Mahmood Jasim Zeboon Alsaady v Ali Al Hamadani & Ors [2025] EWHC 1801 (Ch)

[2025] EWHC 1801 (Ch)Case No BL-2022-002105IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESBUSINESS LISTVenue 7 Rolls Buildings,, Fetter Lane, London, EC4A 1NLDate 14/07/2025
Before
MR JUSTICE THOMPSELL
Between
MAHMOOD JASIM ZEBOON ALSAADYClaimant/ Respondent
Mr Philip Jones (instructed by Mackrell LLP, 60 St Martins Lane, London WC2N 4JS) for ApplicantsMr Simon Atkinson acting under the CLIPS Free Representation Scheme for RespondentHearing Hearing date: 1 July 2025
APPROVED JUDGMENTRemote hand-down: This judgment was handed down remotely at 16:30 on 14 July 2025 by circulation to the parties or their representatives by email and release to The National Archives
[1]This application concerns an anti-suit injunction (“ASI”) to restrain proceedings in Iraq (the “Iraqi proceedings”) which, whilst not entirely based on the same issues or involving all the same parties, touches on and deals with a number of matters that have been raised in a dispute which has now been largely determined by Rajah J in proceedings in the High Court in England.[2]This hearing was not ex parte but it was held with less than two weeks’ notice, following an order of Michael Green J on 18 June 2025 itself following a request for an adjournment on behalf of the Respondent to the Application (and Claimant in the main action), Mr Mahmood Jasim Zeboon Alsaady (the “Claimant”).[3]The Applicants for the ASI were represented by Mr Philip Jones of Savoy Hill Chambers. The Claimant is unwell and was unable to appear. He was represented through the CLIPS scheme by Mr Simon Atkinson, and the court must acknowledge its thanks to Mr Atkinson for stepping in at almost no notice on this difficult matter.[4]Mr Atkinson was briefed by the Claimant’s son-in-law, Mr Kurdi, who has acted similarly at a previous hearing and who, it seems, had a power of attorney from the Claimant. Arrangements were made for Mr Kurdi to join the hearing remotely but it is unclear how successful those arrangements were. Background: The High Court Proceedings[5]The proceedings in the High Court in England were originally initiated by the Claimant through a Claim Form dated 17 December 2022. The claim was brought against the first four defendants named above who are members of the Al Hamadani family and companies and partnerships said to involve them, as explained further below. For convenience, and not intending any disrespect, I will refer to the individual defendants by their first names.[6]The First Defendant (“Ali”) and the Second Defendant (“Almaghir”) are British citizens of Iraqi origin who have carried on in business as antique dealers through limited companies (including the Seventh Defendant (“D7”)), based in London. The Fourth Defendant (“Alhasan”) is Ali’s son and sole owner and director of the Sixth Defendant (“D6”), a company dealing principally in decorative art. The Third Defendant (“Yaseen”) is the brother of Ali and Almaghir and co-owner with Ali of D7. The Fifth Defendant (the “Alleged Al Hamadani Partnership”) was alleged to have been a partnership comprised of the members of the Al Hamadani family that I have mentioned.[7]The claims brought by the Claimant included: i) a partnership claim in which the Claimant sought: a) the dissolution of a partnership (the “Alsaady-Al Hamadi Partnership”) alleged to have existed between himself and Ali and Almagher or, alternatively between himself and the Alleged Al Hamadani Partnership (and so involving all the members of the Al Hamadani family that I have mentioned as partners in the Alleged Al Hamadani Partnership), b) a declaration as to the effect of the document known as the 2017 Partnership Agreement said to relate to the Alsaady-Al Hamadi Partnership, c) a declaration as to the contributions of capital to the partnership; ii) various accounts and accessory liability claims against any of the Defendants who were not partners in the Alsaady-Al Hamadi Partnership on the basis of dishonest assistance and/or knowing receipt relating to partnership property; iii) bailment claims in relation to various chattels belonging to the Claimant, which he claimed to have been entrusted to and converted by the Defendants and comprising what were referred to as: a) the Dubai Show Collection (899 artistic or cultural artefacts) which Almaghir accepted had been delivered to him but which he said had been returned to the Claimant in August 2019, b) the Spanish Statues, which