the wrong currency conversion rate had been used, and he said the shareholdings would have to be adjusted. There was also a dispute as to the way in which the monies relating to D55 were to be brought into the calculations. Khalid did not immediately respond but later complained that he was owed more. It is not apparent that Kashif Ahmed responded. No-one explicitly agreed Shokat’s proposed shareholding because nobody knew how much Shokat had advanced to Profile.

The paperwork for the share transfer of The Edge to AKA was successfully completed in mid-June 2009. In fact the scheme was falling apart (though it had not actually collapsed) because Mr Khoda’s attorney did not have authority to deal with all of the assets on the list proposed to be transferred: and there was a competing claim (into which I need not go) to one of the assets, shares in a company owning land in Cuba. Further, at some point (it is not clear when) Mr Khoda was made bankrupt and became subject to worldwide freezing order. It was becoming clear that The Edge was likely to be all that would become available.

On 22 June 2009 there was a meeting at Killingworth, Newcastle attended by Ama, Nindy, Apinder, Khalid and Shokat. Kashif Ahmed was not present but was telephoned during the course of the meeting. Ama and Nindy say that they were cross because Shokat had not been helpful in the dispute about the Cuba shares and had not obtained repayment of the loans (which they called “the tick money”), but that he calmed them down indicating that they had the benefit of The Edge.

In the Particulars of Claim it is asserted that Shokat said

“words to the effect “let’s stop talking about the tick money…. because now you’ve got The Edge that is your security for the tick money”………..”.

That is the version to which Nindy indeed speaks in his witness statement. At trial Nindy went further: he said that Shokat went on to say that if The Edge sold for less than the “tick money” then Shokat accepted that he would be liable for the shortfall, but that Shokat himself thought The Edge to be very valuable. Ama’s written evidence is in the same terms as the pleaded case: but he acknowledged in cross-examination that Shokat did not expressly say that he was giving up his entitlement to participate in the realisations of The Edge (though he insisted that such was the effect of the words he did use). Both Nindy and Ama explained that by agreeing to “securitize” the “tick money” with The Edge Shokat was “getting them off his back”, and gaining himself a “breathing space” because they were plaguing him.

In November 2009 Khalid was later to give an account of this meeting in support of his own claim to share in the spoils (and to submit it to Shokat for comment) addressed to Ama in these terms:-

“In the meeting you told us that you have completed the paperwork to transfer the land into aka investment company which you and [Nindy] have full shares. At the meeting it was agreed that whatever we can get from [Profile] assets it will be shared between [Ama, Nindy and Khalid] according to money invested.”

Shokat altered that version to read as follows:-

“.. in meeting you told us that you have completed the paperwork to transfer the Jebel Ali Crescent plot which was held in The Edge limited into aka investment company which you and Nindy own full shares. At the meeting it was agreed that whatever we can get from profile assets it will be shared between Ama/Nindy and [Khalid] proportionally.”

The Killingworth meeting was followed by a further meeting in Manchester on 26 June 2009 which Kashif Ahmed did attend. But nothing material to the issues in this action happened at it. The discussion was about recovering further assets from Mr Khoda: and the upshot appears to have been that eventually Kashif Ahmed went off on his own to do a different deal with Mr Khoda (possibly relating to the flotation of the Indian company).

Immediately following the meeting on 26 June 2009 Shokat telephoned a lawyer called Mr Omar for some advice, and Kashif Ahmed confirmed the instructions by e-mail on 29 June 2009. In giving the background both Shokat and Kashif Ahmed told the lawyer that the listed assets (which included The Edge) had been promised to “us” i.e. the group of investors seeking the advice. The lawyer’s reply (copied to Ama and Nindy) confirmed that understanding. Nobody suggested that, although all of the other assets on the list were “assets promised to us”, nonetheless The Edge was to be treated differently and was to be appropriated to Ama, Nindy and Apinder.

On 18 September 2009 Shokat e-mailed Khalid with a schedule headed “shareholding j.ali plot”. This is clearly a reference to The Edge. He attributed 50% to Ama, 41% to Nindy and 9% to Khalid. This left nothing for himself or Khashif Ahmed.

