England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE GIBBS)

		Royal Courts of Justice The Strand London Thursday 2 May 2002

Thursday 2 May 2002

1. LORD JUSTICE CLARKE: This is an application for permission to appeal by Mr Abdullah Kreimeia against an order of Gibbs J made on 14 January 2002. The order contains the following relevant paragraphs:

"1. The Third Defendant's [Mr Kreimeia's] application for a stay of proceedings be refused.

2. It is declared that:

(a) the following activities (including the retention and disposal of the profits resulting from the transactions referred to, of the proceeds of the settlement of the litigation referred to, and of the commissions referred to) were carried on in breach of the fiduciary duties owed to the Claimant by one or more of its officers or employees:

....

(v) The transactions with the Claimant entered into by KR Design Engineering Consultants Limited;

....

(b) The Third Defendant dishonestly assisted in the breach or breaches of fiduciary duty entailed in the activities referred to in sub-paragraph 2(a)(v) above, and the Third Defendant thereby also acted in breach of his fiduciary duty owed to the Claimant.

(c) The payments received by the Third Defendant between 1985 and 1992 from Ahmed Gabaili or from companies associated with the said Gabaili were received by him as constructive trustee for the Claimant, and he is liable to account to the Claimant for such monies.

....

(e) By virtue of their said dishonest assistance, the Third Defendant and the Thirteenth Defendant are each liable to account to the Claimant for the loss and damage which it has suffered in consequence of the breach or breaches of fiduciary duty with which the Defendant in question assisted.

3. There be final judgment against the Third Defendant and in favour of the claimant in the sum of £771,099.61 (inclusive of interest to the date of judgment) in respect of the receipt by the Third Defendant of monies for which he was obliged to account to the Claimant, provided that the liability of the Third Defendant in that respect shall be reduced by the extent (if any) of the Claimant's net recovery of monies by reason of its proprietary claims set out in paragraph 10.6 of the Re-Re-Amended Statement of Claim.

4. There be a further hearing to adjudicate upon the issues raised by paragraph 10.6 of the Re-Re-Amended Statement of Claim, by the Defence of the Seventeenth Defendant [the wife of the applicant, Mr Kreimeia] and by the Reply to that Defence, and .... [the judge then gave directions as to the issues between the claimant and Mrs Kreimeia].

5. The amount of the liability of the Third Defendant pursuant to paragraph 2(e) above, and the amount of the liability of the Thirteenth Defendant, shall be quantified at a further hearing ....

6. The Third Defendant do pay costs of the proceedings up to and including 14 January 2002 to the Claimant, summarily assessed as between the Claimant and the Third Defendant in the sum of £180,000.

....

12. The Third Defendant be permitted to apply in writing within 14 days to Mr Justice Gibbs for permission to appeal. In the event that permission to appeal is refused by Mr Justice Gibbs, the Third Defendant may seek permission from the Court of Appeal by filing an appellant's notice not later than 14 days after notification of that refusal is served upon him."

2. I note also that in paragraph 11 the order provided that both the claimant and the third defendant (the applicant) should be permitted to use information and documents disclosed in the proceedings in various other proceedings, including proceedings in Libya.
3. The applicant made an application in writing to the judge for permission to appeal, pursuant to paragraph 12 of the order. He advanced five grounds. Grounds 1 and 2 asserted that the respondent had not proved that it had capacity under Libyan law to take and conduct proceedings against the applicant outside Libya, and that the English court had no jurisdiction to determine the claim. Grounds 3 and 4 asserted that the applicant had not had a fair trial because he did not have legal representation and had to deal with professional lawyers for the respondent. Ground 5 asserted that he was being prosecuted or proceeded against in Libya and that he should not have been proceeded against in two different countries at the same time.
4. In refusing permission to appeal, the judge gave concise reasons in writing for rejecting each of those grounds, to which I shall return in a moment.
5. This application must be put in its context. On 5 December 2001, Gibbs J gave judgment after trial in an action in which the respondent is the claimant. There were originally seventeen defendants. The claimant was represented by counsel; the third, seventh and twelfth defendants appeared in person; and the eighth, ninth, eleventh and fourteenth defendants were represented by individuals. The claimant did not proceed with its claim against various of the other defendants. Finally, some defendants did not play any part in the trial.
6. Gibbs J heard a considerable amount of evidence. His judgment runs to 186 paragraphs over 128 pages. The judge explained in paragraph 3 how the applicant came to be unrepresented. I shall return to this under grounds 3 and 4 in a moment.
7. The case has some remarkable features. The judge described the background to it in paragraph 1 of his judgment as follows:

