Asif Mahmood v The Big Bus Company
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Eady DBE |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] EWHC 3395 (QB) |
| Docket Number | Case No: QB-2015-002125 |
| Court | Queen's Bench Division |
[2021] EWHC 3395 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Eady DBE
Case No: QB-2015-002125
Mr Daniel Piccinin of counsel (instructed by Addleshaw Goddard LLP) for the Claimant
Mr Tom Roscoe of counsel (instructed by Clyde & Co LLP) for the Defendant
Hearing dates: 18–20 and 22 October 2021
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is deemed to be 10.30 am on Wednesday 15 December 2021.
CONTENTS
• Introduction
• The Issues
• The Parties
• Findings of Fact
• Are the Heads of Terms governed by UAE or English law? (Question 1)
• Is the claim time barred? If so, to what extent? (Question 2)
• Did the Heads of Terms impose contractually binding obligations on the parties? If so, what? (Question 3)
• Was any agreement contained in the 2001 Heads of Terms brought to an end by the 2002 structure? (Question 4)
• Did the Claimant act in repudiatory breach of an implied term of any agreement contained in the Heads of Terms (Question 5)
• Did the Defendant breach the terms of the Heads of Terms as alleged by the Claimant? (Question 6)
• Did the Defendant's breach(es) cause the Claimant to suffer loss? (Question 7)
• Conclusions and Disposal
Introduction
On 27 July 2001, during discussions in London regarding a possible joint venture to operate tour buses in Dubai, the parties signed a document entitled “Heads of Terms”. That document provides the basis for the claim now before me, which was issued by the Claimant on 5 March 2015. The Claimant says the Heads of Terms gave rise to a binding contract between the parties, which the Defendant subsequently breached. The claim is resisted by the Defendant, arguing that, whether assessed under the law of England and Wales or under the law of the United Arab Emirates (“UAE”), the claim is time-barred. In the alternative, the Defendant contends there was no binding contract between the parties, or, if there was, that it was superseded by events that took place in 2002, or that the Claimant acted in repudiatory breach of any such contract, whereas the Defendant itself did not breach a contractual obligation owed to the Claimant. It further disputes that there is any basis for the damages claimed by the Claimant in these proceedings.
A hearing took place before me on 18–20 and 22 October 2021, limited to issues of liability and causation. I received oral evidence from the Claimant, and from Mr Waterman and Mr Cooper for the Defendant. I also received reports and heard oral testimony from the parties' experts in UAE law: Mr Al Muhtaseb for the Claimant and Mr Al Hashimi for the Defendant. Some of those giving evidence before me were based in the UAE and, by agreement, their testimony was received over video link; this was a proportionate means of ensuring a fair hearing, in particular given continuing difficulties relating to international travel due to the on-going coronavirus pandemic. The documentary evidence was presented in an agreed trial bundle of some 1,421 pages, along with a short supplemental bundle.
As well as written and oral opening arguments, both parties produced written closing submissions and spoke to these on the last day of the hearing. During the course of the Defendant's closing, it was intimated that it intended to make an application to adduce a further document in evidence, an application that was made later that day. Having considered further written submissions from both parties, I refused the Defendant's application for reasons provided in my Order of 26 October 2021.
The issues
The questions I am required to determine at this stage are agreed as follows:
(1) Does UAE law (as the Claimant contends) or English law (as the Defendant contends) apply to the Heads of Terms?
(2) Is the claim time barred?
(3) Did the Heads of Terms impose contractually binding obligations on the parties? (In addressing this issue, it is helpful to add the further question: if so, what?)
(4) If the answer to question (3) is “yes”, was any agreement contained in the Heads of Terms brought to an end by the arrangements put in place in 2002 (“the 2002 Structure”)?
(5) If the answer to question (4) is “no”, was the Claimant in repudiatory breach of an implied term of any agreement contained in the Heads of Terms?
(6) If the answer to question (5) is “no”, did the Defendant breach the Heads of Terms as alleged by the Claimant?
