Nancy v Narcissa [2024] DIFC CFI 098 (08 July 2024)

Claim No: CFI 098/2023

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NANCY

Claimant

and

NARCISSA

Defendant

ORDER WITH REASONS OF JUSTICE MICHAEL BLACK KC

UPON the Part 7 Claim Form being filed on 29 December 2023 and the Particulars of Claim being filed on 7 February 2024 (the “Claim”)

AND UPON the Claimant’s Request for Default Judgment dated 8 March 2024 (the "Request”)

AND UPON the Defendant’s Application No. CFI-098-2023/1 dated 12 March 2024 seeking immediate judgment and/or strike out of the Claim (the “Application”)

AND UPON the Order of Judicial Officer Maitha Alshehhi ordering that the Request shall be stayed pending determination of the Application (the “Stay”)

AND UPON the Claimant’s evidence in answer to the Application dated 15 April 2024

AND UPON the Defendant’s evidence in reply thereto dated 9 May 2024

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing of the Application held on 29 May 2024

AND UPON reviewing Parts 4 and 24 of the Rules of the DIFC Courts

AND UPON reviewing the Court file and documents therein

IT IS HEREBY ORDERED AND DECLARED THAT:

1. The Claimant’s employment under the contract dated 5 February 2014 was validly terminated on 11 August 2022 under Clause 16 of that contract.

2. All references in the Particulars of Claim to an express contract of employment following the 11 August 2022 termination of employment shall be struck out on the basis that the pleaded claim that an express contract was concluded after 11 August 2022 discloses no reasonable grounds for bringing the claim. Further, the claim that there was an express contract of employment following the 11 August 2022 termination of employment enjoys no real prospect of succeeding and judgment be entered in favour of the Defendant on the issue.

3. Both limbs of the Visa Claim shall be struck out on the grounds that the Particulars of Claim disclose no reasonable ground for bringing the claims. Further, neither limb of the Visa Claim enjoys a real prospect of succeeding and judgment be entered in favour of the Defendant on the issues.

4. The claim that the Claimant had the benefit of an express indemnity relating to the period after 11 August 2022 shall be struck out on the grounds that the Particulars of Claim disclose no reasonable grounds for bringing the claim. Further, the claim that the Claimant had the benefit of an express indemnity relating to the period after 11 August 2022 enjoys no real prospect of succeeding and judgment be entered in favour of the Defendant on the issue.

5. Save paragraphs 1 to 4 above, the Application is dismissed.

6. The Stay upon the Claimant’s Request is lifted and the Request is dismissed.

7. The parties shall file and serve written submissions on costs within 7 days of the date of this Order.

8. The Defendant shall file its defence to the Claimant’s remaining claims within 14 days of the date of this Order.

Issued by:
Hayley Norton
Assistant Registrar
Date: 8 July 2024
At: 2pm

INTRODUCTION

1. There is before me an application by the Defendant dated 12 March 2024 in the following terms:

“1. The Claimant’s claim is dismissed in its entirety. 2. The Claimant must pay the Defendant’s costs of the action. [ALTERNATIVELY] 4. The Defendant’s strike out application is granted in respect of the following issues: [IN EITHER CASE] 5. The Claimant must pay the Defendant’ costs of the application because the statement of case and further particulars of claim of the Claimant discloses no reasonable grounds for bringing or defending the claim.”

2. There is no separate strike out application and so it is difficult to follow from the application itself which pleaded claims are said to disclose no reasonable grounds for bringing [or defending] the same. The Defendant does not bring a counterclaim and so the words in square brackets have no application.

3. The procedural history is convoluted.

4. There was a written contract of employment between the Claimant and Nash, a DIFC company whereby the Claimant was appointed as“Vice President (Level C) – Private Equity”. Clause 6 provided for a discretionary bonus. Clause 16 allowed either party to terminate the contract by 3 months’ notice. Notwithstanding, the Defendant was entitled to terminate the contract at any time summarily and without notice pursuant to the DIFC Employment Law (“the Employment Law”).

5. The Claimant says that some time in 2015/2016 he entered into a ‘Carry Agreement’ with Ned (“Ned”, Nash’s parent company) whereby he was entitled to share in incentives placed in a ‘Carry Pool’.

6. The Claimant says that he was the authorized signatory of various portfolio companies situated within the UAE including Neil (“Neil”), a fast-food business with branches in the UAE, Bahrain and Qatar.

7. On 31 August 2020 the Claimant was informed that following the merger between the Defendant and Ned (DIFC) Limited, he would be an employee of the Defendant.

8. In 2020 the Claimant’s DIFC employment visa was renewed naming the Defendant as his employer. He says that, notwithstanding, he was instructed by the Defendant to return to India to avoid actions by the creditors of Neil, which he did in September 2020.

9. On 12 May 2022, the Claimant received a Termination Notice from the Defendant. His work email access was revoked in August 2022. Despite this, the Claimant says he continued to be part of the investment committees of the Defendant’s funds, continued to be the authorized signatory for certain bank accounts and approved transactions for the Defendants.

10. The Claimant returned to Dubai in January 2023 and on 23 January 2023, the Defendant proffered a draft consulting contract with an associated Kuwaiti entity appointing the Claimant as a contractor or consultant for Neil-related matters. The Claimant did not respond.

11. On 21 August 2023 the Claimant commenced proceedings against the Defendant in the Small Claims Tribunal (“SCT”). In his witness statement of the same date, the Claimant alleged that the Defendant purportedly terminated his employment with ‘immediate effect’ on 11 August 2022 in contravention of Articles 62, 63 and 64 of the Employment Law or alternately, waived the termination by its conduct since 11 August 2022.

12. The Claimant claimed that:

(a) The Defendant wrongfully terminated his employment in contravention of Articles 62, 63 and 64 of the Employment Law or waived the termination by subsequent conduct (the “Wrongful Termination Claim”);

(b) The Defendant be directed to:

(i) pay his salary from the date of decree till the date of lawful termination of his employment (the “The Claimed Wage Dispute”);

(ii) renew/re-obtain his employment visa and insurance; and

(iii) fulfil all its obligations as an Employer under the Employment Law till the date of lawful termination of his employment;

(c) In the alternative to (1) and (2), the Defendant unlawfully retained his end of service entitlement in violation of Article 66(1) of the Employment Law (the “ESG Claim”); is liable to pay a penalty under Article 19(2) in the sum equal to his daily wage for each day that the Defendant had failed to pay his arrears (the “Penalties Claim”) and failed to make payments due to him from the ‘Carry Pool’ under the Carry Agreement (“the Claimed Carry Dispute”);

(d) The Defendant wrongfully made an offer of settlement without giving him the benefit of independent legal advice in breach of Article 11 of the Employment Law;

(e) The Defendant had wrongfully withheld the copies of his Employment Contract and Carry Agreement;

(f) The Defendant failed to fulfil the Employers Obligations under Part 7, including under Articles 43, 44, 56 and 57 of the Employment Law.

