Mr Justice David Steel :
Introduction
- A detailed description of the extraordinary history
of this litigation is set out in Paragraphs 35 – 155 of the judgment of
Cresswell J in the "Spares Action": [2004] EWHC 2603 (Comm). The present action, known for short as the "Perjury II
Action", focuses primarily on one of the conclusions of Aikens J in the second
part of the "Main Aircraft Action" which dealt with questions of
causation: [2002] 2 All ER (Comm) 360. He held that the claimants ("KAC") had
failed to establish that the loss of a group of its aircraft ("the Mosul
Four"), which had been destroyed or damaged beyond repair in the bombing of
Mosul by coalition forces in the first Gulf war, had been caused by wrongful
interference with them by the defendants ("IAC"). The principal thrust of the
claim advanced by KAC in the present proceedings is that this decision
(together with the rejection of KAC's appeal on the issue by both the Court of
Appeal and the House of Lords) was obtained by fraud.
The background
- On 2 August 1990 Iraq invaded Kuwait. The occupation
was complete on 5 August. At the time of the invasion there were 10 civil
aircraft belonging to KAC standing at Kuwait International Airport ("KIA").
These 10 aircraft consisted of 8 Airbuses (5 type A310-200 and 3 type
A300-600) and 2 Boeing 767's. On 6 August 1990 the Iraqi Minister of Transport
and Communication, Mr Mohamed Hamza Al–Zubaidi ("Mr Al-Zubaidi") instructed Mr
Nor Aldin Saffi ("Mr Saffi"), the then Director General and Chairman of the
Board of IAC, that he should arrange to fly these 10 aircraft to Iraq for
"safe keeping".
- Pursuant to that order, all but one of the aircraft
were flown to Basra. The exception was Airbus A-300 AHI (which was in Egypt
Air livery). It was under repair and did not leave Kuwait until 20 August when
it was flown direct to Baghdad. Meanwhile, by 17 August six of the nine
aircraft that had been flown to Basra were redeployed to Mosul and Tekrit. By
17 November, following a number of further movements between these various
airfields, four of the aircraft (two Airbus A300-600s and the two Boeings)
ended up at Mosul, still in their KAC livery. These made up the Mosul Four.
The remainder were by then all at Baghdad. The latter had been progressively
repainted in IAC livery.
- In the meantime, the Revolutionary Command Council
of Iraq ("RCC") had passed Resolution 369. It was passed on 9 September and
came in to force on 17 September. It provided as follows: -
"Kuwaiti Aircraft Corporation is hereby dissolved and all of its
moveable and immovable assets, rights and obligations are transferred to
Iraqi Airways Company which shall in accordance with domestic and
international law requirements duly register such assets."
- Military action by coalition forces began on 17
January 1991. As the war progressed, the four aircraft at Mosul were destroyed
or damaged beyond repair. The remaining six KAC aircraft were flown from
Baghdad to Iran, the last arriving on February 4.
Procedural history: sovereign immunity
- By this time the writ (the claim form in modern
terminology) in what became classified as the Main Aircraft Action had already
been issued, with IAC as the first defendant and the Republic of Iraq as the
second defendant. Endorsed on it was a succinct points of claim alleging
wrongful interference with all the aircraft. The particulars of this
allegation of interference read as follows: -
a) On the 2nd August 1990 the second defendants
invaded Kuwait, took control of the airport and deprived the plaintiffs of
possession and control if inter alia the aircraft particularised
above.
b) Between the 2nd and 9th August the
aircraft were removed from the airport.
c) On a date or dates between the 9th August and
17th September the second defendants unlawfully transferred
possession and control of the aircraft to the first defendants. The stated
intention of the defendants was to incorporate the aircraft within the first
defendants' fleet and to use them for commercial purposes.
d) The first and second defendants have continued wrongfully to
interfere with the aircraft by their unlawful possession and control of the
aircraft and refusal and/or failure to deliver the aircraft to the
plaintiffs".
- This writ was served on IAC's offices in London. The
legitimacy of that service was challenged but in due course it was held to be
valid. In November 1991 Mr Justice Evans began hearing a number of
applications made by IAC in relation to the claim. The material one for
present purposes raised the issue of sovereign immunity. It was the thrust of
IAC's case that, following their initial involvement in supplying pilots on
the order of the Minister to fly the KAC aircraft from Kuwait Airport to Basra
in the immediate aftermath of the occupation, IAC had no further significant
involvement with the aircraft until after obtaining title to the aircraft
under Iraqi law with effect from 17 September (pursuant to Resolution 369).
Accordingly, it was submitted, IAC was entitled to claim immunity from suit.
- This position was challenged by KAC. KAC served
witness statements from members of their engineering staff to the effect that
some of the KAC aircraft had been seen to have been repainted in IAC livery
before 17 September. KAC's witness statements also contained evidence to the
effect that in mid August 1990 representatives of IAC had made a determined
effort to recruit KAC engineers for maintenance work on KAC airbuses. The
recruiting effort was said to have been undertaken by three individuals, Mr
Saffi, the Director General, assisted by Mr Amer Al Shaikhly ("Mr Al
Shaikhly"), described as the Line Maintenance Manager and Mr Sabah Abbo ("Mr
Abbo"), the then Director of Quality Control.
- It was also contended by KAC that some KAC ground
equipment and spares had been observed being loaded onto an IAC freighter at
KIA and that some were already situated at Baghdad before 17 September. Indeed
on 1 December 1991 KAC issued another writ against the same two defendants
seeking similar relief in relation to the spares to that sought in the Main
Aircraft Action and this became known as the "Spares Action".
- In the Main Aircraft Action, IAC responded to the
statements made by the Kuwaiti engineers by tendering two supplementary
statements made by Mr Al Shaikhly and Mr Abbo. In the result, Evans J ordered
that the issue of sovereign immunity should be decided as a preliminary issue
and that all the statement makers should attend for cross-examination. The KAC
witnesses were cross-examined on 10 December and Mr Abbo and Mr Al Shaikhly on
the following day. There was then a gap until 29 January 1991 when Mr Saffi,
who had been unwell, attended for cross-examination. During the course of his
cross-examination some additional documents were adduced by IAC which were
later to play a significant part in the proceedings referred to as the
"Perjury I Action".
- KAC'S case on the preliminary issue as regards
sovereign immunity (which in essence has remained KAC's case throughout) was
that at all material times from 9 August the aircraft were not merely in the
possession and control of IAC but being absorbed into the IAC fleet. To that
end, it was submitted, the aircraft had been flown to civilian airports and
steps had been immediately taken to recruit staff and to prepare for their
painting, registration, insurance and provision of airworthiness certificates.
Thus, it was said, the decree that came into force on 17 September merely
purported to recognise and legitimise what had happened already.
- In his judgment dated 16 April 1992, Evans J said
that a clear general picture had emerged from the oral evidence. Part of that
picture was that Mr Saffi had been instructed to "maintain" or "look after"
the KAC aircraft which had been brought to Iraq but that this maintenance was
of a basic character, limited to checking tyre pressures, moving each aircraft
so that its tyres did not become distorted, checking for oil and/or fuel leaks
and removing and replacing engine cowlings and such like from time to time.
- As regards sovereign immunity, Evans J concluded
that the object of the safekeeping which Mr Saffi had been instructed to
achieve was to look after the aircraft until such time as IAC could resume
commercial operations with them. Consequently it was his judgment that IAC was
not immune from jurisdiction pursuant to the State Immunity Act 1978: -
"The decision to recruit key specialist personnel for an airbus
fleet and the steps taken to implement this decision from mid August onwards
confirmed that IAC was engaged, on the Minster's instructions, in the
preliminary stages of establishing an air-bus operation and to this extent
was anticipating the transfer of ownership of the aircraft which became
effective, so it was believed, on September 17."
- IAC appealed and successfully obtained an order
from the Court of Appeal reversing the decision of Evans J on the claim to
immunity: [1995] 1 Lloyds Rep 25. Lord Justice Nourse said this at p.29: -
"Here, I repeat, the aircraft was subjected to a forcible
confiscation which could only have been carried out by or at the behest of a
sovereign state in exercising its sovereign authority. The intention to use
them for commercial purposes, as and when practicable, and to keep them safe
meanwhile, could not and did not transform the essential nature of that
act."
- KAC had developed a new argument in the Court of
Appeal to the effect that, following the implementation of Resolution 369, the
acts of IAC were simply acts in consequence of the vesting of title, not the
exercising of some sovereign authority. The Court of Appeal also rejected that
submission. Lord Justice Simon Brown expressed himself as follows at p.37: -
"The answer is, I believe, this: that on the particular facts of
this case, it is unreal and impermissible to seek to separate out IAC's
eventual use of the disputed aircraft pursuant to the State's decree from
the circumstances of their initial acquisition. The reality is, as already
indicated, that IAC was intimately involved throughout the entire
expropriatory process: the planes were spoils of war and IAC was a party to
their taking."
- The matter went on further appeal to the House of
Lords: [1995] 1 WLR 1147. As regards the period after Resolution 369 came into
effect on 17 September, the majority in the House of Lords concluded that it
could not be said that IAC's retention and use of the aircraft, treating them
as its own, constituted acts done in the exercise of sovereign authority: per
Lord Goff at p.1163 c-d. Lord Goff went on to make this crucial observation at
p.1164 a: -
"There remains the question (which may well be of no relevance)
whether the acts performed by IAC in looking after the aircraft between the
date of their arrival in Iraq and the coming into effect of RCC Resolution
369, involving no more than basic maintenance of the aircraft, constituted
acts done by IAC in the exercise of sovereign immunity (sic). On the
assumption that these acts constituted acts of conversion and as such are of
relevance in these proceedings, I would hold that, like the acts of IAC in
flying the aircraft out of Kuwait, these acts were still sufficiently
related to the acts of seizure of the aircraft by Iraq to amount to acts of
jure imperii and so would attract immunity under Section 14 (2)."
The Main Aircraft Action
- The issues of liability and quantum were subjected
to split trials in the Main Aircraft Action. Questions relating to title,
justiciability and recognition of foreign law, together with the matter of
conversion or wrongful interference "on the facts", were determined by Mr
Justice Mance. He also made findings on the required nature of the causal link
and the burden of proof under Iraqi law. The issues of causation and
remoteness under English law were left over to the second stage of the trial
before Mr Justice Aikens.
- At the hearing before Mance J (confined, as a
result of the House of Lords' order, to IAC's acts after 17 September 1990)
IAC did not call any witnesses of fact. However, Mr Saffi, Mr Nekash, Captain
Jassim (an airbus trained pilot employed by IAC), Mr Mouaid Al Hakim,
Technical Contract Director of IAC and Mr Al Zubaidi, provided witness
statements which were put in evidence by IAC.
- Mance J's decision was handed down in July 1998.
So far as wrongful interference was concerned, he pointed out that the
"starting point" was that KAC could only rely on the conduct of IAC in making
what use of the aircraft as it could after RCC Resolution 369: "Prior acts
are, because of IAC's immunity, irrelevant": p.47 B . However, he rejected the
submission made by IAC that each aircraft should be considered in isolation
against a summary prepared by IAC of all the relevant acts in relation to each
aircraft. This summary which was entitled "Corrected Schedule of Acts by IAC
with regard to the KAC Aircraft" (the "Corrected Schedule") only contained
references to events occurring after 17 September 1990 and, by necessary
inference, suggested that there were no such acts at any prior date.
- Mance J summarised the position as follows (p.49
C): -
"At the very lowest, IAC's conduct in relation to any particular
aircraft must be viewed in the light of its overall intention, manifested
very early in relation to some of the aircraft, to make all the "ex KAC"
aircraft in its possession part of its fleet and, as and when possible, to
put them to commercial use. Looking at the matter in this way also, my
conclusion is that IAC did wrongfully interfere with all the
aircraft."
- As regards the Iraqi law of usurpation (a
necessary consideration because of the "double-actionability" rule in
Boys v. Chaplin [1971] AC 536 then in force), he held that,
where (as was the position in regard to the Mosul Four) there had been
physical loss or damage to goods, it was a requirement of Iraqi law for the
purposes of recovery that such loss or damage would not have occurred "but
for" the usurpation.
- In this context, the judge also made the following
important finding with regard to the burden of proof (p. 45 B): -
"Whether or not there is fault …, the usurper is liable if the
property reserved is lost or damaged. The only qualification that emerged
and was eventually common ground in the expert evidence is that, in the case
of the usurper acting in good faith, the owner must show that the loss or
damage would not have occurred but for the usurpation. In the case of a
usurper acting in bad faith the onus is reversed, and the usurper must, if
he is to be free of liability, show that the loss or damage would anyway
have occurred even if there had been no usurpation."
- It had been argued by KAC (and accepted by the
judge) that the court could not legitimately recognise Resolution 369 so that
IAC could not rely on it to prove any title to KAC aircraft. On the other
hand, since the test of good or bad faith was whether or not the usurper was
actually aware that he was usurping another's property, KAC conceded before
Mance J that IAC were not so aware having regard to Resolution 369, which
purported in terms to transfer all property rights to IAC as from the very
date from which liability accrued. Accordingly, KAC accepted that the burden
of proof of establishing that the Mosul Four would not have been lost "but
for" IAC's usurpation rested on KAC.
- The trial before Aikens J began in October 1999.
He had before him various new statements adduced by IAC and in particular a
further statement from Mr Saffi and also one from a General Fehed of the Iraqi
Air Force ("IQAF"). However, the only IAC witness called to give oral evidence
was Mr Nekash. Aikens J found, on the basis of the witness evidence and the
documentation then available, that at all material times, including the period
prior to 17 September 1990, the entire treatment and movement of KAC's
aircraft was being directed by the Iraqi Government and that this would still
have been the case even if there had been no usurpation by IAC. It followed
that KAC's claim that the Mosul Four would have been treated differently had
IAC not usurped them, and in particular would not have been at Mosul and
destroyed there, failed.
- A few days after the trial before Aikens J
commenced, Mr Nekash made a supplementary statement which disclosed, for the
first time, a diary which had been maintained by IAC's Engineering Director,
Mr Na'ama. The Na'ama diary was an important document for the purposes of
establishing the true course of events from 9 August onwards. In particular,
if treated as accurate, it revealed that there had been a number of aircraft
movements prior to 17 September and that steps had been taken to overpaint
three of KAC's aircraft before that date.
- Aikens J was thus faced with the question as to
what relevance there was in activities prior to 17 September. It was IAC's
case that it was impermissible, given that it was the House of Lords'
conclusion that only acts after 17 September could amount to wrongful
interference, to embark upon any attempt to reconstruct events before that
date.
- The judge decided that it was appropriate to
consider events prior to 17 September for three reasons. First because it was
necessary to see what prior events were intimately connected with the event
that was ultimately to be disregarded (i.e. the post 17 September
interference) in embarking on the "but for" assessment: secondly, because, as
appeared from the Na'ama diary, some of the aircraft had been moved to Baghdad
before the 17 September so that they should be over-painted in IAC livery: and
thirdly, because, by reason of the disclosure of the Na'ama diary and other
documents (see below), KAC had indicated that it might make an application to
the House of Lords alleging that it had been misled by IAC in the immunity
proceedings with regard to the commercial activities of IAC involving the KAC
aircraft in the period prior to the 17 September.
- In this context, it should be appreciated that
Aikens J was thereby hoping to anticipate (but, of course, only so far as the
material before him would allow) the implications of movements prior to 17
September and thus allow the parties to know where they stood if it was
established at a later stage that usurpation in fact took place earlier. Thus,
as the judge put it (para.94):
"If KAC pursues that point then the issues of where the KAC
aircraft were from 17 August 1990 and where they would have been "but for"
the wrongful interference or "usurpation" of IAC at some date before the 17
September may be important": para. 94
- The judge took as his starting point 17 August.
This was the first post-evacuation activity of substance recorded in the
Na'ama diary being the date upon which six of the KAC aircraft were moved from
their original landing site at Basra. On that date, whilst the two 767s
remained at Basra, the two Airbus 300's which also eventually formed part of
the Mosul Four were moved to Tekrit.
- The judge recognised that in making findings how
the aircraft would have been positioned before and during the hostilities "but
for" the usurpation by IAC, he was obviously engaging in an exercise "of
speculation on a grand scale". The outcome of the judge's analysis is
summarised in paragraph 130 of the judgment: -
"(1). I find that even if the Iraqi Government had not decided
to pass RCC Resolution 369 and even if it had decided that the KAC aircraft
should not be made IAC assets, it is still likely that it would have wished
to use some or all of the KAC A310–200's on flights between Baghdad and
Kuwait and Basra. Mr Saffi, Director General of IAC in August 1990, says in
his statement of the 14 June 1997, page 4 para 13 that "at the end of August
1990 the Minister of Transport and Communications instructed me that the
Revolutionary Command Council wished to put some of the KAC Airbus A310–200
aircraft into service on domestic flights between Kuwait and
Baghdad.
That instruction was given after the date of the Iraqi
Government's decision to use the A310-200's which was about 23 August 1990,
that is well before RCC Resolution 369 was passed. So it appears that the
decision and the consequent instruction were made independently of
whether the aircraft were to be incorporated in the IAC fleet. KAC
argued that evidence adduced by IAC before Evans J on the issues of
sovereign immunity and justiciability demonstrates that Iraq had not decided
to use the KAC aircraft (as opposed simply to maintain them) until 17
September 1990. The evidence at the earlier hearing may have been to that
effect. But the evidence adduced at the trial before me, in particular the
diaries of Mr Na'ama and the letter from Mr Abbo dated 23 August 1990
satisfies me that the decision to use the KAC 310-200 was taken in August
1990 and it was taken before any final decision was made on whether IAC or
some other Iraqi state entity should obtain the ten KAC aircraft.
(2). The Government's intention was and would have remained(for
so long as possible) that the world should see that it was serious about
keeping and using the property that Iraq had seized from Kuwait…
(3). I further find, contrary to KAC's submissions, that the
Iraqi Government would therefore have ordered the movement of the five KAC
A310- 200s to Saddam International at Baghdad in August and September
1990…
(4). I further find that the five A310-200s would have been
overpainted in IAC livery in common with other Iraqi civil aircraft owned by
the state, even though not formally part of the IAC civilian
fleet…
(5). If, as I find, the five A310- 200s would have been
overpainted in IAC livery, then the obvious – probably the only – place for
that to be done was Saddam International airport in Baghdad. Therefore I
think it is likely that, by the end of September 1990, the five A310-200s
would have been placed at Saddam International for overpainting, then for
use if possible."
- It was Aikens J's conclusion that "but for" the
usurpation by IAC the disposition of the ten KAC aircraft (and in particular
the Mosul Four) would have been exactly as it in due course was in fact. Thus,
at the outset of hostilities, the same four aircraft would have been at Mosul
as was in fact the case and the same six aircraft would have been at Saddam
International Airport as was the case. Equally he concluded that the attempts
to move the aircraft thereafter would have had the same results as did in fact
occur. Thus the Mosul Four would have remained at Mosul and would have been
destroyed in any event.
- IAC appealed Mance J's decision on liability and
KAC appealed Aikens J's decision on causation. Both appeals were heard
together in June 2000 with judgment being given in November 2000: [2001] 3 WLR
1117. The Court of Appeal dismissed IAC's appeal against the judgment of Mance
J. Whilst allowing the appeal against the judgment of Aikens J as regards the
"Iran Six", so far as the Mosul Four were concerned, the court held that KAC
was unable to discharge the burden of disproving the factual conclusions
arrived at by Aikens J in considering whether the "but for" test could be
satisfied in Iraqi law and thus the appeal against that part of his judgment
failed.
- The House of Lords gave permission to both parties
to appeal in the Main Aircraft Action. The appeal was heard in January 2002
and judgment was delivered on the 16 May: [2002] 2 AC 1066). The decision of
the Court of Appeal was affirmed. In particular, the House of Lords rejected
KAC's submission that IAC rather than the Government of Iraq had been in
control of KAC's aircraft from the outset.
Perjury I
- There had been little by way of documentary
disclosure by IAC for the purposes of the sovereign immunity application
before Evans J. In his initial affidavit, however, Mr Saffi had exhibited
three documents. Two related to an application and grant of a certificate of
airworthiness for AHD (an airbus A310) dated 27 September and 2 October
respectively. The third was a letter dated 23 October from the Civil
Registration Section of the Ministry ("the DGCA") to IAC allocating
registration letters to most of the KAC fleet. The letter concluded: -
"You are requested to complete the requirements referred to in
our letter … dated the 23 August 1990".
This latter letter, dated prior to Resolution 369, was obviously intriguing
but it was not however produced.
- When Mr Saffi arrived to give evidence before
Evans J, he brought with him three further documents. The first was a letter
dated 15 August 1990 from Mr Nekash to Mr Abbo asking him to obtain
particulars of the registration requirements in regard to a proposed purchase
or lease of a cargo plane. The second was a letter dated 23 August from Mr
Abbo to the DGCA apparently passing the request on. This latter letter became
known for short as the "first Abbo letter".
- The third document was a letter written to Mr Abbo
on 23 August by the DGCA. It read:-
"With reference to your letter No MSA 1/1901 dated Aug. 23 we
list below the requirements needed for registration of aircraft mentioned in
your letter…"
This obviously raised some doubt whether the account given by IAC that no
steps with regard to the KAC aircraft other than the most basic maintenance
had taken prior to 17 September was true. Mr Saffi insisted, however, that it
was a reply to the first Abbo letter. It was Evans J's conclusion (challenged
by IAC on appeal) that it was in fact probably a response to some form of very
preliminary inquiry about the KAC fleet but it was something which was not
urgent and thus could be put out of account.
- IAC served its disclosure list in the Main
Aircraft Action on 7 August 1996 and a supplemental list on the 25 September
1997. Various reasons were given by IAC's witnesses, in particular Mr Nekash,
IAC's then Director of Technical Planning, for IAC's inability to provide
further documents. In particular it was said that IAC's maintenance department
together with its records were destroyed in the Gulf War. Further, there were,
it was contended, no records of the repainting of KAC aircraft and no records
relating to the movements of the KAC aircraft between the invasion and 17
September 1990 (not least, it was suggested, because the aircraft had not been
registered as Iraqi aircraft).
- However, IAC did produce two further important
documents. The first was a letter written by Mr Abbo to the DGCA on the
subject of registration. The letter read: -
"Pursuant to the instructions issued to the Officer of the
Minister of Transport and Communication, it has been decided to put the
Airbus (A310-200 –this notation was in manuscript) (formerly
Kuwaiti) into service on domestic routes between Kuwait and Baghdad. Please
let us know what the requirements are for registering these aircraft as
Iraqi and give the matter your utmost attention."
The date of this letter (which became termed "the second Abbo letter") was
somewhat uncertain. The date on the top of the letter appeared to have been
altered from or to 28 August and it appeared to have been signed on 27 August.
