Sheikh Mohammed Omar Kassem Alesayi v Bank Audi S.A.L. [2025] EWHC 1033 (KB)

[2025] EWHC 1033 (KB)

Case No KB-2023-001038

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30 April 2025

Before

MR JUSTICE CONSTABLE

Between

SHEIKH MOHAMMED OMAR KASSEM ALESAYIClaimant

BANK AUDI S.A.L.Defendant

Bobby Friedman and Caspar Bartscherer (instructed by Bryan Cave Leighton Paisner LLP) for Claimant

Ian Wilson KC and Rebecca Zaman (instructed by Dechert LLP) for Defendant

Hearing Hearing dates: 8-10 April 2025

JUDGMENT

This judgment was handed down by the Judge remotely by circulation to the parties'

representatives by email and release to The National Archives. The date and time for

[1]The Claimant, Sheikh Mohammed Omar Kassem Alesayi (‘Sheikh Alesayi’), is a Saudi national and, since late 2023, a British Citizen. He brings a claim against the Defendant, Bank Audi S.A.L. (‘the Bank’), as a consumer pursuant to sections 15B and 15E of the Civil Jurisdiction and Judgments Act 1982 (‘the CJJA’ and the ‘Consumer Jurisdiction’). The Bank is a Lebanese bank headquartered in Beirut. Sheikh Alesayi ultimately seeks an order that the Bank transfers the full balances held in 8 accounts, totalling more than US$24,000,000, to his account in Geneva. He claims that the international transfers were requested in August 2022, but that the Bank has refused to carry out the transfer requests. On 19 April 2023, Sheikh Alesayi obtained an order permitting service of the claim by alternative method, namely by email. On 25 July 2023, the Bank made a Part 11 application disputing the jurisdiction of this Court and seeking to set aside the order permitting service by alternative method. This is the judgment in respect of those applications.

[2]The evidence before the Court on this application consists of witness statements from:(1) Mr Graham Shear, solicitor and partner in Bryan Cave Leighton Paisner LLP (seven statements), on behalf of Sheikh Alesayi;

(2) Sheikh Alesayi (two statements);

(3) Tarik Kadry, an employee of Sheikh Alesayi;

(4) Mr Adam Silver, solicitor and partner in Dechert LLP, on behalf of the Bank (eight statements);

(5) Mr Ricci Potts, also a solicitor and partner, in Dechert LLP;

(6) Mr Antoine Najm, Group Chief Credit Officer of the Bank;

(7) Mr Tamer Ghazaleh, Deputy Group Chief Executive Officer of the Bank;

(8) Mr Samir Hanna, Chairman of the Board of Directors and former Chief Executive Officer of the Bank;

(9) Mr Gregory Satnarine, Chief Financial Officer, Chief Operating Officer and Deputy General Manager of Banque Audi (Suisse) SA, (‘BAS’), a wholly owned subsidiary of BAPB Holdings Ltd, which itself is wholly owned by the Bank;

(10) Farid Lahoud, Group Chief Compliance Officer and Corporate Secretary at the Bank.

[3]In respect of the Bank’s application to set aside the order for alternative service on the basis that it was not made with full and frank disclosure, Mr Wilson KC, on behalf of the Bank, accepts that this part of the application stands or falls with the jurisdiction challenge and does not need to be considered separately.

[4]As Dexter Dias J acknowledged in his recent decision in the appeal against certain disclosure orders made in this case by Master McCloud (which appeal was successful in part: see

[2025] EWHC 440 (KB)

), this is one of several similar claims in which claimants with funds in Lebanese financial institutions have come to this Court seeking various forms of relief, animated by the banking crisis in Lebanon and the well-publicised unstable financial environment in which Lebanese banks have been operating with severe foreign currency shortages since October 2019. This general background, which I do not repeat, has been set out in a number of judgments of this Court, including by Picken J in Manoukian v Societe Generale de Banque au Liban and Bank Audi

[2022] EWHC 669 (QB)

at [20]-[22]. In that case, jurisdiction had not been put in issue. No part of this judgment explores the merits of the substantive claim.

The Statutory Framework

[5]The focus of jurisdictional foundation is based upon sections 15B and 15E of the CJJA which state as follows:

“15B.— Jurisdiction in relation to consumer contracts (1) This section applies in relation to proceedings whose subject-matter is a matter relating to a consumer contract where the consumer is domiciled in the United Kingdom. (2) The consumer may bring proceedings against the other party to the consumer contract:- […] (b) in the courts for the place where the consumer is domiciled (regardless of the domicile of the other party to the consumer contract). 15E.— Interpretation (1) In sections 15A to 15D and this section – “consumer”, in relation to a consumer contract, means a person who concludes the contract for a purpose which can be regarded as being outside the person's trade or profession; “consumer contract” means […] (c) a contract which has been concluded with a person who— (i) pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled, or (ii) by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and which falls within the scope of such activities. […] (2) In determining any question as to the meaning or effect of any provision contained in sections 15A to 15D and this section— (a) regard is to be had to any relevant principles laid down before [11pm on 31 December 2020] by the European Court in connection with Title II of the 1968 Convention [the Brussels Convention] or Chapter 2 of the Regulation [Brussels Recast] and to any relevant decision of that court before [11pm on 31 December 2020] as to the meaning or effect of any provision of that Title or Chapter, and (b) without prejudice to the generality of paragraph (a), the expert reports relating to [the Brussels Convention] may be considered and are, so far as relevant, to be given such weight as is appropriate in the circumstances.”

[6]Sections 15B and 15E are a restatement and retention in UK domestic law of the consumer protections contained in Brussels Recast, following the UK’s withdrawal from the EU. It is true, in circumstances where once the CJJA is engaged there is no separate role for a principle of forum (non) conveniens, that the entire weight of the jurisdictional question is borne by the question of whether the provisions of the CJJA are available. I accept, as Mr Wilson argues, that these provisions should therefore be construed in the manner set out in Dicey, Morris and Collins on The Conflict of Laws [16th Edn], which states that: ‘the expressions derived from the Brussels jurisdictional regime are to be strictly interpreted in the sense that they cannot give rise to an interpretation going beyond the cases expressly envisaged by that regime. This was originally derived from the principle that the jurisdictional provisions in the Brussels regime are a derogation from the general principle that a defendant should be sued in the jurisdiction of their domicile. That general principle no longer applies in the United Kingdom, but the English court is unlikely to adopt a wider approach given the history of the provision and the status of European Court decisions prior to the end of the transition period.”

[7]It is common ground that pursuant to the CJJA there are three requirements which must be established in order to engage the Consumer Jurisdiction. These are that:(1) Sheikh Alesayi was dealing as a consumer when he concluded the banking contract. For the purposes of this application, this limb is not challenged, although the Bank reserves its right to do so should its jurisdictional challenge fail and the same issue falls to be considered substantively;

(2) Sheikh Alesayi was domiciled in England at the relevant date (‘the Domicile Issue’). As to this: (a) there is a debate as to whether the relevant date is the date the proceedings were commenced, or the date upon which the relevant contract was concluded; (b) if the relevant date is the date the proceedings were commenced, the Bank does not dispute that Sheikh Alesayi has been domiciled in England since November 2017, and so this criteria would be fulfilled; (c) if the relevant date is the date the relevant contract was concluded, there are two competing dates: (i) December 1994 (on the Bank’s case); (ii) November 2016 (on Sheikh Alesayi’s case). In its answer to the Bank’s Part 18 Request in July 2023, it was contended that other potential relevant dates were (a) in 2019, when Sheikh Alesayi entered into a standalone fiduciary deposit agreement with APB (as defined below) and (b) on 24 December 2020, when APB merged with the Bank pursuant to Lebanese law, and all of APB’s banking business (including its contract with the Sheikh) was transferred to the Bank automatically by operation of Lebanese law, and APB ceased to exist. However, neither of these contentions were ultimately pursued by Mr Friedman, on behalf of Sheikh Alesayi. Whilst Sheikh Alesayi has contended that he was domiciled in England from around 1990, there is also, now, no dispute that the third criteria, referred to immediately below, was not fulfilled as at 1994. If, as the Bank contends, 1994 is the relevant date, there is therefore no dispute that there is no jurisdiction under the CJJA. The Domicile Issue is now confined, accordingly, to whether Sheikh Alesayi has a good arguable case that he was domiciled in England in November 2016 (assuming that that is the relevant date).

(3) to be a ‘consumer contract’ pursuant to section 15E(1)(c), it must be demonstrated that Sheikh Alesayi concluded the contract “with a person who – (i) pursues commercial or professional activities [in England]…, or (ii) by any means, directs such activities [to England]” and that the contract in issue “falls within the scope of such activities” (‘the Activities Issue’). As to this: (a) the Bank denies that this test was satisfied at any time; (b) Sheikh Alesayi (now) accepts that this test was not fulfilled as at 1994. He says, however, that there is a good arguable case that this criteria was fulfilled as at November 2016.

The Good Arguable Case Test

[8]The standard which the Claimant has to satisfy is the good arguable case test.

[9]The three stage test, formulated by Lord Sumption in Brownlie v Four Seasons Holdings Inc

[2018] 1 WLR 192

at [7] and restated in Goldman Sachs International v Novo Banco SA

[2018] 1 WLR 3683

, is as follows:

“For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had “the better of the argument” on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows: ‘(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”

[10]This was explained further in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV

[2019] 1 WLR 351

(CA). The Court of Appeal considered the difference between an absolute test (‘good arguable case’) and a relative test (identifying which party ‘has the better of the argument’). The three stage test, as parsed by Green LJ in Kaefer, was recently applied and further explained by Foxton J in Kalo v Bankmed SAL

[2023] EWHC 2606 (Comm)

at [6] in the following helpful terms:

“Limb (i) of the Kaefer formulation requires the court to ask if there is an evidential basis showing that the claimant has the better argument as to the application of the gateway, the burden of proof lying on the claimant as the party seeking to invoke the court’s jurisdiction. However the test is “context-specific and ‘flexible’. Limb (ii) explains how the court is to approach that task, in a context in which evidence may well be incomplete, there has been no disclosure, and witness evidence has not been tested by cross-examination. Those forensic limitations do not of themselves prevent the court reaching a view on the relative merits. The judge is required to approach the task pragmatically and by applying common sense – for example an evidential dispute may not affect the conclusion, however decided, and it will often be possible to reach a view on the basis of the documentary record, even if there is conflicting evidence. Limb (iii) addresses the position where “the court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument”, in which context it suffices that there is a “plausible (albeit contested) evidential basis” for the application of the gateway.”