13. The Defendant put in a Defence on 28 August 2023 in which it contended:

(a) The claim was out of time under Article 10 of the Employment Law;

(b) The Claimant became an employee of the Defendant in the DIFC on 5 February 2014;

(c) On 22 September 2015, the Claimant and the Defendant entered into a Private Equity Carried Interest Incentive Plan (“Carry Plan”). Any payment or entitlement under this Carry Plan was conditional and the conditions had not been met;

(d) On or around 10 August 2022, the Claimant contacted the Senior Vice President of the Defendant Mr. Nessim, and on compassionate grounds, requested for the Company to refrain from cancelling his UAE Residency Visa for a short period of time, despite the termination of his Employment Contract. In or around 15 November 2022, the Defendant was notified by the DIFC that the visa cancellation process must be commenced;

(e) Between November 2022 and January 2023, the Defendant attempted to facilitate payment and conclude the relevant administrative documents with the Claimant;

(f) The Defendant denied that the Claimant’s employment continued after 12 August 2023 or that the Claimant undertook any functions in relation to any of the portfolio companies.

14. On or about 19 September 2023 the parties settled the ESG and Penalties Claims and certain issues relating to the cancellation of the Claimant’s visa.

15. On 25 October 2023 the Claimant amended his claim form to claim:

“(a) an order declaring that the Termination Notice of 12 May 2022 is invalid and set aside, or waived; (b) an order that the Defendant be direct to pay my outstanding salary from August 2022 till the date of decree; (c) an order that the Defendant be directed to renew/re-obtain my employment visa and insurance; [the “Visa Claim”] (d) an order that the Defendant be directed to pay my salary from the date of decree till the date of lawful termination of my employment; (e) an order that the Defendant be directed to fulfil all its obligations as an Employer under the DIFC Employment law till the date of lawful termination of my employment; (f) pay entitlements under the Carry Agreement; and (g) interim reliefs, including continuation of my employment visa and insurance pending resolution of dispute; and handover of Employment Contract and Carry Agreement.”

The Claimant also filed Amended Particulars of Claim on 30 October 2023.

16. He valued his claim at AED 2,785,581 which is above the non-consensual monetary jurisdiction of the SCT.

17. I note that a hearing had been listed before the SCT for final determination of the claim on 13 November 2023. However, as no agreement was made to increase the monetary jurisdiction of the SCT, the proceedings were transferred to the Court of First Instance (“CFI”) and the hearing was vacated. The Claimant claims that this amounted to a breach of the Consent Order of 19 September 2023 which provided that“The Claimed Wages Dispute, Claimed Carry Dispute, and all other disputes raised in the claim and the responses raised in the Defendant's Statement of Defence, except those resolved at [2] and [3] above shall be adjudicated before the DIFC Small Claims Tribunal under SCT 306-2023”.

18. It is certainly correct that the vacation of the November 2023 hearing has delayed matters and added considerably to the costs.

19. The Claimant issued a Part 7 claim form in the CFI on 29 December 2023 and Particulars of Claim on 7 February 2023 claiming the following relief:

(a) unpaid wages along with the employment benefits, or compensation for lack thereof, from 11 August 2022 till 21 September 2023;

(b) alternately damages in terms for breach of duty of care;

(d) entitlements under a “Carry Agreement”, including a share of investment exit incentives;

(e) interim relief, requiring the Defendant to provide the Claimant with

(i) his executed and completed copy of the Carry Agreement;

(ii) details of total sums in the Carry Pool; and

(iii) details of his share of vested benefits under the Carry Agreement from the Carry Pool;

(f) interim relief, requiring the Defendant to take all necessary steps to

(i) remove the Claimant as a party from the legal proceedings pending against him in the UAE by the virtue of his management of entities on behalf of the Defendant;

(ii) ensure no further Legal proceedings are initiated against the Claimant; and

(iii) lift the travel ban imposed on the Claimant.

20. On 7 March 2024 the Claimant filed a request for judgment in default of defence. The Defendant responded by serving the current application on 12 March 2024. On 14 March 2024 Judicial Officer Maitha Alshehhi ordered that the Request for Default Judgment be stayed pending the determination of the Defendant’s Application and that there shall be no order as to costs.

21. On 19 March 2024 the Claimant made a lengthy application seeking ade novoreview of the order of 14 March 2024. The application was dismissed without a hearing (costs in the case) by H.E. Justice Maha Al Mheiri on 4 April 2024. She held that since the Court had not yet determined the Default Judgment Application that was filed, the normal course of action would be to stay the Default Judgment Application pending determination of the Defendant’s Immediate Judgment Application.

THE DEFENDANT’S APPLICATION AS EXPLAINED

22. The draft order accompanying the Defendant’s application is as unhelpful as the application itself in that it fails to specify which claims made in the Particulars of Claim are sought to be struck out.

23. The application is supported by the First Witness Statement of Christopher Brinley, an Associate Solicitor at Morgan Lewis & Bockius LLC. Mr Brinley states that he takes note of the provisions of RDC 29.18(4) concerning the content of witness statements, as well as Practice Direction No. 1 of 2016, concerning the content of witness statements filed by legal practitioners.

24. The Claimant submits that I should disregard Mr Brinley’s statement in its entirety noting that PD 1/2016 provides for a general prohibition on lawyers providing witness statements on behalf of their clients, unless the contents are formal or uncontroversial, or the witness statement is being filed solely to introduce documents, without providing any factual evidence on the merits. The Claimant notes that inSky News Arabia FZ-LLC v Kassab Media FZ (LLC) [2016] CFI 007 (20 June 2016) at [12] the DIFC Courts disregarded a witness statement filed by the claimant's lawyer on the basis that it did not comply with PD 1/2016, as the contents were controversial and not submitted solely for the purpose of introducing documents. The Claimant then sets out in tabular form the paragraphs in Mr Brinley’s statement that contain assertions of fact that are in contradiction to assertions in the Claimant’s evidence.

25. It seems to me that the Claimant’s position is unhelpful and, in a sense, self-defeating. It is unhelpful because there is much in Mr Brinley’s statement that is uncontentious and it does exhibit material documents. It is self-defeating, because insofar as the Defendant is relying on contentious issues of fact, that would militate against the grant of immediate judgment.

26. Paragraph 3 of the Practice Direction states that where any lawyer files a factual witness statement which does not conform with the Practice Direction, the Court may discount the evidentiary weight of that witness statement for lack of first-hand knowledge. Accordingly, the Court retains a discretion as to the weight (if any) it will give to controversial statements made in evidence given by legal practitioners, in the same way as the Court has a discretion as to the weight it gives to any hearsay evidence.

