“[DAAR], a Saudi Arabian property development company, and [BA], a Bahraini registered investment bank, have common shareholders and directors, including Sheikh Yousef Al Shelash ("Sheikh Yousef"), who is chairman of them both, and [Sheikh Abdullatif]. According to the claimants' pleading, "The business of BA is dependent in part upon the custom of DAAR". Until August 2010 Mr Al Refai was the Chief Executive Officer and the Managing Director of BA. He has since his dismissal been involved in criminal and civil proceedings in Bahrain, and has apparently left Bahrain: the claimants believe that he is now living in Kuwait. He has been convicted in his absence by the Bahraini courts of offences including embezzlement and misuse of BA's funds, destruction of their documents, forgery and money laundering. “The claimants allege that Mr. Al Refai instigated a campaign after he was dismissed to discredit, damage and destroy their business "Whether out of frustration, desperation or a desire for revenge" (to quote … from the claimants' pleading), and to this end he enlisted the assistance of Kroll, an English company, who provide investigatory, business intelligence and other services, of Mr Richardson, a chartered accountant with a home in England but who is apparently ordinarily resident in Bahrain where he has a business called Business Solutions Incorporated WLL ("BSI"), and of FTI, an English company, who provide public relations services; that in the course of such a campaign, which, according to the claimants, began in November 2010, the defendants went about harming the claimants' commercial relationships with third parties and with the "business and financial world at large"; and that they engaged in "wholesale publication of damaging and untrue allegations and smears against DAAR or BA or [Sheikh Yousef]", and to this end deployed a large amount of information and material confidential to BA and DAAR to which Mr Al Refai had had access when employed and which he took without authority. (They estimate that Mr. Al Refai removed 150,000 to 200,000 documents in breach of his contract of employment.) Specifically, the defendants are said to have conducted the campaign and disclosed such confidential information through a website (the "Website") that was launched in February 2012 and closed only after these proceedings were brought and the court had made the ex parte orders that are now challenged. (The evidence indicates that the Website was closed on about4 August 2012 .) “The claimants have asserted against the defendants six causes of action: i) Breach of confidence; ii) Conspiracy to injure using unlawful means ("unlawful means conspiracy"); iii) Conspiracy the predominant purpose of which was to injure ("conspiracy to injure"); iv) The tort of unlawful interference with business or commercial interests, or, as it is sometimes called, of causing loss by unlawful means; v) Defamation; and vi) Malicious falsehood. The claimants have not yet quantified their claim, but they estimate DAAR's loss to be at least$500 million and BA's loss to be at least$130 million .”
“I cannot tell whether DAAR never had a third drive or whether Dr Almajthoob is not telling the truth in denying any knowledge of it, but I cannot accept that all the claimants' evidence about this is honest: at least one of their witnesses has been untruthful”
“(1) a declaration that the First and Second Respondents (“DAAR” and “BA”) were and remain in contempt of court by reason of their breach of … [the preservation undertaking and the drives delivery order]; (2) an order that Sheikh Abdullatif Al Shalash, the Managing Director of DAAR and a Director of BA, be committed to prison pursuant toCPR 81.4 for a period to be determined by the Court for DAAR and BA’s above-mentioned contempt of court; (3) an order that DAAR and BA be fined in an amount to be determined by the Court for their afore-mentioned contempt of court; and (4) an order (insofar as necessary) to dispense with personal service on the Respondents of the Order of Mr Justice Popplewell dated18 June 2012 and the Order of Mr Justice Popplewell27 June 2012 and the need for a penal notice on them.”