[11]One feature of this case upon which Mr Wilson relies to contend that the Court should be particularly slow in moving to a limb (iii) analysis is that disclosure has been provided, further to a contested application and appeal, in respect of the Activities Issue. As such, it is said that the Court has the advantage of a more substantial documentary record than might normally be available in this type of application. Mr Wilson also submits that, in circumstances where the Claimant has no direct knowledge or experience of the Bank directing its business to anywhere other than Lebanon and Saudi Arabia, the dispute on the Activities Issue is not so much a clash of factual evidence, but competing arguments about what conclusions and inferences are properly to be drawn from the material that has been exhibited and/or disclosed. In these circumstances, it is said that it should not generally be necessary to resort to limb (iii) on a dispute of such kind. There is some force in these observations, particularly in circumstances where the arguments centre upon whether, taking certain aspects of the opposing parties’ evidence at face value, the relevant test is or is not met. That said, Mr Friedman was justified in pointing out the relative limits of the disclosure exercise (even putting aside his point about the adequacy of compliance) and on any view the disclosure may still fall considerably short of that which would be before the Court at trial.

[12]Moreover, I also remain conscious that the Court has to guard against the temptation to conduct a form of mini-trial, the injunction that Foxton J also referred to when faced with the contention that limb (iii) should be regarded as “an option of last resort”.In this context, Mr Friedman also placed emphasis on paragraph 14(c) of Foxton J’s decision in Kalo in which he characterised submissions made about the unreliability of a number of the bank’s witnesses and the lack of documentary corroboration as “essentially “cross-examination” type points of varying force”. He considered that the exercise of deciding which witness evidence was the more credible would have had all the hallmarks of a ‘mini-trial’. In that case, the particular dispute to which Foxton J was referring was evidence given by three witnesses for Mr Kalo that certain expatriates living in England and Wales had in fact been approached by the bank. Whilst at least in certain respects there may be less direct conflict to be resolved in the present case, I accept, to the extent that the Court does come to a conclusion as to whether one side or the other has the better argument, it must not do so where it would lack the robustness which a judicial decision of this significance requires (see paragraph [7] of Kalo).

[13]Finally, Mr Wilson also submitted, whilst accepting that it was no longer apt to see the test as one in which the party claiming jurisdiction had to establish that they had ‘much’ the better of the argument, the Court should be particularly careful when determining the jurisdictional question in a consumer context, because once the statutory gateway is met, there is no further requirement for a substantial connection between the dispute and the UK. I do not consider that it is helpful to adopt a further gloss to the test as explained in Kaefer: the Court should be neither quick nor slow to come to any particular outcome. It is sufficient to examine the evidence critically, consider the proper inferences that may be drawn therefrom and determine whether the relevant test or tests have been met.

The Draft Amended Particulars of Claim

[14]Overnight on the second day of the hearing, following questions about the extent to which it could be seen from the existing pleadings how or to what extent new terms signed by Sheikh Alesayi in November 2016 (‘the 2016 Terms’) related to the International Transfer Right upon which the substantive claim is based, Mr Friedman produced a draft Amended Particulars of Claim.

[15]There is no dispute that the original Particulars of Claim had been produced without sight of the 2016 Terms. This was recorded expressly at paragraph 3 of the Particulars of Claim, which stated that by a letter dated 19 December 2022 sent by Sheikh Alesayi to the Bank by email, Sheikh Alesayi requested from the Bank a copy of the terms and conditions that were said by the Bank to govern his relationship with it, and that the Bank had failed to respond to this request. The pleading therefore reserved his rights and stated an intention to plead further as to the alleged rights against the Bank once the Bank provided the terms and conditions. Those terms and conditions (which are the 2016 Terms) were provided nearly two years ago, but no amendment was produced.

[16]Mr Wilson emphasised that on Sheikh Alesayi’s pleaded case, the ‘International Transfer Right’ was at all material times a part of the contract (irrespective of the existence of the 2016 Terms). This is correct: it is the effect of paragraphs 5(a)-(c) of the Particulars of Claim, which concluded that ‘the contract between the parties incorporates, further alternatively is to be construed as including, the International Transfer Right.’

[17]The pleading also made clear at paragraph 5(f) that Sheikh Alesayi was relying upon specific terms and conditions to establish the International Transfer Right, albeit by inference only from the decision of Picken J in Manoukian v Societe Generale de Banque au Liban and Bank Audi

[2022] EWHC 669 (QB)

, a case involving consideration, amongst other things, of the Bank’s full terms and conditions which were in place in that case. Sheikh Alesayi alleged that his contract was (inferentially) on materially similar terms and conditions.

[18]The draft Amended Particulars of Claim now include the particulars foreshadowed in paragraph 3 of the original pleading. The new allegation of particular relevance is the specific plea (at paragraph 4) that on 25 November 2016, Sheikh Alesayi entered into a new suite of contractual documentation with the Private Bank, which comprised a number of different agreements, including ones entitled ‘General Account Opening Terms of Business’, and ‘Portfolio Account – Terms of Business’. Paragraph 5 was (in draft) amended to include a specific plea relating to the International Transfer Right, as follows:

“The International Transfer Right arises from the contractual terms of the 2016 Contract. In particular, Sheikh Alesayi relies on the following terms of the 2016 Contract: i. Clauses 2 and/or 3 of the General Terms, and/or clauses 3.7, 4.1 and/or 4.5 of the Portfolio Terms limit the Bank’s liability for delayed or non-execution of transactions (including transfers) in certain limited circumstances. None of the limitations there identified are applicable to the Transfer Request (as defined in paragraph 7 below). As a matter of construction, these specific limitations are the only limitations applicable, such that the Bank is required to execute international transfers, where these limitations do not apply (subject to an implied term allowing for compliance verification). ii. Clauses 2 and 16 of the General Terms and clause 4.5 of the Portfolio Terms explicitly contemplate Sheikh Alesayi using his accounts for the purpose of transactions in and/or to jurisdictions outside of Lebanon.”

[19]Sensibly, no objection was made to the Court having regard to the draft Amended Particulars of Claim in the context of this application. Had it been disputed, I would have concluded that this was the correct course in any event for the same reasons as explained in the Court of Appeal in Tulip Trading Ltd v Bitcoin Association for BSV

[2023] 4 WLR 16

at [65]. Mr Wilson’s substantive submission is that the draft does not add to the substance of the case against the Bank. He also makes the point that it is not suggested in the draft amended pleading that the 2016 Contract extinguished the existing relationship or was in itself an entirely new contract. The Relevant Dates Issue For the purposes of the Domicile Issue

The Relevant Dates Issue

[20]Mr Friedman argues, albeit by way of a secondary argument, that it is sufficient that Sheikh Alesayi was, as the Bank accepts, domiciled in England at the time when he brought the Claim, even if he was not domiciled in England at the time he concluded the contract. By contrast, Mr Wilson contends that it is a pre-condition for a contract to be a “consumer contract” that the consumer was domiciled in the UK at the time the relevant contract was concluded. Although advanced as a secondary argument, logically it makes sense to deal with this first: if Mr Friedman is correct as a matter of law, there would be no dispute on this application that the domicile requirement of the Consumer Jurisdiction test is met.

[21]Due to time constraints, both parties ultimately relied upon their written submissions in respect of this argument. Mr Friedman’s written submissions emphasised the use of the present tense within the wording of s.15B(1), which applies, “where the consumer is domiciled in the United Kingdom”. Similarly, s.15(2) provides that proceedings may be brought, “in the courts for the place where the consumer is domiciled”. This is plainly supportive of the conclusion that the relevant date for assessing domicile for the purposes of section 15B is that of the commencement of proceedings. This conclusion is consistent with the European Court of Justice (ECJ) decision in mBank[2020] ILPr 37 (which was decided prior to IP Completion Day, such that regard is to be had to it by the Court (s.15E(2)(a)). In mBank, the claimant was domiciled in the Czech Republic at the time of the contract, but then moved to Slovakia. The bank sought to sue the consumer in the Czech Republic. The ECJ was required to decide whether “consumer domicile” meant the date of the claim or the date of the contract (see [19]). It held that the relevant date was the date of the claim. Mr Wilson did not dispute that this was the effect of the wording of section 15B, or the decision in mBank.

[22]However, the Consumer Jurisdiction is, in this case, sought to be invoked by section 15E(1)(c). This relates to ‘a contract which has been concluded with a person who—…(i) pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled’. The reference to ‘that part’ in 15E(1)(c)(ii) is to the preceding sub-paragraph and therefore also includes the reference to the domicile status of the consumer in respect of ‘a contract which has been concluded’ (emphasis added). I consider that as a matter of natural language, this would require the consumer to be domiciled at the point at which the contract has been concluded, which is the same temporal point at which it must be assessed whether the counterparty is a person who pursues commercial or professional activities in or directed to that part of the United Kingdom.

[23]Mr Wilson relies in this regard on Commerzbank AG v EO,

Case C-296/20

[2021] I.L.Pr.40.