27. I will not disregard Mr Brinley’s statement in its entirety but I will consider what helpful evidence he is able to give on specific issues.

28. Notwithstanding his reference to the provisions of RDC 29.18(4) (which provides a witness statement should not engage in argument) Mr Brinley identifies a number of claims in the Claimant’s Particulars of Claim and outlines the Defendant’s position that each of the claims should be struck out and/or immediate judgment entered for the Defendant. The claims are:

(a) the Claimed Wage Dispute – a claim under a new contract of employment running from 11 August 2022 until 21 September 2023;

(b) the Visa Claim – a claim for losses arising out of an alleged failure to cancel the Claimant’s DIFC employment visa until 21 September 2023;

(c) the Indemnity Claim – a claim for a failure, by the Defendant, to indemnify the Claimant against legal proceedings in relation to his role at Neil;

(d) the Claimed Carry Dispute – a claim for an alleged failure to pay the Claimant entitlements arising from the Carry Plan.

29. Like the application notice and the draft order Mr Brinley does not identify the precise paragraphs of the Particulars of Claim it is alleged should be struck out and seems to elide the immediate judgment and strike out applications. In the Defendant’s skeleton it is suggested that the same principles apply to both applications.

30. Before addressing the applicable legal principles, I should record that the Claimant maintains that even if the Defendant succeeds with what he quaintly and inaccurately calls the “Demurrer Application” there is at least one claim that has been left unaddressed by the Defendant, i.e., the Claimant’s alternative claim for damages and he is entitled to default judgment on that claim. I will return to the submission in due course but I need to emphasize the following: “demurrer” is not a procedure known to DIFC law and the use of that antiquated term compendiously to describe the Defendant’s application blurs any distinction there may be between strike out and immediate judgment applications.

THE APPLICABLE LEGAL PRINCIPLES

31. Insofar as relevant RDC 4.16 provides:

“The Court may strike out a statement of case if it appears to the Court:

(1) that the statement of case discloses no reasonable grounds for bringing or defending the claim…”

32. RDC 24.1 and 24.2 state that:

“24.1

The Court may give immediate judgment against a claimant or defendant on the whole of a claim, part of a claim or on a particular issue if:

(1) it considers that:

(a) that claimant has no real prospect of succeeding on the claim or issue; or

(b) that defendant has no real prospect of successfully defending the claim or issue; and

(2) there is no other compelling reason why the case or issue should be disposed of at a trial.

24.2

An application for immediate judgment under Rule 24.1 may be based on:

(1) a point of law (including a question of construction of a document);

(2) the evidence which can reasonably be expected to be available at trial or the lack of it; or

(3) a combination of these.”

33. There are obvious differences between the two procedures:

(a) RDC 4.16 is about statements of case. It is about whether the pleading discloses reasonable grounds for bringing or defending a claim;

(b) In contrast, under Part 24 the pleading may disclose reasonable grounds for bringing or defending a claim, but a party may have no real prospect of succeeding in establishing those grounds on the evidence which can reasonably be expected to be available at trial.

34. The Defendant overstates the position when it says that the same principles apply to both applications and that they were summarised by Justice Roger Giles inNest Investments Holding Lebanon S.A.L. and ors v Deloitte & Touche (M.E.) and anr [2016] CFI 027 (12 February 2018) at [22]. What the Judge said was rather more careful and nuanced. While he accepted that it was possible to strike out a claim under either provision and so there is an overlap which suggests a common approach, he noted that RDC 4.16 is apt for applications where, even if all the pleaded grounds are accepted, the claims must fail. While that may also be a ground of application under Part 24, he said that Part 24 is also apt for an application on the basis of evidence showing that the claim must fail, or of absence of evidence to support it.

35. If the application is made under RDC 4.16, a pleading will be considered deficient if it merely asserts a legal conclusion without setting out the facts relied upon to support that conclusion (for example that a party was acting as an agent: seeFirstrand Property Holding (Middle East) Limited v Damac Park Towers [2014] CFI 030, at [26] per Justice Roger Giles) or the pleaded facts cannot as a matter of law support the conclusion.

36. It seems to me that where RDC 4.16 is the basis of an application, good practice requires that the applicant identifies with precision the words within the pleading sought to be struck out and the precise respects in which it is alleged that those words (assuming the factual allegations to be true) fail to disclose reasonable grounds for bringing (i.e. an arguable cause of action) or defending the claim (i.e. the facts pleaded do not amount to a defence in law).

37. Even if the pleading does set out the facts relied upon and those facts, if established, would disclose an arguable cause of action or grounds of defence, while it may not be struck out under RDC 4.16, the party on whose behalf the pleading is served may still be vulnerable to immediate judgment under Part 24 on the basis that there is no real prospect of establishing those facts at trial.

38. If the application under Part 24 is on the basis that the claim is bad in law then, as Justice Giles stated, the same principles should apply irrespective of which provision under which the application is made. On the other hand, if the application is made under Part 24 on the basis that the claim is not made out on the evidence or unsupported by the evidence, different considerations must apply from those applicable to RDC 4.16 as, under the latter, the pleaded facts are assumed to be correct.

39. The principles governing an immediate or summary judgment application (in this case by a defendant) have been restated many times and well established (see Nest at [22]);

(a) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success;

(b) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;

(d) This does not mean that the Court must take at face value and without analysis everything that a party says 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 contemporaneous documents;

(e) In reaching its conclusion the Court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial;

(f) Although a case may turn out at trial not to be complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus, the Court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case;

(g) If the application under Part 24 gives rise to a short point of law or construction and, if the Court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, the Court should “grasp the nettle” and decide the point;

(h) If it is possible to show by evidence that, although material in the form of documents or oral evidence would put the documents in another light is not currently before the Court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.

40. The Claimant asserts that the standard to be applied by the Court in considering the so-called Demurrer Application is whether the Defendant will have a real prospect of successfully defending the claim (and not whether the Claimant has a reasonable prospect of succeeding on the claim). The Claimant relies on the decision of the Privy Council on appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua & Barbuda) inLux Locations Ltd v Yida Zhang [2023] UKPC 3.

41. The Claimant seeks to suggest the same fact pattern as in the present case was considered inLux Locations. InLux Locations, under procedural rules significantly different from the RDC, the claimant commenced proceedings and applied for judgment in default of defence. Thereafter the defendant filed a defence and applied for an extension of time for filing the defence, an order striking out the statement of claim or in the alternative summary judgment. It is correct that the Privy Council (at paragraph [72]) held that where the claim is not for a sum of money:

(a) The court should first of all determine whether the relevant conditions for a default judgment are satisfied; and

(b) Even if the relevant conditions are satisfied, the court should not grant a default judgment if there is material before the court at the hearing of the application which would justify setting such a judgment aside.

