Neutral Citation Number: [2016] EWHC 217 (Ch ) 
  Case No: HC -2014 -0053 5 
IN THE HIGH COURT OF JUSTICE  
CHANCERY DIVISIO N 
  Royal Courts of Justice  
7 Rolls Building  
Fetter lane  
London  
EC4N 1NL,  
  15th February 201 6 
B e f o r e :  
The Hon Mr Justice Henry Car r 
____________________  
Between:  
 
 MR PERETZ WINKLER  
ARZAL FINANCE CORP   
 
Claimants  
  
- and – 
 
 (1) ANGELA SHAMOON  
(2) ALEXANDRA SHAMOON  
(3) PHILIPPE GRUMBACH   
 
 
Defendants  
____________________  
MR SIMON COLTON, MS STEPHANIE WOOD (instructed by PCB Litigation 
LLP) for the Claimants  
MR DANIEL JOWELL QC, MR TONY SINGLA (instructed by Quinn 
Emanuel Urquhart & Sullivan UK LLP) for the First and Second Defendants  
MR MICHAEL MCPARLAND (instructed by Kingsley Napley LLP) for the 
Third Defendant  
Hearing dates: 13 -15, 18 -19 January 2016   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Mr Justice Henry Carr:  
Introduction  1 
The applications before the Court  8 
The agreed list of issues  13 
Submission to the jurisdiction of the English Court  15 
    The relevant facts  16 
    Legal issues  25 
    The Claimants' submissions  35 
    Assessment  39 
Whether the claim falls within the "succession" exception  53 
    Legal Principles  53 
    Article 1(2)(a)  60 
    Application to the facts of the present case  66 
Whether England is the natural and convenient forum  73 
Domicile of Mrs Angela Shamoon  77 
    Legal principles  78 
    Application to the facts  90 
        The evidence of Mrs Angela Shamoon  90 
        Day Count  101 
        The Position of the UK and Israeli Tax Authorities  107 
        The Quality of Mr Winkler's evidence  110 
    Additional points made by the Claimants  117 
    Conclusion  129 
The merits of the claim  130 
    The conditions which the Claimants need to satisfy  131 
    Relevant facts  134 
    Re Rose claim  140 
    Express declaration of trust  149 
    Proprietary estoppel claim  157 
    The trust structure  159 
    Alleged representations by Ms Alexandra Shamoon  162 
    Alleged detrimental reliance  167 
    Is England the proper place for the Claimants to bring the claim against Ms 
Alexandra Shamoon  172 
Does the English Court have jurisdiction in respect of the claim against Mr 
Grumbach?  173 
Conclusions  182 
Introduction  
1. On 29th May 2009, Mr Sami Shamoon ("Mr Shamoon"), a very successful 
Israeli businessman, passed away. He was known in his lifetime as one of the 
wealthiest men in Israel. He left a large and valuable estate. In June 2012, an 
Israeli judge recorded that its estimated value was about 1.7 billion new Israeli 
Shekels, which is approximately US $1 billion . The First Defendant ("Mrs 
Angela Shamoon") is his widow and the Second Defendant ("Ms Alexandra 
Shamoon") is his only daughter. The First Claimant ("Mr Winkler") is a 
Certified Public Accountant who was, amongst other things, the Chief 
Financial Officer and manager of the Yakhin Hakal Group of Israeli 
companies, which were owned or controlled by Mr Shamoon. Mr Winkler is 
the sole beneficial owner of the Second Claimant ("Arzal").  
2. Mrs Angela Shamoon and Ms Alexandra Shamoon are the residuary legatees 
unde r Mr Shamoon's will which is dated 19th December 2007. Ms Alexandra 
Shamoon's share of Mr Shamoon's estate is subject to a private trust created 
under Israeli Trusts Law 5739 -1979. This directed that if, as was the case, Ms 
Alexandra Shamoon was not yet 35  years old at the time of Mr Shamoon's 
death, both the specific monetary bequest made to her in the will and her 
interest in the remainder of the estate would be held on trust for her benefit 
until she reached the age of 35. This will happen on the 26th November 2019, 
until when Ms Alexandra Shamoon receives a monthly allowance.  
3. Mr Shamoon made a number of monetary bequests in his will, including a 
bequest to Mr Winkler of US $30,000. However, the Claimants allege that 
they are entitled to 1% of the shares  in Ainsbury Properties Limited 
("Ainsbury") and 12.5% of the shares in Placido Investments Inc ("Placido"). 
Both Ainsbury and Placido are British Virgin Islands ("BVI") companies, and 
the shares in dispute ("the Shares") are currently registered in the na me of Mr 
Shamoon and are managed and controlled by the Administrator of Mr 
Shamoon's estate. The Shares are worth tens of millions of dollars.  
4. In particular, Mr Winkler claims that in about 2008, Mr Shamoon 
contemplated transferring a part of Ainsbury's h olding in another company 
called B. Gaon Holdings Limited ("Gaon") to Mr Winkler. However, 
following advice from the Third Defendant ("Mr Grumbach"), Mr Winkler 
claims that Mr Shamoon decided instead to give 1% of Ainsbury to Mr 
Winkler and instructed Mr G rumbach to transfer these shares. Furthermore, 
Mr Winkler claims that in April 2009, shortly before his death, Mr Shamoon 
decided to transfer to Mr Winkler 12.5% of the shares in Placido in order to 
incentivise Mr Winkler to be involved in the business of the Yakhin Hakal 
Group after Mr Shamoon's death. Mr Winkler claims that Mr Shamoon 
directed Mr Grumbach to register Mr Winkler as owner of 12.5% of Placido.  
5. By this claim, the Claimants seek declarations against Mrs Angela Shamoon 
and Ms Alexandra Shamoon  to establish that Mr Winkler is entitled to 1% of 
the shares in Ainsbury and that Arzal, alternatively Mr Winkler, is entitled to 
12.5% of the shares in Placido. Orders are also sought that Mrs Angela 
Shamoon and Ms Alexandra Shamoon should "take all nece ssary steps" to 
ensure that Mr Winkler, in the case of the Ainsbury shares, and Arzal or 
alternatively Mr Winkler, in the case of the Placido shares, is registered as 
owner, or their proceeds transferred, "at the earliest opportunity". As against 
Mr Grumba ch, it is claimed that he negligently failed to transfer the legal title 
in the Shares, and so, if the Claimants' claim for registration of the legal title in 
the Shares fails, their value is claimed from Mr Grumbach.  
6. There have been a very large number o f claims in the Israeli courts against Mr 
Shamoon's estate. In February 2015, Mr Reicher, the current Administrator of 
the estate, told the Israeli Court that more than 300 court applications had been 
filed in Israel, involving more than 30 litigants, sinc e the start of the 
administration of the estate in Israel in 2009. One such application was made 
in Israel by Mr Winkler himself. In particular, Mr Winkler brought 
proceedings in April 2014 in Israel against the Administrator of Mr Shamoon's 
Estate, and ag ainst Mrs Angela Shamoon and Ms Alexandra Shamoon as the 
beneficiaries of the remainder rights under Mr Shamoon's will. By this 
application, he asked the Israeli Court to direct that the Shares, which are all 
assets within Mr Shamoon's estate, should be tr ansferred into the ownership of 
Mr Winkler, by requiring the Administrator of the estate to remove his 
objections to having the shares transferred into Mr Winkler's name.  
7. The Israeli Court dismissed Mr Winkler's application on 2nd June 2014. It 
ruled that the summary process of asking the Court to give instructions to the 
Administrator of the estate was not suitable where there was a dispute between 
the parties as to the ownership of the shares in question. Instead the Court 
directe d that Mr Winkler "… is obliged to file a suitable claim to the 
competent court…". I have no doubt that the Israeli judge dismissing the 
summary process intended that the "competent court" would be an Israeli 
court. However, Mr Winkler did not bring such p roceedings in Israel, but 
instead issued the Claim Form in these proceedings on the 8th October 2014. 
In contrast to the proceedings in Israel, the Administrator was not made a 
defendant to these proceedings.  
The applications before the Court  
8. Mrs Angela S hamoon applies for an order under CPR Part 11 setting aside the 
Claimants' purported service of the Claim Form on her within the jurisdiction 
on the basis that she is not domiciled in the UK for the purposes of Article 59 
of the Brussels Regulation 44/2001  ("the Brussels Regulation"), and was not 
therefore served at her "usual or last known residence" within CPR 6.9(2). The 
Brussels I Recast Regulation (1215/2012) ("the Brussels Recast Regulation") 
has no application to this case.  
9. Alternatively, and in the  event that the Court holds that she was validly served 
within the jurisdiction, Mrs Angela Shamoon applies for an order declaring 
that the Court does not have jurisdiction, or, alternatively should not exercise 
its jurisdiction in respect of the claim aga inst her on the basis that:  
i. The claim relates to succession and therefore falls outside the scope of the 
Brussels Regulation (pursuant to Article 1(2)(a) thereof); and  
ii. Pursuant to the common law rules, the English Court has no jurisdiction in 
respe ct of the claim and in any event England is not the natural forum for the 
claim.  
10. Ms Alexandra Shamoon accepts that she is domiciled in the UK for the 
purposes of the Brussels Regulation. However, she applies for an order on 
essentially the same basis as t hat set out above, contending, in particular, that 
the claim relates to succession and therefore falls outside the scope of the 
Brussels Regulation.  
11. The Claimants claim that the applications of Mrs Angela Shamoon and Ms 
Alexandra Shamoon should be dismiss ed. Alternatively, the Claimants apply 
for permission to serve Mrs Angela Shamoon out of the jurisdiction ("the 
Protective Application"). The Claimants seek permission from the Court to 
serve Mrs Angela Shamoon out of the jurisdiction in Israel pursuant to  CPR 
6.36 and 6.37, on the basis that she is a "necessary or proper party", within the 
meaning of CPR PD 6B paragraph 3.1(3), to the claim against Ms Alexandra 
Shamoon, who would thus operate as an "anchor defendant".  
12. Mr Grumbach also challenges jurisdict ion under CPR Part 11. In particular, he 
is a Swiss lawyer, domiciled in Switzerland, and the Claimants seek to 
establish the jurisdiction of the English Court under Article 6(1) of the Lugano 
Convention 2007 ("the Lugano II Convention"). Mr Grumbach claim s that 
there is no proper basis for the exercise of jurisdiction, on the basis inter alia 
that Article 6(1) is inapplicable to the facts of this case.  
The agreed list of issues  
13. The parties agreed a list of issues which are raised by these multiple 
applica tions, and the structure of this judgment shall follow the agreed list. As 
indicated below, certain contentions, if successful, are determinative of the 
matter, so that other issues would not then require determination. However, 
the parties have asked me t o determine all issues between them, which I am 
prepared to do given that (a) they were fully argued and (b) it may be of 
assistance if this case is considered by the Court of Appeal. The issues are as 
follows:  
i. Submission : whether Mrs Angela Shamoon an d Ms Alexandra Shamoon 
have, by their conduct in the proceedings to date, submitted to the jurisdiction 
of the English Court.  
ii. Succession  
a) Whether the claim against Mrs Angela Shamoon and Ms Alexandra 
Shamoon falls within the "succession" exception i n Article 1(2)(a) of the 
Brussels Regulation or Lugano II Convention.  
b) If so, whether pursuant to the common law rules the English Court has 
jurisdiction in respect of the claim against Mrs Angela Shamoon and Ms 
Alexandra Shamoon.  
iii. Domicile : whether  Mrs Angela Shamoon was domiciled in the UK at the 
time that the claim was issued and served on her.  
iv. Claimants' Protective Application  
a) Does the claim fall within the jurisdictional gateway in CPR PD 6B 
paragraph 3.1(3)? In particular:  
1. Is there a real issue between the Claimants and Ms Alexandra Shamoon? In 
particular, is there a realistic prospect of success in relation to the causes of 
action against Ms Alexandra Shamoon based upon:  
o The Claimants' allegation that Mr Winkler obtained an  equitable 
proprietary interest in the Ainsbury Shares before Mr Shamoon's 
death?  
o The Claimants' allegation that the Claimants (or one of them) obtained 
an equitable proprietary interest in the Placido Shares before Mr 
Shamoon's death?  
o The allegation tha t Mr Winkler has an entitlement by way of 
proprietary estoppel to the Ainsbury Shares based on representations 
made by Ms Alexandra Shamoon after Mr Shamoon's death?  
o The allegation that the Claimants (or one of them) have an entitlement 
by way of propriet ary estoppel to the Placido Shares based on 
representations made by Ms Alexandra Shamoon after Mr Shamoon's 
death?  
2. If there is a real issue between the Claimants and Ms Alexandra Shamoon, 
is it reasonable for the English Court to try that issue?  
b) Ins ofar as necessary, do the claims (equivalent to those alleged in iv(a)(1) 
above) against Mrs Angela Shamoon have a reasonable prospect of success 
(CPR 6.37(1)(b))?  
v. Application by Mr Grumbach:  Does the English Court have jurisdiction in 
respect of the cl aim against Mr Grumbach?  
14. Before considering these multiple issues, I should express my gratitude to all 
Counsel for the excellent quality of their skeleton arguments and oral 
presentations.  
Submission to the jurisdiction of the English Court  
15. If the Clai mants were to succeed on this aspect of their case, then this would 
determine the matter as against Mrs Angela Shamoon and Ms Alexandra 
Shamoon. Their application under CPR Part 11 would fail and the Claimants' 
Protective Application would not arise. Howev er, this is a case where it has 
been repeatedly stated on behalf of these Defendants, that, by taking particular 
steps, they were not submitting to the jurisdiction. If the Claimants are correct, 
Mrs Angela Shamoon and Ms Alexandra Shamoon will be deemed t o have 
submitted to the jurisdiction, whilst straining every muscle not to do so.  
The relevant facts  
16. The procedural history relevant to this aspect of the case is as follows. On 8th 
October 2014 the Claim Form was issued. PCB Litigation LLP ("PCB 
Litigati on"), solicitors for the Claimants, under cover of letters dated 13th 
November 2014, sent the Claim Form and other documents to Mrs Angela 
Shamoon and Ms Alexandra Shamoon, respectively, at the addresses of two 
London flats, namely Flat 6 and Flat 3, 35, H yde Park Gate, London SW7 
5DN ("Flat 6" and "Flat 3"). The Particulars of Claim were enclosed with 
those letters.  
17. Due to a mistaken belief that no Particulars of Claim had been served, on 16th 
December 2014, an application was made on behalf of Mrs Angela  Shamoon 
and Ms Alexandra Shamoon to strike out the claim under CPR 3.4(2)(c) ("the 
Procedural Strike Out Application"). I was told that Ms Alexandra Shamoon 
had tried to fax the documents to Mrs Angela Shamoon, who had passed them 
to their solicitors, Qui nn Emanuel Urquhart & Sullivan LLP ("Quinn 
Emanuel"), and the Particulars of Claim had been omitted. The precise reasons 
for the error are not important, as it is common ground that it was an innocent 
mistake.  