On 23 September 2009 Nindy e-mailed AKA’s Dubai accountant in these terms:-

“As you are aware, Mr Ama Singh and myself own 50% shareholding each in this company, and I don’t want this to be changed at all. It is also preferable that you don’t divulge any information regarding these companies to any other party……I just want to make it clear that the shareholding mustn’t be changed without the written consent of both Mr Singh and myself…… Just to give you some background information on this, there is a lot of money been borrowed by the Profile Group, and in particular Mr Hanif [Khoda] owes a fortune to people in the UK. Because Mr Singh and I came to Dubai and spent so much time and efforts there, Profile agreed to transfer the assets to our name, and now certain other people may try to get some share in this, but I don’t want this to happen.”

This was not on any view a truthful account of what had happened. Profile had never agreed to transfer assets to Ama and Nindy. This e-mail has given rise to the suspicion that from the outset Ama, Nindy and Apinder were trying to manipulate matters so that they got the only available asset into their names and then to exclude Khalid, Shokat and Kashif Ahmed from any benefit from it.

In November 2009 Khalid pursued his claim to participate in any realisations of the The Edge. Ama told Khalid that he was content with this, but at the same time “warned” (his word) Nindy about the impending claim, to which Nindy responded:-

“Singh, its no good if you don’t put up any resistance at all. I don’t mind if you blame me, but I think you have to give negative vibes as well to a certain extent.”

In the course of March 2010 there was further discussion between Shokat and Khalid as to what Khalid was owed. The transactions between Shokat and Khalid had included not only Khalid’s own money but also money from third-party investors such as Ama, Nindy and Apinder. In working out what was still due to Khalid it was necessary to take account of what had already been directly returned to Khalid’s investors. In doing the sums Shokat deducted from what was due to Khalid the sum of £815,217 which he described as “already given paid asset to Ama/Nindy (jebel ali plot) the edge limited”. At least this must mean that Shokat was saying that because Ama and Nindy had been repaid to the extent of the value of The Edge they had no claim against Khalid for that sum (and Khalid could have no claim against Shokat for that sum either).

In April 2010 Nakheel let it be known that because of refinancing they might regard the Jebel Ali Crescent as a “near-term” project: this would mean that the plots would become marketable but would also mean the outstanding instalments would become payable. The outstanding instalment was of the order of 11 million AED. Shokat said that he would pay that sum and that as a result the shareholding in the plot would be 6.8% for Ama, 3.6% for Nindy, 1.98% for Khalid and 87.62% for himself. The maths is very difficult to work through, but does indicate that Shokat must have regarded himself as entitled to some part of the original credit and not simply to re-imbursement of his additional outlay.

By May 2010 Nindy had decided that whatever the value of D55 was he wanted to realise it. He proposed to offer the credit on the supposed contract for the purchase of D55 at 70% of face value. He sought the advice of a local agent, and at the same time sought similar advice about the credit on The Edge. When he received the advice he copied it to Shokat, but quite deliberately cut out that part which related to The Edge. In my judgment he did so because he did not wish to alert Shokat to the potential realisation of The Edge. This is because he perceived his and Ama’s claim to it to be insecure, and he did not want it challenged. Ama says it was because Shokat had no interest in The Edge: but that seems to me simply to be an acknowledgment that Shokat had never promised to pay personally any shortfall, for otherwise he would have had the keenest interest in the level of realisations.

In truth, the market for plots at Jebel Ali was dead, and no deals could then be done. But the market did show some signs of life in early 2012. Nindy was approached by a local agent with an offer to acquire the credit for 68% of face value. Over the following six months Nindy managed to negotiate this up to 87.5% of face value (net of transaction costs). To achieve the deal Ama, Nindy and Apinder instructed Taylor Wessing as solicitors and at trial relied upon this in support of their case that they had taken professional advice in order to secure the best price available. In fact Taylor Wessing’s letter of engagement stated:-

“Our role is to act as the legal adviser of the Client in connection with the Scope of Work and it is not part of our role or function to give financial, technical or business advice in any manner to the Client. In providing our legal services, we would assume that the Client’s decision to enter into any proposed business transaction or arrangement has been and would be made solely on the basis of the Client’s own evaluation and decision”.

