Qatar Investment and Projects Development Holding Company & Anor v Phoenix Ancient Art SA & Ors [2025] EWHC 1361 (KB)

Case Nos: KB-2023-003712Case No QB-2020-003721[2025] EWHC 1361 (KB)
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of JusticeDate Monday, 14 April 2025
Strand
London
WC2A 2LL
Before
MR JUSTICE KERR
Between
QATAR INVESTMENT AND PROJECTS DEVELOPMENT HOLDING COMPANYClaimantHIS HIGHNESS SHEIKH HAMAD BIN ABDULLAH AL THANIClaimantPHOENIX ANCIENT ART SADefendantALI ABOUTAAMDefendantHICHAM ABOUTAAMDefendantROLAND ANSERMETDefendantPETRARCH LLC d/b/a ELECTRUMDefendant
MR LAURENCE EMMETT KC (instructed by Pinsent Masons LLP) appeared for ClaimantsMR PHILIP JONES (instructed by Mackrell Solicitors appeared for First, Second and Third Defendants
JUDGMENT(Approved)
Digital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

Introduction

[1]The claimants apply for a post-judgment worldwide freezing order against the first, second, third and fifth defendants. Following a judgment of Garnham J given on Friday last, 11 April 2025, the claimants have become or will shortly become entitled to the principal sum of US$5,462,705 with interest thereon to date of US$2,423,426. Costs are to be assessed on the indemnity basis if not agreed. An uplift of £75,000 will be due under CPR 36.17(4)(d) and further damages to be quantified in respect of certain New York proceedings that are estimated at about US$50,000.[2]The judgment given by Garnham J was as follows. He granted the claimants’ application for summary judgment in both the two actions that are before the court, called “the 2020 action” and “the 2023 action”. The first, second and third defendants, referred to for convenience as “the Phoenix defendants”, were debarred from defending the claims. Those debarring orders were made because of a refusal by the Phoenix defendants to provide disclosure.[3]The application before me today is made ex parte on short notice to the Phoenix defendants, represented by Mr Philip Jones, with Mr Laurence Emmett KC appearing for the claimants. The application was made on 4 April and served on 8 April, before Garnham J’s judgment was available. I should add for completeness that there is no appearance for the fourth defendant but no relief is sought against him. He was debarred from defending the proceedings by an order of Bright J on 8 October 2024, having not responded to the claims against him. There is no appearance for the fifth defendant, which trades as Electrum, but it is wholly owned by the third defendant.[4]The matter comes before me today on the basis that, as I understand it, the court can accommodate a full day return date on or shortly after 7 May 2025, at the beginning of next term.

Background

[5]The two actions before the court concern the purchase of artefacts from the defendant international antique dealers in 2013 and 2014. The causes of action include misrepresentation and deceit. The decision of Garnham J provides an account in some detail of the circumstances in which the claims arose and were brought: see his judgment at [2025] EWHC 898 (KB). Abbreviations and definitions here will be the same as in that judgment unless otherwise indicated.[6]He made the decision set out in paragraphs 99 to 101 at the end of his judgment, in respect of the 2023 action, to debar the Phoenix defendants from defending, striking out their defences and granting summary judgment against them. In respect of the 2020 action, he gave summary judgment against the first, second, third and fourth defendants as regards the claims in so far as based on fraud, dishonesty and fraudulent misrepresentation.[7]As for the relevant New York proceedings, which resulted in an anti-suit injunction, he gave summary judgment for the first claimant against the first and fifth defendants, the relief being the injunction sought and damages representing the first claimant’s reasonable costs, which I take to mean costs of the New York proceedings, assessed on an indemnity basis.[8]I mention now that I made a few observations during the hearing about full and frank disclosure. The claimants referred in their skeleton argument to a separate document being provided to identify relevant matters of full and frank disclosure. They say that the application could have been made ex parte. In the event, the Phoenix defendants have attended through Mr Jones but at very short notice and with little opportunity to prepare. As I made clear, in those circumstances I did not think the claimants could safely assume that no duty of full and frank disclosure at all arises now.[9]Mr Emmett KC for the claimants produced a document to the court this morning headed “Disclosure Points”. I will not set out the contents but in it, he fairly identified some of the points that might be taken against the claimants if the matter had been heard on a fully ex parte basis.