18. The Procedural Strike Out Application made cl ear that no submission to the 
jurisdiction was being made. The Application Notice stated:  
"Nothing in this application should be taken as a submission by Mrs Angela 
Shamoon and Ms Alexandra Shamoon to the jurisdiction of the English 
Courts.   They make no such submission, and this application is made 
expressly without prejudice to their rights to object to the English Court's 
jurisdiction, in the event that this claim were to be continued, which rights 
remain fully reserved."  
19. Furthermore, Paragraph 5 of Mr  Gerbi's witness statement, served in support 
of the Procedural Strike Out Application, stated that:  
"It should be made expressly clear that, by making this Application, neither 
the First nor Second Defendant is to be taken to have submitted to the 
jurisdiction of the English Court.   They make no such submission, and this 
Application is made expressly without prejudice to their rights to object to the 
English Court's jurisdiction, in the event that this claim were to be continue d, 
which rights remain fully reserved."  
20. Although it is difficult to imagine that, in the light of these statements, there 
could be any doubt about the matter, the Procedural Strike Out Application 
was served under cover of a letter dated 16th December 2014  from Quinn 
Emanuel, which stated that:  
"As the Application makes clear, our clients do not by this Application make 
any submission to the jurisdiction of the English Courts and fully reserve their 
rights, including to object to the English Court's jurisd iction."  
21. On 4th December 2014 applications for judgment in default were made on 
behalf of the Claimants against Mrs Angela Shamoon and Ms Alexandra 
Shamoon, on the basis that they had not filed Acknowledgements of Service 
by 1st December 2014. Default judg ments were entered on 19th December 
2014. On 22nd December 2014 it was confirmed that the Procedural Strike 
Out Application would not be pursued and Acknowledgements of Service 
were filed on behalf of Mrs Angela Shamoon and Ms Alexandra Shamoon. On 
both Ac knowledgements of Service, there was an express statement of 
intention to contest the jurisdiction.  
22. The Claimants initially refused to consent to the default judgments being set 
aside. Accordingly, on 23rd December 2014, Mrs Angela Shamoon and Ms 
Alexandr a Shamoon applied, inter alia , to set aside the default judgments 
pursuant to CPR Part 13 ("the Set Aside Application"). By a Consent Order 
sealed on 2nd February 2015 the default judgments were set aside and 
retrospective extensions of time to file Acknow ledgements of Service and to 
file (amongst other possible applications) jurisdictional challenges, were 
granted. As with the Procedural Strike Out Application, it was repeatedly 
stated, both in the Application and in the evidence, that there was no 
submiss ion to the jurisdiction. For example, Mrs Angela Shamoon stated at 
paragraph 5 of her statement in support of the Set Aside Application:  
"I would like to make clear that by making this witness statement in support of 
the application, I do not submit to th e jurisdiction of the English Court.   Being 
resident in Israel (as I explain in more detail below), I make no such 
submission and this witness statement and application are made expressly 
without prejudice to my right and intention to object to the English  Court's 
jurisdiction, and also to the validity of the purported service on me of the 
claim documents by the Claimants."  
23. By a letter dated 14th January 2015 PCB Litigation proposed on behalf of the 
Claimants that:  
"Without prejudice to our clients' conten tion that your clients have, by their 
conduct, already submitted to the jurisdiction of the English Court, any 
application by your clients to challenge jurisdiction be made within 14 days of 
the consent order setting aside default judgment."  
Accordingly, w ithin 14 days of the Consent Order, by an Application Notice 
dated 16th February 2015, Mrs Angela Shamoon and Ms Alexandra Shamoon 
applied to set aside service of the Claim Form pursuant to CPR Part 11.  
24. On 20 January 2015, Mrs Angela Shamoon and Ms Alexan dra Shamoon made 
a Request for Further Information of the Particulars of Claim. The letter 
accompanying the Request stated that:  
"We enclose by way of service on your clients Part 18 Requests for Further 
Information and Clarification of the Particulars of  Claim which are being 
made for the purpose of their challenge to the jurisdiction of the English 
Court, and expressly (and self -evidently) without any submission to such 
jurisdiction being made.   These Requests, and your clients' answers to the 
same, are reasonable, necessary and proportionate in order to enable our 
clients to prepare their application challenging jurisdiction."  
This was reiterated at the beginning of the Request:  
"This is a Request for Further Information of the Particulars of Claim pursu ant 
to CPR Part 18 dated 20 January 2015.   It is served on behalf of Mrs Angela 
Shamoon and Ms Alexandra Shamoon for the purpose of their challenge to the 
jurisdiction of the English Court which they intend to bring pursuant to CPR 
Part 11 and is reasonabl y necessary and proportionate in order to resolve the 
issues that arise on that application.  
By making this Request for Further Information neither Mrs Angela Shamoon 
nor Ms Alexandra Shamoon submits or is taken to have submitted to the 
jurisdiction of the  English Court.   Rather, the purpose of this Request is to 
assist the Court in resolving Mrs Angela Shamoon and Ms Alexandra 
Shamoon' applications contesting jurisdiction."  
Legal issues  
25. Article 2(1) of the Brussels Regulation provides as follows:  
"Subject  to this Regulation, persons domiciled in a Member State shall, 
whatever their nationality, be sued in the courts of that Member State."  
26. This is a fundamental objective of the Brussels Regulation, as reflected in 
Recital 11:  
"The rules of jurisdiction must be highly predictable and founded on the 
principle that jurisdiction is generally based on the defendant's domicile and 
jurisdiction must always be available on this ground saving a few well -defined 
situations in which the s ubject matter of the litigation or the autonomy of the 
parties warrants a different linking factor."  
27. Article 24 provides that:  
"Apart from jurisdiction derived from other provisions of this regulation, a 
court of a member state before which a defendant en ters an appearance shall 
have jurisdiction. This rule shall not apply where appearance was entered to 
contest the jurisdiction…"  
28. The Jenard Report on the Brussels Convention [1979] OJ C59/1 sheds light on 
the purpose of Article 24 (then Article 18). In par ticular, the commentary on 
Article 18 states that:  
"Article 18 governs jurisdiction implied from submission. If a defendant 
domiciled in a Contracting State is sued in a court of another Contracting State 
which does not have jurisdiction under the Convent ion, two situations may 
arise: the defendant may either, as he is entitled to do, plead that the court has 
no jurisdiction under the Convention, in which case the court must declare that 
it does not have jurisdiction; or he may elect not to raise this plea , and enter an 
appearance. In the latter case, the court will have jurisdiction."  
29. From this, it appears that the Article is concerned with cases where a 
defendant has voluntarily elected to submit to the jurisdiction of the court of a 
Contracting State in which he is not domiciled, rather than contesting the 
jurisdiction of that court. This is reinforced by a further characterisation in the 
Jenard report of Article 18 as "jurisdiction by submission."  
30. The Jenard Report continues:  
"Unlike the case of conven tions based on indirect jurisdiction, the defendant 
may, by virtue of the Convention, rely on its provisions in the court seised of 
the proceedings and plead lack of jurisdiction. It will be necessary to refer to 
the rules of procedure in force in the stat e of the court seised of the 
proceedings in order to determine the point in time up to which the defendant 
will be allowed to raise this plea, and to determine the legal meaning of the 
term 'appearance'."  
Thus, it appears that the question of whether the d efendant has entered an 
appearance is to be determined in accordance with the relevant national 
procedural rules.  
31. As a matter of European law, any objection to jurisdiction must be raised 
before filing a defence on the merits;   Case C -150/80  Elefanten Sch uh GmbH 
v Pierre Jacqmain  [1981] ECR 1671  at [17]. However, in Harada Ltd (trading 
as Chequepoint UK) v Turner [2003] EWCA Civ 1695  at [29] Simon Brown 
LJ held that the Court does not have jurisdiction, even if the defendant makes 
submissions on the merits, provided that the challenge to  jurisdiction is made 
before, or at the same time as, the argument on the merits. He explained at 
[32] that the rationale of Article 18 was to allow the merits to be contested 
without prejudice to the question of jurisdiction, provided that the 
jurisdictio nal objection has not been delayed until after, under national 
procedural law, there has been a submission to the jurisdiction.  
32. The Court of Appeal considered the phrase "enters an appearance" in Article 
24 of the Brussels Regulation in Deutsche Bank AG L ondon Branch v 
Petromena ASA  [2015] 1 WLR 4225 . Floyd LJ held that whether an 
appearance has been entered is to be decided as a mat ter of national procedural 
law, provided that the result is consistent with the effective operation of the 
Convention. He said at [21] -[22]:  
"21. Professor Briggs and Mr Rees QC, in  Civil Jurisdiction and 
Judgments  (5th edn. 2009) ("Briggs and Rees"), whi le recognising that "enters 
an appearance" may have an autonomous meaning, go on to say at paragraph 
2.83 that precisely how and when the entering of an appearance takes place is 
governed by rules of local procedural law, provided always that these rules d o 
not impair the effectiveness of the Convention. That view is consistent with 
the general approach of the ECJ to procedural rules: see Case 365 -
88 Kongress Agentur Hagen GmbH v Zeehaage BV  [1990] ECR I -1845  cited 
by Simon Brown LJ in  Harada Limited (trading a Chequepoint) v 
Turner  [2003 ] EWCA Civ 1695  at [30]. Thus national law must not contain 
rules which compel a defendant to enter an appearance and thereby submit to 
the jurisdiction in order to protect his position on the merits. Such rules would 
impair the operation of the Convention . 
22. It is therefore to national procedural rules that one must look, in the first 
instance, to determine whether an appearance has been entered. Once one has 
determined that question as a matter of national procedural law, it is necessary 
to ask whether the result is consistent with the effective operation of the 
Convention."  
33. Floyd LJ explained at [32] -[33] that there are two different ways in which a 
defendant might submit to the jurisdiction. The first, which he categorised as 
"common law waiver", requi res the doing of an act inconsistent with 
maintaining a challenge to the jurisdiction. Such a waiver must clearly convey 
an unequivocal renunciation by the defendant of his right to challenge the 
jurisdiction. The second, which he categorised as a "statuto ry form of 
submission" is where the national procedural rules provide that a particular act 
shall be treated as a submission.  
34. At paragraph 2.87 of Civil Jurisdiction and Judgments  6th ed. (2015) Prof. 
Briggs summarises the position in respect of Article 2 6 of the Recast Brussels 
Regulation. In my judgment this applies equally to Article 24 of the Brussels 
Regulation:  
"What is required of [the defendant] is that he makes his contest to the 
jurisdiction at the first opportunity which is given to him under the procedural 
law of the Court seised, and not, as happened in Elefanten Schuh , as decidedly 
late afterthought. It is difficult to believe that this provision should now give 
rise to any practical difficulty. If the plea to object to the jurisdi ction is made 
at the first practical opportunity and no later than the time for filing the first 
defence, and in accordance with the procedural rules of the Court or tribunal 
concerned, neither concurrently entering a defence on the merits, nor taking 
procedural steps, such as applying for an extension of time to make the 
jurisdictional challenge, or seeking discovery of documents in order to 
demonstrate the facts which show the Court not to have jurisdiction, in the 
course of the adjudication upon the juri sdictional plea, will prejudice the 
position of the defendant. By contrast, taking further voluntary steps, not 
themselves consistent with the original and continuing intention to challenge 
the jurisdiction, but which deal instead with the merits of the cl aim, will be 
liable to forfeit the protection of Article 26, and will amount to the entering of 
an appearance."  
The Claimants' submissions  
35. First, Mr Colton submits that there are two distinct elements to Article 24 of 
the Brussels Regulation. The court wil l have jurisdiction under the first 
sentence of the Article if the defendant "enters an appearance". However a 
qualification is added: even if a party has entered an appearance, that does not 
confer jurisdiction if the appearance was "entered to contest th e jurisdiction". 
Secondly, he submits that a defendant will lose the right to contest jurisdiction 
under Article 24 if, before he contests jurisdiction, he enters an appearance for 
any other purpose. In particular, he submits that a defendant loses the rig ht to 
contest jurisdiction if he makes submissions on the substance of the claim 
before contesting jurisdiction.  
36. Thirdly, Mr Colton pointed to the terms of CPR Part 11(1) -(5):  
"(1) A defendant who wishes to – 
(a) dispute the Court's jurisdiction to try t he claim; or  
(b) argue that the Court should not exercise its jurisdiction  
may apply to the Court for an order declaring that it has no such jurisdiction or 
should not exercise any jurisdiction which it may have.  
(2) A defendant who wishes to make such an application must first file an 
acknowledgment of service in accordance with Part 10.  
(3) A defendant who files an acknowledgment of service does not, by doing 
so, lose any right that he may have to dispute the Court's jurisdiction.  
(4) An application under  this rule must – 
(a) be made within 14 days after filing an acknowledgment of service; and  
(b) be supported by evidence.  
(5) If the defendant – 
(a) files an acknowledgment of service; and  
(b) does not make such an application within the period specified i n paragraph 
(4), 
he is to be treated as having accepted that the Court has jurisdiction to try the 
claim."  
37. Relying on CPR Part 11(2), Mr Colton submits that until a defendant has filed 
an acknowledgement of service, he has not challenged the jurisdiction u nder 
national procedural rules. Once he has filed the acknowledgement of service, a 
defendant has entered an appearance within the meaning of Article 24. 
According to this argument, the defendant does so even if he indicates in the 
acknowledgement of servi ce that he intends to contest the jurisdiction of the 
Court. At that stage he must rely on the second sentence of Article 24.  
38. Fourthly, Mr Colton submits that a defendant can also enter an appearance by 
making an application to the Court or by otherwise i nvoking the jurisdiction of 
the Court, and he contends that this has occurred in the present case. It is 
alleged that Mrs Angela Shamoon and Ms Alexandra Shamoon entered an 
appearance in these proceedings before they challenged jurisdiction, and did 
so in a manner that was not necessary in order to contest the jurisdiction of the 
Court. In particular it is alleged that they entered an appearance without 
challenging the jurisdiction by (a) issuing the Procedural Strike Out 
Application; (b) issuing the Set As ide Application and/or (c) serving the 
Request for Further Information.  
Assessment  
39. I reject the Claimants' submissions for the following reasons. I do not accept 
that a defendant who wishes to contest the jurisdiction "enters an appearance" 
within the mea ning of Article 24 by filing an acknowledgement of service 
which expressly indicates his intention to contest the jurisdiction. In support of 
his argument, Mr Colton relies on [186] of the judgment of Andrew Smith J. 
in Maple Leaf Macro Volatility Master F und v Rouvroy  [2009] EWHC 257 
(Comm) :  
"In my judgment, the defendants entered an appearance within the meaning of 
the Brussels Regulation in respect of the claims originally brought by Maple 
Leaf when they acknowledged service of these proceedings. They did not 
thereby lose the right to challenge the jurisdiction: they had the right to do so 
under the C PR. To that extent the defendants did not unconditionally enter an 
appearance by the filing of the acknowledgment of service. They made this 
explicit by expressing their intention to challenge jurisdiction on the form, but 
it would have been the case in an y event: see the judgment of Mr. Michael 
Briggs QC in  IBS Technologies (PVT) Ltd v APM Technologies SA , 
unreported, 7 April 2003."  