42. It is on this latter statement that the Claimant relies to place the burden on the Defendant to show that it has a real prospect of successfully defending the claim, being the criterion for setting a judgment aside under RDC 14.2(2).

43. What the Claimant fails to note is that in Lux Locations the Privy Council also found (paragraph [96]) that it was necessary to consider the argument that the statement of claim should be struck out because it did not disclose any reasonable ground for bringing the claim and/or was an abuse of the process of the court. The Privy Council found that the statement of claim should have been struck out and so the claimant was not entitled to any default judgment. It had held earlier in its judgment (paragraph [50]):

“The same applies … where it appears to the court that the statement of claim is one that ought to be struck out, for example because it is incoherent, does not disclose a legally recognisable claim or is obviously ill-founded. The aim of the default judgment procedure is to provide a speedy, inexpensive and efficient way of dealing with claims which are uncontested and to prevent a defendant from frustrating the grant of a remedy by not responding to a claim. Those objectives, however, do not justify a court in giving judgment on a claim which is manifestly bad or an abuse of the court’s process, even if the defendant has failed to take the requisite procedural steps to defend it.”

44. Thus, where there is an application to strike out a claim or for summary/immediate judgment, even though the applicant may be in default of serving a defence, the Court must first consider the strike out or summary/immediate judgment application. If the application succeeds there would be no claim in respect of which a default judgment could be given. The suggestion that the applicant must show that it has a real prospect of successfully defending the claim would be unnecessary and academic as the applicant would actually have succeeded in defending the claim.

45. The situation is expressly addressed in the RDC. RDC 13.6(1) provides:

“The claimant may not obtain a default judgment:

(1) if the defendant has applied:

(a) to have the claimant’s statement of case struck out under Rule 4.16; or

(b) for immediate judgment under Part 24; and, in either case, that application has not been disposed of;”

46. If following disposal of the applications there are extant claims (because they were not challenged or because they survived) the Claimant submits that unless the applicant has served a defence in respect of those claims, a default judgment should be given. He relies on what was said by Mr Justice Coulson (as he then was) inSimmons & Simmons LLP v Hickox [2014] 3 Costs LO 311 at [19]:

“There was an argument as to whether or not a defendant in the position of this defendant was required to serve a defence in any event, it being plain pursuant to CPR 12.3(3), that the issue of a summary judgment application meant that the claimant could not obtain a default judgment. Mr Salzedo said that that did not prevent the provision by the defendant of a defence, and as a matter of the rules that is plainly right, but as a matter of practicality it seems to me that a defence was required. That is not only because the summary judgment application did not deal with all of the aspects of the claim but also because in circumstances such as these a pleaded defence is very often the best possible way of setting out what the defence actually might be in advance of a hearing, such as today’s would have been.”

47. The Claimant also refers to the observations of Mrs Justice Cockerill in King v. Stiefel [2021] EWHC 1045 (Comm) at [33], but I am not sure they assist him. Taken together the two cases establish that while it is not a breach of the CPR (which are materially similar to the RDC in these respects) for a defendant not to file a defence where only partial summary judgment is sought, it is required as a matter of practicality, as a pleaded defence is often the best way of setting out what the defence actually might be in advance of a hearing. That does not however mean it is the only way, and I do not read either case as affecting what was said subsequently by the Privy Council in Lux Locations, namely that the relevant enquiry is whether there is material before the court which would justify setting aside any default judgment that may otherwise be granted. Clearly It would be a waste of judicial resources and the parties’ time and costs were a default judgment to be entered only to be set aside on grounds that were known at the time of the application for summary/immediate judgment or strike out.

48. It is right therefore that in a case where there remain claims after determining a defendant’s strike out or summary/immediate judgment application, in respect of which no defence has been served, and the claimant seeks default judgment, the Court should also consider whether the material available to it shows that the defendant has a real prospect of successfully defending the claims. If so, the application for default judgment should be refused.

THE CLAIMED WAGE DISPUTE

49. The Defendant focusses on the Claimant’s claim that he“continues to be employed either as a part-time or full-time employee under an express or implied contract. Therefore, the Defendant is liable to pay the Claimant’s salary along with employment benefits such as leave encashment and gratuity from 11 August 2022 till at least 21 September 2023, as either an employee or part-time employee”at paragraph 57(a) of the Particulars of Claim.

50. The Defendant notes that the Claimant points towards the following indicators of his ongoing employment:

(a) Despite his employment contract being terminated his employment visa was not cancelled;

(b) The Claimant performed a number of tasks for “portfolio companies” related to the Defendant, namely Neil, in respect of which he says he authorised payments, remained on regulatory records (e.g. federal tax authority records), conducted daily administrative operations for Neil (e.g. sick leave approvals), had his mobile phone number associated with Neil’s bank account and dealt with its communications;

but the Claimant accepts that he was not paid by the Defendant or Neil and that there was an “attempt” to enter into a contract between the Claimant and Neil during this period to engage him as a consultant, which was not executed and which the Claimant did not acknowledge although he claims that this constituted an admission on the part of the Defendant.

51. The Defendant submits the claim is hopeless. The Claimant accepts that he was served with notice of the termination of his employment by the Defendant on 12 May 2022 as the Defendant says it was entitled so to do under clause 16 of the Claimant’s employment contract. Further the Defendant points out that the Claimant has already claimed, and been paid, sums in respect of ESG, accrued annual leave, and other entitlements up to the date on which his contract of employment terminated pursuant to Article 62(2) of the Employment Law.

52. The Defendant submits that the only entitlements the Claimant could pursue are post-termination entitlements, but any such claim would be out of time under Article 10 of the Employment Law which provides that claims shall be presented not later than six months after the relevant Employee's Termination Date. InMoorkath v Expresso Telecom Group Ltd [2023] CFI 008, (14 March 2024), Justice Rene Le Miere stated at paragraph [193] that the time bar is mandatory and leaves no room for discretion.