- The other document was a letter sent on 25 August
by Mr Saffi to all employees of IAC. There was some dispute about its
translation but in due course it was agreed that the opening sentence was as
follows: -
"After the announcement of the merging unification with Kuwait
and the joining of the Kuwaiti aircrafts fleet with (IAC), all the employees
are requested to take care of the aircrafts…"
- These two letters, together with the Na'ama diary,
were the principal catalyst for the application to the House of Lords on the
basis that the House had been misled. In addition, the allegation was further
fuelled by the fact that, by the time the Main Aircraft Action had reached the
Court of Appeal, it had become KAC's case that Mr Nekash's letter of 15 August
and the first Abbo letter were forgeries.
- The Court of Appeal was unwilling to devote time
to unravelling this particular dispute. It was their view: -
"199….There is no evidence that as early as 15 August the
Government had taken any decision in relation to the KAC aircraft which were
probably still at Basra at that time."
The judgment went on as follows: -
"201. In our judgment the only safe conclusions to draw from the
evidence are these.
1) At about the end of the third week in August the RCC decided
that it wished to use the KAC aircraft notwithstanding the fact that there
were a lot of grounded IAC Boeings at Saddam International
Airport.
2) The Minister gave Mr Saffi instructions that the aircraft
should be painted in IAC's livery and be put into service on the
Baghdad-Kuwait route as soon as possible.
3) In so far as the aircraft were not used for this purpose, IAC
was to look after them as agent for the Government.
4) When IAC received the Minister's instructions, it made the
enquiry set out in the second Abbo letter.
5) It then became apparent that the Minister's wishes could not
be fulfilled until the team of qualified airbus engineers was in place and
this did not happen until the end of September…
6) In the meantime, at the end of August, K-AHD newly painted
was flown up to Mosul to be out of the way and the IQAF airfield at Tekrit
was emptied of KAC aircraft with two being flown to Mosul and one to Basra
both of them being IAC airfields where IAC could perform the acts of light
maintenance required of them by the Government.
7) Throughout August and early September the IAC was acting as
agent for the Iraqi Government. It did not know which type of Airbus the
Government wanted to use at the time that the second Abbo letter was
typed."
- In May 2000, as foreshadowed during the course of
the hearing before Aikens J, KAC duly petitioned the House of Lords for a
variation of its earlier order so as to deprive IAC of the benefit of
sovereign immunity in respect of the period between 9 August 1990 (when most
of the aircraft had been flown into Iraq proper from Kuwait) and 17 September
(the date on which Resolution 369 became effective). The grounds of the
petition were that, in the light of the documentary material produced in the
action since 1995, it was clear that the factual basis for the decision in the
House of Lords was founded on false and perjured evidence deployed by IAC. In
particular, KAC contended that IAC's earlier evidence that the acts done in
the period from 9 August to 17 September were limited to basic maintenance,
and thus were of no significance, was false and had been given with the
intention of deceiving the court.
- Their Lordships concluded ([2001] 1 WLR 429) that,
while the issues raised in the petition were "prima facie relevant, serious
and substantial", it was not appropriate for them to be pursued in that manner
but that they should be raised by a separate claim alleging fraud. The outcome
was Action 2000 Folio No.1137 which came to be called the Perjury I Action.
This action was heard by me in 2002. IAC called a number of witnesses
including Mr Abbo, Mr Al Shaikhly, Mr Na'ama and, once again after a prolonged
adjournment, Mr Saffi. My judgment is reported at [2003] 1 Lloyd's Rep 448.
- In summary I found that: -
i) KAC had produced fresh evidence which was not before Evans J
when trying the issues of state immunity and which KAC could not with
reasonable diligence have produced at that time.
ii) Mr Saffi and Mr Abbo had given perjured evidence in 1991
and 1992 relating to the activities of IAC in regard to KAC's aircraft in
the period 9 August to 16 September 1990.
iii) Two of the letters which had been relied upon by Mr Saffi
when he gave evidence to Evans J, were, and were known by him (and Mr Abbo)
to be, forgeries.
iv) The new evidence entirely changed the nature of the case as
regards sovereign immunity during the period 9 August to 16
September.
v) Mr Saffi and Mr Abbo had the status and authority to be
treated as IAC.
vi) The true position was that in that period IAC was engaged in
the process of absorbing the KAC fleet and that its acts were not acts juri
imperii.
vii) Accordingly it was not appropriate that KAC should be bound
by the finding of the House of Lords that accorded sovereign immunity to IAC
in respect of any activities from 9 August onwards. `
- In March 2003 I refused permission to IAC to
appeal and, despite many extensions of time afforded for the purpose, IAC
decided not to make any application to the Court of Appeal for such
permission.
Perjury II
- Armed with that judgment KAC issued the present
proceedings in March 2003. KAC allege that:
i) the earlier judgments on liability and causation in the Main Aircraft
Action were constrained by the finding that the only actionable wrongful
interference occurred after 17 September 1990;
ii) as established in Perjury I, those constraints were obtained by
fraud;
iii) likewise, IAC's case in the Main Aircraft Action as regards the Mosul
4 was also tainted by fraud both in the form of perjured evidence and in the
form of deliberate concealment of documents;
iv) accordingly, the finding that KAC could not recover in respect of the
Mosul Four by reason of the failure to establish causation should be set
aside;
v) on the true facts IAC wrongfully interfered with KAC aircraft from 9
August onwards from which time it, and not the Government of Iraq, was
completely in control of their use and movements;
vi) in doing so IAC was fully aware that it was usurping another's property
and, accordingly, the burden of proof rests on IAC to show that the loss of
the Mosul Four would not have occurred but for the usurpation;
vii) but for the conversion, the Government of Iraq would have dealt
differently with the aircraft and the Mosul Four would not have been at Mosul
when damaged or destroyed either because they would not have been sent there
or because they would have been evacuated (or at least IAC cannot establish
otherwise);
viii) consequently, KAC contends that it is entitled to recover in respect
of the Mosul 4.
- IAC contends that the finding of Aikens J (upheld
by the Court of Appeal and the House of Lords) that KAC could not recover in
respect of the Mosul Four on grounds of lack of causation was not procured by
perjured evidence. In IAC's submission, the court had been made aware of KAC's
likely challenge to the facts on which the House of Lords had based its
decision and, accordingly, Aikens J had expressly avoided basing his findings
on causation on those facts. Aikens J finding thus was a hypothetical one
which was not dependent on IAC's evidence of what it actually did. In any
event even if it was open to KAC to challenge the finding, IAC contend that a
different court retrying the issue would reach the same conclusion, namely
that "but for" IAC's wrongful interference the Mosul Four would have been
destroyed anyway.
Spares Action
- While the Main Aircraft Action and the Perjury
Actions were proceeding as described, the Spares Action was also moving
forward. The trial commenced in November 2002 after the judgment of the House
of Lords in the Main Aircraft Action but before judgment was given in the
Perjury I Action. One of IAC's main contentions in that trial was that IAC had
in large part returned all the spares which they had taken from KAC. As a
result of various procedural developments, the trial was adjourned initially
until January 2004.
- The proceedings were then stayed as a result of
the outbreak of the second Gulf war in March 2003. The stay was lifted in July
2003. In the meantime in June 2003, containers had been discovered in Iraq
containing spares belonging to KAC. It also became apparent that steps had
been taken to destroy other spares: see para. 91ff of the Spares Action
judgment. Following unsuccessful settlement negotiations in July 2003, various
statements were served by IAC in the Spares Action. Notable amongst these was
one from Mr Adel Hammam, IAC's in-house legal adviser, who said that he knew
nothing about any instructions to dispose of KAC property which had not been
returned after the Gulf war or about the existence or location of KAC's spares
in Iraq.
- On 8 September 2003 IAC instructed new solicitors
Messrs. Kendall Freeman in place of Messrs. Landau & Scanlan. The time for
filing a Notice of Appeal in relation the judgment in the Perjury I Action
finally expired on 29 September 2003. Shortly thereafter the Spares Action was
adjourned again until June 2004. It was clear that IAC were in some
difficulties as regards their defence in the Spares Action which was based
amongst other matters upon a statement from Mr Nekash to the effect that all
of KAC's property taken by IAC had been returned, save a few small items.
Unfortunately Mr Nekash had died during the course of the Perjury I
proceedings. There was great delay in furnishing an amended defence, let alone
one to which a statement of truth was attached.
- By the end of March 2004 however, an important new
development occurred. Mr Al Baijan, the Manager of KAC's Projects Department,
who had been largely responsible for discovering the presence of KAC's spares
in Iraq and the fate of those spares which had been destroyed, had visited
Iraq again and obtained a large number of documents which IAC ought to have
disclosed but had not. On 4 April 2004 witness statements were served by KAC
from Mr Al Baijan and a Mr Mohamed Ghazi Aziz ("Mr Aziz") describing the way
in which these documents ("the Aziz documents") had been unearthed.
- Mr Aziz had been in charge of IAC's secret or
confidential affairs office between September 2002 and November 2003.
According to Mr Aziz, in late 2002, he was told by Mr Al Nassiry (IAC's then
Director General) that he had received a directive from the Ministry of
Transport to destroy all items that used to belong to KAC. Supplementary to
this, all documents relating to KAC, KAC aircraft or KAC spares were to be
handed to Mr Hammam the legal advisor for him to determine what should happen
to them.
- Mr Aziz went on to give further detail about the
destruction of KAC's spares but, of more significance for the present action,
Mr Aziz described how in about February 2003 he was given a box full of
documents by Mr Hammam. Mr Hammam told Mr Aziz that the documents in the box
related to the litigation between KAC and IAC and were potentially prejudicial
to IAC's case. He asked Mr Aziz to hide them. Mr Aziz did so in his own home.
Some time thereafter, shortly before the outbreak of hostilities, the Director
General of IAC asked Mr Aziz to "keep safe" as many of the secret or
confidential files as he could and as a result of this instruction Mr Aziz
moved some 25% of the secret office archives to a house belonging to one of
his relatives.
- In about March 2004 Mr Aziz made contact with KAC,
travelled to Amman and met Mr Al Baijan. They travelled thereafter together to
Baghdad and recovered most of these documents and transported them to Jordan.
They were in due course delivered to the offices of KAC's solicitors in
London. Documents extracted from these files form the basis of a very
significant part of KAC's case in the present proceedings. Many of these
documents were highly relevant to both the Spares Action and, as will emerge,
the Main Aircraft Action. Further, one of the documents was said by KAC
expressly to confirm the existence of a policy of hiding documents relevant to
the litigation.
- On 28 April 2004 Kendall Freeman wrote to Howard
Kennedy, KAC's solicitors, reporting that IAC's current management, no doubt
prompted by the evidence of Mr Al Baijan, the statement of Mr Aziz and the
content of the Aziz documents, had decided to accept liability as from 9
August for wrongful interference with KAC's spare parts situated at KIA. It is
to be noted that IAC nonetheless asked for Mr Aziz to be tendered for
cross-examination in the course of the Spares Action quantum hearing. After Mr
Aziz had obtained a visa to travel to London and had been in London for some
days, IAC indicated that they no longer challenged his evidence in any respect
in the Spares Action and did not wish to cross-examine him.
Perjury II action: case management
- The claim form in the present proceedings was
issued on 5 March 2003 and the first exchange of pleadings occurred over the
next year with the particulars of claim being served in August 2003, the
defence in December 2003, and a reply in February 2004.
- Following the emergence of the Aziz documents, KAC
made an application for specific disclosure. The precise terms are not
necessary to quote but I made an appropriate order for service of a list by 31
August 2004, such list to be supported by affidavits from the then Director
General of IAC and KAC's then solicitors Messrs. Kendall Freeman.
- However, Messrs. Kendall Freeman came off the
record on 3 September 2004 prior to the provision of any list, let alone an
affidavit. Messrs. Ross and Craig came on the record on 24 September 2004 only
to come off again ten days later just before the restored case management
conference. At that CMC I gave leave to KAC to amend the Particulars of Claim
(subject to any subsequent objection by IAC). The amendments primarily raised
matters arising from the Aziz documents and the circumstances in which they
had emerged. In the light of correspondence before the court from both Messrs.
Kendall Freeman and Messrs. Ross and Craig, I extended time for compliance
with the disclosure order until 8 November.
- On 12 November, IAC instructed yet new solicitors
Messrs. Teacher Stern and Selby ("TSS") and, shortly thereafter, IAC applied
for an adjournment of the trial then fixed for 25 February 2005 so as to
permit compliance by IAC with my original disclosure order. In fact, it was
clear that IAC had taken no steps whatsoever in the previous eight months to
comply with the order. Concurrently with the application for an adjournment,
it was revealed for the first time that IAC was contemplating adducing witness
evidence, having expressly disclaimed having any such intention in the
previous April. I refused the application for an adjournment and imposed a new
timetable for compliance with the disclosure order by 12 January 2005.
- A pre trial review was held on 11 February 2005.
At the hearing, I gave leave to IAC to call a number of witnesses at the
trial. They were: Mr Adel Hammam, Mr Iyad Hammam, Mrs Emam Ibrahem, Mr Kosky,
Mr Adel Raban, Mr Isac Esho, Mr Al Shaikhly, and Mr Adnan Saeed. IAC further
applied for the evidence of Mr Adel Hammam, Mr Iyad Hammam, Mrs Ibrahem, Mr
Raban and Mr Saeed to be given by video link from Baghdad. Following provision
of an appropriate protocol, I gave leave on the 27 February for Mr Iyad
Hammam, Mr Raban and Mr Saeed to do so.
- In the event only Mr Iyad Hammam and Mr Raban
(both by video link), Mr Esho and Mr Al Shaikhly were called. (Mr Al
Shaikhly's statement was late and was not furnished until 18 February).
Notably Mr Adel Hammam was not in due course called to give oral evidence and,
further, his statement was withdrawn in circumstances which I shall deal with
later on in this judgment. (To complete the picture, during the trial, IAC
successfully applied to call Mr Al Nassiry, the Director General from
September 2002 to May 2003).
- There were three further matters of importance
dealt with at the pre trial review. First, IAC was required to identify those
parts of the witness statements served in all related KAC/IAC proceedings
which they intended to rely upon at the trial. The final (and much enlarged)
version of its response emerged on 7 March 2005.
- Secondly, I ordered that KAC should provide an
edited version of the judgments of both Mance J and Aikens J identifying those
passages or findings which were challenged in the present proceedings. This
was duly done by notice dated 16 February 2005.
- Thirdly, KAC made an application that it was
entitled to a substantial enlargement of its rights of inspection of relevant
IAC documents. The application was directed to some of those documents
disclosed by IAC in their list dated 28 January 2005 (covering both previously
disclosed documents and the Aziz documents) but in respect of which IAC had
reinstated a claim to litigation privilege. The documents of which inspection
was sought were in effect those generated for the purposes of IAC's
preparation of certain of their witness statements for the Main Action and
Perjury I trial (Mr Nekash, General Fehed, Mr Al Zubaidi, Mr Saffi, Mr Abbo
and Mr Al Shaikhly) and also documents relating to disclosure by IAC in those
actions. The basis of this application was that these documents were generated
as part of or were related to a fraud on the court (as established in the
Perjury I trial and as strongly contended by KAC in the light of the Aziz
evidence).
- On 16 February 2005, I handed down a ruling
granting KAC a large part of the order that it had sought. However, on the
basis that IAC continued to identify the documents that would be tendered for
inspection under the order if it was upheld, I ordered a stay pending the
outcome of any appeal. On 24 February the Court of Appeal ordered an oral
permission hearing to take place on the following day. Permission to appeal
was granted and the appeal listed for 2 March. The appeal was completed on 4
March at which stage the court informed the parties of its intention to
dismiss the appeal with reasons to be supplied later.
- The trial of this action started on 8 March 2005.
On 16 March the Court of Appeal handed down its reserved judgment: [2005] EWCA Civ 286. In the result, a large number of documents became available. These
were prepared in the form of files lettered 'R' and were included in the trial
bundles during the course of the trial.
- An application for permission to appeal to the
House of Lords and an associated application for a stay was refused. An
informal application by IAC was made to the House of Lords for leave to appeal
by letter dated 7 March. This was unsuccessful. In due course a formal
petition was made and the House refused leave to appeal in July 2005.
Scope of the trial
- A further issue was touched on at the pre trial
review, namely the legitimate scope of proceedings in the Perjury II Action.
It was this that led to the order referred to earlier ensuring that those
parts of the judgments of Mance J and Aikens J which were said by KAC to be
vulnerable to attack on the grounds of fraud were sufficiently identified. In
addition, IAC suggested for the first time that the trial should be restricted
to the question whether the judgments of Mance J and Aikens J should be set
aside and furthermore that the outcome could only be either that they both
survived intact or were set aside in their entirety. It was contended by IAC
that it was contrary to principle to allow one or other judgments to be set
aside in part, let alone for the court thereafter to make substitute findings
for those matters thus set aside.
- My first impression was that the parties had
adopted a common understanding throughout the preparations for trial, in
particular in the pleadings, in the list of issues and in all aspects of case
management, that the challenge could properly be restricted to those matters
supporting the conclusion that the recovery in respect of the Mosul Four was
barred and (if the challenge was successful) for substitute findings to be
made. Indeed, precisely the same course of action had been followed in the
Perjury I Action without challenge by IAC.
- At the commencement of the trial, IAC sought a
ruling on this issue. In it, I rejected IAC's proposition that the scope of
the trial had to be restricted to the question whether the entirety of the
orders made by Mance J and Aikens J should be set aside. That all said, the
application was a timely reminder of the need to keep a careful eye on the
proper sequence of issues. In considering KAC's case on fraud, it is no part
of my role to embark on a rehearing of the issues determined by Mance J and
Aikens J with the benefit of any new material that has become available since,
let alone to embark on a rehearing of the appeals.
- As IAC was at pains to point out, the correct
approach is threefold: -
i) For KAC to prove that documentary evidence was deliberately withheld
and/or that specific lies were deployed:
ii) For KAC then to show how these matters undermined the essential
findings on which the relevant earlier conclusions were based:
iii) Once both the fact and the materiality of the concealment and/or lies
had been made out, KAC must establish the appropriate findings that should be
made on all the evidence now before the court.
- I accept that approach and did not understand KAC
to quarrel with it.
Concealment
- I have already outlined the basis of KAC's case
that there has been a fraud on the court in the form of deliberate concealment
of a large amount of relevant material documents by IAC.
- Mr Aziz's statement prepared for the purposes of
the Spares trial which was served as his witness statement for the Perjury II
trial contained the following passage: -
"13. One week after the UN Inspectors arrived in Iraq (Feb/March
2003) for the last time before the recent war, Mr Adel Hammam brought me a
box full of documents, files and other loose papers. He carried the box in
his own hands. I produce as MGA3 a photograph of the box taken when I
presented the same box to Mr Hammed Al Baijan as described in paragraph 16
below. He asked me to take them for safe keeping and told me that this was
with the full knowledge and consent of the Director General. I was asked to
hide them until the UN inspection teams had concluded their work in Iraq. Mr
Hammam made it clear to me that these documents were very important to the
case between KAC and IAC and that they related to the ongoing litigation in
London. He also stated there was a great risk they would seriously damage
IAC's defence if the contents became known to the UN inspectors. I duly hid
the documents in my house as requested."
- This much is at least common ground. Amongst the
documents contained both in the box and in the files given to Mr Aziz
immediately prior to hostilities were a large number which were clearly
relevant and disclosable covering the period from the period from 9 August
right through to the outbreak of hostilities in January 1991. These material
documents were inserted into the D volumes of the trial bundles (being the
chronological bundle of documents originally prepared for the Perjury I trial)
with the consequence of a massive enlargement of the same.
- The initial particulars of claim alleged defective
and incomplete disclosure by IAC. This was admitted by IAC in its amended
defence. As already noted, in October 2004 (albeit a draft had been furnished
much earlier) KAC amended to rely on the Aziz statement to allege "systematic
non-disclosure and deliberate concealment of documents that would have been
harmful to [IAC's] legal position".
- In this amendment, KAC placed particular emphasis
on two documents. First, a letter from IAC to the Deputy Prime Minister dated
29 August 1990. As I observed in the judgment in Perjury I (para. 95), this
letter appeared to be potentially material as it had been referred to in a
letter dated 5 September from the Deputy Prime Minister to the Presidency
Secretariat enclosing a draft of Resolution 369 (itself only disclosed in
October 2001). It duly emerged to be highly significant since it appeared on
its face to be a request by IAC for the issuance of what became Resolution
369. This was eye-catching since IAC had been insisting that the Resolution
had been promulgated on the initiative of the RCC by way of establishing the
merger of KAC and IAC assets in circumstances where, from IAC's perspective,
it was an unexpected, unprompted and unwelcome surprise.
- KAC placed even greater emphasis on the second
document, namely a memorandum dated 20 June 2001 (i.e. after the decision of
the Court of Appeal) prepared by Mr Adel Hammam and signed by Mr Al Mashadani
the then Director General. There was a vigorous challenge by IAC to both the
Arabic content and the proper translation of this document but in the event
this dispute largely blew over in KAC's favour. Eventually, I invited the
court interpreter to translate what had become an agreed Arabic version. His
translation read as follows: -
"In view of the approach followed by Kuwait and by KAC in
claiming again compensation through the compensations committee which
necessitated taking quick steps to move away all documents and files/folders
related to Kuwait, in order to avoid any future auditing/reviewing,
particularly because Mr Samir Nekash, the technical contracts manager, is
going to draw up a statement/ testimony on that regard to be submitted to
the court, stating that no documents or files exist in that respect. Please
advise.
Note: this letter should be returned with the reply and should
not be copied."
Predictably, KAC contended that this memorandum revealed both the fact of
the concealment policy and its purpose and also revealed that the then
Director-General, the signatory, Mr Adel Hammam, the author, and Mr Nekash
were parties to it.
- Notably, there was no pleaded response to KAC's
allegations relating to the Aziz documents until the eve of the trial. On 23
February 2005, IAC served a response to KAC's part 18 request on the topic.
The line adopted was: -
a) "as should have been obvious" the non-disclosure was "inadvertent" by
reasons of problems in conducting the disclosure exercise;
b) the vast majority of the Aziz documents were irrelevant and
insignificant;
c) the Na'ama diary, the letter from the President's office of the 7 August
1990 and the letter from the Deputy Prime Minister of the 5 September were all
potentially harmful to IAC's case: thus their "voluntary" disclosure, albeit
late, was inconsistent with the concealment policy alleged.
- I have already recorded the fact that Mr Aziz's
evidence was not challenged in the Spares Action and the outcome, in the light
of the damaging content of the documents as regards the concealment and
destruction of KAC spares, was an admission of liability as from 9 August on
IAC's part. Despite this, IAC once again insisted on Mr Aziz being called in
the present action against the background of various witness statements having
been served by IAC challenging the existence of any policy to conceal
documents, let alone the handover to Mr Aziz of relevant and damaging
documents in the circumstances described by him.
- The most important of these statements was from Mr
Adel Hammam, IAC's in- house legal adviser, which repudiated any concealment
being conducted by him whether on his own initiative or by reasons of
instructions from the Director General or the Government. He claimed that the
letter of 20 June 2001 was "privileged" and in any event was written to ensure
that disclosure was completed "properly". As regards any documents given to Mr
Aziz in the immediate run-up to hostilities, this was simply to ensure their
safety. Following the war, Mr Hammam claimed that the documents had not been
disclosed because Mr Aziz refused to return them despite requests.
