Daad Sharab v HRH Prince Al-Waleed Bin Talal Bin Abdal-Aziz-Al-Saud (2009)
Although the Court of Appeal's discretion to receive fresh evidence applied to the acceptance of an undertaking, it declined an undertaking offered by a party challenging jurisdiction to submit to the jurisdiction of a foreign court. To accept the undertaking would produce a different situation to that considered at first instance, meaning that the court would effectively be exercising the judge's discretion afresh rather than reviewing it.
The appellant prince (P) appealed against a decision to refuse his application for a declaration that the English court had no jurisdiction to hear the claim of the respondent agent (S). S lived in Jordan, Libya and London, spending some three months a year in London. She ran a consultancy company, a major part of whose business was to effect introductions for clients in Libya. P was a Saudi royal, and told S that he wished to sell a private aircraft to the President of Libya. S had a meeting in London with a man (X) whom she understood to be P's representative. S said that they orally agreed that she would sell the aircraft to the president, and P would pay her $2 million commission. She said P later called her in London, instructing her to proceed with negotiations. S claimed that during negotiations for the sale in Libya, P and S orally agreed that if the aircraft sold for over $110 million, S's commission would be all sums over $110 million. The aircraft was sold for $120 million. P did not pay the commission, denying that X was his representative or that he was party to any relevant contract with S, and S brought proceedings in England, having been granted permission for service outside the jurisdiction. Dismissing P's application, the judge found that S had a good arguable case that the case fell within CPR r.6.20(5)(a) and (6) and that the appropriate forum for the trial was England. P argued that (1) the judge was wrong to find that the contract had been made in the jurisdiction; (2) he was wrong to find that the contract had been breached in England on the basis that London was the agreed place of payment; (3) the appropriate forum was Libya rather than England; (4) although he had not been prepared to give an undertaking before the judge to submit to the Libyan courts' jurisdiction, he was now prepared to do so.
(1) Sufficient had been agreed at the London meeting to create a binding contract, and there was a good arguable case that X had had authority to act on P's behalf. The later telephone conversation between P and S provided further evidence of that authority. The discussions in Libya gave rise to a variation rather than a new agreement. By that time, S had already carried out work under the London agreement, getting things to the point where P had taken the aircraft to Libya. In Libya, P and S had agreed a change to the previously agreed commission. The claim was in respect of a contract made in England even though it was subsequently amended in Libya, BP Exploration Co (Libya) Ltd v Hunt (No1) (1976) 1 WLR 788 QBD (Comm) applied. (2) There was insufficient evidence to establish that London was agreed as the place of payment: the parties had discussed payment but P had not accepted an obligation to pay in London and not elsewhere. However, that was not fatal to S's overall case: the contract having been made within the jurisdiction was sufficient. (3) The links between the claim and England were not tenuous or accidental. It was more than chance that the agreement was made in London: S spent three months a year and had had several meetings with X there, and P had substantial business interests there. The judge had also been entitled to find that London was a convenient venue for S, P and X; he had also given valid reasons for rejecting as unconvincing the submission that a trial in Libya was favoured by considerations of language and witnesses' location. He had also been entitled to take into account the absence of an undertaking by P to submit to the jurisdiction of the Libyan courts: it was P's case that Libya was the appropriate forum, so it was for him to show that the Libyan courts would be able to exercise jurisdiction against him. Moreover, unless P gave the undertaking, there could be no assurance that a Libyan judgment would be enforceable in England: the judge was entitled to treat the enforceability of an English judgment as favouring England as the appropriate forum, International Credit & Investment Co (Overseas) Ltd v Adham (Share Ownership) (1999) ILPr 302 CA (Civ Div) applied. (4) P's undertaking was declined. Although the court's discretion to receive fresh evidence applied to the acceptance of an undertaking, P had had a clear opportunity to give the undertaking before the judge and had taken a considered decision not to do so; it was open to him to take that position, but he must have appreciated the risk that he might have no subsequent opportunity. Moreover, his position had had an effect on the arguments before the judge and on appeal. To allow an undertaking to be given now would produce a different situation from that considered by the judge and would make it necessary to give the parties an opportunity to address fresh argument to the court. The court would then effectively be exercising the discretion afresh, and that departure from the normal approach was inappropriate in the instant case.