American Express Services Europe Ltd v Al-Shabrakah [2015] EWHC 3004 (QB)

Case No TLQ/15/0035[2015] EWHC 3004 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/10/2015
Before
Mrs Justice Whipple
Between
American Express Services Europe LtdClaimantTalib Jafar K Al-ShabrakahDefendant
Mr Tabari (instructed by Wragge, Lawrence, Graham & Co LLP) for ClaimantMr David Rosen (representing Darlingtons Solicitors) for DefendantHearing Hearing dates: 20-21 October 2015
JudgmentEx Tempore JudgmentMrs Justice Whipple :INTRODUCTION
[1]I have before me a claim brought by American Express Services Europe Ltd (the Claimant) against Talib Jafar K Al-Shabrakah (the Defendant).[2]The Claimant contends that the Defendant owes it substantial amounts in unpaid American Express bills together with interest.[3]The Defendant disputes the debt on a number of bases which I will shortly come to. But first I must address a number of preliminary issues. PRELIMINARY ISSUES Application to vacate trial

PRELIMINARY ISSUES

[4]By application notice dated 15 October 2015, the Defendant applied to vacate the trial date. That application was made just one working day before the trial window which commenced on 19 October 2015. That application was heard by Blake J on Friday 16 October 2015, and not surprisingly, he adjourned the application to the trial judge. The application was renewed before me at the outset of the trial, and I refused the application and said I would give reasons later. These are my reasons.[5]The Defendant’s application notice was supported by the witness statement of David Rosen, solicitor for the Defendant, dated 15 October 2015, and his exhibited materials.[6]The Claimant resisted the application and has filed a witness statement dated 16 October 2015, together with exhibited materials.[7]The power to vacate is within CPR 3.1, and must be exercised consistently with the overriding objective. If I refused this application to vacate, the trial would go ahead without the Defendant being present in person (although he was represented by Mr Rosen). That would engage CPR 39.3, which would enable me to continue the trial in the absence of a party; give me power to strike out his defence or counterclaim; and enable the Defendant to make an application to set aside any judgment I may give against him. The provisions of Practice Direction 39A, para 2 are relevant also.[8]The main basis for seeking to vacate was that the Defendant was said to be unfit to attend trial or give directions to his representative. In support of this, Mr Rosen’s witness statement exhibited a medical report dated 2 October 2015 from Dr Hamed Abdel-Wahab, Professor of Cardiology at the “Heart Care Clinic” (no further details were given, and I do not know what this clinic is or where it is). That doctor indicated that the Claimant had heart problems and had been recommended complete bed rest for three months “from today” (ie from 2 October 2015, the date of the report). There was an inconsistency in this report, because the advice to rest flowed from the date of the report, although the condition for which rest was recommended was said to have been identified some months ago.[9]On the first day of trial, 20 October 2015, Mr Rosen provided me with a fuller medical report from a different doctor, Doctor Ahmed El-Neklawi, a consultant physician, dated 18 October 2015. There is no address for Doctor El-Neklawi and it is unclear where he works. Dr El-Neklawi says that the Defendant was diagnosed with ischaemic cardiomyopathy back in 2014, alongside a number of other heart problems. The Defendant had been advised to travel to the US for possible correcting procedures but had not done so. On medical examination (it is not stated when that examination took place) certain signs of congestive heart failure were identified. The recommendation was for complete bed rest, and that corrective procedures (it is not stated what those procedures might be) abroad should be sought as soon as possible; yet it was said that the patient was unfit to travel (I question therefore how he was to get abroad for the proposed procedures). That doctor said that the Defendant was too weak to be able to give instructions or make decisions, that he should be medically evaluated after 3 months, and concluded that the Defendant was unfit to attend Court.[10]My main reason for refusing the application to vacate is that it is made far too late, without good reason for the lateness. It is quite clear that the Defendant’s health problems, such as they may be – and I make no finding about them - have been ongoing for some considerable time. The latest medical report suggests that they were diagnosed in 2014. Notice of the trial date was given on 5 February 2015, for a 5 day trial to commence during a trial window which ran from 19 October 2015. There was no suggestion that the Defendant was too unwell to attend trial until the back end of last week. If the Defendant had health problems which might have interfered with his ability to attend trial, the Court (and the Claimant) should have been made aware of them much earlier.[11]To grant this application would mean that Court time would be wasted. It would mean that the Claimant’s time would be wasted - the Claimant is here, represented by Counsel and solicitors. The Claimant’s witness is here, and his time too would be wasted. Costs would be thrown away. It would mean that there would be a further delay in the matter being heard, bearing in mind that the claim relates to transactions which took place in 2012, already almost 3 years ago.[12]These reasons are sufficient to dispose of the Defendant’s application. But there are other points to make, which lend support to my conclusion that the application must be refused.[13]First, the Defendant suggests that negotiations have been ongoing between the parties and that is why the application was not made until so late in the day. The fact that there may have been negotiations is plainly an inadequate excuse for the late application.[14]Secondly, the effect of refusing this application will be that the trial proceeds in the absence of the Defendant. But the Defendant has failed to take any part in the preparation for this trial over many months now. Most notably, the Defendant has yet to serve a witness statement. There were a number of directions for service of witness statements. The last order required service of the Defendant’s witness statement by 8 May 2015: that was 5 months ago; yet no witness statement has been lodged, and no application has been made to extend time for service of such a statement. Without a witness statement served in compliance with Court rules, the ordinary rule would be that the Defendant would not have been in a position to offer this Court any oral evidence anyway, at least not without permission of the trial judge.[15]I infer from the Defendant’s failure to file a witness statement, for which no proper explanation has been given, that he did not intend to take an active personal part in this trial anyway. His conduct in relation to this litigation has been unimpressive for many months now.[16]Mr Rosen says that the Defendant’s absence will put Mr Rosen in difficulty in obtaining instructions. But Mr Rosen remains on the record. It is not for me to enquire as to the source and adequacy of Mr Rosen’s instructions, but he is plainly satisfied that he is able to be here and to present the Defendant’s case; and that he has instructions to do so. I accept that Mr Rosen may have been in difficulty in taking instructions on detailed points arising during the course of the trial, but the issues in this trial are familiar from the pleadings filed years ago, and Mr Rosen has plainly had the opportunity to take instructions on them in the past. Any difficulty he may now face is an insufficient reason to vacate the trial.[17]Finally, and in any event, there is no clarity at all about what length of time might be needed before this trial could resume. If the medical evidence is to be believed (and I express no view on that either way), then the Defendant is not going to get better in the near future, or be able to attend trial if it is re-fixed. It is not clear what purpose an adjournment would serve, other than to delay this trial further and create uncertainty for both parties.[18]For those reasons, I dismiss the application to vacate the trial.

