Al-Aggad -v- Al-Aggad

Business and Property CourtsCommercial CourtHigh CourtKing's Bench DivisionJudgment

Claim Number: CL-2022-000230

In The High Court Of Justice
Business And Property Courts Of England And Wales
Commercial Court (KBD)

26 October 2023

Before:
Christopher Hancock KC (sitting as a Deputy High Court Judge in Private)

Between:
Rana Al-Aggad
-v-
(1) Talal Al-Aggad
(2) Tarek Al-Aggad
(3) Lama Al-Aggad

Order

UPON the ex parte application of the Claimant (“C”) dated 22 July 2022 for (i) a domestic freezing order (“DFO”) against certain properties of the Defendants (“Ds”) in England; (ii) permission to serve the First and Second Defendants (“D1” and “D2”) out of the jurisdiction by alternative means; and (iii) for confidentiality protections (“C’s ex parte application”);

AND UPON the order of Butcher J dated 11 August 2022 (“the Butcher Order”) (i) dismissing C’s application for a DFO; (ii) granting C permission to serve D1 and D2 out of the jurisdiction by alternative means and (iii) granting the confidentiality protections set out in §§11-15 of the Butcher Order with liberty to the Ds to apply to vary or discharge those protections (“the Confidentiality Regime”);

AND UPON the application of the Third Defendant (“D3”) by notice dated 11 October 2022 under CPR Part 11 (“D3’s Part 11 Application”) and upon by the application of D1+D2 by notice dated 14 October 2022 under CPR Part 11 (“D1+D2’s Part 11 Application”) (together, the “Part 11 Applications”);

AND UPON the listing of the Part 11 Applications on 28 November 2022 for a two day hearing on 17- 18 October 2023 with one day’s pre-reading on 16 October 2023 (the “October 2023 Hearing”);

AND UPON the Consent Order of Calver J dated 31 March 2023 varying and extending the Confidentiality Regime to cover certain materials relied upon by C in response to the Part 11 Applications (“the Calver Consent Order”);

AND UPON C’s application dated 7 September 2023 for (i) permission to rely upon rejoinder evidence and (ii) for the Confidentiality Regime to be extended to cover certain materials within the proposed rejoinder evidence (“C’s September Application”);

AND UPON the application of D1 and D2 dated 21 September 2023 (inter alia) (i) seeking an adjournment of the Part 11 Applications from the October 2023 Hearing; (ii) the discharge of the Confidentiality Regime set out in the Butcher Order and Calver Consent Order and (iii) alternatively directions for the management of that regime (“D1 and D2’s September Application”);

AND UPON the Order of Foxton J dated 6 October 2023 (i) adjourning the Part 11 Applications to a hearing now listed on 7-8 February 2024 with a day of pre-reading on 6 February 2024 and (ii) directing the determination of (inter alia) issues in relation to the Confidentiality Regime at the October 2023 Hearing;

AND UPON the Court’s indication at the October 2023 Hearing that the parties should seek to agree the issues between them in relation to the Confidentiality Regime, failing which the Court would consider those issues at a further hearing now listed for a day on 26 October 2023;

AND UPON D1+D2 having entered into those discussions without prejudice to their position on D1 and D2’s September Application, and C having entered into those discussions without prejudice to her position as to the scope of the Butcher Order and the Calver Consent Order and no determination either matter having yet been made;

AND UPON hearing leading counsel for C and counsel for D1+D2, and counsel for D3 being in attendance at the resumed hearing on 26 October 2023;

AND UPON D1+D2’s expert on issues of Saudi law and practice having tendered a confidentiality undertaking to the Court, and the Court having accepted the same

IT IS ORDERED THAT

Schedule 1 Materials

  1. Paragraph 1 of the Calver Consent Order is varied and replaced as follows.
  2. The Parties shall, subject to the provisions of this order and until further order of the Court, treat the documents listed in Schedule 1 to this Order and their contents (“the Schedule 1 Materials”) as sensitive and confidential to the Claimant, save in respect of documents in redacted format as referred to in paragraph 11(a) below to which the Claimant has agreed the Confidentiality Regime does not apply.
  3. The parties have liberty to apply to add other documents (in particular future inter-partes correspondence or future evidence) to the Schedule 1 Materials for the purposes of the provisions and protections set out in this order.

