Sangamneheri v Bellamy

On 30 January, following a hearing which, as I understand it, lasted a full day, Moulder J made an extended civil restraint order against the claimant in this case, Mr Sayed Sangamneheri. She did so after his claim in this action had been struck out by Master Kay QC, who delivered a judgment dated 7 July 2017, following a hearing on 16 March and 12 April. That judgment sets out the background to the applications which are before me today and I gratefully adopt what is said there.

Because there was not time to deal with some of the applications which were already outstanding before the extended civil restraint order was made, those matters were left over and were the subject of a directions order made by Moulder J. I adopt the terminology of her order. The order records that there was insufficient time to consider and determine the claimant’s second joinder and criminal convictions applications or the claimant’s Master McCloud appeal applications, those applications together being referred to as the claimant’s outstanding applications. These applications were left to be restored and dealt with subsequently. It was envisaged that those applications would come before Moulder J, but in the event that has proved not to be possible and they have come before me.

At the outset of this hearing today, I informed the claimant that the court has a duty, which is found in CPR 1.1, dealing with the overriding objective, to deal with cases justly and at proportionate cost, and that includes, so far as is practicable, allotting to each case an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

For the purpose of this application, I have had a very detailed skeleton argument from the claimant, running to 61 pages, as well as skeleton arguments from the defendant’s counsel, the defendant being Mr Jonathan Bellamy, a member of the Bar who was appointed as arbitrator in circumstances which I shall describe in due course, and proposed defendants, the President of the Chartered Institute of Arbitrators, the Chartered Institute itself, Reynolds Porter Chamberlain, the Institute’s solicitors, and Mr [Andrew Mayler?].

In the light of that material, I took the view that it would be wrong to spend the whole day on these applications and I limited the time for the claimant to make his submissions. In the event, because the claimant became unwell in the course of making those submissions and I had to rise for a few minutes, I allowed the claimant more time than I had originally indicated. I made clear at the outset, however, that the time I had allotted to the case took account of the fact that the claimant suffers from some disabilities and that I would otherwise have allowed a much shorter time. I am satisfied that the claimant, by a combination of his written skeleton argument and the oral submissions that he made to me, has had a fair opportunity to present his case.

The claim against Mr Bellamy was struck out by the order of Master Kay QC and at the same time a limited civil restraint order was made. That has not, however, deterred the claimant from making repeated applications. It is difficult to keep count of the applications which the claimant has made in the course of these proceedings, but they are numerous and, so far as I can see, each one of them has been certified as being totally without merit.

The circumstances in which these proceedings arise are set out in the judgment of Master Kay, but I will describe them briefly and in summary form, because the claimant took me through the way he puts the case and because that is critical to the applications which remain outstanding.

There was an exchange agreement to which the claimant was a party by which he agreed to transfer land in India to the counterparty in exchange for payment in instalments in the form of gold bullion. There was a dispute arising out of the non-performance of that contract and pursuant to the arbitration clause in the contract, that dispute was referred to arbitration. The arbitration clause provided that the seat of the arbitration would be Dubai. It provided also that it would be conducted in accordance with the Rules of the Chartered Institute of Arbitrators. The arbitrator appointed by the Chartered Institute President was the defendant, Mr Jonathan Bellamy. He accepted the appointment with perfectly standard letters and in due course made contact with the parties to begin to progress the arbitration.

The claimant’s theory of the case is that this caused Mr Bellamy and the Chartered Institute to become bailees of the gold which was the subject of the contract. Although as far as I can see, the contract did not deal with specific goods at all, but merely provided for quantities of gold bullion to be delivered to the claimant in exchange for the transfer of the land. It is therefore very doubtful whether there was ever any specific property which could be the subject of any bailment.

However, assuming that I am wrong about that and that there was property of a specific nature, the claimant submits that the arbitrator and the Chartered Institute became bailees of it by virtue of the acceptance of the arbitration appointment. He acknowledged at the outset of his submissions that it is no longer possible for him to run a case in bailment at common law, in light of an order made on 18 May 2018 by Longmore LJ in which he refused permission to appeal, as it happens from an order which I made at an earlier stage of this case in which I ruled that the idea that an arbitrator became a bailee of gold bullion which was the subject of a dispute between the parties was absurd. I certified that matter as totally without merit and Longmore LJ certified the application for permission to appeal as totally without merit also.

In view of that, the claimant accepts that a claim in bailment is no longer open to him at common law. He says, however, that he has a claim under the Torts (Interference with Goods) Act 1977 which provides for an alternative scheme for a claim in bailment. He says that it is sufficient, to become a bailee, that a person has control of the goods in question and that the Chartered Institute and the arbitrator had control of the gold bullion, assuming that there was such a quantity of gold bullion to have control of, by virtue of the Chartered Institute Rules and because the defendant and the Chartered Institute were aware of the nature of the issue in the arbitration which was being commenced; that is to say, that it was a dispute about the transfer of gold bullion. Therefore he says the arbitrator has control over such goods which were divested by the claimant’s counterparty and the control was transferred to the arbitrator and the Chartered Institute.