"This case is about bribery and corruption, alleged or actual, in a commercial context. The Claimant is 'Sirte Oil Company for the Production, Manufacturing of Oil and Gas' to be referred to as 'Sirte'. It was and is a corporate body owned by the State of Libya, its business being as described in its full title. It is alleged that over a substantial period in the 1980s and 1990s Sirte was the victim of systematic corrupt practice. This consisted of secret commissions to its employees, including employees at the highest levels of the company, in order to secure favours. These commissions were broadly for two purposes: to secure the acceptance of bids or offers by particular contractors to supply goods or services to Sirte; and to obtain preference in the payment by Sirte of debts to a particular creditor or creditors at a time when the company's cash flow situation was difficult."

8. In paragraph 3 the judge said this:

"I now come more specifically to the Defendants who played an active part in the proceedings. Mr Kreimeia is a Libyan national, formerly a senior manager of Sirte. He has been represented by solicitors Procaccini Farrell; and until shortly before the trial it had been assumed that he would be represented by Counsel. He appeared in person at the outset of the trial and applied for an adjournment. The adjournment was opposed by Sirte, Mr Dimsey and DFM, but not by McCann, Clanbrassil Nominees, Clanbrassil Trust Co and Merryfield. I was troubled that Mr Kreimeia should be unrepresented whilst his solicitors were still on record and requested Mr Procaccini's attendance. It emerged that there were said to be insufficient funds to instruct Counsel. However there was no doubting Mr Procaccini's willingness to assist his client as far as he could, financial constraints permitting. Mr Kreimeia is an educated and intelligent man with an excellent command of English. For reasons given at the outset of the trial, I refused his application for an adjournment, but welcomed Mr Procaccini's offer to be present beside his client during the relevant parts of the trial to help him present his own case. Thus Mr Procaccini's firm remained on the record and he did in fact help Mr Kreimeia in that way."

9. I agree that Mr Kreimeia, who has appeared in person on this application today, is indeed an educated and intelligent man with an excellent command of English. He has put his points in support of the application concisely, succinctly and with great force.
10. In paragraphs 13 to 15 of his judgment the judge summarised the allegations in the action in this way:

"13. The allegations are as follows. Over a period of a decade and more Mr Gabaili in collaboration with Mr Giovando and others solicited and received bribes from people and companies who wanted to do business with Sirte. Some of those who paid the bribes were suppliers of specialist personnel to work for Sirte in various capacities and projects. Some were suppliers of other services or of materials.

The alleged bribes were channelled through a number of companies set up for the purpose. There were two main systems adopted. One was for the company in question to act as middleman between the suppliers and Sirte; and for the bribe which was paid to be incorporated in the profit made by the 'middleman company'. The other system was for the company in question to act as a consultant to the supplier providing or purporting to supply 'services' to the supplier which were in fact little or no more than corrupt favours in returns for bribes paid to the 'consultant company'.

14. It is alleged that Mr Gabaili and others including Mr Kreimeia had substantial beneficial interests in and/or profited from the middleman and/or consultant companies. Mr Kreimeia had been employed by Sirte's predecessor since 1977 and became Manager of Sirte's Technical Department (a senior position) in 1985. Mr Gabaili, Mr Kreimeia and the other employees involved kept their beneficial interests and/or profits secret from Sirte.

15. There came a time well before Mansour Benniran's death that he, though Chairman of Sirte, also held interests in one or more of the allegedly corrupt companies. When he acquired these is not entirely clear. Mr Murad Benniran's part in this claim as Second Defendant arose because he inherited assets allegedly acquired by his father through corrupt means. Indeed, after his death he sought to recover funds he claimed as due to his father under certain of the allegedly corrupt payments."

11. The judge then described the allegations against other defendants, and continued at paragraph 17:

"Originally each of the Defendants actively taking part in the trial denied any dishonesty. Indeed, with the exception of Mr Kreimeia, they denied that what was happening was, by the standards then applicable, dishonest at all. Mr Kreimeia's case when the trial began was that he was not involved. He never took part in any arrangements to receive commission in return for giving favours to contractors, and he never acquired any interests in companies in conflict with his duty of loyalty to his employers. He said that whenever his name was used, for example, as signatory to a bank account, or in other incriminating contexts, it was used without his knowledge or consent, principally by Mr Gabaili. Support for this proposition emerged when, sometime before the trial, Sirte conceded that the author of Mr Kreimeia's purported signature on relevant documents was someone else's, probably Mr Gabaili's. It was clear from the way in which Mr Kreimeia's case was being put that, whilst he himself denied involvement, he accepted that the practices in connection with which his name had been used were corrupt and wrong."