Open Court and Sitting in Private

[10]There was no disagreement about the way forward which was, as I proposed, to adopt a similar course to that which Garnham J did as set out in paragraph 6 of his judgment. We would sit in private to consider evidence of the defendants’ financial circumstances on the basis that their right to confidentiality and the details of their personal financial circumstances outweighed the public interest in open justice to that narrow extent. In the event, it has not been necessary today to sit other than in open court. This extempore judgment is given in open court and I will therefore avoid reference to the content of any commercially sensitive matters.

Submissions of The Phoenix Defendants

[11]In brief outline, Mr Jones for the Phoenix defendants suggested that it was unnecessary and inappropriate to make any order today. There was no particular urgency and the application was not in a fit shape. Alternatively, he submitted that any relief should be the minimum necessary to hold the ring until a return date; and he submitted that the disclosure orders sought were unrealistic, too onerous and with insufficient time contemplated for compliance with them. He pointed out that the fifth defendant, owned by the third defendant, could not be summoned under CPR Part 71 as a judgment debtor to give disclosure of his assets, being located outside the jurisdiction.[12]I do not accept Mr Jones’s broad submission that no relief at all should be granted today. The position is quite complicated but it is not unclear; and I accept that there is some urgency. The claimants have shown, in my judgment, on the current evidence available and taking account of what was said by Garnham J in his judgment, that the risk of dissipation is real and that the claimants should not have to wait for relief until next court term, starting in early May 2025. I do not think the fifth defendant being located outside the jurisdiction creates any real difficulty because the claimants do not seek to freeze any assets of the fifth defendant and any disclosure in relation to it can be made by its owner, the third defendant.

