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
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 July 2004

Lord Justice Chadwick :

1. These are appeals from orders made in proceedings brought by Lesley June Al-Bassam, who claims to be the widow of the late Abdulaziz Saleh Al-Bassam, against Abdullah Saleh Al-Bassam, the half-brother of the deceased.
2. Abdulaziz Saleh Al-Bassam ("the deceased") was a national of Saudi Arabia. It is common ground that he was a very wealthy man. At his death, on 17 November 2001, he was living in London. By a document dated 26 August 2001 and described as a will ("the will"), he appointed the claimant (and her son from a former liaison) to be his executors; and he left to her the whole of his estate. The son has renounced probate.
3. The deceased and the defendant, Abdullah Saleh Al-Bassam, were sons of the late Saleh Al-Bassam. The defendant claims to be entitled to the whole of the deceased's estate under the Shari'a law of inheritance. On 30 November 2001 he filed a caveat against the grant of probate to the will. On 19 January 2002 he obtained an "Heirs Identification Deed" from the Shari'a court in Riyadh, Saudi Arabia, supporting his claim to be the sole Koranic heir to his brother.
4. On 2 February 2002 the claimant was granted administration ad colligenda bona out of the Winchester District Probate Registry. On 18 March 2002 she commenced proceedings (HC02C00630 – "the succession claim") for declarations that the deceased had died domiciled in England; that she was the wife of the deceased at his death; and that his estate be distributed in accordance with the terms of the will. On the same day she commenced parallel proceedings (HC02C00631 – "the probate claim") in which she asked the court to pronounce for the will in solemn form.
5. On 16 April 2002 it was ordered that the succession claim and the probate claim be consolidated. Particulars of claim were served in the consolidated action on 30 April 2002. On 15 May 2002 those particulars were amended to plead, in the alternative, that the deceased had died domiciled in India. It is the claimant's pleaded case that, if (as she asserts) the deceased died domiciled in England or in India, she is entitled to the whole of his estate under the terms of the will. But she accepts that, if the deceased died domiciled in Saudi Arabia (as the defendant asserts) or in Iraq, her claims as sole beneficiary under the will have effect subject to Shari'a law (whether as the law of his domicile or as the law of his nationality) and that, in that event (as she asserts), she is entitled to one third of the estate.

The issues in the proceedings

6. A defence and counterclaim in the consolidated action was served on 3 May 2002. The issues raised by the defence may be summarised as follows:

(1) The marriage between the claimant and the deceased

It is said that the purported signature of the deceased on a marriage certificate – purporting to record the civil marriage of the claimant and the deceased at the Westminster District Registry Office on 23 December 1986 – is not the deceased's signature; that, if (which is not admitted) the claimant and the deceased went through a ceremony of marriage on 23 December 1986, the fact of their marriage was never disclosed to his family or friends or acknowledged by the deceased during his lifetime; and that the deceased continued to describe his marital status as "single" in passports and immigration documents after the date of the supposed marriage.

(2) The domicile of the deceased at his death.

It is denied that the deceased was domiciled in England or in India at the time of his death, or at any time. It is said that his domicile of origin was Saudi Arabia and that at no time did he acquire a domicile of choice in any other jurisdiction. In particular it is said – and it is not, I think, in dispute – that the deceased never owned a house in England or in India, that he had no employment in England or in India and that he never sought to obtain British or Indian citizenship.

(3) The substantive validity of the will

It is said that the law governing the substantive validity of the will – if (which is not admitted) it was validly executed by the deceased – and, in any event, governing succession to the deceased's estate, is Islamic law: "that law governs succession to the deceased's estate whether he was domiciled in Saudi Arabia or any other state in which the Islamic law of personal status is applicable to the deceased's estate". The defendant asserts that, under Islamic law "the will is wholly invalid and the defendant is solely and immediately entitled to the whole of the Deceased's estate as his sole heir". The basis of that contention is, first, that the will and its contents offend against fundamental Islamic tenets; and, second, that it was not registered in Saudi Arabia in accordance with the law of that jurisdiction. It is said that the will offends against fundamental Islamic tenets in the following respects: (i) that it purports to provide for the deceased to be cremated – "a provision which is entirely inconsistent with Islamic tenets and which is not severable from the other provisions of the purported will"; (ii) that it purports to leave the whole of the deceased's estate to the claimant or, should she predecease him, her son, neither of whom is a Muslim – "thereby wholly excluding the defendant who is the sole heir under Islamic law, a purported disposition of the deceased's estate which is entirely inconsistent with Islamic tenets"; (iii) that the will was purportedly executed during the deceased's "death illness" which itself renders the will invalid under the Islamic law of personal status.

(4) The due execution of the will

Due execution of the will by the deceased is not admitted. It is pleaded that, without prejudice to the issues as to domicile and substantive validity and in the absence of any particulars as to when and by whom the will was drafted or as to the instructions for its drafting given by the deceased, of any evidence from the attesting witnesses or of a forensic examination of the original document (and, in particular) of the deceased's purported signature, "the Defendant does not admit that the purported will was duly and validly executed by the Deceased, that the deceased knew and approved of the contents of the purported will or that he made the will of his own volition and free from any undue influence".

