Samir Ramzi Samara (Claimant and Respondent) v (1) MBI & Partners UK Ltd (t/a M.B.I. International & Partners Co) (1) First Defendant and Applicant) (2) Ajwa Rmti Company (t/a Ajwa Group for Food Industries) (2) Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cox DBE,Mrs Justice Cox |
| Judgment Date | 04 March 2016 |
| Neutral Citation | [2016] EWHC 441 (QB) |
| Docket Number | Case No: HQ11X01159 |
| Court | Queen's Bench Division |
| Date | 04 March 2016 |
[2016] EWHC 441 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Crown Court
The Courts of Justice,
Crown Square,
Manchester.
Mrs Justice Cox
Case No: HQ11X01159
Simon Devonshire QC and Katherine Eddy (instructed by Spring Ferguson) for the Claimant/Respondent
Michael Beloff QC, Brian Dye and Karishma Vora (instructed by Zaiwalla & Co LLP) for the First Defendant/Applicant
Hearing date: 12 February 2016
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.
Introduction
MBI & Partners UK Ltd (MBI) are applying, pursuant to CPR 13.3, to set aside the default judgment entered against them in these proceedings as long ago as 13 February 2012. Much has happened in the four years since Master Fontaine entered judgment in default. Michael Beloff QC, who now represents MBI, describes the circumstances surrounding this application as unique. I agree. Their uniqueness seems to me to arise from the amount of litigation generated by an apparently straightforward claim by Mr Samara for unpaid salary, in the form of a claim for damages for breach of his employment contract.
This is in fact the second application by MBI to set aside the judgment entered in default. The procedural history, in summary, is that Master Fontaine dismissed the first such application and Mr Justice Silber dismissed MBI's appeal against her judgment. No appeal was brought against the decision of Mr Justice Silber. There was then, in late 2014, a four day trial in the High Court to determine MBI's allegation that Mr Samara's claim was fraudulent. The judge found against MBI and the Court of Appeal has refused MBI's renewed application for permission to appeal against that judgment. It is against that background that MBI have now issued this second application to set the default judgment aside.
The questions arising before me are whether there is jurisdiction to consider a second application under CPR 13.3; if so whether, as Mr Devonshire QC contends, this further application, in respect of issues already litigated and determined against MBI, is an abuse of process; whether, as Mr Beloff contends, there has been a material change of circumstances since MBI's first application was dismissed; and, if I accept that there has been such a change, whether I should now grant this application and set aside the judgment in default. If the judgment is set aside, Mr Beloff submits either that summary judgment should be entered in MBI's favour, or that I should give directions for a further trial in this matter.
It is necessary to set out the background and procedural history in some detail, so that the issues arising for determination on this second application may be properly understood.
The Background
The relevant background appears from the judgment of Mr Justice Silber, handed down on 4 March 2014. Mr Samara, who is a US national, entered into two written employment contracts with the Defendant companies, each dated 8 December 2001. Under the first "AJWA contract" Mr Samara would be employed by AJWA as General Manager in Saudi Arabia. The second "MBI contract" was a tri-partite contract between Mr Samara, AJWA and MBI, under which AJWA would lend Mr Samara's services to MBI.
The Defendants are separate companies but Sheikh Mohamed Bin Issa Al Jaber is the Chairman of AJWA, as well as being the controlling agent of the MBI group of companies, of which the First named Defendant is a subsidiary. Mr Samara's case is that Sheikh Mohamed personally offered him employment under both these contracts at a meeting in Paris, after several previous meetings between Mr Samara and the accounting firm Arthur Andersen about the nature of his anticipated role as General Manager.
Mr Samara then commenced work under those contracts. In proceedings issued on 29 March 2011 he alleged that he had not been paid sums which were due to him under the MBI contract. He claimed from the First Defendant the sterling equivalent of the sums due and owing, amounting to £235,376.60 excluding interest.
The pleaded dates of Mr Samara's employment under the MBI contract were from January 2002 to 31 March 2005, when Mr Samara claims that he accepted MBI's repudiation of the contract, with effect from that date. The Claim Form was not issued until 29 March 2011 and the Particulars of Claim were only filed and served on 27 July 2011. It appears that before issuing the claim in this country Mr Samara had instructed lawyers and pursued proceedings in the labour courts in Saudi Arabia, which were ultimately unsuccessful.