Defendant’s Application re hearsay evidence

[19]The second preliminary matter relates to two notices dated 6 October 2015 in which the Claimant gave notice that it intended to rely on the witness statements of Mr Al Hamoud (who is elsewhere referred to as Abdul Sammad) and Mr Al-Tayyar, as hearsay. Both individuals have provided witness statements to the Court. Both of them are resident (and physically present) in Saudi Arabia. I have no power to compel them to attend this trial, in person or by video-link. I will refer to them as the Saudi witnesses.[20]The Defendant opposed the application to rely on their evidence in written form, and in the alternative sought an order that he should be entitled to cross examine those witnesses pursuant to CPR 33.4.[21]The rules permit the Claimant to serve the Notices as it has done. Section 2 of the Civil Evidence Act 1995 applies, and the notices comply with the requirements of CPR 33.2, giving the reason for not calling the witnesses that they were not willing to attend trial despite every reasonable effort having been made to get them here. There is no basis for the Defendant to oppose the CEA notices. The Claimant is entitled to serve them, as Mr Rosen frankly accepted. The issue is one of the weight to be attached to these statements given that the Defendant has had no opportunity to challenge the statements by way of cross examination.[22]In the alternative, Mr Rosen asked for permission to cross examine the Saudi witnesses, relying on CPR 33.4. In my judgment, that application was misconceived. CPR 33.4 enables another party to call a particular witness to be cross examined if a Civil Evidence Act notice has been given that the particular witness is not to be called. But in circumstances where the Claimant, as here, wanted to but could not get the witnesses to Court, because they were unwilling to attend, there is no point making an order under CPR 33.4, because the witness will not be coming to Court, regardless of which party wishes them to be there.[23]I therefore refused the Defendant’s second application relating to the hearsay evidence.[24]I record here that there remained some possibility that the two Saudi witnesses might have attended the trial by video link from Riyadh, notwithstanding the various indications of unwillingness, and the Claimant continued to try to make that happen. The Claimant’s representatives communicated with the Saudi witnesses and set a time for them to appear by video link from a location in Saudi Arabia. In the event, neither witness attended that location. That meant that the Civil Evidence Act notices became operative and the two statements were admitted as hearsay. I will come back to them later.