7. In his counterclaim the defendant repeated the allegations made in the defence; and, in particular, the allegation that "Under the Islamic law of personal status governing succession to the Deceased's estate, the defendant became immediately and solely entitled to the whole of the Deceased's estate as the Islamic heir no later than the time of the Deceased's death". The defendant sought declarations that the law governing the substantive validity of the will and succession to the deceased's estate was Islamic law and that, under that law, the will was wholly invalid and he was the deceased's sole heir. He asked the court to pronounce against the validity of the will and (if necessary) for a grant of administration of so much of the deceased's estate as is subject to the jurisdiction of the English court; for revocation of the grant ad colligenda bona; and for an account of assets of the estate in the hands of the claimant. The claim for an account was based upon allegations (in respect of which he also sought declarations) that the claimant had intermeddled in the deceased's estate and misapplied its assets in making payments not authorised by the limited grant which she had obtained.
8. The claimant served a reply and defence to counterclaim. As amended, that pleading is dated 1 July 2002. The reply joined issue with the allegations made in the defence as to the marriage between the claimant and the deceased. It denied that the domicile of origin was Saudi Arabia – on the grounds that Saudi Arabia did not exist as a separate kingdom at the time when the deceased was born. In that context I note that it appears from the certificate of death which is in evidence that the deceased was born at Al-Zubair in 1925. It is said that Al-Zubair – and Basra where the defendant lived as a child – were in British controlled Mesopotamia, a territory which subsequently became part of Iraq. On that basis the claimant asserts that the domicile of origin of the deceased was Iraq; but, given that it appears to be common ground that Iraq is a jurisdiction which would apply Islamic law to questions of succession, it is difficult to see that the question whether the domicile of origin was Saudi Arabia or Iraq can be of any great materiality. The thrust of the reply was that, since the 1970's (if not before), the deceased had adopted England as his domicile of choice. In particular it is said that, from the early 1970's, he had lived in London for about 9 months of each year; that he had obtained a visa which allowed him indefinite entry into the United Kingdom; and that he "had largely abandoned an Islamic way of life".
9. The reply joined issue, also, with the assertion that, if governed by Islamic law, the will would be wholly invalid. It is said that neither the deceased's expressed wish to be cremated, nor his wish to leave the whole of his estate away from his Islamic heirs could have that effect. The effect, if Islamic law governs succession, is that the claimant's entitlement under the will is limited to one third of the deceased's estate. Further, it is denied that the illness from which the deceased died (which, as appears from the certificate of death, was bronchopneumonia) was an illness from which he had suffered at the time when the will was made, so as to engage the "death-illness" rule. And, in fairness to the claimant, I should set out her response to the defendant's challenge to the due execution of the will. She pleads:

" The Claimant does not know by whom the Will was drafted. It was signed by the Deceased in the presence of [two witnesses, naming them], both of whom have since confirmed that they witnessed the Will in the presence of each other and the Deceased and that the deceased was in full command of his mental faculties. The Claimant had no knowledge of its existence or terms until after the death of the Deceased."

Her assertion as to due attestation is supported by statements made by the attesting witnesses.

10. It is right to say, also, that the fact that there was a ceremony of marriage on 23 December 1986 between persons who identified themselves as the claimant and the deceased – and the authenticity of the certificate of marriage – is confirmed by a statement made by the Superintendent Registrar who conducted that ceremony. The marriage, and due attestation, are in issue; but, if he is to succeed on those issues, the defendant will have to overcome substantial evidential difficulties. The real battle in these proceedings, as it seems to me, is likely to be on domicile; and, if the defendant succeeds on domicile, on substantive validity under Shari'a law. On those issues the defendant is on much firmer ground.

The course of proceedings so far

11. By application notice dated 24 July 2002 the claimant sought an order, under CPR Pt 23, (i) for disclosure by the defendant of all assets of the deceased then in his possession or under his control and (ii) restraining the defendant from dealing with any asset forming part of the deceased's estate. The application was prompted, as appears from the witness statement made by the claimant's solicitor on 23 July 2002, by the belief that:

"Mrs Al-Bassam is entitled to at least one third of the deceased's worldwide estate. The Defendant clearly has knowledge as to the identity and whereabouts of the assets in the Deceased's estate. . . . There is every reason to think that he has already put some of the assets of the deceased's estate beyond Mrs Al-Bassam's reach or that he intends to deal with those assets in that way in the future."

The belief, or assertion, that the claimant was entitled to at least one third of the deceased's worldwide estate is, of course, founded on the premise that, even if the defendant were to succeed on the issue of domicile, the will would be effective, under Islamic law, to dispose of one third of the worldwide estate. That premise, itself, rests on the propositions (i) that the will was duly executed – which supposes that the issues of signature, attestation, knowledge and approval and freedom from undue influence will be determined in the claimant's favour – and (ii) that the defendant's challenge to substantive validity – on the grounds that the will offends against fundamental Islamic tenets – will fail.

