CLAIMANTS WIDE RANGING EVIDENCE EXCLUDED: HIGH COURT DECISION TODAY

In  BB & Ors v Al Khayyat & Ors [2021] EWHC 1499 (QB) Mr Justice Chamberlain allowed, in part, an application by a defendant that certain evidence put forward by the claimants in relation to an application be excluded.

THE CASE

The action is brought by eight Syrians, living in Holland,  for damages they claim to have suffered in Syria as the result of the actions of a terrorist group. It is alleged that the first and second defendants are closely connected to the terrorists and the third defendant bank facilitated funding.  The third defendant has made an application for a stay on the ground of forum non conveniens, that application was adjourned and the claimants given an opportunity to file further evidence in relation to allegations of attempts to interfere with the proceedings.  The claimants filed evidence which was wide ranging in scope.

There were a number of applications being heard prior to the stay application being heard in full.  One of those applications was by the third defendant to exclude certain evidence served by the claimants.

THE DISPUTED EVIDENCE

The defendants’ argument was that the claimants had filed evidence that was wide ranging, some of which constituted “quasi-expert” evidence.

“The Claimants’ evidence

1. 1. In January 2021, pursuant to the Order, the Claimants served a number of witness statements, with exhibits, from: Majed Saleh; Anas Idress; Roduan Kharoub; Wael Elkhaldy; Arthur Johan Willem De Leeuw; Basel Hashwah; and Matthew Jury (the Claimants’ new solicitor). Taken together, this evidence covers a very wide range of subjects and travels far beyond the alleged attempt to interfere with these proceedings. Much of it relates to things said to have been done by the Al Khayyat brothers and others on behalf of the State of Qatar many years before the proceedings began.

Doha Bank’s application to strike out or exclude this evidence

Submissions for Doha Bank

1. 1. For Doha Bank, Ms Brown submitted as follows. The Order, read in context, permitted the Claimants to file further evidence of the alleged attempts to interfere with the proceedings taking place between 9 October 2020 (the date on which Doha Bank filed evidence in response to the Claimants’ evidence for the jurisdiction hearing) and 9 am on 11 November 2020. The vast majority of the Claimants’ evidence related to: the substantive merits of the claim; attempts to interfere with the proceedings which are alleged to have taken place before 9 October 2020; or the Claimants’ inability to obtain a fair trial in Qatar.

1. 1. Ms Brown submitted that filing such wide-ranging evidence was an abuse of process and asked me to strike out or exclude the following:

(a) paragraphs 7-90 and 95-98 of the Second Witness Statement of Majed Saleh dated 14 January 2021, along with any exhibits referred to exclusively in those paragraphs, namely exhibits MS5-MS15 and MS17-MS20;

(b) the entirety of the First Witness Statement of Anas Idress dated 14 January 2021, along with exhibits;

(c) the entirety of the First Witness Statement of Roduan Kharoub dated 14 January 2021, along with exhibits;

(d) the entirety of the First Witness Statement of Wael Elkhaldy dated 14 January 2021, along with exhibits;

(e) the entirety of the First Witness Statement of Arthur Johan Willem De Leeuw dated 15 January 2021;

(f) the entirety of the First Witness Statement of Basel Hashwah dated 15 January 2021, along with exhibits;

(g) paragraphs 4-9 and 26-28 of the Second Witness Statement of Matthew Jury dated 15 January 2021, along with any exhibits exclusively referred to in those paragraphs, namely exhibits MJ/5, MJ/6 and MJ/9;

(h) the entirety of the Third Witness Statement of Matthew Jury dated 29 January 2021 along with exhibits.

1. 1. Ms Brown accepted that the Court would need to understand the scope and nature of the allegations forming part of the substantive claim in order to determine the jurisdiction issue. But this understanding could be gleaned from the Particulars of Claim. In response to a question from me, she accepted that these could be amended if necessary to incorporate matters contained in the new evidence, to the extent that those matters could properly be incorporated into a pleading. In this way, the Court could properly understand the nature and scope of the underlying claim, insofar as necessary to determine the stay application.

2. Ms Brown submitted that paragraphs 32-41 of the Second Witness Statement of Matthew Jury were also out the of scope of the Order, being “quasi-expert evidence… relating to the alleged inability of the Claimants to obtain a fair trial in Qatar”. However, rather than seeking to strike it out, she sought permission to rely on evidence in response (the Supplemental Expert Report of Dr Yassin El Shazly dated 12 May 2021 and the Fourth Witness Statement of David Flack dated 14 May 2021) at the jurisdiction hearing.

THE JUDGE’S DECISION

The judge decided to exclude a large part of the claimants’ additional evidence.