Merits of the Application

[13]In addition to the skeleton arguments, for which I am grateful, I have considered in particular(1) the ninth witness statement of the third defendant made on 20 January 2025;(2) the affidavit of Mr Michael Pulford, the claimants’ solicitor, sworn on 4 April 2025 in support of this application, commenting on the third defendant’s ninth witness statement;(3) the asset schedule which tabulates the information derived from those sources and creates in helpful tabulated form an account of the Phoenix defendants’ assets and the assets of entities said to be associated with them, including what is contended to be missing information.[14]The first requirement for a worldwide freezing order is a good arguable case. Having obtained summary judgment is, I would say, quite a solid basis for contending that there is a good arguable case on the merits. The judgment has not yet been entered but I accept that the figures set out in paragraph 2 of the claimants’ skeleton argument are likely to approximate to the amounts recoverable in damages, interest and costs. Subject to some points about costs, Mr Jones did not demur. It follows that the total figure sought to be frozen, US$10.7 million, is not obviously excessive or far-fetched.[15]The second requirement for a worldwide freezing order is that there are no or no sufficient assets within the jurisdiction to satisfy the judgment but that there are assets outside the jurisdiction. Mr Jones did not dispute that this requirement was met. He submitted that the figure for damages and interest combined was, as he accepted, in the region of US$8 million but he said that the claimed potential amount of costs of US$3.3 million was very much on the high side and should be reduced so that the total amount, if any, to be frozen should be lower than the US$10.7 million sought.[16]As to the second requirement for a worldwide freezing order - and without going into detail as time is not on the court’s side today - I broadly accept the points set out in the claimants’ skeleton argument which I summarise briefly and broadly as follows.[17]First, there is evidence from court documents in other jurisdictions that the second and third defendants both have a substantial personal fortune: of the order of £90 million in the case of the second defendant, and US$90 million in the case of the third defendant. Second, the evidence supports the proposition that the fifth defendant borrowed a sum approaching US$30 million in the last five years, either by arm’s length loans in which case commensurate assets would need to be possessed by the fifth defendant; or if not by arm’s length notes, then as assets available to the fifth defendant.[18]Next, I note and accept the point that the Phoenix defendants’ protestations of impecuniosity at the recent hearing before Garnham J were rejected as unsatisfactory by him. In particular, at paragraph 61 of his judgment, he dealt with the point that the personal wealth of the second and third defendant is likely to include their personal collections of artworks and artefacts, which they inherited from their late father. There, he said this (italics in original):
“As Mr Tapper puts it, it is surprising ‘that Mr Aboutaam [the third defendant] sees little point in valuing his father’s collection or indeed in understanding the inventory in circumstances where he practises in art dealing and finds himself in a heavily indebted position.’ I reject entirely his suggestion that the Phoenix Defendants can justify their refusal to give proper disclosure on the grounds of impecuniosity when they have been sitting for years on stock they formerly valued at US$90 million without a complete and transparent account of what they have done to realise the value of those objects.”
[19]Next, the position of the first defendant was identified to Garnham J only by reference to its latest tax return and the Phoenix defendants did not supply any accounts or financial statements. While the first defendant was said to have debts and assets exceeding £20 million, no information was provided about either the identities of debtors or creditors or the terms on which they owed or were owed money.[20]Next, an account is given of entities associated with the Phoenix defendants. That is quite complicated and addressed in detail in the affidavit of Mr Pulford. I accept on the basis of that evidence that the requirement to show assets outside the jurisdiction is met; and I share the scepticism of the claimants and Garnham J about the Phoenix defendants’ claims to be impecunious.[21]It is true that it may be difficult to put a value on some of the artefacts in the collection the second and third defendants inherited from their late father, given the history of allegations and court proceedings indicating that they sell their artworks at inflated prices founded on dishonest misrepresentations. That is not a factor on which the Phoenix defendants themselves rely and I am persuaded by Mr Pulford’s evidence of the history of proceedings in Switzerland and elsewhere and the analysis of Garnham J in his judgment that the Phoenix defendants are likely to be far from impecunious. I therefore find that the second requirement for a worldwide freezing order is met. It is likely there are sufficient assets outside the jurisdiction to satisfy the judgment.[22]The third requirement is that there must be a risk of dissipation or secretion of assets. I accept the claimants’ points made in the skeleton argument and orally. First, the nature of the wrongs found to have been committed, as exemplified by the summary judgment decision, supports a risk of dissipation. Secondly, the manner in which the Phoenix Defendants have conducted the litigation leading to the debarring orders and summary judgment, also itself supports a risk of dissipation. So does, in my judgment, the history of non-transparent transactions including criminal convictions in Switzerland.[23]I accept the submission that the account given by the third defendant in his ninth witness statement raises more questions than it answers and is a very unsatisfactory account of the Phoenix defendants’ financial affairs. And I accept also that the Phoenix defendants have shown a willingness to disregard court orders at will and to comply with them only when put under extreme pressure; for example, an unless order.[24]I also accept the submission that the business is international, conducted through an opaque non-transparent structure, well suited to concealment or secretion of assets; and that the Phoenix defendants have recently undertaken transactions involving entities associated with them which lack any obvious commercial purpose. I accept those submissions.[25]I think the strongest point is that the very foundation of Garnham J’s decision to strike out the Phoenix defendants’ defence in the 2023 action, to debar them from defending that action and to grant summary judgment as against those defendants, is their track record of flouting and ignoring court orders except when under extreme pressure. For his useful account in more detail, see paragraphs 55 and 56 of his judgment.[26]The fourth requirement for a worldwide freezing order is that it must be just and convenient to grant one. Mr Jones made various drafting points which I will come back to, but he did not persuade me that it was other than just and convenient as a general proposition to grant some relief. I think it remains just and convenient to do so now despite the relative lateness of the application.[27]I accept the submission that the concerns of the claimants about the risk of dissipation or secretion of assets have grown in recent weeks and months and I accept the relevance of the observations of Bean LJ in JSCMezhdunarodniy PromyshlenniyBank v Pugachev [2015] EWCA Civ 906 at paragraph 34 to the effect that:
“It is not generally the rule that delay in applying for a freezing injunction or an extension of a freezing injunction is a bar in itself to obtaining relief. It may mean in some cases that there is no real risk of dissipation and that if the claimant had seriously thought there was, an application would have been made earlier, but that cannot be said in the present case. I agree with the observations on this topic made by Flaux J in Madoff SecuritiesInternational Limited v Raven [2011] EWHC 3102 (Comm). If the court is satisfied on the evidence that there remains a real risk of dissipation, it should grant an order notwithstanding delay, even if only limited assets are ultimately frozen by it.”
[28]I also agree with the claimants that artefacts of the kind sold by the Phoenix defendants take time to dissipate but unlike in the case of real estate, there is no public register of ownership and it is consequently relatively easy to pass ownership of artefacts from one entity to another in a non-transparent manner. I am therefore prepared in principle to grant the relief sought and I will come in a moment to the scope of the relief I think it appropriate to grant today.

