CL-2022-000048 - [2025] EWHC 1810 (Comm)

A settlement agreement dated 1 November 2018 between Globe and the BVI Companies (“Globe Settlement Agreement”) pursuant to which, having purportedly defaulted under the Globe Loan Agreement, the BVI Companies purportedly agreed to pay Globe AED 582,652,815 in ten quarterly instalments between January 2019 to April 2021 (an increase of c. 1.4%).

I have no hesitation in concluding that the Globe Documents are not genuine. They are highly uncommercial transactions solely for the benefit of the Al Sari Brothers. No explanation for the highly uncommercial features of these documents has been given by the Globe Defendants or Mr. Almheiri. Indeed, if they were genuine, the BVI Companies would have been rendered worthless and it would have made no sense, in those circumstances, for Majid Al Sari and Abdalla Al Sari to have been desperate to ensure (as can be seen to have been the case) that the Bank did not enforce its judgment against the shares in the BVI Companies.

The obviously uncommercial features of the Globe Documents, in summary, are as follows.

First, the machinery essentially operates to absolve the Al Sari Brothers personally of their debts and set up a repayment plan which would substantially underpay the lender. There is no plausible explanation as to why MAS, a supposedly arm’s length third party, would assume and pay off AED 651 million worth of the Al Sari Brothers’ debt (and that is so even if, as the Globe Defendants plead, it “ended up paying just AED 152,905,879 out of pocket to lenders in respect of the loans”). The explanation given by the MOU itself (and given in the Globe Defendants’ Amended Defence) is that “[MAS] has cash liquidity sufficient to pay the debts … and it also has technical ability to negotiate with the banks.” But that is contradicted by the evidence of Mr. Almheiri himself. He states that MAS is a modest operation without major assets or physical offices. Moreover, Mr. Almheiri also states that “[I]n no cases did I negotiate directly with the banks”. Indeed MAS’ Memorandum of Association (paragraph 4.2(c)) prohibited it from engaging in banking business. This explanation is wholly unconvincing.

Second, there was no legitimate reason for MAS or Globe to agree to be repaid such large sums (550m or 582m AED (Footnote: ⁵)) by the BVI Companies rather than the Al Sari Brothers in accordance with the Globe MOU.It made no commercial sense at all: MAS had no major assets and the BVI Companies’ only assets were the Bridge Properties, worth only about £9 million. (Footnote: ⁶)

Third, the Globe MOU states that “in view of social considerations appreciated by the other parties to this agreement, [the Al Sari Brothers did] not wish to appear as a debtor” to Globe or MAS. In his affidavit sworn in support of a freezing injunction against the BVI Companies in the DIFC Court on 12 June 2023, Mr. Almheiri states at [84.8]: “the social considerations referred to is just the cultural mentality of a business man not wanting to be associated with his failed business. This would look badly on the families of the individuals involved and its very normal in our culture to distance ourselves from anything purportedly negative”. However, in paragraph 12.1.1 of the Globe Defendants’ Further Information served on 31 January 2024, they state that “a desire on the part of the Al Sari Brothers to conceal their connection to Globe or MAS would not amount to a social consideration.” The Defendants have been unable to articulate the nature of these alleged social considerations and I find that they are a spurious excuse designed to conceal the true reason, which is to saddle the BVI Companies with debt.

Fourth, in an attempt to get around the uncommerciality of these transactions, Globe relies upon an assertion that the BVI Companies were owed unspecified and unquantified debts by third parties. In particular, Globe says Majid Al Sari told Mr. Almheiri “in general terms”that the BVI Companies were owed such debts but without offering any further explanation. However, there is no evidence before the court to support this assertion and I reject it.

Fifth, the Globe Documents are also highly uncommercial because Globe did no due diligence as to the asset position of the BVI Companies and took no security from them. Globe’s excuse for this is to rely upon “a concept known as name lending”. (Footnote: ⁷) Globe maintains that this allowed it to trust the “family name of the Al Saris” as security for the transaction. This is highly implausible. The existence of any such practice of “name lending” could not sensibly justify Globe accepting repayment from the Al Sari Brothers’ offshore vehicles, given that the very transaction under the Globe MOU was premised on the Al Sari Brothers being unable to repay their creditors the sum of c. £121m. Moreover, if Mr. Almheiri was, as is alleged in the Globe Defendants’ Amended Defence, only involved in arms-length, commercial business dealings with the Al Sari Defendants, there could be no rational basis for his taking such a significant commercial risk.