12. The judge set out in paragraph 18 the basis upon which defendants other than the applicant justified or sought to justify the activities concerned. The judge then identified other issues of significance. One of those issues he described in paragraph 20(a) in this way:

"in the case of Mr Kreimeia, and to some extent Mr McCann, whether the court had jurisdiction to deal with the claim against him at all; and, if it did, whether it should do so."

13. That is the forerunner of the applicant's first two grounds of appeal. The judge considered the points in paragraphs 152 and 153 of his judgment, to which I shall return in a moment.
14. In paragraphs 20 and 21 the judge said this with regard to the applicant so far as is relevant:

"As a final item in this precis, it is appropriate to mention a development in the course of this trial, during Mr Kreimeia's cross-examination, which can without overstatement be described as dramatic. There came a point when he said:

'My Lord, I am struggling with this. I would like to make a statement that will probably save a lot of court time.'

I then explained to him that within reason I would permit him to say anything which was relevant to the case. He continued:

'My Lord, I am under oath. I am also a Muslim and I cannot lie. I find the whole thing stressful, and I would like to make a statement that will probably save a lot of time. I will hurt a lot of people but it will make a clean start for me at least.'

Mr Kreimeia then gave a detailed account about how he had been tempted by Mr Gabaili to enrich himself through participating in corruption and receiving the proceeds of bribes. For over an hour he gave an account of the extent and limits of his involvement in the unlawful activity. He concluded by asking for the forgiveness of his friends, family and God.

....

21. The effects of these developments on Mr Kreimeia's case were significant. Principally, they were instrumental in persuading Sirte, at any rate for the purpose of these proceedings, to accept Mr Kreimeia's evidence in full as the factual basis for determining the grant of relief against him. However, the question of the proper legal approach to the relief to which Mr Kreimeia's admissions of liability entitle Sirte remains open."

15. It is plain that the admissions made by the applicant had a radical effect on the trial so far as he was concerned. Much of the evidence at the trial related to other defendants and did not concern the applicant in any way. I can therefore turn to paragraph 83 under the heading "The Lawfulness or Honesty of the Activities Alleged:

"83. At the beginning of the trial for Mr McCann, Mr Dimsey and the corporate Defendants associated with them denied or were not prepared to admit that the scheme or schemes whereby Sirte employees received commissions were unlawful or dishonest. Mr Kreimeia on the other hand confined his defence on the issue of dishonesty to denying that he was ever knowingly involved in it. The implication was that he did not deny that engaging in such activities was wrong.

84. By the conclusion of the trial the situation had substantially changed. Mr Kreimeia had admitted corrupt and unlawful conduct as a senior employee of Sirte. He plainly had no reason to think that the practice of receiving commissions from outside contractors was justified, whether as a matter of Libyan law, whether as a result of any permission from Sirte as his employers, or whether as a matter of honesty. On the contrary, it was self-evident that he regarded such conduct as unlawful and corrupt, and he was ashamed of it.

85. I find that Mr Kreimeia was absolutely genuine in his stance. Further I accept that he had received no permission from anyone in a responsible position in Sirte to do what he did. Nor had Mr Gabaili with whom he associated. That is not necessarily conclusive as to the lawfulness of honesty of the practices, but it is powerful evidence. Mr Kreimeia was, after all, a long-standing and senior employee of Sirte. Ultimately however the issue of lawfulness as well as honesty must be decided by the court on all the evidence. Mr McCann and Mr Dimsey still put both in issue."

16. It is thus clear that the applicant admitted both relevant dishonesty and the fact that the acts concerned were unlawful as a matter of Libyan, and indeed English, law. The judge, however, considered those questions independently and held that there was dishonesty and that the activities complained of were unlawful both under English and Libyan law. The judge expressed his conclusions in the case of the applicant thus:

"159. Mr Kreimeia

(a) Mr Kreimeia, whilst not directly involved in the running of KMG, was on his own admission receiving corrupt payments between 1985 and about 1991 or 1992 from Mr Gabaili. It is very probable that these payments were a share of the bribes obtained from third parties and/or from the profits of KR Design and/or USC's corrupt businesses. Thus Mr Kreimeia has a liability based on the receipt of those payments.