The deal was eventually concluded on 6 September 2012 and completed on 7 October 2012: Ama, Nindy and Apinder received the equivalent of £708,030, for which they accept they must give credit in any claim against Shokat.

I find and hold that the arrangements concerning D55 were made between Ama, Nindy and Apinder on the one hand and Shokat on the other, and that the agreement concerning D55 was between them.

The agreement arose out of a direct meeting between those parties. Shokat (not Khalid) was in possession of the relevant information concerning “The World” and Shokat was the one with privileged access to plots at “The World”. Shokat was the one who informed the Claimants of the impending price rise (and so set the timeframe for the transaction). Shokat received part of the transaction monies directly from Nindy and Apinder. D55 was agreed to be bought in the name of Shokat because he had the residential qualification, and it was Shokat who undertook such obligations as there were arising from the right to purchase D55.

I find and hold that Shokat was the nominee purchaser of D55 acting on behalf of the Claimants: he was not personally borrowing from the Claimants in order to speculate on his own account.

The Claimants argue that the transaction should be viewed as one under which they lent money to Shokat for a return equal to the profit he made by “flipping”. They submit that he was willing to do so because

I reject that analysis. If Shokat wanted to “borrow” money he could do so at 15%-20%: Khalid would bundle up loans and offer the package to Shokat at that rate plus his own “mark-up”. Shokat had no need to borrow directly from the Claimants at 100%: and he would not have cut his brother out of the chain.

The Claimants wanted to speculate: though they would have regarded it as “an investment”. They acknowledged in evidence that that would be a fair description of their commercial activity; they naturally described the transaction as one in which Shokat had purchased D55 for them; in asserting claims against Shokat they regarded “The World” as being a transaction that was “obviously” of a different nature from the Loans; in describing the transaction in their accounts they initially (i.e. closest to the events in question) treated it as an “investment” and not as a loan; and in clarifying matters with HMRC were comfortable with the description of the venture as “flipping” or trading. Although their subjective perception of the transaction cannot determine its legal nature, in the instant case the perception is accurate. They took the whole of the return (less a yet-to-be-agreed commission). They anticipated further such opportunities and established AKA as a resident company to exploit them (an unnecessary step if the only transactions in which they were engaged were loans). This is a case in which the way that the Claimants behaved subsequently provides a surer foundation for the analysis of their oral agreement than their present opportunistic evidence about what happened at the time.

Shokat’s personal obligations were to apply the money he received in paying the deposit on D55 and to pay to the Claimants the proceeds of any on-sale. Counsel for Shokat submitted in closing that the arrangement was purely contractual. That was also the primary pleaded case of the Claimants, though in the alternative they pleaded that D55 was purchased by Shokat as trustee.

My own analysis is that Shokat’s obligations did not rest purely in contract i.e. it was not intended that Shokat should simply personally promise to buy D55 for himself and personally promise to pay over the sale proceeds to the Claimants, with D55 belonging to him until it was sold. I consider that the purchase monies were paid to Shokat for the specific purpose of being applied in the purchase of D55 i.e. that the money remained the money of the Claimants but that Shokat as recipient of it had a mandate to apply it in a particular way. When applied in the purchase of D55 the product of the monies (which was anticipated to be a contract for the purchase of D55 but in the event was the right to the return of the money in the absence of any contract for the sale and purchase of D55) remained the beneficial property of the Claimants. If Shokat had died then the benefit of the D55 payment would not have formed part of his estate, leaving the Claimants with only the right to sue his personal representatives. The Claimants could have said “That is our money, not yours: pay it back”. Likewise, as Counsel for Shokat recognised, if Shokat had gone bankrupt the benefit of the D55 payment would not have been available to Shokat’s creditors generally (amongst whom the Claimants would be numbered). The Claimants could have said “That is our money: you were only a name”. I consider that the arrangement gave rise to a trust.