Defendant’s application to rely on affidavit evidence

[25]As mentioned, the Defendant has not submitted a witness statement. Mr Rosen sought to rely on an affidavit filed by the Defendant in response to an earlier application by the Claimant for a freezing order in connection with this claim. That affidavit was dated 28 June 2013, sworn and signed by the Defendant.[26]The Claimant resisted only on the basis that the affidavit should not be treated as a substitute for a witness statement, which it was plainly not.[27]That was in my judgment the correct approach. I gave Mr Rosen permission to refer to the affidavit, both in cross examination of Mr Shingles, the Claimant’s lead witness, and in submissions on behalf of the Defendant. That affidavit is part of the evidence in this case. How much weight it should carry is a matter for me, as I made clear to Mr Rosen.

THE CLAIM

[28]I turn now to the substantive issues in the case.[29]The Defendant had two Amex accounts at the material time, the Gold Account and the Centurion Account. He had three cards on the Centurion Account, two of which are relevant to this claim (the third was held by his wife and has no relevance to this case).[30]Standard terms and conditions applied to the two accounts and governed the Defendant’s use of the Amex Cards. These terms and conditions were summarised, accurately, at paragraph 5 of the Particulars of Claim in the following terms, noting that AESEL is the acronym for the Claimant:
“a. At clause 2.1 that the customer consented to charges being applied to his account inter alia where the customer signed a paper slip issued by a merchant or concluded an agreement with a merchant and consented to the merchant charging his account or the customer verbally consented or confirmed his agreement to all or part of a charge after a charge had been submitted. b. At clause 2.2 that the customer agreed that he could not cancel charges once he consented to charges being applied to his account. c. At clause 2.3 that to prevent misuse of his account, the customer would sign the card in ink as soon as he received it and keep the card secure at all times. d. At clause 5.2 that the customer should check his statements for accuracy promptly upon receipt and contact AESEL as soon as possible if he needed more information or had a question about or a concern about any charge on the statement. This was expected to be done within one month of receipt of the statement and if the customer did not question a charge that he believed to be unauthorised or inaccurate within this period, or up to 13 months in exceptional circumstances, he would be liable for the unauthorised charge. e. At clause 5.2, that if AESEL requested, the customer would promptly provide AESEL with written confirmation of his question or concern about a charge and any information that AESEL required in relation to the question or concern. f. At clause 6.1, a late payment fee would be payable in the event that the customer delayed or omitted the payment of any charges due in respect of his account. The late payment fee would be payable in the event that the customer still owed payment after 30 days from the statement date (at 3% or USD25 whichever is higher); then 60 days from the statement date if the customer still owed payment (at 1.5% or USD15 whichever is higher) and each month thereafter (at 1.5% or USD 15 whichever is higher) until the customer paid AESEL in full all amounts outstanding on the account. g. At clause 6.2, if AESEL referred the account to a collection agency (including a firm of solicitors), AESEL was entitled to charge the customer for any actual and necessary costs which AESEL or the agency might reasonably incur in recovering any outstanding amount owed to AESEL. Late payment fees would continue to accrue until the amount owed was paid by the customer including after judgment if the case was taken to court. h. At clause 8 that the customer was required to pay AESEL all amounts outstanding on his account when due including charges on all cards issued to the customer even if there was no signature or card presented. i. At clause 20.1, the customer must tell AESEL immediately by telephone if he suspects his account is being misused or a transaction is unauthorised. j. At clause 20.3, that the customer’s maximum liability for any unauthorised charges was USD50 unless he did not comply with this agreement intentionally or because he was grossly negligent or contributed to, was involved in or benefitted from the misuse, in which case he would be liable for the full amount of the unauthorised charge. k. At clause 20.4, provided the customer notified AESEL in accordance with clause 20.1 and the customer did not contribute to and was not in any way involved in or did not benefit from misuse of the card, then the customer would not be liable to AESEL for any unauthorised charges once he had notified AESEL. l. At clause 20.5, the customer agreed to cooperate with AESEL including giving AESEL a declaration, affidavit, or copy of an official police report, if AESEL asked. m. At clause 20.7 if, upon contacting AESEL, the customer provides AESEL with grounds for disputing a transaction, AESEL would initiate an enquiry and place a temporary credit on the account in the amount of the transaction. Once investigations are complete, AESEL will adjust the account accordingly.”
[31]I shall refer to these terms and conditions collectively as the “Contract”.