“The application notice must – (a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and (b) …”
“(1) Contempt Charge 1 (against DAAR and BA): 12.1 In contempt of the Preservation Undertaking and/or Drives Delivery Order, Sheikh Abdullatif deleted two electronic files from HDDI on2 July 2012 , immediately before it was provided … to Dechert, purportedly in compliance with the Claimants’ obligations under the Drives Delivery Order. 12.2 In deleting those two electronic files, Sheikh Abdullatif was acting in his capacity as a director of DAAR and BA. DAAR and BA are vicariously responsible for his acts and/or his acts are to be attributed to them. ... (2) Contempt Charge 2 (against DAAR): 12.4 In contempt of the Preservation Undertaking and/or Drives Delivery Order, DAAR: (1) failed to preserve and keep safe the original hard drives; and/or (2) failed to keep the original hard drives free from harm or interference; and/or (3) interfered with the original hard drives and/or harmed them and/or permitted its officers and/or employees to do so. … Further, by no later than about24 July 2012 , DAAR destroyed all electronic copies of any Hacked Material in its possession (apart from the … hard drives provided to Dechert …), purportedly in compliance with [the drives delivery order], despite knowing (by Sheikh Abdullatif) that it had mishandled the original hard drives as set out above. As a result, it appears that DAAR has destroyed (by electronic means) at least one original hard drive (HDD1 being the only confirmed original hard drive still in existence). DAAR was accordingly in contempt of: (1) the Preservation Undertaking, by destroying an original hard drive; and/or (2) the Drives Delivery Order, by destroying an original hard drive and/or failing to deliver an original hard drive to Dechert, whether as soon as reasonably practicable or at all. … (3) Contempt Charge 3 (against DAAR); 12.9 Although its existence was not revealed by DAAR until service of Dr Al Harkan’s First and Third Affidavits on28 September 2012 and15 October 2012 respectively, the Third Drive was an original hard drive within the meaning of the Preservation Undertaking and Drives Delivery Order. 12.10 In contempt of the Preservation Undertaking and/or Drives Delivery Order, DAAR: (1) failed to preserve and keep safe the Third Drive; and/or (2) failed to keep the Third Drive free from harm or interference; and/or (2) interfered with the Third Drive and/or harmed it and/or permitted its officers and/or employees to do so; …”
“Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.”
“The court may – (a) dispense with service … if it considers it just to do so; or (b) make an order in respect of service by an alternative method or at an alternative place.” (a) dispense with service … if it considers it just to do so; or (b) make an order in respect of service by an alternative method or at an alternative place.”
“There is a clear distinction between a motion to commit a man for breach of an injunction on the ground that he was bound by the injunction, and a motion to commit a man on the ground that he has aided and abetted a defendant in a breach of an injunction. In the first case the order is made to enable the plaintiff to get his rights; in the second, because it is not for the public benefit that the course of justice should be obstructed.”
“(1) If a person – (a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or (b) disobeys and judgment or order not to do an act, Then … the judgment or order may be enforced by an order for committal. (2) … (3) If the person referred to in paragraph (1) is a company or other corporation, the committal order may be made against any director or other officer of that company or corporation ...” (a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or (b) disobeys and judgment or order not to do an act, Then … the judgment or order may be enforced by an order for committal. (2) … (3) If the person referred to in paragraph (1) is a company or other corporation, the committal order may be made against any director or other officer of that company or corporation ...”
“(1) A judgment creditor may apply for an order requiring – (a) a judgment debtor; or (b) if a judgment debtor is a company or other corporation, an officer of that body, to attend court to provide information about – (i) the judgment debtor’s means; or (ii) any other matter about which information is needed to enforce a judgment or order.”