It was not, I think, a bare trust, because Shokat had certain managerial rights (or at least a mandate authorising him to deal with D55 and the rights associated with it). He was to try and on-sell, and he had a discretion as to when and on what terms to sell, and probably a duty to apply an appropriate level of skill in going about that task (depending on what he was to be paid and taking account of the fact that he himself owned two islands which he was free to deal with irrespective of any obligations to the Claimants). But he did not have these managerial rights because he was the owner of D55 (or of the right to have the D55 deposit repaid). He had these managerial rights because the Claimants (who are the true owners of D55 or the right to reclaim the deposit) agreed he should have them, and granted them knowing that Shokat himself had invested in his own islands and was free to deal with them and their own island entirely as he wished. This is not important for my purposes, but it may be important if Nakheel tried to set its personal claims against Shokat off against his rights as nominal (but not beneficial) owner of D55.

At all events, it seems to me that Shokat acted entirely in accordance with the mandate he was given by the Claimants in applying the money he received in payment of the deposit on D55: and that money remains the Claimants’ (because no contract was issued by Nakheel). The Claimants have a claim against Nakheel which must be pursued in the name of Shokat, and Shokat’s obligation is to hand over whatever is recovered because it is not his money. But he has no personal obligation to pay the Claimants the D55 deposit monies even if they are not recovered from Nakheel. It was the Claimants who speculated: not Shokat.

In paragraph 4.8 of the Particulars of Claim Ama, Nindy and Apinder allege that “[Shokat] alternatively [Khalid] alternatively both [Shokat and Khalid] jointly and severally undertook personal liability for repayment of all sums advanced together with interest”. In support of that allegation they rely on the requests for, the making of and the repayment of the initial loans; the giving of a presentation by Shokat in relation to “The World”; the making of representations; the receipt by Shokat of monies paid by Blackburn; the receipt by Shokat directly from Nindy and Apinder’s Hong Kong company of monies in respect of D55; the events of the June visit to Dubai (including Shokat’s arranging a helicopter trip and being bullish about the Dubai property market); the requests for further loans; Shokat’s attendance at meetings to discuss repayment “whereby Shokat by his words and conduct accepted responsibility for repayment of all sums advanced”; attending the meeting at the Mumtaz Restaurant; sending texts saying he had things in the pipeline and that he hoped to have a deal which would result in the Claimants being paid; attending the Mumbai meeting and trying to implement the arrangements then agreed; attending the meetings on 22 and 26 June 2009; negoatiating with Nakheel; co-operating with the Claimants as to legal recoveries that could be made; making the Litigation Agreement; and e-mail correspondence with Khalid.

In opening Counsel for the Claimants submitted that Shokat was a primary obligor jointly with Khalid: that had to be the case for there could be no question of Shokat having effectively guaranteed Khalid’s liability to to Ama, Nindy and Apinder. In closing Counsel for the Claimants submitted that the obligation was one of indemnity.

In my judgment Shokat was not a primary obligor in relation to Loan 5, either as borrower or as indemnifier.

I find that Shokat did not ask for loans of £1.5 million to be made to him. It is improbable that he would solicit personal loans when he himself had just received repayment of substantial sums from Hanif Khoda. It is improbable that he should seek to cut Khalid out of the chain and assume the role of primary borrower. It is improbable that (notwithstanding the arrangements established under Loans 1-4) he should introduce himself as “indemnifier” alongside Khalid, who, until that point, had been the only party with whom the Claimants had dealt. It is improbable that Shokat would undertake personal liability to the Claimants in any form but leave the content of that obligation entirely to Khalid to negotiate (it being common ground that Shokat did not negotiate any terms). It is unlikely that Shokat should undertake one set of obligations to Khalid and another set of obligations to the Claimants in respect of the same transaction (it being common ground that the terms negotiated between Shokat and Khalid were different from the terms negotiated between Khalid and the Claimants).