(g) Mr Kreimeia is liable on his own admission for the corrupt business of KR Design.

(h) The only other basis upon which Mr Giffin submits that Mr Kreimeia is liable is that Petro Plus was essentially KR Design's business carried on under another name; and that Mr Kreimeia knew that Petro Plus would carry on that business. Therefore, despite the lack of evidence of any participation by Mr Kreimeia in Petro Plus, he should be held responsible for its activities. Whilst acknowledging the logic of Mr Giffin's argument I do not accept the submission. Mr Kreimeia was aware that Petro Plus was taking over the substance of KR Design's business; but since it cannot be proved that he participated or assisted in Petro Plus, I am not satisfied that he has any liability for its corrupt or unlawful activities."

17. The judge returned to the applicant's position in paragraph 174 where he said:

"174. Mr Kreimeia

In relation to KR Design Mr Kreimeia was responsible for corruptly generated profits. In so far as he received personal benefit from that company or bribes in connection with its business, he held the sums received as constructive trustee for Sirte and is liable to account for them as such. In his participation in that business he was in breach of fiduciary duty and in so far as he assisted Mr Gabaili was dishonestly assisting in the other man's breach of fiduciary duty. He is liable to account for the profits of KR Design to Sirte as his then employer. The question of how such profits should be assessed and what if any deductions should be made from them will be considered later. See paragraphs 177 to 182.

On the basis of the findings I have already made, his liability does not extend to the affairs of Petro Plus.

With regard to KMG, the position of Mr Kreimeia is more problematical. I have accepted that he is not shown to have been directly involved in the business -- nor even indirectly, save that it is probable that the benefits he received from Mr Gabaili or some of them came from that company, in which Mr Gabaili was making use of Mr Kreimeia's name. I conclude that Mr Kreimeia's liability should extend to but be limited to accounting as trustee for all the sums received from Mr Gabaili or his companies which were derived from the profits of the corrupt businesses. On Mr Kreimeia's admission such sums continued to be received until 1991 or 1992."

18. In paragraphs 177 to 182, which are referred to in paragraph 174, the judge considered detailed points as to the approach to losses caused by breach of fiduciary duty, to which it is not necessary for me to refer. After the judgment was concluded, there followed a discussion in which both the applicant and counsel for the respondent played a part, to which I shall return in a moment.
19. The matter came back before the judge on 12 January 2002. There was a good deal of discussion between counsel for the respondent, the judge and the applicant. The judge made a number of rulings. Although I have not seen a transcript of what was said on that day, I have seen a manuscript note made at the time by Mr Giaretta of the claimant's solicitors, Ashurst Morris Crisp, who have kindly had the manuscript note typed. Mr Kreimeia has seen a copy of the note and accepts that it is sufficiently accurate for present purposes. It is indeed a comparatively detailed note of what occurred on 12 January.
20. In the event the judge made the order to which I have referred and he subsequently refused permission to appeal. The applicant now seeks permission to appeal to this court. He also needs an extension of time to make the application. I grant the necessary extension of time and turn to the application for permission to appeal.
21. Grounds 1 and 2 are in these terms:

"1. That the Claimant acted illegally and without capacity of the Libyan law to bring these proceedings against me outside Libya. The Claimant had ignored all procedures laid down by the law in Libya in taking legal action against a Libyan employee working for the Claimant in Libya. The Claimant is a company owned by the state of Libya and I am a Libyan national employed by the Claimant in Libya. The Claimant did not and could not submit any proof of capacity of the Libyan law to conduct these proceedings outside Libya.

2. That the English court does not have the legal right to handle or pass judgment on litigations between foreign parties, especially when the offence took place outside the jurisdiction of the English law and where these foreign parties are bound by the laws of their sovereign state."

22. In refusing permission to appeal on those grounds, the judge said this:

"Reasons 1 and 2

The Third Defendant left it far too late to object to the jurisdiction, so he may be regarded as having submitted to the jurisdiction of the Court. A significant part of the subject matter of the proceedings is situated in England. There was no credible evidence that the Claimant offended Libyan law on pursuing the claim in England and Wales."

