The Public Institution for Social Security v Fahad Maziad Rajaan Al-Rajaan

• Jurisdiction: Bahamas
• Judge: Charles J
• Judgment Date: 15 November 2021
• Court: Supreme Court (Bahamas)
• Docket Number: 2020/CLE/gen/00976

IN THE SUPREME COURT

Before:

The Honourable Madam Justice Indra H. Charles

2020/CLE/gen/00976

IN THE MATTER OF THE RECIPROCAL ENFORCEMENT OF JUDGMENT ACT,

IN THE MATTER OF AN ORDER OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES OBTAINED IN CLAIM NO. CL/2019-000118 DATED 16 OCTOBER 2019 AND SEALED BY THAT COURT ON 21 OCTOBER 2019

IN THE MATTER OF AN ORDER OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES OBTAINED IN CLAIM NO. CL/2019-000118 DATED 9 JUNE 2020 AND SEALED BY THAT COURT ON 11 JUNE 2020

IN THE MATTER OF AN ORDER OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES OBTAINED IN CLAIM NO. CL/2019-000118 DATED 23 JULY 2020 AND SEALED BY THAT COURT ON 23 JULY 2020

IN THE MATTER OF AN ORDER OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES OBTAINED IN CLAIM NO. CL/2019-000118 DATED 20 DECEMBER 2019 AND SEALED BY THAT COURT ON 21 JANUARY 202

IN THE MATTER OF AN ORDER OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES OBTAINED IN CLAIM NO. CL/2019-000118 DATED 23 JULY 2020 AND SEALED BY THAT COURT ON 21 JANUARY 2021

IN THE MATTER OF AN ORDER OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES OBTAINED IN CLAIM NO. CL/ 2019-000118 DATED 7 SEPTEMBER 2020 AND SEALED BY THAT COURT ON 21 JANUARY 2021

Between

The Public Institution For Social Security

Plaintiff

and

Fahad Maziad Rajaan Al-Rajaan

Defendant

Appearances:

Mrs. Courtney Pearce-Hanna and Ms. Philisea Bethel of Callenders & Co. for the Plaintiff

Mrs. Tara Archer-Glasgow with Mr. Audley Hanna Jr. and Mr. Trevor Lightbourn of Higgs & Johnson for the Defendant

Conflict of laws- Foreign judgment - Registration - Whether statute permitting registration of foreign judgment based on foreign judgment – Whether statute applies only to final and conclusive judgment – Public policy – Reciprocity - Grant of interlocutory injunctions – Whether a substantive cause of action is required for the grant of interlocutory injunction – Section 21 (1) Supreme Court Act – Whether the Supreme Court has jurisdiction to grant interlocutory injunction in aid of foreign proceedings

By Ex-Parte Originating Summons (the “OS”) filed on 30 September 2020, the Plaintiff applied under the Reciprocal Enforcement of Judgments Act, 1924 (as amended) (“the Act”) to register a worldwide freezing injunction against the Defendant to freeze assets which was granted by the English High Court in the Plaintiff's action against the Defendant in England. The OS was supported by the affidavit of Nicholas James Christopher Haworth filed on 6 October 2020 and the affidavit of Simone Morgan-Gomez filed on 27 November 2020. The OS was amended on 26 May 2021 to include a variation to the previous order. The variation orders in the English Court are dated 20 December 2019, 9 June 2020 and 7 September 2020.

In so far as the Defendant says that he does not oppose/resist the application and, is neutral, his attorneys have vehemently argued against the registration of the worldwide freezing order in the jurisdiction. They objected to the Plaintiff's application to register the worldwide freezing order for three primary reasons: (i) the worldwide freezing order is not registrable under the Act because it is an interlocutory and not a final and conclusive judgment on the merits of the underlying dispute; (ii) the lack of jurisdiction of the Bahamian Court to grant free-standing injunctive relief in aid of foreign proceedings; and (iii) there is no substantive cause of action against the Defendant in this jurisdiction, which is a fundamental condition for the grant of interlocutory injunctions per Siskina (owners of cargo lately laden on board) and others v Distos Compania Naviera SA (“The Siskina”) [1979] AC 210.

The Defendant also challenged the Orders sought on the grounds of (i) the First English Order does not relate to the assets of the Defendant or entities possessed with them as the Defendant is not within the jurisdiction and any registration of the Order lacks any intelligible means of enforcement in The Bahamas. Further, as one of the objectives of the Act is to achieve reciprocity with jurisdictions such as the United Kingdom, since the United Kingdom would not permit the recognition of a foreign Bahamian interlocutory injunction, there would be no reciprocity in permitting the recognition of an injunctive order from the United Kingdom.

HELD: granting the Plaintiff's application to register the worldwide freezing order granted by the High Court of Justice of England and Wales with costs to the Plaintiff to be taxed if not agreed.

