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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Samara v MBI Partners UK Ltd [2015] EWCA Civ 1191 (28 October 2015)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1191.html
Cite as: [2015] EWCA Civ 1191
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE WOOD QC (Sitting as a High Court Judge)
Strand London, WC2A 2LL |
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B e f o r e :
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| SAMIR SAMARA | Claimant/Respondent | |
| -v- | ||
| MBI PARTNERS UK LIMITED | Defendant/Applicant |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr M Brindal QC and Mr T Crocksford (instructed by Zaiwalla & Co LLP) appeared on behalf of the Defendant/Applicant
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Crown Copyright ©
- SIR STANLEY BURNTON: This is a renewed application for permission to appeal the judgment of His Honour Judge Graham Wood QC in a highly unusual case brought by Mr Samir Samara against an English company, MBI & Partners UK Limited.
- The proceedings before the judge were the trial of an allegation of fraud on the part of the claimant. Going backwards somewhat, he had brought proceedings against the defendant alleging that it was liable to him under a contract that he had entered into for work which he carried out, as I understand it, in Saudi Arabia. The contract he relied on was a written contract and the employer under that contract was not identified as MBI & Partners UK Limited but as MBI & Partners, which was not a legal entity in any way at all.
- The case is unusual in a number of respects. The principal respect is this. Mr Samara obtained judgment against the defendant in default. There was an application to set it aside. That was refused.
- It follows that the issue before the judge was not whether there was a good claim by Mr Samara against the defendant in the sense that he had no good cause for action and the like, it was whether the judgment that had been obtained by default had been obtained by fraud. Fraud, of course, involves an allegation of dishonesty and the principal claim before the judge was that the written contract on which the claim was based was a complete forgery, and known to be a forgery by Mr Samara, so that his claim was entirely dishonest.
- There was a subsidiary point that the defendant company was not identified in the contract and it was said that his allegation that it was the defendant company specifically that was his employer was itself a dishonest fraudulent representation. The judgment concerns in the main the principal allegation put forward by the defendant, namely that the contract relied on by Mr Samara was not in fact a contract, it was a complete forgery, and there is relatively little in the judgment which addresses the subsidiary point as to the identity of the defendant.
- It is not now contended that the majority of the judge's judgment is ill-founded insofar as there was no finding of dishonesty on the part of Mr Samara, subject to the issue as to the identity of the defendant. As far as that is concerned, the applicant relies on numerous statements made in the course of evidence, somewhat surprisingly, by Mr Samara, that indicate that he had known information, to put it as neutrally as possible, leading to the conclusion that the actual party to the contract on which he relied was not the English company, rather than any other entity, there being no such entity as the one described in the contract.
- In a number of respects, his concessions during the course of his evidence are surprising. They certainly read like a quite honest appreciation of the facts relating to the identity of the defendant. I bear in mind that the substance of the claim against Mr Samara is that his claim was dishonest. The question is not whether he had reasonable grounds or did not have reasonable grounds for identifying this particular company, MBI & Partners UK Limited, as the defendant. If this were simply an application to set aside the default judgment, I unhesitatingly would allow it because clearly there was, or could have been, an issue as to its identity. But the question now is whether there is an arguable case that he dishonestly identified the defendant as the entity which was his employer and which was liable to him.
- When I read the judgment as a whole, it is quite clear that the allegation of his dishonesty was substantially rejected. In my judgment, it is not enough to point to passages in Mr Samara's evidence where he effectively admits that he had no evidence against MBI & Partners UK Limited. What must be shown is that he dishonestly alleged that MBI & Partners UK Limited was the party liable to him, and the judgment as a whole, in which Mr Samara's evidence was extensively addressed, is quite inconsistent with that; as, it seems to me, is his frankness and candour in accepting that there was nothing that he knew to identify MBI & Partners UK Limited.
- In my judgment, given the importance of an allegation of fraud raised at this stage and one which accepts the finding that the contract itself was a genuine contract, it would not be right to grant permission to appeal to raise the subsidiary case on what would have to be a new trial.
- For the reasons I have given, I refuse permission.