- Mr Aziz duly gave oral evidence. Allowing for the
fact that Mr Aziz gave his evidence through an interpreter, nonetheless I
gained the clear impression that he was a careful, frank and reliable witness.
Indeed, his evidence as regards the spares had been accepted by IAC. He
described his role as manager of the secret or confidential affairs office
between September 2002 and November 2003. For the bulk of that time, the
Director General, to whom he reported directly, had been Mr Al Nassiry. Mr
Adel Hammam had an office along the same corridor as that of Mr Aziz and
indeed the Director General.
- Mr Aziz described an instruction of which he
became aware towards the end of 2002 from the Minister to the Director
General:
a) to destroy spare parts that had emanated from KAC and
b) to collect together all documents relating to the KAC
proceedings from all IAC offices and to hand them over to Mr Hammam (since
he was responsible for the files relating to the litigation).
- His evidence in chief on the principal issue
continued as follows:
"(Day 3 page 95): One week after the UN inspectors came to the
country, Mr Adel Hammam came to me in the secretariat office, he was
carrying a box in his hands, which includes files and loose papers and he
said to me "these are the documents that have to be hidden". He asked that
someone should hide these in his or her home. During this incident there was
present at the time Mr Raad the public relations manager who was helping me
at the time, because the secretary Mr Adnan Saeed stopped coming to work for
more than two months in which he was joining a military training session. Mr
Raad helped me upon the instruction issued by the DG. It was also present at
the time the driver of the DG Mr Ghaziz and the office driver Mr Adnan and
the catering manager Mr Mohammed. When Mr Raad refused to receive these
because he was known to be not tending to bear responsibility I said to Mr
Hammam that I will keep them in my home. Mr Hammam reiterated to me and
confirmed that this issue was that the Director General knew about this
matter and I made sure with the DG that he was aware of it."
- In cross-examination, his evidence both as to the
existence of a policy of concealment and more importantly as to the hand-over
of this box of documentation was vigorously challenged. The following are
examples: -
Day 4, Page 23.
Q: "Are you saying that Mr Al Nassiry was aware of that policy
with respect to those documents?"
A: "Yes my Lord"
Q: "Because neither he nor for that Mr Adel Hammam or Mr Iyad
Hammam nor Adel Raban accept that there was any such policy. Would you like
to comment on that question?"
A: "My Lord I not accept that. I confirm also that what Mr
Nassiry meant and the other people meant and others was not to disclose was
that they were not to disclose any correspondence relating to the case and I
mean the English language correspondence."
Page 31
Q: "…You appreciate, do you Mr Aziz, that Iyad Aziz's position
is that Mr Hammam did not hand over a box of documents to you as you
described?"
A: "My Lord, no. Mr Hammam handed over to me a box which is
already shown as an exhibit No.MGA 3 and I mentioned some witnesses and
these witnesses they know about this box and different levels of knowledge
or awareness. Some of them attended the process of handing over or they
happened to be there at the time and other people were just informed about
it."
Q: "You see Mr Hammam will say that all he handed over was a
small pile of papers prepared and collated from the secretariat by the two
secretaries who were present when those file of papers were handed over to
you."
A: "Mr Lord, Mr Hammam can say whatever he wants but the fact is
the fact of reality is that he handed over to me this box as I mentioned in
paragraph 13 with all these details."
Page 33
Q: "I have to suggest to you Mr Aziz that Mr Hammam did not say
that the documents and the file were important for the case against
KAC."
A: "My Lord I do confirm because the thing with Mr Hammam mostly
stressed on emphasise was that this box is very important in the case and it
is very dangerous and it should not fall in the hands of the inspectors
because the danger that comes from such matter will influence the litigation
case made in London."
Page 35.
Q: "You may know Mr Aziz that Mr Al Nassiry whom you respect
denies any knowledge of any handing over of the documents in the way you
describe so does Mr Iyad Hammam and Mr Adnan Saeed."
A: "My Lord with regard to Mr Al Nassiry he is not interested in
verbal matters or matters related to formalities so he would like the
situation to be as perfect as possible. So if his memory is not good enough
I confirm once again that he was aware of the box and that this box was in
my home that is first. Secondly, with regard Mr Iyad Hammam, he knew about
this by myself telling him about it because at that particular time during
the last two weeks Mr Iyad Hammam was very involved in the litigation case
and he used to receive a lot of correspondence from Mr Kosky and he was like
a safety valve with Mr Adel Hammam."
- In the event, on day 6 of the trial, following
evidence by video link from Mr Iyad Hammam and Mr Adel Raban, IAC declared
that it would not lead any further evidence on the issue of deliberate
concealment. Further the witness statements of Mr Adel Hammam, Mr Esho, Mrs
Ibraham and Mr Kosky were to be withdrawn. The defence was to be amended
albeit that no admission of deliberate concealment would be made.
- An amendment to reflect this rather remarkable
volte-face was made to both the defence and the reply to the part 18 request.
Neither document now makes very rewarding reading save that it is admitted: -
a) That in February 2003 Mr Hammam of IAC handed a box of
documents to Mr Aziz though "no admissions are made as to his state of mind
in doing so nor as to the content of the box when handed over." However, it
is admitted that Mr Hammam had the conduct of the litigation and his state
of mind was to be attributed to IAC.
b) KAC are put to proof of the content of 20 June 2001
memorandum but it is accepted that Mr Nekash signed IAC disclosure
statements in the Spares and the Perjury Actions shortly
afterwards.
- Despite the continuing non-admission by IAC of
KAC's pleaded case on concealment, the reality is that there is no basis for
not accepting the broad thrust of Mr Aziz's statement which is wholly
unchallenged by any material emanating from Mr Adel Hammam. The following
strike me as strong supporting considerations:
(a) the large number of relevant documents which were handed
over to Mr Aziz (the D1 and D2 bundles have doubled in size) of itself is
supportive of deliberate suppression of relevant material.
(b) it is quite clear that at no stage were these documents
given to Mr Kosky for review since it is clear from his attendance notes
that his review of such of the files that he was shown was extremely
thorough:
(c) some of the documents had a wide circulation: the absence of
any copy of a particular document strongly infers a policy of "cleansing"
the relevant files in each department:
(d) a policy of deliberate concealment is openly expressed by
the memorandum of 20 June 2001 (strikingly containing its own internal
attempt to suppress it):
(e) all this is in the context of a prolonged insistence by IAC
that the relevant documents, which were now said to have been given to Mr
Aziz for safe keeping, had been destroyed or mislaid by reason of the first
conflict:
(f) also must be borne in mind the background of suppression and
forgery of documents in the sovereign immunity proceedings.
(g) further, as will emerge, far from being "irrelevant" or
"insignificant", their content reveals their high degree of materiality:
- In short, in my judgment, it is inconceivable that
the concealment was merely inadvertent or coincidental. In saying that I have
not forgotten that it is suggested on IAC's behalf that any suggestion that
there was policy of deliberate concealment is inconsistent with the fact that
three at least of the more prejudicial documents were voluntarily disclosed: -
a) The Na'ama diary (E).
b) The 7 August letter (D1/5).
c) The 5 September letter (D/115).
- The mere fact that some prejudicial material has
slipped through the net and has been disclosed is, in my view, of little
assistance in determining whether or not there has been any attempt to
suppress other material. In any event, KAC say that IAC's reluctance and delay
in effecting disclosure of these very documents, as emerges from the
"privileged" documentation in the R bundles, in fact speaks volumes in support
of the case of the existence of an underlying policy of concealment. I agree
with that proposition.
The Na'ama Diary
- It emerges from the "privileged" material that Mr
Nekash told IAC's legal team of the existence of the Na'ama diary on 15 June
1999: R2/3/443. He mentioned that it contained information both as
regards repainting and the movement of the aircraft. Remarkably, this was
apparently contradicted at that time by both Mr Na'ama himself and Mr Adel
Hammam.
- The diaries eventually reached London in September
1999. It became immediately apparent to those in London that they did indeed
contain a substantial amount of detailed information about activities in
regards to the KAC aircraft. The Aikens J trial started on 6 October 1999. On
11 October a draft statement of Mr Nekash was served referring to the diaries
as having been "very recently obtained".
- The signed version of the statement was served on
12 October to which were attached translations of part of the diary entries.
However, on 27 October the Director General of IAC wrote to Mr Kosky
expressing extreme concern about this disclosure. It was the Director
General's view that the diary was "personal and not official and was in fact
to be disregarded": R3/7/146.
- In December, KAC sought access to the entire
diary. The response was to the effect that it belonged to Mr Na'ama. Mr Nekash
was concurrently expressing his anger to Mr Kosky that any part of the Na'ama
diaries had been produced to KAC "without obtaining an explanation from IAC as
to their relevance and as to the movement of the aircraft". Mr Kosky replied
to the Director General at some length in late December 1999. He explained
that the diaries were clearly relevant and disclosable even if they contained
mistakes. If there were errors as regards movements, Mr Kosky advised that it
made the need for IQAF contemporaneous records all the more necessary. He
concluded:
"I confirm that I will not give KAC the Na'ama diaries until I
hear from you that you have no objection. However, clearly KAC wish to
examine them and are likely to pursue the matter…"
In the event, KAC did not get access to the original diary until after the
Aikens' trial had finished and the draft judgment had been circulated in
February 2000.
7 August letter
- This letter contains the only written instruction
from the Minister to IAC relating to the KAC aircraft:
"It has been decided to repair Kuwait airport so as to make it
suitable for flying and to enable Iraqi pilots to fly Kuwaiti aircraft for
internal transport….Please take necessary action and confirm."
- It appears not to have been shown to IAC's
solicitors until April 2000 immediately after the Aikens J judgment. Mr Kosky
wrote to IAC on 10 April as follows: -
"I have discussed with counsel the letters dated 7 and 26 August
passing between you and the Presidency office as recently produced. Counsel
has confirmed that these documents ought to be disclosed to the other side,
particularly in the light of KAC's proposed petition to the House of Lords.
Please confirm I am authorised to disclose these documents. However we do
not wish to disclose these documents without first having an explanation as
to why they have only just been produced. KAC are bound to protest that
these documents should have been disclosed a long time ago. …"
- The letter was eventually disclosed in May 2000
accompanied by the fourth supplementary statement of Mr Nekash. This was right
in the middle of preparations for the Court of Appeal hearing and its
significance (even taken in isolation) does not appear to have been
immediately noted. I understand that KAC sought to deploy the letter before
the House of Lords against the entirely opportunistic objection of IAC that it
had not been deployed before. In this context Lord Nicholls made the following
observation:
"55. KAC also sought to attack the reliability of the evidence
given by IAC witnesses, praying in aid the contents of documents of which
discovery was made belatedly, after the trial in front of Aikens J had
finished. This is not a matter to which, at this stage, the House can attach
any weight. The apparent discrepancies between the witnesses' evidence and
these documents, and the reasons for these discrepancies, are matters par
excellence which can only be investigated satisfactorily by examination and
cross-examination in the course of oral evidence. If the perjury action
comes to trial, no doubt this investigation will take place. "
5 September letter
- In December 2000 Mr Adel Hammam told Mr Kosky that
the only relevant file that he held was one containing copies of RCC
Resolutions for the period 1990/1991. This was, he sought to explain, because
questions relating to the aircraft and the spares were technical matters and
"had not concerned the legal department in any way". The next day Mr Kosky
went through the file that Mr Hammam had produced with Mr Nekash. In the file
was the letter of 5 September 1990 from the Deputy Prime Minister to the
Presidency Secretariat enclosing a draft of Resolution 369. (It is this letter
which referred to an earlier letter from IAC dated 29 August on the topic of
the transfer of KAC assets to IAC.)
- Mr Nekash suggested to Mr Kosky that its existence
came as a complete surprise to him. Accordingly it appears that it was
discussed with Mr Hammam the next day: R4/8(1)/147. Mr Hammam insisted
that his file was considered "very confidential". When Mr Hammam was asked
about the letter of 29 August referred to in 5 September letter, Mr Hammam
explained that he had indeed written it, but that "no copy of this letter was
now available". (It was of course this very letter that later emerged from the
Aziz documents (D1.p100)). Mr Hammam said to Mr Kosky that since
Mr Saffi had told the court that, before Resolution 369, the aircraft had been
given to IAC merely to look after, this newly discovered letter was "a
problem". Mr Hammam requested that Mr Kosky should seek his advice before
disclosing a copy of the file and the letters in particular. (In the event the
letter was not disclosed until July 2001.)
Conclusion on deliberate concealment
- In any event, this latter discussion is but a
diversion. I accept Mr Aziz's account regarding the hand-over of documents by
Mr Adel Hammam. Included within them were documents which demolished any
pretence of defending the Spares action. As will emerge hereafter, the
documents included a wealth of material directly pertinent to the husbanding,
use and location of the aircraft. The June 2001 memorandum makes it plain that
the absence of these documents in any list was not accidental or even
attributable to carelessness. The failure to adduce any evidence from Mr Adel
Hammam renders any alternative construction impossible to maintain. I found
the evidence of Mr Al Nassiry on the topic contradictory, evasive and wholly
unconvincing.
- I can express my conclusion shortly. In my
judgment, the evidence is overwhelming that IAC has throughout this litigation
pursued a deliberate and sophisticated policy of non-disclosure, suppression
and concealment of relevant documents, particularly those prejudicial to its
legal position, a policy that has been revealed not to stop short of forging
documents to make good otherwise damaging gaps.
Lies
- As originally pleaded, KAC's case in this action
was to the effect that IAC promoted false evidence in support of its case that
it was not liable in respect of the Mosul 4. This has to a substantial extent
been overtaken or at least subsumed by its amended case on deliberate
concealment of documents. That said, scheduled to the particulars of claim are
the list of lies which are said by KAC to have been told by IAC witnesses to
Mance J and Aikens J in the Main Aircraft Action. They are summarised as
follows: -
Lie 1 – Before Mance J
IAC did not incorporate KAC's aircraft into its own fleet until after RCC
Resolution 369 took effect on 17 September 1990.
Lie 2 – Before Mance J
IAC were orally instructed to use some of KAC's aircraft on the
Baghdad to Kuwait route by the Minister of Transport towards the end of August
1990.
Lie 1 – Before Aikens J
IAC did not incorporate KAC's aircraft into its own fleet until after RCC
Resolution 369 took effect on 17 September 1990.
Lie 2 – Before Aikens J
The Minister of Transport instructed IAC to use KAC's Airbus 310's on the
Baghdad to Kuwait route on around 20 August 1990.
Lie 3 – Before Aikens J
The movement and location of KAC's aircraft was controlled by the
Government of Iraq/IQAF, not IAC.
Lie 4 – Before Aikens J
In August to September 1990 the Government of Iraq were still deciding what
to do with KAC's aircraft.
- In fact, these six lies, if made out, interlink
with one another (and indeed with the established falsehood which, as
explained above, IAC relied upon before Evans J in 1991 and which propped up
the House of Lord's decision on sovereign immunity in 1995). Given my findings
in the Perjury I Action and my findings above as regards deliberate
concealment of documents, it is probably unnecessary to embark on a detailed
analysis of the alleged lies. But for completeness sake, I turn to make such
findings as are appropriate.
- Before turning to consider the case on the
alleged lies promulgated by IAC during the course of the Mance J and Aikens J
trials, it is necessary to review the picture that emerges from the disclosure
made in the Main Action as supplemented by those documents which emerged in
the period up to until May 2002 (when the Perjury I trial began) and
thereafter by those within the Aziz material.
- In approaching matters in this way, I have had
very much in mind that the relevant events occurred 15 years ago. The
contemporary documents must inevitably be regarded as a more reliable
evidentiary source than witness recollection, all the more so where many of
the witnesses have been demonstrated to be unreliable. I have sought to focus
on those documents that appear to touch on the crucial issues of
incorporation, control and use of the KAC aircraft. By way of pointer to the
scale and scope of the Aziz documentation, I have underlined references to it.
Chronology – post invasion
- Following the successful invasion of Kuwait, the
Presidency Secretariat gave the following written instruction on 7 August (D1
p.5): -
"It has been decided to repair Kuwait Airport so as to make it
suitable for flying and to enable Iraqi pilots to fly Kuwaiti aircraft for
internal transport… Please take necessary action and confirm…"
- This, as already noted, was not disclosed until
after the Aikens J trial and was and remains the only written Governmental
instruction relating to the use of the KAC aircraft that has been disclosed.
In particular, no written instructions dated during the last ten days of
August has emerged or even been asserted.
- In response, a delegation from IAC travelled to
Kuwait on 9 August. This coincided with the promulgation of RCC Resolution
312:-
"Following the complete integration unity between Iraq and
Kuwait on 8.8.1990, the Revolutionary Command Council declares the
acceptance by Iraq of all the financial and economic obligations of
Kuwait…"
- The delegation included Mr Abbo, the Director of
Quality Control, who was appointed by Mr Saffi (D.1 p.25) to be
responsible for all technical aspects of the KAC aircraft but, contrary to my
findings in Perjury I (para. 78), the delegation was in fact headed by Mr
Saffi himself. A minute dated 11 August records Mr Saffi's "instructions"
concerning a range of engineering matters, including adoption of KAC
facilities and staff: D1 p.26.
- Mr Saffi also prepared his own report on the
visit to the Presidency Secretariat (D.1 p.27) dated 11 August.
It is notable that this expressly referred to the written instruction of 7
August and recorded a meeting between IAC and representatives of the Ministry
of Transport, the General Manager of Civil Aviation and the Ministry of
Housing held at KIA:
"each of us confirmed the requirements as regards repairing the
airport and piloting the aeroplanes".
It went on: -
"2 . Ten Kuwaiti aircraft were transported from Kuwait Airport
to Basra Airport. From there they will be sent to the airports of Tekrit and
Mosul so that no more than three aircraft will be kept either at Saddam
International Airport, Basra Airport, Mosul Airport and Tekrit Airport".
4. Technical equipment has been withdrawn from Kuwait Airport to
Basra Airport in accordance with the company's requirements."
- On 12 August Mr Saffi prepared a long list of
IAC staff that were to be despatched to Kuwait, including various heads of
department, also engineers and technicians, 20 office staff and 6 or 7 aircrew
(D1.p.31).
- On 16 August Mr Saffi's office reported to the
Presidency Secretariat (again identifying expressly that it was doing so in
response to the written instruction of 7 August quoted above) that the first
internal transport flight had operated from Baghdad to Kuwait that very day
(D.1 p.41).
- By the end of 17 August, as planned at the
meeting on 11 August, the KAC aircraft were distributed as follows (with AHI
still at KIA): -
Mosul: AHA 310, AHB 310, AHC 310.
Tekrit: AHE 310, AHF 300, AHG 300.
Basra: AHD 310, AIB 767, AIC 767.
- The next day Mr Saffi wrote an office order
replacing Mr Abbo with Mr Al Shaikhly for the purposes of being responsible
for the technical operation of the KAC aircraft (D.1 p.42).
- On 19 August, Mr Saffi wrote to the Presidency
Secretariat seeking exemption from military service for 265 of his staff
(D.1 p.44). The rationale is spelt out and is potentially very
revealing: -
"We feel that this is a large number. It occurred as a result of
the increase in the number of aeroplanes belonging to the Iraqi Airways
Company the fact that about 12 Kuwaiti aeroplanes became part of the
responsibilities of the Iraqi Airways in addition to the other facilities of
the former Kuwaiti Company. This means the Iraqi Airways will be responsible
both for the former Kuwaiti Company and for the Iraqi Company…"
- On 20 August, AHD-310 was relocated to Baghdad
from Basra. It is a matter of considerable note that IAC, in their part 18
response (A p.84) to a request by KAC to identify the date on which it was
admitted that IAC treated KAC's aircraft as part of its own fleet, stated as
follows: -
"IAC admits that it treated KAC's aircraft as part of its own
fleet from 20 August 1990."
- On 22 August, AHI-300 was flown to Baghdad,
direct from Iraq. That same day there was a meeting of IAC heads of department
with Mr Saffi. The Na'ma diary contained a cryptic account of Mr Saffi's
instructions given at the meeting. The Aziz documents, however, contained a
detailed minute of the meeting: (D.1 p.51 ff). This is an
important date since, as appears from the quote above, Aikens J accepted Mr
Saffi's evidence that the Government had decided on or about 23 August to use
Airbus 310s on the Baghdad/Kuwait route and that an instruction to that effect
was thereafter passed to Mr Saffi at the end of August (before any decision
had been made as to whether IAC should obtain the aircraft).
- The minute of the meeting was taken by Mr Raban
(the then head of the secret or confidential affairs office). It reads in part
as follows: -
"The Director General held on 22.08.1990 at 10 pm a meeting with
the cadre applying to the company to discuss the operation of Kuwaiti
aircrafts from Baghdad, as well as the preparation of the necessary
requirements for putting Kuwait International into operation from all
aspects in addition to other issues of concern to the company's current
business.
At the meeting the following was resolved:
1) Operation of Airbus aircrafts.
8 aircrafts were located in Basra, Baghdad and Mosul…
2) The Engineering Department shall immediately start painting
the aircrafts with Iraqi Airways logo using quick process (without removing
the old paint).
3) The Planning Section Manager shall prepare the technical log
of the aircrafts for consideration and analysis with a view to provide
approvals for the flight safety within one week of the date
hereof.
4) The Quality Control Manager shall be prepared to immediately
obtain the flight safety approval, registration of the aircrafts and
approval of the maintenance schedules. A period of one week shall be
specified for 2 aircrafts to be ready by 30/8/1990.
5) It was decided that 2 aircraft shall be brought from Mosul
Airport tomorrow Thursday 23/8/1990…"
- On 23 August, Mr Abbo sent the now familiar
message to the DGCA (disclosed in July 1996) seeking urgent advice on
registration of KAC 310-2005. This was treated by Aikens J as confirming Mr
Saffi's account that at about this date the Minister gave oral instructions to
IAC to prepare one or more airbuses (of that class) for use on the Baghdad to
Kuwait route. The message reads: -
"Pursuant to the instructions that issued from the office of the
Minister of Transport Air Communication, it has been decided to put the
Airbus (A310-200) (formerly Kuwaitia) into service on domestic routes
between Kuwait and Baghdad.
Please let us know the requirements for registering these
aircraft as Iraqi… "
- It was this letter which at earlier stages of
the litigation was said to have been written on 28 August, consequent on the
instructions, and to which there had been no reply. In fact, as I found in
Perjury I, the letter was written on 23 August and there was an immediate
response - on a copy of which Mr Abbo wrote a note to Mr Latif the Assistant
General Manager (Technical) to the effect: -
"To be informed of the above regarding registration of Airbuses
A310-200 aircraft (formerly of Kuwaitia) and your instructions
please."
This document was only disclosed in July 2000 after the hearing in the
Court of Appeal.
- During 23 August, as revealed by the Na'ama
diary, AHD entered the hanger for painting. (Before the end of August both AHD
and AHB were painted: AHI was painted in early September).