53. The Defendant suggests that the Claimant would have to establish that he was reengaged on a fresh contract employment but:

(a) He pleads no factual or legal basis for such a contract and fails to identify (i) the parties to the contract; (ii) the date on which it was entered into; (iii) the terms of the contract; (iv) who an offer was made by, and when; (v) whether such an offer was accepted; and (vi) any evidence of an intention to create legal relations;

(b) On his own case he was working for “portfolio companies” i.e. Neil, and not the Defendant;

(c) Any intention to continue or re-engage the Claimant by the Defendant contradicted by the facts that: (i) his employment was expressly and validly terminated; (ii) he ceased to receive payments from the Defendant in respect of any purported employment; (iii) the Claimant expressly pleads that his access to the Defendant’s IT systems was revoked; and (iv) the available evidence shows that the Claimant has not accessed the Defendant’s IT systems since 21 March 2022;

(d) if the Claimant were already employed by the Defendant, it would make little sense for it (or any related company) to seek to engage him on a “consultancy” basis. The Claimant accepts that he did not respond to, and therefore did not formalise, any contractual arrangement that was being discussed. On its face, the proposed contract was between the Claimant and Nessim (i.e. a Cayman Islands company) not the Defendant. The terms of that draft agreement refer to the Claimant’s prior engagement as an employee of Neil (not the Defendant) and states that the extent of any relationship between the Claimant and Nessim would have been as an “independent contractor”.

54. In his oral submissions (which were somewhat easier to follow than the Claimant’s written submissions), Mr Bagaria, for the Claimant sensibly concentrated on the case for an implied contract of employment arsing after the termination of the Claimant’s employment under the employment contract of 5 February 2014 novated to the Defendant. The Claimant’s position with regard as to whether he claims his employment continued under the February 2014 employment contract is ambiguous. In his Amended Particulars of Claim before the SCT he alleged that the termination was of no effect and sought a declaration to that effect. Those claims are not repeated in his Particulars of Claim in the CFI although there is reference to the “purported” termination at several points. If and insofar as the Claimant is still claiming that his employment under the February 2014 employment contract continued after the expiry of the notice period under the Termination Notice dated 12 May 2022, that is to say, after 11 August 2022, I consider that claim to be unarguable. Clause 16 of the February 2014 employment contract gave the Defendant the right to terminate the contract on three months’ notice. I have seen nothing to support any suggestion that the notice of May 2022 was invalid. In any event any such claim would have been time-barred by the time the Claimant instituted proceedings before the SCT, on 12 August 2023 being more than 6 months after the Termination Date.

55. I will give the Defendant immediate judgment declaring that the Claimant’s employment under the contract dated 5 February 2014 was validly terminated on 11 August 2022 under Clause 16 of that contract.

56. It is pleaded that following the termination of his employment the Claimant continued to be employed by the Defendant until at least 21 September 2023 either part-time or full time, under a separate express or implied contract. There is no pleading nor any evidence suggesting when, by whom or how the express contract was agreed or its terms. The pleading falls squarely within the mischief identified in Firstrand. All references to an express contract of employment following the 11 August 2022 termination of employment must therefore be struck out on the basis that the claim in the Particulars of Claim that an express contract was concluded after 11 August 2022 discloses no reasonable grounds for bringing the claim.

57. The allegation of implied employment contract remains. The Claimant submits that it is a legally and factually complex issue that should be allowed to go to trial.

58. It is said that legal support for the Claimant’s position is found in two cases:G. Percy Trentham Limited v Archital Luxfer Limited & or(1993) 1 Lloyd’s Rep 25 and Newnham Farms Ltd v Mrs V L Powell (2003) EAT/0711/01/MAA.

59.Percy Trenthamis a well-known construction case addressing a situation where the works had been fully executed but the parties had failed to agree on a form of contract. The court accepted that a contract could come into existence during the course of performance. Lord Justice Steyn (as he then was) held:

“The first is the fact that English law generally adopts an objective theory of contract formation. That means that in practice our law generally ignores the subjective expectations and the unexpressed mental reservations of the parties. …The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential. In this case fully executed transactions are under consideration. Clearly, similar considerations may sometimes be relevant in partly executed transactions. Fourthly, if a contract only comes into existence during and as a result of performance of the transaction it will frequently be possible to hold that the contract impliedly and retrospectively covers pre-contractual performance.”

He emphasized that this was a commercial transaction which involved one party carrying out work and the other paying for it. Both parties had intended to enter into binding contractual relations. It did not matter that the parties’ conduct could not be precisely analysed in terms of offer and acceptance.

60.NewhamFarms is a little less well known. In that case the Employment Appeal Tribunal held that it was a question of fact whether an employment relationship could be implied from the circumstances.

61. In the present case, the Claimant relies on the following pleaded matters to imply a contract of employment continuing after the termination:

(a) the Claimant continued to be part of the investment committees of the Defendant’s funds. He says he managed several funds not just Neil;

(b) the Claimant continued to authorize and process credit card and utility payments of the Defendant’s portfolio companies;

(d) The Claimant continued to conduct daily administrative operations such as management for the portfolio companies of the Defendant – among other things routine payments, sick leave approvals, etc;

(e) The Claimant’s mobile number was linked with the Defendant’s portfolio companies’ bank account(s) and all permissions were required to be secured from the Claimant;

(f) All communications relating to any payments were required to be routed through the Claimant;

(g) He retained his UAE employment visa until 21 September 2023.

62. I am satisfied that the allegation that an implied contract of employment arose between the Claimant and Defendant following the termination of the Claimant’s employment under the February 2014 contract is raised on the pleadings and the facts said to support the allegation are set out. If those matters were established I am of the view that it would be realistic to contend that an implied contract arose. I am also satisfied that the disclosure process may throw up further evidence that may reinforce the claim.

63. The fact that the Claimant was offered a consultancy agreement with Nessim in January 2023 tends additionally to indicate an acknowledgement that the Claimant was carrying out, and would continue to carry out, services for which it was accepted he should be remunerated. The form and content of the draft agreement does not however appear to be relevant as it was not accepted by the Claimant and so could only go to the Defendant’s subjective intention which under DIFC law (as with English common law as explained by Lord Justice Steyn in Percy Trentham) is not an admissible aid to the interpretation of a contract (see DIFC Contract Law, Article 49).

64. I consider that the issue of whether an implied contract of employment arose between the Claimant and Defendant following the termination of the Claimant’s employment under the February 2014 contract has a realistic prospect of success and should go to trial.

65. In the circumstances the allegation will not be struck out nor do I consider that it is appropriate on the material before me to give immediate judgment dismissing the claim. Having said that, I express no view on its merits.

THE VISA CLAIM

66. The Visa Claim is pleaded as an alternative to the Claimed Wage Dispute. The Claimant alleges that the Defendant breached the duty of care it owed to the Claimant under Articles 17 to 21 of the DIFC Law of Obligations, including by (i) failing to cancel the Claimant’s DIFC Employment Visa within 30 days in accordance with Article 57(3) of the Employment Law until 21 September 2023 and (ii) terminating the Claimant’s employment while the legal cases were pending, thereby preventing the Claimant from finding alternative employment.