23. The application on these grounds must be considered in their context. At the trial the judge dealt with these issues in paragraphs 152 and 153 of his judgment as follows:

"152. Jurisdiction and Capacity

Mr Kreimeia, and Mr McCann on his own behalf and on behalf of his companies, challenges the jurisdiction of the court. Mr Dimsey and Mr Da Costa by virtue of the latter's closing submissions no longer mount any real challenge. The simple answer to these challenges is that they are made far too late. Whether under the old Rules of the Supreme Court 1965 (RSC O12, r8) or under the more recent Civil Procedure Rules 1998 (CPR 11.1, especially 11.1.5) all the Defendants are taken to have accepted the jurisdiction. None has disputed the jurisdiction at the appropriate time, ie at the outset of the proceedings at the time of acknowledgement of service. It would be neither just nor fair to allow a challenge to be made at trial and I did not do so. Nor do I allow such a challenge now.

153. Mr Kreimeia takes a point on the capacity of Sirte to bring proceedings. He produced, after the trial began, a document purporting to be an order of a judge in Benghazi made on 29 September 2001 declaring invalid the procedures authorising Sirte to bring proceedings in England. This is on its face an ex parte order obtained by Mr Kreimeia or on his behalf in Benghazi without notice to other parties, particularly without notice to Sirte. On the basis of that order I was invited to rule that I should hold that this claim should not proceed on the ground of lack of capacity on the part of the Claimant. Mr Giffin opposed the application. He drew my attention to the fact that this was an order obtained without his clients' knowledge. Had Sirte had notice it would have established that it had full authorisation to bring proceedings in the High Court from the appropriate authority of Libya (a senior member of which was in fact said to be present in court); that in previous proceedings against Mr Gabaili a similar ex parte order had been produced in an unsuccessful attempt to prove lack of capacity, which Sirte had been able to have discharged soon afterwards. I refused Mr Kreimeia's application for reasons given at the time. Sufficient ground was not shown either to stay or dismiss the claim. Sirte had properly instructed solicitors and counsel in this country; it had brought and conducted the proceedings regularly in accordance with the rules of this court, and should be entitled to pursue them to a conclusion."

24. Ground 2 of the grounds of appeal reflects the point discussed by the judge in paragraph 152. In his skeleton argument in support of this application, the applicant says that he was served with the writ when he was on vacation in England in November 1998. He has repeated that orally before me this morning. I have no doubt that it is true. As I understand it, the position was at that time that the applicant, Mr Kreimeia, lived and worked in Libya, but his wife and children lived in a house in Bournemouth in England and that he visited them from time to time when on holiday. The applicant did not apply to stay or set aside these proceedings at that time because it appears that he was advised not to do so.
25. The position, as I see it, is that the English court undoubtedly had jurisdiction to entertain this action since the applicant was served within the jurisdiction. He could have applied for a stay of the proceedings on the ground that the ends of justice required that they be proceeded with in Libya. He did not, however, do so. As the judge observed, he did not therefore make the application at the appropriate time under the relevant rules of court and undoubtedly submitted to the jurisdiction of the court.
26. I agree with the judge that it was far too late to seek a stay on the grounds of forum non conveniens, or indeed to contest the jurisdictional of the court at the trial, let alone now after judgment. To my mind there are no prospects of this court taking a different view on that question if the applicant were permitted to appeal.
27. Ground 1 reflects the point discussed in paragraph 153 of the judgment. I entirely agree with the reasons given by the judge on the basis of the material available to the judge at the time and can see no prospect of this court reaching a different conclusion on those materials.
28. There have, however, been some developments since the judgment.
29. After the judge had given his judgment, this discussion ensued:

"MR GIFFIN: .... I have mentioned towards the foot of the page that my client has had the Libyan court's ex parte order set aside now. So, subject to anything Mr Kreimeia may say, our position would be that it is not necessary to allow any time to deal with the consequences of that at the resumed hearing.

MR JUSTICE GIBBS: I could not find any record of it, but I seem to recall that I did make some protective order in relation to that giving permission to Mr Kreimeia to apply....

MR GIFFIN: I think that what your Lordship indicated in the course of argument was that, if the facts were such as to justify it, and obviously subject to arguments on both sides, your Lordship would be prepared to entertain an application for a stay of further in this jurisdiction.

MR JUSTICE GIBBS: Yes.

MR GIFFIN: And I think your Lordship anticipated that that would be pursued, if appropriate, on what is now being thought of as a date in January -- on that occasion.

