November 10, 2016 court of first instance - Judgements
Claim No: CFI-020-2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE ROGER GILES
BETWEEN
GFH CAPITAL LIMITED
and
DAVID LAWRENCE HAIGH
Hearing: 17 October 2016
Counsel: Andrew Bodnar instructed by Bryan Cave for the Claimant
No representative appeared on the Defendant’s behalf
Judgment: 18 October 2016
JUDGMENT OF JUSTICE ROGER GILES
Transcribed from the oral judgment delivered on 18 October 2016, revised and approved by the Judge.
1.The Claimant commenced these proceedings on 26 May 2014. The brief description of its claim in the Claim Form is –
“The Defendant misappropriated funds from the Claimant in a sum with a value approximating USD 5 million by creating or procuring the creation of false invoices and procuring payment of those false invoices from funds belonging to the Claimant. These actions were in breach of contract and/or in breach of fiduciary duties owed by the Defendant to the Claimant.”
2. Particulars of Claim were filed on 26 May 2014. A Defence was filed on 22 December 2014, and amended Particulars of Claim were filed on 2 February 2015. An Amended Defence has not been filed.
3. On 17 March 2015 the Claimant filed an application for immediate judgment. There was delay in bringing the application on for hearing. The Defendant was imprisoned from shortly before the proceedings were commenced until March this year. A freezing order was made against the Defendant, and there were a series of applications for release of funds and some subsequent appeals. There were a number of other applications by the Defendant.
4. Appeals with any bearing on bringing the application to a hearing were dismissed in early September, essentially for non-prosecution. The application for immediate judgment was then listed for 17 and 18 October 2016.
5. The Defendant was notified of the dates fixed for the hearing, but did not appear and was not represented. The third witness statement of Mr Jinesh Patel, the principal material on which the Claimant relies for the application, was provided to him in March 2015 when he was represented, and other materials on which the Claimant relies were made available thereafter. In May 2016 funds were released for preparing for and dealing with the application. The hearing bundle was recently served on a firm of solicitors otherwise representing the Defendant, and it was ordered that the service be deemed good service. Nothing has been filed by the Defendant in response to the application.
6. I am satisfied that the Defendant has had due notice of the application and had the opportunity to respond to it, and that I can properly hear and determine the application in his absence.
Applications for immediate judgement
7. By Rule 24.1 of the Rules of the DIFC Courts (“RDC”), immediate judgment may be given by the Court if –
“(1) it considers that:
(a) [the] claimant has no real prospect of succeeding on the claim or issue; or
(b) [the] 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.”
8. An application for immediate judgment may be based on a point of law, the evidence of which can reasonably be expected to be available at trial or the lack of it, or a combination of these (RDC 24.2).
9. The principles on which the Court acts are well established, and were recently restated by Simon J in JSC VTB Bank v Skurikhin [2014] EWHC 271 at [15] –
“The principles which apply have been set out in many cases, are summarised in the editorial comment in the White Book Part 1 at 24.2.3 and have been stated by Lewison J in Easyair Limited v. Opal Telecom Limited [2009] EWHC 339 (Ch) at [15], approved subsequently (among others) by Etherton LJ in A C Ward & Son v. Caitlin (Five) Limited [2009] EWCA Civ 1098 at [24]. For the purposes of the present application it is sufficient to enumerate 10 points.
(1) The Court must consider whether the defendant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success, see Swain v. Hillman [2001] 2 All ER 91, 92. A claim is ‘fanciful’ if it is entirely without substance, see Lord Hope in Three Rivers District Council v Bank of England [2001] UKHL 16 at [95).
(2) A ‘realistic’ prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v. Patel [2003] EWCA Civ 472.
(3) The court must avoid conducting a ‘mini-trial’ without disclosure and oral evidence: Swain v Hillman (above) at p.95. As Lord Hope observed in the Three Rivers case, the object of the rule is to deal with cases that are not fit for trial at all.
(4) This does not mean that the Court must take everything that a party says in his witness statement at face value and without analysis. In some cases it may be clear that there is no real substance in factual assertions which are made, particularly if they are contradicted by contemporaneous documents, see ED & F Man Liquid Products v. Patel (above) at [10]. Contemporary activity or lack of activity may similarly cast doubt on the substance of factual assertions.
(5) However, the Court should avoid being drawn into an attempt to resolve those conflicts of fact which are normally resolved by a trial process, see Doncaster Pharmaceuticals Group Ltd v. Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661, Mummery LJ at [17].
(6) 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 the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No. 5) [2001] EWCA Civ 550, [19].
(7) Allegations of fraud may pose particular problems in summary disposal, since they often depend, not simply on facts, but inferences which can properly be drawn from the relevant facts, the surrounding circumstances and a view of the state of mind of the participants, see for example JD Wetherspoon v Harris [2013] EWHC 1088 , Sir Terence Etherton Ch at [14 ].