12. As a foundation for that application, and in the same application notice, the claimant sought to amend further the consolidated particulars of claim by including an allegation that the defendant had taken possession for his own use of assets which were comprised in the deceased's estate. It was asserted that, the defendant having knowledge of the will and the claimant's interest thereunder since at least 14 January 2002, it was unconscionable for him to retain any of the deceased's assets and that he was liable to account for assets that were or had been in his possession as constructive trustee.
13. The defendant's response to the application of 24 July 2002 was to issue a counter-notice, dated 26 September 2002, seeking an order that, in advance of the court's consideration of the claimant's application under the notice of 24 July 2002, the court should decide preliminary issues as to the substantive validity of the will under Islamic law. The issues which the court was asked to decide were these: (i) is the will invalid under Islamic law because its provisions contravene that law, in particular in requiring that the deceased's body be cremated; (ii) is the will invalid under Islamic law by virtue of the "death-illness" rule; (iii) does the claimant have any entitlement to one-third or any other proportion of the deceased's estate under Islamic law if (either of) those first two questions is answered in the affirmative; and (iv) would an English grant of representation to the deceased's estate, or a declaration by the English court that the claimant is beneficially entitled to the whole or part of the deceased's estate under English law, be recognised as valid and enforceable under Saudi Arabian law.
14. At first sight, the defendant's suggestion that it could be appropriate to decide the first three of those issues in advance of any decision on domicile or due execution of the will, might seem misconceived. Those issues could not arise, in the context of the proceedings before the English court, unless (i) the claimant succeeded on the issue of due execution and (ii) failed on the issue of domicile. If the claimant failed to satisfy the court that the will was duly executed, there would be nothing left in the proceedings. Questions of Islamic law would never arise. And if the claimant succeeded on that issue, and satisfied the court that the deceased died domiciled in England (or, it seems, in India), questions of Islamic law would be irrelevant to substantive validity and succession.
15. The real object of the defendant's counter-notice was to persuade the court that nothing which it might eventually decide would have any effect in relation to those assets which were situate in Islamic law jurisdictions – because its decisions would not be recognised in those jurisdictions – and so the defendant should not be put to the trouble of complying with any order that might otherwise be made under the claimant's notice of 24 July 2002. That is made clear by two sentences in a witness statement, dated 26 September 2002, made by the defendant's solicitor in support of the counter-notice:

". . . The relief sought by the Claimant on her application is so wide as to require the Defendant to carry out expensive and burdensome investigative work in circumstances where the Claimant can have no possible claim under Islamic law to any assets of the deceased's estate which may be situate in Islamic law jurisdictions.

In consequence of the advice received by the Defendant, it is my view that the work that the Defendant would need to do to comply with the Order sought by the Claimant and the embarrassment that would be caused to the Defendant and his family as a result of any freezing order, are wholly unnecessary" [emphasis added]

16. That passage must be read in the light of passages in two earlier witness statements made by the same solicitor. In the first (dated 6 September 2002) he had said this:

". . . Even if the will was executed by the Deceased it would not be recognised under Islamic law in any jurisdiction where that law would be applied to succession to the deceased's estate. This includes, amongst other jurisdictions, Saudi Arabia and Kuwait.

Moreover as between the United Kingdom and the Arab states (including Saudi Arabia and Kuwait) there are no reciprocal enforcement of judgment treaties or arrangements such that if the Claimant succeeded in her claim in English proceedings, any judgment in her favour in such proceedings would be recognised and enforced. Her claim would fall to be governed by Islamic law and would not, for the reasons stated above, be recognised."

In the second witness statement (dated 23 September 2002) the solicitor described a meeting with the Head of the Social Rights Department of the Ministry of Interior of Saudi Arabia. The witness statement contains the sentences:

"His Excellency confirmed that he had reviewed a copy of the Will and that the Ministry of Interior had decided the Will is null and void.

His Excellency confirmed that if an English court ruled that the Deceased was domiciled in England such a judgment would have no influence on the decision which has already been reached by the Ministry of the Interior that the Deceased was a Saudi Arabian national at the time of his death."

17. It is said, of course, that decisions of the Ministry of the Interior do not bind the courts in Saudi Arabia. But the evidence contained in the witness statement of 23 September 2002 must have been put before the court in these proceedings for a purpose. As I have said, the purpose, in the present case, was to persuade the court that there was no point in making the order sought by the claimant in her application of 24 July 2002; because no order the court might make (either on that application, or on the determination of the proceedings) could have any effect in relation to assets in Islamic law jurisdictions. That overlooked, perhaps, (i) that the defendant had submitted to the jurisdiction of the English court, (ii) that he had, himself, invited the English court, by counterclaim in these proceedings to declare that he was the sole heir to the whole of the deceased's estate (wherever situate) and (iii) that the order would operate in personam – and so would be enforceable against the defendant personally.
18. The claimant's application and the defendant's cross application came before Mr Justice Hart at the beginning of October 2002. By an order made on 6 November 2002 the judge dismissed both of those applications. He refused permission to appeal. Permission to appeal was granted to the claimant by this Court (Lady Justice Arden) on 28 November 2002. The appeal was fixed for a hearing on 23 July 2003.
19. The defendant did not seek to appeal Mr Justice Hart's order of 6 November 2002. He commenced proceedings in the Shari'a court at Riyadh, in Saudi Arabia, seeking a determination by that court as to the validity of the will. In substance, the issues raised by those proceedings were the issues which the defendant had sought to have determined as preliminary issues in the existing English proceedings.
20. Some three weeks before the claimant's appeal from the order of 6 November 2002 was to be heard by this Court, the defendant's solicitors caused notice of the Saudi proceedings to be served on the claimant in London. The claimant responded with an application, by notice dated 9 July 2003 in the English proceedings, for an anti-suit injunction restraining the defendant from continuing the proceedings which he had commenced in Saudi Arabia. The ground, expressed in the application notice, was that the initiation and continuation of proceedings in Saudi Arabia which had the same object and which covered the same issues as the English proceedings in which the defendant had already taken an active part was vexatious and oppressive, or an abuse of process.
21. The claimant's appeal from the order of 6 November 2002 was stood out of the list pending the determination of her application for an anti-suit injunction. That application came before Mr Justice Lewison in September 2003. By an order made on 2 October 2003 he granted relief, substantially in the terms sought, restraining the defendant from continuing the existing Saudi proceedings and from instituting further proceedings in Saudi Arabia for the purpose of establishing his right to succeed to assets comprised within the deceased's estate, wherever situated. He granted the defendant permission to appeal from his order, on the ground that an appeal would raise points of principle and would have a realistic prospect of success.
22. So it is that the appeals formally before this Court are (i) the claimant's appeal (under reference 2002/2410) from the order made by Mr Justice Hart on 6 November 2002 and (ii) the defendant's appeal (under reference 2003/2227) from the order made by Mr Justice Lewison on 2 October 2003.