40. The first sentence, taken in isolation, could support the Claimants' proposition. 
However, I consider from the rest of the ci tation that Andrew Smith J 
considered that the defendant did not unconditionally enter an appearance by 
the filing of an acknowledgement of service, because of the explicit statement 
of intention to challenge jurisdiction on that form.  
41. In Antonio Gramsci Shipping Corp v Recoletos Ltd  [2012] EWCH 1887 
(Comm); [2012] Lloyd's Rep 365. Teare J recorded at [65] that it was common 
ground that:  
"in determining whether there has been an appearance pursuant to Art. 24 of 
the Brussels regulation it is appropriate t o consider whether there has been a 
submission to the jurisdiction in accordance with the local law, in this case, 
English law."  
42. Similarly, in Future New Developments limited v B&S Patente und Marken 
Gmbh [2014] EWCH 1874 (IPEC) HH Judge Hacon recorded at [18] that:  
"If the proceedings before this Court were considered in isolation, B&S did 
not enter an appearance. In the acknowledgement of service the box for 
challenging the jurisdiction was crossed and within 14 days of filing the 
acknowledgement B&S mad e its application disputing the Court's jurisdiction 
supported by evidence pursuant to CPR 11(4)."  
43. I consider that in both those cases, the parties were right to accept that the 
filing of an acknowledgement of service with an express indication of an 
inten tion to challenge jurisdiction does not constitute the entry of an 
appearance within the meaning of Article 24. CPR 11(2) requires an 
acknowledgement of service to be filed in order to challenge jurisdiction. By 
doing so, the defendant does not sacrifice a ny of his rights under the 
Regulation. National procedural rules must not be construed as compelling the 
defendant to enter an appearance, as this would be contrary to the objects of 
the Regulation. The question of whether a defendant has entered an 
appear ance depends on whether there has been a submission to the jurisdiction 
in accordance with the local law.  
44. Furthermore, I do not accept that this question is answered by asking whether 
the defendant has done more than is required  or is necessary  in order t o 
challenge jurisdiction. Rather, the Court must be satisfied that the defendant 
has unequivocally renounced his right to challenge the jurisdiction.  
45. There is no question of statutory submission in the present case. Therefore, the 
issue is whether there h as been a waiver of the right to challenge jurisdiction 
(see Deutsche Bank (supra)). The relevant test for submission to the 
jurisdiction was set out by Lord Collins in Rubin & Anor v Eurofinance SA 
and Ors  [2012] 3 WLR 1019 :  
"The general rule in the ordinary case in England is that the party alleged to 
have submitted to the jurisdiction of the English Court must have "taken some 
step whi ch is only necessary or only useful if" an objection to jurisdiction "has 
actually been waived, or if the objection has never been entertained at all.""  
46. Applying these principles to the acts relied on by Mr Winkler, it is clear that 
none of them amount to a submission to the jurisdiction. In respect of the 
Procedural Strike Out Application, the Set Aside Application and the Request 
for Further Information, Mrs Angela Shamoon and Ms Alexandra Shamoon 
have consistently made clear that such steps were without prejudice to their 
jurisdictional challenge. This is the very opposite of an unequivocal 
renunciation of such a challenge.  
47. The Procedural Strike Out Application was based upon a mistaken belief that 
the Claimants failed to serve the Particulars of Claim. It makes no difference 
to the Claimants' argument that this belief was mistaken. Even if the Claimants 
had failed to serve the Particulars of Claim within the time specified by the 
rules, on the Claimants' case, a Strike Out Application by Mrs Angela 
Shamo on and Ms Alexandra Shamoon would still have amounted to a 
submission to the jurisdiction, where it was made before the 
Acknowledgement of Service was filed, since it would not have been a step 
which was necessary in order to challenge jurisdiction. This a pproach would 
lead to an absurd result.  
48. It would be equally absurd if a defendant who wished to challenge jurisdiction 
was unable to set aside a judgment in default which had been obtained against 
it without submitting to the jurisdiction. The fact that t he Set Aside 
Application was allowed by consent shows that it was justified.  
49. Finally, the express purpose of the Request for Further Information was to 
obtain greater clarity as to the precise nature of the claim in connection with 
Mrs Angela Shamoon and Ms Alexandra Shamoon's intended jurisdiction 
challenge. The questions were asked because of arguments concerning 
succession and forum conveniens which Mrs Angela Shamoon and Ms 
Alexandra Shamoon's legal advisers anticipated, rightly, would arise in the 
course of the jurisdictional challenge. None of the requests were answered by 
the Claimants. Given that the purpose of the Request was repeatedly made 
clear, as was the fact that it was not to be taken as constituting a submission to 
the jurisdiction, I do no t consider that its service had the unintended effect 
alleged by the Claimants.  
50. In the circumstances I have come to the clear conclusion that Mrs Angela 
Shamoon and Ms Alexandra Shamoon have not submitted to the jurisdiction 
pursuant to Article 24 of the Brussels Regulation.  
51. In the Claimants' skeleton argument, it was submitted that if I were to 
conclude that the claim relates to "succession", and therefore falls outside the 
scope of the Brus sels Regulation, Mrs Angela Shamoon and Ms Alexandra 
Shamoon had, by their conduct, submitted to the jurisdiction of the English 
Court in accordance with domestic English rules. I am not sure that this 
submission was pursued by Mr Colton at the hearing. If  it was, I reject it. In 
Hewden Stuart Heavy Cranes Ltd. v Leo Gottwald Kommanditgesellschaft 
[1992] WL 12678542, Lloyd LJ applied the observation of Denning LJ in Re 
Dulle's Settlement  (No.2) [1951] Ch 842, which was quoted with approval by 
Lord Fraser in  Williams & Glyn's Bank Plc v Astro Dinamico Companie 
Naviera S.A. [1984] 1 W.L.R. 438:  
"I cannot see how anyone can fairly say that a man has voluntarily submitted 
to the jurisdiction of a court, when he has all the time been vigorously 
protesting that i t has no jurisdiction."  
52. In my judgment, the observation of Denning LJ is applicable to the case before 
me. Mrs Angela Shamoon and Ms Alexandra Shamoon have clearly not 
submitted to the jurisdiction of the English Court under English domestic 
rules.  
Whethe r the claim falls within the "succession" exception  
Legal Principles  
53. Article 1 of the Brussels Regulation provides as follows:  
"1. This Regulation shall apply in civil and commercial matters whatever the 
nature of the court or tribunal. It shall not extend, in particular, to revenue, 
customs or administrative matters.  
2. The Regulation shall not apply to:  
(a) the status or legal capacity of natural persons, rights in property arising out 
of a matrimonial relationship, wills and succession;  
(b) bankrup tcy, proceedings relating to the winding -up of insolvent companies 
or other legal persons, judicial arrangements, compositions and analogous 
proceedings;  
(c) social security;  
(d) arbitration."  
54. Article 1(2)(a) of the Lugano II Convention is in the same term s as Article 
1(2)(a) of the Brussels Regulation. I shall refer to the Brussels Regulation, but 
my reasoning is equally applicable to the Lugano II Convention.  
55. Mr Jowell QC, who appeared for Mrs Angela Shamoon and Ms Alexandra 
Shamoon, made certain prelimi nary points in respect of the exceptions in 
Article 1(2)(a) -(d), which I accept. First, where a claim raises several issues, 
the question for the Court is whether the principal subject -matter of the claim 
falls within one of the exceptions. This test is ap plied to ascertain whether a 
claim falls within the exclusive jurisdiction provision in Article 22; JP 
Morgan Chase Bank NA v Berliner Verkehrsbetriebe  [2012] QB 199 at [90] 
and Ferrexpo v Gilson [2012] 1 Lloyd's Rep 588 at [145]. This was the 
approach tak en specifically in relation to the "succession" exception by Rattee 
J in In re Hayward  [1997] Ch 45 at 53H and by Carr J (for the avoidance of 
doubt, Mrs Justice Sue Carr) in Sabbagh v Khoury and others  [2014] EWHC 
(Comm) 3233  at [276].  
56. Secondly, the European Court of Justice has made clear that in assessing 
whether a claim is a "civil or commercial matter" within the meaning of 
Article 1(1) of the Regulatio n, what matters is the substance and not the form 
of the claim: see e.g. Case C -292/05 Lechouritou v Germany  [2007] ECR I -
1719 at [40] -[41] where the Court emphasised the need to look beyond the 
pleadings. In my judgment, the same is true in respect of Art icle 1(2)(a) in that 
the Court needs to look at the substance of the claim in order to decide if its 
principal subject matter falls within the succession exception.  
57. Mr McParland, who appeared on behalf of Mr Grumbach, submits that Article 
1(2) contains ex clusions from the scope of the Brussels Regulation. He 
submits that there is a distinction between exclusions and exceptions. Whereas 
exceptions, such as Article 22 of the Brussels Regulation, are to be construed 
strictly and not given an interpretation br oader than that required by their 
objective, there is no reason to apply this to exclusions. Mr McParland drew 
attention to pages 10 and 11 of the Jenard Report, which indicate why the 
matters specified in Article 1(2)(a) were excluded from the scope of th e 
Brussels Convention. In summary, it was considered that difficulties resulting 
from a disparity between the various systems of law, in particular regarding 
the rules of conflicts of laws, together with a concern that courts might refuse 
to recognise fore ign judgments, justified the exclusion of, inter alia,  claims 
where the principal subject matter of the proceedings concerned wills and 
succession. Since this was a case of exclusion from the scope of the 
Convention, rather than derogation from a right gra nted by it, Mr McParland 
submits there was no reason to construe the exclusion narrowly.  
58. This was not the view taken by Carr J in Sabbagh . At [255] -[257] she said:  
"255. The Brussels Regulation provides a comprehensive code or jurisdiction 
for the courts of the member states of the European Union. The general rule is 
that all civil and commercial matters are subject to the Brussels Regulation 
and that, pursuant to Article 2, defendants should be sued at the place of their 
domicile.  
256. It was submitted for Sabbagh that where other Articles exclude or 
provide exceptions to this general principle, they must be construed strictly 
and not given an interpretation broader than is required by their objective: see 
for example  Case C -292/08 German Graphics Graphische Maschinen GmbH 
v van der Schee  [2010] ILPr 1 (at paragraphs 23 to 25) ("German Graphics"). 
The Defendants rejected this, at least in relation to Article 1(2), on the basis 
that German Graphics  was a case in respect of inso lvency where, unlike 
succession, the scope of insolvency proceedings is specifically defined (see in 
particular Article 2) and Annex A of Council Regulation (EC) No 1346/2000 
on insolvency proceedings ("the Insolvency Regulation").  
257. I am not persuaded that the statements in  German Graphics  are not of 
more general application than simply in the insolvency context. The statement 
(in paragraph 23) to the effect that Article 1(1) of the Brussels Regulation 
should be broad in its scope was a general one (see  for example the comments 
made to similar effect in the context of Article 22 in  JP Morgan NA v Berliner 
Verkehrsbetriebe  [2012] QB 199 ("BVG") addressed below). But in any event 
my findings below do not depend on whether a narrow or a broad approach to 
construction is taken."  
59. Mr McParland is correct in his submission that since Carr J's findings did not 
depend upon whether a narrow or broad approach to construction is taken, I 
am not bound to follow her reasoning. However, I agree with Carr J that the 
statements of the CJEU in German Graphics  are not confined to the 
insolvency context and indicate that the exclusions in Article 1(2) should not 
be broadly interpreted. This is consistent with the objective that "civil and 
commercial matters" referred to in Ar ticle 1(1) should be broadly interpreted, 
in accordance with the second, seventh and fifteenth recitals to the Brussels 
Regulation. In addition, and in common with Carr J, I consider that my 
findings in the present case do not depend upon whether a narrow or a broad 
approach to interpretation is taken.  
Article 1(2)(a)  
60. The phrase "wills and succession" is not defined within the text of the Brussels 
Regulation. The need for a uniform application of EU law requires that this 
phrase should be given an autonomo us interpretation. Furthermore, when 
interpreting this phrase, it is necessary to consider the broader, systematic 
context of EU private international law of which it forms part.  
61. Accordingly, any autonomous definition of "wills and succession" must be 
consistent with the scope of Regulation (EU) No 650/2012 ("the Succession 
Regulation"). Although the United Kingdom has opted out of the Succession 
Regulation, it is an important interpretative aid. Matters which are included 
within the scope of the Successio n Regulation are excluded from the scope of 
the Brussels Regulation. This is the effect of the exclusion in Article 1(2)(a), 
seen in the overall context of the relevant Regulations.  
62. Article 3.1(a) of the Succession Regulation defines "succession" as:  
"succession to the estate of a deceased person and covers all forms of transfer 
of assets, rights and obligations by reason of death, whether by way of 
voluntary transfer under a disposition of property upon death or transfer 
through intestate succession."  
63. Recital (9) to the Succession Regulation states that:  
"The scope of this Regulation should include all civil -law aspects of 
succession to the estate of a deceased person, namely all forms of transfer of 
assets, rights and obligations by reason of death, whe ther by way of a 
voluntary transfer under a disposition of property upon death or a transfer 
through intestate succession."  
64. The applicable law designated under either Article 21 or 22 of the Succession 
Regulation provides that it "… shall govern the succes sion as a whole" 
(Article 23 (1)). The concept of "succession as a whole" includes, in 
particular:  
i. "the sharing out of the estate ": Article 23(j);  
ii. "the disposable part of the estate, the reserved shares and other restrictions 
on the disposal of pr operty upon death as well as claims which persons close 
to the deceased may have against the estate or the heirs ": Article 23(h);  
iii. "any obligation to restore or account for gifts, advancements or legacies 
when determining the shares of the different b eneficiaries ": Article 23(i).  
65. Accordingly, the "wills and succession" exclusion in Article 1(2)(a) of the 
Brussels Regulation applies to civil law claims where the principal subject 
matter of the claim is "… succession to the estate of a deceased person", which 
covers "all forms of transfer of assets, rights and obligations by reason of 
death". "Succession" claims includes any "sharing out of the estate"; "claims 
which persons close to the deceased may have against the estate or the heirs"; 
and "any obligat ion to restore or account for gifts when determining the shares 
of the different beneficiaries".  
