Court of Appeal rejects abuse of process argument

16/05/23

In 2016, the sovereign wealth fund of Ras Al Khaimah (RAKIA) brought proceedings against Mr Farhad Azima, alleging that he was liable in fraudulent misrepresentation and conspiracy.  Mr Azima denied those allegations on their merits.  He also alleged that RAKIA had hacked his emails and other confidential data, and had placed it on websites as a pretext for its possession of the data, bringing a counterclaim.

Following a trial in 2020, Mr Andrew Lenon QC (sitting as a Deputy Judge of the High Court) found Mr Azima liable in respect of misrepresentation and conspiracy, but found that RAKIA’s liability for the hacking had not been established, and dismissed Mr Azima’s counterclaim (see here).

In an appeal (heard in March 2021), the Court of Appeal (Lewison, Males and Asplin LJJ) rejected Mr Azima’s appeal against the judgment upholding RAKIA’s claims (see here).  However, the Court of Appeal upheld Mr Azima’s appeal against the dismissal of the counterclaim, on the basis of new evidence relevant to RAKIA’s liability for the hacking.  It stated that while Mr Azima could pursue that counterclaim, the findings made in respect of RAKIA’s claims would stand irrespective of the outcome of that counterclaim.

Mr Azima’s counterclaim was remitted to the Chancery Division for retrial, which is due to be heard in 2024.  Mr Azima joined as defendants to the counterclaim several other parties.  These include: a private investigator, Mr Stuart Page; Mr Neil Gerrard, who had acted as RAKIA’s solicitor (now retired); Dechert LLP, the firm in which Mr Gerrard was a partner; and Mr James Buchanan, who had the management of RAKIA’s affairs.  In 2022, RAKIA withdrew its instructions to its solicitors and has since ceased offering any defence to Mr Azima’s counterclaim.

In 2022, following a settlement with Mr Page, Mr Azima obtained new evidence from him.  Mr Azima then sought to amend his counterclaim, so as to bring proceedings against RAKIA seeking to have the Deputy Judge’s judgment on RAKIA’s claims set aside on the grounds that that judgment had been obtained by fraud.  RAKIA (having ceased defending the proceedings) did not oppose this course of action, but Mr Gerrard, Dechert, and Mr Buchanan did on the grounds of jurisdiction, abuse of process and materiality.

The assigned judge, Mr Justice Michael Green, rejected that opposition, and found that the High Court had jurisdiction, there was no abuse of process, and that Mr Azima had real prospects of succeeding in satisfying the conditions for overturning the judgment in RAKIA’s favour (see here).  However, the judge granted permission to appeal on the ground of abuse of process (see here). Mr Gerrard, Dechert and Mr Buchanan accordingly appealed, arguing that to allow the set aside action to proceed would constitute an abuse of process, given that the Court of Appeal’s earlier 2021 judgment had dismissed Mr Azima’s appeal against the Deputy Judge’s judgment on RAKIA’s claims, and had said that his findings would stand.

In a judgment given on 15 May 2023, the Court of Appeal (Flaux C, Newey and Birss LJJ) unanimously rejected the appeal.  The judgment addresses the principles and authorities on abuse of process, and appeals against findings as to abuse of process.  The Chancellor held that it was clear that the Court of Appeal in its 2021 judgment did not intend there to be an absolute prohibition on a future claim by Mr Azima to set aside the judgment of the Deputy Judge as having been procured by fraud.   He went on to hold that the case Mr Azima now wishes to pursue is founded on a raft of new and potentially material evidence he has only recently obtained, such that he has not previously had a full opportunity to ventilate his case in Court.

The Court of Appeal’s judgment is available here.