The decision of 6 November 2002.

23. Mr Justice Hart recognised that, on general case management grounds, it would make little or no sense to try as preliminary issues the questions which were set out in the defendant's counter-notice of 26 September 2002. At paragraph 13 of the written judgment which he handed down on 6 November 2002 he said this:

"I have considerable difficulty in seeing why it should make sense to try any of these questions as preliminary issues on general case management grounds. The first three of those questions would only arise if it were held that the deceased died domiciled in Saudi Arabia. If he did, then they are obviously relevant. If he did not, but died domiciled in England or in India, then they are irrelevant to the question of succession so far as this court is concerned, although they might become relevant when considering whether to make in personam orders against the defendant in respect of assets forming part of the estate situate in other jurisdictions. So far as the present form of the proceedings is concerned, the first question which needs to be decided is not the content of Islamic law but the question of domicile."

I should add, by way of explanation, that the judge had already indicated that he was proceeding on the basis that the will was formally valid – by which I understand him to mean that he was assuming due execution.

24. The judge observed that the suggestion that it was appropriate to try the questions of Islamic law as preliminary issues had arisen only as a response to the claimant's application for an interim order for disclosure and a restraint on dealings, and to the amendments to allege constructive trusteeship which she needed to make to her pleading as a foundation for that order. He identified the defendant's objective in the following passage, at paragraph 16 of his judgment:

". . . [Counsel for the defendant] expected to be able to establish first that the claimant had no claim to any part of the estate under Islamic law, and secondly that all relevant Islamic law jurisdictions would in any case refuse to recognise or enforce either an English grant of representation to the claimant or a declaration by this court of the claimant's beneficial entitlement to any part of the deceased's estate, but would instead apply Saudi Arabian Sharia law to the question of succession as the law of the deceased's nationality. He submitted that making orders as sought by the claimant would inevitably create a conflict between the English court and the Saudi Arabian authorities."

And he went on, at paragraph 17, to explain the significance, in that context, of the fourth preliminary issue:

"If, on the hearing of the putative preliminary issue, the English court were to come to the conclusion that the Will was void in Islamic law for either of the reasons advanced, that would not be an end of the matter. The court would then be faced with the question whether to make the orders sought pending the trial of the domicile question. As I understood [counsel's] submissions, this was the merit (from his point of view) of the fourth preliminary issue. He would seek to establish that, even if this court were to proceed to find that the deceased was domiciled in England at his death, so that the whole estate fell to be distributed to the claimant, that result would be of no practical assistance to her since the order would not be recognised in any relevant Islamic jurisdiction. Relevant Islamic jurisdictions for this purpose were jurisdictions in which the deceased's assets were now situate".

25. In his submissions to the judge, counsel for the defendant had relied (as he does in this Court in a different context) on the proposition that the English court would recognise a judgment of a court of a relevant Islamic jurisdiction. The proposition is founded on Rule 131 in Dicey and Morris on the Conflict of Laws (13^th Edition, 2000, page 1025):

"The courts of a foreign country have jurisdiction to determine the succession to all property of a deceased person which is situated in such a country. This jurisdiction is unaffected by the domicile of the deceased.

Such determination will be followed in England."

It was submitted on behalf of the defendant that, if it could be established on a preliminary issue that the courts of relevant Islamic jurisdictions would apply the law of nationality and ignore any order of the English court, it would follow that the English court would have to acknowledge that the claimant's case could not succeed.

26. The judge rejected that submission. At paragraph 18 of his judgment he said this:

"Whatever virtue such an argument may have as a matter of realpolitik, it is in my judgment conceptually confused. The conceptual confusion is between the law which the English court will apply in the exercise of its jurisdiction and the extent to which the English court will recognise a foreign judgment. If the deceased died domiciled in England, the English court will apply English law to the material validity of the will with the result (in this case) that the English court would regard the claimant as entitled to the worldwide moveable estate. If, however, the English court were faced with the fact that a foreign court had decreed a different result in relation to moveables within its jurisdiction, the effect of Dicey Rule 131 would be that the English court would recognise that judgment in working out the consequences of its own ruling. Such recognition would only be afforded to the foreign judgment if it complied with the basic requirements of English private international law for that purpose. It is quite possible to envisage circumstances, therefore, in which the application of English choice of law rules and English recognition of judgments rules produce an apparent conflict as to the destination of the relevant foreign moveables. The conflict is resolved, I would suggest, by recognising the foreign judgment. But unless and until the English court is faced with a foreign judgment which its own rules bind it to recognise, it must simply apply its own choice of law rule [emphasis added]. In the case of the will of an English domiciliary that rule is quite clear: English law must be applied. There is no scope for the English court to say that English law only applies to moveable outside the jurisdiction of a court which might, if asked in suitably constituted proceedings, apply a different law. To hold otherwise would simply be to disobey the English choice of law rule."

He pointed out that, in the circumstances which he had to address, the conflict between the English choice of law rule (Dicey Rule 137) and the English recognition rule (Dicey Rule 131) had not yet arisen. There was no judgment in a relevant foreign jurisdiction which called for recognition.