The Gold Account

[32]US$56,790.59 is outstanding on the Defendant’s Gold Account and is claimed by this action. The Defendant disputes liability for this amount. His case is set out in the Defence, which asserts that “the matters claimed on the Gold Account, were part of a fraud upon the Defendant and many others, in a claim known as the ‘UFX Bank Scandal’.” No details have been put before me as to what the UFX Bank Scandal was, and why (if it exists) it has any relevance at all to the debt outstanding on the Defendant’s Gold account. Mr Rosen was not able to take the matter any further in submissions. He simply relied on the Defence (which the Defendant had attested by a statement of truth).[33]The defence went on to say in relation to the ‘UFX Bank Scandal’ that “The Claimant was notified and accepted the position some months ago”. That is incorrect: Mr Shingles, a witness called by the Claimant (whose evidence I shall consider in more detail below) gave clear evidence, which I accept, that he was not aware of the ‘UFX Bank Scandal’ and that at no point was the Claimant notified of this dispute, until the Defence was received; the Claimant had not agreed that the charges were not due from the Defendant; it was not correct to say that the position “was agreed” as the Defendant asserted. Mr Shingles was not cross examined on this point. I accept his evidence on this point.[34]I reject what the Defendant asserted in his Defence. It is perfectly clear that the Claimant had not accepted that the Defendant was not liable for the debts on the Gold Account.[35]The Claimant is entitled to judgment in the amount claimed on the Gold Account ie US$56,790.59, together with interest as claimed at the contractual rate of 1.5% per month on unpaid balances together with late payment charges, which together come to US$28,111.38.[36]The defence in relation to the Gold Account does the Defendant’s credibility no good at all.I shall come back to that issue later.

The Centurion Account

[37]US$617,961.57 is outstanding on the Centurion Account. That amount reflects 19 disputed transactions which took place between 1 October 2012 and 21 December 2012.[38]I heard evidence from Mr Shingles, a former police officer who now works for Amex (or its connected companies) investigating fraud. He explained that each of the 19 disputed transactions was completed by use of an Amex ROC (record of charge), being a tripartite docket, inserted into a “zip-zap machine” (the old fashioned swiping machine used for paying by card), with the card beneath. The card would have been swiped. The purchase details and price would be inserted by hand on the ROC. Typically, the cardholder would then be asked to sign.[39]The retailer in each of the 19 disputed transactions was Mr Al-Tayyar, then an accredited Amex merchant retailing in Riyadh, Saudi Arabia (he has since ceased to trade and his merchant agreement with Amex has been terminated). In each of the 19 disputed transactions, Mr Al-Tayyar sought authorisation which was given over the phone by Amex before the transaction went through.[40]I have been taken to the copies of the ROCs for each of those transactions. They are as follows: No. Card used Date Amount (USD) 1 Card 2 01/10/12 15,110.69 2 Card 2 14/10/12 30,221.39 3 Card 2 04/11/12 34,891.97 4 Card 2 10/11/12 6,106.09 5 Card 2 12/11/12 12,212.19 6 Card 2 12/11/12 2,747.40 7 Card 2 20/11/12 4,579.09 8 Card 2 28/11/12 108,371.16 9 Card 2 02/12/12 486.29 10 Card 2 02/12/12 4,882.12 11 Card 2 12/12/12 265,948.25 12 Card 2 18/12/12 93,411.57 13 Card 2 18/12/12 13,736.99 14 Card 2 19/12/12 30,221.39 15 Card 2 19/12/12 30,770.86 16 Card 2 20/12/12 10,989.59 17 Card 1 20/12/12 13,736.99 18 Card 1 20/12/12 30,221.39 19 Card 2 21/12/12 13,736.99 20 Card 1 21/12/12 10,989.59 (Transaction 9 has since been dropped from this claim, it is conceded to be a mistake by the Claimant.)[41]I accept that the paperwork for each of the disputed 19 transactions establishes the Claimant’s case, at least prima facie. The ROCs correspond in amount and date with the outstanding charges on the Centurion account. Each ROC is signed by a signature which corresponds – at least to the layman’s eye – with samples of the Defendant’s signature held on file by Amex. (It is important to note that the Defendant has two signatures, possibly reflecting his use of Western and Arabic script).[42]More broadly, I accept Mr Shingles’ evidence about his investigation, conversations that he had, and places that he visited in the course of it. I respect his conclusions (that the transactions were genuine), because he is an experienced investigator, but I recognise that the conclusion as to the genuineness or otherwise of those transactions is in the end for me, not him.