1. 1. CPR 32.1 gives the Court power to control evidence. By CPR 32.1(2), this includes the power to exclude evidence that would otherwise be admissible. That power must be exercised in accordance with the overriding objective which, as noted above, includes ensuring that a case is dealt with expeditiously and fairly and allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

1. 1. There was a debate before me about precisely what HHJ Coe QC intended by her Order. Mr Emmerson submitted that she had in mind the need for the Claimants’ new representatives to have time to consider the case and to file further evidence generally, not limited to the interference allegations. Ms Brown submitted that the intention was to limit the permission given to evidence relating to events taking place in a particular time window and that, in context, this means the interference allegations.

1. 1. I do not regard it as necessary or helpful to parse the judge’s judgment – and still less the transcript of the hearing – with the aim of inferring precisely what she had in mind. Three matters are clear. First, the judge was reluctant to adjourn the stay hearing, in circumstances where doing so would inevitably lead to considerable delay. Second, she was persuaded to adjourn the hearing in large part because she was concerned that, if she did not, the interference allegations – which she considered potentially centrally relevant to the stay application – would not be before the Court. Third, she envisaged a further directions hearing before the stay application was considered.

1. 1. I approach Doha Bank’s application to strike out or exclude parts of the Claimants’ evidence served in January 2021 on that basis, bearing in mind that HHJ Coe QC had not seen the evidence that I have seen. It is for me to decide whether any parts of it should be excluded from the materials before the court at the stay hearing.

1. 1. One approach might have been to decline to strike out or exclude any part of the evidence filed, leaving it to the judge hearing the stay application to decide whether and to what extent it was relevant. I have not adopted that approach because I do not think it would be conducive to the parties’ or the Court’s efficient preparation for the hearing. I have now heard fairly extensive argument and am in a position to form a view about the material that ought to be before the Court at the stay hearing. There is considerable overlap between the issues which arise on Doha Bank’s application to strike out or exclude evidence and those which arise on the Claimants’ application to cross-examine.

1. 1. In my judgment, the proper approach is as follows:

(a) It is vital that the judge who hears the stay application should understand the scope and nature of those allegations. A party might be perfectly able to secure justice in a particular forum in respect of (for example) a private commercial dispute with another party, but unable to do so where (for example) the dispute implicates persons with strong links to the Government of the forum State.

(b) However, as noted in relation to the application to cross-examine, it is no part of the court’s function on the stay application to make findings of fact in relation to the allegations underlying the claim. Nor would it be possible fairly to do so at this very early stage in the litigation.

(c) The required understanding of the scope and nature of the underlying allegations can be gleaned from the pleadings. Their purpose is to set out what is alleged and against whom. That is all the judge needs to know about the underlying allegations to decide whether Qatar is an appropriate forum. There is no need for the judge to consider voluminous evidence about the underlying allegations when determining the application for a stay.

(d) The Particulars of Claim already set out in some detail the allegations on which the Claimants rely. However, the Claimants should be given an opportunity to amend those Particulars to include any of the matters contained in the evidence served in January that can properly be included in a statement of case. The amended Particulars of Claim will provide an adequate summary of the nature and scope of the allegations underlying the claim.

(e) The requirement that this summary should take the form of a pleading will serve two important purposes. First, it will focus the minds of the Claimants’ representatives on the question of which material contained in the evidence can properly be pleaded. This will impose a salutary discipline on the way the underlying dispute is described to the judge. Second, it will relieve the judge of the need to read large quantities of evidence about the underlying issues and enable him or her to concentrate on the evidence about the suitability of the forum (which itself is extensive).

(f) However, evidence which relates not to the underlying allegations but to the alleged interference in these proceedings by the Defendants or agents of the State of Qatar should be before the judge, because this evidence is directly relevant to the suitability of the State of Qatar as a forum. I will not limit that evidence to matters occurring since 9 October 2020, because HHJ Coe QC’s Order did not contain any such express limitation. I will permit all of the Claimant’s evidence which relates to alleged attempts by the Defendants or others on behalf of the State of Qatar to interfere with the course of justice in these proceedings. At present the Claimants have not identified any parts of their evidence going to these issues beyond those referred to in paragraph 30 of Doha Bank’s skeleton argument, but I will give a further opportunity to the Claimants to do so, and for Doha Bank to respond, in the light of the approach I have outlined in this judgment.

1. For these reasons, Doha Bank’s application succeeds in principle. I will set out the precise passages of the Claimants’ evidence which will be excluded from consideration at the stay hearing once I have received the parties’ submissions, as indicated at paragraph 72(f) above.