27. In the light of that analysis – which, if I may say so, seems to me correct – the judge observed that determination of the questions of Islamic law as preliminary issues in these proceedings "would merely postpone the point at which this court has to make a decision about whether or not to make the interim orders, without making that decision an easier one to arrive at". He pointed out that "The fact that the relevant Islamic jurisdictions would not recognise any order of this court which applies a law other than the law of nationality will be the case (if it is the case) in relation to whatever order this court makes at any stage". So, even if the claimant were to succeed on the first two of the proposed preliminary issues (cremation and "death-illness") and so establish some entitlement as a beneficiary interested in the deceased's estate, the interim orders would or might, nevertheless, be of no practical benefit to her. The question of practical benefit would turn on whether the orders would be recognised in each of the jurisdictions in which moveables were situate; and, as to that, the judge observed, at paragraph 22 of his judgment, that "since the defendant has kept resolutely silent as to where, outside the jurisdiction, any assets of the estate are located, . . . , I do not think I am able to draw any sensible inference as to the location of assets, either now or at the date of death".
28. Having decided that there was no merit in deferring consideration of the claimant's application for interim relief until after the determination of the questions of Islamic law, the judge turned to consider the claimant's application "on its merits". He observed that the allegations which the claimant sought to make by amendment to her pleadings advanced a case "that the defendant knows where relevant assets are, has taken control of them, is refusing to give the claimant any information concerning them, and is dealing with them in a manner inconsistent with the claimant's beneficial entitlement". He accepted that there was material before the court which supported the first three of those allegations, but described the fourth as "a matter of pure inference from the first three". He pointed out that the claim that the defendant was liable to account to the claimant in relation to assets under his control was based on her assertion of rights as a beneficiary (not of rights conferred by the limited English grant ad colligenda bona which she had obtained) and that there was nothing unconscionable in the defendant resisting that claim if he were correct in his stance that, as the heir under Islamic law, he was not required, under that law, to recognise her rights as a beneficiary. He was not required to recognise that she had rights as a beneficiary unless and until she established the validity of the will under Islamic law; and that – on his case – was something she would not be able to do so, either in the English court or elsewhere.
29. On the basis of that analysis the judge posed the question whether it was appropriate to order the defendant to account in advance of any determination of the claimant's entitlement. He answered that question in the negative. He said this, at paragraph 30 of his judgment:

"If the claimant does succeed in establishing her entitlement, the court will at that stage no doubt be invited to make in personam orders for accounts and inquiries against the defendant. If, as the claimant fears, she is met at that stage with the same degree of non-disclosure and non-cooperation which has been experienced to date the court will then have to consider the means by which practical effect will be given to its orders. What I find difficult to see is how the claimant's position will be protected by making interim orders to the like effect at this stage. Whether or not the defendant purports to comply with them it is probable that the process of enforcing or verifying the compliance would be time-consuming and expensive, and would distract from the resolution of the real issues at stake in the proceedings. The defendant has already had ample time in which to make the dispositions which the claimant fears. There is no evidence that intervention by the court now would result in the position being materially different in the future from what it now is. For those reasons I decline to make the interim orders sought or to allow the claim to be amended so as to introduce at this stage the claim that the defendant is liable to account as a constructive trustee."

The decision of 2 October 2003

30. As I have said, the claimant appealed from Mr Justice Hart's order of 6 November 2002; but the defendant did not cross-appeal from so much of that order as dismissed the application for the trial of preliminary issues. Instead – mindful, perhaps, of Mr Justice Hart's analysis of the distinction between the application of English choice of law rules and the English rules as to the recognition of foreign judgments – the defendant commenced proceedings in Saudi Arabia. The claimant applied for injunctions restraining the defendant from continuing those proceedings and requiring him to discontinue those and any other proceedings begun by him to establish the validity (or invalidity) of the will or the succession to the deceased's worldwide estate. On 2 October 2003 Mr Justice Lewison made a restraint order substantially in the terms sought. He stopped short of requiring the defendant to discontinue the Saudi proceedings (pending the final outcome of an appeal from his order); but directed that no steps be taken in those proceedings other than those necessary to procure an adjournment.
31. The judge reminded himself of what was common ground between the parties; and of what was in dispute. At paragraphs 8 and 9 of his judgment he said this:

"It is common ground that the deceased was a Saudi Arabian national at the date of his death. It is common ground that, so far as the Saudi Arabian court is concerned, succession to moveables situated in Saudi Arabia would be governed by Saudi Arabian law. It is common ground that Saudi Arabian law will not recognise a decision of the English court and that there is no treaty between this country and Saudi Arabia for the reciprocal enforcement of judgments. It is also common ground that, under Shari'a rules of succession, there is no need for a grant of probate or other court intervention to give title to the Koranic heirs to the assets of a deceased. It is also common ground that the defendant is the deceased's sole heir; he does not therefore need the intervention [of] the courts of Saudi Arabia to take control of such of the deceased's assets as are within that jurisdiction.

However, there is a dispute about the validity of the will. If the will is valid under Shari'a law, a Saudi Arabian court would hold that the defendant is entitled to two thirds of the assets in Saudi Arabia. If it is invalid under that law, the defendant would be entitled to all the assets in Saudi Arabia. That dispute must be tried somewhere."

The judge observed, at paragraph 16 of his judgment, that the claimant had "a plainly arguable case" both on domicile and on the substantive validity of the will under Islamic law.