Admitted transactions

[43]The Defendant admitted three of the 19 transactions, namely 17, 18 and 20 (see paragraph 2 of the Defence). The admission was originally made in a telephone call on 5 February 2013 between the Defendant and an employee of the Claimant, a transcript of which I have seen.[44]The Defendant has not paid the amount outstanding in relation to these transactions, although he says that a US$75,000 guarantee of his liabilities, which was called on by Amex to meet the sums outstanding on these two accounts, covers his indebtedness.[45]These three transactions took place using a different card from the other 16. But that apart, these three are markedly similar to the other 16. Most notably, the ROCs for these three transactions, which are admitted, show Al Tayyar as the merchant. The inference I draw is that the Defendant did, knowingly, purchase goods from Mr Al-Tayyar. That is why he accepts his liability for these three charges. Yet the defence says in terms at paragraph 2:
“The Defendant denies doing any business with Al Tayyar jewellery shop in Riyadh, Saudi Arabia”
. That statement is not correct. On his own case he engaged in at least three transactions with that merchant.[46]Moreover, the three accepted transactions are at the end of the sequence, taking place on 20 and 21 December 2012. It is difficult to fit the Defendant’s acceptance of those three with his denial of the earlier transactions (which he says were fraudulent). I will return to the Defendant’s credibility later.

Disputed transactions - contractual claim

[47]The Claimant claims that money is due under the contract between the Claimant and the Defendant (ie the standard terms and conditions) in relation to the 16 remaining transactions. The Defendant denies that he is liable. Different provisions are in point for different transactions and I shall group those 16 in different ways to reflect the impact of the various clauses of the Contract. Transactions 8 and 10[48]The Claimant wrote to the Defendant by email to request verification of these two transactions (now listed as 8 and 10). The Defendant replied by email dated 5 December 2012 saying “I confirm the transactions. Thanks indeed for your concern”. These two transactions, like all the others in relation to the Centurion Account, were with Mr Al-Tayyar.[49]Pursuant to clauses 2.1.5 and 2.2 of the Contract, the Defendant is plainly fixed with his agreement to these charges.[50]The Defendant asserts that the acceptance was “by mistake”. I reject that suggestion. The aggregate amount of these transactions was over US$113,000. The Claimant queried the transactions with the Defendant because the sums involved were so substantial. It is not credible to suggest that he confirmed these transactions, in writing, by mistake.[51]The Defendant further seeks to rely on the maxim “ex turpi causa non oritur actio”. I do not accept that that maxim has any possible application here. There is no evidence before me to suggest that the Claimant has been involved in a fraud, or should be deprived of repayment of the amount owed to it on the Centurion account because of some immoral or unlawful act by it. That maxim is raised in the context specifically of these two transactions. But if the Defendant seeks to argue it more broadly, in relation to the other transactions too, then the answer is the same: it has no application here.[52]There is no defence to transactions 8 and 10 for which the Defendant is contractually liable, having expressly accepted those charges. Transactions 1-8 inclusive[53]These transactions all took place between 1 October 2012 and 28 November 2012. The Defendant first reported his concerns that the transactions were not genuine on 22 January 2013 when he emailed Amex saying (the following is an exact quote):
“Pls note that I did not receive the goods/services pls I need Urgently to dispute the charge of USD 108,371.16 also to Dispute any further charges from Al-Tayar effective immediately Pls dispute from beginning up to date and bring the account in credit after disbute All al-Tayar transactions from date 1/10/12 N.b Al-Tayar are using manual machine and he rent it to others Unless he proof all these purchases and received The goods by us and provide the pictures and serial numbers of The goods and authenticated by our official signature Dispute it all N.b Pls rectify the account before 25/1/2013”
Urgently to dispute the charge of USD 108,371.16 also to Dispute any further charges from Al-Tayar effective immediately Pls dispute from beginning up to date and bring the account in credit after disbute All al-Tayar transactions from date 1/10/12 N.b Al-Tayar are using manual machine and he rent it to others Unless he proof all these purchases and received The goods by us and provide the pictures and serial numbers of The goods and authenticated by our official signature Dispute it all N.b Pls rectify the account before 25/1/2013”