List of Issues, bundles and skeleton arguments on the Part 11 Applications

  1. The parties shall use best endeavours by 4pm on 1 December 2023 to seek to agree a list of issues on the Part 11 Applications with cross-references to the relevant evidence, failing which they shall file and serve a composite draft noting the areas of dispute.
  2. The parties shall use best endeavours by 4pm on 8 December 2023 to seek to agree which of the issues on the Part 11 Applications may require reference in written or oral submissions to Schedule 1 Materials and which will not.
  3. For the purposes of the Part 11 Applications:
    (a) the Schedule 1 Materials shall be contained within a separate confidential bundle; and
    (b) the parties shall clearly identify in their skeleton arguments (whether through highlighted sub-sections, or the use of annexes) which parts of their skeleton arguments refer or relate to the Schedule 1 Materials and which do not.

Hearings and transcripts

  1. Paragraph 11 of the Butcher Order as amended by paragraph 2 of the Calver Consent Order is varied and replaced as follows.
  2. The parties shall use best endeavours by 4pm on 23 January 2024 to seek to agree a timetable for submissions at the February Hearing and the order in which the issues may be most conveniently determined, including an indication of which aspects of the February Hearing they consider may need to take place in private or other appropriate measure taken to protect the Claimant’s position.
  1. The Judge at the February Hearing and, until further order of the Court, any subsequent hearing in these proceedings, shall consider and invite submissions at the outset upon:
    (a) whether one or more of the issues for that hearing may require reference to the Schedule 1 Materials, and, if so, in order to ensure that the content of the Schedule 1 Materials are kept confidential;
    (b) whether some or all of the hearing by reference to such issues should be in private pursuant to CPR 39.2(3)(c) and/or CPR 39.2(3)(g), or other appropriate measure taken to protect the Claimant’s position.
  1. Following the February Hearing and, until further order of the Court, any subsequent hearing in these proceedings, the parties shall seek to agree and submit to the Court for approval (save where the entire hearing takes place in private):
    (a) an open version of the hearing transcript, with redactions for those parts of the hearing which sat in private and/or involved reference to the confidential contents of the Schedule 1 Materials; and
    (b) an unredacted version of the hearing transcript, which shall be added to the Schedule 1 Materials.
  1. Pursuant to CPR r 39.9(4), the rights of access to a transcript conferred by CPR r39.9(3) shall apply to any part of a hearing that is not held in private, but for the avoidance of doubt shall not extend to any portion thereof which has been redacted in accordance with paragraph 13(a).

Court Records and Evidence

  1. Paragraphs 12 to 14 of the Butcher Order, as varied and extended by paragraphs 1 and 2 of the Calver Consent Order, are further varied and replaced as follows.
  2. Within 7 days:
    (a) the Claimant shall upload or otherwise provide to the Court redacted copies of the documents provided by C’s solicitors to Ds’ respective solicitors by way of attachment to the emails dated 20 and 24 October 2023 (“the Redacted Documents”). The redactions shall mirror the sections of those documents which had been highlighted by C’s solicitors and the redacted copies shall remain on the open record and / or the Court file;
    (b) the Claimant shall arrange with the Court for the unredacted copies of the same documents (“the Unredacted Documents”) to be marked as confidential, whether by uploading or otherwise providing fresh copies of the same and organising for the existing copies to be deleted, or by arranging for the existing documents to be re- designated.
  1. Unless the Court gives permission, a non-party must not inspect or obtain from the records of the Court, or inspect or obtain from the Court the Schedule 1 Materials.
  2. If a non-party applies for an order allowing her or him to inspect or obtain a copy of any of the Schedule 1 Materials, the non-party must serve that application upon the parties as soon as practicable and in any event with at least 7 business days’ notice of any hearing at which it is intended to argue the application.

Confidentiality Ring

  1. Paragraph 15 of the Butcher Order, as varied and extended by paragraph 2 of the Calver Consent Order, is further varied and replaced as follows.
  2. The Defendants must not disclose or permit to be disclosed directly or indirectly to any non- party copies of any of the Schedule 1 Materials, except:

(a) to any English solicitors or English Counsel whom that Defendant has instructed to represent her or him in these proceedings;

(b) with respect to the Confidential Instructions and Mr Najdawi’s Confidential Annex only (as defined in paragraph 1 of the Calver Consent Order), to (i) Mr Firas Sharaiha acting pursuant to his instruction by Mr Tarek Al-Aggad and Mr Talal Al-Aggad and/or Jones Day as an expert on matters of Jordanian law in these proceedings; and (ii) Mr Raed Rabah and Mr Saif Al-Soudi employed by Rabah & Sharaiha Legal Consultants and nominated by Mr Firas Sharaiha to assist him in these proceedings.