- Late in the evening (we are still on 23 August)
Mr Saffi held another meeting with the heads of department. The minute has now
been produced (D1 p.56). The relevant entry regarding airbuses
is at para.3:
"The Quality Control Manager has given the task of meeting the
engineers and technicians in Kuwait in order to deal with the
Airbus…"
- On 25 August, Mr Saffi wrote a letter to all
employees: -
"After the announcement of the merging unification with Kuwait
and the joining of the Kuwaiti Aircraft fleet with the Iraqi Airways
Company, all the employees are requested to take care of the aircrafts and
not to touch the material inside of them. …"
- This letter, disclosed in 1996, is discussed at
paragraphs 196 and 197 of the judgment of the Court of Appeal. An initial
translation contained the word "merging": this was later "corrected" to
"joining". Once thus corrected, it was concluded by the Court of Appeal that
it was not significant in the context of whether or not merger had occurred.
- This was a view that I felt compelled to differ
from in my judgment in Perjury I when the letter could be seen in the context
of the large amount of new material available even then: -
"89. I accept the submission made by KAC that Mr Saffi, as the
author of this letter, was proceeding on the basis that, in responding to
the instructions to implement Resolution 312 and 313, IAC could properly
regard the effect of the merger and integration as being that the KAC fleet
was to all intents and purposes part of, and to be operated with, IAC's
fleet. This view receives further support from the content of the Na'ama
diary in the period between August 24 and September 9 from which it would
appear that KAC stores and equipment were systematically removed from Kuwait
and brought into Iraq."
- This latter observation is further fortified by
Mr Saffi's letter of 25 August to the Security Police which has now been
disclosed [D1 p.62] which said: -
"In view of the fact that the Iraqi Airways Co has withdrawn to
Baghdad the materials belonging to Kuwaiti Airlines and has deposited them
in special warehouses, we request that additional security personnel be
provided for the warehouses."
It would appear, therefore, far from starting the transfer of spares and
equipment as from 24 August, the task was already well under way, if not
completed by that time. (In this regard the Na'ama diary entries for 12, 13
and 14 August, which made reference to large amounts of KAC spares and
equipment, may have earlier appeared somewhat obscure but became very
revealing in the light of the new material.)
- In any event, as regards what was involved in
any joinder, merger or integration, a further letter (D1 p.69)
written by Mr Saffi on 25 August, this time to the Economics Committee, is
much in point:
"Now that the branch has returned to the stem and the Kuwaiti
aeroplanes, which are ten in number, have been joined to the fleet of Iraqi
Airways Company, and now that an office and an airport terminal have started
operating in the city of Kuwait for purposes of internal transport, it is
necessary to increase the number of specialist operational staff, such as
engineers, commercial staff, and air stewards… "
- As Mr Abbo had been instructed in the meeting on
22 August, insurance and registration arrangements also got underway at this
stage. Of particular note was Mr Abbo's assistant's letter to IAC's Insurance
Manager of 25 August: -
"Kindly take the necessary action to insure the above aircraft
[AHD] noting it is being operated for commercial uses on internal
flights."
Although this insurance was referred to in the Na'ama diary, there was no
reference to the purposes for which the aircraft were being put. This was a
document only disclosed in August 2001.
- On 26 August a "top confidential" memorandum was
prepared by Mr Adel Hammam: [D1 p.73]. It picked up on the
minutes of the meeting of 22 August and recommended that, for the purposes of
operating the airbus aircraft, a Resolution of the RCC should be issued
transferring ownership of all fixed assets and movables belonging to KAC
(together with all funds) to IAC and "to include in the Resolution the
nomination of officials to manage the said facility and to paint the aircraft
under the said Resolution".
- The memorandum went on:
"Inventory and valuation of all spare parts for the aircraft …
shall be made and entered into special records which are separate from those
of Iraqi Airways Co at present…"
- In response to this memorandum, Mr Saffi duly
wrote to the Presidency Secretariat [D1 p.84]: -
"Given that the amalgamating union between Kuwait and Iraq has
been achieved and the branch has returned to the stem, please approve the
notion that the movable and immovable property of Kuwaiti Airlines has to be
transferred to the ownership of Iraqi Airways Corporation.."
- Mr Saffi also wrote to the Presidency
Secretariat that same day. This letter was only disclosed in May 2000:
"With reference to your letter …dated…7 August [the original
written instruction] – we started to transfer the Kuwaiti aircraft to the
Iraqi register and preparing the personnel of pilots and technical staff to
operate these aircraft for internal transport only…"
- As I have said in my judgment in Perjury I
(albeit in the context of a suggestion by Mr Saffi that he had been instructed
to arrange flights restricted to the carriage of those on official business):
-
"104… it was fully apparent that the aircraft were being treated
as part of IAC's fleet rather than IAC were merely engaged in conducting
activities on behalf of the Government: …"
d. If further confirmation was required, Mr Saffi's letter to
the Presidency Secretariat of Aug 26 establishes that the transfer to the
Iraqi register being arranged by IAC was being pursued so as to put into
effect the instructions contained in the Presidency Secretariat letter of
Aug 7."
- Also on 26 August, a further meeting was held
between Mr Saffi and the heads of the department. The minutes have not been
disclosed but they are referred to [D1 p.92] in a set of minutes
for the meeting on the following day, 27 August: -
"8. As to paragraph 8 of session 4 minutes about approaching the
Minister of Transport of Communication decision was that the properties of
Kuwait Airways should be transferred to this company as per the directives.
The Ministry has been addressed in this regard."
- On 27 August [D1 p.91] Mr Saffi
wrote to the Economics Committee seeking approval to the appointment of
additional staff. It is notable that this was put forward, in Mr Saffi's own
words, against the background that: -
"The branch has returned to the stem, the ten Kuwaiti aeroplanes
have joined the fleet of the Iraqi Airways Co. and the office and terminal
at Kuwait City Airport have been put in operation for internal
transport."
- The minutes of the meeting between Mr Saffi and
the heads of department on 27 August [D1 p.92] expressly
recorded that the painting of Airbus AHD 310 was "completed". That same day Mr
Saffi wrote to the Presidency Secretariat explaining the need for the transfer
of property from KAC to IAC was prompted in particular by the systematic theft
and pilfering of KAC equipment: [D1 p.94].
- On 28 August Mr Al Zubaidi called for the
establishment of a joint committee to prepare an inventory of all items of KAC
equipment with a view to their transfer to IAC. The need for the transfer of
property was taken a stage further on 29 August [D1 p.100] when
Mr Saffi addressed a "top confidential" memorandum to the Deputy Prime
Minister: -
"1….in order to enable the Iraqi Airways Co. to run, operate,
maintain and utilise the property registered in the name of the (the
dissolved) Kuwait Airways Corporation within legal context an order needs to
be issued transferring the ownership of all fixed and movable assets as well
as the rights and liabilities under contracts."
- This suggestion appears to have been supported
in a letter from the Presidency Office to the Deputy Prime Minister dated 1
September (which remains undisclosed). The only letter disclosed earlier (and
then only in October 2001) was the Deputy Prime Minister's response dated 5
September [D1 p.115]: -
"Having considered the matter attached to your above letter on
the transfer of fixed and liquid assets of the Kuwaiti Airways Corporation
into the ownership of the Iraqi Airways Company and having considered the
contents of the Iraqi Airways Company letter No. 1828 dated 29/8/1990
relating to the above matter and further to other related matters regarding
the assets of Kuwaiti Airways Corporation, we enclose herewith a Draft
Resolution to be issued by the Revolutionary Command Council, after
approval, to deal with the matter in a comprehensive manner."
- In the meantime, on 28 August a decision had
been taken as to where to store the spares that were being removed from Kuwait
[D1 p.103]: -
"It has been resolved that the Government of Kuwait should be
taken as a base to store the reserve spares for Airbus aircrafts and B767
and for Baghdad to become a base for reserve spares for the B747 and 727
aircrafts…"
- At about this time a rash of movements of the
various aircraft were performed:
27 August AHB 310 moved from Mosul to Baghdad.
29 August AHG 300 moved from Tekrit to Mosul (where it remained
until destroyed).
30 August AHD 310 moved from Baghdad to Mosul (possibly via
Kuwait for the purpose of Mr Saffi responding to Mr Al Zubaidi's
requirements for an inventory of all KAC spares).
31 August AHE 310 & AHF 300 moved from Tekrit to
Basra.
- The rationale behind these movements and whether
they came about on the initiative of the Government or IAC was a highly
controversial topic before Aikens J. In particular, there was considerable
focus on the explanation for the departure of the three aircraft from Tekrit.
- On 9 September, RCC Resolution 369 was passed.
This provided: -
"1. Kuwaiti Airways Corporation is hereby dissolved and all its movable and
immovable assets, rights and obligations are transferred to Iraqi Airways
Company…
2. All possessions of Kuwaiti Airways Corporation shall upon
the coming into force of the Resolution be handed over to Iraqi Airways
Company."
- This Resolution came into force on 17 September.
In Perjury I, I found that the significance of this Resolution was as follows:
-
"In reality there was no sea-change as a consequence of RCC
Resolution 369 coming into force. It merely purported to give legitimacy to
the process of absorption, which was already well underway, as a matter of
internal Iraqi law."
- By 10 September, the Iraqi leadership was
pressing for an increase in the number of flights between Iraq and Kuwait and
they were duly increased to 5 flights per day as from the 11 September.
- As regards to the movement of the KAC aircraft
thereafter, the position as emerged before Aikens J was: -
26 September AHA 310 was moved from Mosul to Baghdad
27 September AHC 310 was moved from Mosul to Baghdad
AHE 310 was moved from Basra to
Baghdad.
All three were duly painted in IAC livery. On 28 September AHD 310 (already
in IAC livery) was moved from Mosul to Baghdad. In fact only AHD thereafter
conducted flights, mainly to Basra. There were no further movements until 17
November when AIB 767 AIC 767 and AHF 300 were flown from Basra to Mosul to
join AHG 300.
Chronology – eve of hostilities
- It is now necessary to move forward to late
December when the threat of hostilities began to be fully appreciated. On 30
December, Mr Saffi wrote to the Presidency Secretariat [D1 p.363]
enquiring "where the company's aircraft will land once the evacuation
order is issued to us". The response on the following day from the Presidency
Secretariat (D2 p.364) was to ask for IAC's proposals, making
reference to an IAC letter dated 22 December and an earlier letter from the
Minister, neither of which have been disclosed.
- Mr Saffi replied on 7 January [D2
p.366]:
"We proposed deploying our aircraft as follows: -
1. We approach the air force to distribute our aircraft to their
airports within the country as they deem appropriate.
2. A meeting presided over by the Minister of Interior was held
on the 6 January 1991 at shelter No.8 during which the subject of aircraft
deployment upon evacuation was discussed. It is proposed to delegate us to
Tehran for negotiating acceptance of the company's aircraft there.
…"
- The same day the Minister of Defence wrote to
the DGCA (referring to a highly confidential letter of 26 July which has not
been disclosed) enclosing an annex [D2 p.367]. The attached
annex stated:
"1. As regards the current circumstances consisting of blockage
of the western air routes with forced landing being made impossible at Basra
International Airport the following is hereby agreed:
a) The airport at the Air Force College in Tekrit is to be
deemed to be a stand-by airport for the landing of civil aeroplanes which
are taking off from or coming into land at Saddam International Airport
and Almathna Airport in the northern region. The secondary airport in
Adulwaaiya is deemed to be a stand-by airport if the situation makes
additional landing facilities necessary…"
- The Na'ama diaries refer to a meeting chaired by
Mr Saffi on 11 January in which this topic appears to have been discussed. The
full translation refers to:
"Tekrit S/B1 Adulwaaiya S/B2"
It is notable that the reference to these two stand-by airbases was missing
from the translation of the diary which was made available to Mr Justice
Aikens.
- Meanwhile on 9 January [D2 p.370]
the Director of Air Movements wrote to IAC (referring to a letter from IAC of
the 7 January which has not been disclosed): -
"We have no objection to diffuse your aircrafts on the bases and
airports pertaining to our Air Force as per the attached schedule:
-
- The attached schedule listed fourteen airports
or airbases to which were allocated IAC's Boeing fleet and the Iran Six. The
second item in the schedule was the focus of considerable controversy as to
its translation and designation. It was eventually agreed that it allocated a
KAC 707 to the Air Force College runway at Tekrit. (No mention however is made
in the schedule to Mosul or any of the Mosul Four.)
- That same day the Ministry wrote to Mr Saffi
enclosing "an annex concerning the sequence for moving the civil aeroplanes
away": [D1 p.372]. The annex was not disclosed.
- On 10 January Mr Saffi wrote to the Presidency
Secretariat [D2 p.377]:
"…we have been notified of the approval of the Air Force command
to accommodate the company's aircraft at their military airports within the
country and as co-ordinated between us.
We seek your approval to evacuate the aircraft at the said
airports once Saddam International Airport is jeopardized".
- On the same day Mr Saffi prepared a list of IAC
crew for "escorting our aircraft at the deployment locations". One of the
locations, identified both for a Boeing 707 and an Airbus, was the Air Force
College at Tekrit: [D2 p.378].
- On 16 January (following expiry of the
coalition's ultimatum at midnight) Mr Saffi was given some telephone
instructions by the Presidency Secretariat. Mr Saffi later explained what
steps were thereafter taken to evacuate the aircraft: - [D2
p.387].
"…
Item 5. Airbus 310 (5 aircraft): We have three Iraqi crews only.
Three aircraft were moved to Mashad Airport and the rest to be moved today.
Item 6. Airbus A300 (3 aircraft): One is defective at Saddam
International Airport. 2 at Mosul Airport to be moved to Mashad Airport in
Iran.
Item 7. 767: 2 aircraft: at Mosul Airport to be moved to Mashad
Airport later."
- On 17 January the air strikes began. On 23
January there was a coalition air raid on Mosul. It appears that then or
thereabouts AIB 767 and AHF 600 were hit. Further damage was sustained on the
28 January whereby all the Mosul Four were either destroyed or rendered
constructive total losses. The following day the Minister received a letter
from the Chief Commander of the Armed Forces to the following effect:
[D2 p.394]
" The President and Commanding Chief of the Armed Forces, may
Allah preserve him, has examined the position regarding the destruction of
the two Airbus aircraft and the damage to another aeroplane at [Mosul] and
has given the following instructions:
"Why were the Airbuses left where they were and not transferred
with the other aeroplanes to Iran before the war?
Please do what is necessary and keep us informed".
- Mr Al Zubaidi was quick to respond: [D2
p.397]
"1. I would like to inform you that Iraqi Airways Company is
connected to the Council of Ministers and that this Ministry has no
relationship with that company.
2. On 15.1.1991 although there is no relationship with that
company, I informed [Mr Saffi] that he should urgently send his aeroplanes
to Libya, Sudan, Algeria, Tunisia and Mauritania on that day and after I
obtained the approval of the Iranian Authorities, he should send them to
Iran, provided they reached Iran before 8 a.m. on 16.1.1991 in accordance
with the request of the Iranian Authorities. He subsequently informed me
that he had taken all the necessary measures. As he is not connected with
this Ministry I have no knowledge of how the aeroplanes of the Iraqi Airways
Company were distributed."
- A copy of the original letter had been sent to
Mr Saffi and he responded at [D2 p.400] as follows: -
"We would like to state the reasons for not flying the Airbus
aircraft from Mosul (before the war) as follows:
1. The aircraft were previously aground at Basra Airport and the
Minister of Transport and Communications had requested their flight to
Mosul. This was executed.
2. We wrote to the Presidency Diwan via the letters of which the
numbers and dates are listed below… However the reply had not been received
until 15.1.1991 evening where we had to contact the Secretary of the
President by phone. He kindly directed us to evacuate the aircraft to the
Arab countries and Iran instead of the airbases. Eighteen aircraft were
actually evacuated at one night…
3. We have three Airbus and 767 pilot crews totalling ten
aircraft. The pilots had shuttle flights between Baghdad and Tehran and
returned secretly which took longer time. Actually 5 Airbus aircraft were
sent. Part of the crew is still in Iran.
4. During the war the Airbus and other Iraqi aircraft were flown
in co-ordination with the operations at the air force headquarters… They
gave priority to the aircraft aground at Saddam International Airport and
Almatha Airport as it was difficult to pass to Iran at the northern
areas.
5. On 23.1.1991 we sent the Engineering Director to [Mosul] to
review the aircraft. They were deployed in agreement with the Aircraft
Commander…
6. Thanks to the directors of the Secretary to the President we
were able to fly twenty-one aircraft including the Presidential aircraft
outside the country within two days. We would also like to inform you that
we are present day and night at Saddam International Airport with the rest
of the staff to implement the duties and directives received by
us…"
- This letter appears to have led to further
questions from the Presidency Secretariat and in particular as to why the
aircraft at Mosul had not been painted in IAC livery. Mr Saffi responded in a
memorandum dated 4 February 1991 [D2 p.410]: -
"1. Reasons for not painting the aircraft at Mosul
Airport:
1. There are four aircraft at Mosul Airport, two B767 and two
Airbus A300. These two types of aircraft were not used at Iraqi Airways,
they do not resemble to the aircraft which was ordered and there are no
specialised crews for them and particularly for the
B767.
2. On 15.8.1991 we started painting the aircraft upon
relocation from Kuwait Airport and deployed them to Basra, Baghdad, Tekrit
and Mosul Airports. We gave priority to the five Airbus A310 aircraft
because they were of the same type of the aircraft originally ordered by
the company. ….
7. Prior to painting the aircraft, approval for the air-safety
must be obtained for registration certificate and airworthiness
certification. This was done only upon ensuring the maintenance programmes
by supplying the spare parts noted on the aircraft. As for the aircraft in
Mosul i.e. B767 and Airbus A300, we could not find those parts as there
was a big mess all around the circles and devices at Kuwait Airways
which were left unattended and in all facilities at Kuwait
Airport.
The above reasons caused delay in painting the aircraft
although they were scheduled for painting at a later stage. The two B767
aircraft were drawn from Basra Civil Airport to Mosul (Civil and Military)
at the request of the Director of Transport and Communications in order to
evacuate Basra International Airport….
2. Duties of the Airbus aircraft crews for the period 15.1.1991
to 28.1.1991….
7. From the above it is noted that during the period 18.1.1991
to 29.1.1991 there were no crew for the Airbus aircraft to carry out the
task (moving the aircraft from Mosul Airport)…
8. The above indicates that the main reason for being unable
to move the aircraft at Mosul Airport was the delayed arrival of approvals
from the Presidency Diwan to our previous letters. Had we been given the
opportunity to evacuate as we requested the task would have been
completed…"
- This letter is obviously interesting as it
appears to be the only document to spell out in direct form the rationale
behind the selection of A310-200s for painting and the identity of the body
that made the selection, a topic very much at the heart of the present
proceedings.
Correspondence relating to the litigation
- That constitutes a summary of the principal
documentation relating to the events surrounding the KAC aircraft, almost all
of which has emerged since the Aikens J trial and most of that from the
documents that IAC sought to conceal. There is also some later correspondence
touching on the subsequent litigation. As regards the latter, the only
exchange of immediate significance is on a somewhat different topic, namely
the need for, and content of, evidence from the Minister Mr Al Zubaidi in the
light of the threat by KAC to seek a reversal of the House of Lords' judgment
regarding IAC's sovereign immunity for the period up to 17 September:-
i) On 7 July 2000 (shortly after the Aikens J judgment was handed down) the
new Minister of Transport wrote to Mr Al Zubaidi (by then Deputy Prime
Minister) reporting on KAC's petition to the House of Lords and the allegation
that Mr Saffi's evidence had been untrue [D2 p.645]: -
"… To rebut this claim you are kindly requested to confirm the
following:
…
Secondly, [Saffi] was not aware of the issuance of
Revolutionary Council Command's Resolution No.369 dated
9.9.1990.
Thirdly, that operation of the Kuwaiti aircrafts between
Baghdad and Kuwait was for general systematic [sic] purposes and
(illegible)
Fourthly, that the aircraft marked with Egypt air logo was not
used for commercial purposes before the issuing of …369 on 9.9.190 as was
the case with other aircrafts.
Fifthly, that KAC has another objection relating to the
contents of the Presidential Office letter … dated 7 August 1990 about
repairing Kuwait Airport (copy attached). We suggest confirming that the
required measures were Governmental ones and had nothing to do with the
commercial side at all.
Sixthly, as I pointed out earlier that all the instructions
issued in this concern were Governmental and that the measures taken on 7
August 1990 were purely Governmental and had nothing to do with commercial
activities.
We present you the above details seeking full support to IAC
in this respect. The Ministry IAC and the lawyers appreciate your
courageous stances that lit the path of the court in rendering a
favourable award to IAC. Hence the above presentation is to confirm the
same. We also suggest the lawyer pays you a visit next September to
confirm the memorandum in this respect."
Enclosed with this letter, together with a copy of the letter of
7 August, was an unidentified memorandum from Mr Kosky.
ii) Mr Al Zubaidi replied on the 6 September [D2 p.647]…
"1. KAC advocates claim that … IAC used the Kuwaiti aircrafts
in August and beginning of September 1990 for commercial purposes is
untrue. Towards the end of August 1990, we issued verbal instructions to
the then IAC Director General Mr Saffi to operate the aircraft for
official purposes based on the Government's wish to transport personnel of
the State and of the Armed Forces from/to Kuwait…
Pursuant to those instructions IAC prepared, painted and
registered the aircraft for this operation which was not a commercial
operation for commercial purposes. The Government had no intention to use
these aircrafts except for official purposes. However, after some time the
idea of giving the aircrafts out to IAC crystallised although IAC Director
General was not willing to take over and use these aircrafts…
2. …b) [Mr Saffi] was not aware of the issuance of [RCC] 369
on 9/9/1990 until it was issued and published.
c) that the operation of Kuwaiti Airways between Baghdad and
Kuwait was for public official purposes.
d) the aircraft marked with Egypt Air logo was used for
commercial purposes only after the issuance of [RCC] 369 as was the case
with the other Kuwaiti aircraft.
e) that the content of the Presidential letter… [regarding]
Kuwait Airport was a sovereign presidential order which included no
commercial aspects.
3. I state the Government of the Republic of Iraq had not
taken as of 2nd August any decision on how to dispose of the
Kuwaiti aircrafts until [RCC] 369 was issued on
9/9/1990…."
- It is characteristic of the material adduced by
IAC throughout this litigation that the content of this letter is almost
entirely false. In particular, it is no longer even contended by IAC that the
Government were intending to use the KAC aircraft for non-commercial purposes
at any stage. Further, the suggestion that Mr Saffi was unaware of Resolution
369 until it was published has also been abandoned.
