Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz

The court may order a party to attend for cross-examination where that attendance is necessary for a fair trial. The existence of a foreign royal or governmental direction does not, without credible supporting evidence, establish that attendance is prohibited by foreign law or justify non-compliance with the court’s order.

In deciding whether to permit a very late amendment, the court must balance the prejudice and practical consequences for each party. An arguable defence may nevertheless be refused where introducing it immediately before trial would be oppressive, require an adjournment and impose disproportionate procedural and evidential burdens.

The claimant alleged that the defendant had agreed to pay £12 million and procure the transfer of two properties in return, among other matters, for a statutory declaration withdrawing allegations concerning the defendant’s late father, King Fahd.

On the first day of trial, the court considered whether the defendant should attend to give evidence despite a letter from the Saudi Arabian Embassy stating that Saudi royal family members could not give oral evidence in foreign proceedings. The court also considered the defendant’s application to amend his defence to plead illegality based on alleged inconsistency between the claimant’s statutory declaration and later evidence.

1. Attendance for cross-examination. The court had jurisdiction to order the defendant to attend under CPR 33.4. The reasoning in Polanski proceeded on the basis that such an order could be made and that failure to attend could result in exclusion of the witness statement. The court also had discretion under CPR 32.1 and under the overriding objective in CPR 3.

2. The Embassy letter merely asserted that attendance was impermissible under Saudi law and supplied no credible expert evidence substantiating that assertion. Previous cases involving members of the Saudi royal family, including Sharab v Al-Waheed, provided no support for the alleged rule. A personal direction from a member of the Saudi royal family likewise did not, without more, justify non-attendance.

3. Because the dispute turned substantially on an oral meeting, oral evidence and cross-examination were central to the court’s ability to assess credibility and reach a correct decision. The defendant was therefore ordered to attend court for cross-examination. The court indicated that questioning would be controlled courteously and that any hearsay statement not supported by oral evidence might receive reduced weight.

4. Late amendment. The proposed illegality defence was arguable, but that was insufficient. Applying the approach in Spear v Zynga, the court found that the amendment would be oppressive because it was sought only days before trial, would require further instructions, evidence and possible privilege decisions, and would necessitate an adjournment. The balance overwhelmingly favoured refusal.

5. The court preferred the established approach associated with Cobbold, under which a late amendment may be allowed unless the resulting prejudice cannot be accommodated. It considered the Court of Appeal’s approach in Mills & Reeves to be wrong and, in any event, the application failed under that approach’s requirement of a heavy onus. The application to amend paragraph 24B was refused.