(c) of the Lugano II Convention:

“In matters relating to a contract concluded by a [consumer]…jurisdiction shall be determined by this Section… if: […] (c) the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer's domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities.”

[24]In Commerzbank at [59], the CJEU observed of Article 15(1)(c) that:

“the applicability of that provision [on consumer jurisdiction] is subject only to the express condition that the professional counterparty pursues its activity in the State in which the consumer is domiciled at the time the contract was concluded, and the subsequent transfer of the consumer’s domicile to another Contracting State is not liable to prevent the applicability of that provision.”

[25]It is clear that whilst Mr Friedman’s submissions about the proper construction of section 15B are correct, they do not meet Mr Wilson’s argument, which I accept, about the need to be domiciled in England at the date of the conclusion of the contract when, specifically, section 15E(1)(c) is being invoked. This is not necessary when other bases of jurisdiction are invoked. The correct position is therefore as articulated by the editors of Dicey in Conflict of Laws [16th Edn] at 11-272 (the relevant footnote to which cites the cases considered above):

“Time for assessing domicile for consumer contract rules. The relevant date for assessing domicile for the purposes of s.15B of the 1982 Act is that of the commencement of proceedings. This is subject to two points. First, for the purposes of the pre-condition in s.15E(1)(c) (contract concluded with a person who pursues commercial or professional activities or “directs” such activities to within the United Kingdom), then it will also be necessary to determine the consumer’s domicile at that time.”

[26]Therefore, unless Sheikh Alesayi was domiciled in England at the time he concluded his contract with the Bank, the contract is not a “consumer contract” within the meaning of section 15E(1)(c) (even though he is domiciled for the purposes of section 15B). The competing dates for ‘concluding a contract’.

[27]Both parties accept that Sheikh Alesayi entered into a banking contract with Banque Saradar SAL (‘Saradar’) on 22 December 1994. On the Bank’s case, this date is the only relevant date for the purposes of determining the Domicile and Activities Issues, and in circumstances where it is accepted by Mr Friedman that Saradar was not directing activities to the UK at that time, the Bank’s Part 11 application would succeed.

[28]As described by Mr Ghazaleh (who was not at Saradar at the time):

“19….On 22 December 1994 the Claimant signed a letter agreement for the opening of a savings account with [Saradar]. The letter agreement was in French which as noted in Najm 1, was one of the operating languages of [Saradar] at that time. The document includes a pre-amble page which lists the Claimant’s name as well as his date of birth, nationality and address, which I note was stated to be in Beirut, Lebanon. The first paragraph of the letter agreement states that this front-page forms part of the agreement and the final paragraph of the letter agreement states that the Claimant’s domicile is as stated on the front page. 20. The front page also includes the Claimant’s personal identification number 204825. This identification was used as the Claimant’s account number for his account with [Saradar] (the “Account”) throughout his time as a customer of [Saradar] up until its merger with the Bank. The numbers for his individual sub-accounts (for instance current accounts, savings accounts and accounts in different currencies) are created by adding various suffixes to his identification number…. 21 […] I understand from a colleague at the Group, … it was practice at [Saradar] in those days to allow a customer to open a range of different accounts, including for example a current account, once they had signed an agreement to open another account. I therefore believe that this is what happened in this case with the Claimant signing an agreement to open a passbook savings account and [Saradar] also opening a current account and various other accounts for him at that time.”

[29]I do not set out the contents of the letter agreement referred to. It is sufficient to record that that it can be described as a basic agreement, particularly when juxtaposed with the terms and conditions agreed in 2016 Terms to which I refer further below.

[30]The proper conclusions from Mr Ghazaleh’s evidence are that(a) a contract for a savings bank account was concluded in December 1994;

(b) such terms and conditions as there were related only to the savings bank account; and

(c) there were no terms at all specific to the other types of account, such as a current account, or a ‘portfolio’ account, or foreign currency accounts.

[31]Ten years later, in 2004, the Bank acquired all the shares in Saradar and it became a fully owned subsidiary of the Bank. After Saradar became a subsidiary of Bank Audi SAL it was renamed “Audi Private Bank”/“APB”.

[32]On 19 February 2009 the Claimant completed an updated KYC form with APB. This form again recorded the Claimant’s address as being in Beirut, Lebanon. Neither side rely upon this as materially affecting the contract concluded in 1994.

[33]On 25 November 2016, the Claimant signed a pack of contractual documents and updated KYC documents with APB. These documents, which were signed on 25 November 2016, included:(1) General Account Terms and Conditions;

(2) Portfolio Account Terms and Conditions;

(3) Savings Account Terms and Conditions;

(4) Agreement for Forward and Spot Foreign Exchange and Currency Option Transactions;

(5) List of Fees and Charges;

(6) List of Customer Rights and Duties;

(7) Application Form to Open Account for Individual;

(8) Know Your Client (Individual) Form; and

(9) Consent to be Classified as a Professional Client (together, the ‘2016 Terms’).

[34]The General Account Terms and Conditions were set out in a 5 page, relatively densely drafted document with, as one would ordinarily expect, a large number of terms and conditions. Although Mr Friedman initially placed emphasis on paragraph 1 which said, ‘the Client requests Audi Private Bank sal (the Bank) to open a general account in his name…’I do not regard this of itself as particularly pertinent: it likely exists in each such general terms included in the document whether an account is already open (and terms are being updated) or where a new account is in fact opened. There is no evidence to suggest that in November 2016 any new account was in fact opened. The draft Amended Particulars of Claim allege that, of the accounts holding funds from which the International Transfer is sought, three accounts were opened in 2019 or later, and (by definition) four were in existence before 2016, each having the account number 204825 (first allocated in 1994) with an identifying suffix, prior to the account number changing in the 2020 merger.

[35]The remainder of the terms included Clause 2 (‘Operations in Foreign Currencies’), which included obligations and liabilities in the case of unavailability of currency, and Clause 3 (‘Operations Execution’), which included obligations and liabilities in relation to instructions from the client. There were also terms dealing with cheques, and a clause regulating the ‘union and merger of account, compensation and conversion’, and the Bank’s entitlement to treat all of one client’s accounts as an indivisible whole. They also included terms as to rights of termination, terms as to Governing law and jurisdiction, and a term dealing with Foreign Law and Obligations.

[36]Similarly, the Portfolio Account Terms and Conditions amounted to what could be described as a comprehensive statement of the parties’ obligations and liabilities, set out over 11 pages. Mr Friedman drew particular attention to the range of private banking services offered by the bank under the terms. Additionally, Clause 3.7 (‘Liability for Instructions’) and Clause 4.1 (a ‘Best Efforts’ clause), dealt with the basis upon which the Bank could rely on instructions and liabilities in relation to doing so, and a requirement on the Bank to provide its clients with best execution and to execute client orders as soon as reasonably practicable in the circumstances. It set out the ambit of liability in circumstances of delayed transactions. It included a term (Clause 4.7) relating to foreign exchange transactions, and the sufficiency of cash balances, which affected the extent to which the Bank was ‘obligated to execute any instruction’.

[37]Mr Ghazaleh gives evidence that the Claimant signed the 2016 Terms as part of a routine file review, when a member of the compliance team noticed that Sheikh Alesayi had not signed updated account documentation. He continues:

“This was not unusual and was simply part of APB’s attempts to maintain up to date documentation for its customers, as any bank would. Although the contractual documentation and KYC were updated by the signature of these further documents in 2016, this did not create a new bank account. The Claimant’s funds remained in the Account [i.e. as defined in the extract from Mr Ghazaleh’s witness statement further above].”

[38]It is Sheikh Alesayi’s case that November 2016 was the date upon which the contract was concluded for the purposes of section 15E(1)(c) of the CJJA.

[39]The question, therefore, is whether the fact that Sheikh Alesayi signed APB’s terms and conditions in November 2016 constitutes the point at which the contract ‘has been concluded’ for the purposes of the application of the CJJA.

[40]Mr Wilson accepts that these terms and conditions effected a variation, and that that variation was substantial, comprising a whole new suite of terms and conditions. However, he contends that the consumer contract which existed between the parties was concluded on the opening of the 1994 account and the fact of the updated terms and conditions does not affect that.

[41]In support of his argument, Mr Wilson relies principally upon the judgment of Foxton J, in Khalifeh v Blom Bank SAL

[2021] EWHC 3399 (QB)

, which was also a Lebanese banking case. In that case, Mr Khalifeh opened two US dollar accounts with the relevant bank, including a personal USD account, and signed various documents which included a ‘General Agreement for Opening and Operating Creditor Accounts’, and a ‘Feature of Term Deposits and Savings Account’ which recorded the commercial terms relating to the accounts. Mr Khalifeh signed various updated documents in the following two years, including one which was an updated ‘Key Features of Term Deposits and Demand/Sight Savings Accounts”, a version of which was signed in both 2018 and again in 2019. At paragraph [70] of the judgment, Foxton J records 6 changes introduced by the later documents, of which 4 he found amounted to new terms. Of these, two involved the introduction of fees (for dormant accounts and upon account closure), and the other two related to a change in the application of the date from which interest was due on an overdrawn account and the introduction of a term in which the bank reserved its rights to amend the conditions, requiring the customer to visit the website periodically to check for any amendments. He described the four changes as ‘relatively minor but variations nonetheless’.

[42]Foxton J rejected the argument advanced by Mr Khalifeh that the date of these variations represented the time of the conclusion of the contract for the purposes of the application of Article 6 of Rome I.

[43]Rome I provides a consumer exception to the usual choice of law provisions which closely mirrors the domicile and activity requirements under Article 17 of Brussels Recast (and in turn, the CJJA). Article 6 states:

“Consumer contracts 1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional: (a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or (b) by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities.” and the contract falls within the scope of such activities.”