Application to the facts of the present case  
66. The relief sought by the Claimants in this claim includes:  
i. A declaration that Mr Winkler is entitled to 1% of the shares in Ainsbury;  
ii. A declaration that Arzal, alternatively Mr Winkler, is entitled to 12.5% of 
the shares in Placido;  
iii. An order that Mrs Angela Shamoon and Ms Alexandra Shamoon take all 
necess ary steps to ensure that Mr Winkler is registered as owner of the 
Ainsbury Shares, or their proceeds transferred to him, "at the earliest 
opportunity";  
iv. An order that Mrs Angela Shamoon and Ms Alexandra Shamoon take all 
necessary steps to ensure that Mr  Winkler is registered as owner of the Placido 
Shares, or their proceeds transferred to him, "at the earliest opportunity";  
v. Alternatively, "the value of the Ainsbury Shares and/or Placido Shares".  
67. The Claimants submit that the present proceedings do not  fall within the "wills 
and succession" exception. They contend that the claims are principally 
concerned with the question whether, as a matter of BVI law, the Claimants 
have acquired a beneficial interest in the Placido and Ainsbury shares as a 
result of  the conduct of Mr Shamoon and Mr Grumbach. Any such rights, 
according to the Claimants, arose under general law, accrued, for the most 
part, before Mr Shamoon's death, and do not arise under any special rule of 
Israeli succession. They further submit that  the proceedings are concerned 
with whether a proprietary estoppel can be established against Mrs Angela 
Shamoon and Ms Alexandra Shamoon, a question which is unconnected to 
any wills and succession issue; and whether Mr Grumbach is liable in 
negligence in  BVI law for failing to take steps necessary to register the Shares 
in the name of the Claimants either before or after Mr Shamoon's death. They 
further submit that there is no reason to consider that the proper administration 
of justice requires these pro ceedings to be pursued in Israel.  
68. I do not accept these submissions for the following reasons. First, the 
Claimants are, in reality, claiming to be entitled to succeed to the estate of a 
deceased person, and in particular to the legal ownership of propert y that 
forms part of Mr Shamoon's estate. Mrs Angela Shamoon and Ms Alexandra 
Shamoon are only sued because they are the heirs of Mr Shamoon, who are 
ultimately due to receive the shares in Placido and Ainsbury as residual 
legatees under the will when the administration of the estate is complete. They 
are effectively sued in their capacity as beneficiaries under Mr Shamoon's 
will, and the object of the proceedings is to frustrate the claims of Mrs Angela 
Shamoon and Ms Alexandra Shamoon to succeed to the Sh ares under the 
terms of the will.  
69. Secondly, Mrs Angela Shamoon and Ms Alexandra Shamoon are not the 
owners of the relevant shares, which are currently within the control of the 
Israeli Administrator of the estate, and are subject to distribution in accord ance 
with the terms of the will. The Claimants' claims are therefore being brought 
when the succession process of "sharing out of the estate" has still not yet been 
completed by the Administrator in Israel. The claims in the present 
proceedings are a recas t of Mr Winkler's Israeli application from April 2014, 
and the pleadings in both proceedings are based on the same facts. Mr Colton 
accepted that if the proceedings had been brought against the Administrator, 
they would fall within the "wills and successio n exception". Bringing the 
proceedings against parties who do not own the relevant shares is an obvious 
device, which does not alter the substance of the claim.  
70. Thirdly, the question that I am concerned with does not depend upon whether 
the claim arises u nder Israeli law or BVI law, but whether or not the principal 
subject matter of the claim concerns succession. Similarly, it does not depend 
on the Claimants' estoppel claim, which is merely a legal mechanism through 
which the Claimants assert an entitleme nt to succeed to a share of the estate.  
71. Fourthly, there is evidence from Mr Reicher, the Administrator of the estate, 
that he will not be able to disburse any of the disputed shares which he 
currently holds, including the shares claimed by the Claimants, until the Israeli 
Family Court has decided whether these shares are part of the estate or not. He 
explains that whilst he would have full regard to any decision of the English 
Court, it would not be right, or even lawful, under Israeli law, to surrender hi s 
duty to resolve for himself the issue of ownership of the Shares. To that end, 
he has commenced a claim before the Israeli Family Court seeking a 
declaration that Mr Winkler has no right to any of the Shares. I have also 
considered expert evidence from P rof. Shilo, an expert in Israeli law, who 
points out that it was the duty of the Administrator to commence such 
proceedings. In the circumstances, there is good reason to consider that the 
proper administration of justice requires the Claimants' claims to be pursued in 
Israel and not in England. Otherwise there is a clear risk of irreconcilable 
judgments between the English Court and the Israeli Court.  
72. For these reasons, I conclude that this claim is excluded from the Brussels 
Regulation and the Lugano II Regulation as its principal subject matter is 
"succession" within the meaning of Article 1(2)(a). In particular, it is a claim 
whose object is "succession to the estate of a deceased person" which includes 
"all forms of transfer of assets, rights and oblig ations by reason of death". It is 
a succession claim which concerns "sharing out of the estate"; and it is a claim 
within the definition of "succession as a whole" in Article 23 of the 
Succession Regulation, as a claim whose principal subject matter concer ns 
"the disposable part of the estate, the reserved shares and other restrictions on 
the disposal of property upon death": Article 23(h); and an "obligation to 
…account for gifts, …when determining the shares of the different 
beneficiaries": Article 23(i).   
Whether England is the natural and convenient forum  
73. Dicey, Morris & Collins, The Conflict of Laws 15th Edition) states at Rule 146 
that:  
"The High Court has jurisdiction to determine the succession of the property 
of any person if, but only if, there is a properly constituted representative of 
the estate before the court."  
74. In the present case, there is no properly constituted representative of the estate 
before the court, because the Administrator ha s not been made a party to the 
claim. Furthermore, Mr Colton accepted that if I were to conclude that the 
sound administration of justice requires that this case should be dealt with in 
Israel, he could not then submit the England is the natural and conven ient 
forum. In my view it is clear that Israel is available as a forum for the 
resolution of this dispute and is more appropriate than England. I shall 
elaborate briefly why this is so. I shall apply the familiar legal principle 
established by the House of  Lords in  Spiliada Maritime Corporation v 
Consulex Ltd  [1987] AC 460 .  
75. There is no doubt that Israel is available as a forum where the q uestion of the 
Claimants' entitlement to the Shares can be determined. This is clear from the 
fact that Mr Winkler himself originally decided to pursue such a claim in 
Israel, and from the existence of Mr Reicher's claim for the declaratory relief, 
which i s currently pending before the Israeli Court. Prof. Shilo has confirmed 
in his expert evidence that Israel is an available forum. Mr Reicher's evidence 
confirms that Mr Winkler will have his day in court in Israel and he will be 
able to argue all of his cl aims to the Shares in full, and that the Administrator 
will not claim any limitation or other legal bar to prevent Mr Winkler from 
pursuing his claim.  
76. Furthermore, there is no doubt that Israel is the natural forum for this claim. 
Mr Shamoon's estate is s ituated in Israel and is being administered in Israel 
under the supervision of the Israeli family court. The main witnesses all live in 
Israel and the alleged promises or representations which give rise to the claim 
had been made in Israel. Furthermore, al l of the other numerous claims against 
the estate, including claims by non -Israeli claimants, have been brought before 
the Israeli courts. By contrast, the only connection which this claim has to 
England (subject to the issue of Mrs Angela Shamoon's domici le, which I 
address below) is the domicile of Ms Alexandra Shamoon, who lives in 
London. However, the trust holds any entitlement that she has to the Ainsbury 
and Placido Shares until she is 35. This is a private trust under Israeli law 
which is under the administration of a trustee located in Switzerland. 
Accordingly, Israel is an available forum which is clearly and distinctly more 
appropriate for the resolution of this dispute than England.  
Domicile of Mrs Angela Shamoon  
77. Since I have determined that thi s is a claim to succession which falls outside 
the scope of the Brussels Regulation and the Lugano II Regulation, it is not 
necessary to consider whether Mrs Angela Shamoon is domiciled in the UK 
and consequently, whether she was validly served within the jurisdiction at 
Flat 6. However, since I heard full arguments on the issue and the parties 
asked me to decide it, I shall do so.  
Legal principles  
78. The issue is whether the Claimants can show a good arguable case that Ms 
Alexandra Shamoon was resident withi n the jurisdiction the time at which the 
Claim Form was served; Canada Trust v Stolzenberg (No 2) [2002] AC 1 . 
There was a dispute as to  whether the Claimants need to show that they have a 
better argument, or a much better argument, on the material available. In my 
judgment, "good arguable case" in this context means "much the better 
argument". This was the test applied by Waller LJ in the  Court of Appeal in 
Canada Trust , in a passage approved by Lord Steyn in the House of Lords, 
with whom the other members of the House agreed.   Waller LJ stated as 
follows ( [1998] 1 WLR 547  at page 555):  
"'Good arguable case' reflects in that context that one side has a much better 
argument on the material available. It is the concept which the phrase reflects 
on which it is importan t to concentrate, i.e. of the court being satisfied or as 
satisfied as it can be having regard to the limitations which an interlocutory 
process imposes that factors exist which allow the court to take jurisdiction."  
79. This test was applied by the Court of Appeal in Lady Christine Brownlie v 
Four Seasons Holdings Incorporated  [2105] EWCA Civ 665. Arden LJ said at 
[23]:  
"…when looking for "the much better argument" the court is concerned with 
the question of relative plausibility. But there is also an absolu te standard to be 
met. The words used by Waller LJ, namely a "much better argument", mean 
more than that, on the material available, the case is arguable. There must be 
some substance to it: since we are deciding a question of jurisdiction, the 
evidence mu st achieve an acceptable level of quality and adequacy. However, 
the standard to be attained is not that of succeeding on a balance of 
probabilities because there is no trial: see per Flaux J in Erste Group Bank AG 
v JSC (VMZ Red October) [2013] EWHC 2926 (Comm) ." 
80. However, my decision on this issue does not depend on such fine points of 
distinction. If I were to ask whether the Claimants had the better argume nt on 
the material available in respect of Ms Alexandra Shamoon's residence, I 
would reach the same conclusion.  
81. Pursuant to Article 59 of the Brussels Regulation, the question of whether an 
individual is domiciled in a particular member state is to be det ermined by 
reference to the domestic law of that member state. The relevant definition of 
domicile is contained in Schedule 1 to the Civil Jurisdiction and Judgments 
Order 2001/3929. Paragraph 9(2) provides that:  
"(2) An individual is domiciled in the Uni ted Kingdom if and only if —  
(a) he is resident in the United Kingdom; and  
(b) the nature and circumstances of his residence indicate that he has a 
substantial connection with the United Kingdom."  
82. An individual is resident in the United Kingdom if it is "a settled or usual 
place of abode" which connotes "some degree of permanence or continuity": 
Bank of Dubai Limited v Fouad Haji Abbas [1997] IL Pr 308  per Saville LJ at 
[10]-[11].  
83. In Yugraneft v Abramovich  [2008] EWHC 2613 (Comm)  Christopher Clarke J 
(as he then was) considered this issue in the context of an individual who 
owned multiple properties throughout the world, including valuable residential 
property in London. His judgment reflects the fact that such wealthy 
individuals may own property in a number of different jurisdictions, without 
being resident in such jurisdictions. He concluded at [487]:  
"487 I am not persuaded that Yugraneft has much the better of the argument 
on whether at the date of the issue of the claim form Mr Abramovich was 
resident in England and Wales. On the contrary it appears to me that, despite 
his ownership of Chelsea and his property in Lowndes Square, he was resident 
in Russia and not in England. Purchases of expensive property in England 
which, in the case of a man of ordinary wealth, would suggest settlement here, 
may have no such significance to someone for whom money is no object."  
84. Christopher Clarke J considered, amongst other factors, the number of days 
spent by Mr Abramovich in England over a number of years. He stated that 
the most relevant year to consider is the year in which the claim form is issued 
[468], although I do not understand this to exclude consideration of earlier 
years.  
85. In summary, it was held that Mr Abramovich was not residen t in the UK since 
he was a Russian taxpayer whose non -resident status had never been 
challenged by the Inland Revenue; his visits to London almost exclusively 
related to his ownership of Chelsea football club, in respect of which he had 
no executive functi on; and at the date when the claim form was issued and 
served he had divorced his wife and chiefly saw his children in Russia or on 
holidays outside England.  
86. My attention was also drawn to the guidance given by the Supreme Court in R 
(Davies) v Revenue an d Customs Commissioners  [2011] UKSC 47 ; [2011] 1 
WLR 2625 , as to the appropriate approach where a former UK resident claims 
to have ceased to be resident for tax purposes. Lord Wilson said at [20]:  
"It is therefore clear that, whether in order to become non -resident in the UK 
or whether at any rat e to avoid being deemed by the statutory provision still to 
be resident in the UK, the ordinary law requires the UK resident to effect a 
distinct break in the pattern of his life in the UK. The requirement of a distinct 
break mandates a multifactorial inqu iry. In my view however the controversial 
references in the judgment of Moses LJ in the decision under appeal to the 
need in law for "severance of social and family ties" pitch the requirement, at 
any rate by implication, at too high a level. The distinct break relates to the 
pattern of the taxpayer's life in the UK and no doubt it encompasses a 
substantial loosening of social and family ties; but the allowance, to which I 
will refer, of limited visits to the UK on the part of the taxpayer who has 
become no n-resident, clearly foreshadows their continued existence in a 
loosened form. "Severance" of such ties is too strong a word in this context."  
87. In the present case, the Claimants allege that Mrs Angela Shamoon has 
repeatedly lied on oath as to (amongst other  things), residency, and has 
conspired with several of her advisers to avoid payment of tax in the United 
Kingdom. These are allegations of the utmost seriousness and the question 
arises as to how they are to be dealt with in an application of this nature,  and 
in the absence of cross -examination. On the one hand, basic notions of fairness 
require that anyone accused of such serious misconduct should be challenged 
in cross -examination before his or her evidence is stigmatised as untrue. On 
the other hand, th e Court is not required to accept evidence which is obviously 
incredible simply because it is contained in a witness statement. Lewison LJ 
considered this question in Calland v Financial Conduct Authority  [2015] 
EWCA Civ 192  at [29]:  
"In evaluating the prospects of success of a claim or defence the judge is not 
required to abandon her critical faculties. As Potter LJ put it in E D & F Man 
Liquid Products Ltd v  Patel  [2003] EWCA Civ 472 , [2003 ] CP Rep 51  at [10]:  
"It is certainly the case that under both rules, where there are significant 
differences between the parties so far as factual issues are concerned, the court 
is in no position to conduct a mini -trial: see per Lord Woolf MR in Swain v 
Hillman  [2001] 1 All ER 91  at 95 in relation to CPR 24. However, that does 
not mean that the court has to accept without analysis everything said by a 
party in his statements before the court. In some cases it may be clear that 
there is no real substance in factual assertions made, particularly if 
contradicted by contemporary documents. If so, issues which are dependent 
upon those fa ctual assertions may be susceptible of disposal at an early stage 
so as to save the cost and delay of trying an issue the outcome of which is 
inevitable: see the note at 24.2.3 in Civil Procedure (Autumn 2002) Vol 1 
p.467 and Three Rivers DC v Bank of Engl and (No.3)  [2001] UKHL/16, 
[2001] 2 All ER 513  per Lord Hope of Craighead at paragraph [95].""  