The pre-transaction matters on which the Claimants rely do not prove an acceptance of personal liability by Shokat: and the post-transaction matters do not found the inference that he must have done.

In particular, no real weight can be placed upon the fact that subsequently Shokat made strenuous efforts to raise money so that the Claimants could be repaid and may have used his own personal funds to repay Khalid. His efforts do not amount to an admission that he was legally liable. They are a recognition of a moral responsibility to help Khalid repay those whose money had been laid out in opportunities identified by Shokat, and are a testament to the abilities of the Claimants to exploit every opportunity to recover their money from whatever source they can (be it Hanif Khoda, who bore no responsibility for the Claimants’ speculation in “The World”, or HMRC by manipulation of claims for bad debt relief supported by fabricated documents).

This issue does not now arise for decision. Had it done so I would have concluded that the arrangement was one under which Nindy and Ama took a credit risk, not an investment risk i.e. Shokat’s obligation did not vary with the success of the underlying venture.

I find and hold that Ama, Nindy and Apinder did not enter into Loan 5 as the result of any misrepresentations made by Shokat. Shokat genuinely held any opinions he shared before the transaction involving D55, or during Ama and Nindy’s visit in June 2008, and his factual statements were accurate. I do not consider that he at any time represented that his billionaire partner would somehow underwrite the Claimants’ loans or investments or that he would himself do so. Ama, Nindy and Apinder were not relying upon anything Shokat said, but upon their own experience of the success of Loans 1-4, what they saw on their visit in June 2008 (both on the Nakheel helicopter trip which they undertook in Shokat’s absence and by witnessing the frenzied “off-plan” buying). Their attempt to recast themselves in evidence as reluctant dupes was singularly unconvincing. They were out to make money wherever they could, and like many others thought that Dubai was the place. Shokat was the means but not the motivation.

I find and hold that Shokat assumed no obligations in relation to Loan 6.

Counsel for the Claimants submitted in opening that Khalid asked Ama for this money “for Shokat”, and that Khalid had actual authority to do so. Shokat’s liability rested upon his standing as a disclosed principal in the transaction.

There is no evidence that Shokat conferred actual authority upon Khalid to ask Ama for these cash advances. Counsel acknowledged that the relevant conferring of authority had to be inferred. But there are no primary facts from which any such inference can properly be drawn. The mere fact that Khalid (who was not called as a witness) may have said he was acting for Shokat does not provide a proper basis. The mere fact that Shokat may have tried to recover money out of which Loan 6 could have been repaid does not found the inference either. Ama’s solo claim was simply treated in the same way as Ama, Nindy and Apinder’s joint claim.

This issue does not now arise for decision.

I hold that Loan 6 was not induced by any misrepresentation by Shokat.

The only representation relied upon (and Ama does not refer to it in his written evidence) is alleged to be that in June 2008 Shokat said he was confident about the Dubai property market and that Dubai would have a “soft landing”. I am satisfied that Shokat was genuinely enthusiastic about the Dubai property market (as were all those caught up in the bubble). It does appear that in June 2008 Nakheel did raise its prices for plots on “The World” to take advantage of this sentiment. I regard it as highly improbable that Shokat was prescient enough in June 2008 to foresee the collapse of Lehman Brothers in September 2008 and to opine that notwithstanding the ensuing travails of the global economy Dubai would have “a soft landing”. This is embellishment on the part of Ama.

In my judgment no agreement was ever reached between all the participants as to what were to be the initial shareholdings in AKA for the purposes of distributing realisations.

Although Shokat circulated a proposal that he have 50.9%, Ama 11.29%, Nindy 9.26%, Khalid 1.88% and Kashif Ahmed 26.67% these figures were never agreed. That was because attention focussed upon getting in some assets under the Mumbai agreement with Hanif Khoda, for without assets to realise it was meaningless to argue about distribution rates. All that was agreed was the principle of pro rata sharing. There was no agreement between all participants as to what should rank for distribution (Kashif Ahmed does not appear to have agreed that the Claimants’ D55 monies should rank as a claim even if Hanif Khoda was content that it should). There was no agreement between all participants as to the quantum of their respective claims. These things remained to be worked out if and when assets were gathered in: and the outcome might depend on what was actually secured and how much was realised.

