Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz, Court of Appeal - Civil Division, June 16, 2016, [2016] EWCA Civ 556

Resolution Date:June 16, 2016
Issuing Organization:Civil Division
Actores:Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz
 
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Case No: A3/2015/4115 & 4115(A)

Neutral Citation Number: [2016] EWCA Civ 556

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Mr. Justice Peter Smith

[2015] EWHC 3155 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/06/2016

Before:

THE MASTER OF THE ROLLS

LORD JUSTICE MOORE-BICK

and

LORD JUSTICE McFARLANE

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Between:

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Lord Grabiner Q.C., Mr. Ian Mill Q.C. and Miss Shaheed Fatima Q.C. (instructed by Howard Kennedy LLP) for the Appellant

Mr. Charles Hollander Q.C. and Mr. Ian Clarke Q.C. (instructed by Hughmans) for the Respondent

Hearing dates: 16th & 17th May 2016

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JudgmentThe Master of the Rolls

  1. This is the judgment of the court.

    Background

  2. This is an appeal against the judgment of Peter Smith J. in favour of Mrs. Janan Harb, against Prince Abdul Aziz bin Fahd, a member of the Saudi royal family and son of the late King Fahd, on her claim to enforce the performance of a contract to pay her the sum of £12 million and to procure the transfer to her of the title to two properties in Cheyne Walk, Chelsea (``the properties'').

  3. Mrs. Harb was born in Palestine to Christian parents. In 1967 she moved to Jeddah where she met the man who was later to become King Fahd of Saudi Arabia and who at that time was Minister of the Interior. According to Mrs. Harb they were married in early 1968 after she had converted to Islam, but relations between her and other members of the royal family deteriorated and in 1970 she left Saudi Arabia and eventually moved to the United States. Prince Fahd became King in 1982. Despite two subsequent marriages, one of which was annulled and one terminated by divorce, Mrs. Harb continues to maintain that in the eyes of shari'a law she remained married to the King, who had never divorced her. In 1995 King Fahd suffered a stroke and became partially incapacitated.

  4. By about 1999 Mrs. Harb's finances were at a low ebb. She met the Prince in Marbella in the autumn of 1999 or the summer of 2000, explained her difficulties and told him that she was thinking of publishing her autobiography. Not surprisingly, the prospect of her disclosing details of her relationship with the King caused some concern in the royal household. It appears that on the King's instructions the Prince arranged for one of his staff, Mr. Faez Martini, to negotiate terms. As a result, on 1st March 2001 Mrs. Harb entered into an agreement in the form of a deed with Mr. Faez Martini, acting as agent for an ``Undisclosed Principal'', under which, in return for a banker's draft for an undisclosed sum, she assigned to him the whole of her interest in the documents and information in her possession relating to her relationship with the King. She also agreed not to publish any biography or memoirs relating to such matters in the future. The agreement was expressed to be made in full and final settlement of all and any claims which Mrs. Harb had, or might in the future have against the King. The banker's draft was for £5 million.

  5. Despite the receipt of this substantial amount of money, by 2003 Mrs. Harb's finances were again in a parlous condition. She insisted that the King had promised to maintain her in a comfortable and dignified style of life and that she continued to have a claim upon him. Accordingly, she approached him through her solicitors and sought to engage his sympathy and to persuade him to pay her £12 million in full and final settlement of her claims. Having failed by that means to persuade the King to provide further financial support, on 7th May 2003 Mrs. Harb made an affidavit for the purposes of an application to the High Court under section 27 of the Matrimonial Causes Act 1973. The affidavit contained a detailed description of her relationship with the King, including matters of an intensely personal nature relating to his use of drugs and her termination of several pregnancies. A copy of that affidavit was sent to the King by her solicitors under cover of a letter of the same date.

  6. In June 2003 Mrs. Harb learnt through Mr. Martini that the Prince would be staying in London later that month. She said that she made an appointment with his secretary to see him on the morning of 19th June at the Dorchester Hotel where he was staying, but that when she arrived the Prince was unavailable and she was told to return in the evening. She said that she and a close friend, Mrs. Hama Mustafa-Hasan, had returned to the Dorchester that evening at about 6.00 pm, where they waited in the lobby for an opportunity to speak to the Prince. It was Mrs. Harb's case that when he entered the hotel in the early hours of 20th June she approached him and engaged him in conversation, in the course of which he agreed that, if she withdrew her allegations against the King, he would pay her £12 million and arrange for the properties to be transferred to her. The Prince, however, denied that any conversation of that kind had taken place. He said that Mrs. Harb had accosted him as he passed through the lobby on the way to his car, that he had not paused to speak to her and that the whole encounter had lasted no more than a minute. He said that he had told her that he would not speak to his father again on her behalf until she had withdrawn her lies about him. He then left the hotel.

