Harb v Abdul Aziz [2015] EWHC 3155 (Ch)

Analysis

The claimant alleged the existence of an oral agreement between the claimant and the defendant whereby the defendant, a Royal Prince of Saudi Arabia, agreed to pay her £12m and to procure the transfer to her of two properties.

The claimant claimed that at some point prior to 1970 the late King had promised and assured the claimant that he would provide for her financially. When the late King was proclaimed King of Saudi Arabia in 1982, he was said to have repeated his promise to the claimant. The claimant later alleged that he failed to provide financially for the claimant, and in 2003 she intimated a claim under s27 of the Matrimonial Cause Act 1973. In relation to that proposed action, she swore an affidavit (the affidavit) in 2003. Those proceedings abated with the death of the late King in August 2005.

Against this background the claimant alleged that she, accompanied by a friend (Mrs Mustafa-Hasan), met with the defendant at the Dorchester Hotel on 19 June 2003. The claimant alleged that the defendant agreed orally that he was willing to honour the terms of the late King’s promise to provide financially for the claimant for the rest of her life and offered the sum of £12m and the transfer of the properties to her. In return the claimant was to withdraw ‘certain factual assertions’ she had made about the late King (the agreement).

The claimant claimed that, in performance of the agreement, she made a statutory declaration in 2003 (the statutory declaration) withdrawing assertions made in her affidavit. She arranged for a full written document to be prepared which was to be signed by the defendant and herself dealing with the agreement. However, the defendant refused to pay the money and procure the transfer of the properties.

The claimant’s primary case was that the agreement was made and she provided the consideration. Her secondary case was that, by requesting and receiving copies of the statutory declaration, the draft contractual agreement, and promises made in letters by her solicitor and barrister to keep confidential information provided to them by the claimant, the defendant became contractually bound to pay the money and procure the transfer of the properties (the alternative agreement).

The defendant resisted this allegation on that basis that no agreement had been completed. In the alternative he asserted that the alleged agreement was void for uncertainty (on the basis that the matters referred to as ‘certain factual assertions’ were too vague to be enforceable) or on the basis that the contract was illegal as to performance. This was justified on the grounds that the statutory declaration stated that she had ‘falsely accused’ the late King of misconduct, a statement which she did not believe to be true. In the further alternative the claim was defended on the basis that the defendant was acting as agent for the late King, and any claim against the late King or his estate was prevented by limitation. The defendant did not give live evidence at trial.

Held:

1. 1) As the defendant had not attended to give evidence, little or no weight should be given to his untested hearsay evidence (Civil Evidence Act 1995, s4). Where it conflicted with that of the claimant and Mrs Mustafa-Hasan, their evidence was to be preferred. In the circumstances it was not necessary to draw adverse inferences against the defendant.
2. 2) The courts are generally unwilling to hold a contract void for uncertainty, particularly where it has been partly performed. Intrinsic evidence is admissible to explain what expressions in the agreement mean. The statutory declaration and draft contractual agreement would readily be construed, and the allegation of voidness failed.
3. 3) The statement said to give rise the illegality was based on a statement of belief not a statement of facts. The statutory declarations is a substitute for any requirement in any act to provide an oath. This statutory declaration was not made pursuant to any statutory requirement. The Statutory Declarations Act was not caught by the Perjury Act 1911. There was no basis for suggesting that the claimant had made a false statement and therefore no question of illegality could arise.
4. 4) The defendant had failed to establish that he was acting as agent for the late King when he entered in to the negotiations and conclude the agreement. Where A contracts with B it is to be presumed absent anything else that they are the parties to the contract and they are the parties who can sue and be sued upon it. If B wishes to say that he contracted as an agent the burden is on him to establish that. This is a question of fact in each case. Even if the defendant had succeeded in establishing that he was an agent, he needed to show that by the law of agency he was to be held to have expressly or impliedly negatived his personal liability, and he had failed to do so. He was therefore personally liable on the contract.
5. 5) The claimants claim on the primary case succeeded. If this was wrong, the claim on the alternative agreement succeeded. An order for specific performance was made.

Introduction JUDGMENT PETER SMITH J:  [1] This is the trial of the claimant’s claim in this action. She claims an oral agreement made on or around 19/20 June 2003 between her and the defendant was concluded whereby the defendant agreed to pay her £12m and to procure the transfer to her of two properties in …

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