N.b

[54](In passing, I note that the Defendant appears to say in this email that all the Al-Tayyar transactions after 1 October 2012 are fraudulent. But he has in fact accepted the last three, numbers 17, 18 and 20, and had on 5 December 2012 accepted another two, 8 and 10. The Defendant’s emailed rejection of all the transactions is therefore inconsistent with his own actions in accepting at least 5 of them in the course of this dispute.)[55]The Claimant points to clause 5.2 and argues that this fixes the Defendant with paying for all transactions which took place more than a month before his last account statement. The Claimant was therefore fixed with all the transactions up to the end of November, because he only notified his concerns on 22 January 2013.[56]The only exception to the one month deadline imposed by clause 5.2 is where there are “exceptional circumstances” in which case the period can be extended to 13 months. I accept the Claimant’s submission that there are no exceptional circumstances here. Far from it. The evidence is that the Defendant’s account was being accessed very regularly during this period (a point made by Mr Shingles and backed up by extensive electronic print outs). I infer that the person accessing the account was the Defendant himself, or someone who was in contact with the Defendant: therefore, the Defendant knew that the charges were on the account. Further, the Defendant made payments into the account, in substantial amounts, on 23 October 2012, 8 November 2012 and 18 December 2012, and I am satisfied that before doing so, he would have inspected his account and authorised payment. I infer that the Defendant knew about the activity on his account throughout the period October to December 2012. He had no reason not to raise within one month any concern he had in relation to the transactions. There are no exceptional circumstances to extend that period.[57]But in the end, what the Defendant knew or did not know is unimportant. He had a contractual obligation to check his statements and to raise any concerns, within a month at the outside. He did not raise any concerns until 22 January 2013 by which time the transactions in October and November were long passed, and beyond the permitted window for raising concerns.[58]The Claimant is fixed with paying for these transactions under the Contract. The 16 disputed Al-Tayyar transactions[59]On 7 February 2013, the Claimant contacted the Defendant and asked him to complete a Fraud Declaration form in relation to the 16 disputed transactions. The Defendant refused, emailing back that “Sorry I already inform dgt all concern information pls do not contact me again” [sic]. The Claimant then forwarded the form to the Defendant’s Liechtenstein bank, for the attention of Nicolas Maurer, under cover of an email which stated that it was a “fundamental requirement that the attached Fraud Declaration form is completed to assist with our ongoing enquiries”. Nicolas Maurer forwarded the Claimant’s email to the Defendant under cover of his own email which stated “I must insist that you fill out the form below as soon as possible and send it back to American Express directly. Otherwise there is the possibility that the refunds made to your account will be cancelled and you are obliged to pay the full bill as far as I am concerned”.[60]The Defendant replied on the following day, 8 February 2013: “Pls note that we provide dgt dispute dept with all the information they need Thru secure messages All confidential information provide it to dgt dispute dept Mr John Hassan he is account security not his jop dispute solution if he need any information let him refer to dispute dept I do not need conflict in the investigation If they try to reverse the credit I will raise the issue to my lawyer and high Authorities and might effect Amex reputation” [sic] Thru secure messages