67. The Defendant submits that the claim fails to articulate a valid cause of action under DIFC Law. There is no duty to cancel a visa which arises under the DIFC Law of Obligations. To the extent such a duty exists, it is under Article 57(3) of the Employment Law. The DIFC Courts have already concluded that the duty in Article 57(3) of the Employment Law does not give rise to a concurrent duty in negligence, and a common law duty of care will not arise in circumstances where there are already statutory remedies available evincing an intention to exclude alternative remedies.In Lutfi v The Dubai International Financial Centre Authority [2013] DIFC CA 003 (26 November 2014), the Court of Appeal stated (paragraphs [59]-[62]) that the Employment Law is regulatory in content and there is no basis to adopt any other law (in that case the Implied Termes in Contracts and Unfair Terms Law (“ITCUT”)) to determine the rights of an employee. There is no authority under DIFC law principles that offer a statutory right to damages arising from a breach of the Employment Law. InMoorkathJustice Le Miere considered a claim similar to the Visa Claim. He held that the Employment Law comprehensively regulates the relationship of employers and employees including obligations on employers on the termination of employment. There was no coextensive duty of care under Article 17 of the Law of Obligations (a fortioriunder Article 20 which provides for a more stringent test when imposing a duty of care) as the Employment Law provided its own remedies for breach under Article 67. There is no claim in the present case under Article 67 and in any event such a claim would be statute barred.

68. The Claimant submits in its skeleton argument that“the Defendant’s reliance on the Lutfi Case is misconceived and entirely erroneous.”I find that submission overblown and the supporting arguments incomprehensible. I can see no difference in principle whether a claimant is seeking to rely on the Law Obligations to provide a remedy supplementary to that under ITCUT in respect of unfair dismissal or the Employment Law in respect of failure to cancel a visa.

69. Again, Mr Neveah was more realistic in his oral submissions. He sought to argue thatMoorkathdoes not say that the Law of Obligations does not apply to employment cases. He relied on the SCT case ofGeorge v Gloria Beauty Lounge LLC [2016] DIFC SCT 086. In that case the SCT held that an employer was liable under the Law Obligations for knowingly failing to lift an Absconding Case against the employee. It is clear from the judgment in that case that the issue of exclusive and co-extensive duties and remedies was not raised. It seems to me that the SCT Judge was therefore led into error and the reasoning inMoorkathmust prevail (as indeed it would in any event being a decision of the CFI, but I pay respect to the care and diligence the SCT Judge displayed in her otherwise comprehensive judgment). In my view George is per incuriam and should not be followed.

70. The Claimant’s argument also ignores the principle that underlies the Court of Appeal’s decision in Lufti, namely that the Employment Law exclusively governs relations between the employers and employees in the DIFC and no other DIFC law (in that case ITCUT) determines their rights and obligations. It seems to me that the principle is equally applicable to claims made under the Law of Obligations.

71. There are two elements to what is termed “the Visa Claim”, namely failing to cancel the Claimant’s Visa within 30 days in accordance with Article 57(3) of the Employment Law and terminating the Claimant’s employment while the legal cases were pending. Both claims are bound to fail as they each are based on a duty care under the Law of Obligations that does not exist. I should however add that if there were a duty of care coextensive with the duties under the Employment Law then at least the first limb of the claim is coherent given that it mirrors a duty under the Employment Law. In contrast, I find the second limb impossible to understand. It is pleaded that the Defendant breached its duty of care toward the Claimant by terminating his employment when legal proceedings were ongoing against him and while he was asked to work remotely from India. How a duty not to terminate the Claimant’s employment arose in those circumstances is neither apparent nor explained. Instead, it is asserted,“It is trite that if an employer’s actions prevent an employee from being employed elsewhere subsequent to the termination, the employer is liable to pay damages to the employee for economic losses sustained by the employee. Consequently, the Defendant owed a duty of care to terminate the Claimant’s employment in a manner, and at such time, so as to not prevent him from finding alternative employment.”Use of such hackneyed phrases as “it is trite law” is no substitute for authority or reasoning. Even if a consequence of terminating an employee's employment were that the employee were prevented from being employed elsewhere (and that in itself is an inherently unlikely situation – it would be more likely that the employee’s chances of seeking employment in a particular field were affected rather than becoming completely unemployable in any capacity) it seems to me that without more (for example proof of an improper reason and none is alleged here) a claim cannot lie for the legitimate exercise of a lawful right of termination.

72. It follows that both limbs of the Visa Claim must be struck out on the grounds that the Particulars of Claim disclose no reasonable ground for bringing the claims.

INDEMNITY CLAIM

73. The Claimant pleads that the Defendant is liable to indemnify him against legal proceedings arising out of his role at Neil as the general manager. He says that during the course of his employment, the Claimant was contractually indemnified against all legal actions in relation to his role at Neil “over an email”. However, since the Claimant’s employment has been terminated, and his access to company email has been revoked, he is unable to access that email.

74. It is not clear what “over an email” means. I assume it means that there is an email containing an express indemnity to which the Claimant now says he no longer has access.

75. The Claimant also asserts that he was entitled to an implied indemnity.

76. The Defendant submits that the basis of the Claimant’s claim is genuinely difficult to understand as he has not identified any contractual or statutory basis for his claim. Notwithstanding, the Defendant says any claim is bound to fail because:

(a) None of the facts the Claimant pleads reliance on has anything to do with his employment by the Defendant. On his own case, the Claimant’s claim relates to the liquidation of Neil, which was a voluntary bankruptcy determined by the shareholders of Neil, in respect of which the Claimant was the General Manager having been appointed as such by virtue of a shareholder’s resolution, and not by the Defendant;

(b) The Claimant’s terms of employment were exclusively governed by his contract of employment – there being an entire agreement clause at Clause 23. There is no basis in the terms of that agreement for the Claimant to assert that he is indemnified by the Defendant with respect to the wholly unconnected liquidation of a third party, Neil, or with respect to actions carried out by the Claimant in his role as manager of Neil. The Claimant has not pleaded reliance on such a term. In any event indemnity under such a term would come to an end on termination of the Claimant’s employment;

(c) The Claimant does not identify a provision of DIFC Law which he says gives rise to the entitlements claimed, whether under the Employment Law or any other statute;

(d) On the face of it, it is difficult to understand why, in any circumstances, the Defendant should have provided the Claimant with an indemnity with respect to his role with Neil. Insofar as any such indemnity exists, it would presumably arise under a contract between the Claimant and Neil, or under the terms of Neil’s Articles of Association. In any event, it has nothing to do with the Defendant or the DIFC Court;

(e) The Claimant’s assertion that he was indemnified by email is inadequate. He fails to provide any details concerning: (i) who the parties to that email were (e.g. was it the Defendant or Neil); (ii) when it was sent; or (iii) whether it is said that the email was, in itself, contractual;

77. In his written submissions the Claimant suggests that his contract of employment was amended by a subsequent email. This is not what was pleaded, it was pleaded that he was“was contractually indemnified against all legal actions in relation to his role at Neil over an email”. There is no suggestion that this was an amendment to his employment contract. Insofar as it is possible to make sense of the pleading it appears to be alleging a freestanding indemnity. The suggestion that disclosure might improve the claim is the classic“hope something will turn up”. In any event it is said that this applied during the course of his employment. It is not suggested that the indemnity extended post termination. If and to the extent that the Claimant is claiming the benefit of an express indemnity relating to the period after 11 August 2022, such claim is to be struck out on the grounds that the Particulars of Claim disclose no reasonable grounds for bringing the claim.