“That would have required the House to consider, inter alia: the construction and legislative intendment of RSC Order 45, Rule 5 (with its express references to officers of bodies corporate); the decision of the Court of Appeal in Mansour v Mansour; the terms of the Babanaft proviso, including the standard officers’ wording; and whether service is permitted under the enforcement gateway inPractice Direction 6B , paragraph 3.1(10), not least because RSC Order 45 Rule 5(1) expressly provides that a judgment or order may be enforced by committal proceedings against a director or other officer of the defendant.” (RSC Ord 45 r. 5 can be regarded for present purposes as the predecessor ofCPR 81.4 .) Gloster J declined (at para 89) to exclude references to Mr Joujou from the order because she considered that the judgment creditor had a good arguable case for their inclusion. Some of her reasons (including that it was premature to consider whether the order might be served outside the jurisdiction, that Mr Joujou might come to the jurisdiction and that through him CCOG might act contemptuously within the jurisdiction) are irrelevant for present purposes, but she also said that in her view: “… there are good arguments for saying that the reasoning in Masri (no. 4) does not apply to receivership orders or injunctions of this kind, where the director or officer is named in the order, not in any third-party capacity, but because he is the directing mind or controlling organ of the corporate defendant or judgment debtor, and the person through whom any breach of the order will be committed by the corporate defendant /judgment debtor. It is not that such a person is the alter ego of the defendant. Rather, he is the person who, under the rule of attribution applicable to the injunction and any contempt proceedings under RSC Order 45, rule 5, for breach of the order, is the person whose acts or omissions are, for this purpose, to count as the acts or omissions of the company.”
“It would be wrong for an English court, by making an order in respect of overseas assets against a defendant amenable to its jurisdiction, to impose or attempt to impose obligations on persons not before the court in respect of acts to be done by them abroad regarding property outside the jurisdiction. That self-evidently would be for an English court to claim an altogether exorbitant, extra-territorial jurisdiction.”
“Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor. The court itself has a very substantial interest in seeing that its orders are upheld.”
“The following courts shall have exclusive jurisdiction, regardless of domicile: 1. in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. … 2. in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law; 3. in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept; 4. in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of a Community instrument or an international convention deemed to have taken place …. 5. in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced.”
“If the claim before the court is captured by this Article, the courts of the Member State so identified have exclusive jurisdiction over it. The domicile of the parties is wholly irrelevant: even if none is domiciled in a Member State, Article 22 is not prevented from being applied.” 42. SimilarlyDicey, Morris & Collins, The Conflict of Laws (15th ed, 2012) states at para 11.248: “the provisions relating to exclusive jurisdiction ... are not confined to cases where the defendant is domiciled in a Member State or Convention State (or in a particular part of the United Kingdom)”
“These rules, which take as their criterion the subject-matter of the action, are applicable regardless of the domicile or nationality of the parties. In view of the reasons for laying down rules of exclusive jurisdiction it was necessary to provide for their general application even in respect of defendants domiciled outside the Community. Thus, for example, a Belgian court will not, on the basis of Article 53 of the Law of 1876 or of Article 637 of the draft Judicial Code, which in actions against foreigners recognize the jurisdiction of the courts of the plaintiff, have jurisdiction in proceedings between a Belgian and a person domiciled, for example in Argentina, if the proceedings concern immovable property situated in Germany. Only the German courts will have jurisdiction.”
“In the absence of authority which compels a different conclusion, I would hold that it is unnecessary – and wrong – to construe the words “regardless of domicile” in art.22 as having any application to a case where the person to be sued is not domiciled in a Member State.”
“Does the Brussels Convention … apply not only to “intra-Community” disputes but also to disputes which are “integrated into the Community”? The ECJ decided (at para 61) that the relevant parts of the Brussels Convention were “in principle applicable where the defendant has its domicile or seal in a contracting State, even if the plaintiff is domiciled in a non-member country”
“Moreover, the rules of the Brussels Convention on exclusive jurisdiction or express prorogation of jurisdiction are also likely to be applicable to legal relationships involving only one contracting state and one or more non-contracting states. That is so, underarticle 16 of the Convention , in the case of proceedings which have as their object rights in rem in immovable property or tenancies of immovable property between persons domiciled in a non-contracting state and relating to an asset in a contracting state, or, under article 17, where an agreement conferring jurisdiction binding at least one party domiciled in a non-contracting state opts for a court in a contracting state.”