[44]Under Rome I it is specifically provided, pursuant to Article 19(3), that for the purposes of determining the habitual residence, “the relevant point in time shall be time of the conclusion of the contract”. Foxton J considered, first, that the argument that the conclusion of the contract meant the date of the last variation found no support in the language of this Article. He no doubt was referring to the fact that, as a matter of natural language, the ‘conclusion’ of the contract does not generally refer to the date upon which it is later varied. Section 15E(1)(c) is similarly worded, referring only to ‘a contract which has been concluded’ and makes no express reference to the effect of variations to a concluded contract. Mr Wilson submits that the same construction should be adopted to the word ‘concluded’ in the CJJA (drawn from Article 17 of Brussels Recast) as pertained to ‘conclusion’ in Rome I.

[45]In pressing this point, Mr Wilson referred to recital 7 to Rome I which states that the substantive scope and provisions of Rome I should be consistent with the Brussels I (the precursor to Brussels Recast). Recital 24 also states, with specific reference to consumer contracts, that consistency between Rome I and Brussels I required both that there be a reference to the concept of directed activity as a condition for applying the consumer protection rule and that the concept be interpreted harmoniously. In a short post-hearing communication, counsel for Sheikh Alesayi drew the Court’s attention to Petruchová v FIBO Group Holdings Ltd [2019] I.L.Pr. 42 in which the ECJ held (in the context of whether it was possible to “read across” between Rome I and Brussels Recast when considering the question of the application of consumer jurisdiction to a particular financial instrument) that “Under no circumstances can the coherence sought by the EU legislature lead to an interpretation of the provisions of Regulation 1215/2012 that is alien to its system and objectives”. In other words, this Court should strive to achieve coherence insofar as it can, but that does not apply when the effect would be to undermine the objectives of the consumer jurisdiction. That objective is in part articulated in Recital 18 of Brussels Recast, which states, “In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules”. I accept, however, as submitted by the Bank in response to this, that Petruchová is of limited relevance in circumstances where the Bank in the present case is not seeking to “read across” to s.15E(1)(c) any language, concepts, or express exclusions in Rome I which are not already there on the face of s.15E(1)(c). If anything, Petruchová emphasises the importance of coherence, provided that coherence does not, in a particular case, lead to a perverse outcome inconsistent with the objective of the jurisdiction.

[46]Foxton J then identified further reasons to support his conclusion:

“(ii) The argument would seem to involve the applicable law of the contract varying at different points in time, which would be a recipe for chaos and potentially involve a retrospective impact on accrued rights and obligations. Further, it would seem to follow from Mr Cox QC’s argument that a contract which was not concluded with a consumer might subsequently fall within Article 6 (and the special jurisdiction regime for consumers) if amended at a point in time at which the relevant contracting party had become a consumer: for example, someone who purchased a computer for work purposes, but later extended the contractual warranty at a point in time when they were using the computer for domestic purposes. There would also be contracts in which a later amendment could “cost” the consumer their Article 6 protection (for example a case in which, by the time of an amendment, the “consumer” had moved to a country towards which the professional party was not directing its activities). It would also, on Mr Cox QC’s argument, attribute very significant differences to the issue of whether a new arrangement between contracting parties as to some aspect of their dealings amounted to a variation of an existing contract or a new, separate contract. It is difficult to conceive of an interpretation less conducive to the aim of Rome I, as recorded in Recital (6), “to improve the predictability of the outcome of litigation [and] certainty as to the law applicable”. iii) While it would be possible to treat the subject-matter of any variation as, in effect, a stand-alone contract to which Article 6 would fall to be applied prospectively, that would involve different parts of the same contract being subject to different applicable laws. While dépeçage is conceptually possible and is contemplated by Article 3(1) of Rome I, Dicey, Morris & Collins, [32-026], notes that it is “in practice inconvenient, and infrequent”

. The Giuliano-Lagarde Report, p.17, notes that dépeçage must be limited to cases where “elements in the contract … can be governed by different laws without giving rise to contradictions”. There will be many contractual variations which cannot be treated separately from the pre-variation terms of the contract (for example a change to the level of fees charged for contractual services which are a standard feature of continuing contracts such as those governing banks accounts, or later terms releasing or modifying an existing obligation). The matters relied upon by Mr Cox QC here are, at best, of this kind. iv) In any event, the right which Mr Khalifeh asserts – repayment of the account balance – is not one which either arose or was modified by the 2019 Key Features Document. v) These difficulties are not (or at least not obviously) confined to consumer contracts, because there are other provisions of Rome I which involve determining the applicable law by reference to the habitual residence of one party at the date of contracting: e.g. under Articles 4(1)(a), (b), (d), (e), (f) and (2) (Applicable law in the absence of choice), 5(1)-(2) (contracts of carriage) and 7(1)(3) (insurance contracts). vi) In my view, there is very real force in Mr Wilson QC and Mr Ferro’s submission that Mr Khalifeh’s case involves a category error in the application of Rome I. Once it is established that there is a “contract”, and its applicable law determined by reference to the provisions of Rome I, the issue of the status and effect of any subsequent variation to that contract is determined by applying the applicable law so determined, rather than raising a new issue for determination under Rome I as to what the applicable law of the contract (as varied) now is. vii) There can be contractual variations which amount to a complete restatement of the parties’ relationship, sometimes with retrospective effect (cf. the discussion of a similar issue in a very different context in MacDonald Eggers, Picken and ors, Good Faith and Insurance Contracts (4th), [10.25]) or which involve something akin to a novation in practical, albeit not legal, terms (such as the example given in McParland, [5.70]). The application of Article 6 in such a situation is best considered in a case in which it arises. However, the minimal and highly ancillary nature of the new terms which were agreed in this case does not come close to raising this type of argument.”

[47]Mr Friedman sought to distinguish Khalifeh on the basis of a meaningful distinction between choice of law and jurisdiction: the former is necessarily fixed at the outset, not least for the reason identified at point (vi) from the quotation above. The very question of whether there has been a variation would be determined by reference to the chosen law of the contract, so the point at which the choice of law is determined (or potentially changed) cannot be by reference to the date of a variation. The same, Mr Friedman argued, does not apply to a jurisdiction clause.

[48]I accept that the question of jurisdiction is more nuanced than that of choice of law. Pursuant to 15B, one element of the jurisdictional question is (as set out above) only ultimately determined at the point of bringing a claim. If jurisdiction is not ultimately fixed until such time as a claim is brought, a fluctuation in the potential applicability of jurisdictional rules prior to that point is not, at least conceptually, as problematic as it is for a choice of law clause. To this extent, there is a valid distinction with the position under Rome I in respect of choice of law, and this may also mean that the practical effect of a different approach to the meaning of ‘conclusion’ when considering a jurisdictional test is not as stark as that justifiably described by Foxton J (at point (ii) above) in the context of choice of law.

[49]However, I do not regard this as a complete answer: there remains force in the need for consistency and certainty in the circumstances in which a trader knows that the direction of its activities will, or will not, lead to the application of consumer protection. Indeed, this conclusion is supported by Recital 15 of Brussels Recast which states that, ‘the rules of jurisdiction should be highly predictable’. Therefore, notwithstanding the fact that Khalifeh is not directly applicable, both as a matter of language and the promotion of coherence and certainty, I consider that it is right that the phrase ‘has been concluded’ within 15E(c) of CJJA would not generally relate to the date of the last variation.

[50]However, it is important to note in the context of the facts of this case the points made by Foxton J at sub-paragraphs (iv) and (vii).

[51]As to (iv), this is a case where the very terms relied upon by the consumer are the terms introduced by the variation. Whilst it is right that Sheikh Alesayi’s case has always relied upon a general international transfer right implied into any applicable agreement, including the (simple) 1994 letter agreement or existing in Lebanese law as a matter of custom and good faith, there is also a specific argument (intimated in the original Particulars of Claim and clearly expressed in the draft Amended Particulars of Claim) based upon particular terms which did not exist prior to the agreement of the 2016 Terms. The potential importance of these terms to Sheikh Alesayi’s case is demonstrated by the decision of Picken J in Manoukian in which the claim for specific performance succeeded against the banks (which included the Bank) on the basis of the existence of an International Transfer Right as a matter of construction of the terms - which it is said are materially similar to the 2016 Terms - rather than a general right as a matter of custom, which Picken J did not (and did not need to) determine. There is, at least, a good arguable case that the point at which the very term being sued upon is introduced into a contract is, for the purposes of section 15E(1)(c), when the contract has been concluded. Provided that, of course, at the time of such variation the trader is directing their activities to the relevant state, this would not of itself be inconsistent with maintaining a narrow exception to the general jurisdiction rules, and would be compatible with the objective of protecting the consumer.

[52]As to (vii), it is not inappropriate to describe the agreement to the 2016 Terms as a complete restatement of the parties’ legal relationship, even if the day-to-day impact of agreeing to the suite of terms may have been negligible. A novation is where there being a contract in existence, some new contract is substituted for it (whether between the same parties or different parties). In Chitty on Contracts (35th Edition at [23-089]), the editors identify that where it is necessary to determine whether a transaction is a variation or a novation, the substance of the obligations that the parties have undertaken is crucial. The editors then cite Briggs J (as he was then) in Langston Group Corp v Cardiff City Football Club Ltd

[2008] EWHC 535 (Ch)

. In that case, the judge doubted (at [48]) that there was ‘single doctrinal answer appliable for all purposes’ to the question of whether an existing contract has been replaced, but considered the applicability of the ‘intention’ test in Morris v Baron & Co

[1918] AC 1

, in relation to which Viscount Haldane had said:

“What is, of course, essential is that there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which still leave it subsisting.”