88. This approach was adopted by the Court of  Appeal in Lady Christine Brownlie 
v Four Seasons Holdings Incorporated  (supra) in the context of an application 
to set aside permission to serve proceedings out of the jurisdiction. Arden LJ 
said at [24]:  
"In any event, the court is not bound to accept a  witness statement which is 
inherently defective, and certainly should not do so if it conflicts with other 
incontrovertible evidence or is unreliable for some other tangible reason, or, as 
Christopher Clarke J (as he then was) put it in Cherney v Deripask a [2008] 
EWHC 1530  at [44], "wholly implausible"."  
89. Accordingly, in my overall assessment of the "residency" issue I will evaluate 
if the witness statements conflict with other incontrovertible evidence or are, 
for any reason, wholly implausible.  
Application to the facts  
The evidence of Mrs Angela Shamoon  
90. The witness statements of Mrs Angela Shamoon contain a detailed account of 
the background to her move to Israel, her connections to Israel until the time 
of Mr Shamoon's death in 2009, and her life in Israel since that date. The 
following is a summary of that evidence.  
91. Mrs Angela Shamoon was born in the UK in 1950 and met her late husband, 
Mr Shamoon, in 1977 in London. Mr Shamoon was born in Iraq in the early 
1930s and fled to Israel in the early 1950s. He served in the Israeli army in the 
1950s and had a strong affinity for Israel. Mr and Mrs Shamoon were married 
in 1978 in Israel, according to Jewish law. Following their wedding they 
divided their time between Iran, which was their main base, South Africa, and 
on occasion, the UK. In September 1978 they were forced to leave Iran due to 
the pending revoluti on and moved to London, where they stayed in Flat 6 for a 
number of years. Flat 6 was owned by an offshore entity in which Mr 
Shamoon had an indirect interest. In 1982 the Shamoons moved to a larger 
property in Holland Park Road which they rented from a co mpany in which 
Mr Shamoon had an indirect interest. They did not use Flat 6 between 1982 
and 1996, during which period it was either vacant or rented out.  
92. In 1984 Mr Shamoon obtained indefinite leave from the UK Home Office to 
remain in this country as a refugee. At this time the Shamoons' main base was 
in London. Their only daughter, Ms Alexandra Shamoon, went to nursery and 
primary school in London. However, Mr Shamoon considered Israel to be a 
natural base for re -establishment. He identified with the cu lture and 
community in Israel and wanted to be a fully integrated part of a group to 
whom he was ethnically and spiritually bound. In 1988 the Shamoons 
purchased land in Israel and commenced a substantial project to build a 
property in Rishpon. This took u ntil about the end of 1997 to complete.  
93. In 1991 Mr Shamoon purchased an Israeli group of companies known as the 
Yakhin Hakal Group, which carried on a significant business in the 
manufacture of agricultural and industrial goods and products and held 
lease hold rights covering large tracts of land in Israel. Over the years, Mr 
Shamoon invested over US $100 million in the Yakhin Hakal Group. From 
1992 Mr Shamoon's trips to Israel became increasingly frequent, although at 
this time Mrs Angela Shamoon and Ms Al exandra Shamoon largely remained 
in the UK.  
94. From August 1996 Ms Alexandra Shamoon was enrolled at an American 
International School in Israel and was educated and brought up predominantly 
in Israel. She only returned to London to live when she was an adult , in 
2002/2003. Over the ensuing years Mr Shamoon continued to build up his 
business interests in Israel mainly through the Yakhin Hakal Group. The 
Yakhin Hakal Group came to be legally owned by Mr and Mrs Shamoon, and 
Mrs Angela Shamoon was appointed a di rector.  
95. In 2002 the Shamoons decided to move their home in Israel from the Rishpon 
property to a set of apartments close to Tel Aviv. Two apartments were joined 
into one and were registered in Mr Shamoon's name ("Apartment 4750"). The 
Shamoons started usi ng Apartment 4750 as their home in Israel in 2002. This 
is where Mrs Angela Shamoon lives now and her evidence is that it has been 
her only usual residence since at least 2009.  
96. The Shamoons also kept property available for periods when they were in 
London . The Holland Park property had been sold in the early 2000s and they 
used Flat 6 for a short period, until about November 2003. After that, they 
started to use an apartment at 149 Park Lane that was rented to various tenants 
between about 2004 and 2008. F rom early 2005 the Shamoons visited London 
less frequently and only partly used the apartment at 149 Park Lane. Mrs 
Angela Shamoon terminated the lease on this apartment in June 2009 after Mr 
Shamoon's death.  
97. Mrs Angela Shamoon's evidence is that by the t ime Mr Shamoon died in 2009, 
their lives were rooted firmly in Israel and their extensive business and 
philanthropic activities and their personal and social connections were in very 
large part in Israel. During the final years of his life, Mr Shamoon stay ed 
mainly in Apartment 4750 in Israel and his visits to the UK to receive medical 
treatment became less frequent from 2007 onwards as his health deteriorated.  
98. Since Mr Shamoon's death in May 2009, Mrs Angela Shamoon's evidence is 
that she has spent very l ittle time in the UK, and of the days spent in the UK, a 
large majority concerned a HMRC investigation into Mr Shamoon's estate 
which has now concluded, as well as visits to her father, who died in August 
2012. When visiting the UK since 2009, Mrs Angela S hamoon has generally 
used Flat 6 as a place to stay. However, over the years of their marriage, the 
Shamoons owned, or enjoyed the use of, multiple properties all over the world 
including properties in South Africa, France and the USA. Mrs Angela 
Shamoon's  evidence is that Flat 6 is just another property which could be used 
on occasion as a place to stay, effectively as a replacement for a hotel or 
staying with friends and family. Flat 6 is not legally registered in her name and 
she has a licence from a Lic htenstein entity, Mirex Anstalt, to use Flat 6 on the 
infrequent occasions that she is in the UK.  
99. Mrs Angela Shamoon's evidence is that she spends the vast majority of her 
time in Israel, where she is resident. Israel is the centre of her business affairs  
and charitable activities. She is a director and chairman of the board of the 
Yakhin Hakal Group which is a full -time job requiring her presence in Israel. 
While she continues to hold a British passport, she obtained permanent Israeli 
residence from the b eginning of 2009 and was formally granted Israeli 
nationality in April 2013 and also has an Israeli passport.  
100. This evidence, in my judgment, is detailed and credible. It is an 
account of a changing pattern of life and a gradual loosening of ties with the 
UK, and is supportive of a "distinct break" by 2009. It is corroborated by other 
evidence to which I refer below.  
Day Count  
101. In the light of Mrs Angela Shamoon's account, it is relevant to consider 
the number of days that she spent in the UK in recent year s, as compared with 
the number of days that she spent in other countries, including the duration of 
such visits. Mr Hodgson -Barker, a Chartered Tax Adviser who has made 
various witness statements in these proceedings, prepared a schedule which 
sets out the  relevant information taken from a number of objectively verifiable 
sources.  
102. During the course of the hearing, tables setting out the relevant day 
count were agreed between the legal advisers of the parties. I set out first the 
table for the year preceding the service of the Claim Form (8 October 2013 to 
8 October 2014), as this is most relevant to Mrs Angela Shamoon's residency 
at that date:  
Country  Total Number of 
Days  Number of 
Visits  Longest Visit in 
Days Average Length of 
Visits in Days  
Israel 280 8 / 9 98 35 / 31.1  
UK 23 5 11 4.6 
France  18 4 9 4.5 
South 
Africa  15 1 15 15 
Greece  11 1 11 11 
Switzerland  5 1 5 5 
Turkey  4 1 4 4 
Germany  3 1 3 3 
Italy 2 1 2 2 
Isle of Man  2 1 2 2 
(Flying)  2  - -  - 
103. It can be seen that the vast majority of Mrs Angela Shamoon's time 
during this period was spent in Israel (over 280 days), where she claims to be 
resident, as compared to only 23 days in the UK. She owns properties in many 
countries in the world and also spent a significant amount of time in France, 
South Africa and Greece, where she is not alleged to be resid ent. Her longest 
visit to Israel was 98 days, as compared with a longest visit of 11 days to the 
UK. The average length of her visits to Israel was over 30 days, compared 
with an average length of visits to the UK of 4.6 days. This provides an 
indication o f the quality of the visits as well as their duration.  
104. Obviously, an individual can be resident in more than one jurisdiction. 
However, these figures provide strong support for Mrs Angela Shamoon's 
evidence that she was resident in Israel during this peri od, and that her 
property in the UK, as with her property in other countries, was used by her, 
essentially, as a hotel during brief visits.  
105. The agreed day count for the period from 2009 -2013 is as follows:  
  Total 
Number 
of Days 
in Israel  Longest 
Stay in 
Israel in 
Days Total 
Number 
of Days 
in the UK  Longest 
Visit to 
the UK in 
Days  Total 
Number of 
Days in 
Other 
Countries  Longest 
Visit to 
Another 
Country in 
Days Total 
Number 
of Flying 
Days 
2013 244 39 43 9 75 15 
(Turkey)  3 
2012 198 64 65 9 98 20 
(France)  5 
2011 235 44 33 10 89 46 
(Croatia)  8 
2010 205 74 108 14 49 17 
(Turkey)  3 
2009 262 62 84 25 19 13 
(Turkey)  0 
106. This data, in my judgment, provides strong support for the claim of 
Mrs Angela Shamoon that she made a distinct break in 2009 when she left the 
UK to reside in Israel. Since then, her trips to the UK have been short, 
intermittent and infrequent. By contras t, she has in every year spent the 
majority of days in Israel.  
The Position of the UK and Israeli Tax Authorities  
107. From 2009 onwards, Mrs Angela Shamoon has been considered by the 
Israeli Tax Authority to have been a resident of Israel and has accordingly 
been subject to tax there as a new immigrant.  
108. In paragraphs 7 to 9 of his first statement, Mr Hodgson -Barker 
explained that, after the death of Mr Shamoon, there was an HMRC 
investigation into his estate, which required full disclosure on the part of the 
representatives of the estate, including Mrs Angela Shamoon. This 
investigation lasted over two years. At the end of the investigation, HMRC 
accepted that Mr Shamoon was not a UK tax resident at the date of his death, 
in the tax year of his death, nor in t he preceding tax year. Mr Hodgson -Barker 
states at paragraph 9:  
"Although the investigation concerned Mr Shamoon's estate, it also indirectly 
involved the affairs of Angela Shamoon. HMRC did not make an express 
judgment as to Mrs Shamoon's tax position (to my knowledge) as part of the 
investigation as this was not the purpose of the investigation. However, 
HMRC accepted evidence throughout the investigation, which I and my team 
were involved in pr eparing and which I have no reason to doubt was anything 
other than fulsome and correct, that Angela Shamoon was physically present 
with her husband for the vast majority of the period under assessment and, 
therefore, were inclined to agree that if one wer e non -UK resident for a given 
tax year then this would be the same for both of them."  
109. Accordingly, from 2009 onwards, Mrs Angela Shamoon has been 
tacitly accepted by HMRC to be non -resident in the UK for tax purposes. She 
is not treated as resident in the UK for tax purposes either before or after the 
entry into force of the statutory residence test on 6 April 2013 and her non -
resident status in recent years has not been challenged by HMRC.  
The Quality of Mr Winkler's evidence  
110. Mr Winkler chose to make very  serious allegations against Mr 
Hodgson -Barker, which were refuted by Mr Hodgson -Barker and have now 
been withdrawn. In particular, in his second witness statement at [89], Mr 
Winkler said:  
"Angela describes the work of Mr Hodgson -Barker as a " forensic re view", but 
it is nothing of the sort. It is the work of a man paid to help Angela argue that 
she is not resident in the UK, limited to a review of Angela's own manipulated 
day count, using only the supporting evidence which Angela has chosen to 
provide and  accepting instructions from Angela which are factually wrong. As 
Mr Hodgson -Barker states himself, his conclusions rely on information 
collected and supplied by Angela's personal assistant, rather than any kind of 
independent investigation."  
111. A similar all egation was made by Mr Winkler against Mr Mackenzie, a 
Chartered Accountant who was part of a team that advised Mrs Angela 
Shamoon in connection with the HMRC enquiry. At paragraph 58.3 of his 
second witness statement, Mr Winkler suggested that Mr Mackenzi e had 
encouraged Mrs Angela Shamoon to reduce her day count in England, in order 
to mislead the UK tax authorities. Again, this allegation, which was entirely 
without foundation, was not pursued at the hearing.  
112. Mr Jowell QC described this as a tendency on  behalf of Mr Winkler to 
make wild allegations, unsupported by evidence, which have turned out to be 
demonstrably false. I consider that this submission is entirely justified. When 
evaluating the credibility attack on Mrs Angela Shamoon, and in particular Mr 
Winkler's allegation that, in response to the HMRC enquiry, Mrs Angela 
Shamoon "fabricated evidence to support her claim not to be a resident", 
(Winkler (1) [62]), I shall bear in mind that Mr Winkler has made serious 
allegations against a number of ind ividuals which are wholly without 
foundation.  
113. Furthermore, until Mr Winkler began proceedings in Israel in 2014, he 
actively assisted the Shamoons' UK tax advisers by providing information to 
them to support the claim that Mr Shamoon (and therefore Mrs An gela 
Shamoon who lived with him) was resident in Israel and not in the UK. For 
example, by a letter dated 5th April 2011, Mr Winkler provided to Mr 
Mackenzie a list of dates from 2005 to 2009 in which Mr Shamoon was in 
Israel. Between 2005 in 2008 the leas t number of days that he specified was 
222 and the most was 279. He also specified that in the five months before he 
passed away, Mr Shamoon spent 149 days in Israel in 2009. Mr Winkler said 
in this letter:  
"Please find hereunder the list of the days Mr S ami Shamoon was in Israel - 
take into consideration that this is a list of his days in Israel ONLY - the days 
that he was not in Israel he could have been in any one of the following 
countries: London, New York, Cannes, Turkey etc…"  
114. This letter is clearly  inconsistent with Mr Winkler's evidence on this 
application. At paragraphs 64 and 66 of his first witness statement, Mr 
Winkler said:  
"64. As someone who was close to Sami, managing most of his business and 
personal issues, I can state that the centre of  Sami's life until a couple of 
months prior to his death was undoubtedly in England."  
"66. Sami not only lived in England with his entire family, including 
Alexandra and Angela, but also managed his worldwide business from there, 
including the Yakhin Hakal  Group, by instructing managers and directors, 
such as Mr Grumbach and me, to act on his behalf, on a regular basis."  
115. Mr Winkler tried to explain this inconsistency at paragraph 61 of his 
second statement. He said:  
"61. Similarly Angela claims that I knew  that Sami was not resident in 
England when he died. She quotes documents where I put forward arguments 
to support this position, but this was just advocacy to help her to reduce taxes 
that Sami's estate would have to pay, which I sent out Angela's request  and 
under her explicit instructions. As Angela knows, but does not mention, the 
arguments which I suggested were not even accepted by HMRC; HMRC 
decided that Sami was resident in the UK from 2004/5 to 2007/8 inclusive."  