I find and hold that it was ultimately agreed that (in effect) the shareholding in AKA should remain as at incorporation, and that Ama and Nindy should hold the realisations of The Edge for themselves rateably in proportion to their outstanding claims against Khalid under Loan 5 and Loan 6, and then for Khalid to the extent of his claims against Shokat.

Although Ama, Nindy and Apinder are in general opportunistic deceivers a fair evaluation of the evidence leads to the conclusion that on this issue they are probably telling the truth.

I am not troubled by the fact that they recall the effect of the conversation in almost precisely the same language. This seems to me to be a natural consequence of the form of the pleaded case, which naturally shapes the language of recollection. I am impressed by Mr Anderson QC’s point that if the Claimant’s had wanted collusively to create a story that Shokat had given up his claim to The Edge they would have made a better job of it. I am not persuaded that the form of the instructions to Mr Omar is inconsistent with any agreement about “securitisation” of the Claimant’s claims: the focus of those instructions was “What more can we get?” not “How should we share out what we have?”. I do not regard as significant Shokat’s proposal for sharing the benefit of a “paid up” contract: that is as likely to be an attempt to recover lost ground as an assertion of a consistently held belief that he was entitled to a share. I do not consider that the absence of any evidence about the surrender by Kashif Ahmed of his claim to share in The Edge presents any real problem. He did participate by telephone in the Killingworth meeting (though what he said or heard is unknown); and he did thereafter go off and do his own deal with Hanif Khoda rather than try and nail down his entitlement to share in The Edge. I give great weight to the e-mails passing between Khalid and Shokat in September and November 2009 and March 2010, which seem to me to be consistent with the evidence of the Claimants.

Shokat said in evidence that the accounts of the Killingworth meeting recorded in the e-mails of November 2009 are not a true and complete record of what occurred, but only a partial account. He says that his own participation in the realisation of The Edge was not really an issue: but that Khalid’s participation was in issue (because Khalid had fallen out with Ama over having poached some of Boi’s customers and in retaliation was being cut out of The Edge, being only allowed to take any excess after Ama and Nindy had been paid in full). He says that Khalid pleaded with him to help and that the November e-mails were an attempt to get Khalid’s position restored, not to provide a complete account of the Killingworth meeting.

I found this part of his evidence one of the two least convincing parts that he gave: and the explanation does not engage with either the September 2009 or March 2010 e-mails.

I have not overlooked the deceitful instructions given to AKA’s accountants by the Claimants. But the behaviour was not exceptional: the Claimants wanted to secure the arrangement and were prepared to tell lies to do so.

In the result, I consider it probable that in order to get them off his back Shokat did agree to allow Ama, Nindy and Apinder to take the benefit of The Edge (along with Khalid). This rendered his entitlement to a shareholding in AKA academic, which is why Shokat did not pursue it until his Counterclaim (by either obtaining agreement as to its size or by insisting upon an allotment).

This question does not arise on my findings and holdings so far. Had it been necessary to state a conclusion I would have held that Nindy and Ama were entitled to realise The Edge whenever they wished, provided that they then got the best price reasonably obtainable.

The Edge was only ever held by AKA as a form of security. It was there to be realised. It was never held as a long term property investment. It was only ever meant to be kept for twelve months.

AKA had to obtain the best price reasonably obtainable at the chosen realisation date because Khalid would be affected by the amount raised. As I think, he would be entitled to share in the proceeds once the Claimants were paid off. If the proceeds were insufficient then he would be concerned as to the size of the residual claim against him in respect of the balance of his borrowings from the Claimants.

This question does not arise. Had it done so I would have held that the Claimants did in fact achieve a fair price. That was not because they took professional advice and acted in accordance with it. The professional advice they took did not address the commerciality of the deal. It was because they achieved a price which the available contemporaneous evidence suggests was a smaller discount on face value of the credit than was usual. Of the valuation evidence called (which I need not summarise) the open market value approach of Mr Schober was more coherent and better grounded in reality than the residual valuation of Mr Sweetman (which acknowledged that no market for the bare plots existed but assumed the existence of a market for built out units).

