Apex Global Management Ltd & Anor v Fi Call Ltd & Ors

This supplemental judgment determines whether three sums paid by HRH Prince Abdulaziz into bank accounts of Fi Call Limited (the "Al Masoud moneys") should be treated as having discharged the Prince's obligation to account to the Apex Parties or instead as loans/subscriptions. The court held that, on the balance of probabilities, the Liquidator's investigation and newly produced bank payment instructions supply the necessary evidence that the payments were intended as remittances in respect of the Al Masoud share purchase moneys and thereby constituted an accretion to Fi Call's funds on behalf of Mr Almhairat/Apex. The court concluded it was necessary and appropriate to determine that issue as part of the Counterclaim under sections 994–996 of the Companies Act 2006 and therefore to set aside the Default Judgment against the Prince to avoid double recovery.

The court admitted the Liquidator's report and bank documentation into the record, applied the usual civil standard of proof (balance of probabilities) to the factual issues, and found that the Apex Parties had failed to advance a credible alternative factual account. The Prince's separate application to set aside the Default Judgment was allowed as a corollary of these findings. Costs issues (including costs in the Supreme Court) were reserved for further submissions.

This is a supplemental judgment arising from protracted proceedings concerning three payments made by HRH Prince Abdulaziz into Fi Call Limited's bank accounts (the "Al Masoud moneys"). The dispute concerned whether those payments discharged the Prince's obligation to account to the Apex Parties or were instead loans/subscriptions. The hearing followed a Main Judgment and intervening appellate steps; the court directed the Liquidator to investigate and report.

Background and parties:

• Petitioners: Apex Global Management Limited and Faisal Almhairat (the Apex Parties).
• Respondents: Fi Call Limited, Global Torch Limited, HRH Prince Abdulaziz, Emad Abu-Ayshih and HRH Prince Mishal.
• There was an outstanding Default Judgment against the Prince in favour of Apex in respect of part of the Al Masoud moneys and an application by the Prince to set that Default Judgment aside.

Nature of the applications / relief sought:

• The main issues were whether the question should be determined as part of Global Torch's Counterclaim and the section 994/996 relief, whether the Default Judgment should be set aside (including by the Prince in his own application), whether fraud grounds could alternatively be invoked, what should be done with the sums held to the court's order, and costs.

Issues framed by the court:

1. Whether it was necessary and appropriate to determine the Al Masoud moneys issue as part of the Counterclaim despite the Apex Parties' prior non‑participation and an extant Default Judgment.
2. Whether the Default Judgment should be set aside and who should receive the funds held in solicitor's account.
3. Whether the Prince could alternatively seek to set aside the Default Judgment on grounds of fraud.
4. How to deal with the US$8,699,958 held to the order of the Court.
5. What order should be made as to costs (including Supreme Court costs).

Court's reasoning and conclusions:

• The court held that, in the exceptional circumstances of this case, the issue as to the Al Masoud moneys was a matter necessary for "giving relief in respect of the matters complained of" under section 996 and thus could properly be determined as part of the Counterclaim/winding up. The Liquidator had been appointed and had investigated the payments.
• The Liquidator's report and attachments, including authenticated bank payment instructions from SABB indicating the payments were "against the purchased shares of FiCall company by Salman Al Masoud", were admitted into evidence. The court limited reliance on the Liquidator's conclusions where they amounted to substantive findings but accepted the primary documentary material and timeline.
• The usual civil standard of proof (balance of probabilities) applied. The court rejected objections that the Apex Parties' inability or refusal to give disclosure or advance positive factual averments made determination unfair; their non-engagement was relevant to the weight of their position.
• On the balance of probabilities the court found the documentation and sequence of events made clear that the payments were intended to represent remittance of the Al Masoud purchase moneys into Fi Call accounts and thereby discharged the Prince's obligation to account to the Apex Parties (subject to the Apex Parties' rights to pursue different remedies in liquidation where appropriate).
• As a consequence, the court allowed the Prince's Set Aside Application and ordered that the Default Judgment be set aside so as to avoid double recovery. The funds held to the order of the Court were to be released to the Prince in light of that finding, subject to any further appellate direction.
• The court considered but did not decide alternative fraud-based routes: it indicated that setting aside for fraud would normally require separate proceedings and incontrovertible evidence or a trial, and left that route open if necessary in fresh proceedings.
• Costs in the Supreme Court and of the supplemental matter were reserved and further written submissions were invited.

The judgment explains procedural discretion to admit evidence gathered by a Liquidator, the application of the balance of probabilities, and the court's power under sections 994–996 Companies Act 2006 to grant relief incidental to a winding up to resolve competing claims to company-affecting funds.

The court determined that it was necessary and appropriate to adjudicate the nature of the three payments (the Al Masoud moneys) in the context of the Counterclaim and the winding up, admitted the Liquidator's documentary evidence, and on the balance of probabilities found that the payments represented remittances in respect of the Al Masoud share purchase moneys and so discharged the Prince's obligation to account to the Apex Parties. Accordingly, the Prince's application to set aside the Default Judgment was allowed and the sums held to the order of the Court should be released to the Prince. Costs consequences were reserved for further submissions.

The judgment is a supplemental decision following the court's Main Judgment ([2015] EWHC 3269 (Ch)) and engagement with an appeal to the Supreme Court (Prince Abdulaziz v Apex Global Management Ltd & Anor [2014] UKSC 64). The High Court directed a Liquidator to investigate the payments and reconvened a deferred continuation of the trial to determine outstanding issues; the supplemental judgment adjudicates the matters left for determination following those earlier proceedings.