EMIRATES NBD BANK PJSC v RASHED ABDULAZIZ ALMAKHAWI & Anor.

The court dealt with two principal issues: (i) whether a final Dubai judgment obtained by the claimant bank was enforceable in England and Wales despite a challenge based on an alleged breach of natural justice in the Dubai proceedings; and (ii) whether transfers of UK property and UK bank funds from the first defendant to his son were held on resulting trust or, alternatively, were transactions defrauding creditors under section 423 of the Insolvency Act 1986.

On enforceability, the judge applied the established English test for impeaching foreign judgments for breach of natural justice (as summarised in Dicey, Morris & Collins and authorities such as Adams v Cape) and rejected the defendants’ contention that the Dubai court’s reliance on two court-appointed expert reports which mistakenly referred to an older experts law rendered the Dubai judgment "null and void". The court found that the mis‑reference was, at most, a procedural defect and that a local remedy in Dubai was available so the natural justice exception did not apply; the Dubai judgment was declared enforceable in England and Wales and a monetary judgment was entered against the first defendant accordingly.

On the transfers, the judge rejected the bank’s primary submission that the transfers were held on resulting trust (the presumption of advancement was not rebutted) but accepted the bank’s alternative case under section 423. Applying the settled test for a "prohibited purpose" under section 423 (requiring proof of a subjective purpose which may be inferred from the circumstances), the court held that one of the purposes of the transfers was to put assets beyond the reach of creditors and therefore granted relief under section 423 in respect of the London property and the UK bank transfers.

Background and parties: The claimant bank sought enforcement in England of a final Dubai judgment against the first defendant (a UAE national) and also sought relief in relation to transfers by the first defendant to his son of a London leasehold (Warren House) and two UK sterling transfers. There is no treaty for reciprocal enforcement between the United Kingdom and the UAE, so the bank relied on a common law action to enforce the Dubai judgment and advanced alternative proprietary and statutory claims in relation to the transfers.

Relief sought:

• Enforcement of the Dubai judgment (monetary judgment) in England.
• Declarations that the London property and stated sums were held on resulting trust for the first defendant (or alternatively relief under section 423 Insolvency Act 1986 as transactions defrauding creditors).

Main issues determined:

1. Whether the Dubai judgment was impeachable in England on the ground that the Dubai courts had relied upon expert reports which, it was said, were "null and void" because they referred to a superseded experts law, thus rendering the Dubai proceedings contrary to natural justice.
2. Whether the transfers of the London property and the sterling sums were gifts (rebutting the presumption of a resulting trust) or alternatively were transactions entered into for a "prohibited purpose" within section 423 of the Insolvency Act 1986.

Court’s reasoning on enforceability: The court applied the established principles that the natural justice exception concerns substantial procedural unfairness (not mere procedural error) and that availability of a local remedy is a relevant consideration. The defendants narrowed their complaint to the fact that the court-appointed expert reports referred to the older 1974 law rather than the 2012 law governing experts. The judge examined the role of experts in Dubai proceedings, the scope of the 2012 law and related ministerial regulations, and a 2022 Ministry Circular which warned experts that reports referring to the 1974 law might be treated as null. The court concluded the circular was a regulatory warning and not a retrospective rule invalidating prior reports; there was no authority showing that a mis‑reference to the old law automatically rendered an expert report void; the mis‑reference was at most a procedural defect; and the point could have been (and was) pursued in the Dubai courts. Accordingly the natural justice exception did not apply and the Dubai judgment was declared enforceable.

Court’s reasoning on the transfers: The judge first addressed resultant trust principles and the presumption of advancement on father‑to‑son gratuitous transfers. The deed of gift and contemporaneous instructions to solicitors supported the conclusion that the London property transfer was intended as a gift and the presumption of advancement was not displaced. Concerning section 423, the judge summarised the correct approach: the statutory test requires proof of a subjective purpose to put assets beyond the reach of creditors or otherwise prejudice them; purpose can be inferred from circumstances but is distinct from mere consequence. The judge found, from timing, the pattern of divestments, the manner of the sterling transfers (into a newly opened dormant UK account), unsatisfactory explanations and other factual matters, that one of the transferor’s purposes was to put assets beyond creditors’ reach. The resulting trust claim therefore failed but the section 423 claim succeeded in respect of the London property and the UK sterling transfers. The court reserved the precise form of the section 423 order and asked counsel to be heard on the terms.

Subsidiary findings:

• The manuscript "December 2015 Letter" relied on by the defendants was not found to be genuine.
• The judge criticised aspects of the first defendant’s evidence as unreliable on a number of points.

The court declared the Dubai judgment enforceable in England and Wales and entered a monetary judgment against the first defendant. The court rejected the defendants’ natural justice challenge to enforcement based on the expert reports' reference to an older experts law because the defect was at most procedural, not substantially unjust, and available Dubai remedies could have been pursued. On the property and money transfers the court rejected the resulting‑trust case (the presumption of advancement was not displaced) but held that the transfers were transactions defrauding creditors under section 423 of the Insolvency Act 1986 because one of the transferor’s purposes (which could properly be inferred) was to put assets beyond the reach of creditors; relief under section 423 was therefore to be granted in respect of the London property and the stated sterling transfers, with the precise orders to be settled following submissions on form.