In the preceding narrative I did not deal with the discrete issue relating to the agreement about legal costs. These are my findings of fact.

In June 2008 Shokat had paid over money in respect of D55, (in which the Claimants were interested) and in respect of D54 and D103 in which Shokat himself and his joint-venture companies were interested. Because no signed contracts were completed Shokat was in a position to reclaim those monies from Nakheel before the Dubai World Tribunal.

Shokat was ready to commence proceedings in December 2010. He wrote to Ama and Nindy on 10 December 2010 saying that it was necessary to decide on the identity of Dubai lawyers as soon as possible. No agreement had been reached when the proceedings were launched on about 15 December 2010. Shokat paid the issue fee of 30,000AED. He used as his legal representatives Haider bin Haider (“Haider”). But within a month it was agreed between himself, Ama and Nindy that they would instruct Jonathon Davidson of Davidson & Co (“Davidson”) instead. Shokat now had to obtain agreement on

Whilst Ama and Nindy were prepared to acknowledge that Davidson’s fee estimate was fair, they initially evaded dealing with the other questions. They then said that they were willing to “share the cost” but only “in proportion to each individuals (sic) amount” (or “as a percentage of [each] debt against the global figure”), an equal one third split being regarded as unfair. Shokat was willing to agree the principle of that, provided that Haider’s costs were borne in the same way, and that there was an adjustment to take into account a currency conversion shortfall that Shokat had borne in June 2008. Ama (for himself and Nindy) did not explicitly agree that term and would say only that Shokat needed to claim Haider’s fees back, and that the “shortfall” represented money that Shokat was claiming (not himself and Nindy). What he asserted was

“This was money you put into Nakheel because there was a shortfall for some reason when me and Nindy made the investment – this is money you borrowed [from] us.”

I do not think any great weight can be put either on the use of the term “investment” or of the term “borrowed” in this particular commentary on a spreadsheet.

Davidson were formally instructed on 19 January 2011, Shokat informing them that they were happy to go ahead with the fees quoted. Counsel for the Claimants submit that such a step would not have been taken unless the parties had by then agreed how matters were to be shared between them. I do not agree. The case had started and a timetable was running. Instruction of the lawyer demonstrates that as a group they were prepared jointly to instruct Davidson to proceed with Shokat’s claim (for Ama and Nindy also wanted to be clients). But it does not necessarily demonstrate that as between themselves the group had agreed how to apportion their joint liability.

Because Ama and Nindy would not descend to the detail of figures on 26 January 2011 Shokat sent a spreadsheet “for information purposes only” showing what the figures on their side would be if he paid 70% and Ama/Nindy paid 30%, Haider’s fees and the case registration fees were brought into the account, and there was an adjustment for the shortfall. On those assumptions Ama and Nindy would pay 114,000 AED as a direct contribution to Davidson’s fees and the case registration fee alone, and 249,000 AED if Haider’s fees and the shortfall were brought into the account.

Whilst Ama and Nindy were prepared to agree to pay 30% of Davidson’s fees and the registration fees, they were reluctant to agree the other elements of the package, saying that if they paid 114,000 AED that would cover the costs for the current phase, and by the time of the next phase perhaps the Haider position would have been sorted. Since a bill had been presented by Davidson Shokat asked for 150,000AED. In response Nindy said they should resolve the matter in discussion around a table.

That discussion took place on 6 June 2011 in Boi’s offices. In his Defence Shokat says that by then an agreement had already been reached (in March 2011) that Ama, Nindy and Apinder would pay 2/3 of the legal costs (both incurred costs and adverse costs), and that such an agreement is evidenced by the payment of 40,000AED in March 2011 and 42,500AED in July 2011. If that is right then this meeting can only have been held to go over old ground, and cannot have been the occasion of any fresh agreement.