MR JUSTICE GIBBS: I think what I will do, therefore, is to direct you, if you would, to lodge evidence of the setting aside of the ex parte order, and any application that Mr Kreimeia may have arising out of that may also be made on the date in January. It would have to be supported by evidence and a skeleton argument.

....

MR GIFFIN: .... We have already supplied, I believe, to Mr Kreimeia a copy in Arabic of the more recent judgment with a translation....

MR JUSTICE GIBBS: .... I will deal with that particular topic whilst it is in my mind. Mr Kreimeia, I am not dealing with that point today. I will just very simply say what the issue is to enable you to take action if you think it appropriate. Mr Giffin asserts to me that the order of the court of Benghazi that you produced to me has now been set aside.

MR KREIMEIA: What does that mean, your Lordship?

MR JUSTICE GIBBS: Cancelled.

MR KREIMEIA: No, it is not. A hearing date was going to be set today and I was expecting a fax to arrive today in the court.

MR JUSTICE GIBBS: I will explain the procedure which both sides must adopt. So far as Mr Giffin is concerned, I am requiring him on the date of the next hearing to lodge the evidence that he has which he claims means that the order is set aside. If you wish to make any application based on the fact that there is a valid order in Libya now preventing these proceedings going any further, then it will be necessary for you to make an application. It is called an application to stay these proceedings here, and you will have to lodge evidence in support of that application. I cannot help you too much about that evidence, but it will have to be evidence which proves that there is a court order in Libya which should persuade this court that these proceedings should go no further. Do you understand?

MR KREIMEIA: Yes.

MR JUSTICE GIBBS: I should ask Mr Procaccini about that if he is still advising you, but I think that is as far as I can go in advising you. I cannot take any action or consider any application on your part unless you make the application and you support it by evidence of the legal situation in the court in Libya.

MR KREIMEIA: My only question is what form should this application take? Is there a special technical form?

MR JUSTICE GIBBS: There is a form which you can get from the office. Call at the office and they will give you the right piece of paper. It is called 'application notice'....

MR KREIMEIA: I had news last night that the date has been set up for the court hearing between Sirte Oil Company and my solicitor over in Libya regarding the proceedings here.

MR JUSTICE GIBBS: There may be a dispute between you and Mr Giffin. If there is, then I shall have to look at the evidence that is produced on the next occasion. All right?

MR KREIMEIA: Yes."

30. It was therefore left that the respondent would lodge the evidence on which it relied and that the applicant would make an application for appropriate relief in appropriate form. In the event the respondent lodged some documents, but the applicant did not file an application. However, the matter was raised on 12 January. According to the note which I have the following exchange occurred:

"K [Mr Kreimeia]

--The hearing in Benghazi took place without us. We got no notice. My brother's trying to change it out there.

I can't be tried in two countries for the same case.

I admitted my wrongdoing. Now I am trying to protect my children. Nothing is going in my favour.

Just want roof over my children's heads.

THE JUDGE:

--Mr Kreimeia applies for stay of proceedings on grounds that there may be an order from a Libyan Court. Two reasons why application should not succeed:

1.In December I made it clear what steps should be taken by Mr Kreimeia to do an application. This procedure was not followed, so there is no properly constituted application. This is so even though the Claimant's solicitors have written to Mr Kreimeia pointing this out.

2.Libyan Order by Mr Justice Ahmad Al-Souli saying Mr Kreimeia's first Order has been overturned. That first Order was without notice, the latest one by Mr Justice Al-Souli was on the face of it on notice.

No applications notice and even if there were, Mr Kreimeia is unlikely to get it at this stage.

So application refused."

31. The reason why the judge said that the application by the respondent to set aside the first order obtained in Libya was on notice is that the English translation of the order includes the following:

"The court

After studying the papers:

The facts as stated by the complainant in his current memorandum of complaint may be summarised as follows [the claimant is the respondent on this application]:

He is complaining against an order issued in favour of the respondent which ruled that a power of attorney issued by the complainant in favour of an English firm of solicitors for litigation against the respondent was null and void.

It is claimed that the order was issued contrary to the principles of jurisdiction, and furthermore it was issued on the basis of grounds lacking foundation, and so he requests revocation of the order complained against.

At the hearing for the complaint, the complainant was represented in his pleading by virtue of the attached power of attorney, but the respondent did not attend, though it was evident that he had been served in accordance with the law. Hence a judgment in absentia is permitted pursuant to Section 103 of the Law of Pleading."