[53]Irrespective of whether there was a formal, legal novation by the agreement to the 2016 Terms,there is no doubt that in 2016 there was a fundamental restatement of the parties’ legal relationship, which extinguished all the terms upon which the parties had been operating, and substituted them wholesale with a comprehensive new set of terms. As set out above, the 2016 Terms also introduced the very rights upon which the consumer seeks redress. Even if this did not amount to formal novation in law, there is also a good arguable case that the wholesale restatement was sufficiently akin to a novation (to use the language of Foxton J) such that the relevant consumer contract was concluded, for the purposes of section 15E(1)(c) of the CJJA, in 2016. Again, this conclusion, in light of the additional requirement for there to be, at this point in time, the direction of activities by the company to the relevant state in which the consumer is domiciled, does not offend against the integrity of a narrow exception to the general jurisdiction rules, when balanced with the objective of protecting the consumer.

[54]It is therefore necessary to consider the Domicile Issue and the Activities Issue as at November 2016. The Domicile Issue The Law

The Domicile Issue

[55]As to the meaning of ‘domiciled’ for the purposes of the CJJA, this is defined in section 41(2) as follows:

“An individual is domiciled in the United Kingdom if and only if— (a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.”

[56]As to the meaning of residence, a convenient place to start is the oft-cited passage from Levene v Commissioners of Inland Revenue

[1928] AC 217

, at pages 222-3: “My Lords, the word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.”… In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure… Similarly a person who has his home abroad and visits the United Kingdom from time to time for temporary purposes without setting up an establishment in this country is not considered to be resident here… But a man may reside in more than one place. Just as a man may have two homes – one in London and the other in the country – so he may have a home abroad and a home in the United Kingdom, and in that case he is held to reside in both places and to be chargeable with tax in this country”.

[57]A useful summary of the applicable principles is set out in Bestolov v Povarenkin

[2017] EWHC 1968 (Comm)

by Andrew Baker J; and quoted as such by Carr J (as she then was) in Tugushev v Orlov

[2019] EWHC 645 (Comm)

at [120]:

“44……..(1) It is possible for a defendant to reside in more than one jurisdiction at the same time. (2) It is possible for England to be a jurisdiction in which a defendant resides even if it is not his principal place of residence (ie even if he spends most of the year in another jurisdiction). (3) A person will be resident in England if England is for him a settled or usual place of abode. A settled or usual place of abode connotes some degree of permanence or continuity. (4) Residence is not to be judged according to a “numbers game” and it is appropriate to address the quality and nature of a defendant’s visits to the jurisdiction. (5) Whether a defendant's use of a property characterises it as his or her “residence”, that is to say the defendant can fairly be described as residing there, is a question of fact and degree. (6) In deciding whether a defendant is resident here, regard should be had to any settled pattern of the defendant’s life in terms of his presence in England and the reasons for the same. (7) If a defendant visits a property in England on a regular basis for not inconsiderable periods of time, where his wife and children live, in order to see his wife and children (including where the centre of the defendant's relationship with his children is England), such property has the potential to be regarded as the family home or his home when in England, which itself is evidence which may go towards supporting the conclusion that England is for him a settled or usual place of abode, and that he is resident in England, albeit that ultimately it is a question of fact and degree whether he is resident here or not, having regard to all the facts of the case including any discernible settled pattern of the defendant’s life or as it has also been put according to the way in which a man's life is usually ordered.”

[58]As has now been said on many occasions, whilst authorities may be illustrative, ultimately the conclusion on each case depends innately on its own facts. So, whilst from Orlov (a case in which Mr Orlov was disputing that he was domiciled in the UK), Mr Friedman placed emphasis upon(1) the fact of ownership of properties in the jurisdiction (although this is not determinative) (at [148]), even if not a principal place of residence (at [142]);

(2) payment of utility bills, and in particular for services that are not just incidental to property ownership at [156]); and

(3) whether the purpose of trips was purely for business, treating the property like a hotel, or whether the trips were for leisure and family reasons (at [155] and [161]); Mr Wilson used the same case to underline the fact that (1) entering on a Type C business visa might weigh against residence (at [178]) and (2) Mr Orlov’s residence was supported by a regular and settled pattern of visiting once or twice a month, his partner’s indefinite leave to remain and the fact that she nearly always accompanied Mr Orlov on his trips (at [183]).

[59]Further guidance of some relevance on the facts of this case comes from Shulman v Bogolyubov

[2018] EWHC 160 (Ch)

at [28], in which Barling J considered on the authorities that, once residence for jurisdictional purposes had been established, in order for it to cease “there should be a distinct break in the sense of an alteration in the pattern of the individual's life in the UK” and that, “Actions of the individual after the material time … may be relevant, if they throw light on the quality of the individual's absence from the UK”.

Sheikh Alesayi’s evidence

[60]Sheikh Alesayi states that he has a longstanding connection to the UK. He explains that he first came to the UK as a child, as his father was keen for him to share in his appreciation for the UK; Sheikh Alesayi frequently travelled to the UK and spent most summers in the UK and learned English. He says that the UK always felt like his second home alongside Jeddah in Saudi Arabia, and it is not in dispute that he moved his primary residence from Jeddah to the UK in October 2017, when his focus moved from running his family business towards retirement. Sheikh Alesayi was thereafter granted indefinite leave to remain in the UK as a Tier 1 Investor on 24 May 2018and he was granted Settlement Status with Indefinite Leave to Remain on 2 March 2021. On 29 November 2023 he was granted British Citizenship.

[61]Sheikh Alesayi sets out that between the mid-1970s and around 1990, eight leasehold properties were purchased at Birley Lodge NW8 through a Guernsey based business owned by his father. He and his five siblings were assigned one each, Sheikh Alesayi’s being 42 Birley Lodge. The ‘family office’ is at number 46. He says that from 1990 onwards he established a second home and residence at 42 Birley Lodge, with a car and a staff, and he attended Regent’s Park Mosque as his home Mosque when in London. Sheikh Alesayi states that he frequently spent time in the UK, often with his wife and children predominantly for leisure purposes. His parents, siblings and extended family including cousins, nephews and nieces each owned or had access to property in the same complex, and they enjoyed spending time together in London relaxing, shopping and experiencing the entertainment and culture on offer in London.

[62]His son attended university in London, and between 2006 and 2018 Sheikh Alesayi says that he accompanied his son to all his regular outpatient clinic appointments when receiving long-term medical care at Nightingale Hospital, Marylebone. During this period he and his son (and other family members) stayed in the flats at Birley Lodge. The witness statement exhibited statements from Barclays’ Bank addressed to him at one of the Birley properties showing various utility related direct debits. He also exhibits more limited credit card statements, from short periods in 2015 and 2018.

[63]Sheikh Alesayi’s father died in 2008. Ownership of the company which owned the Birley Lodge flats was transferred to him and his siblings. The Sheikh explains that he was also the (beneficial) owner of the leasehold interest in a property known as ‘Penthouse A’ in NW3, first indirectly through a company registered in the BVI (‘Fasan’) and related trusts, and then directly, from April 2008. In two relatively short paragraphs that lay at the heart of Mr Wilson’s forensic scrutiny of the evidence, Sheikh Alesayi said: “19. My focus on my life in the UK increased in or around 2011-2012. On 22 October 2011 I obtained a multi-year Visitor Visa to the UK [MOKA1/555]. And in 2012 I decided that I wanted to make London my main home in the short to medium term and took steps to prepare for this:(a) I wanted to establish my own private housing residency so leased Penthouse A from Fasan in or around early 2012. I exhibit such copies of utility bills addressed to me at Penthouse A during this period as I could locate at. I also exhibit service charge bills addressed to Fasan, as the long leaseholder, at 48 Birley Lodge for the period between 2012 and 2014.

(b) I expended a significant sum in furnishing Penthouse A with items from the luxury brand Armani Casa, furnishing Penthouse A in line with my tastes in accordance with my intention to make Penthouse A my main residence.

(c) On 24 September 2012 I ordered a Bentley to be delivered to Penthouse A with the intention of using the vehicle as my day-to-day mode of transport when living in London.

(d) On 1 March 2012 I became a member of The Arts Club, a private members club in London, in order to have a place to socialise and build my network in London. 20. Whilst I do not have the precise figures to hand for the entire pre-2017 period, my secretary, Mr Mohamad Aslam, downloaded a report of my travel records for the period between 2011 to 2016 [MOKA1/575 - 581]. Based on that review, I believe that in those years I spent at least the following number of days in the UK: (i) in 2011, 96; (ii) in 2012, 76; (iii) in 2013, 103; (iv) in 2014, 153; (v) in 2015, 19; (vi) in 2016, 14. I say at least, as there are periods where I travelled to the UK but returned from another country (or vice versa) such that I believe the numbers above are understated.” (a) I wanted to establish my own private housing residency so leased Penthouse A from Fasan in or around early 2012. I exhibit such copies of utility bills addressed to me at Penthouse A during this period as I could locate at. I also exhibit service charge bills addressed to Fasan, as the long leaseholder, at 48 Birley Lodge for the period between 2012 and 2014. (b) I expended a significant sum in furnishing Penthouse A with items from the luxury brand Armani Casa, furnishing Penthouse A in line with my tastes in accordance with my intention to make Penthouse A my main residence. (c) On 24 September 2012 I ordered a Bentley to be delivered to Penthouse A with the intention of using the vehicle as my day-to-day mode of transport when living in London. (d) On 1 March 2012 I became a member of The Arts Club, a private members club in London, in order to have a place to socialise and build my network in London.

[64]Sheikh Alesayi then deals with matters from 2016 onwards. He says his focus shifted towards retirement, and he intended to make London his permanent home. He did this, at Penthouse A, in October 2017.

