HRH Prince Fahad Bin Sultan Al Saud & Anor v David Eden & Anor

MR JUSTICE MARCUS SMITH:

1. I have before me an application for urgent interim relief made by the claimants His Royal Highness Prince Fahad Bin Sultan Al Saud and Premium Big Continental Inc. I shall refer to them as (the “Claimants”) against Mr David Eden and Mr Geoffrey Wayne Bouchier of Kroll who are receivers appointed by First Abu Dhabi Bank PJSC. I shall refer to the defendants as (the “Receivers.”)

2. As the receivers understand it, and has been made clear in submissions before me today, the Claimants do not challenge the existence of the loan, the security, the fact that there was a default, nor indeed the appointment of the Receivers. As is well-known, and indeed obvious, the Receivers have a primary duty to seek to recover the sums due to the lender which obliged them to take active steps towards that goal, and that is what they have done. They have entered upon and taken possession of a property which is land and buildings on the Wentworth Estate, Virginia Water (the “Property”).

3. The Property is described in the written submissions of the claimants, but I do not need to specifically describe it, save to say that it contains very valuable and personal possessions of the first claimant, and the residence itself is a palatial residence connected to a smaller residence which has resident caretakers and constant security, but does not have, and has not had for some time, any personal attendance by the first claimant or his family. There is a suggestion that they might want to use the property at Christmas, but that was made orally by counsel for the Claimants.

4. So we have a situation where the Receivers are in possession of the Property and are going about their duties as receivers. It is this that is objected to and which is sought to be enjoined by the Claimants.

5. The Claimants have moved on extremely short notice. The documentation before the court is in a highly unsatisfactory state, in that I have received, in the course of the hearing, the bundle, and read the written submissions on the hoof during the course of this hearing. I have had the benefit of submissions from the Receivers’ counsel, who were made aware of the application and have been engaged in discussions with the Claimants as to how the Claimants’ concerns about the process of the receivership should be conducted might be addressed. To that end, the parties have discussed whether certain undertakings could be agreed to hold the ring until the return date, as counsel for the Claimants has described it, or until an inter partes hearing, as it more accurately should be described, can be fixed, so that the court can make an interlocutory order, if so advised, on the basis of cards on the table from both the Claimants and the Receivers.

6. The Receivers make the perfectly fair point, drawing on the Chancery Guide, that injunctions like this should only be sought in really clear-cut cases where the need is demonstrable. In this case, there is no such demonstrated need. I am not going to debate today the first element of the American Cyanamid test. I am going to assume, although this is going to be contentious, that there is a serious issue to be tried, but I assume that simply because I consider the answer to this application is clear-cut on the basis of the question of damages being an adequate remedy.

7. The basis of the application is really that there is a risk that the Receivers will, in breach of their duties as receivers, in some way, damage or harm the valuable antiques and ornaments displayed all around the property, injure items which hold sentimental value, like priceless gifts from the King of Spain and Queen Elizabeth, or leaf through papers of the Claimants which are sensitive and private.

8. It is quite clear that to do all of this would be a breach of the Receivers’ duties, which is simply to realise assets, and so the entire basis of the application, it seems to me, is flawed, in that there is no real risk of the damage contemplated in the written submissions of the Claimants, unless the Receivers breach their duties. There is no evidence – none – that that is even likely to be on the cards. Indeed, that would be a very serious allegation to make, and it has not been made. So it seems to me that this application is a chimera.

9. If something goes wrong and property is damaged, then there is a remedy against the receivers in the ordinary way, but I do not consider that that contingency, which I consider to be remote, should be anticipated by an injunction sought in this short timeframe, effectively ex parte on notice.

10. The real reason I think this application is being moved is the question of privacy. This is stressed in the statement of the first claimant, particularly at paragraph 11: “I’m extremely concerned,” he says “that the defendants, who are complete strangers, considered it lawful to break into my private property. I have various personal belongings”; and those are then set out.

11. Now, the phrase “breaking in” is a tendentious way of describing the breaking of a padlock that secured the gates, and which would have to be done in order to get access to the Property. After that, although it is fair to say, on the material that I have been informed of, the taking of possession was not pleasing to the security guards present, and the police were involved, the idea of violence or damage being done is something that has not, as yet, been established, and is not something that I can take as being the case, and so it seems to me the reason this matter has been moved is to ensure that no-one sets foot into the property on grounds of privacy.

12. Now, privacy ought, of course, to be respected, it is a protected human right, but the price you pay for defaulting on your obligations is the enforcement of security, and I am afraid that the Claimants must pay the price of defaulting on their obligations by having a security enforced in the way it has been. It seems to me that this question of privacy, not that it has been moved before me as a reason for making an injunction, is not, in itself, a good reason for making any interim order. So for all those reasons, the application for interim interim relief is refused. --------------- This transcript has been approved by the Judge