Shokat sent an e-mail two days later (on 8 June 2011) setting out the points that were “discussed” (not “confirmed”) and saying that if Ama and Nindy were “in agreement to the points” then a lawyer would be instructed to draft a document. His points included:-

Ama refused to agree this. He introduced a new term that Shokat had to promise personally to repay Loan 6. Nindy said that looking at Shokat’s “record” it did not appear they had been at the same meeting. But although he challenged item (c) in the preceding paragraph, he did not challenge (a) (b) or (d). It appears to be common ground that although there may initially have been a cap on the fees to which Ama, Ninder and Apinder were expected to contribute, by this stage it had changed and they expected to pay the agreed proportion (whatever that was) of reasonable and necessary steps to secure and enforce judgment.

By November 2011 there was still a dispute over how the fees were to be borne. On 7 November 2011 Shokat indicated that he intended “to separate everything” that week, by which he meant pursue his own claims in respect of D54 and D103, and leave D55 out of the litigation (which would effectively mean abandoning the Claimants to their fate since they themselves had no direct cause of action against Nakheel). Solicitors then wrote to Shokat (on 5 December 2011) on behalf of Ama, Nindy and Apinder. The solicitors did not assert that there was a binding agreement as to how the fees should be borne. They said that the terms submitted in the e-mail of 8 June 2011 were “wholly inappropriate” and that in the absence of “appropriate assurances” from Shokat and “an agreement on the legal structure of [the Claimants’] entitlement to benefit from the DWT litigation” they would take all necessary steps. They wrote in the same terms on 20 December 2011, but making explicit that Ama, Nindy and Apinder

“..remain willing to contribute to the costs of the litigation in proportion to their interest in the total fund”

They also insisted upon an agreement as to the distribution of any recovered proceeds.

It was this exchange that led to the grant of injunctive relief compelling Shokat to carry on the DWT litigation in respect of D55.

There was a hearing before the Tribunal in May 2012 and judgements were delivered on 28 August 2012 and 20 February 2013. The result was that the World LLC was ordered to pay 61,062,673AED (being 57,048,281AED judgment plus interest) forthwith. Of this 16,831,374AED represented money received in respect of D55. That amounts to 29.5%.

At the trial before me Shokat acknowledged that his original position was that “it should be 2:1 in my favour” but added “then I think I agreed it should be 2:1 against me”. Later in his evidence he then suggested that Ama had subsequently agreed (he thought with Nindy’s authority) a reversion to 2:1 in favour of Shokat.

The evidence simply does not present a clear and consistent picture. When I suggested that perhaps no agreement at all had been reached, Counsel for Shokat said that the position of both parties was that an agreement had been reached (and it was my task to determine what it was): and Counsel for the Claimants said that they agreed (and had always agreed) to pay 30%.

In the light of Shokat’s acceptance in cross-examination that there was a point at which he had agreed 2:1 against himself (though it is difficult to determine what that point was), and in the absence of any reliable evidence that there was thereafter any agreement upon different proportions I find and hold that the legal fees incurred in (and any adverse costs order made in) the DWT proceedings are to be borne 30% by the Claimants and 70% by Shokat. Those legal fees are not subject to a cap, but include all fees actually incurred in securing and enforcing judgment against The World LLC or Nakheel (and specifically include the costs of Haider and the initial Court fee). The agreement related only to legal fees and there was no agreement for any adjustment to address any shortfall in the original deposit. But out of recoveries in dirhams Shokat is obliged to allow to the Claimants only what he received from them in dirhams: and interest will be apportioned accordingly. In the event that Nakheel or The World is ordered to pay (and does in fact pay) Shokat any sums in respect of costs then the liability of Ama, Nindy and Apinder must be adjusted accordingly.

For these reasons

I will hand down this judgment in Manchester on 13 March 2015. I do not expect attendance of the parties or their representatives. The parties will please liaise with my clerk over arranging a short further hearing in the near future to address consequential matters (including what is to be done with the existing injunction, which will continue in force since the trial has not ended). I will extend the time for appealing this judgment to run as from the conclusion of that further hearing.