Mark Hapgood QC Mark Howard QC

Lord Pannick QC David Brownbill QC

Brian Green QC Adam Cloherty
Alan Roxburgh

(Instructed by Latham & (Instructed by Morrison
Watkins (London) LLP) and Foerster (UK) LLP)
LORD MANCE: (with whom Lord Neuberger, Lord Sumption, Lord Collins and Lord Toulson agree)
1. This is an appeal from an order of the Court of Appeal (Longmore, Kitchin and Vos LJJ) dated 4 December 2014, which set aside an order of the Chancellor dated 28 February 2014 staying the present proceedings. The points raised are novel and difficult, and the focus of submissions has shifted at each instance.
2. The proceedings are brought by a Cayman Islands company, Saad

Investments Co Ltd, in liquidation, (“SICL”) and its Joint Official Liquidators (“the
Liquidators”), appointed as such in winding up proceedings commenced in the
Cayman Islands on 30 July 2009. The English Companies Court has recognised the Cayman Islands winding up proceedings as a foreign main insolvency proceeding by orders under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030). The
proceedings are against Samba Financial Group (“Samba”), which was served as of
right within the jurisdiction on 19 August 2013, but which then applied for the
proceedings to be stayed. The ground then given was that “there exists another
forum which is clearly and distinctly more appropriate” than England. In the course
of the appeals leading to the Supreme Court, the ground has effectively transmuted
into a case that SICL’s claim has no prospect of success, for a reason or reasons
which will appear. The parties have argued the appeal, and the Supreme Court will
address it, on that basis.
3. Before the Supreme Court many of the issues which required attention below are no longer relevant. The appeal can as a result be approached on the basis of assumed facts and matters which can be shortly stated. They include the following.
4. Mr Al-Sanea, a Saudi Arabian citizen and resident closely involved with SICL, was the legal owner of shares, valued at around US$318m, in five Saudi Arabian banks, one of them Samba itself. He was registered as their owner in the Saudi Arabian Securities Depositary Centre. SICL claims that Mr Al-Sanea had agreed to hold these Saudi Arabian shares at all material times on trust for SICL. The trusts arose allegedly as a result of six transactions. In the first transaction in 2002, Mr Al-Sanea by share sale agreement agreed to transfer to SICL the
“beneficial ownership” of the relevant shares, but to continue to hold the legal title
“in order to comply with legal requirements in Saudi Arabia”. In a second
transaction in 2003, Mr Al-Sanea agreed to hold “legal ownership of [the relevant]
shares as nominee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akers v Samba Financial Group

Details

AGLC: Akers v Samba Financial Group [2017] UKSC 6
Case: [2017] UKSC 6
Decision Date

CaseChat Overview and Summary

The Supreme Court considered an appeal by Samba Financial Group against an order of the Court of Appeal that set aside a stay of proceedings brought by Saad Investments Co Ltd in liquidation and its Joint Official Liquidators against Samba. The liquidators claimed that Samba held shares in Saudi Arabian banks on trust for Saad Investments Co Ltd and that the transfer of the shares by the trustee to Samba was void under section 127 of the Insolvency Act 1986. The Supreme Court held that there was no disposition of any rights of Saad Investments Co Ltd in relation to the shares by virtue of their transfer to Samba. The court found that, while Saad Investments Co Ltd had equitable proprietary interests in the shares, the transfer by the trustee of the legal title to the shares to Samba did not constitute a disposition of those interests. The court concluded that section 127 of the Insolvency Act 1986, which addresses dispositions of a company's property after the commencement of winding up, did not apply to this situation because there was no transfer by a disponor to a disponee of the relevant property. The Supreme Court allowed the appeal and set aside the order made by the Court of Appeal, declaring that there was no disposition of any rights of Saad Investments Co Ltd in relation to the shares by virtue of their transfer to Samba.

Orders