  7. What is not in dispute, however, is that on the morning of 20th June 2003 Mrs. Harb went to see her lawyers, Mr. Philip Marshall and Mrs. Sara Simon, accompanied by Mrs. Mustafa-Hasan. She told them that she had made an oral agreement with the Prince the night before by which she was to retract the comments in her affidavit about the King's drug-taking and in return she would receive £12 million and the properties. She said that it had also been agreed that the lawyers would provide independent confirmation that they would not divulge any information that she had given to them about her relationship with the King. At Mrs. Harb's request, Mr. Marshall prepared documents to give effect to the agreement. These comprised a formal contract for signature by Mrs. Harb and the Prince, a statutory declaration for execution by Mrs. Harb and confidentiality letters to be signed by Mrs. Simon and himself. In her statutory declaration Mrs. Harb said that upon reflection she had been wrong to make ``certain allegations'' against the King and in particular to suggest that he had become addicted to illegal drugs. She said that she wished to apologise unreservedly for the fact that she had falsely accused His Majesty of misconduct and misbehaviour that she now accepted was untrue.

  8. Mrs. Harb said that later that day she and Mrs. Mustafa-Hasan went to the Dorchester Hotel again where she handed Mr. Martini an envelope containing copies of the documents. She also said that she had delivered a second set of copy documents to the Prince personally at the Dorchester Hotel during the afternoon of 22nd June and that he had promised to consider them and respond to her within a few days. On 26th June her solicitors wrote to the Prince enclosing yet further copies of the documents and seeking a response. They received no reply, but she said that about a week later Mr. Martini had telephoned her to say that the Prince wanted the original documents rather than just the copies. Chasing letters were sent by Mrs. Harb's solicitors to the Prince on 7th and 15th July 2003. They elicited no response, but Mrs. Harb said that two or three weeks later Mr. Martini had telephoned her asking again for the original documents. She said that with some reluctance she had asked Mrs. Mustafa-Hasan to deliver them to the Prince's London address.

  9. Mrs. Harb said that she spoke to the Prince twice when he was next in London at the end of August 20013 staying at the Landmark Hotel. She said that on the second occasion he had said he would look at the papers and arrange matters for her. Despite all that, however, he failed either to pay her the agreed sum of £12 million or make arrangements to transfer the properties into her name. This account of events which occurred between June and August 2003 was not accepted by the Prince or Mr. Martini. In particular, the Prince denied that he had asked for or received the original documents or that there had been any meeting between Mrs. Harb and himself at the Landmark Hotel. He said that he had never stayed there. The contract was never signed by the Prince.

    The proceedings

  10. Mrs. Harb was declared bankrupt on 1st May 2008. The present proceedings were issued by her trustee in bankruptcy on 15th June 2009, shortly before the limitation period expired, but have since been taken over by Mrs. Harb, to whom the claim has been assigned. In these proceedings, Mrs. Harb seeks to enforce, or obtain damages for breach of, an agreement said to have been made between herself and the Prince at the Dorchester Hotel on 19th June 2003, by which, in consideration of her agreeing to withdraw, and then withdrawing, certain factual assertions she had made about King Fahd, he would pay her the sum of £12 million and procure the transfer to her of the properties. It is alleged that the Prince entered into the agreement in a personal capacity ``in order to satisfy the promises and assurances given by King Fahd to Mrs. Harb to provide for her financially for the rest of her life.''

  11. In the alternative, it is alleged that, following the exchange in the Dorchester Hotel and the delivery of the copy documents, by requesting and receiving the original documents, the Prince became contractually bound to pay the sum of £12 million to Mrs. Harb and to procure the transfer of the properties to her.

  12. By his re-amended defence the Prince contests virtually the whole of Mrs. Harb's claim. In particular, although he admits that Mrs. Harb accosted...

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