again, Almaghir accepted had been delivered to him in January 2016 but which he said had been returned to the Claimant in August 2019 with the Dubai Show Collection in August 2019), c) the Najat Baidoon’s Collection (which, Almaghir accepted had been sold by him to the Claimant for £1.2M on 15 January 2015 but which Almaghir averred had been delivered to the Claimant in August 2019 with the Dubai Show Collection), d) the Amber Prayer Bead Collection (but none of the Defendants accepted ever having received any prayer beads belonging to the Claimant), e) the Watch Collection (but similarly none of Defendants accepted ever having received any of the Claimant’s watches); iv) a deceit claim in which the Claimant claimed that Ali and/or Almaghir and/or the Alleged Al Hamadani Partnership had dishonestly procured the delivery to them of the Dubai Show Collection; v) a misrepresentation claim relating to the sale by Almaghir to the Claimant of the Najat Baidoon Collection; vi) an unlawful means conspiracy claim against all or some of Defendants – the unlawful means including breach of partnership obligations, breach of trust, dishonest assistance, knowing receipt, etc.[8]All these claims were denied by the Defendants. In respect of the Alsaady-Al Hamadi Partnership, the Defendants contended that it existed only between the Claimant and Almaghir on the terms of the 2017 Partnership Agreement and that the partnership’s affairs had been concluded.[9]The trial in this matter was listed to run for four weeks from the week commencing 9 June 2025.[10]On 30 May 2025 the Defendants issued an application to strike out the claim, on the grounds that the Claimant had complied with none of the directions making preparations for trial and that Mr Al-Saady appeared to have abandoned his claim. His solicitors had applied to be taken off the court record.[11]During the afternoon of Friday 6 June 2025 C’s son-in-law, Mr Kurdi, emailed the Court with a draft application to adjourn the trial and evidence in support. The grounds for that adjournment application were twofold: i) for the third time, an adjournment was sought on grounds of the Claimant’s medical condition (the previous applications having been rejected by Deputy Master Henderson on 21 February 2025) and by Rajah J at the Pre-Trial Review on 8 May 2025; and ii) the commencement by the Claimant of parallel proceedings in Iraq, the subject matter of which overlapped with the present claim.[12]The trial was heard by Rajah J on 9 June 2025. At the trial the Claimant did not appear, but Mr Kurdi appeared by video link from Iraq and was permitted to address the Court in relation to the adjournment application. Rajah J refused that application and went on to hear evidence from Ali and Almaghir as to the nature of the Alsaady-Al Hamadi Partnership.[13]On the basis of that evidence he determined that the partnership was as set out in the 2017 Partnership Agreement. All the Claimant’s claims against the Defendants were dismissed, except for an order that there should be a partnership account between the Claimant and Almaghir. Costs were awarded against the Claimant on an indemnity basis. Background: The Iraqi Proceedings[14]The Claimant has issued proceedings in the First Instance Court in Al-Karrada on 25 May 2025. The details are as follows: i) The defendants to the Iraqi proceedings are Ali, Almaghir, Alhasan and D6. I will refer to them as the “Iraqi Proceedings Defendants” or also as the “Applicants”, as it is they who are bringing the application I am dealing with in this judgment. ii) The complaints made in the Iraqi petition relate to: a) the Dubai Show Collection (said to comprise 899 unique pieces valued at US$10 million consisting of 559 artworks, 211 various handicrafts and 119 handmade carpets) and seeks its return or payment of its value (claimed at USD $10 million); b) the return of two collections of items named as the “Islamic Collection” and the “European Collection”, said to comprise a total of 450 pieces (or their value) and for which the Claimant says that he paid $12 million to the Defendants; c) an allegation that the Claimant’s health has deteriorated as a result of the refusal of the Iraqi Proceedings Defendants to return the artefacts or their value. iii) The second complaint relates to the Alsaady-Al Hamadi Partnership. The Claimant is seeking the return of an alleged contribution of USD $12 million to partnership capital. iv) In addition, the Claimant seeks payment of USD $5 million compensation (on a basis that is not entirely clear) and seizure orders in respect of the Dubai Show Collection and over “all movable and immovable assets owned by the Defendants until final judgment is rendered”.