The Globe Defendants adduced expert evidence from Mr. Al Dahbashi to the effect that it would have been common in 2012-2014 to rely on the name and business reputation of transaction counterparts. However, he was unavailable for cross-examination and his evidence is purely anecdotal. It is not supported by any illustrations of this supposed practice or legal authority. The Claimants relied upon the expert report of Mr. Binherz. He explains (at [4.1]-[4.3]) that “name lending” was a practice involving lending against personal guarantees (rather than reputations). It involved some basic level of asset verification but was considered to be a flawed practice even at the time, and largely fell away after the financial crisis in 2008 (and accordingly long before the supposed execution of the Globe MOU in 2014). As a result he considers that the Globe MOU “defies both banking and lending norms, and rational commercial behaviour at the relevant time.” I agree and I accept Mr. Binherz’s evidence.

I would add that it is not clear on what basis Mr. Al Dahbashi is said to be an expert at all in Emirati business practices. His CV lists his business experience as being an “active investor” in the food and beverage industry, but sources (including his own LinkedIn page) highlight only one modestly sized restaurant with which he has a business involvement. It is also of concern that Mr. Al Dahbashi currently runs a firm based in Dubai called Al Dahbashi Gray, alongside a former English solicitor, Mr. Gray, who was struck off by the SRA in 2021 for deliberately misleading a court and taking steps to conceal his dishonesty.

Mr. Binherz, in contrast, has an impressive CV and has considerable experience in the banking industry in the UAE.

Sixth, there was in any case no legitimate reason to transfer the right to repayment from MAS to Globe, in circumstances where Globe has no bank account of its own and would use MAS’s bank account to receive funds when needed; no consideration was given by Globe for the transaction; and both companies are owned by MENA. The true purpose was, I find, to conceal MAS’s involvement in the transaction as a whole. I agree with Mr. Trotter that the explanations given by the Globe Defendants and Mr. Almheiri make no sense at all. (Footnote: ⁸) It is also notable that the Globe Loan Agreement makes no provision for what is to happen if MAS only repays part of the debts.

Seventh, the Defendants have also sought to rely on alleged “Globe Performance Documents” as purportedly evidencing the contemporaneous performance of the transaction recorded in the Globe Documents. In fact, and perhaps unsurprisingly, they only serve to show that the transaction under the Globe MOU and the Globe Loan Agreement did not take place.The very premise for the Globe MOU was that MAS would repay the Al Saris Brothers’ debts, and in return the Al Sari Brothers would repay (or ultimately cause the BVI Companies to repay) Globe. However, Mr. Trotter established at trial, as summarised in section 4 of his Closing Note, that the Globe Performance Documents demonstrate that MAS did not repay any of the underlying debts, and most of the underlying debts said to have been owed to various banks bythe Al Sari Brothers were not in fact owed by them: see for example the series of debts totalling c.AED 350 million, owed under 2007 and 2008 syndicated facility agreements.

Eighth, before the DIFC Court, Mr. Almheiri gave an entirely different explanation for the transaction in his third affidavit dated 12 June 2023 at [70]. He said that MAS intended to acquire the underlying debts and later “attempt to sell [them] at a higher price”. But that is inconsistent with the Globe MOU and with the explanation which has been given in these proceedings that the debts were repaid. It is, as Mr. Trotter points out, also unsupported by any evidence of such attempted resales, and commercially illogical, since there is no reason to think that MAS would be in a better position than the banks to sell the distressed debts.