IAC's case on the alleged lies
- It is common ground that IAC gave false evidence
at both the trial before Mance J and the trial before Aikens J. The
concessions by IAC in this regard go at least this far: -
a) As regards the Mance J trial, IAC accept that the Corrected
Schedule, and all the witness evidence which supported it, was false in
showing that acts such as insurance, registration and repainting and other
acts of interference with KAC's aircraft only took place after 17 September.
b) As regards the Aikens J trial:
i) IAC admit that the witness evidence, to the extent that it
suggested that an instruction to use some of KAC's aircraft on the Baghdad
route was given by the Minister of Transport as late as the end of August
1990, was false: it was "now believed to have been about 22nd
August" (although quite by who it is so believed remains obscure).
ii) Similarly, in accord with the decision of the House of
Lords, Aikens J proceeded on the basis that no actionable tort was
committed before 17 September: this conclusion was based on false and
perjured evidence: see Perjury I judgment. IAC now admit that it
wrongfully interfered with KAC's moveable assets prior to 17 September by
treating them as its own: in respect of the spares this took effect from 9
August although in respect of the aircraft it is said (apparently) to be
from 20 August.
- Against that background, I turn to the
individual lies that KAC allege were advanced, bearing in mind both my other
findings in Perjury I and the content of the concealed documents.
Mance J trial: Lie 1
IAC did not treat KAC's aircraft as part of its own fleet/incorporate
KAC's aircraft into its own fleet (including by way of repainting KAC's
aircraft in IAC livery, registering and insuring KAC's aircraft) until after
RCC Resolution 369 took effect on the 17 September 1990.
- The judgment considered the question of wrongful
interference on the basis of the Corrected Schedule. This was tendered by IAC
as an accurate record of the activities in regard to the KAC aircraft. The
picture thus presented is summarised in paragraph 62 of the Court of Appeal
decision. In broad terms it claimed that the first application for
registration was made on 2 October 1990, the first insurance cover was
effected on 18 September, the first repainting sometime after 17 September,
the first scheduled maintenance on 29 September, the first commercial flight
on 17 October and the only movement on 17 November.
- The schedule was supported by the witness
statements and such documents as had been disclosed by IAC at that stage. It
follows that the Corrected Schedule perpetuated one of the central lies
exposed in the Perjury I trial, namely that all such acts took place after 17
September 1990 when Resolution 369 came into force. As noted above, this much
is now uncontroversial.
- More importantly, since it was only on that
basis that KAC accepted that IAC was unaware that it was interfering with
another's property, this lie in turn induced the concession by KAC as regards
the burden of proof, a point that I shall develop in the context of
materiality.
- Going behind the Corrected Schedule to consider
the content of the witness statements, the starting point was the evidence of
Mr Saffi who, of course, had been the Director General of IAC throughout the
relevant period. In his statement prepared for the Mance J trial, he said that
he had received a telephone call from Mr Al Zubaidi during the night of 5 or 6
August instructing him to send IAC personnel to KIA to evacuate the KAC
aircraft from Kuwait and to bring them safely into Iraq. The Minister asked
him "to take care" of the aircraft by which he understood that IAC was
required simply to keep the aircraft in serviceable condition. Mr Saffi made
no mention of any written instruction from the Minister. "He [the Minister]
did not say what plans he or the President's office had for the aircraft". Mr
Saffi said that the aircraft were duly flown to Iraq and "handed over to the
Government".
- His statement went on: -
"10. In accordance with the instructions of the Government, I
gave instructions to IAC's maintenance department to carry out light
maintenance consisting visual checks to make sure that the KAC aircraft were
alright and to carry out simple maintenance for the Government."
- This description of the position as regards
Ministerial instruction was entirely false as held in my judgment in Perjury
I: -
"151. In reality, far from IAC confining itself to basic
maintenance, IAC was responding to a Government instruction to prepare the
aircraft for commercial flights to Kuwait. Given the steps taken by way of
response, it is no longer arguable, in my judgment, that they were
sufficiently related to the act of seizure to attract immunity. Per contra,
IAC was, even during this interim phase engaged in the process of absorbing
the KAC fleet and, to that end, had commenced changing the aircraft livery,
reregistering them, insuring them and employing maintenance
personnel."
- Mr Saffi's statement went on to spell out the
entirely bogus story, as revealed in Perjury I, regarding the correspondence
between Mr Abbo and the DGCA:
"13…. On 28 August 1990 Mr Abbo wrote on behalf of IAC to the
air safety division of the Aviation Authority asking them to specify their
requirements; this letter seems to have crossed with the Authority's reply
to an earlier letter dated 23 August 1990 which related to the two aircraft
which IAC was in the process of leasing from Royal Jordanian Airlines and
which also required registration by the Authority. There was no reply to Mr
Abbo's letter. On the 19 September 1990 I wrote to the Director General of
the Civil Aviation Authority saying that following RCC Resolution No 369 IAC
wish to register the ex KAC aircraft both internally and internationally. On
the 29 September 1990 the Director General of the Authority replied amongst
other things referring us back to its letter… of the 23 August 1990. In
other words, the Iraqi requirements for these aircraft were the same as for
the cargo aircraft."
- The difficulty of course with this part of the
statement is the suggestion that there were only tentative inquiries about the
registration at the very end of August (28 August) and that active steps to
obtain registration were not pursued until 19 September after Resolution 369
had become effective. And there is the even greater difficulty that the first
of the two Abbo letters referred to in the statement was found in Perjury I to
be a forgery and the second to have been written not on 28 August but on 23
August (and furthermore that the Authority's letter of 23 August was indeed a
reply to it).
- The statement went on as regards notification of
Resolution 369 as follows: -
"15. In the meantime on the 11 September 1990 IAC received a
letter… dated 10 September 1990 from the presidential office informing IAC
that the Revolutionary Command Council ("RCC") had passed Resolution No.369
date 9 September 1990 instructing IAC to take the necessary action to
implement its provisions which came into effect on 17 September 1990…"
- To the extent that this was a suggestion that
the first instruction from the Government to IAC to absorb the KAC fleet was
the unprompted enactment of Resolution 369 whereafter IAC took steps for the
first time to implement that policy, it was, as appears from the documentation
quoted earlier, entirely false.
- As regards movement of aircraft Mr Saffi said
this in his statement: -
"18. From the information gathered by IAC I now understand that
as at about 20 August 1990 the KAC aircraft were dispersed within Iraq as
follows:
Basra: 1 Airbus and 2 Boeings 767's
Mosul: Four Airbuses
Tekrit: 2 Airbuses
Baghdad: 1 Airbus (in Egypt Air livery).
By 27 September 1990 some of the ex KAC aircraft had been moved
by IAC for the purposed of repainting so that they were then dispersed as
follows: Basra 1 Airbus and 2 Boeing 767, Mosul 2 Airbuses, Baghdad 5
Airbuses…"
Again this was a wholly false picture of the movements, let alone of the
arrangements made for repainting of the aircraft.
- Mr Nekash's statement prepared for the Mance J
trial asserted in terms that he had written a letter on 15 August 1990
requesting that information with regard to registration of "a cargo aircraft"
should be obtained. The statement describes how Mr Abbo then passed that
enquiry on and then received a reply on 23 August. The difficulty here again
is that, in Perjury I, I found that the letter of 15 August 1990 was also a
forgery: -
"135. The overwhelming probability is that the letter of the
August 15 was created to explain the sequence leading up to a letter dealing
with registration requirements prior to September 17. It was appreciated
that Abbo 1 in isolation would undoubtedly be perceived as a strange enquiry
arising out of a blue. This in turn necessitated the creation of the August
15 letter to add a degree of apparent legitimacy. Equally it was appreciated
that it could not refer to earlier leasing negotiations, as they had run
their course. I am in summary persuaded to the required standard of proof
that the August 15 letter is not genuine either."
- On this same topic, the statement of Mr Nekash
went on in parallel with what Mr Saffi had falsely said: -
"6. … I later received a copy of a further letter … dated 28
August (not 23 August 1990 as originally translated) which Mr Sabah Abbo
wrote to the Directorate of Air Safety concerning the requirements for
registration of these passenger aircraft. There was no reply to that letter.
After RCC Resolution 369 came into effect, Mr Saffi wrote again to the
Directorate by letter… dated 19 September 1990 saying that IAC wished to
register the ex KAC aircraft in consequence of RCC Resolution No 369 both
internally and internationally. The Directorate replied on 29 September 1990
by letter… telling IAC that the requirements had for already been set out in
the Directorate's earlier answer sent on 23 August 1990 and specifying a
particular form… which had to be used. In other words the information
required for registering passenger aircraft was the same as that for cargo
aircraft."
- Consistent with this untrue account, the
statement asserted that no steps with regard to registration, insurance or
painting were undertaken prior to 17 September. For example, as regards
painting, he said this: -
"19. As for repainting I know that 6 of the ex KAC Airbuses were
repainted in IAC livery. No records however were created by my department
except for one relating to 9K-AHC… dated 29 September 1990… The repainting
was considered to be an exceptional item of work and normal procedures were
completely ignored at the time.
21…By 27 September 1990, in order to enable some of the ex-KAC
airbuses to be repainted, they were relocated …Baghdad: five
airbuses."
- In fact this was wholly untrue. As was to emerge
during the course of the Aikens J trial by reason of the production of the
Na'ama diary, three of the Airbuses had been over-painted in IAC livery before
17 September.
- Mr Al Zubaidi's statement so as far as material,
read as follows: -
"5. On about 5 August 1990 on behalf of the RCC I gave verbal
instructions to the Director General of Iraqi Airways IAC that IAC should
act with great speed and help to fly out of Kuwait those of the KAC aircraft
which the Iraq air force pilots were not qualified to fly and which remained
at Kuwait Airport so as to take them to safe airports within the territory
of Iraq (as it was before 2 August 1990). I also verbally instructed him
that IAC should look after those aircraft for the time being. The Director
General later reported to me that IAC had done as instructed."
- Again this was wholly untruthful and misleading,
with not a word of the written instruction of 7 August or of any activities
prior to 17 September. The reality was that IAC was actively taking steps
throughout the previous month to make the KAC aircraft part of its fleet and
put them to commercial use. IAC conceded as much, with the only dispute (if
material) as to the date on which its intentions were manifested.
- The fact of lie is fully made out. It was
promulgated, amongst others, by persons who, it is accepted, can be treated as
IAC itself. It was made up of statements that they knew to be false.
Mance trial: Lie 2
The instruction to use some of KAC's aircraft on the Baghdad
to Kuwait route was given by the Minister of Transport towards the end of
August and led to certain steps being taken in relation to KAC's aircraft
such as registration and maintenance.
- Certainly such an account features in the
statements of Mr Saffi, Mr Nekash and Mr Al-Zubaidi prepared for the Mance J
trial, although it is of some note that neither Mr Nekash nor Mr Al-Zubaidi
identify the type of aircraft. The implication (and it was a false one) was
that there had been no earlier instruction whatsoever. More to the point, Mr
Saffi dishonestly asserted that this oral order, given "at the end of August",
led to both registration and maintenance beginning to be put into effect in
mid to late September: paras. 9, 10, 13, 14. In his turn, Mr Nekash falsely
put the date of initial application for registration as "some date after 30
August". All this against the background that it is now accepted that the
reference to late or end of August was also false.
- The central issue (indeed it emerged as the
fundamental issue in this action) was whether any such oral instruction was
given at any stage. It is not practicable to determine this issue as part of
the analysis of what lies were deployed by IAC. This is particularly so in the
context of the Mance J. judgment since it was not a topic on which specific
findings were made by him. I propose to revert to the point in discussing the
materiality of the concealed documents on the issue.
Aikens J trial: Lie 1
IAC did not treat KAC's aircraft as part of its own
fleet/incorporate KAC's aircraft into its own fleet until after RCC
Resolution took effect on 17 September.
- So far as the Aikens J trial was concerned, the
evidence on this topic was furnished by Mr Nekash who not only provided
various statements but also gave oral evidence.
- In his third supplementary statement, in which
he revealed the existence of the Na'ama diary but expressed doubts about its
accuracy, he stated as follows: -
"15. There is a further entry [in the diary] on the 22 August
1990: "To prepare the aircraft as soon as possible for Baghdad – Kuwait…" …
I know that there was an instruction from the Government to IAC that the
Government wished to start using the A310 Airbuses for flights between
Baghdad and Kuwait as soon as possible and that this required the repainting
of the aircraft. I personally cannot say when repainting of the ex KAC
aircraft first started. I do clearly remember that there was a shortage of
the required paint. … In view of the date given in Mr Na'ama's diary I would
accept that the date of the Government instruction to IAC, involving
repainting of the ex KAC aircraft, can be refined. (Mr Saffi had stated in
his first statement of the 14 June 1997 that the instruction to put Airbus
310 aircraft into service was given "at the end of August 1990"). Painting
work on one aircraft had started after that [emphasis added]
and later on IAC worked out the order on which the repainting of the others
would take place….
17. On the 25 August 1990 there is an entry "… insurance from
next Thursday YI-AOA…" The records of IAC which have been disclosed show
that the insurance certificate for aircraft YI-AOA… was issued in IAC's name
on 18 September 1990. (Previously it had been insured on behalf of the
Government through IAC, I believe, as from 30 August.)"
- The theme of this evidence is that any insurance
or painting activity carried out before Resolution 369 was at the Government's
request and for its own purposes. This theme remained constant in Mr Nekash's
oral evidence albeit the date of any Governmental intervention and resultant
activity remained obscure. For instance:-
"21 October 1999
Transcript p.42
Q: You said that you thought [after the crisis] the airbus would
go to its "rightful owner". Who did you think its rightful owner
was?
A: Well at that time it was the KAC.
Q: So if the owner at that time was KAC it would have been
rather an odd thing to change the livery to that of IAC, would it
not?
A: Mr Chambers it is the Government that took the aircrafts at
that time and we have got instructions to do that.
Q: To do what?
A: To fly the aeroplane between Kuwait and Baghdad.
Q: And to change the livery?
A: Yes, that is their instruction.
Q: Did you know that that was their instruction?
A: Yes, they instructed us.
Q: So you knew at that time in August that it was their
instruction to change the livery of the Airbuses?
A: To change the livery of the Airbus and to fly
them.
Q: And you knew that in August 1990?
A: What time in August, it depends? It depends what time in
August.
Q: Well at some time in August you knew.
A: At the end of August.
Transcript p.78.
Q: Yes, then on about August 20 all that changed, did it
not?
A: Yes, sir.
Q: Because you were told that it is the airline that was told
that it was going to have to take the (KAC) aircraft?
A: They did not tell us on the 20th Mr Chambers. We
have been told and we did not know what was in their mind. Just to operate
the KAC 310 from Baghdad to Kuwait. How were we going to operate it we do
not know. But that was the instruction at that time. It was not an
instruction to incorporate into our fleet."
- In short, it became common ground that some
activity occurred before 17 September. Whether this activity took place during
a period when the question of incorporation of the KAC fleet into the IAC
fleet was in a state of limbo is not a matter which can be conveniently
determined at this stage. In any event, the issue as to the scope and purpose
of that activity became rolled up in the issue as to the existence, content
and impact of any instruction by the Government during the last 10 days of
August to operate the KAC aircraft. This in turn leads to Lie 2.
Aikens J trial: Lie 2
The Governmental instruction to use KAC's airbus A310s on the
Baghdad to Kuwait route led to certain steps being taken in relation to
KAC's aircraft, such as movement to Baghdad, painting, registration and
maintenance.
- I have quoted relevant extracts from Mr Nekash's
evidence above. It is convenient to add one further extract from his oral
evidence:-
"25th October: transcript p.115
Q: The aircraft came to Baghdad, apart from the Hotel India…
came in order to be made part of the IAC fleet, did they not?
A: Gradually in the beginning no, to start with they came in on
instruction of the Government, as you know.
Q: They came in on instruction with the Government?
A: To fly them between Baghdad and Kuwait, yes.
Q: To have their livery changed?
A: Yes.
Q: Then to be treated as part,
A: To operate them…
Q: As part of the IAC fleet?
A: No.
Q: No?
A: Nobody knows what it is in their mind, the
Government.
Q: Why were they going to have their livery changed?
A: Because all the aircrafts whether Government or not
Government, they all have the IAC livery."
- As already noted, this picture was accepted by
Aikens J. But it must be born in mind that, whilst KAC had unsuccessfully
contended that the two fleets had been merged, it was understood by Aikens J
that KAC at least accepted that it was the Government's decision that the KAC
A310-200s be put into service and should be repainted:-
"120 …KAC accepts that it was the Government's decision that the
KAC A310-200s should be run as a part of the IAC fleet and so ordered the
repainting of those aircraft at IAC's headquarters at Saddam International
Airport, Baghdad."
- If there was a concession to that effect, it is
certainly now withdrawn. In any event, as the footnote to the judgment reveals
it was in turn based solely on the evidence of Mr Saffi. In these
circumstance, as with the equivalent lie alleged to have been made in the
Mance J trial, it is convenient to consider the issue whether any such
instruction was ever given by reference to the materiality of the concealed
documents to the fate of the Mosul Four. If they are material, then the
outcome would be that any finding in that regard would be set aside and
thereafter be re-determined on all the material.
Aikens trial: Lie 3.
The movement and location of KAC's aircraft was controlled by
the Government of Iraq/ the IQAF, not IAC.
- The relevant part of Mr Nekash's statement reads
as follows: -
"33. Once the ex-KAC aircraft had been initially flown from
Kuwait to Basra in early August, 1990, it was the Government's instruction
to IAC at that time that they should be distributed to Iraqi airports as
directed by the IQAF. Accordingly, IAC distributed them in Iraq as directed
by the IQAF. An IQAF officer (Brigadier Fatih) was appointed as the IQAF's
co-ordinator to IAC. He liased directly with the Director General, but often
managers and pilots were brought into the various meetings which took place
at that time with him. In addition, I knew him personally and, after his
meetings with the Director general of IAC, I used to sit and discuss with
him what the IQAF required to take place. He was responsible for obtaining
IQAF permission for all such flights as IAC was not permitted to fly any of
its aircraft during this time except with prior permission of the
IQAF.
34. Brigadier Fatih initially instructed IAC that the IQAF had
decided to send some of the ex-KAC aircraft to Tekrit (Al Sahra Airfield),
which is a military airfield operated by IQAF and is (and was then)
primarily used by the IQAF training college, that other aircraft were to be
sent to Mosul and that the remaining aircraft were to remain provisionally
in Basra. Al Sahra Airfield was not an airfield used by either IAC or by the
Government for any civilian flights. It was entirely an IQAF establishment.
35. Towards the end of August 1990 I, and other senior managers
of IAC, were instructed by the IQAF, through Brigadier Fatih, that it was no
longer acceptable to the IQAF for Al Sahra Airfield or any other IQAF
airfield or airbase to be used for keeping any of IAC's civilian aircraft
since they were purely military airfields. We were informed by Brigadier
Fatih that the ex-KAC aircraft were in the way of military operations at the
Al Sahra Airfield, that the airfield was, in any event, not suitable since
it did not have appropriate maintenance facilities and that civilians would
not in future be allowed into the Al Sahra Airfield. We were thus forbidden
any longer to have the use of any military airfield of the IQAF for keeping
any of the ex-KAC aircraft. Accordingly, the Government required, through
the IQAF, removal of the aircraft then located at Al Sahra Airfield (Tekrit)
and this was carried out.….
36. In the period leading up to the commencement of hostilities
in January 1991, there was never instruction, suggestion or advice from the
IQAF to IAC that we should or could make use of their military airfields. On
the contrary, the advice or instruction which IAC had received from the IQAF
was that we could not and should not do so. From IAC's point of view, the
only direct involvement of the IQAF (apart from air traffic control) was in
implementing the Government's instructions for the dispersal of the IAC
civilian fleet to Iran, directing the evacuation of the civilian fleet to
Iran, in giving instructions to IAC's local manager as to where the four
aircraft at Mosul Airport should be placed at the Airport just before and
after hostilities started and in giving instructions as to the placing of
the VIP aircraft (including the KAC aircraft) which remained at Al Muthanna
Airport."
- Mr Saffi had said in his statement for the
Aikens J trial that IQAF had advised that Mosul was the safest place to locate
the two A-300s and that "with that advice in mind, IAC moved the two Boeing
767 aircraft to Mosul in November 1990." On this topic, Mr Nekash was asked
during the course of his oral cross-examination to reconsider his evidence
relating to the initial distribution of the aircraft following their arrival
in Basra against some other evidence that had been given by Mr Saffi before
Evans J in 1992: -
25 October 1999 Transcript p.91
"Q: Would you have a look at page 14 of the bundle at what Mr
Saffi said at 'E' the question:
Q: "So you decided where they should go did
you?"
A: "Yes, once they come – [to Basra] - I say, yes, we will
put them – distribute them in the airports here and
there…"
That is what he said and he was right, was he
not?
A: No he was not right.
Q: But he was the man in charge at IAC was he not?
A: He was in charge of IAC but at the time the aircraft, it was
not in his power; he was not in charge of the aircrafts
Q: So he has got this wrong, has he?
A: That is what I believe"
- Again, it is not practicable to embark at this
stage on an assessment of whether this evidence was false. It is a paradigm
example of an area of dispute in which the allegations of lying have been
subsumed and overtaken by the complaint that documents have been deliberately
suppressed. Thus as regards the question of control of the movement and
location of the KAC aircraft, I propose to focus on the materiality of the
concealed documents.
Aikens J trial: Lie 4
In August – September 1990 the Government of Iraq was still
deciding what to do with KAC'S aircraft.
- The crucial evidence in respect of this matter
was that of Mr Al Zubaidi (albeit supplemented by the evidence of Mr Nekash
quoted earlier). Mr Al Zubaidi said in his statement: -
"4. At that time, in August/September 1990, the revolutionary
Council discussed what should be done with the ex KAC aircraft. Our decision
was that part of the KAC fleet should be handed over to IAC and that another
part which had by then already had been taken into possession of the Iraqi
Military/Air force authorities, should continue to be kept by the Iraqi
Military/Air force. That was a policy decision of the RCC in its capacity as
the Government and one of the legislative bodies of Iraq. In consequence RCC
Resolution 369 of 1990 was passed."
- Thus, it was Aikens J's finding that the context
in which the painting had taken place was that "IAC was expecting, probably
from late August, that the KAC aircraft would be operated by it or handed over
to it, as opposed to some third party: para. 94." It was KAC's case that the
reality was that, as from early August, there was not just an expectation but
a reality of such a handover. Whilst my findings in Perjury I give strong
support to the submission that this evidence was false, once again it is
probably more helpful to deal with the matter in the context of the concealed
documents.
Materiality
- It is accepted by the parties that I should
adopt the same principles in regard to the question of deliberate concealment
as that in regard to perjury. The disparity between the concealed (or
perjured) evidence and the new evidence would be material if it "entirely
changed the nature of the case": see Hunter v Chief Constable of West
Midlands [1982] AC 529, Odyssey RE v. OIC Runoff ...Mr
Justice Langley) Feb 11 2000. This is precisely the same approach as was
agreed by the parties and was adopted by me in Perjury I: see [2003] 1 Lloyd's Rep 448. at 467.