[15]An injunctive order was made by Judge Mohannad Salih Mohsen on 25 May 2025 which: i) apparently found that the Iraqi court had jurisdiction on the basis that the relevant obligation arose within Iraq through the export of artistic collectibles from Iraq, meaning that art. 150 of the Iraqi Civil Code applied; and ii) placed a non-disposal/seizure order on the 450 items referred to in the order.[16]The 450 items referred to appear to be those set out in a list headed “Islamic Collection Inventory” (not the Dubai Show Collection ) and it may be seen from the description of the items that not all of these items were of Iraqi origin.[17]Almaghir, in his trial witness statement, has given evidence that the Islamic Collection only ever consisted of 250 pieces and, as part of the deal done with the vendor when the price was not paid, 160 pieces had to be returned and that the total size of the partnership’s collection of artistic or cultural objects, in its final state, was 252 pieces.[18]There has never been any suggestion or evidence in the current proceedings that any part of the Islamic Collection originated in Iraq – according to Almaghir’s witness statement, it was purchased from Mr Alaa Sami in Dubai.[19]A further hearing in the Iraqi claim is due on 22 July 2025. Legal Principles relating to an ASI[20]This case is not one of those cases where the action in the other jurisdiction is clearly in breach of a choice of law or choice of forum chosen by the parties. Nevertheless, in my view this is a case where an ASI appears to be appropriate.[21]Mr Philip Jones of counsel, representing the Applicants explained to the court the principles on which the court should act when presented with an application for an ASI.[22]He referred in particular to Deutsche Bank AG v Highlander Crusader Partners LP [2010] 1 WLR 1023, where Toulson LJ carried out a thorough review of the law in a case involving a non-exclusive jurisdiction clause and a forum non conveniens argument. It is useful to quote this paragraph in full: “50 Leaving aside the provisions of the Brussels I Regulation and previous conventions, which are not relevant in this case, I would summarise the relevant key principles as follows.(1) Under English law the court may restrain a defendant over whom it has personal jurisdiction from instituting or continuing proceedings in a foreign court when it is necessary in the interests of justice to do.(2) It is too narrow to say that such an injunction may be granted only on grounds of vexation or oppression, but, where a matter is justiciable in an English and a foreign court, the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive.(3) The courts have refrained from attempting a comprehensive definition of vexation or oppression, but in order to establish that proceeding in a foreign court is or would be vexatious or oppressive on grounds of forum non conveniens, it is generally necessary to show that (a) England is clearly the more appropriate forum (“the natural forum”), and (b) justice requires that the claimant in the foreign court should be restrained from proceeding there.(4) If the English court considers England to be the natural forum and can see no legitimate personal or juridical advantage in the claimant in the foreign proceedings being allowed to pursue them, it does not automatically follow that an anti-suit injunction should be granted. For that would be to overlook the important restraining influence of considerations of comity.(5) An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention.(6) The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive.[23]The court has discretion to make an order for an ASI where the proceedings in the other jurisdiction are found to be vexatious or oppressive. Such a finding is an evaluative judgment to which there is a right or wrong answer not, of itself, an exercise of discretion (see Star Reefers Pool Inc v JFC Group Co Ltd [2012] EWCA Civ 14 at [2]). If the court finds vexatious or oppressive conduct then at that point it has a discretion whether or not to grant the injunction requested.