Limited Permission To Appeal Granted In Respect Of A Decision Granting Permission To Bring A Counterclaim Challenging An Earlier Judgment (Ras Al Khaimah Investment Authority v Azima And Ors)

• Published date: 30 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gatehouse Chambers
• Author: Mr Phillip Patterson

Dispute Resolution analysis: Mr Justice Michael Green has given limited permission to appeal his judgment of 1 November 2022 in which he permitted the Defendant to add an additional counterclaim seeking to set aside an earlier judgment on the basis of fraud.

Ras Al Khaimah Investment Authority v Azima and ors [2022] EWHC 2980 (Ch)

What are the practical implications of this case?

Although the parties agreed that this appeal would not disrupt the case management directions applicable in this case and would not jeopardise the trial listed for May 2024, it adds a further layer to what is already a strikingly protracted piece of litigation. It provides an opportunity for the Court of Appeal to consider what it had intended when remitting a matter back to the lower Court. In particular, whether the Court of Appeal had sought to prevent a an earlier judgment from being challenged on any basis or whether there remained a residual power to apply to set it aside on the basis of fraud. The Court of Appeal is likely to offer useful guidance on this particular aspect of the law on abuse of process and the extent to which, in practical terms, fraud can be said to trump all.

What was the background?

The Claimant, ('RAKIA') is the Sovereign wealth fund of Ral Al Khaimah, a composite part of the United Arab Emirates. RAKIA issued proceedings against Mr Azima, a US-based businessman involved in the aviation industry, for fraudulent misrepresentation in relation to a settlement agreement compromising various claims pursuant to which RAKIA paid $2.6 million to Mr Azima. Mr Azima denied the claims and alleged by way of defence and counterclaim that his email accounts and data had been unlawfully hacked by RAKIA prior to the settlement meeting and that data had been used against him. Mr Azima argued that the claim should be struck out for abuse of process or the evidence itself should be excluded. RAKIA denied that it was responsible for the hacking and claimed that it only discovered the hacked material when it was published on the internet. At a trial before Andrew Lenon QC (sitting as a Deputy High Court Judge), RAKIA's claim succeeded and the defence and counterclaim based on the allegations of hacking failed. Mr Azima appealed. The Court of Appeal rejected Mr Azima's appeal against RAKIA's claims but, in light of fresh evidence suggesting RAKIA's responsibility for the hacking, allowed the appeal in relation to the counterclaim and remitted the matter to be tried by a...