Neutral Citation Number: [2024] EWHC 1235 (Comm)
Case No: CL-2021-000412
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 17/05/2024
Before :
THE HON. MR JUSTICE BRYAN
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Between :
INVEST BANK P.S.C. Claimant
- and -
(1) AHMAD MOHAMMAD EL-HUSSEINI
(2) MOHAMMED AHMAD EL-HUSSEINY
(3) ALEXANDER AHMAD EL-HUSSEINY
(4) ZIAD AHMAD EL-HUSSEINY
(5) RAMZY AHMAD EL-HUSSEINY
(6) JOAN EVA HENRY
(7) VIRTUE TRUSTEES (SWITZERLAND) A.G.
(8) GLOBAL GREEN DEVELOPMENT LIMITED
Defendant
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Tim Penny KC and Marc Delehanty
(instructed by PCB Byrne LLP) for the Claimant (Bank)
Niranjan Venkatesan and Constantine Fraser
(instructed by Debenhams Ottaway LLP) for D2 (Mo) and D6 (Joan)
Tiffany Scott KC and Emma Hargreaves
(instructed by Edwin Coe LLP for D7 (Virtue)
D1, D3, D4, D5 and D8 were unrepresented
(D3, D4 and D5 appeared in person)
Hearing dates: 16 and 17 May 2024
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APPROVED JUDGMENT
THE HON. MR JUSTICE BRYAN
Approved Judgment
INVEST BANK v EL-HUSSEINI & ORS
MR JUSTICE BRYAN :
A. INTRODUCTION AND BACKGROUND
1. The parties appear before the Court upon the hearing of the two day Pre Trial Review
of the claims in this action (recently extended at my instigation and direction from one
day), in advance of a 4 week trial due to commence on 1 July 2024, with the skeleton
argument for trial of the Claimant Invest Bank P.S.C. (the “Bank”) being due on 26
June 2024 (i.e. just over 5 weeks away). By such time all matters must be pleaded out,
all issues crystallised, any and all further disclosure given and any and all further
factual and expert evidence must have been served, and all in good time before that so
as to facilitate the preparation of the respective skeletons and to enable proper and fair
preparation for the trial itself (preparation which will inevitably be both extensive and
onerous). The parties state they are trial ready subject only to a number of matters
arising on the PTR, and that should be capable of resolution at the PTR, none of
which would give rise to difficulties in relation to the trial still less put in jeopardy the
viability of the trial or its current duration.
2. However, there is a very recent substantive (and substantial) application on the part of
the Bank to Re-Re-Re-Re-Re-Amend its Particulars of Claim, which must inevitably
be determined at the start of the PTR and before the remainder of the PTR can take
place, and which has major potential implications in relation to preparation for trial
and whether (if the amendments are allowed in whole or in part) the trial could go
ahead, namely the Bank’s application dated 25 April 2024 to serve Re-Re-Re-Re-Re-
Amended Particulars of Claim with consequential directions sought for responsive
amended Defences (and Reply) (the “Amendment Application”) (the Bank also
accepting, in its evidence, that further witness evidence will also be likely).
3. In relation to the Amendment Application:
(1) The Amendment Application is supported by the Eighteenth Witness
Statement of Trevor Mascarenhas of PCB Byrne LLP also dated 25 April 2024
(“Mascarenhas 18”).
(2) In circumstances in which the Bank achieved an expedited listing of the
Amendment Application upon the PTR (without which, realistically, the
Amendment Application would never even have got on before trial based on
an appropriate one day estimate), the Amendment Application is opposed (on
behalf of the Second Defendant, Mohammed Ahmad El-Husseiny (“Mo”) and
the Sixth Defendant Joan Eva Henry (“Joan”)) by the Sixth Witness Statement
of Juliet Schalker of Debenhams Ottaway LLP (“Schalker 6”) dated 9 May
2024 (served within short order and on the basis of a truncated timescale for
responsive evidence on what is a heavy application). Schalker 6 is
accompanied by an Annex 1 which is a table setting out dates (by reference to
documents) by which it is said the Bank could have pleaded the proposed
amendments (setting out dates, before 5 July 2021 and/or September 2021
and/or October 2021 and/or January, February or March 2022 and/or October
2023 and/or (in one instance) January 2024 (the “Schalker Table”). Mo and
Joan have also served a preliminary letter report on UAE and Lebanese law
from Professor Hadi Slim dated 8 May 2024 (the “Hadi Report”) and on which
they seek to rely on the Amendment Application.