116. This evidence ignores that HMRC acc epted that Mr Shamoon was not 
resident in the UK in 2008/9. More significantly, Mr Winkler's evidence that 
this was "just advocacy" to help Mrs Angela Shamoon to reduce taxes is most 
unsatisfactory. He is an accountant. If, as he said in his first witness statement 
on this application, he knew that Mr Shamoon was resident in the UK, his 
letter of 5th April 2011 would have been a clear misrepresentation, made with 
the intention of deceiving HMRC. On the material before me I find that the 
position is much mor e straightforward. Mr Winkler knew Mr Shamoon was 
resident in Israel when he died, and his evidence on this application is 
obviously implausible, being inconsistent with documents that he himself 
wrote.  
Additional points made by the Claimants  
117. Numerous points were relied on to attack the credibility of Mrs Angela 
Shamoon. I will only deal with what I regard as the main points. In my 
judgment, all of these attacks had no merit whatsoever.  
118. Mr Winkler claims that Mrs Angela Shamoon has multiple bu siness 
interests in the UK. He claims that she was actively involved in running a UK 
company known as Buckingham & Lloyds Ltd prior to its dissolution in 2014. 
He refers to a number of other holding companies and entities (most of which 
are offshore) that own properties in London and which he claims are 
controlled de facto  by Mrs Angela Shamoon. Even if these allegations were 
true, they would not lead me to conclude that she was a UK resident, when 
considered in the light of all the other evidence to which I have referred. Many 
non-UK residents are involved in UK companies or off -shore companies with 
UK interests.  
119. However, Mrs Angela Shamoon has provided a detailed account which 
refutes these allegations. To the extent that she holds an interest in properti es 
in England, these are relatively minor assets in the context of her overall 
wealth and in any event they are passive investments which do not require 
executive management or operation. Although she was a director of 
Buckingham & Lloyds Ltd for a period,  she did not make any material 
business decisions in that capacity. Although certain Companies House 
documents refer to Mrs Angela Shamoon as resident in England, she says that 
she is not even sure that she saw them at the time. As to the other companies 
and entities, these are managed by independent directors to whom she is 
careful to ensure that she only ever gives suggestions, as opposed to 
instructions. I see no reason to doubt this evidence.  
120. The Claimants also allege that Mrs Angela Shamoon's evidence  about 
her attendance at the offices of the Yakhin Hakal Group is untruthful. Given 
the agreed day count of the time that she spent in Israel in the years 2009 -
2014, it is irrelevant whether she spent these days at the Yakhin Hakal Group 
or elsewhere in Is rael. Mrs Angela Shamoon provided a log of her entries and 
exits to and from the offices of the Yakhin Hakal Group. Mr Colton suggested 
that there was an inconsistency between a few days in this log and the 
evidence of Mr Hodgson -Barker, which showed that Mrs Angela Shamoon 
had been in Turkey and not Israel on those days. I was concerned that this 
specific allegation, which appeared to be a suggestion that the log had been 
fabricated, was raised for the first time at the hearing, and no opportunity had 
been given to Mrs Angela Shamoon to investigate and explain the issue in 
evidence. Mr Colton accepted that it could be explained by an innocent 
mistake in the log. On that basis, it clearly does not suggest that Mrs Angela 
Shamoon is lying in her evidence, whi ch is the case that Mr Winkler seeks to 
advance.  
121. Mr Winkler relies on an Affidavit filed by Mrs Angela Shamoon in a 
case that she brought in Israel ("the Marital Rights case") and on the terms of 
the first instance judgment in that case.  
122. In her affidavit  Mrs Angela Shamoon referred to the fact that she 
"resided in and maintained " apartments in London (i.e. Flat 6), France, and 
Israel. Mrs Angela Shamoon has explained in her evidence on this application 
that this was not intended to mean that she actually resided in Flat 6 but 
merely that she stayed there when she visited London, as was the case with her 
property in France. This is obviously correct, as Mrs Angela Shamoon was 
seeking to draw a distinction in her Affidavit between properties around the 
world  which are available for her use and others which are rented out to third 
parties.  
123. In the first instance judgment in the Marital Rights case, the Israeli 
Court described Mrs Angela Shamoon as being a " resident " of England. 
However, as explained by Ms Pere s, the lawyer who acted for Mrs Angela 
Shamoon in that case, this was due to a misconception on its part as to the 
basis on which the estate could be liable to pay inheritance tax in the UK. In 
addition, there is contemporaneous evidence that the reference  in the Marital 
Rights judgment was considered to be an error by Mrs Angela Shamoon and 
her advisers at the time it was delivered. In an email dated 9th November 2012 
Mr Nelson Colaco wrote to Mr Winkler stating that the reference in the 
Martial Rights jud gment to Mrs Angela Shamoon being resident in England 
was not correct because she had in fact been resident in Israel since at least 1st 
January 2009.  
124. Mr Winkler claims that Mrs Angela Shamoon was repeatedly advised 
by Mr Mackenzie until at least 2012 tha t she was tax resident in the UK, and 
relies upon a number of emails sent by Mr Mackenzie between May 2011 and 
October 2012. This suggestion is refuted by both Mr Mackenzie and Mr 
Hodgson -Barker, who explain that Mr Winkler has misinterpreted the emails. 
To the extent that Mr Mackenzie referred to Mrs Angela Shamoon as being 
tax resident in the UK, he was merely expressing a preliminary view based on 
information provided to him which he was taking at face value and had not 
been scrutinised by him. I see no reason to doubt this evidence.  
125. Mr Winkler points to an email dated 22nd March 2011 from Mrs 
Angela Shamoon to Mr Mackenzie in which she stated that "eventually 
(within the next two years max.) I want to live my life in England". This 
indicates that she wa s not resident in England in March 2011. Furthermore, 
her evidence shows that she has not relocated to England. Her witness 
statements and the agreed day count show that she has spent more time in 
Israel and less time in England since 2011 than before that  year.  
126. At paragraph 61 of his first witness statement, Mr Winkler accused 
Mrs Angela Shamoon of falsely claiming to be Mr Shamoon's wife, including 
in sworn evidence given to the Israeli Court. He said that they were divorced 
in 1988 in Nevada USA. He cit ed this as "a good example of her willingness 
to omit unhelpful facts where it suits her purposes."  
127. Mrs Angela Shamoon responded to this allegation at paragraph 41 of 
her third witness statement. She explained that Mr Shamoon needed a divorce 
paper to ass ist him in his application for a Portuguese passport, which he 
wished to obtain for business reasons. The Shamoons knew that under Jewish 
law, which was the law governing their marriage, and under Israeli law, the 
divorce granted in Nevada would not be rec ognised and would not be binding. 
She pointed out that, as Mr Winkler well knows, the Shamoons continued to 
live as husband and wife from 1988 until his death in 2009. Subsequent to 
1988 he repeatedly referred to her as his wife and made various declaratio ns 
and signed other legal documents to that effect. For example, Mr Shamoon 
referred to Mrs Angela Shamoon as his wife in his will, made in November 
2007. The Shamoons treated each other as husband and wife in all contexts 
and for all purposes until the ti me of his death. Mrs Angela Shamoon says that 
the "divorce" was never spoken about by them, and that she had put it out of 
her mind as it had no effect on the existence of her marriage.  
128. In my view, Mr Jowell QC is correct to describe this as one of a 
number of scandalous allegations raised by Mr Winkler in his evidence. It is 
irrelevant to the issues which I have to consider. It is regrettable that the 
allegation was persisted with at the hearing. Since it has been raised i n public 
it is important to record that, on the evidence before me, it appears that the 
Shamoons were a devoted couple. This allegation should never have been 
raised by Mr Winkler.  
Conclusion  
129. I have reached the clear conclusion that Mrs Angela Shamoon's 
evidence that she has been resident in Israel and not in the UK since 2009 is 
entirely credible. The attack on her honesty, and on the integrity of her 
advisers, has caused a great deal of evidence to be served and will 
undoubtedly have caused a great deal of costs to be spent. In my judgment, the 
credibility attack should never have been raised.  
The merits of the claim  
130. The merits of the claim are relevant to the Claimants' Protective 
Application to serve Mrs Angela Shamoon out of the jurisdiction. This wou ld 
only arise if I had decided (a) that the Defendants' succession argument should 
be dismissed and (b) that Mrs Angela Shamoon was not domiciled in the UK 
at the date of service of the Claim Form. Given that I have decided that the 
Defendants' succession argument is correct, I do not need to consider the 
Protective Application. Nonetheless, at the request of the parties and in case 
this matter goes further, I will deal with this issue.  
The conditions which the Claimants need to satisfy  
131. Permission is sough t to serve Mrs Angela Shamoon with the Claim 
Form out of the jurisdiction on the basis that:  
i. There is a real issue between the Claimants and Ms Alexandra Shamoon 
which it is reasonable for the Court to try and that Mrs Angela Shamoon is a 
necessary or proper party to the claim against Ms Alexandra Shamoon: CPR 
6.37(1)(a), 6.37(2), and PD 6B paragraph 3.1(3).  
ii. The claim against Mrs Angela Shamoon has a reasonable prospect of 
success: CPR 6.37(1)(b).  
iii. England is the proper place for the Claimants to bring the claim: CPR 
6.37(3).  
132. In considering the first condition, I shall apply the principles 
summarised by Lord Collins in Nilon Limited v Royal Westminster 
Investments SA and others  [2015] UKPC 2  at [15]:  
"(1) The necessary or proper party head of jurisdiction was anomalous, in that, 
by contrast with the other heads, it was not founded upon any territorial 
connection between the claim, the subject matter of th e relevant action and the 
jurisdiction of the English courts.  
(2) Caution must always be exercised in bringing foreign defendants within 
the jurisdiction under that head, and in particular it should never become the 
practice to bring in foreign defendants as a matter of course, on the ground 
that the only alternative requires more than one suit in more than one different 
jurisdiction.  
(3) The fact that the defendant within the jurisdiction (D1 or the "anchor 
defendant") is sued only for the purpose of brin ging in the party outside the 
jurisdiction (D2) is not fatal to the application for permission to serve D2 out 
of the jurisdiction, but it is a factor in the exercise of the discretion.  
(4) The action is not properly brought against D1 if it is bound to fa il. 
(5) If a question of law arises on the application which goes to the existence of 
jurisdiction, the court will normally decide it, rather than treating it as a 
question of whether there is a good arguable case.  
(6) The question of the merits of the cla im is relevant to the question of 
whether the claim against D1 is "bound to fail" and to the question whether 
there is a "serious issue to be tried" in relation to the claim against D2; and 
there is no practical difference between the two tests, and they i n turn are the 
same as the test for summary judgment.  
(7) In considering the merits of the claim, whether the claim against D1 is 
bound to fail on a question of law should be decided on the application for 
permission to serve D2 (or to discharge the order) , but it would not normally 
be appropriate to decide a controversial question of law in a developing area, 
particularly because it is desirable that the facts should be found so that any 
further development of the law should be on the basis of actual and n ot 
hypothetical facts.  
(8) The question whether D2 is a proper party is answered by asking: 
"supposing both parties had been within the jurisdiction would they both have 
been proper parties to the action?"  
133. I will consider first whether there is a real issue between the Claimants 
and Ms Alexandra Shamoon and, if so, that it is reasonable for the English 
Court to try that issue. It is sufficient for Mrs Angela Shamoon if the 
Claimants fail to surmount either of these hurdles against the anchor 
defendant, and furthermore, many of the points apply equally to the claims 
against each of them. If I decide that Ms Alexandra Shamoon's jurisdiction 
challenge should be dismissed, so that the trial against her will take place in 
this jurisdiction in any ev ent, then Mrs Angela Shamoon does not deny that 
England would be the proper place for the claim against her to be brought.  
Relevant facts  
134. In respect of the Ainsbury shares, the Claimants plead at paragraph 7 
of the Particulars of Claim that, in or about 2 008, Mr Shamoon contemplated 
transferring a part of Ainsbury's holding in Gaon to Mr Winkler in order to 
incentivise him to continue to take the business forward. However, Mr 
Shamoon decided instead to give 1% of Ainsbury to Mr Winkler and 
transferred the equitable title in the Ainsbury shares to Mr Winkler. It is 
inferred that Mr Shamoon instructed Mr Grumbach to register the transfer of 
legal title in the Ainsbury shares to Mr Winkler at this time. I accept that the 
Claimants have shown a serious question  to be tried that Mr Shamoon decided 
to give Mr Winkler 1% of Ainsbury and directed Mr Grumbach, as director of 
Ainsbury, to carry out the transfer. This is supported by the evidence of Mr 
Grumbach on this application (see for example Grumbach (2) paragrap h 5).  
135. In respect of the Placido shares, it is pleaded at paragraph 9 of the 
Particulars of Claim that, in or about April 2009, when he was close to his 
death, Mr Shamoon discussed with Mrs Angela Shamoon who would be 
capable of leading the Yakhin Hakal Gr oup in the years ahead. It is alleged 
that following that discussion he concluded that the only person capable of 
taking the business forward was Mr Winkler. It is alleged that Mr Shamoon 
decided to transfer to Mr Winkler 12.5% of the shares in Placido in order to 
make sure that he would have an incentive to be personally involved in the 
business of the Yakhin Hakal Group after Mr Shamoon's death. It is further 
alleged at paragraph 10 that Mr Shamoon directed Mr Grumbach to take care 
of all necessary formal ities to register Mr Winkler as owner of 12.5% of 
Placido. I accept that the Claimants have shown an arguable case that, shortly 
before he died, Mr Shamoon verbally informed Mr Grumbach that he wished 
to transfer 12.5% of the shares in Placido to Mr Winkle r. This is supported by 
the evidence of Mr Grumbach on this application (see for example Grumbach 
(2) paragraph 11).  
136. However, the following facts are also clear. At the time that Mr 
Shamoon passed away, legal (registered) ownership of the Shares remained 
with Mr Shamoon. Furthermore, no consideration was given by either of the 
Claimants in exchange for Mr Shamoon's alleged promise to transfer the 
Shares. The Claimants' case is that Mr Winkler was entitled to the Shares, 
whether or not he chose to take the business forward, or to continue to be 
involved with the Yakhin Hakal Group after the death of Mr Shamoon.  
137. In addition, by a signed letter dated 1st November 2007, sent to Mr 
Grumbach and Mr Daniel Lack, Mr Shamoon gave the following instructions:  
"I the  undersigned, Sami Shamoon Adulnabi, holder of Portuguese Passport 
No. h 754544 hereby instruct you, expressly and in writing, that prior to 
engaging in any activity and/or commitment and/or payment and/or bank 
transfer, and/or waiver and/or charge of any kind and/or any instruction 
regarding property and all bills and/or monies and/or trusts and/or shares in 
my companies, registered directly or indirectly in my name and/or to my 
benefit - and which lie under your care, you must obtain my express written 
and executed consent, as well as oral (live or via telephone) confirmation from 
myself personally.  