(c) with respect to the confidential assumptions provided by the Claimant to their expert on Saudi law and practice, Prof Mallat, and Prof Mallat’s Confidential Annex to his second report dated 4 September 2023 with its supporting materials:

(i) to Mr Dafer Alsubaie acting pursuant to his instruction by Mr Tarek Al-Aggad and Mr Talal Al-Aggad and/or Jones Day as an expert on matters of Saudi law and practice in these proceedings;

(ii) to Mr Ali Faraj Alogla acting pursuant to his instruction by Ms Lama Al-Aggad and/or Forsters as an expert on matters of Saudi law and practice in these proceedings, but only after an equivalent undertaking to the Court to that given by Mr Alsubaie being tendered by Mr Alogla;

(iii) to members of the same firms as either Mr Alsubaie or Mr Alogla assisting them with their reports, but only after prior notification to the Claimant of the identity of the relevant individual and equivalent undertakings to the Court to that given by Mr Alsubaie being tendered by that individual;

(d) with the Court’s permission; or

(e) with the Claimant’s prior written consent.

  1. The materials in paragraph 17(c)(i) shall be provided to Mr Alsubaie as soon as possible, after which:

(a) D1+D2 are to use best endeavours to ascertain from him by 4.30pm on 30 October 2023 whether he requires further detail which goes beyond the assumptions provided to him in order to be able to prepare a response to Prof Mallat’s Confidential Annex dated 4 September 2023;

(b) Insofar as it is said that further detail is required, D1+D2 are to use best endeavours to inform the Claimant by 4.30pm on 1 November 2023 as to what details they propose to provide;

(c) If the Claimant objects to the proposed details, she should indicate whether such objection is total or propose a reformulation by 4.30pm on 3 November 2023 (or 2 working days after D1+D2 provide the proposed details, if that has not been possible on the timescale at (b) above);

(d) The parties shall seek to reach agreement by 4.30pm on 10 November 2023 (or 7 working days after receipt of C’s objection, if that has not been possible on the timescale at (c) above), and any agreed points put to the experts at that time;

(e) Any remaining disagreements will be referred back to Court for determination (including on the papers if the parties so agree or if the Court so directs) as soon as possible thereafter;

(f) Insofar as further detail or assumptions have been put or are thereafter put to the Defendants’ experts, the same shall be provided to Prof Mallat.

  1. The Defendants’ expert reports or confidential annexes which respond to Prof Mallat’s Confidential Annex to his second report shall be filed and served by 4.30pm on 24 November 2023.
  2. Insofar as further detail or assumptions have been put to the parties’ experts, then Prof Mallat shall respond to the Defendants’ expert reports or confidential annexes by 4.30pm on 8 December 2023. Such response shall be strictly limited to the further detail or assumptions and not other matters upon which he has already opined.
  3. The parties shall have liberty to apply to amend the dates in paragraphs 19 and 20 in the event that the dates envisaged in paragraph 18 are not able to be complied with or the timescale becomes unworkable, or if there are availability issues with the experts.

Notification

  1. This Order, the Order of Foxton J dated 6 October 2023, and the Orders constituting the Confidentiality Regime shall be published on the website of the Judiciary of England & Wales in accordance with CPR r39.2(5).
  2. The provisions of this Order shall be reconsidered at the February Hearing or such other hearing as the Court may in future determine is an appropriate time for such reconsideration, save that if an application is made by D1+D2 in accordance with paragraph 24 below and which is not an application within paragraph 25 below, that application will not be heard until after the substantive business (i.e. the jurisdiction challenges) at the February Hearing or thereafter.

Liberty to apply

  1. Until 16 November 2023, the parties shall have liberty to apply to vary or discharge this order (and/or the provisions of the Butcher Order and the Calver Consent Order varied by this order), without the need for a material change in circumstances. The D1 and D2 September Application shall stand adjourned for that purpose and shall, if maintained, be determined in accordance with paragraph 23 above.
  2. In the event that any such application under paragraph 24 seeks to amend the provisions of this Order so as to change the confidentiality regime in advance of the February Hearing or for the purposes of that hearing, that application should be listed for determination as soon as time permits, and in front of Mr Hancock KC (sitting as a Deputy High Court judge) insofar as he is available.
  3. The parties shall have liberty to apply on a material change of circumstances at any time.

Costs

  1. To the extent not already covered by paragraph 5 of the Order of Foxton J dated 6 October 2023, the costs of and occasioned by consideration of the Confidentiality Regime shall be costs in the Part 11 Applications.
  2. This Order shall be served by the Claimant.

Dated this 26th day of October 2023