All confidential information provide it to dgt dispute dept

[61]This was an extraordinarily unhelpful response. It put forward a spurious excuse that the wrong person had asked for the form to be completed and that was the reason for the Defendant’s refusal to do so. That response was totally inadequate. It is inconsistent with the conduct to be expected of a person who has been defrauded of substantial sums of money and wishes to be protected against a claim for the missing money.[62]Mr Rosen suggests that the Defendant now accepts that he should have completed and returned the Fraud Declaration form. His failure to do so was attributable to(i) his failure to understand what he was being asked to do, as a result of his poor mastery of English,(ii) his irritation at being asked to complete the form when he had already given all relevant details to the Claimant, and(iii) his lack of awareness that he was obliged to fill in the form under the Contract. Dealing with each in turn: (i) I reject the suggestion that the Defendant did not understand what he was being asked to do, because of any language deficiency. It is clear from the written email exchange that the Defendant understood perfectly well what he was being asked to do, and simply refused to do it. His written English is imperfect, but it is clear enough that he understood what he was being asked to do. Further and in any event, I accept the evidence of Mr Shingles that the Defendant speaks good English, and understands English well – Mr Shingles as a native English speaker would have been able to form a view as to whether the Defendant could understand him, even in the course of short conversations. (ii) Even if the Defendant was irritated by being asked for details, that can have no bearing on the fact that he was obliged under the Contract to confirm that the transactions were fraudulent, or risk having to pay for the transactions himself. I reject this suggested excuse for his failure. But in any event, I fail to see why the Defendant was irritated in this way: the request was a reasonable one, and there was no reason to be “fed up” about it. (iii) The Defendant was not unaware of the Contract terms requiring him to complete the Fraud Declaration, because the requirement for him to do so was clearly outlined in the emails to the Defendant, to both of which the Defendant replied. But in any event, the Defendant’s ignorance of the requirement, if true, could not excuse this failure. There is no substance in any of the points made on the Defendant’s behalf in this context.[63]The failure to complete a fraud declaration in relation to the 16 transactions which the Defendant was by this stage disputing was a clear breach of clause 20.5 of the Terms and Conditions. It means that the Defendant effectively forfeited his right to be indemnified by the Claimant for any losses.[64]For that reason, in addition to the contractual provisions which apply in relation to other specific transactions in dispute, the Claimant is obliged to meet the charges for all 16 transactions under the Contract.[65]But further, I infer from the Defendant’s refusal (having examined and rejected all the arguments put forward on his behalf by Mr Rosen) that the Defendant knew that he had not been defrauded at all. He was reluctant to sign the form because he knew that if he did so, he could get into trouble, for making a false accusation of fraud. Conclusion on the basis of the Contract[66]In reliance on the Contract, the Claimant has an unanswerable claim to the money sought on the Centurion Account. The Claimant is entitled to the outstanding sum of US$617,961.57.[67]The Defendant is in addition liable to interest at the contracted rate, which comes to US$305,890.86.

