Mobile Telecommunications Co KSC v HRH Prince Hussam Bin Abdulaziz Al Saud

Mr Justice Jacobs has given two further decisions in the MTC v Prince Hussam litigation in which the Commercial Court has already given significant judgments, on anti-suit injunctions ([2018] EWHC 1469 (Comm)), and on contempt ([2018] EWHC 3749 (Comm)).

The first decision dated 28 October 2019 ([2019] EWHC 2968 (Comm)), examines the jurisdiction to order inspection of documents mentioned in witness statements (and other formal court documents), and is the first decision to apply the provisions of paragraph 21 of the Commercial Court Disclosure Pilot (PD51U) that govern this question.

The second decision dated 8 November 2019 ([2019] EWHC 3109 (Comm)) is a decision concerning the scope of Article 27 of the LCIA Rules 1998, which allow a Tribunal to “correct in the award any errors in computation, clerical or typographical errors or any errors of a similar nature”, and affirms the pragmatic approach adopted by Mr Justice Knowles in Xstrata v Benxi [2016] EWHC 2022 (Comm) in relation to an LCIA Tribunal’s powers to issue corrective awards.

Upon MTC’s attempts to enforce an arbitral award for over US$500 million in Saudi Arabia, the Riyadh Court refused enforcement on the basis that the Tribunal’s award did not explicitly specify that Prince Hussam was obliged to pay MTC the sums in question, but merely that MTC was entitled to those sums from him.

Upon MTC’s urgent application, Mr Justice Bryan granted the Tribunal an extension of time (to issue a corrective award) on the papers under s.79 of the Arbitration Act 1996. The Tribunal duly issued awards correcting their prior awards and including additional wording (to the extent that more was required) spelling out further that Prince Hussam was indeed obliged to pay the sums in question. The two decisions arose from Prince Hussam’s application to set aside Bryan J’s Order.

In the first judgment ([2019] EWHC 2968 (Comm)), Jacobs J dismissed an application brought by Prince Hussam for the inspection of documents that he alleged had been “mentioned” in a witness statement served on behalf of MTC. Jacobs J accepted MTC’s argument that, after it had made an alteration to the witness statement to remove the relevant passage, the Court had no jurisdiction to order inspection, and permitted the alteration to be made. The Judge further held, in any event, the relevant passage did not fall within paragraph 21 of PD51U because there was no sufficiently “direct allusion” to the documents in question, and, since the documents were not relevant to proceedings in England, he would in any event have exercised his discretion in favour of refusing inspection.

In the second judgment ([2019] EWHC 3109 (Comm)), Jacobs J dismissed Prince Hussam’s application to set aside the prior order of Bryan J. Prince Hussam alleged that, on a proper reading of Article 27 of the LCIA Rules 1998, the Tribunal did not have a power to issue its corrective awards, on the ground that they amounted to an interpretation of its earlier award, rather than a correction. Prince Hussam further argued that, insofar as the Knowles J’s decision regarding the scope of Article 27 in Xstrata v Benxi required a contrary conclusion, that decision was wrong and should be departed from.

Jacobs J rejected these arguments, holding that the correction sought fell “fairly and squarely” within the scope of Article 27, since it was made in order to better express what was very obviously intended. This was not a request for interpretation, which was an elastic term, and there was an error “of a similar nature” within Article 27 because, although the proper interpretation of the award was that the defendant was obliged to make the payment to which the claimant was entitled, nevertheless there was an error in that the omission of additional technical wording meant that the award could be and had been misread. Further, as to Xstrata, Knowles J had come to a very sensible decision as to the ambit of Article 27 and the Judge was not persuaded there were any cogent reasons for not following that decision.

MTC was represented by Thomas Raphael QC and Patrick Dunn-Walsh of Twenty Essex instructed by Pillsbury Winthrop Shaw Pittman LLP.

Prince Hussam was represented by Tom Montagu-Smith QC and Daniel Warents of XXIV Old Buildings, instructed by Millbank Solicitors.