Tycoon Granted Delay After No-Show In $3.5B Fraud Trial
Originally posted on Law360.com
Law360, London (September 22, 2021, 4:53 PM BST) — A London judge allowed an Arab property tycoon on Wednesday to adjourn his fraud trial after he was hospitalized, saying that refusing his request for a delay would infringe his right to a fair trial.
High Court Judge Joanna Smith granted an application by the lawyers for Sheikh Mohamed bin Issa al Jaber to put his fraud trial on hold while he is being treated in a hospital in Paris, after he became too ill to testify as planned on Tuesday morning.
Judge Smith said it is appropriate to adjourn the trial — in which liquidators overseeing the insolvency of al Jaber’s leisure and hotel group, MBI International & Partners Inc., are suing the tycoon and his daughter for breach of fiduciary duty, negligence and conspiracy over a series of transactions between 2008 and 2017 — due to al Jaber’s illness because to refuse an adjournment on medical grounds would risk infringing his right to a fair trial.
“I am satisfied that the sheikh is not able to give his best evidence in the next few days and that this inability arises for a genuine reason,” Judge Smith said.
The judge said that refusing an application for an adjournment would put the sheikh’s rights under Article 6 of the European Convention on Human Rights, which enshrines the right to a fair trial, at risk. That’s because refusing the adjournment would mean that al Jaber, a key witness in the trial, would not be able to give evidence before closing submissions begin.
Judge Smith noted in particular that a key issue in the case is that the sheikh changed elements of his testimony earlier this year. Refusing him an opportunity to be cross-examined as planned would deny his ability to explain the differences in his evidence.
The judge said there is a “strong possibility” that refusing an application would lead to the liquidators succeeding in their claim and so could amount to a denial of justice.
She rejected arguments from the liquidators’ counsel, Joseph Curl QC of 9 Stone Buildings, that the medical certificate confirming the sheik’s hospitalization was inadequate.
Curl said during submissions on Tuesday that he is “intensely cynical” about al Jaber’s medical issues. He added that the sudden illness was an attempt to “derail” the trial. Curl asked the court to refuse an adjournment on this basis. Al Jaber’s counsel, Clare Stanley QC of Wilberforce Chambers, said there was no reason to doubt that the medical certificate provided was genuine.
Judge Smith agreed with Stanley, saying she had seen no evidence suggesting she should doubt the veracity of the medical certificate or the qualifications of the doctor. She therefore found that the sheik’s medical condition was genuine.
The judge also ordered the sheikh to provide a more detailed report before the trial recommences, giving a comprehensive account of his medical condition and history, and providing additional details such as his prognosis and when he will be able to testify.
If he fails to comply again, he will be in breach of a court order, Judge Smith warned in her judgment.
The judge said that the inconvenience and costs incurred by the liquidators as a result of the adjournment could be fixed by a costs order. Judge Smith said she is inclined to throw out the liquidators’ costs associated with the adjournment hearing.
A 10-day trial on the fraud charges started in January, but the case has been delayed by appeals and to allow al Jaber to recover from an unrelated medical issue. The judge said in January that liquidators could add new fraud allegations against al Jaber after he changed his evidence about JJW Hotels & Resorts midtrial and acknowledged that his earlier statements about the ownership and transfer of shares had been incorrect.