78. So far as an implied indemnity is concerned the Claimant points to the caseof First Names (Jersey) Limited & Anr. v. IFG Group PLC [2017] EWHC 3014 (Comm). In First Names Mr Justice Knowles (applying the law of Jersey on the basis of expert evidence) held that a company providing individuals to act as directors of companies to which it provided corporate services was impliedly bound to indemnify those individuals against any claims arising out of their duties as directors. He held that without indemnities the arrangement would be commercially unworkable and that there was a shared understanding in the sector that employees required by their employer to become directors of client companies would be indemnified.

79. First Names was referenced by Mr Justice Freedman in the subsequent case ofBenyatov v. Credit Suisse [2022] 4 WLR 54. It was a considerably more complex case than First Names and the judgment was both much longer and more fully reasoned. In it the judge examined the extent of the implied indemnity and dismissed the claim on the grounds that the indemnity did not extend to the losses claimed, but he did not doubt that the implied indemnity existed.

80. At the very least it seems strongly arguable to me (and therefore to have a realistic prospect of success) that, by analogy withFirst Names, in the context of the Private Equity (“PE”) business, where employees of a PE company are required to become directors or managers of portfolio companies in order to monitor or protect the investment of the PE company in the portfolio companies, in the absence of express indemnities, it will be implied in the employment contracts of those employees that they will be indemnified against claims and losses arising out or in connection with the bona fide exercise of their duties as such directors or managers.

81. In the present case the Claimant was appointed to Neil in furtherance of his duties as an employee of the Defendant. I find the Defendant’s attempts in their submissions to distance themselves from Neil and the Claimant’s appointment as unrealistic and unattractive. The only reason the Claimant was appointed General Manager of Neil was because the Defendant’s group had invested in that company. If as the Defendant now seeks to contend“None of the facts [the Claimant] pleads reliance on have [sic] anything to do with his employment by [the Defendant]”it would render inexplicable the offer by an associated company of the Defendant to the Claimant to assist in dealing with the issues arising out of the liquidation of Neil.

82. The implied indemnity claim is inextricably entangled with the implied contract claim. If the Claimant establishes that there was an implied contract of employment post 11 August 2022, it seems to me equally realistic to argue that there was implied in that contract a right to indemnity from the Defendant. The nature and extent of indemnity will no doubt be the subject of extensive argument at trial and I can foresee that the Claimant will have to address certain issues raised inBenyatov.

83. I am not therefore willing to strike out the Indemnity Claim nor to grant the Defendant immediate judgment in respect of the claim.

THE CLAIMED CARRY DISPUTE

84. The Claimant pleads that the Defendant failed to make payments due to the Claimant from the ‘Carry Pool’ under the Carry Agreement. The Defendant annexed the Private Equity Carried Interest Incentive Plan dated 9 September 2015 (“Alleged Carry Plan”) to its Statement of Defence in the SCT Claim labelling it as the Carry Agreement. It is said that the Alleged Carry Plan is an unsigned version which does not specifically relate to the Claimant’s entitlements; therefore, the Defendant has wrongfully withheld the copy of the Carry Agreement and vested entitlements thereunder.

85. The Defendant submits that the pleaded case is deficient, and bound to fail, on a number of different levels:

(a) The Claimant’s entitlement to bonus payments under his contract of employment is wholly discretionary. There is no contractual right to payment, and certainly not one which the Claimant is able to assert crystallised prior to his termination. The Claimant has not provided any evidence that he has ever received a discretionary bonus in connection with his employment from the Defendant (nor does he plead that he has done so);

(b) The Carry Agreement is not referenced in or incorporated into the Claimant’s contract of employment. In light of the entire agreement clause set out in that contract, the Claimant fails to explain what (if any) contractual basis there is for his claimed entitlements;

(c) In any event, taken at its highest, and assuming that the Carry Agreement was: (i) incorporated into the Claimant’s employment contract with the Defendant; (ii) set out the terms on which the Claimant was entitled to discretionary bonus payments; and (iii) some entitlement to payment crystallised prior to the termination of his employment, the Claimant’s entitlements would be to Additional Payments as defined in Paragraph 3 of Schedule 1 to the Employment Law, namely:“any bonus, incentive, grant, commission, drawing, distribution or any other payment made by an Employer to an employee that is: (a) discretionary; (b) non-recurring; or (c) is calculated by reference to the profits of the Employer or an Affiliate”;

(d) Insofar as the Claimant claims in respect of the non-payment of Additional Payments accrued to him, he would need to do so pursuant to Article 18 of the Employment Law. The time limit for presenting any claim for failure to make such a payment is prescribed by Article 10 of the Employment Law i.e. six-months after the Claimant’s termination date on 11 August 2022. In circumstances where his claim was not presented until (at least) 21 August 2023, it is out of time;

(e) Without prejudice to that, the Carry Agreement is, itself, a document executed by Newland (“Newland Kuwait”), an asset management and investment firm based in Kuwait, the parent company of Newton DIFC. If what the Claimant asserts is a non-employment based contractual right to payment, he has brought his claim against the wrong entity.

86. The Claimant points out that the Defendant’s current position that it is not a party to the Carry Agreement is a volte face: at paragraph 26(a) of the Defendant’s Defence in the SCT proceedings dated 28 August 2023 the Defendant admitted that the parties entered into a Carry Agreement.

87. It does appear that the concession was well made. While the document was executed by Newland Kuwait, “Newland ” is defined in the agreement to include“its subsidiaries in any jurisdiction from time to time (including Newton)” and an “Eligible Employee” as “an individual … engaged in the management of any Fund or its portfolio or the provision of investment advice in respect thereof”. Whether the Claimant fell within the definition of Eligible Employee will have to be investigated on the evidence at trial.

88. The Defendant is careful to differentiate between the Carry Agreement being incorporated in the Claimant’s employment contract and it being a freestanding contract. In the former case the Defendant says that any payment would be a Discretionary Bonus within the meaning of Clause 6 of the Employment Contract and would fall within the definition of Additional Payments in Paragraph 3 of Schedule 1 to the Employment Law. As such it is a sum payable under Article 18 of the Employment Law and any claim in respect of the same must be made within 6 months of the Termination Date and therefore is statute barred.