“It must be observed, as a preliminary point, that, although the Czech Republic was not a party to the Brussels Convention at the date on which the Province of Upper Austria brought the action before the Austrian courts, and the defendant in the main proceedings was not therefore domiciled in a Contracting State at that date, such a circumstance does not prevent application of Article 16 of the Brussels Convention, as is expressly stated in the first subparagraph of Article 4.”
“I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this material it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion. That appears to me to be the position at which we have arrived today.”
“For my part I think that what section 2(4) means is a matter of great interest on which a great deal of time could be spent, but I do not believe it has the effect of abrogating the doctrine of stare decisis in this court, even when European law is involved.”
“I am content to assume that there may be circumstances in which the obligation imposed on courts bys.3(1) of the European Communities Act 1972 would require this Court to refuse to follow its own earlier decision as to the meaning and effect of a Community instrument – including, in the present context, the effect of a judgment of the Court of Justice. Those circumstances would, I think, include a case in which the judgment of the Court of Justice under consideration by this Court in the earlier case had been the subject of further consideration – and consequent interpretation, explanation or qualification – by the Court of Justice in a later judgment. But, as it seems to me, one constitution in this Court should not substitute its own view as to the effect of a judgment of the Court of Justice for the view which has been reached by an another constitution in this Court in an earlier case on consideration of the same judgment in circumstances in which there has been no opportunity for the Court of Justice to review that judgment. In those circumstances, if persuaded that there are strong grounds for thinking that the earlier decision is wrong (as a matter of Community law) this Court may think it right to refer the point to the Court of Justice for a preliminary ruling. Or it may follow the earlier decision and give permission to appeal. But it should not refuse to follow the earlier decision merely because, on the same material and the same arguments, it is satisfied that a different conclusion should have been reached”
“For the purposes of this Regulation, “judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.”
“A claim is made against a person (“the defendant”) on whom the claim form has been served or will be served (otherwise than by reliance on this paragraph) and - (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
“Where the committal application is made against a person who is not an existing party to the proceedings, it is made against that person by an application notice under Part 23.”
“‘claim’ includes petition and any application made before action or to commence proceedings and “claim form”, “claimant” and “defendant” are to be construed accordingly; …”
“… An injunction granted in an action between two private individuals restraining one from doing some act which is to the prejudice of the interests of the other can be enforced by committal proceedings brought by the party for whose benefit the injunction was granted. Committal proceedings of that character can be brought without permission. But underCPR rule 32.14 a private individual can only bring committal proceedings with permission of the court. The reason for that is the nature of the proceedings. These are not proceedings where the alleged contempt consists of the breach of an order obtained by an individual in protection or furtherance of his own private rights. It is a case of an allegation of public wrong, not private wrong. Interference with the course of justice is plainly a public wrong and it is right therefore that there should be a public control over the launching of proceedings for this species of contempt.”
“25. Mr Hinton … could not be required to come to this country to answer a charge of contempt; indeed, unless he chooses to instruct solicitors to accept service on his behalf, it will not be possible to serve the proceedings on him unless he comes to this country and becomes amenable to personal service. The court has the power to dispense with service of the application for committal, if it thinks it just to do so (see RSC Ord 52, r 4(3)), but it will not be able to impose any practical sanction on him while he remains outside the jurisdiction. …. It is right to say that these factors do not appear to have influenced the judge’s decision, but they inevitably raise the question whether anything is now to be gained by giving [the claimant] permission to bring proceedings against him. 26. I can see that there may be some cases in which considerations of that kind might tip the balance against granting permission, but in general I do not think that they should weigh significantly against doing so. The international business community conducts a large amount of litigation in this country and it is common for statements to be provided by witnesses from abroad for use in procedural hearings. This case is a good example. The integrity of the system as a whole would be undermined if it were thought that foreign witnesses were not subject to the same discipline as witnesses from this country.”
“Leaving aside situations where the non-party is the alter ego of a party to existing legislation, any suggestion that any non-party can be served without leave underCPR 6.30 (2) with any ancillary summons issued by either party in any proceedings properly brought and served within the jurisdiction clearly cannot be right”