THE HON. MR JUSTICE BRYAN
Approved Judgment
INVEST BANK v EL-HUSSEINI & ORS
(3) The Bank replied to Schalker 6 in the Nineteenth Witness Statement of Trevor
Mascarenhas dated 13 May 2024 (“Mascarenhas 19”), i.e. on the same day as
the Bank’s Skeleton Argument for the PTR, and the day before the Skeleton
Argument on behalf of D2 and D6 (which I will refer to, for ease of reference,
as the “Defendants’ Skeleton Argument”), D2 and D6 leading the opposition
to the majority of the proposed amendments. Mascarenhas 19 is accompanied
by an Annex 1 thereto which is a table of documents upon which the Bank
relies to advance its proposed amended case (the “Mascarenhas Table”). On
the morning of the hearing yesterday, the Bank (without leave) provided a yet
further statement from Mr Mascarenhas (“Mascarenhas 20”) responding to two
points set out in the Defendants’ Skeleton Argument (addressing the timing of
the making of the Amendment Application and correcting what had been said
about Sheikh Tahnoon).
(4) The Seventh Defendant, Virtue Trustees (Switzerland) A.G. (“Virtue”)
through its solicitors Edwin Coe LLP, have corresponded with PCB Byrne (on
behalf of the Bank) in relation to the Amendment Application. Virtue has also
served a Skeleton Argument (the “Virtue Skeleton Argument”). Virtue
complained about aspects of the proposed amendments (in particular as to their
particularity), leading to further proposed amendments. By the time of the
hearing the amendments so far as they related to Virtue were largely agreed
between Virtue and the Bank and it was agreed that remaining matters could
be addressed later in the PTR following this Judgment.
4. The First Defendant, Ahmad Mohammed El-Husseini (“Ahmad”), is not represented
at the hearing and did not appear. The Third Defendant Alexander Ahmad El-
Husseiny (“Alex”), the Fourth Defendant Ziad Ahmad El-Husseiny (“Ziad”) and the
Fifth Defendant Ramzy Ahmad El-Husseiny (“Ramzy”) are not represented at the
hearing, but they have all been present (Ramzy in Court, Alex and Ziad by video link)
and I heard from each of them briefly on the Amendment Application. They each
confirmed that they adopted the submissions of D2/D6 so far as they also relate to
their position.
5. The draft Re-Re-Re-Re-Amended Particulars of Claim involve in the region of 143
amendments that D2 and D6 say are substantive. They have consented to (or are
neutral as to) 66 of them (whilst identifying that even these will cause additional
work, including pleading back to, very shortly before trial).
6. That leaves 77 amendments (which for ease of reference and definition hereafter I
will refer to as the “Proposed Amendments”) which are objected to on behalf of D2
and D6 (and other Defendants) for a variety of reasons, the overarching reason being
that they say that the trial date would be lost if permission were to be granted (in the
context of the need for response pleas, disclosure, further factual evidence and expert
evidence and the impact on fair trial preparation). The Proposed Amendments include
what was contended by D2 and D6 to be a new allegation of dishonesty, a new
allegation of bad faith, a new claim for $15 million against Joan (not previously
pleaded and said to be barred by limitation) and a new factual basis for the Bank’s
existing claims under section 423 of the Insolvency Act 1986 (“Section 423”) which,
if permitted, D2 and D6 say would require a further disclosure exercise, further
witness evidence, and expert evidence of UAE and Lebanese law. It is submitted that
the Proposed Amendments are variously either “very late” or on any view “late”, most