Ninth and last, as with the Tenancy Agreement, Abdalla Al Sari did not have authority to enter into the Globe Documents on behalf of the BVI Companies.He was nota director or shareholder of the BVI Companies (Footnote: ⁹). I find that Globe, and in particular the Al Sari Defendants and Mr. Almheiri, must have known this fact. No party has ever alleged that Abdalla Al Sari was authorised by the BVI Companies’ directors to sign the Globe MOU, nor that the BVI Companies’ corporate directors were even aware of the Globe Documents. The Globe Defendants have sought in the past to rely upon a Power of Attorney supposedly given by the Al Sari Brothers to Abdalla Al Sari, but since they did not have any authority themselves, they cannot bestow it upon him. Nor does the fact that they are beneficial owners of the BVI Companies advance their argument. As the DIFC Court stated in the Second DIFC Tenancy Proceedings, “To say that [Abdalla Al Sari] signed on behalf of Mohammed and Majid in their capacity as beneficial shareholders does not work, because signing is not something for them in general meetings of the [BVI Companies]”. It follows that while Abdalla Al Sari signed the Globe Documents on behalf of the BVI Companies, he had no authority to do so. The BVI Companies therefore never entered into the Globe Documents, and they did not create any binding debt.

In all the circumstances, I find as a fact that the Globe Documents are not genuine; they were created after the date which they purport to bear and were backdated. They are shams, that is, these documents were executed intending to give third parties and the court “the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create”: Snook v London & West Riding Investments Ltd [1967] 2 QB 786 at 802 per Diplock LJ.

Finally, this conclusion is further supported by the fact that the Al Sari Defendants did not disclose the Globe Documents in November/December 2014 in their asset disclosure pursuant to the s.25 Freezing Order and the BVI Freezing Order granted in November 2014 by Leggatt J (England) and Bannister J (BVI) respectively.

As described above, from 2017 onwards the Al Sari Defendants took numerous steps to delay or prevent the Bank from enforcing the Sharjah Judgment against the BVI Companies. They sought to evade service, belatedly applied to set aside summary judgment; resisted the granting of the Final Charging Order; sought to stay the Final Charging Order appointing the Receiver based on want of jurisdiction and then again on the basis of what they said was fresh evidence which was later found to be “corrupt”; and pursued an appeal for which they ultimately failed to file any skeleton argument.

Once these attempts to derail the Bank’s enforcement efforts were exhausted, and following the appointment of the Receiver in February 2019, the Al Sari Defendants’ next tactic was to deploy false and backdated tenancy agreements concerning the Bridge Properties.

The Tenancy Agreement dated 16 January 2013 and its “Addendum” dated 4 March 2013 purport to grant a perpetual tenancy of the Bridge Properties to several Al Sari children and IGPL GT (which before the DIFC Court of Appeal in March 2022 described itself as a “proxy” for the Al Sari family) (Footnote: ¹⁰). Abdalla Al Sari (as with the Globe Documents) signed the Tenancy Agreement on behalf of all parties, and Mr. Almheiri held an office at IGPL GT at the time when the document was created. This was, I find, a further step in the Defendants’ coordinated effort to keep control of the Bridge Properties for the benefit of the Al Sari family.

The Tenancy Agreement emerged for the first time on 27 June 2019 (shortly after the sham Globe Documents were produced in April 2019) in a letter to the Receiver from Majid Al Sari. It records the landlords of the Bridge Properties as the BVI Companies, but it is signed by Abdalla Al Sari rather than by any corporate directors of the BVI Companies.Once again, Abdalla Al Sarihad no authority to create, enter into, or sign any such document on behalf of the BVI Companies.No explanation has been forthcoming as to why he is the signatory rather than a corporate director of the BVI Companies. The Tenancy Agreement (with its Addendum) purports to grant a perpetual tenancy to IGPL GT and several Al Sari family members, all of which were children aged between 3 and 8 years of age at the relevant time.

The Tenancy Agreement has been considered by an English court on a previous occasion and found not to be genuine. Thus, in a judgment given by HH Judge Johns KC in possession proceedings brought in the Central London County Court on 28 April 2023, the Judge found, in relation to the Tenancy Agreement: “it can already be seen on the evidence that the written agreement [the Tenancy Agreement], central to the arrangement alleged, is a fabrication”.

Like the Globe Documents, I find as a fact that the Tenancy Agreement and Addendum are sham documents, being backdated, fabricated documents:

There is no documentary record (other than the document itself) of the Tenancy Agreement existing/coming into existence prior to 2019, despite it being dated 16 January 2013 (with the Addendum dated 4 March 2013).