I am hereby cancelling all prior instructions for transactions which do not have 
my written authorisation and telephone confirmation."  
138. Originally, Mr Winkler c laimed in his evidence that this letter was 
never sent. However the fax transmissions have since been produced and it is 
no longer contested that the letter was sent by Mr Shamoon and received by 
Mr Grumbach. Accordingly, it is clear that Mr Shamoon left i nstructions not 
to transfer any property or shares without his express written and executed 
consent.  
139. I now turn to the various ways in which it was argued that there was a 
serious question to be tried as against Ms Alexandra Shamoon.  
Re Rose claim  
140. The ge neral principle is that equity will not complete an imperfect gift. 
This principle, and certain exceptions to it, are explained in Snell's Equity  (33rd 
ed.) [24 -006]:  
"The gift of the legal interest in the property will not be complete until the 
donor has  completed all the formalities necessary to vest the legal interest in 
the donee. The gift may, however, be treated as complete in equity at an 
earlier point in the transaction when some of those remaining steps are still 
unfulfilled. It has been held that  if the donor has taken all the steps that lie 
exclusively in his power, according to the nature of the property given, to vest 
the legal interest in the property in the donee, then the gift will be complete in 
equity. The gift will not fail even if someth ing remains to be done by the 
donee or some third person."  
141. A summary of the relevant principles was provided by Briggs J (as he 
then was) in Curtis v Pulbrook  [2011] EWHC 167 (Ch)  at [43]:  
"Miss Angus very properly treated me to a full citation of the two most recent 
authorities bearing upon this question, namely Pennington v. Waine [2002] 1 
WLR 2075  and Zeital & anr v. David Norman Kaye & ors [2010] EWCA Civ 
159. In Pennington v. Waine , Arden  LJ (with whom Schiemann LJ agreed) 
identified three routes by which, in the context of a defective voluntarily 
transfer of shares, the court might avoid the rigorous application of the 
principle that equity will not compel the completion of an imperfect g ift, in the 
absence of a valid declaration of trust. She described all three as methods 
whereby a court of equity might temper the wind to the shorn lamb. The first 
is where the donor has done everything necessary to enable the donee to 
enforce a beneficia l claim without further assistance from the donor: see 
paragraphs 55 to 56 and Rose v. Inland Revenue Commissioners [1952] Ch 
499. The second is where some detr imental reliance by the donee upon an 
apparent although ineffective gift may so bind the conscience of the donor to 
justify the imposition of a constructive trust: see paragraph 59. The third is 
where by a benevolent construction an effective gift or impli ed declaration of 
trust may be teased out of the words used: see paragraphs 60 to 61, apparently 
based upon Choithram International SA v. Pagarani [2001] 1 WLR 1 . On its 
facts, Pennington v Waine  appears to have been an example of a sufficient 
detrimental reliance by the donee, who had agreed to become a director of the 
subject company upon an assumption that he had received an effective g ift of 
qualifying shares in it: see paragraphs 64 and 66."  
142. In the present case, relying on Rose v Inland Revenue Commissioners  
(supra), the Claimants assert that Mr Shamoon did everything necessary to 
transfer the Ainsbury and Placido shares to Mr Winkler before his death. 
However, in respect of the Placido shares, there is no suggestion that any 
document was signed or created by Mr Shamoon prior to his death in which he 
instructed the transfer of (o r even recorded any intention to transfer) any of the 
Shares to the Claimants.  
143. In respect of the Ainsbury shares, it was suggested that such a 
document did exist, and it was in the possession of Mr Grumbach. In 
particular, the Claimants relied on a note o f a meeting dated 27th July 2009 
with the then Administrator, Mr Gottsegen, and prepared by Mr Grumbach. 
Under the heading "Ainsbury Properties Ltd", the note states that:  
"Mr GRUMBACH indicated that Mr. Sami SHAMOON instructed him to 
undertake the necess ary steps in order to transfer 1% of the shares in the 
company to Mr WINKLER.  
These instructions have been given orally by Mr SHAMOON and they have 
also been confirmed in writing. The written instructions are kept in a safe and 
will be transmitted to the i nterim executor as soon as he has obtained the 
recognition in Switzerland of the " order of appointment of provisional 
executor" rendered by the Family Court Kfar Saba on June 18 2009."  
144. If there was no more evidence which addressed that issue, I would 
have held that there was a serious issue to be tried as to whether Mr Shamoon 
had given such written instructions in respect of the Ainsbury shares. 
However, Mr Grumbach addressed this note at paragraph 27 of his second 
witness statement. He said:  
"In my note of the meeting dated 27 July 2009 it says that the written 
instructions from Mr Shamoon relating to the transfer of 1% of the Ainsbury 
shares to Mr Winkler are kept in a safe. However, the written instructions 
signed by Mr Shamoon in fact relate to the tra nsfer of shares in the company 
B. Gaon Holdings Limited. A copy and translation appears at page 2 of PAG2. 
The note of that meeting did not specify that the instructions were in respect of 
B. Gaon Holdings Limited, not Ainsbury, because it was later that M r 
Shamoon instructed me to transfer 1% of the shares in Ainsbury to Mr 
Winkler instead. As I have mentioned above, when the instructions changed I 
asked Mr Shamoon to send written confirmation of this instruction, but he did 
not."  
145. Accordingly Mr Grumbach n ot only explained that a mistake had 
arisen in the note, and the reasons for the mistake, but also exhibited the 
written instructions from Mr Shamoon, which do not concern a transfer of 
shares in Ainsbury. In the circumstances I do not consider that it is arguable 
that some other document exists which would show, contrary to the evidence 
of Mr Grumbach, that Mr Shamoon did send written confirmation of his 
instructions in respect of Ainsbury.  
146. In my judgment, it is clear on the evidence that a written instru ment of 
transfer was required in order to transfer the shares in Placido and Ainsbury. 
Although Article 34 of Placido's Articles of Association and Article 15 of 
Ainsbury's Articles of Association contemplate that the directors may accept 
such evidence of a transfer of shares as they consider appropriate, Section 54 
of the BVI Business Companies Act 2004 provides as follows:  
"Registered shares are transferred by a written instrument of transfer signed by 
the transferor and containing the name and address o f the transferee.  
The instrument of transfer shall also be signed by the transferee if registration 
as a holder of the share imposes a liability to the company on the transferee.  
The instrument of transfer of a registered share shall be sent to the company  
for registration."  
147. Mr Evans, an expert in BVI law, explains in his report that this 
provision is mandatory and takes precedence over the Articles of Association 
of Placido and Ainsbury. This is, in particular, because Section 11 of the 2004 
Act provides t hat "The memorandum and articles of a company have no effect 
to the extent that they contravene or are inconsistent with this Act". This is not 
challenged by Mr Webster, the Claimants' expert on BVI law.  
148. Since I have found that there is no evidence that M r Shamoon created 
or signed any instrument (or other document) of transfer relating to the Shares 
prior to his death, I conclude that the Claimants' allegation that Mr Shamoon 
did "everything necessary" to effect the transfer of the Shares prior to his 
death is unsustainable, and does not raise any serious question to be tried. 
Indeed the position is considerably worse for the Claimants. I have found that 
Mr Shamoon left instructions not to transfer any property or shares without his 
express written and exe cuted consent. In the circumstances, there is no 
seriously arguable case that equity should intervene to complete an imperfect 
gift, contrary to the donor's express instructions.  
Express declaration of trust  
149. In his skeleton argument, Mr Colton submitted t hat an alternative way 
of characterising Mr Shamoon's dealings with the Placido and Ainsbury shares 
is as an express declaration of trust. He relied in particular on the following 
passage in the judgment of Arden LJ in Pennington v Waine (supra) at [60]:  
"equity has tempered the wind to the shorn lamb by applying a benevolent 
construction to words of gift. As explained above an imperfect gift is not 
saved by being treated as a declaration to trust. But where a court of equity is 
satisfied that the donor ha d an intention to make an immediate gift, the court 
will construe the words used as words effecting a gift or declaring a trust if the 
words can fairly bear that meaning…"  
He submitted that although the words used by Mr Shamoon in his instructions 
to Mr Gr umbach to transfer the Shares are not presently known to the 
Claimants, it is clear that Mr Shamoon intended for the equitable title to pass 
to Mr Winkler immediately. He submitted that Mr Shamoon understood the 
difference between legal and beneficial owne rship, and he would have 
expected the transfers of the shares to be a 'done deal' once he gave the 
instructions for them to be transferred, even without them having been 
registered.  
150. Mr Jowell QC submitted that this claim was not open to the Claimants 
as it had not been pleaded. Furthermore, the Claimants had declined to answer 
a Request for Further Information as to whether they were alleging an express 
declaration of trust, and the solicitors for Mrs Angela Shamoon and Ms 
Alexandra Shamoon had proceeded on the basis that this was not being 
alleged. Whilst there is considerable force in the submission, Mr Jowell QC 
very properly confirmed that the evidence would not be any different if an 
express trust had been pleade d. If I considered that this raised a serious 
question to be tried I would have given the Claimants an opportunity to apply 
to amend the pleadings following this judgment.  
151. In order to evaluate this claim it is necessary to look at the judgment of 
Arden LJ  in Pennington v Waine in more detail. After the passage cited by the 
Claimants, the judgment continues:  
"But where a court of equity is satisfied that the donor had an intention to 
make an immediate gift, the court will construe the words which the donor  
used as words effecting a gift or declaring a trust if they can fairly bear that 
meaning and otherwise the gift will fail. This point can also be illustrated by 
reference to T Choithram International SA v Pagarini [2001] 1 WLR 1   
... 
[61] Accordingly the principle that, where a gift is imperfectly constituted, the 
court will not hold it to operate as a declaration of trust, does not preve nt the 
court from construing it to be a trust if that interpretation is permissible as a 
matter of construction, which may be a benevolent construction. The same 
must apply to words of gift. An equity to perfect a gift would not be invoked 
by giving a bene volent construction to words of gift or, it follows, words 
which the donor used to communicate or give effect to his gift."  
152. Accordingly, the Court needs to find that the donor had the intention to 
make an immediate gift, and will only hold that there is a declaration of trust if 
the words used by the donor are capable of bearing that meaning, and evincing 
that intention. Arden LJ illustrated the distinction between words which can be 
construed as a declaration of trust, as opposed to an imperfect gift, at [ 53] of 
her judgment:  
"[53] The principle that equity will not assist a volunteer has been lucidly 
explained in  Maitland, Lectures on Equity  (1909), p 73:"  
"I have a son called Thomas. I write a letter to him saying 'I give you my 
Blackacre estate, my leas ehold house in the High Street, the sum of £1,000 
Consols standing in my name, the wine in my cellar'. This is ineffectual —I 
have given nothing —a letter will not convey freehold or  leasehold land, it will 
not transfer Government stock, it will not pass the  ownership in goods. Even 
if, instead of writing a letter, I had executed a deed of covenant —saying not I 
do convey Blackacre, I do assign the leasehold house and the wine, but I 
covenant to convey and assign —even this would not have been a perfect gift. 
It would be an imperfect gift, and being an imperfect gift the court will not 
regard it as a declaration of trust. I have made quite clear that I do not intend 
to make myself a trustee, I meant to give. The two intentions are very 
different —the giver means to get rid of his rights, the man who is intending to 
make himself a trustee intends to retain his rights but to come under an 
onerous obligation. The latter intention is far rarer than the former. Men often 
mean to give things to their kinsfolk, they do n ot often mean to constitute 
themselves trustees. An imperfect gift is no declaration of trust. This is well 
illustrated by the cases of  Richards v Delbridge LR 18 Eq 11  and Heartley v 
Nicholson (1875) LR 19 Eq 233."  
153. In the present case, all of the statemen ts relied on by the Claimants 
(and set out in paragraph 195 of the Claimants' skeleton argument) are 
consistent with an intention on the part of Mr Shamoon to make an outright 
gift, and inconsistent with a declaration of trust. They refer to the Shares 
having been "transmitted" or "assigned" to Mr Winkler or to Arzal.  
154. Mr Winkler has no knowledge of the words used by Mr Shamoon in 
his verbal instructions to Mr Grumbach, and so he relies on the account given 
by Mr Grumbach as the best evidence of what was sa id. Mr Grumbach's 
evidence is consistent with an intention to make an outright gift, and lends no 
support to the suggestion that Mr Shamoon intended to declare himself a 
trustee. At paragraphs 19 to 21 of his second statement, Mr Grumbach states 
that Mr Sh amoon "verbally instructed me to transfer 12.5% of the shares in 
Placido to Mr Winkler" and that "he also gave me instructions for the transfer 
of 1% of the shares in Ainsbury. I asked him to confirm his instructions in 
writing, however Mr Shamoon did not confirm his instructions to me in 
writing."  
155. Finally, the proposition that Mr Shamoon made an oral declaration of 
trust is inconsistent with the terms of his letter dated 1st November 2007 
which makes clear that no such trust would have been intended to ta ke effect 
unless there was written and executed consent by Mr Shamoon.  
156. In the circumstances I conclude that there is no evidence that Mr 
Shamoon intended to constitute himself as a trustee of the Shares. Accordingly 
the claim of an express declaration of trust does not raise any serious question 
to be tried.  
Proprietary estoppel claim  
157. In Thorner v Major [2009] UKHL 18 , [2009] 1 WLR 776 , Lord 
Walker stated at [29] that a claim in proprietary estoppel:  
"is based on three main elements… a representation or assurance made to the 
claimant; reliance on  it by the claimant; and detriment to the claimant in 
consequence of his reasonable reliance."  
158. The Claimants allege that, following Mr Shamoon's death, Mrs Angela 
Shamoon and Ms Alexandra Shamoon, over the course of several years, made 
consistent and repea ted representations to Mr Winkler that the Placido and 
Ainsbury shares were his, and assured Mr Winkler that they would ensure 
those shares were registered in his and/or Arzal's name as soon as it was 
possible for them to do so. The general response of Mrs  Angela Shamoon and 
Ms Alexandra Shamoon is that they were repeatedly advised (wrongly) that 
property rights in the Shares had transferred to Mr Winkler prior to Mr 
Shamoon's death. In fact, no such transfer had occurred. Accordingly, even to 
the extent (w hich they do not accept) that either of them could have been said 
to have made any of the alleged representations, it is clear that they were made 
on a false basis. This became clear to Mrs Angela Shamoon when she learned 
of the letter dated 1st November 2 007 wherein Mr Shamoon instructed Mr 
Grumbach not to transfer any shares without his express written and executed 
consent. From her perspective that made absolutely clear that no transfer of 
the Shares was made by Mr Shamoon to Mr Winkler during Mr Shamoon 's 
lifetime. I shall now consider the strength of the proprietary estoppel claim as 
against the anchor defendant, Ms Alexandra Shamoon.  
