GFH Capital Ltd (a company incorporated in the Dubai International Financial Centre of the Emirate of Dubai) v David Lawrence Haigh
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 19 May 2020 |
| Neutral Citation | [2020] EWHC 1269 (Comm) |
| Date | 19 May 2020 |
| Docket Number | Case No: CL-2017-000058 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 1269 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building,
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Henshaw
Case No: CL-2017-000058
James Ramsden QC, Daniel Benedyk and Robert Dougans (instructed by Preiskel & Co LLP) for the Claimant
The First Defendant (acting in person) for himself and the Second, Third, Fifth and Sixth Defendants
Hearing dates: 10 and 14 February 2020. Further written submissions received 19 and 21 February 2020 and 8 March 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| (A) INTRODUCTION | 4 |
| (B) FACTUAL BACKGROUND | 6 |
| (1) The parties | 6 |
| (2) The DIFC Claim | 6 |
| (3) Other proceedings | 9 |
| (C) LEGAL BACKGROUND | 10 |
| (1) Enforcement of DIFC judgments | 10 |
| (2) Applications under the CPR | 12 |
| (D) PRINCIPAL ISSUES | 14 |
| (E) CLAIM AGAINST MR HAIGH | 15 |
| (1) Final and conclusive | 15 |
| (2) Definite sum of money | 15 |
| (3) Court of competent jurisdiction | 15 |
| (a) Presence | 16 |
| (b) Counterclaim | 16 |
| (c) Submission by voluntary appearance | 20 |
| (d) Position under UAE / Dubai law | 21 |
| (4) Impeachability | 21 |
| (a) Fraud | 22 |
| (b) Public policy | 30 |
| (c) Natural justice | 34 |
| (F) MR HAIGH'S DEFENCE AND COUNTERCLAIM | 46 |
| (G) GFH'S PROPRIETARY CLAIMS AGAINST THE FIRST, SECOND, THIRD, FIFTH AND SIXTH DEFENDANTS | 48 |
| (1) The DIFC Judgment | 48 |
| (2) GFH's proprietary claims | 50 |
| (3) Legal principles: constructive trust | 51 |
| (4) Legal principles: privity | 53 |
| (5) Application to facts | 55 |
| (H) ANY OTHER COMPELLING REASON FOR A TRIAL | 57 |
| (I) CONCLUSIONS | 58 |
(A) INTRODUCTION
The Claimant (“ GFH”) brings these proceedings, in their current amended form, in order to enforce at common law a judgment against the First Defendant (“Mr Haigh”) made on 4 July 2018 by Justice Sir Jeremy Cooke in the Court of First Instance of the Dubai International Finance Centre Courts (“the DIFC Court”) in the matter of GFH Capital Limited v David Lawrence Haigh (claim number: CFI-020-2014) (“the DIFC Judgment”); and to trace the sums that were declared in the Judgment to be held by Mr Haigh on constructive trust for GFH into assets of all the Defendants.
This judgment follows the hearing of an application by GFH made by notice dated 30 October 2019 for summary judgment and/or to strike-out the defences of the First to Seventh Defendants and the counterclaim of the First Defendant. Where a statement of case in proceedings based on a foreign judgment has been served on a defendant, and the defendant has acknowledged service or filed a defence, then the claimant may apply for summary judgment under CPR 24.2 on the ground that the defendant has no real prospect of successfully defending the claim.
Mr Haigh appears on behalf of himself as well as the Second, Third, Fifth and Sixth Defendants. He resists GFH's application on the grounds that the Defendants' Defences and Counterclaims have real prospects of success, and that in any event that there are compelling reasons for a trial.
GFH does not, on the present application, seek declarations against the Fourth and Seventh Defendants, which have been the subject of compulsory strike-off from the register of companies. GFH states that it has a pending application to restore the Fourth Defendant to the register. The Seventh Defendant is a Guernsey company whose restoration GFH does not currently consider to be proportionate. The Eighth Defendant accepts the declarations sought against her, and has stated that she will transfer to GFH her entire interest in Apartments 4 and 5 of the Lamorna apartments referred to below, and account for any benefit derived by her from the conveyance.
