ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Kevin Prosser QC
Case No HC0C01922
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE LEWISON
| STEPHEN HUNT (as trustee in bankruptcy of Janan George Harb)
|- and -
|JANAN GEORGE HARB
HRH PRINCE ABDUL AZIZ BIN FAHD ABDFUL AZIZ
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Rebecca Page (instructed by Howes Perceval) for the Respondent
Hearing date : 26 October 2011
Crown Copyright ©
The Master of the Rolls:
"On any such application Mr Hunt would explain that although the Claim was not vexatious and was potentially very valuable, he was no longer able to pursue it. On the other hand, Mrs Harb (who would no doubt be joined in the application) would explain that she was willing and able to purchase the Claim for a more than merely nominal price. It would occur to the court that, if Mrs Harb was willing to purchase the Claim, then so too might one or more of the creditors; moreover, the possibility of the Prince being willing (notwithstanding his claim to immunity) to make a payment to Mr Hunt to settle the Claim could not be ruled out either. In those circumstances the court, having regard to the best interests of the creditors and of Mrs Harb as persons interested in the estate, and giving some weight to the public interest that bankruptcy should not be too readily available as a means of stifling claims which may have substance, would direct that before serving notice of discontinuance Mr Hunt should invite offers from Mrs Harb, the creditors and the Prince with a view to assigning to, or settling with, the highest bidder (so that Mr Hunt would receive more than his costs if any of the assignment or settlement) instead."
"In response to a request for guidance from Mr Hunt, I add that Mr Hunt would in my view be entitled to reject any offer to purchase the Claim on terms that all or part of the net proceeds of a successful Claim will be paid to him or applied for the benefit of the creditors. This is because the purchaser would in my view be acting as the mere nominee or delegate of Mr Hunt, who would accordingly continue to be at risk of liability for costs. And Mr Hunt would also be entitled to give preference, in the offer process, to the creditors and Mrs Harb over the Prince. For example he might decide to accept an offer made by a creditor or Mrs Harb if it equals or is not substantially less than any offer made by the Prince, or he might decide to give the creditors and Mrs Harb the opportunity to match or beat the Prince's offer even though his is the highest, and for that purpose to inform them of the amount to match or beat."
"The [trustee] may reject any offer … on terms that all or any part of the net proceeds of a successful claim will be paid to him or applied for the benefit of the creditors on the grounds that the purchaser would in pursuing the claim after sale be acting as the mere nominee or delegate of the [trustee] who would accordingly continue to be at risk of liability for costs."
It is against that paragraph of the deputy judge's order that Mrs Harb appeals.