One of the more interesting and entertaining decisions this month was that of Lord Dyson, Master of the Rolls, in Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz.
Essentially, the Court of Appeal reversed the decision of Peter Smith J sitting in the Chancery Division, on the basis of the Court’s criticism of his approach to the evidence at trial. Certainly the appellate judgment included some important observations about evidence and how it should be considered in judgments. The case will no doubt attract attention, however, for other observations concerning judicial bias and the facts behind those allegations.
This was a dispute about the ownership of two doubtless lovely properties in Cheyne Walk, Chelsea. At first instance, the Court ordered the Saudi royal defendant to pay £12 million pounds to Mrs Harb and to transfer those properties to her. The Defendant, it should be noted, was her son-in-law as she had been (and arguably remained) married to the Defendant’s father who had been Minister of the Interior before becoming King in 1982. By the time the matter came to trial, the Defendant was the present King’s brother.
After Mrs Harb and the Saudi monarchy had parted company, she explained to the Prince that she was contemplating an autobiography to assist her financial position. The Saudi royal family, presumably anticipating that such a book might not make terribly attractive PR material, came to a financial arrangement with Mrs Harb in exchange for her keeping her memories to herself.
The amount she was paid at that point saw her through a few years, however after the passage of a few more years, in 2003, Mrs Harb felt she needed more. She applied to the High Court for further financial support from the Saudi royal family. In support of that application, she felt it necessary to produce evidence revealing certain facts of the sort which the Saudi royal family had hoped she had been precluded from disclosing, some of which were plainly unsavoury or embarrassing.
It was her case that on a visit to London for those proceedings, the Prince made further substantial offers to her in a brief conversation. She went to her lawyers the next morning describing what she told them was a firm, oral agreement, and asked them to prepare documents to embody that agreement which she might then ask the Prince to sign and perform. Once again, the putative agreement was intended to trade confidentiality for money as well as the Cheyne Walk properties. However when the documents were sent to the Prince for signature, they were ignored and at length the Prince denied that there had been any meeting or agreement.
The trial, in the summer of 2015, had to consider the factual questions of whether or not a meeting had taken place as Mrs Harb alleged and, if so, whether a binding agreement had been reached along the lines she had alleged. The Court of Appeal, considering the full transcripts of the evidence, noted that “all of the witnesses had difficulty to a greater or lesser degree in concentrating on the questions put to them and giving clear, concise answers to them. Moreover, the judge’s task of getting at the truth was made more difficulty by the fact that the Prince did not attend for cross-examination, despite the fact that the judge had ordered him to do so”. The judge preferred Mrs Harb’s evidence.
The Prince’s failure to attend
The Prince had written to the Court explaining that the government had not considered it appropriate for a member of the Saudi royal family to become involved in foreign proceedings and the inevitable media brouhaha. Although compelled to attend, his absence was not punished as a contempt and the Judge concluded that his witness statement should be read but afforded little or no weight, being untested hearsay.
On appeal, the Court felt it important to emphasise that whatever weight that evidence ought to have been afforded, there was no basis for concluding that the Prince had simply wished to avoid the unpleasant rigour of cross-examination. This, the Master of the Rolls feared, might have wrongly affected the trial Judge’s approach to considering the Prince’s written evidence, whatever weight was attached to it. This, however, was not of itself an adequate ground to set aside the decision below.
Approach to the evidence of an agreement
The Court at first instance had been persuaded of Mrs Harb’s primary and alternative cases on the facts, in the face of its own ‘considerable doubt’. On the one hand, Peter Smith J had found elements of her evidence to be bizarre, yet he had also observed that she and her supporting witnesses had ‘performed well’.
On appeal, it was submitted that the Judge ought to have said more about such doubts and how they had been overcome to discharge the burden of proof on the Claimant, requiring him to set out a more detailed analysis of the evidence. The appellant Prince’s Counsel listed nine examples of inconsistency which were said to emerge from the transcript and the Court of Appeal was indeed persuaded that the Court had failed to identify the questions to be answered and the approach used to test the evidence against those questions, or to subject supporting evidence ‘to any serious degree of scrutiny’.
Importantly, the Court of Appeal considered that the judgment ought expressly to have brought together and balanced the various forms and strands of evidence, so that it explained how these had led to a particular conclusion.
All in all, on these particular facts, the Court of Appeal felt that the court below had not discharged an obligation to provide adequate reasoning, which impugned the fairness of the outcome:
“Our system of civil justice has developed a tradition of delivering judgments that describe the evidence and explain the findings in much greater detail than is to be found in the judgments of most civil law jurisdictions. This requires that a judgment demonstrates that the essential issues that have been raised by the parties have been addressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial.” (para.39)
The Appellant Prince therefore succeeded on this point.
Here again the Court of Appeal felt that the Court below had not dealt adequately with the question of whether the Prince, had he entered into any agreement, had done so in her personal capacity or as an agent for the King. The MR felt that “the judge approached the question of agency as if it were separate from the question whether a binding agreement had been made. In fact, however, it was bound up with the question of exactly what was said, whether it amounted to a binding agreement and whether the Prince was undertaking a personal obligation. This was an aspect of the case that called for careful and detailed analysis”. Again, the criticism was that he did not deal in adequate detail with the evidence and argument in his reasoning in the judgment.
Again, the appeal was allowed on this ground.
For practitioners, some of the more lively and interesting passages in the MR’s judgment tackle the question of apparent bias, which is of course an element of natural justice. Whilst the earlier grounds were sufficient for the Prince to have succeeded on appeal, the Court of Appeal recounted in detail the fascinating basis upon which the appellate allegation had been made, and its conclusions upon it.
During the period of the trial, the Judge below had recused himself from an unrelated case to which British Airways was Defendant because he had lodged a complaint against BA following his experiences as a customer. After they had lost his luggage, he had written to the Chairman of BA which referred to his judicial status and capacity, as if to underline the gravitas of his concerns.
Lord Pannick QC had then written an article about the Judge’s complaint in The Times, which had plainly infuriated Peter Smith J. In his article, Lord Pannick had described the Judge’s conduct as bullying, threatening and arrogant, and had referred to an earlier case in which he had been described as ‘intemperate’.
This in turn led the Judge to write to one of the joint heads of Blackstone Chambers, at which Lord Pannick QC is a member, saying “I do not wish to be associated with Chambers that have people like Pannick in it” (sic).
Correctly applying the objective test, the Court of Appeal in Harb considered whether the Prince’s representation by two members of Blackstone Chambers gave rise to the appearance of (if not actual) bias, in the light of the Judge’s letter. This became important because the exchange with Blackstone Chambers had occurred before the final judgment had been delivered.
In the event, this ground of appeal (had it been material, and the matter not decided on other grounds) would have failed, but only just:
We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.
But there is a further reason why this ground of appeal must fail. The assessment of whether an informed and fair-minded observer, having considered the facts, would conclude that there was a real possibility of bias depends on an examination of all the relevant facts. It is fact sensitive. In our view, the facts in the present case show that the possibility that Peter Smith J was actuated by bias against the Prince is unrealistic (paras.74-75).
We can now, at least, look forward to a retrial, unless the parties find some way of avoiding it. If they can, they will no doubt avoid more of the very publicity which the Saudi royal family had sought, on the facts revealed by this case, to avoid.