Sheikh Denied Retrial After Ill Health Prevents Live Testimony
Originally posted on Law360
Joanne Faulkner, Law360, London (October 26, 2022, 4:40 PM BST) — The Court of Appeal refused on Wednesday to adjourn for the fourth time an insolvency trial brought by liquidators of a tycoon’s property portfolio due to the tycoon’s ill health, agreeing that it was unlikely he would ever be fit to give oral evidence.
The two-judge panel unanimously agreed that the High Court was right to order to the resumption of litigation brought against Businessman Sheikh Mohamed Bin Issa Al Jaber after he failed to take any practical steps to improve his ill-health.
His lawyers argued that the lower court was wrong to conclude that there was no reasonable prospect the sheikh could attend an adjourned trial, which fed into whether there could have been a fair trial.
Liquidators overseeing the insolvency of Al Jaber’s leisure and hotel group MBI International & Partners Inc., sued the tycoon and his daughter for breach of fiduciary duty, negligence and conspiracy over a series of transactions between 2008 and 2017.
The trial began in January 2021 and was adjourned multiple times after Al Jaber became ill. It resumed and closed in October following a High Court judgement that a trial without the Sheikh’s oral evidence would be fair. His lawyers had asked for a further 12-month delay.
Delivering an oral judgement, Judge Kim Lewison said that if the Court of Appeal had sided with Al Jaber there would have been “no option but to order retrial.”
The judges said that Al Jaber faced serious allegations and acknowledged that much of the evidence would turn on his credibility, but that doctor reports produced a year apart showed little improvement in the sheikh’s condition.
Al Jaber had been advised by doctors that his physical condition was likely to improve if he lost weight, but an examination in October 2022 showed that “his prognosis was worse,” Judge Lewison said. The sheikh had gotten heavier. He was also advised that a change in medication could help his diabetes and weight loss, but this had also not been acted on.
“The sheikh had apparently made little or no effort to follow advice and recommendations,” Judge Lewison added.
High Court Judge Joanna Smith said in her ruling that even if she adjourned again the part-heard trial until 2024 she could not be completely satisfied that Al Jaber would ever be in a position to give oral trial evidence.
James Morgan KC, counsel for Al Jaber, told the appeals court that the claims against the sheikh were worth $134 million and any adverse findings “could be career ending.” He said it would likely give rise to prejudice if he could not give evidence in person given the serious nature of the allegations against him and a number of key disputed documents.
Morgan said that the sheikh had undergone several cardiac procedures that had made it difficult for him to lose weight. He also argued that the three previous adjournments and the delays to the trial should not be held against Al Jaber.
Judge Smith previously agreed to pause the trial in September 2021 after Al Jaber became too ill to testify and was being treated in a hospital in Paris. She said at the time 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.
The judge 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.
A 10-day trial on the charges started in January 2021, but the case has been delayed by appeals and to allow Al Jaber to recover from an unrelated medical issue. The judge had initially allowed MBI’s liquidators to allege that the sheikh knowingly made false statements to liquidators to prevent them from realizing any of the company’s assets as part of an unlawful conspiracy.
But the issue that was appealed to the Court of Appeal, which ruled in July that Al Jaber was insulated from the new claims under the principle of witness immunity.
Counsel for the liquidators appeared in court Wednesday but did not make oral submissions.
Judges Kim Lewison and Richard Arnold heard the case for the Court of Appeal.
Al Jaber is represented by James Morgan KC of Radcliffe Chambers, instructed by Mishcon De Reya.
The liquidators are represented by Christopher Boardman KC of Radcliffe Chambers, instructed by Clyde & Co LLP.
The case is Al Jaber and others v. Mitchell and another, case number CA-2022-001919, in the Court of Appeal of England and Wales.
— Additional reporting by Lucia Osbourne-Crowley. Editing by Alyssa Miller.