Qatar Investment and Projects Development Holding Co & Anor v Phoenix Ancient Art SA & Ors

A claim should not be struck out or summarily dismissed where coherent causes of action are pleaded and the evidence may be materially enlarged by disclosure or expert evidence. Under Limitation Act 1980, s 32, discovery and reasonable diligence are fact-sensitive questions. The court must assess whether the claimants knew enough to plead a claim and what a reasonably diligent investigation would have revealed. A second action following procedural strike-out is not automatically abusive. The court must examine all the circumstances, including the reason and stage of the earlier strike-out, the overlap between the claims, and whether the earlier conduct was markedly non-compliant. An interim anti-suit injunction is ordinarily granted where, to a high degree of probability, proceedings breach an exclusive jurisdiction clause, unless strong reasons against relief are shown.

The judgment determined three applications concerning two related actions about ancient artefacts sold by Phoenix to QIPCO and Sheikh Hamad. The defendants sought strike-out or summary judgment in the New Action, which concerned alleged false provenance documents for an Alexander head and a phalera. The claimants sought an interim anti-suit injunction against proceedings brought by Phoenix and another claimant in New York. The defendants also sought relief from sanctions for failures to provide disclosure and witness evidence in the Nike Action.

The earlier Alexander action had been struck out for failure to serve the claim form in time. Its appeal was dismissed by the Court of Appeal in [2022] EWCA Civ 422. The central issues were whether the New Action was inadequately pleaded, time-barred or abusive, whether the New York proceedings breached the contractual jurisdiction clauses, and whether relief from sanctions should be granted.

1. Strike-out and summary judgment. The New Action disclosed legally coherent causes of action, including breach of contract, misrepresentation, deceit and conspiracy. The allegations concerning discrepancies, metadata, the Swiss Report, related transactions and previous convictions were capable of supporting the pleaded case. The court could not determine their weight without fuller factual investigation and possibly expert evidence. The claims therefore disclosed reasonable grounds and had a real prospect of success: the defendants’ application failed.
2. Limitation. The defendants had to show that it was clear the claims were time-barred and that reliance on s 32 of the Limitation Act 1980 had no realistic prospect. Discovery meant knowing enough to plead a claim or to justify embarking on the preliminaries to proceedings. Reasonable diligence applied throughout the inquiry: first, whether a reasonably attentive claimant would become aware of matters requiring investigation; and secondly, what a reasonably diligent investigation would reveal. It was plainly arguable that the claimants had no reason at the time of purchase to investigate metadata or the genuineness of provenance documents. Strike-out or summary judgment on limitation was refused.
3. Abuse of process. The earlier action had been struck out on procedural grounds, without adjudication on the merits, and not because it was itself abusive. The present case differed in subject matter and focus, was commenced after the earlier action had ended at an early stage, and raised claims that could not themselves be struck out. Although markedly non-compliant conduct may justify striking out a later action, the absence of a good excuse for late service was not equivalent to the gross or inexcusable conduct found in the authorities. The New Action was not abusive.
4. Anti-suit injunction. The jurisdiction clauses in the Nike and Alexander agreements gave QIPCO a negative right not to be sued elsewhere for disputes arising out of or connected with those agreements or their subject matter. The New York claims concerned the Nike and Alexander and an informal exchange arrangement intended to resolve disputes about them. The exchange arrangement did not displace the contractual jurisdiction clauses. No strong reason against relief was shown. An interim injunction was granted restraining pursuit of the New York Action against QIPCO.
5. Relief from sanctions. The five-month disclosure default was significant and not wholly excused. Nevertheless, considering the existing disclosure and witness evidence, relief was appropriate. It was granted on unless terms requiring disclosure by 26 July 2024 and witness statements by 30 August 2024, failing which specified pleadings would be struck out or the defendants would be debarred from relying on the statements.

• Court of Appeal: The appeal from the earlier strike-out of the First Alexander Action was dismissed on 30 March 2022: [2022] EWCA Civ 422.
• High Court: The amendment application in the Nike Action was allowed by Andrew Burns KC, sitting as a deputy High Court judge, on 20 July 2023: [2023] EWHC 1916 (KB).
• High Court (King’s Bench Division): The present applications were determined by Butcher J.