Undertaking in Damages

[29]An undertaking in damages in the usual form is proffered. A bank guarantee of up to £1 million for up to a year is offered by way of fortification if necessary. I agree with the claimants that for the purposes of today’s order only, fortification is not required. This point can be reconsidered if necessary at the return date. In my judgment, the claimants would undoubtedly be allowed to set off any liability under their undertaking in damages against the indebtedness of the Phoenix defendants, which is probably north of US$8 million or US$9 million.

Scope and Timing of Asset Disclosure Orders

[30]I am satisfied that it is appropriate to make asset disclosure orders, but I am sensitive to the point that the Phoenix defendants have had very little time to gather further evidence and that it would not be right to place them under unworkable deadlines. The scope of the asset disclosure orders sought is quite wide. It extends to entities associated with the Phoenix defendants as well as those defendants themselves. They are referred to in the evidence as Tanis Antiquities Limited, Sekhmet Ancient Art, Aris Ancient Art SA, Adonis and Innana. I am satisfied from the affidavit of Mr Pulford, without going into detail as he does in his affidavit, that it is appropriate to include these entities within the scope of the asset disclosure orders.[31]However, as to the timing of the requirement to comply with them, I propose not to set a final deadline now for all the items of disclosure sought. What I propose is to require the Phoenix defendants to disclose by the return date those items on the list of assets of which disclosure is sought which are straightforward. I would propose that that be an absolute obligation now to disclose those straightforward items by the return date.[32]As for the other more complex items of disclosure sought, which tend to appear further down the list in the annex to the draft order - for example, inventories of stock and other items requiring a more detailed listing and breakdown of individual assets - I propose that the deadline should be provisionally set at the end of May 2025 but subject to further consideration and any further order adjusting that deadline either by bringing it forward or by putting it back at the return date. I contemplate that on the return date, the judge dealing with the matter will need to look afresh at what deadline is appropriate for disclosure of the more complex and detailed forms of assets sought.[33]As to the latter category - items disclosure of which is quite onerous and complicated - I would expect the Phoenix defendants to make those disclosures as far as they can between now and the return date, albeit without any absolute obligation to do so; so that on the occasion of the return date, a check on progress towards full disclosure can be made with a view to setting or adjusting the final deadline then, if the worldwide freezing order is continued at all after the return date.[34]If the Phoenix defendants are able to show on the return date that they are co-operating with the asset disclosure process and showing willingness to be transparent about their assets and those of the entities associated with them, that may well assist them in getting the worldwide freezing order set aside or attenuated in its effect. If there is no substantial compliance or progress towards compliance, that may make it more difficult for the Phoenix defendants to get their assets unfrozen.[35]In adopting this rather unconventional approach, I have in mind that both the claimants and the Phoenix defendants have been aware for a few months now that the claimants are very interested, and increasingly so, in what assets the Phoenix defendants hold and whether they really are impecunious as they claimed to be before Garnham J.

Conclusion

[36]Subject to drafting points and not setting a final deadline for complex items of asset disclosure, I will make an order until the return date in the terms of the draft; but with amendments which I will need to go through with counsel, except to the extent that they can be agreed, in the light of this extempore judgment.[37]I propose to set the total figure of frozen assets at US$10 million. I accept that in relation to paragraph 11.1 of the draft order, the onerous obligation to inform the claimants’ solicitors where money is coming from before spending it should be removed. There are other drafting points, the most important of which concerns the issue I have just mentioned, namely, the staggering of asset disclosure obligations.[38]That concludes my extempore judgment, subject to the drafting of the order. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk