Commercial Bank of Dubai PSC & Ors v Abdalla Juma Majid Al Sari & Ors

A court may proceed in a party’s absence where the party knew of the hearing, had access to the relevant material and voluntarily disengaged. In an undefended trial, the court may dispense with oral evidence, but the claimant must still prove its case. Adverse inferences may be drawn from a failure to give evidence or disclosure where the circumstances justify them.

A foreign judgment obtained by conscious and deliberate fraud cannot be recognised or enforced. The fraud must have been operative in obtaining the judgment. The exception to that rule arising from a later foreign judgment applies only where the fraud issue was determined in a separate and subsequent action. A procedural petition for reconsideration by the same court, on materially narrower statutory grounds, does not generally create preclusion or abuse of process.

The claimants sought declarations that agreements concerning properties owned by the BVI claimant companies were shams, unauthorised and void, and that a Sharjah judgment obtained by Globe against those companies had been procured by fraud. They also sought an injunction restraining Globe from enforcing that judgment.

The defendants were aware of the trial but did not attend. The central issues were whether the documents were fabricated and unauthorised, whether the Sharjah judgment was obtained by operative fraud, whether petitions for reconsideration under Article 169 of the UAE Civil Procedure Law precluded the claimants from alleging fraud, and whether declaratory and anti-enforcement relief should be granted.

1. Proceeding in absence. The defendants had notice of the trial, access to the evidence and legal materials, and voluntarily chose not to participate. Their right to attend was therefore waived. The court was entitled to proceed under CPR 39.3, applying the guidance in Williams v Hinton and Dexia S.A. v Regione Emilia Romagna.
2. Evidence. The court could dispense with oral evidence under CPR 32.2(2)(b) and 32.5(1)(b), because the claim remained to be proved but there was no defended evidential contest. The court assessed whether the written evidence was sufficient, subject to the limitations identified in Nitron Group BV v Barington Alliance LLP and followed in AMNS Middle East v LIQS Pte Ltd.
3. Adverse inferences. It was appropriate to infer that evidence withheld by the defendants would not assist their case. The inference was supported by the absence of expected witnesses, inadequate disclosure and the deliberate evidential void. The approach was governed by common sense and the factors identified in Efobi v Royal Mail, with support from Prest v Petrodel Resources Ltd, Wisniewski v Central Manchester Health Authority, Jones v Dunkel, Zurius v Secretary of State for Health and Social Care and ED&F Man Capital Markets v Come Harvest Holdings.
4. Documents and authority. The Tenancy Agreement, Addendum and Globe Documents were fabricated, backdated and shams. They were intended to create the appearance of legal rights and obligations different from those actually intended, within the meaning of Snook v London & West Riding Investments Ltd. Abdalla Al Sari lacked authority to bind the BVI companies. Beneficial ownership and an alleged power of attorney from persons without authority could not confer corporate authority. The documents therefore created no binding debt or tenancy.
5. Fraud and foreign judgment. Under the rule in Abouloff v Oppenheimer, a foreign judgment obtained by the fraud of a party cannot be enforced in England, even if the foreign court considered and rejected the fraud allegation. The fraud must involve conscious and deliberate dishonesty and must have been operative, in the sense that without it the judgment would not have been made or there was a real possibility that it would not have been made. Those requirements were satisfied.
6. Preclusion. House of Spring Gardens Ltd v Waite (No 2) was confined to a fraud issue determined in a separate and subsequent foreign action. The Article 169 petitions were procedural mechanisms for reconsideration by the same court and involved narrower inquiries: undiscovered fraud after judgment, or fraud, collusion or gross negligence by a representative of a non-party. They did not determine whether the Globe judgment was procured by sham documents. No issue estoppel, Henderson abuse or Hunter abuse arose.
7. Relief. There was a real dispute, all affected parties were before the court, and the declarations were the most effective means of resolving it. The court had jurisdiction under section 37 of the Senior Courts Act 1981 to restrain Globe in personam from enforcing the fraudulently obtained foreign judgment. The injunction did not interfere with the foreign court and was consistent with comity.
8. The declarations and injunction sought by the claimants were granted. The court invited the claimants to submit a draft order.