The trust structure  
159. Ms Alexandra Shamoon it is not the owner of any of the Shares. She 
stands to inherit them through a  protective trust, when, in 2019, she reaches 
the age of 35. Mr Winkler attempted to suggest in his evidence that Mrs 
Angela Shamoon and Ms Alexandra Shamoon are already in complete control 
of the trust property and that the trust is a sham. There was no p roper basis for 
this allegation and it is strongly refuted by the witness statement of Mario 
Scholtz, the chairman of Contreva Management AG ("Contreva"). Contreva is 
the current nominated trustee of the trust established under Mr Shamoon's 
will, having be en appointed by the Israeli family court on 1st January 2015. 
Mr Scholtz was named in the Israeli court order as the relevant person in 
charge of the trust within Contreva. Mr Scholtz confirms in his evidence that:  
"Alexandra has no control over the asset s of the Trust until she turns 35 and 
the Trust comes to an end. Until then, and save for payment of the monthly 
stipend, all matters relating to the management and use of the Trust assets is in 
the sole control of the trustee."  
Sensibly, Mr Colton confirm ed at the hearing that it was not part of his case 
that the trust was a sham.  
160. In Thorner v Major (supra) at [61] Lord Walker made clear that it was 
a necessary element of proprietary estoppel that the assurances given to the 
claimant should relate to "iden tified property owned (or, perhaps, about to be 
owned) by the defendant." At the time of the alleged representations Ms 
Alexandra Shamoon did not own the Shares nor was she about to own them. 
The purpose of this type of trust structure is to protect young and vulnerable 
beneficiaries from unwise promises that they may choose to make. For 
example, if an ultimate beneficiary were to promise to purchase a Ferrari in 
return for tickets to a concert once he or she came into an inheritance, the trust 
is designed to ensure that predators cannot take advantage of such a promise.  
161. In these circumstances, Mr Winkler, who at all material times knew of 
the trust, could not legitimately have relied upon any alleged representations 
of Ms Alexandra Shamoon to the effect th at she would transfer the Shares to 
him after they were distributed by the Administrator. The power to dispose of 
or transfer the Shares will lie only with her trustee who is not bound by 
whatever statements Ms Alexandra Shamoon is alleged to have made. 
Furthermore, I do not consider it arguable that the Court should make an order 
that Ms Alexandra Shamoon should restore property that she neither owns nor 
controls, or that she should account to the Claimants for the value of property 
that she has never rece ived.  
Alleged representations by Ms Alexandra Shamoon  
162. There is a wholly unparticularised allegation at paragraph 35(1) of the 
Particulars of Claim that Ms Alexandra Shamoon represented to Mr Winkler 
that he was entitled to both the Ainsbury Shares and the  Placido Shares "in 
numerous meetings and conversations throughout the period 2009 to 2013". It 
seems most unlikely that a person in the position of Ms Alexandra Shamoon 
would have any reason to make such oral representations and there is no 
evidence to su pport this claim. Ms Alexandra Shamoon addresses this 
allegation at paragraph 27 of her third statement and states that:  
"I do not believe I ever made any such representations and I do not understand 
on what basis Mr Winkler can even allege that I have do ne so."  
163. The Claimants also rely upon four documents as constituting written 
representations by Ms Alexandra Shamoon, pleaded at paragraphs 21, 22, 23, 
and 25 of the Particulars of Claim. Ms Alexandra Shamoon explains in her 
evidence that, until they were s hown to her in these proceedings, she had not 
even seen three of the four documents, and there is no proper evidence to the 
contrary. In any event, none of these documents contain the alleged 
representation by Ms Alexandra Shamoon to Mr Winkler.  
164. The only pleaded document that Ms Alexandra Shamoon had seen 
prior to this litigation is a letter dated 23 October 2009 from Mr Winkler to Mr 
Grumbach. This was signed by Mrs Angela and Ms Alexandra Shamoon 
beneath a statement that they had " no objection " to Mr Gru mbach effecting the 
transfer of the Placido shares to Arzal as soon as possible. Ms Alexandra 
Shamoon addresses this document in her third statement at paragraph 37a.:  
"This letter was signed pursuant to what my mother and I had been led to 
believe by Mr Grumbach and Mr Winkler. I believe it was signed by me in 
Israel. In the circumstances as I have explained them, it was perfectly natural 
for me to say I had no objections to this transfer. I thought I was merely 
attending to a formality based on what Mr G rumbach and Mr Winkler told me 
and that was needed in connection with what my late father had apparently 
decided and so instructed Mr Grumbach to do. This letter was also subject to 
the (missing) consent of the administrators of the estate."  
165. In my view, th e statement that Ms Alexandra Shamoon had "no 
objection" to the transfer cannot even arguably be interpreted as meaning that 
she promised or represented to Mr Winkler (to whom the letter was not even 
addressed) that he would receive 12.5% of Placido shares  when she became 
entitled to them in 2019, nearly a decade in the future from when the letter was 
written.  
166. In my judgment, the Claimants have not shown that there is a serious 
question to be tried that Ms Alexandra Shamoon made any relevant 
representation  to Mr Winkler.  
Alleged detrimental reliance  
167. Substantial detrimental reliance is required to establish proprietary 
estoppel. In Gillett v Holt  [2001] Ch 210  Robert Walker LJ said at 232E -F:  
"The overwhelming weight of authority shows that detriment is required. But 
the authorities also show that it is not a narrow or technical concept. The 
detriment need not consist of the expenditure of money or other quanti fiable 
financial detriment, so long as it is something substantial. The requirement 
must be approached as part of a broad inquiry as to whether repudiation of an 
assurance is or is not unconscionable in all the circumstances."  
168. Three forms of detrimental re liance are pleaded in the Particulars of 
Claim. First, in relation to the Placido shares, it is alleged that Mr Winkler 
"took care of the payment of the fees to incorporate and maintain Arzal in 
good standing " (paragraph 37(3)). The fees referred to amount  to a total of US 
$1,450. This could not constitute substantial detrimental reliance to support a 
claim to shares worth tens of millions of dollars. In any event, the claim is 
factually incorrect. Mrs Angela Shamoon explained at paragraph 190a. -b. of 
her third statement that these fees were not paid by Mr Winkler. They were 
paid by a company within the Yakhin Hakal Group. This is now accepted.  
169. Secondly, the Claimants allege that Mr Winkler "undertook additional 
tasks for Angela and Alexandra, for no additi onal payment. In particular, he 
dealt with Angela's and Alexandra's personal tax affairs, questions as to their 
residential status, their finances and their private matters" (Particulars of 
Claim paragraph 37(1)). Mrs Angela Shamoon accepts that Mr Winkler  
assisted both herself and Ms Alexandra Shamoon after the death of Mr 
Shamoon, but this was no more than he had been doing during Mr Shamoon's 
lifetime as part of his duties in his role as an employee of the Yakhin Hakal 
Group, for which he was compensated  by his salary.  
170. Finally, the Claimants allege that Mr Winkler "did not pursue a claim 
against Mr Shamoon's estate for registration of the Ainsbury Shares or the 
Placido Shares in his name" (Particulars of Claim paragraph 37(2)). This 
alleged forebearance does not constitute detrimental reliance, given that Mr 
Winkler brought a claim against Mrs Angela Shamoon and Ms Alexandra 
Shamoon in Israel in 2014 and has brought the current proceedings. There is 
no evidence of substantial prejudice resulting from any delay.  
171. In my judgment, the Claimants have not shown that there is a serious 
question to be tried that Mr Winkler has suffered substantial detriment in 
reliance on any representation allegedly made by Ms Alexandra Shamoon.  
Is England the proper place for the Claimants to bring the claim against Ms 
Alexandra Shamoon  
172. If I had concluded that the Claimants had shown a real issue to be tried 
as against Ms Alexandra Shamoon, I would have concluded that it would not 
have been reasonable for that issue to be tried in this jurisdiction. Both 
threshold requirements have to be met for permission to serve out of the 
jurisdiction to be granted; see Erste Group Bank AG (London) v JSC (VMZ 
Red October)  [2015] EWCA Civ 379  per Gloster LJ at [37] -[38]. As I have 
already explained, I consider that Israel, and not England, is the natural forum 
for resolution of this dispute.  
Does the English Court have jurisdicti on in respect of the claim against 
Mr Grumbach?  
173. In the light of my conclusions set out above, the answer to this 
question is that the English Court does not have jurisdiction in respect of the 
claim against Mr Grumbach, for the following reasons.  
174. First, since I have held that the English Court has no jurisdiction at 
common law over Mrs Angela Shamoon and Ms Alexandra Shamoon in 
respect of the claims against them, there is clearly no jurisdiction over Mr 
Grumbach as there is no anchor defendant domiciled i n England and Wales.  
175. Secondly, since I have held that the Claimants' primary claims against 
Mrs Angela Shamoon and Ms Alexandra Shamoon are claims that fall within 
the "wills and succession' exception to the Brussels Regulation and the 
Lugano II Conventio n, the Claimants cannot rely upon article 6(1) of the 
Lugano II Convention to claim jurisdiction over Mr Grumbach, who is 
domiciled in Switzerland. The relevant claims fall outside the scope of the 
Lugano II Convention.  
176. However, I heard additional argumen t that, even if Article 6(1) of the 
Lugano II Convention was available as a potential source of ancillary 
jurisdiction over Mr Grumbach, it was not expedient for the claims against 
him to be heard and determined with the claims against Mrs Angela Shamoon 
and Ms Alexandra Shamoon, as there was no risk of irreconcilable judgments 
resulting from separate proceedings.  
177. Art 6(1) of the Lugano II Convention provides that:  
"A person domiciled in a State bound by this Convention may also be sued:  
1. where he is one of a number of defendants, in the courts for the place where 
any one of them is domiciled, provided the claims are so closely connected 
that it is expedient to hear and determine them together to avoid the risk of 
irreconcilable judgements resulting from separate proceedings."  
178. A detailed analysis of the jurisprudence from the European Court of 
Justice, as well as domestic decisions, concerning the equivalent Article in the 
Brussels Regulation, is set out by Jay J in Ian Shannon v Global Tunn elling 
Experts UK Limited and others [2015] EWHC 1267  at [19] -[39]. For my 
purposes, it is sufficient to note that Jay J concluded that "it is not possible to  
articulate a composite set of principles which unify, or harmonise, the 
decisions of the ECJ in this area", but the cases emphasise the need for the 
Court to assess whether there is, on the facts, a risk of irreconcilable 
judgments if there are separate p roceedings. This necessary condition was 
emphasised by the CJEU in Cartel Damage Claims (CDC) Hydrogen 
Peroxide SA v Akzo Nobel NV and others (Evonik Degussa GmbH and others 
intervening) (Case C -352/13) [2015] 3 WLR at [20]:  
"Therefore, in order for artic le 6(1) of Regulation No 44/2001 to apply, it is 
necessary to ascertain whether, between various claims brought by the same 
applicant against various defendants, there is a connection of such a kind that 
it is expedient to determine those actions together in order to avoid the risk of 
irreconcilable judgments resulting from separate proceedings: see Freeport plc 
v Arnoldsson (Case C -98/06) [2008] QB 634 ; [2007] ECR I -8319 , para 39, 
and Land Berlin v Sapir, para 42. In that regard, in order for judgments to be 
regar ded as irreconcilable, it is not sufficient that there be a divergence in the 
outcome of the dispute, but that divergence must also arise in the context of 
the same situation of fact and law: see Freeport plc v Arnoldsson , para 40; 
Painer's case [2011] ECR  I-12533, para 79; and in Land Berlin v Sapir [2013] 
CEC 947, para 43."  
179. In the present case, the claim against Mr Grumbach is brought as an 
alternative to the claim against Mrs Angela Shamoon and Ms Alexandra 
Shamoon, on the hypothesis that the claim again st the Shamoons is 
unsuccessful. The basis of the claim against Mr Grumbach is summarised at 
paragraph 173 of the Claimants' skeleton argument:  
"If, as a result, the Claimants have lost out either because:  
(1) They have beneficial title to shares as a res ult of Sami's instructions, but 
for any reason are unable to vindicate their rights to the shares to the full 
extent as a result of Mr Grumbach's failure to ensure that the necessary 
formalities were completed to bring about the transfer of legal title, wh ether 
before or (in the case of Ainsbury, assuming he did have a written instrument 
of transfer) after Sami's death, or  
(2) They have no title to the shares, but would have done so but for Mr 
Grumbach's negligence in failing to take the necessary steps to give effect to 
Sami's intended gift of the shares to them,  
then it is fair, just and reasonable for Mr Grumbach to compensate them for 
this."  
180. So there does not appear to be here any risk of irreconcilable 
judgments. If an English Court dismissed the claim against Mrs Angela 
Shamoon and Ms Alexandra Shamoon, and a Swiss Court allowed the claim 
against Mr Grumbach, those judgments are, on the Claimants' own case, 
entirely consistent. Nonetheless, Mr Colton submitted that there was a risk of 
irreconcilable jud gments on the basis that the English Court might dismiss the 
claim against the Shamoons, and a Swiss court might consider that the claim 
against the Shamoons should have been allowed, and therefore dismiss the 
claim against Mr Grumbach. I do not consider t hat this is a realistic 
possibility, and no circumstances were put forward to suggest any reason to 
believe that this might happen.  
181. In the circumstances I accept Mr McParland's submission that, even if 
Article 6(1) of the Lugano II Convention was availabl e as a potential source of 
ancillary jurisdiction over Mr Grumbach, it would not be expedient for the 
claims against him to be heard and determined with the claims against Mrs 
Angela Shamoon and Ms Alexandra Shamoon, as there is no risk of 
irreconcilable j udgments resulting from separate proceedings.  
Conclusions  
182.  
i. Mrs Angela Shamoon and Ms Alexandra Shamoon have not submitted to the 
jurisdiction of the English Court.  
ii. The claim against Mrs Angela Shamoon and Ms Alexandra Shamoon falls 
within the "succ ession" exception in Article 1(2)(a) of the Brussels Regulation 
and the Lugano II Convention.  
iii. Pursuant to the common law rules the English Court does not have 
jurisdiction in respect of the claim against Mrs Angela Shamoon and Ms 
Alexandra Shamoon.  
iv. Mrs Angela Shamoon was not domiciled in the UK at the time that the 
claim was issued and served on her.  
v. The Claim does not fall within the jurisdictional gateway in CPR PD 6B 
paragraph 3.1(3) In particular:  
a) There is no real issue between the Claim ants and Ms Alexandra Shamoon. 
In particular, there is no realistic prospect of success in relation to the causes 
of action against Ms Alexandra Shamoon.  
b) Even if there had been a real issue between the Claimants and Ms 
Alexandra Shamoon, it would not have been reasonable for the English Court 
to try that issue.  
vi. The English Court does not have jurisdiction in respect of the claim against 
Mr Grumbac h