32. The judge reminded himself, also, of the principles which should govern the exercise by the English court of its undoubted jurisdiction to grant an anti-suit injunction; in particular, he reminded himself of the guidance given by Lord Goff of Chieveley, first in Société Nationale Industrielle Aerospatiale v Lee Kwee Jak and another [1987] 1 AC 871, 892A-893C, 894A-H, 896F-H and, more recently, in Airbus Industrie GIE v Patel and others [1999] 1 AC 119, 138G-H, 140B-D. He addressed the questions (i) whether the defendant had submitted to the jurisdiction of the English court and (ii) whether the English court was the natural forum in which to resolve the disputes between the parties.
33. He answered each of those questions in the affirmative. In relation to the first he said this, at paragraph 19 of his judgment:

". . . by making his independent counterclaim and seeking declarations as to the validity of the will in Shari'a law, the defendant has submitted to the jurisdiction and he reinforced that submission by seeking trial of those questions as preliminary issues. I therefore accept [counsel's] submission that a reasonable bystander would have assumed that, at least until the beginning of July this year, the defendant was content for an English court to try the questions of Shari'a law on expert evidence."

He recognised that there was much to be said for having questions of Shari'a law decided by Shari'a courts, who would be more likely than an English judge "to be fully sensitive to the nuances of Islamic law, based (as they are) on the religious beliefs of Islam". Nevertheless, that point was weakened by the defendant's readiness, in the English proceedings, to submit those questions to adjudication by an English judge; and there were many factors (which he identified) which pointed to proceedings in England. He concluded:

"Questions of Shari'a law will only arise in the English proceedings if the English court finds that the deceased died domiciled in Saudi Arabia. If the court finds that the deceased died domiciled in England, it will apply the law of domicile to assets over which it has jurisdiction. Thus, if the defendant succeeds on the question of domicile, he has no need of a judgment of the Saudi Arabian courts."

I confess that I do not find the logic of the final sentence in that conclusion easy to follow. It may be that the judge is saying no more than that, if the English court finds that the deceased died domiciled in Saudi Arabia it will, itself, determine the substantive validity of the will in accordance with Islamic law; so that there will be no need of any further judgment in Saudi Arabia.

34. The judge then turned to the question whether an anti-suit injunction would deprive the defendant of a legitimate advantage. He identified the advantages to the defendant in proceeding in Saudi Arabia under three heads: (i) the defendant would have questions of Shari'a law decided by Shari'a judges, (ii) he would be entitled to at least two-thirds of the deceased's assets located in Saudi Arabia and (iii) he could expect that, if he obtained a judgment in Saudi Arabia before the English court had itself given judgment, the English court would recognise that judgment as regards Saudi Arabian assets. In relation to the third of those heads, the judge indicated two caveats. First, there was no clear judicial authority for the proposition – derived from Dicey Rule 131 – that the English court would recognise the judgment of a Saudi Arabian court in relation to moveable situated in that jurisdiction. Second "the English court may be concerned to ascertain whether the claimant's human rights, and in particular her right to a fair trial, have been infringed".
35. The judge's concern that an English court might deny recognition of the judgment of a foreign court - on the grounds that the proceedings in the foreign court had been inconsistent with the Convention right to a fair trial – was prompted by his analysis of the decision of the European Court of Human Rights in Pelligrini v Italy (2002) 35 EHRR 2. He referred, also, to two decisions in the English courts – Lubbe and others v Cape plc [2000] 1 WLR 1545 (HL) and Marioner v Larmer [2002] EWCA Civ 774, [2003] QB 620 – which, as he held, reinforced that concern. That led him to consider, in some detail, whether there was a real possibility that the defendant would not receive a fair trial in the proceedings which the defendant had commenced in Saudi Arabia.
36. In addressing that question the judge referred to a number of reports from the usual competent bodies – the Foreign & Commonwealth Office, Amnesty International and the State Department of the United States of America – and to a report by the special rapporteur from the United Nations. Those reports emphasised that the independence of the judiciary in Saudi Arabia was prescribed by law and was generally respected in practice; although concerns were expressed as to the freedom of the judiciary from influence from the Ministry of Justice and from high-ranking members of the Saudi Royal Family and their associates. As the special rapporteur put it: "certain structural conditions exist that could potentially undermine that independence". The judge had evidence, also, from two practitioners in Saudi Arabia and from a respected academic to the effect that the Saudi Arabian judiciary is independent. He observed that the claimant had adduced no evidence from an expert to cast doubt upon the integrity of the Saudi Arabian legal system. But, as he put it, "I am not called upon to decide which of those competing views is correct". He directed himself, at paragraph 29 of his judgment, that "the test is at the lower threshold, of a real possibility, that is a possibility which is not fanciful".
37. Adopting that test, the judge held, at paragraph 33 of his judgment, that there was "more than a fanciful possibility that the claimant will not receive a fair trial according to the standards of the European Convention on Human Rights". In reaching that conclusion he gave weight to four factors: (i) the views attributed to the Head of the Social Rights Department of the Ministry of the Interior (to which I have referred earlier in this judgment); (ii) the possibility that the outrage caused to Islamic sensibilities by the cremation of the deceased (on which the defendant laid great stress) "might well influence a Shari'a court in rejecting the will entirely"; (iii) the position of the Al-Bassam family "as being within the category of associates of the Royal Family; and (iv) "the lack of weight given [in the Shari'a court] to the evidence of a woman and of non-Muslim witnesses".
38. The judge did not regard the possibility that the claimant would not receive a fair trial according to the standards of the European Convention on Human Rights as determinative of the question whether to grant the anti-suit injunction which she sought. It was a factor which (as he said) he was "entitled to take into account in deciding to grant the claimant the relief she seeks". As I have said, he recognised that there were legitimate advantages of which the defendant would be deprived if he were restrained from continuing his proceedings in Saudi Arabia. He asked himself whether it would be unjust to deprive the defendant of those advantages. He answered that question at paragraph 45 of his judgment:

"In my judgment, the advantage which the defendant would gain from prosecuting his proceedings in Saudi Arabia is not one of which it would be unjust to deprive him, having regard to the nature of the advantage, the reasonable concerns of the claimant about her ability to conduct proceedings effectively in Saudi Arabia and to have a fair trial, the stage at which the current action in England has reached and the defendant's overall conduct."