The hearing of GFH's application took place on 10 and 14 February 2020, with Mr Haigh participating by telephone. Mr Haigh made an oral application for an adjournment at the start of the hearing, which was unsuccessful for the reasons I gave in a detailed oral judgment. The background, briefly, was that Mr Haigh had had GFH's substantive evidence for this application since May 2019. The hearing of GFH's application had already been adjourned twice, from 23 October 2019 and from 20 December 2019. Mr Haigh had requested an adjournment of the 23 October 2019 hearing, but the judge also gave permission to GFH “ permission to file and serve, within 7 days of the date of this Order, an amended Application Notice to include its claim for summary judgment and a further witness statement in support of the Application for the purposes of making the statements required by the Practice Direction to Part 24 of the Civil Procedure Rules”. The adjournment on 20 December 2019 resulted from the recusal of the judge who had been listed to hear it.
When the matter came before me, Mr Haigh's GP had provided a letter dated 3 January 2020 and a statutory sick pay form signing Mr Haigh off work for 12 weeks. However, the correspondence indicated that in December 2019 Mr Haigh had proposed a hearing date in February 2020. On 18 December 2019 he filed an 83-paragraph witness statement with voluminous exhibits, and a skeleton argument. After parties were notified on 6 January 2020 that the hearing had been listed for 10 February 2020, Mr Haigh made no objection and sought copies of the bundle for his preparation. On 30 January 2020 Mr Haigh made a detailed data subject access request to GFH's solicitors. These events indicated in my view that Mr Haigh retained the capacity to deal with, and indeed initiate, legal matters.
Mr Haigh's GP's letter of 5 February 2020 provided no details of the timing or effect of the surgery Mr Haigh said was scheduled, and contained no statement to the effect that Mr Haigh was unable to attend the imminent court hearing. Mr Haigh signed his 24 th witness statement, with exhibits, on 6 February 2020. On Friday 7 February 2020 Mr Haigh sent an email requesting that he be permitted to attend the hearing by telephone. After giving GFH an opportunity to comment, I directed as follows:
“I note that Males J in his order of 11.12.18 (Judgments bundle tab 58] § 11) directed that in future Mr Haigh must provide independent medical evidence concerning any inability to attend any hearing in person if he wishes to attend by telephone, setting out the details of his medical condition(s) and why he needs to attend by telephone.
Having reviewed Mr Haigh's witness statement dated 6.2.20 and its exhibits, I am not persuaded that he has provided such evidence. However, given the history of this matter, I am willing to take the pragmatic view that (rather than risking Mr Haigh's non-attendance) he should be permitted to attend by telephone subject to the following provisos:
1 Mr Haigh will be responsible for ensuring that he is available and equipped at 10.30am on Monday 10 February, the time listed for the hearing, to attend the hearing by telephone.
2 Mr Haigh must ensure he has telephone equipment sufficiently powered so as to able him to remain connected for whole duration of the hearing, which is listed for a full day. In practice that may is likely to require the use of a land line rather than relying on a mobile phone, and it is also likely to involve having a back-up phone to hand in case of any failure.
3 If, as it appears has occurred in past, the Court is unable to reach or remain in contact with Mr Haigh by telephone, the hearing will proceed nevertheless. In other words, if Mr Haigh wishes to seek to attend by telephone, he does so at his own risk.”
On 9 February 2020 Mr Haigh provided a revised skeleton and his 25th witness statement, along with a case management note and a lengthy witness statement of a Mr O'Rourke. He stated that various people had helped him produce them. He made submissions articulately during the first part of the hearing on 10 February 2020.
In all the circumstances, I was not satisfied that the interests of justice required the hearing to be adjourned on medical grounds, and so the hearing proceeded. In the event, Mr Haigh continued to engage with the application, participating in the hearing by telephone over two full days, providing a 19-page speaking note for oral closing submissions, and filing further submissions and evidence on 19 February, 21 February and 8 March 2020. Regardless of the extent to which those materials are admissible (to which I return later), they confirm in my view that Mr Haigh had, and availed himself of, a full and fair opportunity to participate in the hearing.
For the reasons set out below, I have come to the conclusion that Mr Haigh has no real prospect of successfully defending the claim for enforcement of the DIFC Judgment and there is no other compelling reason why the matter should be disposed of at a trial. I have also concluded that none of the Second, Third, Fifth and Sixth Defendants has a real prospect of successfully defending GFH's claims for declarations against them and there is no other compelling reason why...
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