- I recognise the difficulties of analysis that
such principles may import in their train. To "entirely change the nature of
the case" at least requires material which was likely to be decisive of the
outcome. However, it is important to have regard to the relevant outcome. In
my judgment the question of materiality is to be assessed by reference to its
impact on the evidence supporting the original decision and not to its impact
on what might be the decision if the matter were retried on honest evidence:
see Odyssey p.119.
- In short I accept that KAC must persuade me that
the whole validity of the relevant part of the judgment is in doubt. Thus at
this first stage, when considering whether to set aside part of the first
judgment, the court has to be persuaded that the fresh evidence would in fact
have fundamentally changed or undermined the way in which the first court
approached and came to its conclusions and thus that IAC "dishonestly obtained
the fruits of victory".
Crucial findings
- In considering the potential impact of the new
evidence, and in particular what emerges from the concealed documents, it is
necessary to identify the principal findings in the judgments of Mance J and
Aikens J that touch on the Mosul 4. As regards to the former, the position is
entirely clear. I have already touched on the background to the crucial
concession made by KAC on the burden of proof. Given that matters proceeded on
the premise that there was no wrongful interference prior to 17 September, it
was accepted by KAC that IAC was not aware that it was usurping another's
property having regard to Resolution 369. Thus, in accord with Mance J's
judgment and KAC's concession, the burden of proof on the issue of causation
rested on KAC throughout the Aikens J trial.
- It was thus a highly material concession and it
rested on the false premise, induced by false evidence on the part of the IAC,
to the effect that no acts of usurpation occurred until after September 17 by
which time Resolution 369 was operative, thereby undermining any possible
contention that at the material time IAC was actually aware that it was
usurping another's property: KAC v IAC [2002] 2 WLR 1353
per Lord Nichol at para 48.
- The burden of proof was throughout a factor of
considerable importance. As Aikens J pointed out:
"In making findings on how the ten aircraft would have been
positioned before and during the hostilities "but for" the usurpation of
IAC, I am obviously engaging in an exercise of speculation on a grand
scale."
In my judgment, it follows that, in this respect alone, namely the burden
of proof, the impact of the new evidence entirely changes the nature of the
case as determined by both Mance J and Aikens J.
- With regard to the judgment of Aikens J, it is
true that things had by then moved on, not least because of the belated
disclosure of the Na'ama diary which provided at least the contemporary record
maintained by the Director (Engineering) of the activities in the run up to 17
September. This included, in particular, evidence of the painting of three of
the Airbuses in IAC livery prior to that date. Whilst this alone was
potentially sufficient to undermine the premise on which the Mance J judgment
was based, it remained common ground that the claim nonetheless needed to
proceed on the basis that the burden of proof rested on KAC (see Aikens J
judgment paras 31/34).
- The principal findings on causation made by
Aikens J on which it is appropriate to concentrate in considering the
materiality of the concealed documents are as follows:
"120…. In my view all the evidence points to the Government of
Iraq itself being the decision making body even if some entity had been
nominally control of the aircraft… Thus it was the Government that decided
to seize the aircraft initially. It was also [the Government's] decision to
pass RCC Resolution 369 which pronounced that the aircraft were assets of
IAC…."
"125. [as regards Tekrit]… I have concluded that the IQAF would
have ordered the aircraft out in any event. I am influenced by the fact that
by late August the Iraqi Government had not made any formal decision
on whether the KAC aircraft would be incorporated into the IAC fleet, even
though it had probably then decided that the KAC aircraft should somehow be
used by Iraq. Yet with the KAC aircraft in this state of limbo, the IQAF
ordered them out of Tekrit. I think it is likely that this state of limbo
would still have existed in late August 1990 even if subsequently there had
been no incorporation of the KAC aircraft into the IAC fleet…"
"130(1). I find that even if the Iraqi Government had not
decided to pass RCC Resolution 369 and even if it had decided that the KAC
aircraft should not be made IAC assets, it is still likely it would have
wished to use some or all of the KAC A310-200 on flights between Baghdad,
Kuwait and Basra. Mr Saffi Director General of IAC in August 1990 says in
his statement of 14 June 1997 page 4 para 13 that "at the end of August
1990 the Minister of Transport and Communications instructed me that the
Revolutionary Command Council wished to put some of the KAC Airbus and
A310-200 aircraft into service on domestic flights between Kuwait and
Baghdad". That instruction was given after the date of the Iraqi
Government's decision to use the KAC A310-200s which was about 23 August
1990 that is well before RCC Resolution 369 was passed. So it appears that
the decision and the constant instruction were made independently of
whether the aircraft were to be incorporated in the IAC
fleet…
(3) I further find contrary to KAC's submissions, that the Iraqi
Government would therefore have ordered the movement of the five KAC
A310-200s to Saddam International at Baghdad in August and
September…
(4) I further find that the five A310-200s would have been
overpainted in IAC livery in common with other Iraqi civil aircraft owned by
the state, even though not formally part of the IAC civilian
fleet…
169…But there is no evidence that the Iraqi authorities ever
considered moving the KAC aircraft to other airfields within Iraq after
mid-November 1990…
171. In my view, "but for" the usurpation of IAC, the
disposition of the ten KAC aircraft would have been exactly as it was in
fact…"
- In my judgment, there can be no doubt whatsoever
that the new material entirely changes the nature of the case on all these
matters. In saying that, I have not forgotten that some degree of additional
disclosure occurred in the aftermath of the Aikens J trial. But it has to be
borne in mind that the petition to the House of Lords seeking to revoke its
order on sovereign immunity was issued in May 2000 and dismissed in July
shortly after the hearing in the Court of Appeal in the Main Aircraft Action
(with the proposal that the matter be pursued by separate action). Thus the
dispute about pre 17 September activity was hived off.
- Furthermore, the additional disclosure in that
interim period was intermittent and sparse. It is sufficient to take some
examples: -
i) The August 7 instruction from the Presidential Secretariat was only
disclosed immediately prior to the Court of Appeal hearing, in May 2000. I
have already touched on its limited impact. Furthermore, it was IAC's case for
some years that it was not an instruction directed at it at all.
ii) Mr Saffi's letter of 26 August reporting on progress to the Presidency
Secretariat was also only disclosed in May 2000. I have already referred to
the comment made by the Court of Appeal on this document, the translation of
which was disputed, when read in isolation.
iii) It was only in July 2000 (after the Court of Appeal hearing) that a
copy of the Abbo letter of 23 August, annotated in manuscript by Mr Abbo
himself, was disclosed.
iv) The letter from Mr Abbo's assistant to IAC's insurance advisor written
on the 25 August, explaining that the aircraft were to be operated for
commercial purposes, was only disclosed in August 2001 nearly a year after the
Court of Appeal hearing.
v) The Deputy Prime Minister's letter of 5 September to the Presidency
Office making reference to the proposed Resolution 369 was only disclosed in
October 2001.
- In short, this dribble of incomplete disclosure
was more concealing than revealing. In due course it was possible for a
somewhat fuller picture to be established in the course of Perjury I. I have
already set out the broad outcome but at this stage it is desirable to note
some of the more detailed findings contained in the judgment:
i) Albeit it had been IAC's case that any activity in the form of
registration, insurance or painting of the KAC aircraft in the period prior to
Resolution 369 were in response to an oral instruction from the Minister in
late August to prepare some airbuses for non-commercial services to Kuwait, I
rejected this submission (para 102) because there was nothing in the
contemporary correspondence to support the suggestion. Indeed the letter of Mr
Abbo's assistant produced in August 2001 expressly stated to the contrary.
ii) The report of Mr Saffi dated 26 August produced in May 2000 made it
plain that all this activity was in response to the instruction of 7 August
(again neither of which were before Aikens J). Indeed, this documentary
material was difficult to reconcile with the Court of Appeal's finding at para
199, by way of comment on the suggestion that the first Abbo letter was a
forgery, that there was "no evidence that as early as 15 August the Government
had taken any decision in relation to the KAC aircraft …". In contrast, as I
found, the written instruction led to the immediate departure of an IAC
delegation to Kuwait on 9 August, led, as it then appeared, by Mr Abbo, this
being the very day on which it is conceded that the spares were
misappropriated.
iii) Likewise, the activity was in the context of the aircraft being
treated as part of IAC's fleet (para 104). Mr Abbo conceded as much in
commenting in his manuscript notes on his 23 August letter (again not produced
before Aikens J).
iv) It followed that while the legal position was perfected by Resolution
369, the de facto transfer was much earlier. The Deputy Prime Minister's
letter of 5 September produced in October 2001 suggested as much (albeit
tantalisingly it was not accompanied by the IAC letter to which it was a reply
and which, when finally produced, made the position plain).
- It has to be said that the very fact that these
intriguing documents emerged over a period of up to 18 months after the Aikens
J judgment is itself a demonstration of the skill of IAC in using disclosure
to try and create a false impression, a skill previously exhibited during the
Evans J hearing. But more to point, the Perjury I trial unearthed the fact
that the Nekash letter of 15 August (which the Court of Appeal treated as, "on
the cards", a routine registration inquiry: para 199) was in fact a forgery.
So also was Mr Abbo's first letter of 23 August (on which the Court of Appeal
felt unable to comment as matters were not explored at the Aikens J trial).
Furthermore the suggestion that the second Abbo letter was signed on 27 August
was false.
- I now revert to the impact of the concealed
documents which have now emerged. In this respect it is helpful to focus on
the underlying theme of the passages quoted above. The ingredients are:
a) No decision was made about handing the KAC aircraft over to
IAC until mid-September.
b) The decision was a Governmental one and was pronounced in
Resolution 369.
c) All the prior movements of the KAC aircraft were as a
consequence of Governmental orders.
d) Those orders included the selection on 23 August of A310-200
aircraft for use on internal flights
- In my judgment, the concealed documents were
clearly material (in the sense of entirely changing the nature of the case) to
these issues. For present purposes it is only necessary to identify some
examples which almost speak for themselves: -
a) D1 p.44 – This letter dated 19 August 1990
(i.e. a day before the dispatch of the first Airbus to Baghdad) from Mr
Saffi to the Presidential Secretariat enclosed a list of staff members to be
exempted from the military service. It was written against the background of
the 7 August instruction, the visit of the IAC delegation to Kuwait and the
subsequent distribution of the KAC aircraft from Basra. The list was
described as largely due to the fact that "about 12 Kuwaiti aeroplanes
became part of the responsibilities of Iraqi Airways".
b) D1 p. 50 - Minutes of the meeting of 22 August
1990 chaired by Mr Saffi discussed "the operation of the Kuwaiti aircraft"
and the "preparation of the necessary requirements for putting Kuwait
International into operation" as well as other "issues of concern to the
company's current business". It was copied to all departments of IAC "for
implementation" but not to any Governmental department. It placed
responsibility for painting, maintenance and registration on the appropriate
department and "decided" that aircraft should be brought from Mosul to
Baghdad. Quite apart from being difficult to reconcile with any state of
"limbo", all this is before the date on which there was any Governmental
decision to use the Airbuses, let alone the date when the decision was
passed on to IAC: cf. para 130 (1) of Aikens J judgment.
c) D1 p. 69 – The letter dated 25 August (very
shortly after it was contended that the Government decided to use A310-200
aircraft on the Baghdad/Kuwait route "independently of whether the aircraft
were to be incorporated in the IAC fleet") from Mr Saffi to the Economic
Committee is expressly to the effect that the Kuwaiti aeroplanes have been
"joined to the fleet of Iraqi Airways Corporation" and that IAC was seeking
additional staff to start commercial operations.
d) D1 p.73 - The letter dated 26 August from Mr
Hammam (responding to the content of the minutes referred to above)
specifically requested the passage of Resolution 369. (D1.p 100
- Mr Saffi duly passed that request on to the Deputy Prime Minister on
29 August.) This is all contemporary with Mr Saffi's report to the
Presidency Secretariat (D1p.87) on progress in regard to registration and
operation of the KAC aircraft in response to the 7 August instruction. All
this is difficult to reconcile with the position that the Resolution was
only promoted by the Government in September.
e) D1 p. 91 – The following day Mr Saffi reported
in terms that the "ten Kuwaiti planes have joined the fleet of the Iraqi
Airways and the office and terminal at Kuwait City Airport have been put
into operation for internal transport". On the face of it, there is nothing
anticipatory about this position.
f) D2 p.368 – This air traffic control memorandum
dated 7 January expressly nominated Tekrit as a "stand-by airport for the
landing of civil planes". This was followed shortly afterwards by Mr Saffi's
letter (D2 p. 378) identifying Tekrit as the place of refuge
for a Boeing 707 and an Airbus. All this tends to undermine any suggestion
that, whilst Mosul might have been the preferred option of IAC, Tekrit would
not have been a possible place of refuge in the event that the IQAF had been
in control.
g) D2 p.394 – Saddam Hussain personally raised the
question on 29 January as to why KAC aircraft had been destroyed at Mosul.
The Minister responded that this was a matter for IAC: D2 p.
397. Mr Saffi's explanation was that priority was given to the
aircraft at Saddam International because it was difficult to fly to Iran
from the Northern areas: D2 p.400. In response to a further
question as to why the Mosul Four had not been painted, Mr Saffi reported
that "we gave priority to the five Airbus 310 aircraft because they were of
the same type as the aircraft recently ordered by the Company": D2 p.
410. In short the material is difficult to reconcile with any
suggestion that IAC did not have complete control of the aircraft and in
particular were not responsible for the selection of those aircraft to be
used on internal flights.
Setting aside the judgments
- In Perjury I, I found that two of the most
important executives of IAC had committed perjury and forgery. Whilst that
deceit was aimed at achieving a false finding in regard to state immunity, the
nature of the false story was repeated before Mance J and Aikens J since it
went a long way purportedly to establish that IAC had little if any
involvement with the KAC aircraft until after Resolution 369. In fact it was
clear even on the material available in the Perjury I trial that the process
of incorporating the KAC aircraft into the IAC fleet began from 9 August, just
as was later conceded with regard to the spares: see paras 151 and 154 of the
Perjury I judgment.
- By the same token, the Perjury I trial revealed
that the only written instruction issued by the Minister was that dated 7
August. There was no later instruction (let alone one in which the Government
identified a specific class of aircraft) other than one invented to explain
activities with regard to registration, painting and so on. The reluctant
disclosure of the Na'ama diary during the Aikens trial did little, if
anything, to correct the deception.
- As if this was not enough, the subsequent
unearthing of the policy of concealment of documents and the startling
pertinence of the documents revealed in consequence puts matters beyond
argument. In my judgment, it is clear beyond doubt that both trials proceeded
on an entirely false basis, the falsity of which was knowingly induced by IAC.
As Longmore LJ put the matter in the judgment on appeal in regard to
privilege:
"40….Here there was a widespread conspiracy to deceive the
English court which was acted upon and has been proved to have led not only
to perjury but to forgery and the perversion of justice on a remarkable and
almost unprecedented scale."
- For all these reasons I conclude that it is
proper to set aside the findings of both Mance J and Aikens J insofar as they
bear on the probable positioning of the Mosul Four but for their usurpation by
IAC.
Substitute findings
- I turn now to consider the appropriate findings
that should be made in substitution for those made by Mance J and Aikens J as
regards recovery for the loss of the Mosul Four. In this regard any assessment
of the true facts must be largely document based. Some of the ground has
already been covered by my judgment in Perjury I which itself was heavily
dependent on the contemporary documentation which had become available by the
time of that trial and which undermined the largely oral evidential material
available Evans J.
- In that judgment, I commented in para 69 as
follows: -
"While some of the potentially relevant items of correspondence
referred to in the documents were not disclosed, I am satisfied that
(subject to resolving KAC's challenge to the authenticity of two of them),
it is possible from the documents to reconstruct most of the events with
some degree of confidence."
- A large part of the missing documentation has
now emerged from the concealed material. So far as relevant, I have set out
earlier in this judgment a detailed chronology that emerges from all the
documents now available. This has expanded (and fortified) my earlier
reconstruction. None of it has falsified my conclusions in the Perjury I
action as to the actual chronology nor has it led to an analysis more
favourable to IAC on those issues which have emerged again in the present
case.
- Of course, there is no shortage of witness
statement evidence, most of which was adduced by IAC in the earlier actions.
IAC seek to place heavy reliance on such material in the present action. But I
remain convinced that it is appropriate to place much greater reliance on the
contemporary material. It is now 15 years since the relevant events occurred.
It follows that contemporary correspondence, assessed in the light of the
known facts and measured against the probabilities, is likely to prove a much
more reliable guide to the true sequence of events than witness statements
themselves made several years after the event. This must be all the more where
as here the credibility of the principal witnesses has been seriously
undermined.
- The principal witnesses called in the liability
trials were Mr Saffi (before Mance J) and Mr Nekash (before Aikens J). As
regards Mr Saffi, I must inevitably regard his credibility as minimal. As I
found in Perjury I, for the purposes of his evidence before
Evans J, he got his head together with Mr Abbo to give an entirely false
picture to the effect that IAC's activities in respect of the KAC aircraft
only began after 17 September when RCC Resolution 369 became effective. Indeed
he did so by simply concealing the order of 7 August made by the Presidency
Secretariat and the subsequent preparation for flights from Kuwait using the
KAC aircraft including painting, insurance, registration, engagement of
engineers and so on.
- Furthermore, Mr Saffi must have either been
directly involved in, or at least fully aware of, the forgeries created by Mr
Abbo and the late Mr Nekash as part of the exercise to disguise the true
position. As regards Mr Saffi's revised account in Perjury I in regard to an
oral instruction in late August to prepare the aircraft for non-commercial
services, this, as I held, was irreconcilable even with the contemporary
documents then available.
- In any event Mr Saffi was not called to give
evidence in the Perjury II Action nor was any statement tendered despite
suggestions at one stage that one would be forthcoming. Furthermore, I accept
that the assertion by IAC that the explanation was that he could not be
located is wholly improbable: Mr Al Nassiry gave evidence of his own knowledge
of Mr Saffi's movements between Baghdad and Amman acting for "cargo
companies".
- Mr Nekash gave oral evidence before Aikens J.
The judge commented that he was "not entirely open about his knowledge of the
over-painting…". I have already made observations about the falsity of his
evidence in regard to the painting of the aircraft. To this must be added my
finding that he was directly involved in the forgery episode. Sadly he died
during the Perjury I trial, so matters relating to his credibility and the
reliability of his evidence were not taken further. But it should be noted
that, together with Mr Saffi and Mr Hammam, he was a member of the litigation
committee responsible for the conduct of KAC/IAC litigation. He must have been
aware of the concealment policy and yet, and this is particularly striking,
was content to execute the relevant disclosure statements.
- No senior representative of IAC was called to
give evidence in the present action (including, in particular, Mr Adel Hammam
who was available but whose statement was withdrawn). The sole witness called
on factual issues was Mr Al Shaikhly. This was a surprising choice. He was at
the material time merely the "line maintenance manager" (although there was
even a dispute about that - with KAC contending that he was in fact the
"periodic heavy checks manager" – an issue which I do think it is necessary to
try and resolve).
- Mr Al Shaikhly had given evidence in the Perjury
I trial, albeit in very much a secondary role to Mr Saffi and Mr Abbo. My
appreciation of him was set out in paragraph 70 (c) of the judgment:
"As regards Mr Al Shaikhly, even allowing for the fact that his
command of English was less secure than some of his colleagues, the
impression left by him was that he was less than frank in recounting events
at Kuwait Airport where he had been stationed, particularly as regards the
alleged transfer of KAC spares to Baghdad. He was also markedly unconvincing
in seeking to explain the disparity between his asserted recollection and
the content of the Na'ama diary. …"
- These doubts about his credibility have hardened
into total disbelief in the light of the material now available in the
concealed documents which both confirm the striking accuracy of the Na'ama
diary and the blatant theft of the spares by IAC from Kuwait where Mr Al
Shaikhly had been stationed.
- In fact, it was apparent from Mr Al Shaikhly's
statement, and confirmed by his oral evidence, that he was speaking to events
by way of a composite account on IAC's behalf which derived little, if
anything, from personal knowledge: (Transcript Day 7 pp. 33-41). The
reason for his being put forward to give evidence in this manner, like Mr
Nekash before him in the Aikens J trial, was probably because of his position
in succession to Mr Nekash as a member of the IAC litigation committee chaired
by Mr Adel Hammam.
- Given that background, perhaps I should not have
been surprised to be faced by Mr Al Shaikhly giving evidence in the present
trial claiming to be able to give a detailed account as to how IAC dealt with
the KAC fleet in 1990, when in the Perjury I trial he had asserted no
knowledge whatsoever of what happened to the KAC aircraft or indeed the
spares. Of course the position is that any earlier claim on the part of Mr Al
Shaikhly that he had no involvement with the KAC aircraft was fatally
undermined by the concealed memorandum of Mr Saffi dated 18 August making him
responsible for the technical side of the KAC fleet in succession to Mr Abbo:
(D1 p.42).
- Equally strong reservations must be made about
Mr Al Shaikhly's claim to know that the various movements of the KAC aircraft
were ordered by IQAF, despite in the same breath accepting that he had no
knowledge of what those movements were: (Transcript Day 7 p.137 ff). The
specific source of his information was said to be general conversation with
friends and colleagues: (Transcript Day 7 p.61 ff). Without
corroborative contemporary material, or at least statement evidence from those
directly involved in giving or responding to any orders for movement of the
aircraft, it follows that I can allocate little if any weight to such
evidence. Indeed, it became apparent to me that Mr Al Shaikhly had been called
because he could be relied upon by IAC to promote the party line. In my
judgment, Mr Al Shaikhly could not be relied upon by the court to provide
credible evidence of what had actually occurred.
The major issues
- The two major issues for decision are:-
i) First, when did the Government of Iraq decide what to do with the
aircraft and when did IAC incorporate KAC's aircraft into its own fleet;
ii) Second, whether, following incorporation by IAC, nonetheless the
Government was controlling the movement, use and location of KAC's
aircraft.
