Home Information Cases Al-Bassam v Al-Bassam (2004)

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Al-Bassam v Al-Bassam (2004)

Summary

The claimant widow (L) appealed against a decision refusing her applications for disclosure by the defendant (Y), half-brother of the deceased (D), a national of Saudi Arabia, of all the assets of D in his possession or control and to restrain Y from dealing with any asset that formed part of D's estate.

Facts

L further appealed against the refusal of her application to amend her particulars of claim to include a claim based on constructive trusteeship. Y appealed against a decision that restrained him from continuing with Saudi Arabian proceedings and from instituting further proceedings in Saudi Arabia for the purpose of establishing his right to succeed to assets comprised within D's estate, wherever situated. D by a will had left the whole of his estate to L. However, Y claimed to be entitled to the whole of D's estate under the Sharia law of inheritance. A consolidated succession and probate claim was brought by L to determine whether D had died domiciled in England or India as, if so, L would be entitled to the whole of the estate under the terms of the will. However, if D had died domiciled in Saudi Arabia (as Y contended) or in Iraq, L's claim as sole beneficiary under the will would have effect subject to Sharia law so she would be entitled to one-third of D's estate. The principal issues to be determined in the consolidated action concerned where D had been domiciled and the substantive validity of the will under Sharia law. Pending determination of those issues, L made her unsuccessful applications for disclosure of assets and restraint by Y and to amend her claim. Y commenced proceedings in the Sharia court in Saudi Arabia. L's application to restrain Y from continuing with the Saudi Arabian proceedings was granted, against which Y appealed.

Held

(appeals allowed in part) (1) The judge had been correct to refuse L's applications for disclosure of assets, restraint on dealing with assets and for the provision of authority to enable L to have access to overseas assets. However, L should have been allowed to amend her particulars of claim to enable her to pursue at trial a claim based on constructive trusteeship. There was no reason why L had been denied the opportunity to amend. (2) A final order that indefinitely or perpetually restrained Y from continuing his Saudi Arabian proceedings was not appropriate and was set aside. The judge had been correct to express concern that a foreign judgment, given in proceedings which in the view of an English court did not meet the requirements of a fair trial, would not be recognised here, but the issue as to fairness could not arise until the foreign judgment had been given. An English court's restraint of a party from continuing foreign proceedings, either through fear that the proceedings would not result in a fair trial or that if that fear was well founded and it would not be able to recognise that foreign judgment, went beyond what was necessary to protect the English court's process. It was not for an English court to restrain a party in proceedings before it from suing in another jurisdiction on the ground of its own perception as to the fairness or unfairness of the proceedings in the other jurisdiction where the country in which the party sought to sue was not itself bound by the European Convention on Human Rights 1950. Accordingly, the judge's reasoning had been seriously flawed. An interim restraint was imposed until after determination by the High Court or other order of the threshold issues of due execution and domicile. A limited restraint of that nature deprived Y of no legitimate advantage and was necessary to protect the process of the English court from misuse.

Court of Appeal
Sir Andrew Morritt VC, Chadwick LJ, Carnwath LJ
Judgment date
1 July 2004
References

​[2004] EWCA Civ 857; LTL 1/7/2004 : Times, July 22, 2004