[24]In the Star Reefers caseit was considered relevant (at [32]) the defendant had commenced proceedings in the foreign court, before the commencement of the English claim and (at [37]) that the defendant had not submitted to the English court and had made it reasonably clear that it planned not to do so. In those circumstances it was difficult to regard the conduct of the defendant in seeking to litigate elsewhere as being unconscionable conduct. In such circumstances (see at [40]) issues of comity take on particular importance, and it is more difficult to find the conduct of the defendant in such case vexatious or oppressive.[25]The position in the case before me, however, is very different. In this case it is the Claimant who chose to litigate in the English courts (for which he cannot be criticised as the English courts clearly represented a forum conveniens), but then himself made what appears to be a unilateral decision to start a second set of proceedings in Iraq.[26]As noted by Lawrence Collins LJ in Elektrim v Vivendi Holdings 1 Corp [2008] EWCA Civ 1178; [2009] 2 All ER (Comm): “[83] The categories of factors which indicate vexation or oppression are not closed, but they include the institution of proceedings which are bound to fail, or bringing proceedings which interfere with or undermine the control of the English court of its own process, or proceedings which could and should have formed part of an English action brought earlier”.[27]Commencing two overlapping sets of proceedings based on the same facts, particularly after having substantially lost in the proceedings in the first jurisdiction may constitute vexatious or oppressive conduct.[28]This may be seen also from the Court of Appeal decision in Masri v Consolidated Contractors International (UK) Ltd and others (No 3) [2008] EWCA Civ 625. There, two overseas defendants submitted to the jurisdiction of the English court by appearing and defending the litigation on the merits and, after the claimant had obtained judgment for substantial damages against those defendants, they then issued proceedings in Yemen disputing their liability to the claimant.[29]After noting (at [16]) the appellant’s submissions that:
“16 International comity dictates a need for judicial deference in the international context, and an injunction to restrain foreign proceedings is only to be granted in exceptional cases. It is contrary to principle for an injunction to be granted solely on the ground that it is sought to restrain the relitigation elsewhere of a matter which has already been decided in England. It is a matter for the courts of the relevant country to decide what the effect of the English judgment on liability should be” the court went onto find (at [26]): “26 For reasons on which I will expand, in my judgment the English court has power over persons properly subject to its in personam jurisdiction to make ancillary orders in protection of its jurisdiction and its processes, including the integrity of its judgments. That power is of course a discretionary one, to be exercised in accordance with the requirements of international comity.”
[30]The court went on at [45] onwards to consider how this power is to be exercised in the case of alternative forum cases (i.e. where the parties have not chosen an exclusive forum). Lawrence Collins LJ found (at [82]) as follows:
“I do not accept the judgment debtors’ argument that there is a principle (whether it is expressed as a condition for the exercise of the jurisdiction, or as an aspect of comity, or as an element in the exercise of the discretion) that the English court will not restrain relitigation abroad of a claim which has already been the subject of an English judgment adverse to the person seeking to relitigate abroad. It has been established since at least 1837 that the fact that the respondent is seeking to relitigate in a foreign jurisdiction matters which are already res judicata between himself and the applicant by reason of an English judgment can be a sufficient ground for the grant of an anti-suit injunction.”
[31]After considering further case law he reached the conclusion at [95] that:
“But the present case is not a case where the foreign court has given a judgment with which an English injunction will be inconsistent. It is simply a case in which the judgment debtors are seeking to relitigate abroad the merits of a case which, after a long trial, they have lost in England. In my judgment it is a classic case of vexation and oppression, and of conduct which is designed to interfere with the process of the English court in litigation to which the judgment debtors submitted.”