• 1. Section 3 of the Reciprocal Enforcement of Judgments Act provides for the registration of both final and interlocutory judgments and orders — Convoy Collateral Ltd. v Broad Idea International Ltd. And Cho Kwai Chee [2021] UKPC 24 applied; Yearwood v Yearwood and Strategic Technologies Pte Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2021] 2 WLR 448 considered. It is therefore not necessary to consider the common law but the Act on its own terms and in the light of the purpose of the legislation; the Act permitted registration of a judgment given by a court which had adjudicated on the merits of the underlying claim.

• 2. The grant of interlocutory injunctions does not require a substantive cause of action — Convoy Collateral Ltd. v Broad Idea International Ltd. And Cho Kwai Chee [2021] UKPC 24 applied; Siskina (owners of cargo lately laden on board) and others v Distos Compania Naviera SA (“The Siskina”) [1979] AC 210 disapproved; Mercedes-Benz A.G. v Leiduck [1995] 3 All ER 929 disapproved;

• 3. There is no reason why section 21(1) of the Supreme Court Act cannot be used to grant injunctions (final or interlocutory) in aid of foreign proceedings — Convoy Collateral Ltd. v Broad Idea International Ltd. And Cho Kwai Chee [2021] UKPC 24 applied;

• 4. The test to be applied in determining whether to register a foreign judgment or order is whether in the circumstances of the case, “it is just and convenient” that the judgment or order be enforced in The Bahamas: section 3 of the Act.

• 5. The Court is merely concerned with whether it is just and convenient to register a judgment under the Act which is not the same as the grant of a free-standing freezing injunction. The fact of the matter is that the Court is not granting a free-standing freezing injunction; the effect of registration on Bahamian public policy was clearly not a matter of ongoing or primary concern for Parliament.

• 6. Reciprocity does not mean equality in all respects or in all substantial respects between the laws of two countries: Dixon CJ in Railway Comr. v. Romeo [1962] ALR 579 relied upon. Indeed, there is reciprocity between the United Kingdom and The Bahamas because the Governor-General has declared it so.

Charles J

Introduction

1 Pursuant to section 3 of the Reciprocal Enforcement of Judgments Act, 1924 (as amended) (“the Act”), The Public Institution for Social Security (“the Plaintiff”) applies to register a Worldwide Freezing Order (“WFO”) and a Variation Order (collectively “the Orders”) made by the High Court of England & Wales (the “English High Court”) against Fahad Maziad Rajaan Al-Rajaan (“the Defendant”).

2 The application, commenced by Ex-Parte Originating Summons (“the OS”) and filed on 30 September 2020, was supported by the affidavit of Nicholas James Christopher Haworth filed on 6 October 2020 and the affidavit of Simone Morgan-Gomez filed on 27 November 2020. The OS was amended on 26 May 2021 to include a variation to the previous order. The variation orders in the English High Court are dated 20 December 2019, 9 June 2020 and 7 September 2020 respectively.

3 Although the Defendant says that he does not resist/oppose the Orders and he remains neutral in these proceedings, his Counsel has vehemently challenged the application arguing against its registration once the Plaintiff satisfies the Court that it has the ability to enforce the WFO in The Bahamas in accordance with the laws of The Bahamas.

4 For reason which will became more apparent momentarily, I will grant the Order sought by the Plaintiff to register and domesticate the Orders of the English High Court against the Defendant in the same manner as they would otherwise be enforceable had the Orders been made by this Court.

Background facts

5 The background facts are agreed between the parties. The Plaintiff is a Kuwaiti public institution created and authorised by the law of Kuwait to operate the State of Kuwait's social security and pension system. The Plaintiff's usual place of business is in Kuwait.

6 The Defendant was the Director General of the Plaintiff from 1994 to 2015. His last known place of abode or business is in London, United Kingdom.

7 The Plaintiff commenced proceedings in England against the Defendant by Case No. CL-2019–000118 (“the English proceedings”) claiming relief in respect of what it alleges are unlawful payments by various financial institutions and intermediaries of unauthorised secret commissions. They are alleged to have been procured by the Defendant. In a nutshell, the Plaintiff claimed to have a proprietary claim against the Defendant. The Defendant denies the claims and challenges the basis on which the proceedings are brought.

8 On 16 October 2019, the English High Court granted a WFO against the Defendant, freezing his assets worldwide and making certain disclosure orders. By the WFO, the Defendant is prevented from disposing any of his assets held (legally or beneficially) by the Defendant, or which are within his control anywhere in the world up to the value of $847.7 million. The application was done on notice to the Defendant.

9 Subsequently, the English High Court varied the WFO to provide for the Defendant's payment of medical expenses and living expenses and to include additional assets to which the WFO applies.

10 The Defendant consented to the Plaintiff seeking to...