89. The Claimant says that payments under the Carry Agreement are not discretionary. I was not taken though the mechanics of the Carry Agreement but on a bare reading of the agreement I accept that the point is more than merely arguable. The Claimant also says that the claim is for breach of contract, raised under the DIFC Contract Law (Law No. 6 of 2004). Consequently, the limitation period ought to be calculated as per Article 123(1) of the DIFC Contract Law, i.e., 6 years since the cause of action accrued. That submission also appears to me to enjoy a realistic prospect of success.

90. The riposte to that is that if the Claimant is making a free-standing breach of contract claim under the Carry Agreement the claim has been brought in the wrong forum given that the Carry Agreement states that:“This Plan is subject to Kuwaiti law and any dispute in relation thereto is to be decided exclusively by the Kuwaiti courts”. The Claimant’s reply is that the Defendant’s challenge to the jurisdiction of the DIFC Courts comes too late. I note that by RDC 53.14, within 7 days after a defendant is served with a claim form in respect of a matter which has been referred to the SCT, the defendant must file an acknowledgment of service under form 53/04 indicating its intention to (amongst other things) to make challenge to dispute the jurisdiction of the SCT by evidence. This was not done. Instead, the Defendant filed a defence to the claim and in relation to the Carry Agreement admitted that parties entered into the agreement but contended that any benefit under the Carry Agreement was conditional and denied that the Claimant had any entitlement to any benefit under the Carry Agreement in circumstances where none of the mandatory preconditions to entitlement has occurred. There was no suggestion that the claim had been brought in the wrong forum. The Claimant relies on the case ofAELF MSN 242 LLC v De Surinaamse Luchtvaart Maatschappij N.V. D.B.A. Surinam [2021] EWHC 3482 (Comm) [73]-[79] as an illustration of the operation of the doctrine of “common law waiver”.

91. While I have not heard full argument from the Defendant on the question of submission to the jurisdiction, my provisional view is that the Defendant would encounter some difficulty in arguing that it did not submit to the jurisdiction of the DIFC Courts by filing a defence in the SCT proceedings.

92. Even if that were not the case, when the proceedings were transferred to the CFI the Defendant, arguably, had a fresh opportunity to challenge the jurisdiction of the Court. The Defendant filed its acknowledgment of service on 11 January 2024. RDC 12.3 provides that a defendant who files an acknowledgment of service does not, by doing so, lose any right that the defendant may have to dispute the Court’s jurisdiction, but if the defendant does wish to challenge the Court's jurisdiction the defendant must make an application within 14 days after filing an acknowledgment of service supported by evidence (RDC 12.4). It did not do so. If the defendant files an acknowledgment of service and does not make an application disputing the Court’s jurisdiction within the period specified in Rule 12.4 the defendant is to be treated as having accepted that the Court has jurisdiction to try the claim (RDC 12.5(1)). If that rule required any judicial underpinning it is to be found inGFH Capital Limited v David Lawrence Haigh [2014] CFI 020 (7 February 2018) at paragraph [46]. Thus, even if the Defendant had not submitted to the jurisdiction of the DIFC Courts in relation to the Carry Agreement in the SCT proceedings, it appears (subject to further argument) that the Defendant lost the right to contest the Court’s jurisdiction in the current CFI proceedings.

93. All in all, I find that the Claimed Carry Dispute raises issues with a realistic prospect of success and it would be inappropriate to strike out the claim or give immediate judgment in respect of the claim in favour of the Defendant.

JUDGMENT IN DEFAULT

94. By her Order of 14 March 2024 Judicial Officer Maitha Alshehhi ordered that the Request for Default Judgment be stayed pending the determination of the Defendant’s application. Given that I have now determined the Defendant’s application the stay falls away.

95. The Claimant asserts there is at least one claim that has been left unaddressed by the Defendant, i.e., the Claimant’s alternative claim for damages. It is said that the Defendant fails to address this claim either in a defence or in the so-called Demurrer Application. The allegedly unaddressed claim is identified as the claim for negligence arising from the Defendant terminating the Claimant’s employment during the pendency of legal proceedings, preventing the Claimant from securing alternative employment.

96. This is simply wrong. The Defendant’s application is to dismiss the Claimant’s claim in its entirety and the claim is addressed at paragraphs 42(b), 45 and 46 of the Defendant’s Skeleton Argument. In any event, in accordance with paragraph 48 above I have considered whether the claim discloses reasonable grounds for bringing the claim. I have decided that it does not and should be struck out (paragraph 72 above). It follows that there is now no claim in respect of which judgment in default of defence could be entered.

97. The Claimant’s application for judgment in default of defence is therefore dismissed.

CONCLUSION

98. I make the following orders under both RDC 4.16 and RDC 24.1:

(a) Immediate judgment declaring that the Claimant’s employment under the contract dated 5 February 2014 was validly terminated on 11 August 2022 under Clause 16 of that contract;

(b) All references in the Particulars of Claim to an express contract of employment following the 11 August 2022 termination of employment shall be struck out on the basis that the pleaded claim that an express contract was concluded after 11 August 2022 discloses no reasonable grounds for bringing the claim. Further, the claim that there was an express contract of employment following the 11 August 2022 termination of employment enjoys no real prospect of succeeding and judgment be entered in favour of the Defendant on the issue;

(c) Both limbs of the Visa Claim shall be struck out on the grounds that the Particulars of Claim disclose no reasonable ground for bringing the claims. Further, neither limb of the Visa Claim enjoys a real prospect of succeeding and judgment be entered in favour of the Defendant on the issues;

(d) The claim that the Claimant had the benefit of an express indemnity relating to the period after 11 August 2022 shall be struck out on the grounds that the Particulars of Claim disclose no reasonable grounds for bringing the claim. Further, the claim that the Claimant had the benefit of an express indemnity relating to the period after 11 August 2022 enjoys no real prospect of succeeding and judgment be entered in favour of the Defendant on the issue;

(e) Save as aforesaid the Defendant’s application dated 12 March 2024 is dismissed.

99. Further, the stay upon the Claimant’s application dated 8 March 2024 is lifted and the application is dismissed.

100. Further, I make the following direction pursuant to RDC 24.19(1): the Defendant shall file its defence to the Claimant’s remaining claims within 14 days of the date of this Order.

COSTS

101. I have not heard submissions from the parties on costs and I therefore direct that they shall serve submissions in writing within 7 days of the date of this Order.

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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nancy v Narcissa [2024] DIFC CFI 098 (08 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DCFI_098.html Cite as: [2024] DIFC CFI 098, [2024] DIFC CFI 98

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CFI 098/2023 Nancy v Narcissa