At paragraph 2 of his Particulars of Claim Mr Samara identified the First Defendant as "…a large conglomerate of companies ('the MBI group') operating across Europe, the Middle East and the United States. Its registered office is at 78–80 Wigmore Street, London W1U 2SJ." His case has always been that he named MBI & Partners UK Ltd as the First Defendant because he had discovered that the party named in the MBI Contract, namely "M.B.I. International & Partners Co.", was the trading name of the company registered in the UK.
MBI were served with the Claim Form, the Particulars of Claim and a copy of the MBI Contract on 27 July 2011. On 28 July 2011 Theodosia Petropanagiotaki of MBI responded to Mr Samara's solicitors by email alleging that " …there is no link betweenMBI & Partners UK Limited ("MBI UK") and your Client. We suspect that your Client's alleged claim is aimed against other legal entities for which MBI UK is certainly not the agent for service of legal process and does not even share the same registered address." Ms Petropanagiotaki wrote a further letter, dated 3 August 2011, in which she stated that " …the documents you sent were to the office address of MBI & Partners Limited, this company is not trading as MBI International & Partners Co and is not the agent for service of legal process for any such trading company." Ms Petropanagiotaki's signature on both of these communications identified her as " Corporate Lawyer, MBI International & Partners".
MBI did not file an Acknowledgment of Service and so the last date on which a Defence had to be served was 11 August 2011. Neither an Acknowledgment of Service nor a Defence was filed within the time limits prescribed by the CPR or indeed at all.
On 24 August 2011 Mr Samara's solicitor, Ms Randall, applied for default judgment and on 20 September Master Fontaine gave permission to enter judgment against MBI in default. On 19 December 2011 Ms Randall requested a short hearing for the purposes of summary assessment of their costs. That hearing was fixed for 13 February 2012 and notice of the hearing was sent to MBI on 20 January 20Before the hearing Mr Salfiti, MBI's in-house lawyer, telephoned Ms Randall and invited her to agree to MBI filing a Defence out of time. Ms Randall declined that invitation.
At the hearing on 13 February both parties were represented and Mr Salfiti made submissions as to costs on MBI's behalf. Default judgment was entered in favour of Mr Samara in the sum of £363,442.47, inclusive of interest, and his costs were summarily assessed in the sum of £12,530.20.
The First Application to set aside the Default Judgment
A copy of Master Fontaine's Order was sent to Mr Salfiti on 14 February 2012 with a notice saying that, if MBI failed to make payment within 14 days, enforcement proceedings would follow. On 1 March 2012 Mr Salfiti telephoned Ms Randall and stated that MBI intended to apply to set aside the default judgment. In a follow-up email he invited Ms Randall to agree to such an application, failing which he would invite the court to consider wasted costs. Ms Randall was absent from the firm through illness at this time and on her return she wanted to take instructions from her client before responding. She told Mr Salfiti this on 27 March 2012, when they spoke once more on the phone. She made it clear to him in that conversation that, although she would endeavour to speak to her client, it was a matter for him whether or not he made the application to set aside and, if so, when.
In fact, MBI did not make an application to have the default judgment set aside until 21 May 2013, almost 16 months after they were first aware of the judgment in default entered against them. It appears that it was the arrival of High Court Enforcement Officers at MBI's offices on 16 May 2013 that prompted them to take action. Mr Salfiti telephoned Mr Ferguson, a senior partner with Mr Samara's solicitors, and it was agreed that the Officers would be instructed to take no further enforcement action, on the understanding that an application to set aside the judgment would be made and served by 4 pm on 21 May.
Mr Ferguson gave those instructions but surprisingly, notwithstanding that agreement and without informing Mr Ferguson, MBI made an ex parte application to this court on that same day for a stay of enforcement and for a stay of the default judgment. This application came before Mr Justice Singh in the interim applications court, who granted the injunctive relief sought.
As Master Fontaine pointed out, in her judgment dismissing the first application to set aside judgment in default, this was not...
To continue reading
Request your trial
-
Daniel Terry v BCS Corporate Acceptances Ltd
...procedure set out in CPR 13.3, not a general power such as CPR 3.1(7). 80 This was an issue considered in Samara v MBI & Partners UK Ltd [2016] EWHC 441. In that case, as here, there was an unsuccessful application to set aside a default judgment under CPR 13.3. A further application to do ......