Analysis of the Evidence

[65]Mr Wilson relies upon the fact that when first interrogated about the point by the Bank’s solicitors, in May 2023, Sheikh Alesayi’s lawyers confirmed that Sheikh Alesayi ‘moved to London on 28 October 2017 and hence was domiciled in the UK from that point’. It is said that this is not some sort of technical point, but a point of substance: the evidence, Mr Wilson argues, is far more consistent with this being correct, than in error. Sheikh Alesayi deals with this at paragraph 12 of his witness statement where he explains, ‘I had previously assumed that domicile in this sense referred to my primary residence only, which I moved to the UK in October 2017. However, I now understand that it is possible to have more than one residence, and therefore consider that I in fact became resident in the UK much earlier, namely in 1990.’ For the purposes of this application, I do not disregard this explanation as somehow inherently implausible, notwithstanding the fact that it would suggest an error not just on the part of the Sheikh (which might be understandable) but his experienced lawyers, who (at least as at February 2024, the date of Mr Shear’s third witness statement) clearly understood that it is possible for a person to have more than one domicile. I instead focus on the evidence to see if, in substance, it bears out the submission that I should accept the contention that, contrary to his evidence, Sheikh Alesayi’s residence in the UK in fact coincided with his permanent move to the UK in late 2017.

[66]Next, emphasis is placed upon Sheikh Alesayi’s application for naturalisation. This was dated May 2023, and accompanied by a letter from Cranbrook Legal. Whilst this explains that Sheikh Alesayi first entered into the UK on 10 November 2011 on a visit visa, I do not take this as contradicting Sheikh Alesayi’s otherwise credible evidence of regular trips to the UK as a child, not least because the application itself says, consistently, later, ‘for the sake of completeness please note that prior to this date the Applicant had been visiting the United Kingdom since a child in order to visit his late father…’. Mr Wilson submits that it is of note that the application suggests that ‘over the course of the last 5 years, the Applicant has built significant ties and connections to the United Kingdom’. However, the reference to 5 years is likely to be no more than a reflection of the fact that the application requires preceding lawful residence of a period of 5 years. The focus within the application on the period since 2018 does not dictate a conclusion that the criteria for residence was not fulfilled earlier, not least because on any view Sheikh Alesayi was living in the UK permanently from October 2017, not May 2018. May 2018 is just the date 5 years before the application was made. Indeed, the evidence submitted in support of the application is supportive of Sheikh Alesayi’s witness evidence: one referee (a cardiologist who counts Sheikh Alesayi as one of his ‘dearest friends’) describes first meeting the Sheikh in 2003, and concludes, ‘over the years, he has consistently shown and talked about his dedication to his life here in the UK, and the life he has built for himself is evidently strong and meaningful’.

[67]A potentially stronger forensic point made by Mr Wilson is that the letter relied upon Sheikh Alesayi from the Dr Ahmad Al Dubayan at Regent’s Park Mosque confirms that Sheikh Alesayi was a regular member of the community ‘since around 2017”. In his second witness statement, Sheikh Alesayi explains that:

‘Whilst my attendance became extremely regular after October 2017, I was part of the Regent’s Park Mosque community and attended regularly prior to that date. As a result of change in personnel at the Mosque, Regent’s Park Mosque has only been able to confirm the position from 2017.’

In response to this evidence, the Bank obtained evidence that a Dr Ahmad Al Dubayan had been a director of the Mosque since 2000/2001. Dr Ahmad Al Dubayan provided a further letter to the Court which explained that for the period prior to 2017, Sheikh Alesayi’s attendance at the Mosque was not well known to him, and he would not expect (given the nature of his role and the number of worshippers) to know all those who attend regular prayers, including Friday prayers. He nevertheless indicated that he was aware from others that Sheikh Alesayi ‘would attend before 2017’.

[68]The potential significance of attendance is that those who are travelling are exempt, in the Muslim faith, from the otherwise strict requirement for adult males to attend Friday Prayer. The fact that Sheikh Alesayi considered London to be one of his two homes, he says, is demonstrated by his attendance at the Mosque before 2017. Whilst Dr Ahmad Al Dubayan’s letters provide limited support to Sheikh Alesayi’s case, I cannot accept, for the purposes of this application, that they provide a basis to reject Sheikh Alesayi’s evidence that he did attend Friday Prayers in the years prior to 2017 when in the UK, and that the reason he did so was the fact he considered that, whilst in the UK, he did not consider himself to be ‘travelling’, but at home. Whilst obviously not determinative of the question of residence, Sheikh Alesayi’s evidence in this regard is consistent with the sentiment expressed that ‘the UK always felt like my second home’. Given the broader family connection to London and the UK over many years, this is credible. I accept that Sheikh Alesayi’s attendance at Regent’s Park Mosque when in the UK in the period prior to 2017 (as he undoubtedly was for significant periods: see below) is supportive of residence during that period.

[69]There was a debate between the parties about the precise number of days Sheikh Alesayi was in the UK for in the years through to 2017, the point at which permanent residence is not disputed. Sheikh Alesayi travelled on a multi-visit visa, which was not of itself inappropriate for the duration of his visits (never longer than 6 months). The number of days provided in the extract from Sheikh Alesayi’s evidence quoted above are taken from the Saudi government’s Absher portal, which summarises Sheikh Alesayi’s travel to and from Saudi Arabia. It is agreed between the parties that the Absher portal would not show the Sheikh’s travel between other countries (e.g. a trip to the UK from Germany, or vice versa). For this reason Sheikh Alesayi says that his dates are understated; the Bank says they may, for the same reason, be overstated. It is not necessary to resolve this dispute, at least for the purposes of this application. The periods of time from 2011 to 2014 are, on any view, plainly substantial – between two and three months (or four months on Sheikh Alesayi’s numbers) each year in the UK, and second only to time spent in Saudi Arabia. These sort of durations, when spent at a private and owned residence (be it 42 Birley Lodge or Penthouse A) are, supportive of residence.

[70]It is correct that in 2015 and 2016, the annual number of days drops to 19 and 14, on the Absher records. However, the Bank’s analysis suggests Sheikh Alesayi was in fact in the UK throughout January 2015, which is also supported by the spending on his Amex card in that month. In fact, he appears to have been the UK from late September 2014, continuously though to the end of January 2015, save for a short trip to Italy. This is consistent with a permanence associated with residence (particularly considering that Sheikh Alesayi was probably not in the UK over these months for the weather). Taken in isolation, the much more limited time spent in the UK in 2016 might point away from residence, but it is not appropriate to consider this in isolation. The limited time was plainly not as a result of an intention to make some sort of a distinct break from the prior pattern of spending considerable time in the UK each year, when sandwiched between 2011-15 and 2017, the point at which he moved permanently to the UK.

[71]In any event, the number of days is only part of the picture. It is important to consider the nature and quality of the stays. Both sides emphasised the fact that Sheikh Alesayi’s evidence was that his time here was leisure and family time. Mr Wilson paints this as no more than the actions of a wealthy traveller. However, I consider that the fact that Sheikh Alesayi’s visits were not dictated by business, but for the regular and settled purposes of spending leisure time with his family in the UK, supports rather than undermines his sentiment that he treated London as his ‘second home’. When combined with the regularity and duration of time in the UK, this settled purpose is supportive of residency.

[72]It is also of particular relevance that throughout this period, from 2012 onwards, Sheikh Alesayi had at least one full time member of staff, Mr Kadry, serving him and his family in London. Mr Kadry’s services were continued for the benefit of Sheikh Alesayi after his father’s death in 2008. Sheikh Alesayi had a further full time employee in London from 2014-15, Mr Ahmed, who was his full time driver. Sheikh Alesayi also had a Bentley delivered to Penthouse A in 2012. It is not in dispute that the Bentley, presumably together with Mr Ahmed’s driving services, were used by other members of the family and at times when Sheikh Alesayi was not himself in the UK, but this does not detract from the conclusion that having a full time driver, and a personally owned car, in the UK for the considerable time he spent in the UK is indicative of the sort of permanence associated with residency. This can also be contrasted with the evidence that (save for a house in France in which he holidays) when travelling to countries other than UK, Sheikh Alesayi stays in hotels and that any other properties he owns (such as in the UAE) are investment properties, rather than fitted out as, or used as, homes.

[73]It is right that there is, in the UK bank statements from 2009 onwards, considerable activity by cheque, and so it is not possible to see where money is being spent. However, the fact of the regular use of UK bank accounts supports, rather than undermines, Sheikh Alesayi’s case. These also show the regular utility, Sky, BT and UK mobile phone (the latter for the Claimant’s wife’s use) direct debits which were made throughout the period, which is also supportive of the submission that there existed a material degree of permanence in the UK.

[74]Finally, Sheikh Alesayi relies on the fact that he was, between 2012 and 2015, a member of the Arts Club. I did not consider this a particularly compelling piece of evidence, either way.

[75]Despite Sheikh Alesayi’s lawyers’ initial indication, I am for the reasons above able on the evidence reliably to conclude that Sheikh Alesayi has a good arguable case that he was domiciled in London from around 2012 onwards, and, therefore, in November 2016. Whilst there are gaps in the evidence, and Mr Wilson makes points which may in due course form the basis of potentially fertile cross-examination, I consider that Sheikh Alesayi has the better of the argument, for the purposes of limbs (i) and (ii) of the good arguable case test. If I am wrong to reach this conclusion, I would conclude in any event that Sheikh Alesayi has a plausible, albeit contested, case that he was domiciled in the UK in 2016 for the purposes of limb (iii). The Activities Issue The Law

The Activities Issue

[76]InPammer v Reederei Karl Schluter GmbH & Co AG and Hotel Alpenhof GesmbH v Heller (Joined Cases C-585/08 and C-144/09) [2011] 2 All ER (Comm) 888, it was held that:

“75. […] the trader must have manifested its intention to establish commercial relations with consumers from one or more other member states, including that of the consumer’s domicile. 76. It must therefore be determined, in the case of a contract between a trader and a given consumer, whether, before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers domiciled in other member states, including the member state of that consumer’s domicile, in the sense that it was minded to conclude a contract with those consumers.”