It was for that reason that the judge made the order that he did.

The need for case management directions

39. As I have said, there are formally before this Court the claimant's appeal from the order made by Mr Justice Hart on 6 November 2002 and the defendant's appeal from the order made by Mr Justice Lewison on 2 October 2003. During the hearing of the appeals, however, it emerged that the real issue between the parties was whether questions of Shari'a law should be decided in the English courts or in the Shari'a court at Riyadh. And, on further analysis, it became clear that that issue did not need to be decided at this stage.
40. If the issues as to due execution raised by the defendant in the English proceedings were determined against the claimant, she would have no claim under the will and issues as to its substantive validity would fall away. If the claimant were to succeed on the issues as to due execution and were to establish that the deceased died domiciled in England, issues as to the substantive validity of the will would be determined by English domestic law. In those circumstances, as Mr Justice Hart pointed out in a passage from his judgment to which I have already referred, the questions of Islamic law on which the defendant relies (cremation, "death-illness", exclusion of the Muslim family) would be irrelevant to substantive validity and succession in the English court; although, as he said, "they might become relevant when considering whether to make in personam orders against the defendant in respect of assets forming part of the estate situate in other jurisdictions". The position would (I think) be much the same if the claimant were to establish her alternative case - that the deceased died domiciled in India. It is only if the claimant succeeds on due execution but fails on domicile that it will become necessary for the English court to determine those questions of Islamic law in order to reach a decision on substantive validity and succession.
41. Further, the determination of issues of Islamic law by the Shari'a court at Riyadh at this stage would not obviate the need to proceed to a trial in the English proceedings on the issues as to due execution and domicile. It would remain necessary to decide those issues in order to determine, in the present proceedings, the right to succession to assets situated this country and in other non-Islamic jurisdictions, whatever the decision in the Saudi proceedings. The determination of those issues in the Saudi proceedings will be of relevance to the English proceedings (if at all) only after the issues as to due execution and domicile have been decided. As I have said, if the claimant succeeds on due execution but fails on domicile, it will become necessary for the English court to determine questions of Islamic law in order to reach a decision on substantive validity and succession. In that event I am prepared to assume (without deciding the point) that the English court would consider itself bound, in the light of Dicey Rule 131, to recognise and follow any determination of the same questions already made by the Shari'a court. And, if the claimant succeeds on domicile, the English court might be expected to have regard to a judgment in the Shari'a court when deciding whether (and, if so, how) to give effect to its decision by orders in personam against the defendant. But those are not matters which will arise in the English proceedings until after the issues as to due execution and domicile have been decided.
42. What is required, therefore, are case management directions which will have the effect of bringing before the English court the issues which that court can, and in the wider context of this litigation should, decide before addressing issues of Islamic law; so that, in the light of the decision of the English court on those threshold issues, a decision can be made whether the English proceedings should then be dismissed, or stayed until issues of Islamic law (in so far as they remained live in the English proceedings) are determined in the Saudi proceedings, or should proceed on the basis that those issues will be decided in the English court with the assistance of expert evidence.
43. With some encouragement from the Court, counsel for the claimant applied to amend his appellant's notice so as to seek directions for the trial of preliminary issues. We indicated that we would allow that application to amend. The application for directions should be remitted to a judge of the High Court. We were told that four weeks have already been set aside for the hearing of these proceedings in October 2004. There is no reason to think that a trial of the threshold issues could not be accommodated within that existing slot. The judge will wish to consider whether, in addition to the threshold issues as to due execution and domicile, it would be sensible to resolve the marriage issue at the same hearing.

