Latham & Watkins has obtained another major decision for Saudi National Bank (SNB, formerly Samba Financial Group (Samba) until its merger with National Commercial Bank on April 1, 2021), one of Saudi Arabia’s largest banks, in the context of the claims brought by a Cayman Islands Company, Saad Investments Company Limited (SICL) and its liquidators, that Samba knowingly received trust assets in part settlement of a client’s debts. The long-running dispute arose from the collapse of SAAD Group in 2009 and involved a number of Saudi and Western banks and institutional creditors.
In a significant judgment handed down by the UK Supreme Court on December 20, 2023, the Court held that a claim for knowing receipt cannot be made if a claimant’s equitable interest in the property in question has been extinguished by the time of the defendant’s knowing receipt of the property. The Court noted that although the case law points toward its conclusion, it does not provide a definitive answer, meaning that the Court had to decide the matter by applying equitable principles. The judgment therefore represents a development in the law and one of significant relevance to equity and trusts practitioners.
Commenting on the judgment, Oliver Browne, partner and co-chair of Latham’s litigation practice in London said: “This is the ultimate triumph for our client and marks a successful end to over a decade of litigation. The case raises significant points and clarifies important aspects of English trusts law and its interaction with other legal systems.”
Timeline
In 2011, during initial information-gathering proceedings, Samba had disclosed that in September 2009 Mr. Al Sanea transferred in excess of US$400 million worth of shares in Saudi companies to Samba, in part settlement of his debts. In 2013, the claimants alleged that Mr. Al Sanea held US$318 million of those shares on a Cayman Islands trust for SICL and brought proceedings for a declaration under UK insolvency law that the transfer was a void disposition of SICL’s property. An appeal went to the UK Supreme Court, and in February 2017, the Supreme Court struck out the claim on the basis that SICL’s trust interest was extinguished and was therefore not a “disposition” under UK insolvency law.
After a hearing in October 2017, the claimants were subsequently granted permission to bring the claim on different grounds, replacing their insolvency claim with a trust-based claim in knowing receipt.
Following a two-week trial in October 2020, on January 15, 2020, the English High Court ruled in favor of Samba on all issues, dismissing the claimants’ claims in their entirety. The Court found that there was no valid cause of action under English law even on the alleged facts, because under Saudi law Samba had taken good title to the shares, and that took priority over any equitable proprietary rights which SICL might have had under Cayman Islands law.
The Claimants obtained permission to appeal to the Court of Appeal on all issues, and the appeal was heard on December 13-17, 2021, before Lord Justice Newey, Lady Justice Asplin, and Lord Justice Popplewell. On January 27, 2022, the Court of Appeal handed down judgment dismissing the appeal.
In relation to English law issues the Court held that in order for liability to arise in knowing receipt, the claimant must have a “continuing proprietary interest in the relevant property,” and as such, a defendant could not be liable in knowing receipt if they took the relevant property “free of any interest of the claimant.” The Court therefore concluded that the trial judge was correct when he held that “absent a continuing proprietary interest in the Disputed Securities at the time of registration, the claim in knowing receipt as pleaded will fail.” On Saudi Arabian law matters, the governing law on the proprietary effect of the share transfers, the Court agreed with SNB’s argument that it need not review Mr. Justice Fancourt’s view of the expert evidence and concluded that there were no grounds on which to overturn the trial judge’s findings.
The Court of Appeal refused permission to appeal. The Supreme Court granted permission to appeal on the English law matters alone.
On December 20, 2023, the UK Supreme Court reaffirmed the position of the lower courts. It held that a claim for knowing receipt cannot be made if a claimant’s equitable interest in the property in question has been extinguished by the time of the defendant’s knowing receipt of the property. Applying fundamental principles of equity to the facts of this case, the Court concluded that, as Saudi Arabian law extinguished SICL’s equitable interest in the relevant shares at the time of their transfer to Samba, SICL cannot make a claim for knowing receipt against SNB in respect of the shares.
Latham Team
The Latham & Watkins team was led by Litigation & Trial partner Oliver Browne, alongside Salman Al-Sudairi, partner and chair of Latham’s Saudi Arabia practice, with associates Anna James, Olivia Featherstone, and Callum Rodgers.
Latham instructed Brian Green QC of Wilberforce Chambers and Alan Roxburgh of Brick Court Chambers. Additional assistance in the lower courts was provided by Andrew Onslow QC and Sarah Tulip of 3 Verulam Buildings, and Ed Harrison of Brick Court Chambers.
