Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz

Where a civil claim turns substantially on disputed oral evidence, the judgment must address the essential issues, evaluate the principal challenges to credibility, test the evidence against contemporaneous documents and inherent probabilities, and explain the findings. A blanket preference for one witness is insufficient, particularly where evidence from both sides has significant weaknesses.

In deciding whether an alleged representative assumed personal contractual liability, the court must determine what the parties said and objectively understood about the capacity in which that person acted. The existence of general authority is not the decisive question.

Apparent bias is assessed objectively through the fair-minded and informed observer, who knows all relevant circumstances. Hostility towards an advocate does not, without more, establish a real possibility of bias against the advocate’s client.

The claimant alleged that the defendant Prince had orally agreed to pay her £12 million and procure the transfer of two properties if she withdrew allegations concerning the late King Fahd. Her primary case was that a binding contract arose during a meeting at the Dorchester Hotel. Alternatively, she alleged that it arose when the Prince later requested and received original documents prepared to implement the arrangement.

Peter Smith J found for the claimant on both bases and held that the Prince had contracted personally rather than as the King’s agent: [2015] EWHC 3155 (Ch). The Prince appealed, challenging the findings about the contract, personal liability, the treatment of his failure to attend for cross-examination, and apparent bias.

The central issues were whether the judge had adequately analysed the disputed evidence and the capacity in which the Prince allegedly acted, and whether the circumstances created an appearance of bias.

1. Appeal allowed and retrial ordered. The judge had failed to examine the evidence and arguments with the care required for a proper resolution of the issues. The deficiencies were sufficiently serious that the judgment could not stand. The claim was remitted to the High Court for retrial before a different judge.

2. Evidence on a disputed factual question which has not been tested in cross-examination will almost inevitably carry less weight. That fact did not, however, justify a blanket preference for the opposing witnesses whenever their accounts conflicted. The judge had to assess the evidence issue by issue, testing it against contemporaneous documents, other evidence and inherent probabilities. The judge also wrongly inferred, without adequately addressing the diplomatic correspondence, that the Prince had stayed away merely to avoid cross-examination.

3. Where a case largely depends on oral evidence and the credibility of a principal witness is challenged on several grounds, the judgment must address at least the principal challenges. It must identify the essential questions, analyse the significant strands of evidence and explain the findings. The trial judge did not adequately confront the serious problems with the claimant’s evidence, the possible interpretations of the documents, whether dealings were subject to contract, or whether the alleged agreement was intended immediately to create legal relations. Those omissions undermined the fairness of the trial.

4. The judge also asked the wrong question concerning agency. The material issue was not whether the Prince possessed general authority from the King. It was whether the claimant approached him in a representative capacity and whether anything said or done led her reasonably to understand that he assumed a personal obligation. That issue was inseparable from the questions of what was said and whether a binding agreement arose. It required detailed factual analysis which the judgment did not provide.

5. Although unnecessary to the disposition, the court rejected the apparent-bias ground. Applying Porter v Magill [2002] 2 AC 357, the question was whether the fair-minded and informed observer, considering all relevant circumstances, would find a real possibility of bias. The test was objective and differed from the subjective reaction of a litigant. Even if the judge’s letter indicated temporary hostility towards members of the Prince’s counsel’s chambers, hostility towards an advocate does not without more establish possible bias against the client. The chronology made it unrealistic to conclude that the challenged article had influenced the decision.

1. Court of Appeal (Civil Division): The appeal was allowed in [2016] EWCA Civ 556. The judgment below was set aside and the claim remitted to the High Court for retrial before a different judge. The separate allegation of apparent bias was rejected.
2. High Court, Chancery Division: Peter Smith J found that a binding contract existed on both the claimant’s primary and alternative cases and that the defendant was personally liable: [2015] EWHC 3155 (Ch).