[77]Clear expression of an intention on the part of a trader that it is so offering its services or goods in a particular state may satisfy the test. However:

“a finding that an activity is ‘directed to’ other member states does not depend solely on the existence of such patent evidence. In this connection, it should be noted that, by its legislative resolution on the proposal for a regulation that is referred to in para 43 of the present judgment (OJ 2001 C146 p 101), the European Parliament rejected wording stating that the trader had to have ‘purposefully directed his activity in a substantial way’ to other member states or to several countries, including the member state of the consumer’s domicile. Such wording would have resulted in a weakening of consumer protection by requiring proof of an intention on the part of the trader to develop activity of a certain scale with those other member states.”

[78]It is on the basis that there is no requirement for a “certain scale” that Mr Friedman submits, with justification, that providing the trader has clearly manifested its intention to direct its activities to even one consumer from a particular state, that will be sufficient to satisfy the test. In Les Ambassadeurs Club Ltd v Vona

[2018] EWHC 3149

, the claimant, a London based casino, was directing its activities to Italy in circumstances where a Mr Parrini, acting as the casino’s agent, specifically contacted the defendant on a number of occasions, inviting him to fly from Italy to London to gamble at the casino. It was found that “whether such activities manage to obtain one or twenty possible customers is only a matter of degree”. The court also dismissed the submission that it was insufficient where the business “cherry-picked” the individual to whom an offer was directed “based on its previous relationship and knowledge of that individual”.Not dissimilarly, in Oak Leaf Conservatories Ltd v Weir

[2013] EWHC 3197 (TCC)

, Stuart-Smith J (as he then was) found that the activity in question was ‘directed to’ Scotland, even though there had only been two previous contracts with consumers from Scotland. However, that finding was based upon the content of marketing material on their website which, Stuart-Smith J expressly concluded, showed beyond argument that Oak Leaf had a willingness and ability to work in Scotland. Indeed, the result in Oak Leaf would have been the same if there had been no customers in Scotland prior to the defendants.

[79]This is a different point, of course, to what may be inferred merely from the existence of the number of customers a trader in fact had in a particular state. In Roach v Vallarta Adventure SA DE CV

[2023] EWHC 2674

; [2024] I.L.Pr.3, Dexter Dias KC sitting as a Deputy High Court Judge (as he then was) considered whether the activities of the defendant company, based in Mexico, were directed to consumers in the UK. The company’s website advertising its excursions was available worldwide, and in English. On the basis of Pammer, the judge’s starting point was that mere accessibility of a trader’s website in the consumer’s country of domicile is insufficient. In concluding that the true focus of the defendant’s operation was Mexico and North America, the judge observed:

“28. [….] in 2019 there were 1600 British customers. Against this, Ms Holderness submits that this must be seen in context: it was approximately 1.6 per cent, a very modest percentage of the defendant’s total business activity. By 2022, this figure had fallen to 0.6 per cent. Unquestionably, if the company focuses their commercial or marketing activity towards a particular country that would be sufficient to make a finding of “directing” for that country. In this case, I have no doubt that the United States falls precisely into that category. But what are the commercial activities and marketing efforts being directed towards the United Kingdom? I detect nothing specific. The fact that a very small percentage of clients come from the United Kingdom does not to my mind amount to directing commercial to this country. 29. […] Looked at another way, UK clients were certainly not turned away. Why would they be? But they were not actively or specifically courted. Here there was no active targeting of marketing campaigns or spend by the defendant to United Kingdom. … 35. …There must be a sufficient connection. In this, I do not take directing “by any means” to entail that negligible, trivial or purely very low-level incidental connection is enough.”

[80]This case serves as an ample demonstration that the mere fact of a number of customers from a particular state may be insufficient, of itself, to demonstrate the activity has been ‘directed to’ that state. As stated by Michael Kent QC, sitting as a Deputy High Court Judge, in Bitar v Banque Libano-Francaise SAL

[2021] EWHC 2787 (QB)

at [28], the significance of previous contracts is only that they may constitute one type of evidence that can lend support to a case that a trader was directing its business to the consumer’s place of domicile. Their existence is not decisive. Indeed, in context, a small number of prior customers from a particular state may, as in Roach, actually point away from the conclusion that the relevant company was directing its activities to that state.

[81]There is no dispute that there is no causal requirement: the consumer contract in question need not have been concluded as a consequence of the activity in question, so long as it is within the scope of that activity (Emrek v Sabranovic[2014] Bus LR 104 at [32]).

[82]There is also no dispute one trader can direct activity through another entity acting as agent for the trader: this was explicitly the case in Les Ambassadeurs. In Pammer, the relevant website was not of the undertaking, but of the undertaking’s ‘intermediary’. This was not considered relevant ‘since that [intermediary] was acting for and on behalf of the trader’ (at [89]). Whether the relationship between the trader and the intermediary must strictly be seen as one of legal agency is not, in my judgment, germane (although of course this is often likely to be the relevant type of arrangement) provided that the actions of the intermediary and the nature of the relationship can properly be taken objectively to evidence the intention of the trader to direct its activities to a particular state.

[83]Finally, the test is an objective one. Whilst the trader’s actual intention to direct activity to a particular state is one of the factors in determining whether the trader directed activity to that state, such subjective intention is not necessary where the trader was in fact directing activity to that state, viewed objectively (See Bitar at [25]-[26]).

Analysis

[84]As developed orally, Mr Friedman’s central point can be summarised as follows:(1) the Bank (or APB, then a subsidiary of the Bank) had a material, if small, number of existing customers in the UK;

(2) as a private bank, it clearly expressed an intention to grow its business by using its existing customer base to offer a range of private banking services;

(3) thus, he says, even if the small number of customers is ‘trivial’ in the sense used in Roach, it is qualitatively different to Roach – and comparable, if anything, to reaching out to someone already known to the business to seek to get more business, as in Les Ambassadeurs.

[85]The submission relies in particular on the evidence of Mr Ghazaleh, the Deputy Group CEO of the Bank. As to the number of customers, Mr Ghazaleh states at paragraph 66.1 that in 2016, the Private Bank had 54 customers in the UK. The range of services provided to these customers is made clear by the Bank’s website, which refers to the fact that it “offers a full and diversified range of services to high net worth clients, with full access to major markets worldwide and global investment products, including discretionary portfolio management, investment advisory, trade execution in all asset classes, Lombard credit, and other private banking services such as estate planning, fiduciary deposits, safe custody and credit cards”. This is effectively confirmed as being the ‘two product lines’ of investment and trading having been offered by APB referred to by Mr Ghazaleh at paragraph 44 of his statement.

[86]From paragraph 42 onwards, Mr Ghazaleh sought to explain APB’s business strategy. As part of this, he set out, at paragraph 46, that APB did not possess its own branch network, with only a single branch located in Beirut. He said that in some cases APB’s employees would visit clients in person at their home address or at their offices for the purpose of holding meetings and signing documents. He said he was ‘not aware’ of employees of APB doing this for customers in the UK, although Mr Friedman makes that point that Mr Ghazaleh’s level of seniority is such that a lack of awareness in this regard may be unsurprising. Mr Shear, solicitor for Sheikh Alesayi, gives evidence on the basis of ‘a knowledgeable source’ that employees of the Bank did undertake business trips to the UK in order to deal with high-net worth clients and that at least three such trips occurred between 2012 and 2016. It is not necessary to express any view on the further suggestion that the fact of these types of trips was ‘deliberately restricted… to a very small number of people’, or why this might be. I share the view of Dexter Dias J, who in his judgment on the appeal against the disclosure order, gave the evidence based on this unidentified source ‘limited weight’ (

[2025] EWHC 440 (KB)

at [137]). However, for the purposes of this application, the suggestion that a private bank based in Lebanon but with a number of high net worth clients resident in the UK may have sent employees to London every so often to have face to face meetings with those individuals in order to offer them the products and services which met their needs seems, insofar as relevant, entirely plausible. Indeed, the existence of such trips would be entirely consistent with the evidence of Mr Ghazaleh (even if Mr Ghazaleh was not aware of the trips personally) upon which Mr Friedman particularly relies, at paragraph 48. This states:

“First, APB sought to deepen its relationships with existing clients, many of whom, like the Claimant, originally became clients when APB was known as Banque Saradar. This objective would typically be achieved through regular meetings with key clients to ensure APB always understood their individual needs and was in a position to offer them the products and services that met their requirements. Such initiatives were usually conducted on an ad hoc basis. Second, it aimed to expand the number of clients on its books, particularly in Saudi Arabia and Switzerland, which it pursued largely as part of the Group and its well-known brand recognition in conjunction with some limited marketing…Indeed one of the key sources of clients was referrals from other parts of the Group…”

[87]It is fair to point out that Mr Ghazaleh goes on to explain that UK residents who opened accounts with APB typically did so because of the existing connections with (in the main) Lebanon or elsewhere where APB had a presence (i.e. not the UK) and not because of any steps APB was taking to direct business to the UK. This is consistent with website references which, whilst referencing ‘Europe’ (which of course includes the UK), gives little support to a specific UK-directed strategy. It is unlikely that these website references to Europe would, in context, be sufficient to evidence the intention to operate specifically in the UK, even on a good arguable case basis. However, this misses Mr Friedman’s point, which is that the very existence of the customer base in the UK is itself directly relevant to whether activities were directed to the UK, because the very nature of private banking services is that existing clients can and will often be the subject of direct, personal marketing of further private banking activities. Mr Friedman gives the specific example of the Sheikh’s own separate contract with APB for the Fiduciary Deposit, a further private banking service provided in 2019, which business grew out of the existing relationship.

[88]Mr Wilson contends that this argument is flawed because(a) it relates to existing rather than new customers; and

(b) the relevant ‘activity’ in the present case is the opening of a bank account, not broadly defined, ‘private banking services’.