Incorporation
- It is KAC's case that IAC wrongfully interfered
with their aircraft as from 9 August 1990. In my judgment that submission is
well founded:
a) It is no longer controversial that any wrongful interference
(or "usurpation") by IAC was not to be assessed simply by reference to
conduct in regard to any particular aircraft but by reference to steps taken
with a view to the incorporation of the entire fleet into the existing fleet
of IAC.
b) The original instruction of 7 August was a broad one. It
required action to repair Kuwaiti Airport and to enable internal transport
with Kuwaiti aircraft to start. It was addressed to IAC "to take necessary
action".
c) It remains the only written instruction addressed to IAC and
the only instruction referred to in later correspondence. Not surprisingly
given its origin, it led to immediate action.
d) Such material as was available for the purposes of the
Perjury I Action revealed activity by IAC in response to the 7 August
instruction as from 9 August. No distinction can be drawn for this purpose
between spares and aircraft. This conclusion is confirmed by the documents
that have now been disclosed.
e) This was a large-scale enterprise and required the deployment
of a large number of IAC staff (see D1 p.31) whose exemption
from military service was already being sought on 9 August D1
p.14.
f) That same day the IAC delegation, made up of heads of
department and headed by Mr Saffi, travelled to Kuwait to conduct a field
inspection: D1 p.26. The discussion centred on using "all the
departments of Kuwaiti Airlines".
g) On 11 August, Mr Saffi's report on the repair of KIA and
"piloting the airplanes" refers to the decision to distribute some of the
KAC aircraft, then at Basra, to Baghdad, Mosul or Tekrit and also the
withdrawal from KIA to Basra of technical equipment "in accordance with the
company's requirements": D1 p.27 .
h) The fact of incorporation is confirmed on 19 August when Mr
Saffi responds to the Presidency Secretariat's letter of 9 August: D1
p.14. The Presidency Secretariat was only prepared to exempt from
military service the number "required for the operation". Mr Saffi explained
that the need for more staff was prompted by the fact that "about twelve
Kuwaiti aeroplanes became part of the responsibilities" of IAC in addition
to "the other facilities" of KAC: D1 p.44.
i) The internal IAC meeting on 22 August (D1 p.51)
occurred against the background of one Airbus 310-200 having already been
moved to Baghdad. The purpose of the meeting was to discuss the requirements
for putting KIA into operation and the subsequent operation of the KAC
aircraft from Baghdad to Kuwait "in addition to other issues of concern to
the company's current business". The outcome was:
i) The decision for the engineering department (Mr Na'ama) to
start painting immediately;
ii) The planning section (Mr Nekash) to collate technical logs
with a view to approval of flights within a week;
iii) An instruction to Mr Abbo to get registration advanced
immediately;
iv) Two A310's to be flown to Baghdad.
j) Thus on 25 August (D1 p. 63) Mr Saffi did indeed announce the
joinder of the KAC fleet with IAC fleet. As already noted, the Court of
Appeal at para 196 of their judgment referred to this letter (disclosed in
1996) but did not accord it any particular significance. Now that most of
the string of earlier correspondence has been disclosed, its significance
becomes, in my judgment, very striking. In particular, Mr Saffi's letter to
the Economics Committee of 25 August (D1. p. 69) says in terms
that the ten aeroplanes had joined the fleet and, now that KIA was
operational, additional staff were needed to commence commercial
operations.
k) Furthermore, Mr Saffi's report to the Presidency Secretariat
the very next day (D1 p. 87) not only refers to the 7 August letter but also
reports that the 10 aircraft had been distributed to various airports and
that the transfer to the Iraqi register had begun together with the
gathering of personnel for their operation.
- IAC's submission was that Aikens J's earlier
conclusion that the aircraft were in a state of "limbo" remained a fair and
accurate picture. I do not agree. The new material puts a completely different
complexion on the matter. In my judgment the decision to incorporate the KAC
fleet had been taken in principle at the outset and had been duly acted upon.
To the extent that the formalities were incomplete is not to the point. In the
Spares Action, IAC accepted liability for wrongful interference from 9 August.
It is in fact impossible to reconcile such a concession with the suggestion
that the aircraft were not "usurped" as from the same date.
Resolution 369
- Allied to this topic is the question as to how
RCC Resolution 369 came to be promulgated and what its purpose was. The
material before Aikens J lent itself to the proposition that the Government,
having been in a state of uncertainty, eventually reached a decision to
incorporate the KAC fleet with IAC in early September by means of the
Resolution. But I do not think that such a proposition remains arguable. The
concealed documents are only consistent with a quite different picture namely
that the Resolution was promoted by IAC in late August with a view to
facilitating the broad objective of "international operation and registration"
(D1 p.84) and the narrow and more pressing objective of
preventing theft (D1 p.94).
- The theme of IAC's evidence deployed both before
Evans J and in the Perjury I Action was that Resolution 369 emerged as an
unwelcome surprise without forewarning. The slow progression of disclosure has
put the matter into its proper context Even the production in 2001 of the
Deputy Prime Minister's letter of 5 September (D1 p.115) was tantalisingly not
accompanied by the IAC letter 1828 referred to in it. Now this has emerged
(D1 p.100), it makes it clear that the whole idea of issuing
Resolution 369 came from IAC (Mr Saffi having been given advice to that effect
by Mr Hammam as early as 26 August: D1 p. 73).
- The true picture is that the arrangements for
the issue of Resolution 369 were part and parcel of IAC's continuing
absorption of the KAC fleet as from 9 August and not the commencement of the
process. The concealed documents thus reinforce the conclusion that I reached
in Perjury I on this topic that de facto transfer of the aircraft into IAC's
fleet occurred at an early stage whereafter steps were immediately put in hand
to put some of them to commercial use: see para 104 (f) and 152.
Burden of proof
- Despite this conclusion, the crucial second
issue remains alive, in terms of identifying what would have occurred "but
for" IAC's wrongful interference, whether it was the Government which was the
decision making body in any event. Before turning to this I must first focus
on the burden of proof.
- IAC submits that it was unaware that it was
usurping another's property because "it is to be inferred" that its senior
management were proceeding on the basis that the effect of Resolutions 312 and
313 was that Iraq would thereafter own all Kuwaiti assets. Given the
withdrawal of Mr Hammam's statement, the only evidence in support of this
proposition emanated from Mr Al Shaikhly which for reasons already outlined I
approach with the greatest caution. In any event, on their express terms, the
two resolutions were in fact directed to the integration of Iraq and Kuwait
(later summarised as "the branch has returned to the stem") and the acceptance
by Iraq of all public national and international obligations of the state of
Kuwait.
- The true position is that, throughout the period
from 9 August, IAC were engaged in acts of wrongful interference well knowing
that the aircraft were the property of KAC. These activities, up to and
including 17 September, included steps to paint, register and insure several
of the aircraft. The same period also saw the initial dispersal from Basra,
the despatch of some the A310's to Baghdad and the departure of aircraft from
Tekrit.
- The documents, including in particular the
concealed documents, leave little room for doubt on the matter of IAC's
knowledge:
a) The original instruction from the Presidency Secretariat on 7
August referred to the decision to fly- "Kuwaiti" aircraft for internal
transport.
b) IAC's delegation to Kuwait on 9 August found AHI an Airbus
"belonging to" KAC: D1 p. 26.
c) Mr Abbo was appointed to be responsible for technical aspects
of the "Kuwaiti" aeroplanes on 11 August: D1 p.25.
d) Following the issue of resolutions 312 and 313, Mr Saffi
announced that the 12 "Kuwaiti" aircraft became part of the responsibilities
of IAC: D1 p. 44
e) The meeting on 22 August was for the purpose of discussing
the operation of "the Kuwaiti aircraft": D1 p.51.
f) It is also revealing that in his request for additional
security personnel dated 25 August, Mr Saffi referred to the vast array of
stores that had been withdrawn to Baghdad as "belonging to" KAC: D1 p.
62.
g) The memorandum of 26 August from Mr Adel Hammam to Mr Saffi
proposing the issue of RCC Resolution 369 was on the basis that the
ownership of the assets that "belonged to" KAC should be transferred:
D1 p.73.
h) Indeed the whole basis of resolution 369 was that KAC still
existed (and thus needed to be dissolved) and that its assets still belonged
to it (and thus needed to be transferred to IAC).
- As already noted, the primary material
purporting to suggest that IAC had an honest belief in KAC aircraft being the
property of IAC (allegedly by reason of Resolutions 312 and 313) was in the
statement of Mr Adel Hammam which was in the event withdrawn. Indeed in this
context it is also notable that, in Mr Nekash's evidence before Aikens J, he
was asked about title and said as follows in cross-examination:
Q: "Did he (Mr Na'ama) tell you that he was changing the
livery of the Airbuses?
A: "No, not that I recall, but he told me specially about
the Airbuses, no because I mean personally we thought the crisis of
Kuwait will finish and sooner or later we will – the aircraft will go to
its owner, rightful owner…
Q: "You said you thought the Airbus would go to its
"rightful owner", who did you think its rightful owner was?
A: "Well at that time it was the KAC".
- It follows that, in my judgment, IAC was acting
in bad faith for the purposes of identifying the burden of proof under Iraqi
law and thus the burden of establishing whether the Mosul Four would still
have been destroyed at Mosul "but for" their usurpation by IAC rests on the
Defendants.
The decision making body
- It is IAC's case that, absent its usurpation,
each and every movement would have been exactly as occurred in fact, because
every decision requiring movement of an aircraft derived from the Government.
As I understand it, it is accordingly contended that the same Governmental
body would have given the same movement order for the same reasons whether or
not IAC had been in process of incorporating the KAC fleet into its own fleet.
It has to be said that this does not appear to be an easy proposition to make
good given the fact that none of the Mosul Four were at Mosul until 29 August
and even then only one, namely AHG. The other three did not arrive until 17
November having been variously at Tekrit and Basra.
- In fact, in my judgment, IAC fall a very long
way short of establishing their proposition. The first difficulty is the
absence of any evidence deployed by IAC to identify the body concerned and the
instructions issued by it. Even the pleaded case is equivocal. For instance,
in response to a request for further details of the allegation that the
distribution of the aircraft in the period up to 17 August was made pursuant
to instructions of the Government, reference was made to the instruction of 7
August and it was asserted "it was in response to these instructions that Mr
Saffi arranged for the aircraft to be redistributed as actually effected":
(A p. 86).
- The Re-re-amended Defence, however, denied that
the initial distribution was the decision of Mr Saffi. On being asked for
details of who had taken the decision IAC was unable to identify any person or
even any department of the Government involved.
The specific decisions
- The focus of this debate was four particular
decisions:
a) The dispersal of the aircraft from Basra in mid-August
1990.
b) The selection of Airbus A310-200s for service on the
Baghdad/Kuwait route at about the same time or shortly
thereafter.
c) The removal from Tekrit in late August.
d) The movement from Basra to Mosul in November.
e) The evacuation of all aircraft in January 1991.
Of these the most important is the second of these issues which became
almost a touchstone of the appropriate outcome of the entire case.
Initial dispersal from Basra
- Mr Saffi's letter to the Presidency Secretariat
of 11 August (D1 p.27) refers to this dispersal in the express
context of the instruction of 7 August. Item 2 records: -
"10 Kuwaiti aircraft were transported from Kuwait Airport to
Basra Airport. From there they will be sent to the airports of Tekrit and
Mosul…."
AHE, AHF, AHG were duly relocated to Tekrit and AHA, AHB and AHC were sent
to Mosul. These movements occurred on 17 August. There is certainly no
particularity to IAC's plea that this was pursuant to a Governmental
instruction – let alone whether from the Presidency Secretariat, the Minister,
the IQAF or any other body.
- Although this decision followed a meeting on 11
and 12 August between IAC and representatives of the Ministry of Transport,
there is no suggestion in the documents that the dispersal (let alone specific
types of aircraft or specific destinations) was attributable to any
Governmental direction although it may well be that the decision to hold no
more than three aircraft at any one airfield was taken in consultation with
ministry representatives.
- It is notable that no representative of IQAF was
present at the meetings. Of course, the permission of IQAF would be required
for any movement (and certainly one to disperse aircraft to an airfield which
had a military use). But there is no suggestion that IQAF had any interest in
the specific classes of aircraft that might be deployed to any particular
station. Indeed the selection appears to have been based on alphabetical
order.
- The Na'ama diary is equally silent on the topic.
Furthermore, there has been no evidence in any statement or affidavit produced
by Mr Saffi that he himself was not responsible for the issuance of these
initial instructions. To the contrary, his oral evidence before Mr Justice
Evans was entirely to contrary effect (F/3/48): -
Q: "Are you telling us that the reason for putting them at these
3 difference places was in case they were bombed by the
Americans?"
A: "There is no … because I do not have a place my aircraft is
already there. I have 15 aircraft grounded all grounded. You know Saddam
Airport is full of Iraqi Airway planes. We managed to get to in Basra we
left about 4. In Mosul we put 4. There is another airport they call it
Tekrit as well."
Q: "So you decided where they should go did you?"
A: "Yes, once they come in I say yes "yes we will put them –
distributed them in the airports here and there"."
Q: "You decided that?"
A: "Yes".
- I conclude that the initial dispersal from Basra
was based on a decision by IAC and coordinated by IAC. It is certainly not
established by IAC that the dispersal was the consequence of Government
directives that would have been effective in the absence of interference by
IAC.
The decision to use A310's
- Despite all the relevant material being within
its compass, it is striking that IAC's case on the timing and content of any
Governmental instructions with regard to the selection of A310-200s for use on
the Baghdad – Kuwait route has fluctuated throughout the case.
- Matters started at the time of the sovereign
immunity issue before Evans J with reliance on oral instruction to Mr Saffi
from the Minister on 6 August to fly the 10 aircraft from Kuwait for "safe
keeping". The final version as pleaded in the present action asserts there
were two further instructions:
a) a written instruction from the President's office on 7 August
to make Kuwait Airport suitable for flying and to enable Iraqi pilots to fly
Kuwait aircraft for internal transport, and
b) a further, but entirely oral, instruction given sometime
around 22 August by the Minister of Transport on behalf of the Council of
Ministers to put KAC airbus A310-200 aircraft into operation in that way.
- The process of amendment of the Defence in
reaching that final case demonstrates the exponential growth of the story. The
original plea was simply to the effect that any suggestion that the
instruction to use KAC's aircraft was given at the end of August was false.
The bulk of the paragraph quoted below is by way of amendment, with all the
remainder in italics by way of re -amendment:
"21.A.3.2 ….The initial instructions given by the Government
were contained in an oral instruction from the Minister of
Transport on 6 August 1990 and a written instruction from the
Presidential Office dated 7th August 1990 to the Minister of
Transport and to (inter alios) IAC as further elaborated in the
instruction of about 22 August 1990 referred to below. These
instructions led to certain steps being taken by IAC in relation to
KAC's aircraft such as maintenance and warehousing and subsequently as
regards the A-310s painting and inquiries about registration and insurance.
By RCC Resolutions 312 and 313 dated 8th and 9th
August 1990 the Iraqi Government decreed Iraqi sovereignty over Kuwait and
that with effect from 8th August 1990 Kuwait was part of the
state of Iraq with effect under Iraqi law that KAC became part of the state
property of Iraq. Thereafter in late August (now believed to have been about
22nd August) the Minister of Transport on behalf of the Council
of Ministers instructed IAC to take the steps required to start operating
the KAC airbus aircraft (the A310-200s). "
- It is, and has to be, IAC's case that the
movement of the KAC Airbus 310-200s to Baghdad for painting was initiated by
an order of the Government which specified both the type of aircraft and the
purpose of the movements. The first difficulty with this submission is that
all the various suggested dates for the order post-date the first movement (20
August):
a) The original suggestion was "late August" a suggestion which
is no longer relied upon.
b) The pleaded case of IAC puts the order as at 22 August i.e.
some 2 days after the admitted date from which IAC treated the aircraft as
part of its own fleet (A/6/84) and for that matter 2 days after the first
aircraft of A310-200 type was sent to Baghdad for the purpose of
painting.
c) The closing submissions of IAC put the date as 23 August: see
Schedule B page 1.
- In contrast, it is KAC's case that there was no
further oral Governmental instruction to IAC following that contained in the
written order of 7 August, let alone one directed at Airbus aircraft.
- The maker of the oral instruction is said to
have been Mr Al Zubaidi and its recipient Mr Saffi. Neither gave a statement
for the purposes of this trial. The only witness who purported to give
evidence relating to events in 1990 was Mr Al Shaikhly. In fact, in his first
statement, he referred to having been told by Mr Saffi about an order from the
Minister issued on 6 August to remove the aircraft from Kuwait. He corrected
this in his latest statement to say that it was Mr Na'ama who had told him
about this and that Mr Saffi had told him much later.
- As regards any later instruction, his evidence
was scarcely of much assistance to IAC:
"11. For my own part, I did not know at the time about the
Minister of Transport's instruction which was given on about 22 August 1990
to make use of KAC's A310 aircraft. At that time I was involved in dealing
with matters arising in our operations to and from Kuwait and there was
nothing in the initial stages of activity concerning these KAC aircraft
which Mr Na'ama has recorded in his diary on or after 23 August and which
would have involved my own department before I was sent off to
Kuwait…"
- Mr Saffi's initial account was that that there
was simply an oral instruction from the Minister to provide pilots and, once
the aircraft arrived in Iraq, to carry out basic maintenance. This was untrue.
Indeed, as I found, Mr Saffi sought to promote a false case in cahoots with Mr
Abbo: -
"145. In any event my findings as regards forgery imports with
it a finding that Mr Abbo and Mr Saffi were only too aware of a Presidency
Secretariat order of August 7 and the steps taken in response to it at the
time of Mr Justice Evans's trial. I accept that these witnesses in fact got
their heads together in order to seek to support the position that IAC's
activities only began after property in the aircraft was transferred to IAC
by virtue of Resolution 369…"
- It is true that in his witness statement of 14
June 1997 (for the purposes of the Mance J trial), Mr Saffi said:
"13. At the end of August 1990 the Minister of Transport and
Communications instructed me that the Revolutionary Command Council wished
to put some of the KAC Airbus A310/200 aircraft into service on domestic
flights between Kuwait and Baghdad."
But the difficulty here is that not only is Mr Saffi's credibility
tarnished but the whole of his evidence as regards the existence and timing of
any instruction from the Minister to use KAC aircraft was intimately tied up
with his convoluted explanation of the false Abbo letter said to have been
sent on 23 August and the true Abbo letter said to have been sent on 28
August.
- Mr Al Zubaidi was the Minister concerned. His
evidence in the Mance J trial referred to a further instruction to put some
"airbuses" in service "towards the end of August 1990". In his statement for
the Perjury I trial, the instruction was said to refer to A310 aircraft "to be
only available for official Government business". This was a theme picked up
by Mr Saffi in the Perjury I trial hearing. All the steps taken to paint,
register and insure prior to September 17 were said by him to be against the
background of a Government requirement for "non commercial services".
- This I rejected in my judgment in the Perjury I
Action. In particular, I commented at paragraph 103 (b):-
"There is nothing in the contemporary documents to support the
suggestion that there was in fact any Ministerial instruction in late August
to supplement the original order from the Presidency Secretariat dated
August 7 for all the aircraft to be used for "internal
transport"."
The origin of Mr Al Zubaidi's statement
- Furthermore the credibility of Mr Al Zubaidi's
evidence has also been gravely undermined. As already explained, shortly
before the commencement of the present trial, KAC applied for an order
permitting them to inspect documents in respect of which privilege had been
claimed by IAC. The documents included those relating to the preparation of Mr
Al Zubaidi's evidence for both the Perjury I and the Main Action. The
application succeeded both before me and before the Court of Appeal on the
basis that the documents came into existence for the furtherance of a criminal
purpose, namely that of deceiving the court by forgery and by perjury. The
relevant documents were progressively produced during the course of the
hearing.
- The newly disclosed material shows that Mr Al
Zubaidi's evidence was discussed on 11 June 1997 at a meeting in Baghdad.
Counsel for IAC asked for a statement from Mr Al Zubaidi since "Mr Saffi's
evidence needed to be corroborated" by him (R1/1/172). Perhaps because of
limited time, IAC's legal team then undertook to prepare a draft statement for
Mr Al Zubaidi to "check".
- A brief interview thereafter took place on 14
June (R1/1/177). The topic appears to have been directly focussed on since
during the interview Mr Al Zubaidi confirmed that "he had requested Mr Saffi
verbally to put the Airbuses into service between Baghdad and Kuwait".
- In considering the reliability of this evidence,
it necessary to have regard to the exchange that I have already quoted
earlier, namely the memorandum despatched to Mr Al Zubaidi by the new Minister
on 7 July 2000 (D2 p.644) and his answer (D2
p.646) dated 6 September 2000. As the earlier exchange of
correspondence reveals, Mr Al Zubaidi seems to have been the sort of witness
who was only too willing to confirm a series of statements by Mr Saffi that he
must have known were in fact false for the avowed purpose of resisting KAC's
application to the House of Lords to set aside the order affording sovereign
immunity up until 17 September.
- First, as already pointed out, the suggestion in
his response that the Minister gave an oral instruction to Mr Saffi towards
the end of August to operate the aircraft for official purposes only is
untrue. Second, and equally striking, was Mr Al Zubaidi's insistence in the
same response that Mr Saffi was unaware of RCC Resolution 369 until it was
published when in fact IAC had promoted it. The draft had been sent out to IAC
under cover of the letter of 5 September 1990 (D1 p.115), which
in turn was a response to IAC's suggestion to promulgate such a resolution
made on 29 August.
- This letter had been unearthed in December 2000
in a file produced by Mr Adel Hammam which he claimed only contained copies of
RCC Resolutions. As appears from a minute of the ensuing discussion with Mr
Nekash its significance was immediately understood. However, no attempt was
made to discuss the matter with Mr Al Zubaidi and indeed the letter itself was
not disclosed until July 2001.
- In the circumstances, it is inevitable that
corroborative evidence contained in a statement prepared in draft for Mr Al
Zubaidi must be treated with the greatest caution.
The position as it emerges from the documents
- It is now common ground that the initial and
fundamental instruction following evacuation was that contained in the 7
August letter. But was there any further instruction by way of elaboration
given in the latter part of August? In my judgment, IAC has not established
that there was:
i) Despite the extensive additional disclosure, the 7 August instruction
remains the only written instruction on the topic. No written order dated over
the last 10 days of August has been produced. This is obviously a significant
consideration given the highly bureaucratic nature of the Iraqi regime. For
example, the creation on 28 August of a joint committee to prepare an
inventory of KAC stores to be transferred to IAC was established by written
"Ministerial Order 2812": see D1 p.96 & 111.
ii) As already explained, the reports from Mr Saffi dated 11 August
(D1 p.26 & D1 p.27) and the administrative order of 12
August (D1 p.31) are fully consistent with full blown activity
designed to implement the instruction.
iii) Priority no doubt had to be given to repairing KIA and organising
reception and maintenance facilities. But it would appear that attention was
turned to the need for painting of the aircraft as early as 15 August
(D2 p. 410). This may have been coincident with the re-opening
of KIA since the first flight from Baghdad to Kuwait took place on 16 August:
D1 p. 41
iv) As revealed by the Na'ama diary there was already a focus on airbuses
by 18 August ("Prepare Air Bus cadres as soon as possible") and indeed the
first of the airbuses was relocated to Baghdad on August 20 and the second on
August 22. On that day, the Na'ama diary records the General Manager's
instructions as follows: -
"Airbus total 8. Paint aircraft work 24 hrs… Engineering to
prepare aircraft as soon as possible Baghdad /Kuwait…. Priority to 310 5
off."