32. The order emanating from the Benghazi Court of First Instance in Libya, which is signed by the judge, then gave reasons for the decision that the respondent had conferred relevant authority on those conducting the English action on its behalf. The judge, Mr Justice Ahmad Al-Souli, accordingly set aside the ex parte order which had previously been obtained by the applicant in September.
33. Since then there has been further activity in Libya. A further application has been made on behalf of the applicant in an attempt to discharge or set aside the order of Mr Justice Ahmad Al-Souli. There is a letter dated 25 March which stated that there was to be a hearing on 27 April. There is now a document which I have seen, which shows that the hearing on 27 April has been adjourned to 1 June. It thus appears that the applicant is still trying to obtain an order or declaration that the respondent had no capacity to bring these proceedings, or had not properly authorised its representatives in England as a matter of Libyan law to bring this action.
34. It is entirely speculative what may happen in Libya. The question for decision is whether, on the basis of the materials now available, there is any real prospect of an appeal to this court succeeding. I have reached the conclusion that there is no real prospect of such an appeal succeeding on that ground. There is at present no proper reason for thinking that those acting for the respondent in this action did not have authority to bring it. Moreover, the applicant admitted responsibility and in effect admitted liability in the course of the trial. Indeed, he said to the judge on 12 January (in the passage which I have already quoted) that he admitted his wrongdoing.
35. The point which he is taking is thus an entirely technical one. Moreover, given the admissions that he has made, I can see no realistic basis of his defending a similar action in Libya if the action were brought in Libya instead of in England. In my judgment, grounds 1 and 2 afford no basis for my giving permission to appeal to this court. What, if any, steps the applicant could take if he were to obtain a further order of the Libyan court would of course depend upon what that order said.
36. I turn, therefore, briefly to grounds 3 and 4. Grounds 3 and 4 were these:

"3. That due to lack of fund I was unable to afford legal representation at court and was denied Legal Aid, presumably because I am not an English subject. This is considered as violation of my natural and human rights for a proper legal representation.

4. Based on that and due to my lack of knowledge of the English law and court procedures, I was unable to properly defend myself against professional lawyers, resulting in unfair and unbalanced challenge with the Claimant's solicitors."

37. As to that the judge said this:

"Reasons 3 and 4:

The Third Defendant was represented by solicitors and counsel in the preparatory stages of the hearing. He appeared unrepresented at the first day of the hearing but was enabled to have his solicitor's advice throughout the hearing. In any event he made substantial admissions of liability when he gave evidence and the findings against him went no further than those admissions. There was no breach of his human rights."

38. I entirely agree. The applicant is plainly liable to the respondent on his own admissions which were freely made. There was no unfairness at the trial and indeed there is no suggestion that the amount awarded to the claimant was in any way wrong.
39. Finally, ground 5 is in these terms:

"Civil and criminal proceedings for the same offence have been taking place against me in a Libyan court since 1998, where the court has jurisdiction and I have proper legal representation. A hearing is scheduled for 18 February 2001. I am being prosecuted for the same offence twice and in two different countries."

40. As to that, the judge said this:

"Reason 5

In the unlikely event that the Third Defendant risks double recovery against him in a Libyan court this is a matter which may properly be argued in that Court."

41. Again I entirely agree. This action is in no way concerned with criminal proceedings in Libya. As to civil proceedings, there is no evidence that there is any risk of the applicant being exposed to a risk of having to pay twice in respect of the same liability.
42. In short, an appeal to this court would have no real prospect of success. It follows that I have no alternative but to refuse the application. It also follows that there is no basis on which I could grant a stay of execution.
43. I would, however, only add this. It is quite clear that the applicant's principal concern is to protect his wife and family. As I understand it, there are at present pending proceedings between the claimant and Mrs Kreimeia in relation to the house in Bournemouth. Moreover, as I understand it, the respondent is not in a position to execute the judgment against the first defendant by seeking to sell the house until the issue as between the respondent and Mrs Kreimeia has been resolved. I naturally hope that, even after all this time, it will be possible for a settlement to be reached between the respondent on the one hand and Mr Kreimeia, and in particular Mrs Kreimeia, on the other since she is plainly in an entirely different position from the applicant, Mr Kreimeia. I would like to end this judgment by expressing the fervent hope that it will be possible to reach a settlement and draw a line under this whole affair. But I am afraid that I can make no order in that respect. For the reasons I have given the application must be refused.
ORDER: Application refused.