[89]As to the first point, there is at least a good arguable case that the offering of further and new services to existing customers is directing an activity to them for the purposes of section 15E(1)(c)(ii) of the CJJA. There is no obvious reason why communicating directly with existing customers in the UK and offering them further private banking services which they were not already using would not fall within ‘directing activity’ to the UK. Although Mr Wilson sought to emphasise that the direction needed to be effectively to the state, rather than to a person within the state, Les Ambassadeurs suggests this is not a meaningful distinction. In that case, cherry-picking an individual within a state with the intention of touting business to them satisfied the test. Moreover, the prior relationship and knowledge of the customer did not detract from this satisfaction.

[90]As to the second, there is also a good arguable case that defining ‘the activities’ as limited to the opening of a bank account is too narrow. First, as a matter of language, use of ‘activities’ rather than ‘activity’ within the CJJA gives some linguistic support for a broader construction, (providing that the contract in question falls within the scope of the activities). Second, Mr Ghazaleh himself describes the banks’ activities as ‘private banking services’ (not ‘opening bank accounts’), and this is clearly what Sheikh Alesayi was signing up to in 2016 when agreeing the suite of terms and conditions which covered a range of services. It would (at least on a good arguable test basis) be artificial to draw distinctions between the type of services within a range of related activities, in much the same way that it might have been artificial (by reference, for example, to Les Ambassadeurs) to restrict directed activity to playing blackjack, even where that had been the express basis on which Mr Parrini courted the customer, if upon attending the casino pursuant to that offer, the customer also played the slot machines, and that was the activity to which one side or the others’ consumer claim related.

[91]As such, I consider that I can on the material available reliably conclude that there is a good arguable case that, by reference to its existing UK customer base combined with its own business growth strategy to direct further private banking activities to its existing clients, APB was directing private banking services to the UK (including England) in 2016 for the purposes of limbs (i) and (ii) of the Kaefer test. If I am wrong about this, there is plausible, if contested, evidence of this, for the purposes of limb (iii).

[92]The second main plank of Sheikh Alesayi’s case on the Activities Issue relates to a London-based wealth management platform, Crossbridge Capital (“Crossbridge UK”). The core facts as I find them to be on the evidence I have seen are as follows:(1) In 2016, APB was a subsidiary of the Bank. Another subsidiary was BAS. BAS invested US$9.5m to acquire a 19% stake in Crossbridge Capital (Holding) Co. Limited (“Crossbridge Holding”) (the Maltese parent of Crossbridge’s UK operating entities) under a subscription letter dated 26 November 2014 (the “Subscription Agreement”), together with an option to acquire a further 11-31% through BAS providing a convertible loan for USD 14.5m, pursuant to a convertible loan agreement also dated 26 November 2014.

(2) the Subscription Agreement included a number of obligations which related to co-operation between Crossbridge Holding and BAS: (a) by clause 11, BAS and Crossbridge Holding were to “use all reasonable endeavours to co-operate with regard to their respective businesses on the principles set out in Schedule 1”; (b) those business principles included that Holding “shall use its reasonable endeavours… to promote [BAS] as custodian bank for new and prospective clients as well as for new business from existing clients…” (c) they also included joint participation in an Advisory Committee, meeting bi-weekly, which was (pursuant to Schedule 9) to “advise on the implementation of the initiatives aiming to ensure a successful collaboration between [Crossbridge Holdings] and [BAS], mainly around the following two items: referrals; and joint investment team”. Mr Sednaoui, the Bank’s head of private banking and a member of the board of the APB at the material times, was appointed to the Advisory Committee.

(3) In 2017, the Bank specifically restructured its investments (the investment was novated to the Bank’s private banking holding company, then called Banaudi International Holding Ltd (and since renamed BAPB Holding Ltd). At the same time the obligations in the Subscription Agreement were restated, making clear a continuing requirement for Crossbridge Holdings to promote BAS as a custodian bank for new and prospective clients.

(4) Whilst not a legally accurate description, the investment in Crossbridge Holding and the reciprocal collaborations obligations was described contemporaneously in important documents and senior personnel as a ‘partnership’. The Bank’s 2015 Annual Report stated that “The plan to establish a footprint in the United Kingdom would support the Private Banking development strategy and future expansion to Sub-Saharan Africa and Latin America”. In an interview on 26 May 2016, Marwan Barakat, chief economist at the Bank, said:

“Indeed, the recent restructuring of private banking activities is likely to improve intergroup synergies and efficiencies. The partnership with London-based Crossbridge Capital would create a centralized [sic] and specialized [sic] wealth management platform.”

[93]In relation to the latter evidence, Mr Ghazaleh’s witness statement said (at paragraph 56) that ‘the Crossbridge Capital project’ was a project of the wealth management team and not connected ‘with retail banking’. He went on:

“Crossbridge Capital is a firm which provides wealth management and family office services to high net-worth individuals the proposed partnership was intended to allow the Bank to benefit from Crossbridge Capital’s experience to provide those services to its existing customers, which as described in further detail below, were and are overwhelmingly based in Lebanon and elsewhere in the Middle East. Accordingly, there was no intention to use the partnership with Crossbridge Capital to solicit customers in the UK. In any event, this initiative did not proceed beyond the planning phase and accordingly no such partnership was established. It is true that BAPB Holding Limited, a wholly owned subsidiary of the Bank, owns less than 25% of the shares in Crossbridge Capital’s holding company, however this clearly does not mean that the Bank or APB directed their business activities to the UK.”

[94]In the context of this application, and in circumstances where Mr Ghazaleh has not been asked questions or had an opportunity to answer them, I do not make a finding that this is necessarily misleading. However, it omits the fact of the collaboration around referrals and the joint investment team, which is a surprising omission in the context of the issues in dispute. The point focussed upon by Mr Wilson, whilst acknowledging the existence of the agreement to collaborate within the Subscription Agreement, is that it is an agreement between BAS and Crossbridge Holding, and did not involve APB. BAS is a separate legal entity to APB. This is true. I consider this further below. But this is not the particular distinction drawn by Mr Ghazaleh in the passage quoted in the preceding paragraph. I consider that rights acquired when investing in Crossbridge Holdings demonstrate (at least on a good arguable case basis) an express intention on the part of BAS to direct activities to the UK, in order to benefit the Bank. If the arrangement was just about providing Crossbridge’s services to its existing predominantly Lebanese customers, the reciprocal referral obligations would be pointless. To the contrary, through its investment, it had acquired a specific arrangement with a London based wealth management company, pursuant to which the latter was obligated to use its reasonable endeavours to promote BAS as the custodian bank for new and prospective clients as well as for new business from existing clients. Put succinctly, Crossbridge, based in London, was expected to court private banking business for BAS from new and existing clients.

[95]The question, therefore, is whether BAS was, wholly or in part, intending to receive this benefit from Crossbridge as an intermediary or agent for APB.

[96]Mr Friedman argues that the evidence referred to at paragraph 92(4) above demonstrates that the Bank (as a whole: the group with included APB and BAS) had a strategy to develop its private banking pillar, with its focus on intra-group synergies and operating across jurisdictions. He also points to APB’s own website in 2016 which stated that “Bank Audi Private Bank is the wealth management arm of Audi Group. It operates through three main booking centers [sic] based in Switzerland, Lebanon and Saudi Arabia […] The Private Bank has a long-standing commitment to serving its client base since 1976, the year Banque Audi (Suisse) was established.” He therefore contends that the website indicates that APB dealt with BAS’ client-base as well as its own, and that its operations were intertwined, which he says is also supported by the Bank’s (i.e., group’s) Annual Report which referred to the fact that “its Private Banking entities now form a unified group”. This synergy is further reflected, he says, in the common branding, and the fact that Mr Sednaoui held senior roles across both APB and BAS (and, indeed, was part of the Crossbridge Advisory Group).

[97]Mr Wilson was justified in emphasising the importance of separation between legal entities, and the absence of any direct evidence of any sort of agency or other type of intermediary agreement between BAS and APB. However, I recognise that the information before the Court at this stage is limited. The factors identified by Mr Friedman on the available evidence point to an interrelationship of close mutual benefit between the different parts of the private banking and wealth management operations within the Bank’s group as it was in 2016, which makes it inherently plausible that the arrangements put in place by BAS with Crossbridge through which BAS directed its activities to the UK also impute an intention on the part of APB (and indeed, the wider group as a whole) to benefit from that arrangement directly. Whilst I cannot on the evidence before me form the view that Sheikh Alesayi has the better of this argument, for the purposes of the stage (i) and (ii) tests, I have been satisfied that, on the basis of the Crossbridge information, there is a plausible (albeit contested) evidential basis for concluding that the section 15E(1)(c) test is met.

[98]It is not necessary for me in these circumstances to consider Mr Friedman’s case on a number of other miscellaneous matters raised. The only one which I will refer to briefly is the fact that APB offered GBP-nominated credit cards to its customers (together with UK +44 phone numbers). Whilst it is said that this was just targeted at Lebanese-resident customers travelling abroad, relying on one part of the website which referenced travelling to the UK, Mr Friedman points to the fact that the website also referred to the intention to target “Bank Audi clients or other clients who hold a bank account in GBP”, indicating that they were also targeted at those who were expected to be living in the UK. There is some force in this submission. I do not need to decide whether, if this were the only issue, it would have been sufficient to satisfy the test on the facts of this case. However, I do consider that it provides some further limited support for the conclusion that, for the reasons above, there is a good arguable case that the section 15E(1)(c) test is met.

[99]In these circumstances, I consider that Sheikh Alesayi has established, on the basis of the relevant test, Consumer Jurisdiction. Whether this is established at trial, should that be required, on the basis of a different evidential test is, of course, a different matter. As such, the Bank’s Part 11 Application, and the related application with respect to alternative service, are dismissed.