There is no suggestion that this activity, let alone the
priority accorded to the Airbus aircraft, was other than the exercise of
discretion on the part of IAC.
v) It is true that Mr Abbo's letter of 23 August refers to instructions
"that issued from the office of the Minister". IAC place considerable reliance
on this as being a direct reference to supplementary instructions to put the
Airbus A310-200 into service. The difficulty, apart from the absence of any
other reference to supplementary instructions to that effect, is that the
letter does not identify the date or nature of the instructions. It is just as
consistent with a reference back to an earlier instruction as with an
instruction recently issued. Indeed, read in isolation, the letter is more
consistent with a decision by IAC to select an Airbus (with the specific type
added later in manuscript) pursuant to earlier instructions from the Minister
to start the relevant domestic service. It has to be borne in mind that the
original letter from the Presidency Secretariat was addressed to the Minister
of Transport and only copied to IAC. It may be that the Minister repeated or
passed on the instructions to Mr. Saffi as well.
vi) The new disclosure reveals that there had indeed been a meeting with Mr
Saffi and his heads of department on 22 August. The minutes (D1
p.51) contain no reference to any supplementary instructions from the
Minister or indeed any other source, let alone one directed to the specific
class of A310-200s. The purpose of the meeting was "to discuss the operation
of the Kuwaiti aircrafts with Baghdad" and it was duly resolved that there
should be a focus on the operation of the Airbus aircraft with painting to
start immediately together with applications for flight approval and
registration. It would appear that these decisions were entirely "in-house".
vii) Indeed, the confidential memorandum of 26 August written by Mr Saffi
and sent to the Presidency Secretariat expressly refers back to the 7 August
instruction without any suggestion that it had been supplemented or refined
thereafter.
viii) Most striking of all is the response of Mr Saffi to Saddam Hussain's
personal question as to why the Mosul Four had not been repainted: D2 p.
410. He explained that painting had started on 15 August (perhaps
indicative of the date when the arrangements for painting at Baghdad were
first considered) and that priority was given to the airbus aircraft "because
they were of the same type as the aircraft recently ordered by the Company".
If there had in fact been a Ministerial selection of airbus aircraft, it is
inconceivable that he would not have mentioned it.
- There is no obvious reason why the Government
would have had a reason to specify which aircraft should be used. The KAC
fleet had in effect been put in the control of IAC with instruction to use
them for domestic commercial flights. Whether those were performed by say a
767, A300 or A310 would not appear to be of any materiality so far as the
Government or the Air Force were concerned. In my judgment, absent any
"usurpation" by IAC, it remains wholly uncertain what steps would have been
taken by the Government to use the aircraft, let alone which ones.
The Abbo letter
- Given the emphasis placed by IAC on the terms of
the second (genuine) Abbo letter in this connection and its express reference
to instructions from the Minister, I should add this. In my view, the
explanation of the origin of the suggestion that the Abbo letter of 23 August
was referring to recent oral instructions from the Minister as opposed to
written instructions earlier in the month is as follows. As already explained,
the assertion that an instruction directed at use of Airbuses was given by the
Ministry in late August was inextricably entwined with the false case advanced
by Mr Saffi, Mr Nekash and Mr Abbo about the Nekash and Abbo letters.
- A true picture only emerged slowly and by
stages: -
a) Mr Saffi's affidavit for the hearing before Evans J exhibited some
documents purporting to support the case that steps to register the KAC
aircraft only began after 17 September. However, one of the documents, a
letter sent by the DGCA on the 23 October 1990, referred to some requirements
for registration contained in their letter of "23 August".
b) There was considerable focus on this in the cross-examination of Mr
Abbo. Mr Saffi arrived to give evidence much later in January 1991. He brought
three documents with him. Two of them were the forged letters of 15 August and
23 August. The third letter was the letter of the DGCA dated 23 August
referred to in the October letter. The purpose of the forgeries was to explain
the existence of the notification of registration requirements.
c) In 1996 the second Abbo letter referring to instructions from the
Minister was disclosed. The original had manuscript alterations on it. It was
tendered as having been signed on 27 August and dated 28 August. Given the
existence of the (forged) earlier request for details of registration
requirements, it was necessary for IAC's case to demonstrate that the request
in regard to registration of an Airbus was made after the DGCA letter. Thus
the suggestion was made by IAC that the instruction had been given at about
the same time as the second Abbo letter was written. The August 7 instruction
from the Presidency Secretariat to the Minister and copied to IAC was not
disclosed for another 4 years.
d) Once the forgeries were exposed and the true date of the enquiry as
regards registration was unearthed as being 23 August (and in this respect it
is to be noted that the annotated copy demonstrating beyond doubt that its
date was 23 August was not produced until July 2000) equally the case on the
date of instructions being late August fell away as well.
e) It follows that the forensic need for instructions immediately
proceeding the true Abbo letter no longer arises. Indeed the suggestion has
all the hallmarks of a reconstruction.
- I conclude that not only the initial dispersal
from Basra but also the subsequent dispatch of Airbus A-310s to Baghdad
painting was entirely the decision of and coordinated by IAC. Given the burden
is on IAC to show that all the movements post 9 August would have been the
same, this conclusion alone wholly undermines IAC's case. The burden of
demonstrating that the initial movements would have been the same has not been
discharged. A fortiori, IAC have not made out that the aircraft would have
eventually ended in Baghdad and Mosul as they did.
Movement from Tikrit
- Although not strictly necessary, I go on to
consider the subsequent movements. I conclude from the earlier analysis that
IQAF was simply content to accept the initial dispersal of three KAC aircraft
to Tikrit from Basra. IAC has not made out that IQAF ordered such a movement
with or without Government prompting and indeed by mistake or otherwise. About
two weeks later, AHG left Tikrit and went to Mosul on 29 August (to replace
AHB which went to Baghdad) and AHE and AHF went back to Basra on 31 August
leaving Tikrit with no KAC aircraft. Prior to these latter movements, as found
above, it is now clear that IAC had decided to make use of the Airbus A310s on
the Kuwait/Baghdad route and had transferred three such aircraft to Baghdad
for painting. IAC have not made out that these latter movements were
initiated, not by IAC, but by the Government. What about the clearance from
Tikrit?
- IAC still rely on the evidence presented before
Aikens J to the effect that the movement out of Tekrit in late August was as a
result of an order of the IQAF and not as part of arrangements made by IAC to
husband the fleet. Mr Nekash's statement of October 1999 (his third
supplementary statement) contains the following passage: -`
"35. Towards the end of August 1990 I and other senior managers
of IAC were instructed by the IQAF through Brigadier Fatih that it was no
longer acceptable to the IQAF for Al Sahra airfield or any other IQAF
airfield or airbase to be used for keeping any of IAC's civilian aircraft
since they were purely military airfields. …. We were thus forbidden any
longer to have any use of any military airfield of IQAF for keeping any of
the ex KAC aircraft. Accordingly the Government required through IQAF
removal of the aircraft then located at Al Sahra airfield (Tekrit) and this
was carried out. …."
- Of course the whole of this passage has to be
read in the light of my finding that IAC had in fact been accorded
responsibility for the KAC fleet and was working towards using selected
aircraft for domestic flights. But the question remains as to whether the
evacuation of Tikrit was nonetheless attributable to an order of IQAF.
- I have already touched on the credibility of Mr
Nekash. It seems to me that, absent corroborative evidence, little weight
should be accorded to the passage just cited from his supplementary statement.
Notably so far as the departure from Tekrit was concerned everything was said
to have turned on the activities of Brigadier Fatih. However there was no
statement from him.
- As regards the role of the IQAF and the
selection of airfields, IAC relied on the evidence of a General Fehed. It had,
however, been a strange feature of his evidence that, in response to KAC's
evidence that Tekrit was a potential alternative airfield to Mosul at the
stage when the aircraft were dispersed from Basra on the eve of the war, he
stated in his first statement:
"Al Sahra. This was a landing strip used by a training college
for light aircraft. The LCN of the runway and the taxiway was completely
inadequate for these airliners. I would not have considered this to be a
suitable alternative to Mosul."
- To put it mildly, this was somewhat in
contradiction to the fact that three of the aircraft had initially gone to
Tekrit. Accordingly, following service of Mr Nekash's statement in October
1999, IAC served a supplementary statement from General Fehed in November.
This purported to explain that the initial deployment to Tekrit was "by
mistake" (since the runways at Al Sahra were inadequate). Thereafter IQAF had
decided to relocate the aircraft again at the end of August. However, the
evidence of General Fehed can now be seen, by reason of disclosure of the
allegedly privileged material, to have been obtained in manner which must cast
some doubt on its reliability.
- At an early stage, the need for corroborative
evidence in support of Mr Nekash's statement was recognised by IAC's legal
representative. In a letter written on 12 October 1999, the same date as Mr
Nekash's third supplementary statement, Mr Kosky wrote as follows:
"With regard to Tekrit he (Mr Nekash) is in some difficulty.
General Fehed's states that Al Sahra airfield at Tekrit had a low LCN number
which was why it was unsuitable for the ex KAC aircraft. However, we now
know that this airfield is where 3 of the KAC airliners (according to Mr
Na'ama's diary entries) were flown after they were flown from Kuwait to
Basra. This rather destroys General Fehed's evidence as to the unsuitability
of this airfield as a safe location for the ex KAC aircraft. It also throws
doubt on the credibility of General Fehed's evidence in other respects. ….
As I have previously requested we desperately need some evidence as to what
aircraft were flown there and when and why they were removed. Was it because
the Airbuses were being flown to Baghdad for repainting or was it, as Samir
had stated, because the IQAF advised that Al Sahra was unsafe and unsuitable
in the prevailing circumstances (if so why?). If it was the latter, I hope
it will be possible to find some written record of this if not on IAC's
files then on IQAF files…"
- The immediate response from General Fehed
himself was contained in a letter dated 20 October (R3/7/17). It
explained that the move from Tekrit was effected because of the risk of
bombing, the lack of room for dispersal of IQAF aircraft and the absence of
suitable ground handling equipment for civil airliners. The evacuation was
achieved, as he put it, by virtue of "co-ordination" or "co-operation" between
IAC and IQAF. There was no mention of any eviction by the IQAF.
- Mr Kosky insisted both by telephone and by
letter that the movements and the reason for them and the nature of the
co-ordination or co-operation between IAC and IQAF needed to be properly
documented. In particular, he asked whether Brigadier Fatih could provide a
statement which would confirm Mr Nekash's account: (R3/7/120).
- Absent anything from the brigadier, and despite
having had no access to General Fehed, Mr Kosky reluctantly drafted a
supplementary statement for him on the topic. This was completed on 3
November. The relevant sections read as follows. (R3/7/204): -
"5. In paragraph 35 of my first statement I explained that the
LCN of the runway at Al Sahra was too low to safely accommodate these large
KAC airliners. I stand by that statement although 3 of the KAC aircraft
CHECK were initially flown to Al Sahra temporarily shortly after they were
flown from Kuwait. The LCN of the runway at Al Sahra is only 30 which is too
low to safely accommodate repeated take-offs and landing by such large and
heavy aircraft as the KAC airliners. The LCN of the hardstanding at Al Sahra
is only INSERT PLEASE ASK THE IQAF TO DISCLOSE THEIR RECORDS OF THE LCN
NUMBERS OF THE RUNWAY AT AL SAHRA AS WELL AS THE OTHER AIRFIELDS AT TEKRIT.
6. In fact it was accepted by IQAF that it was a mistake to
locate the KAC 3 aircraft at Al Sahra for the following reasons. The runway
had a number of large cracks in it that made it dangerous for the aircraft
to be flown to and from the airfield in bad weather. Al Sahra was the
location of the main IQAF Training College. This was perceived to be a
potential target in the event of a coalition attack. There were a large
number of training aircraft located at the airfield which would need to be
dispersed in the event of a coalition air attack. The KAC aircraft would
take up too much of the available dispersal area required for the dispersal
of IQAF aircraft at the airfield. There was no proper runway lighting
equipment or navigation equipment (SUCH AS?) that would have made evacuation
of the KAC aircraft in an emergency especially at night or in rainy or foggy
weather a risky business. Nor were there any maintenance facilities to
maintain the KAC aircraft to Al Sahra.
7. As a result the IQAF informed IAC that the KAC aircraft had
to be moved from Al Sahra. It was decided to relocate some of the KAC
aircraft to Mosul where they were regarded as being relatively safe due to
Mosul's location in the north of Iraq far away from the Kuwait border area
which was the expected area of conflict. I now produce as Exhibit FABM.2.
Copies of the extracts of the IQAF records which show which aircraft were
flown to Mosul and when and which aircraft flew from Al Sahra and when.
(HAVE THESE VITAL DOCUMENTS YET BEEN LOCATED. IF SO REVISE PARAGRAPHS 13
BELOW)."
- This draft was sent to Counsel and it was
amended (R3/7/206) so that the relevant section quoted above read as follows
(with the major changes underlined): -
"5. In paragraph 35 of my first statement I explained that the
LCN of the runway at the Al Sahra airfield was too low to safely accommodate
these large KAC airliners. I stand-by that statement although 3 of the KAC
aircraft CHECK were in fact initially flown on IQAF instructions to
Al Sahra temporarily shortly after they were flown from Kuwait. The NCL of
the runways and taxiways at Al Sahra is only 30 which is far too low
to safely accommodate take-offs landings and parking by such large and heavy
aircraft as KAC airliners. The LCN of the hardstanding at Al Sahra is only:
INSERT PLEASE ASK THE IQAF TO DISCLOSE THEIR RECORDS OF THE LCN NUMBERS OF
THE RUNWAY AT AL SAHRA AS WELL AS THE OTHER 2 AIRFIELDS AT TEKRIT IF AT ALL
POSSIBLE.
6. In fact it was by mistake that the IQAF directed the 3 KAC
aircraft to Al Sahra 1990 for the following reasons. Not only was the
LCN of the runways and taxiways too low, the runways had a number of
large cracks which made it dangerous for these aircraft to be flown to or
from the airfield in any kind of bad weather conditions. This was an
airfield which was suitable for much smaller lighter aircraft than the KAC
aircraft.
7. Al Sahra was the location of the principal IQAF training
college. For the reason given above the KAC aircraft had to be relocated.
Moreover the KAC aircraft were taking up too much of the available dispersal
required by the IQAF itself for the dispersal of IQAF aircraft stationed at
the airfield. There was no proper runway lighting equipment or navigation
(SUCH AS ?) that would have made the evacuation of the KAC aircraft in an
emergency especially at night in rainy or foggy weather a risky business.
Nor were there any maintenance facilities to maintain KAC aircraft at Al
Sahra.
8. As a result during late August 1990 the IQAF informed
IAC that the KAC aircraft had to be moved from Al Sahra and directed them
to Mosul instead. It was decided to relocate the KAC aircraft to Mosul
which the IQAF regarded as being the safest airfield in Iraq at the
time due to Mosul's location being in the far north of Iraq far away
from the Kuwaiti border area and any possible hostilities in that area and
its civilian function. (I now produce as Exhibit FABM 2 copies of extracts
of the IQAF records which show which aircraft were flown to Mosul and which
aircraft flew from Al Sahra and when (HAVE THESE VITAL DOCUMENTS BEEN
LOCATED, IF SO REVISE PARA 12 BELOW)
- This draft was solemnly signed in this very form
General Fehed on 5 November. It was then typed up again without the comments
and questions and simply re-signed by General Fehed on 7 December and then
served on KAC: (F.25).
- Quite apart from these rather bizarre
circumstances, the concealed documents also put a somewhat different
complexion on the qualities of the Al Sahra airfield in terms of its
suitability for and use by civilian aircraft:
a) On 7 January 1991 the Ministry of Defence nominated Al Sahra
as a stand-by airport for civil aeroplanes taking off for all landing at
Baghdad: (D2/368). (Although this was recorded in very
elliptical form in the Na'ama diary it so happened that the translation
provided to the court at the Aikens J trial omitted the relevant passage: E.
page 70).
b) The IQAF wrote to IAC on 9 January explaining that no
objection was taken to the dispersal of aircraft situated at Baghdad to
various airfields including Al Sahra: (D2 p.370|).
c) Once IQAF approval had been obtained, IAC sought approval
from the Presidency Secretariat for evacuation of their aircraft to the
various military airports (including Al Sahra) in the event that Saddam
International Airport was jeopardized (D2/377).
d) IAC then organised the selection of crew for dispersal to the
various airbases including Al Sahra: the relevant aircraft included
Airbuses: (D2/379 and 382).
- In summary, as regards IAC's case that the
transfer from Tikrit to Mosul (AHG) and to Basra (AHE and AHF) was ordered by
the IQAF, I conclude that, whilst this is possible, it is unlikely and thus
IAC has not made out the point. Having accepted the three aircraft by 17
August, there seems to be no obvious reason for the IQAF to withdraw the
invitation only 2 weeks later. There is the added consideration that the only
contemporary documentation suggests that IAC requested permission from IQAF to
move the aircraft out. This is not easy to reconcile with an order from the
very same source: G6 pp. 347, 350.
- The more likely explanation of the movement is
that, having decided to focus on the KAC Airbuses for commercial use, IAC was
anxious to move such aircraft from Tekrit to Mosul and Basra, airfields where
it had an established operation and where recent other movements had left
space.
- In contrast, absent the incorporation of the
aircraft into the IAC fleet, then (assuming that any of the aircraft would
have been dispersed to Tekrit in the first place) there would have been no
obvious reason for the IQAF to move them out almost immediately. Indeed, given
that on that scenario the IQAF itself would have been probably given control
of the KAC aircraft, there would have been every reason to retain them at
Tekrit.
The Basra movement
- On leaving Tekrit in August, AHG went to Mosul
and remained there until it became a victim of the bombing in January. The
remainder of the Mosul Four (AHF, AIB and AIC) were situated at Basra until
moved to Mosul on the 17 November. There is no issue that this movement was
prompted by their exposure at Basra to the potential war zone on the southern
border of Iraq. Indeed, the movement was expressly requested by the Minister:
D2 p. 400. What is in issue is whether the usurpation by IAC may
have dictated the choice of Mosul as the airfield of refuge.
- Apart from Baghdad the only alternative airport
at which IAC conducted any operations was Mosul. It was almost inevitable that
IAC's preferred option for aircraft for which it had no immediate use would be
Mosul. Indeed, it is clear that the selection of Mosul was made by IAC from
the perspective of its own convenience. As Mr Nekash put it in his statement:
-
" In 1990/91 IAC had a small maintenance team stationed at
Mosul for the purpose of serving its aircraft which flew there. The 4 ex
KAC aircraft… had remained at Mosul in the period before the commencement
of hostilities because IAC had no particular use for them. The Saddam
International Airport at Baghdad would have been too congested if they had
been kept there. The presence of the maintenance team made it a suitable
location since they could be maintained there."
- But for IAC's usurpation is it shown that the
Government (or IQAF) would have made the same choice? It was IAC's case that
any entity having control of the aircraft would necessarily have imposed the
priority of keeping them safe and that, once that priority was established,
Mosul was the inevitable destination because Mosul was regarded as the safest
place to park.
- There is force in this argument. Although the
contemporary documents show that Tekrit was the principal stand-by or refuge
airport for civil aircraft otherwise arriving or leaving Baghdad, nonetheless
they also indicate the selection of Mosul was consequent on a request from the
Minister: D2 p. 400, 412. Assuming that the aircraft had
departed Tekrit in the first place, I accept that it is more likely than not
that, absent incorporation by IAC, the IQAF would not have returned them there
but have despatched them to Mosul instead.
Evacuation
- The initial plan as regards to evacuation
included proposals for seeking refuge within Iraq: (D2 p.377.
- In the event, however, the Government gave
instructions for the evacuation of all aircraft overseas. These instructions
are outlined in Mr Saffi's letter of the 16 January 1991 (D2
p.387): -
"Pursuant to your telephone directive dated 15.1.1991 duties
were carried out to evacuate 18 aircraft from Saddam International Airport
as follows…
5. Airbus 310 - 5 aircraft
We have 3 Iraqi crews only. 3 aircrafts were moved to Mashad
Airport and the rest to be moved today.
6. Airbus A300 - 3 aircraft
1 is defective at Saddam International Airport. 2 at Mosul
Airport to be moved to Mashad Airport in Iran.
7. 767 - 2 aircraft
At Mosul Airport to be moved to Mashad Airport later…
18 aircraft were moved in a record period of time thanks to your
personal intervention and directives and with the help of the Ministry of
Transport…"
- As regards the distribution of aircraft
generally to other countries, it would appear that all this was achieved
within the discretion of Mr Saffi and not pursuant to Governmental orders. In
this regard, an attendance note of Mr Kosky dated 17 October 1999 (R2/3/237)
reads as follows: -
"We asked Mr Saffi about the flights to other countries apart
from Jordan. … He gave priority to IAC aircraft because he was able to get
that quickly. It was entirely his decision and he decided to take this
action. He did not ask the Minister's permission. The distribution of the
aircraft to these countries was a matter for him."
- In accord with the established priority on IAC's
part to focus on the KAC A310s and the steps taken accordingly to paint them
in IAC livery, all 5 A310s were successfully evacuated to Iran. In contrast
none of the Mosul Four had been painted. So far as the new material which has
been produced (and it is very limited), this demonstrates, as already noted,
that the painting of the fleet was a matter for which IAC was responsible. As
Mr Al Zubaidi put it in his statement: -
"I did not know the particular details but in mid January 1991,
I was aware from the chairman of IAC Mr Saffi that IAC had left ex KAC
aircraft for which there was no requirement in Mosul the northernmost
civilian airport in Iraq."
- The question of evacuation is of course another
matter. It does seem likely that some degree of priority would be accorded to
the repainted aircraft. In any event the Mosul Four certainly were not flown
out. The outcome was an inquiry instigated by the President himself. The
Minister's response was cagey (D2/397): -
"I do not therefore know the reasons which induced the general
manager of Iraqi Airways Corporation to keep the 2 Airbus aircraft at Farnas
Airport and not to despatch them to Iraq before the aggression took
place."
The counter for Mr Saffi was that there had been a delay in the approval
for the exodus from the Presidency Secretariat: (D2/413). The
actual outcome of the inquiry into this matter has never been disclosed.
- Whoever was in control, there was clearly a
shortage of pilots particularly those trained to fly Boeings 767's though
whether this entirely precluded efforts at reaching another country is
unlikely. How significant the painting was in the context also remains
obscure. Suffice it to say that given the emergency and the immediate interest
of the Government, I think it probable that all efforts of evacuation would
have been along similar lines whether it was IAC or IQAF in control. However,
given my earlier conclusions, it is not possible to identify, absent
incorporation by IAC, where the Mosul Four would have been situated and the
issue is redundant.
Conclusion
- To summarise:-
i) The Government of Iraq decided to incorporate KAC aircraft into IAC's
fleet and gave instructions to that effect very shortly after the invasion.
IAC duly commenced absorbing the fleet (as well as all the spares) as from 9
August.
ii) RCC Resolution 369 was promoted by IAC during the course of, and as
part of, the process of absorption.
iii) IAC was fully aware that it was usurping another's property and, by
thus acting in bad faith, acquired the burden of proof for the purpose of
demonstrating that, but for its interference, the Mosul Four would still have
been destroyed at Mosul.
iv) Throughout the period leading up to the evacuation on the eve of
hostilities, IAC was controlling all activities with regard to the KAC
aircraft, including their location, movement and use.
v) In particular it has not been shown by IAC that, but for its usurpation,
the initial dispersal from Basra would have been the same and, more
importantly, that there would have been any selection of Airbus 310-200s for
use on the Baghdad Kuwait route.
vi) Accordingly IAC has not established that any of the Mosul Four would
have been situated at Mosul in any event.