(7) If the answer to question (6) is “yes”, did the Defendant's breach(es) cause the Claimant to suffer loss?
By the time of the hearing before me, the parties were agreed that question (1) (the applicability of UAE or English law) is only relevant to the issue of limitation; it is common ground that, for all other purposes, I should proceed on the basis that there is no material difference between UAE and English law.
The parties
The Claimant describes himself as an international businessman with over 40 years' experience doing business in the Middle East and Asia. He was born in India, in 1946, but his family moved to Pakistan after the Partition and the Claimant grew up in Karachi. The Claimant says that, between 1968 and 1981, he spent time in and around Pakistan and the Middle East, where he undertook a number of business development and marketing consultancy roles for various companies. In 1981, the Claimant moved to the United Kingdom (“the UK”). In oral evidence, he said this was because he had been invited to join the investment bank EF Hutton and he said that he then worked for Merrill Lynch and various other companies (generally in the banking and finance sector). In his second witness statement, he had, however, suggested that this was what had happened when he returned to the UK in 2007. Mr Piccinin sought to clarify his client's career history in re-examination, and the Claimant explained that he had carried out various roles between 1981 and 2001, sometimes as an employee, sometimes as a consultant, but also sometimes carrying on business as an entrepreneur, although he was unable to provide specific detail in this regard.
The Defendant is a company registered in England, which operates double decker bus sightseeing tours in London. The company was established by members of the Maybury family and, by the summer of 2001, the Defendant had been successfully operating sightseeing tours in London for over a decade. At that stage the Defendant did not operate outside London albeit Mr Patrick Waterman, an engineer who had previously been the Managing Director of London Coaches Limited, had started employment as the Defendant's Business Development Director in August 2000 and part of his role was to seek opportunities to expand the company's operations internationally.
Findings of fact
Initial observations
Before setting out the factual background, I make some observations about the oral evidence I received.
As Mr Piccinin fairly acknowledged in his closing submissions, the Claimant was generally not a reliable or helpful witness. Some aspects of his evidence were plainly incorrect (for example, his assertion that the buses used by the Defendant, when starting operations in Dubai, had the passenger doors on the wrong (left-hand) side, when photographs from that time showed that was not the case) and he was unable to provide a reliable history of events in a number of respects (for example, in relation to his career history (see my observations at paragraph 6 above); as to when he was aware of his shareholding in Big Bus Incorporated; or as to when he learned of the incorporation of Double Decker Bus Tours LLC). Save where corroborated by other material or the testimony of others, I give little weight to the Claimant's evidence.
The Defendant urges me to go further and to find the Claimant was dishonest in his evidence. Having reflected on this question, I do not consider I can fairly reach that conclusion. The documentary evidence does not suggest the Claimant was the kind of person to keep a careful written record and such contemporaneous documents that exist, which set out his understanding of events at the time, reveal a degree of confusion on his part even then (for example, as to the benefits he would be entitled to receive as an employee of the business to be established in Dubai); while that confused understanding might have been informed by the Claimant's self-interested aspirations, I am unable to say that he was being dishonest. As for the Claimant's testimony before me, as well as bearing in mind his limited grip on the detail of conversations and events at the time, I have to allow for the diminution in his recall given the passage of time and the problems that he apparently experienced when giving evidence as a result of his hearing difficulties.
In contrast, Mr Waterman was a reliable witness. Assisted by the documents he produced at the time, he was able to provide a clear account of events relevant to the claim (from which I have largely taken my findings of fact) and, acknowledging the difficulties in recalling events from so long ago, made appropriate concessions in giving his evidence. To the extent there is any conflict in the testimony provided to me by the Claimant and by Mr Waterman, I prefer that of the latter.
Mr Cooper's evidence was on the periphery of what was relevant for the purpose of the issues before me. I consider, however, that he sought to assist the Court to the best of his ability and provided an honest account of what he genuinely believed to be the case, albeit he was largely relying on what he had been told by others.
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