He draws attention to Part 1 of Schedule 1 of the 1977 Act, which refers to goods being accepted for treatment and says that the arbitration was a form of treatment in which the goods were accepted by the arbitrators to be dealt with in the arbitration. This is obviously wrong. Part 1 of Schedule 1 is dealing with uncollected goods, which has nothing to do with the present dispute, and it is referring to a form of physical treatment of uncollected goods. The goods were not in any sense accepted by the arbitrator, nor did they fall for treatment by him.

The claimant submits that the Chartered Institute Rules in paragraphs 7.8 to 7.10, which give the arbitrator a power to make provisional orders, including provisional orders over the disposition of property, are sufficient to give an arbitrator control of the goods. Again, that is obviously not so. Those Rules simply provide that an arbitrator has power to make provisional orders as contemplated by Section 39 of the Arbitration Act 1996 and without which such express agreement there would be no such power. They do not mean that the arbitrator has control of any property which is the subject of the dispute. The arbitrator simply has a power to make orders over property the subject of a dispute which is and remains within the control of a party to the arbitration.

In fact, this claim has already been struck out. It is too late to put the case in new ways, but in any event a claim under the Torts (Interference with Goods) Act 1977 has always been part of the claim and has therefore been struck out, together with the rest of it, and in my judgment such a claim would be manifestly hopeless.

The claimant goes on to accuse the arbitrator and the Chartered Institute and their solicitors of fraudulent and dishonest statements. The allegations which he makes as time goes by become, I have to say, increasingly bizarre. The way in which these are said to arise is that when the arbitrator was appointed, he sent a letter to the parties dated 15 June 2015 in which he introduced himself as the arbitrator, made some observations about the procedure to be followed and requested that the parties should provide a deposit pursuant to the Chartered Institute’s stakeholder account facility on account of the fees and expenses which he expected to incur in the course of the arbitration.

The arbitrator noted that the arbitration clause governing the dispute states that the seat and place of the arbitration is Dubai and invited the parties to state where they wished hearings to take place, offering the preliminary view that hearings in London would save the parties costs. He went on to say:

This is said by the claimant to be a dishonest and fraudulent statement because the arbitrator knew, it is said, that the law governing the conduct of the arbitration was not English law but the law of Dubai, or of the United Arab Emirates of which Dubai forms part. That is said to be acting dishonestly in the sense in which that term was used by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 and also said to be in breach of a duty of care. I observe that it is no more than an expression of opinion by the arbitrator on which he expressly invited the parties and their legal representatives to comment if they disagreed.

In the event, the letter was followed by a procedural order dated 17 August 2015, paragraphs one and two of which provided in terms that the law governing the arbitration clause in the parties’ agreement is the federal law of the United Arab Emirates and that the law governing the arbitration is UAE law. Consequently, if the arbitrator made a mistake in his letter of 15 June, it was put right, no doubt following representations by the parties, in procedural order number one on the basis of which the arbitration was then to proceed. The idea that this was a dishonest statement by the arbitrator is simply nonsense. Even if it had been, it can have caused no loss.

In the event the arbitration did not proceed because the claimant declined to pay the deposit which the arbitrator had requested and in due course the arbitrator resigned. However, it is this alleged fraud which is the foundation for the applications which are left outstanding from the hearing before Moulder J. The claimant says that he was charged fees and led around on a wild goose chase and that this was criminal and fraudulent activity not only by the arbitrator but by the Chartered Institute, and with allegations extending to the conduct of the solicitors representing the Chartered Institute. Indeed, I understand that the claimant’s allegations have also extended to implicate Master Kay in the conspiracy against him, an allegation which is so obviously absurd as not to require further comment.

The claimant refers also to the arbitrator’s acceptance of nomination as arbitrator as containing further fraudulent statements. This was a form completed by Mr Bellamy when he was invited by the Chartered Institute to accept the appointment. It is in a standard form. The prospective arbitrator is required to make a declaration that the subject matter of the dispute falls within the sphere for which he is appropriately qualified and experienced to act, that he will be able to undertake the task with expedition, that he is not aware of any prospective conflicts, that he complies with any special requirements of the contract between the parties and that he has read and understood the Chartered Institute of Arbitrators’ Code of Ethics. There are other declarations also but I have referred to the ones on which the claimant focused.

It has been said that the arbitrator was fraudulent in making these declarations, but in my judgment there is absolutely no basis for that allegation. It follows that there is simply no basis on which the claimant’s outstanding applications can succeed. The applications are in each case totally without merit and they are dismissed.

There are also some further loose ends due to further applications being made by the claimant. Indeed, it seems that the flow of applications following the extended civil restraint order has not dried up and that there are a number of applications which will have to be considered by Master McCloud, the judge nominated to deal with any applications for permission to make further applications to bring proceedings in accordance with the extended civil restraint order. However, so far as those applications outstanding before the making of the extended civil restraint order are concerned, I am satisfied that they are totally without merit and must be dismissed.