Disputed transactions – evidence of fraud

[68]Thus the Claimant has established its case under the Contract (and will have judgment on that basis). I nonetheless wish to deal with the remaining and central factual issue raised in this case.[69]The cornerstone of the defence is that the 16 transactions were fraudulent. The Defendant denies that he signed the 16 ROCs relating to these transactions, and asserts that the signature on the ROCs is not his.[70]In this connection, the Defendant attached to his defence an undated report purporting to be from three individuals, Mahmoud El Faqih, Antoine Venianos and Mohamad Sultan, commenting on the signatures on the various ROCs. But this “report” is not compliant with CPR rules: there is no expert’s declaration, the specialism of the authors is not stated, there is no suggestion that any of them understood that they had any obligations to the English Court at the time of writing the report. I am unable to place any reliance on this “report” and I do not do so.[71]I do not find the version of events put forward by the Defendant to be credible, for the following reasons: a) Although he asserts in his defence (paragraph 2), that he never did any business with Mr Al-Tayyar, that is manifestly untrue. The Defendant accepts transactions 17, 18 and 20, all of which were with Mr Al- Tayyar. b) The Defendant originally accepted transactions 8 and 10, which were also with Mr Al-Tayyar. He did so because he was asked by the Claimant to confirm them and explicitly did so, in writing, on 5 December 2012. He would not have accepted those transactions – which were for a substantial sum – unless they were genuine. In my judgment, his initial acceptance represents the truth. His subsequent denial of those transactions is a fabrication. In relation to those transactions also, he had dealings with Mr Al-Tayyar. His assertion to the contrary is yet further devalued. c) I have already rejected the suggestion that the Defendant’s lack of understanding of English caused him to misunderstand at any stage what was going on. His reliance on poor language skills is therefore a further lie. d) I have already rejected the suggestion that the Defendant can have misunderstood the need for him to sign the Fraud Declaration form: in light of the emails to him which set out clearly why the form was required, his arguments are untenable and are a further fabrication in this case. e) I have already concluded that the defence put forward in relation to the Gold Account is based on the mistruth that the Claimant had “accepted the position”. That was not so. f) I have already concluded that the Defendant refused to sign the Fraud Declaration form because he knew the various transactions were in fact genuine, and he did not want to get himself into trouble by making a false accusation of fraud.[72]In summary, I find the Defendant’s case to be inherently implausible, internally inconsistent, and lacking in credibility. I do not believe it.[73]I hardly need to address the other evidence in the case, but for completeness I will do so.[74]The Defendant’s affidavit sets out a collection of excuses for the Defendant’s failure to pay the sums due. Some of these I have already considered: he suggested that his language skills caused him to misunderstand, a point which I have already rejected. He refutes the authenticity of transactions 8 and 10 because he says it is not his signature on the ROC: I have dealt with those transactions already, but the suggestion in the affidavit that the Defendant did not sign for those transactions because he was engaged in negotiations with the jeweller as to price at the time, lacks credibility and further undermines his case. He complains that the Claimant failed to set a cap on his spending on the card, and to notify him if his spending exceeded the cap, but I fail to see how those points (if they are true – and I make no finding about that) alter his contractual liability to the Claimant. He denies that the signatures on the ROCs for the disputed 16 transactions are his, but as I have already said, there is no reliable expert evidence before me to support that assertion and in light of my earlier conclusions that these transactions were genuine, I reject that assertion. He suggests that he has had no dealings with Mr Al-Tayyar, a point I have already addressed and which is patently untrue. He accepts that he has had dealings with Abdul Sammad jewellers and suggests that because the ROCs went through on Mr Al-Tayyar’s machine, that somehow absolves him of liability to pay the sums due: I do not follow this argument, which appears to rely on the fact that Abdul Sammad borrows Mr Al-Tayyar’s zip-zap machine (as to which I make no finding) as an excuse for non-payment. This is misconceived: even if true, it would provide no defence to the Claimant’s claim.[75]All in all, the affidavit does very little to help the Defendant. In my judgment, its contents confirm the conclusion I have already reached that the Defendant is not a credible witness. He has no proper defence to this claim.[76]Finally, then, I turn to the witness statements of Mr Al-Tayyar and Mr Al-Hamoud, the Saudi witnesses. They hardly matter, given my conclusions above. Neither witness wished to come to give evidence at trial, as set out in Katie Molloy’s witness statement dated 7 October 2015. Their volte face is unexplained. Such reasons as can be gleaned are as follows: it seems that the Defendant had spoken to Mr Al-Tayyar (at least on Mr Al-Tayyar’s account, reported to Ms Molloy), and Mr Al-Tayyar now feels that the Claimant has let him down and is doing nothing for him; Mr Al- Hamoud reports being concerned for his reputation. Both men at one stage sought a substantial sum of money to come to Court, far more than could be seen as reasonable expenses.[77]It is not possible for me to come to form any concluded view on the veracity of these witnesses. However, I do accept that the version of events that they put forward is inherently more likely to be the truth. They both say that the Defendant purchased items in person from Abdul Sammad’s shop (Abdul Sammad is the same person as elsewhere referred to as Mr Al-Hamoud), producing his Amex card to pay; the payment was put through on Mr Al-Tayyar’s zip-zap machine and Mr Al-Tayyar sought authorisation for each transaction, which was given, and then the goods were handed over to the Defendant, personally.[78]This fits precisely with the ROCs I have seen and with the fact that telephone authorisations were logged by the Claimant. It explains the whole sequence of the 19 transactions. It is the logical consequence of my rejection of the Defendant’s case on the facts.

CONCLUSION

[79]I express my gratitude to Mr Ali Tabari, counsel for the Claimant, for his clear and helpful submissions.[80]I also thank Mr David Rosen for his submissions on behalf of the Defendant. He said everything that could possibly be said on his client’s behalf. But in the end, he was given the impossible task of trying to make bricks without straw.[81]I give judgment for the Claimant in the amount sought. I will hear submissions on the appropriate order.