The disposal of these appeals

44. The question for this Court, therefore, is how properly to dispose of the two appeals now before it in circumstances in which the High Court may be expected to give directions for the trial of what I have described as the threshold issues of due execution and domicile within the next four months.
45. I would allow the appeal from the order of 2 October 2003 to the extent of setting aside the indefinite or perpetual restraint imposed by paragraph 1 of that order. It seems to me impossible to support a final order restraining the defendant, for all time, from continuing the proceedings which he has commenced in Saudi Arabia; whether on the judge's reasoning or on other grounds urged on behalf of the claimant on this appeal. The judge was correct to voice his concern that the judgment of a foreign court, given in proceedings which, in the eyes of the English court, had failed to meet the requirements of a fair trial, would not be recognised here. But that, as it seems to me, is because, in deciding whether to recognise a foreign judgment, the English court will apply its own recognition of judgment rules and will have regard to its own obligation to act in a manner which is not inconsistent with the Convention right to a fair trial.
46. The question whether or not the English court should recognise the foreign judgment arises after the foreign judgment has been given. At that stage it can be seen whether the proceedings in the foreign court did, or did not, meet the English recognition of judgment rules. For the English court to restrain a party from continuing foreign proceedings – either because it fears that those proceedings will not lead to a fair trial or on the grounds of concern that, if that fear turns out to have been well founded, it will not be able to recognise the foreign judgment – goes well beyond anything necessary to protect its own process. It is not for the English court to restrain a party in proceedings before it from suing in another jurisdiction on the grounds of its own perception as to the fairness or unfairness of proceedings in that other jurisdiction – a fortiori, where the country in which the party seeks to sue is not itself bound by the European Convention. In so far as the judge, when granting the anti-suit injunction in the terms that he did, allowed himself to be influenced by a perception that the claimant would, or might, not receive a fair trial in Saudi Arabia, he exercised his discretion on a basis which, as it seems to me, was seriously flawed.
47. In those circumstances, it is for this Court to exercise its own discretion. But it is not necessary to decide what this Court would, or should, have done if the matter had been before it in October 2003. The question for this Court is whether an anti-suit restraint (and, if so, in what terms) should be imposed in the circumstances as they now are. I would impose an interim restraint until after the determination by the High Court (or further order in the meantime) of what I have described as the threshold issues of due execution and domicile. I would do so on the basis that a limited restraint of that nature deprives the defendant of no legitimate advantage and is necessary to protect the process of the English court from misuse.
48. The defendant has not shown any reason why he needs an order of the Shari'a court at Riyadh within the next few months – that is to say in the period before the English court has determined what I have described as the threshold issues of due execution and domicile. In those circumstances, to require the claimant to contest proceedings in Saudi Arabia at a time when she needs to be devoting her time and resources to the preparation of her case for a trial in England of the threshold issues may be seen as oppressive. It is pertinent to keep in mind that the threshold issues are issues which the defendant is content to have tried in England; and which are not raised in the Saudi proceedings. In my view a limited restraint is needed to protect the process of the English court from misuse.
49. I would dismiss the appeal from so much of the order of 6 November 2002 as dismissed the claimant's application for disclosure of assets, for a restraint on dealing with assets and for the provision of authority to enable the claimant to have access to overseas assets – that is to say, for the relief sought in paragraphs (1), (2) and (4) of the draft order annexed to the application notice of 24 July 2002. It seems to me that Mr Justice Hart was plainly right to refuse that relief for the reasons which he gave. I note that the defendant indicated through counsel at the hearing of the appeals that he was willing to provide to the claimant's solicitors a summary of the assets of the deceased's estate by location; and to lodge with the court (to be released to the claimant with the court's permission if and when she were found to be entitled to inherit all or part of the deceased's foreign estate) an affidavit identifying in detail the assets of which he had knowledge. On that basis I understand that the claimant is content not to pursue her application for disclosure and a restraint order at this stage.
50. By her application of 24 July 2002 the claimant sought the relief set out paragraph (3) of the draft order – that is to say, an order requiring the defendant to transfer to her assets of the deceased's estate situate in England and Wales which are in his possession or under his control. The judge did not address that head of relief; nor was it pursued as a separate head on the appeal. It may be that the claimant accepts that there are no assets of the deceased's estate now within this jurisdiction which are in the defendant's possession or under his control. For my part, I do not find it easy to see why the claimant should not be entitled, in her right as the person having a grant ad colligenda bona in respect of the deceased's estate in England and Wales, to have transferred to her assets of the estate now within the jurisdiction. But, as the point has not been pursued in this Court, I need say no more about it.
51. I would allow the appeal from so much of the order of 6 November 2002 as dismissed the claimant's application to amend her particulars of claim – paragraph (5) of the draft order annexed to the application notice of 24 July 2002. It seems to me that there is force in the criticism that, in dismissing the application to amend, the judge has elided the question of amendment with the related (but distinct) question whether, if the amendment were allowed, it would be appropriate to make the disclosure and restraint orders sought. Having decided (correctly, as I would hold) not to make orders for disclosure and restraint, he appears to have lost sight of the need to consider whether (absent such orders before trial) the claimant should nevertheless be allowed to pursue, at trial, a claim based on allegations of constructive trusteeship. Had he considered that as a discrete question he would, I think, have been compelled to the view that there was no reason why she should be shut out from pursuing that claim.
52. In that context it is pertinent to note that the judge, himself, raised the question whether the proposed amendment should be rejected for want of jurisdiction. He pointed out (at paragraph 15 of his judgment) that, if the claims sought to be introduced by amendment had been advanced in a separate action, the claimant would (absent submission to the jurisdiction by the defendant) need to satisfy the requirements of CPR6.20 in order to obtain permission to serve proceedings out of the jurisdiction. But the judge seems to have been satisfied on that point by the submission, made by counsel for the claimant, that the new claims fell within the compass of the claims in respect of which the defendant had already conceded jurisdiction to the English court – those claims having included a claim for an order "that the estate of the deceased may be distributed in accordance with the terms of the Will". The judge recorded that the contrary was not argued by counsel for the defendant.
53. In the course of the hearing of the appeals the defendant sought to raise want of jurisdiction as an answer to the application to amend the particulars of claim. After some hesitation counsel sought permission to file a respondent's notice upon which to base a challenge to the judge's decision not to dismiss the application to amend on that ground alone. For my part I would refuse permission to introduce the point at this stage. It is common ground that a jurisdictional challenge was not pursued before the judge; it was raised only at a late stage before this Court. I am not persuaded that, if fully argued, it would have had any real prospect of success. It seems to me that, for whatever reason, the defendant was content, in 2002, to have disputes as to the entitlement to assets in his late brother's estate (wherever situated) resolved in the English court. He should not, now, be permitted to resile from that position.

Conclusion

54. I would allow the appeal from the order of 6 November 2002; but only in respect of the judge's refusal to allow the amendments to the particulars of claim. I would allow the appeal from the order of 2 October 2003 to the extent indicated in this judgment. In place of the indefinite and perpetual restraint imposed by paragraph 1 of that order, I would impose an interim restraint until after the determination by the High Court (or further order in the meantime) of what I have described as the threshold issues of due execution and domicile.

Lord Justice Carnwath:

55. I agree.

The Vice-Chancellor:

56. I also agree.
Order: Appeal allowed. A minute of order to be lodged with court. (Order does not form part of the approved judgment)