Application of the principles to this case[32]The case that this is vexatious and/or oppressive conduct is even stronger where it is the claimant who has chosen first one jurisdiction and then a second after he determined that he did not like the way his case was going in the first.[33]Prima facie, then it appears that the Claimant in the case before me has operated in a way that is vexatious and/or oppressive and has done so in circumstances that the court should use its discretion to grant the ASI, in order to protect the legitimate concerns of the English courts to protect the English jurisdiction and to promote the finality of litigation. There is a strong argument that Mr Al-Saady in commencing parallel proceedings is challenging and seeking to undermine the order of Mr Justice Rajah and is unfairly and unjustly seeking a second bite of the cherry.[34]There are, however, aspects of the proceedings in Iraq that may be capable of overturning this prima facie position.[35]Mr Atkinson noted on behalf of the Claimant, that the court in Iraq has assumed jurisdiction by reference to the Antiquities and Heritage Law No. (55) of 2002. There is a suggestion in something that Mr Kurdi has said to the court at a previous hearing that the impetus for the litigation in Iraq has come as a result of a letter from authorities in Iraq, concerned for the protection of Iraqi heritage.[36]To the extent that the latter proposition is true (for which there is no evidence before the court in England), this might put a different light on both whether the Claimant’s actions in commencing litigation in Iraq are vexatious or oppressive, and also may have an effect on the discretion of the court in relation to the balancing act that it needs to do between protecting the English jurisdiction and to promote the finality of litigation on one hand, and appropriate respect for the principles of comity on the other.[37]I accept also that, as a substantial element of the case has been concluded not by means of judicial findings but rather because the Claimant did not appear at trial to pursue the case, the usual risk of inconsistent findings between the courts of two jurisdictions are reduced here.[38]As regards any claim for return of antiquities or parts of the Iraqi cultural heritage, it is credible that actions by the authorities in Iraq may render what was otherwise vexatious or oppressive conduct on behalf of the Claimant to be a reasonable response to pressure being exerted on him by the authorities in Iraq. It is also possible that an understanding of the effect of heritage laws in Iraq may affect the way that the court should regard the issue of comity.[39]However, these points only go so far. To the extent that the Claimant is trying to litigate matters concerning what payments he has made to any of the Defendants, or the terms of the Alsaady-Al Hamadi Partnership, it seems vanishingly unlikely that the Claimant is being forced to make such claims by the authorities in Iraq and none of the considerations above as to vexatious and/or oppressive conduct or the way the court should exercise its discretion are in my view, overturned by any of these points.[40]Further, to the extent that the Claimant is relying on the considerations discussed in paragraph 38 above, the Claimant has had an opportunity to adduce evidence to show that these considerations apply. He has known about this application since at least 9 June 2025 and was specifically ordered to serve any evidence on which he intended to rely in the order of Michael Green J of 18 June 2025. He did serve evidence, but nothing that could be said to evidence that the impetus for the proceedings in Iraq has come from the Iraqi authorities or that there is anything in Iraqi law relating to the protection of cultural artefacts that this court should take into account when weighing matters of comity.[41]It seems to me therefore that the Claimant has already had his chance to resist the Application and has failed to satisfy the court that there are good reasons not to make the order that should be weighed against the reasons discussed above as to why I consider that I should make the order. I had not realised this when discussing this matter in the hearing but it is plain from a more considered review of the papers.[42]Accordingly I will make an order in broadly the terms of the order drafted by the Applicants save as regard costs.[43]As regards costs, I consider that it is appropriate to award costs to the Applicants as they are the successful party and I see no good reason for overturning the usual position that the successful party should be awarded costs (both of this hearing and of the previous hearing before Michael Green J) to be determined summarily on paper. I am not satisfied however that the Claimant’s conduct has been out of the norm so as to justify costs being payable on an indemnity basis.[44]The Applicants have submitted their N260 Statement of Costs within the Hearing Bundle. I will give the Claimant until 4.00 pm on 22 July to serve any written representations on this Statement of Costs that he may wish to make and if such representations are made I will give the Applicants 7 days to make any points they wish to make rebutting any such statement.[45]I will ask the Applicants’ counsel to draw up a draft order reflecting this judgment.