(8) …
(9) The overall burden of proof remains on the claimant, …to establish, if it can, the negative proposition that the defendant has no real prospect of success (in the sense mentioned above) and that there is no other reason for a trial, see Henderson J in Apovodedo v Collins [2008] EWHC 775 (Ch), at [32].
(10) So far as Part 24.2(b) is concerned, there will be a compelling reason for trial where ‘there are circumstances that ought to be investigated’, see Miles v Bull [1969] 1 QB 258 at 266A. In that case Megarry J was satisfied that there were reasons for scrutinising what appeared on its face to be a legitimate transaction; see also Global Marine Drillships Limited v Landmark Solicitors LLP [2011] EWHC 2685 (Ch), Henderson J at [55]-[56].”
10. In Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661 (“Doncaster”), cited in this passage, Mummery LJ, with whom Longmore LJ and Lewison J agreed, cautioned (at [17]) that a court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of 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 the trial judge and so affect the outcome of the case.
11. In the present case there is the further consideration that the Claimant’s case is one of significant dishonesty on the Defendant’s part. That brings two matters.
12. First, while the standard of proof for the case remains the balance of probabilities, the seriousness of the allegations is a factor in deciding whether proof to that standard has been achieved. As was said in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586, the court will have in mind that the more serious the allegation the less likely it is to have occurred, and –
“…the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed – Thomas J. expressed this neatly in In re Dellow’s Will Trusts [1964] 1 W.L.R. 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’”
13. Secondly, in an application for immediate judgment the prospect of a finding of dishonesty can move the court to permit the proceedings to go to trial, notwithstanding the apparent strength of the claim and unlikelihood of a successful defence. But it depends on the circumstances. Immediate judgment may still be given, and has been given, in cases alleging dishonesty. As Sir Igor Judge PQBD said in Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [58], one such case, the court may do so if satisfied that there is no real prospect of a successful defence, although –
“…it is…a factor constantly to be borne in mind, if and when…the reason for concluding summary judgment is appropriate is consequent on a disputed finding, adverse to the integrity of the unsuccessful party.”
14. The Defence included (paragraph 15) that this Court did not have jurisdiction to determine the claim. No application challenging jurisdiction has been made, and this appears to have been abandoned. For completeness, I am satisfied that there is jurisdiction pursuant to Article 5(A)(1)(a) of the Judicial Authority Law, DIFC Law No. 12 of 2004, the Claimant being a DIFC Establishment. There may well be other grounds for jurisdiction, but that is sufficient.
The Defendant’s admissions and explanations
15. The Claimant is a company incorporated in the DIFC, carrying on the business of financial services, investment and wealth management. The Defendant was its Deputy Chief Executive from January 2008 until 12 or 14 March 2014. He admitted in his Defence that his contract of employment included express or implied terms that he would act honestly towards and in the best interest of the Claimant, and that he owed like fiduciary duties to it. It is not necessary to elaborate on these terms or duties: the misappropriation alleged by the Claimant would fall within them.
16. The misappropriation alleged can conveniently be considered in four groups of payments according to the purported payees, namely Millnet Limited (“Millnet”), the GPW Group (“GPW”), Lincoln Associates (“Lincoln”) and Mr David Murray (“Murray”). It is necessary, however, to consider the entire pattern of conduct, and this division is only for convenient exposition. On the Claimant’s case the GPW, Lincoln and Murray payments were on or justified by false invoices; the Millnet payments were by dishonest directions to pay.
17. It should be said at the outset that the Defendant admitted operating all the bank accounts into which the GPW, Lincoln and Murray money went, and admitted receipt of all that money and of the Millnet money as well. To clarify as to receipt of the money, the admissions were as to money paid into the accounts as alleged in the original Particulars of Claim. The amended Particulars of Claim added a number of invoices and payments to the same accounts, and receipt of the additional money must be in the same position.
18. The Defendant’s pleaded response, again to the original Particulars of Claim but necessarily extending to the additional invoices and payments, was that he did not create or cause to be created the false invoices. Save as to the Millnet money, however, he said that the payments were made to his account with his knowledge and the money received into the accounts was payment to him for expenses incurred in the course of his employment by the Claimant, for “commission/referral fees” due to him, or as salary for his role as Managing Director of a football club owned by the Claimant and expenses incurred in the course of that employment. The Millnet money was in a slightly different position. His pleaded response was that the payments were made to a friend’s bank account by genuine mistake, but in part for expenses incurred in the course of his employment by the Claimant.
19. More generally as to the false invoices, the Defendant said in paragraph 14 of the Defence –
“The Claimant engaged in regular practices of false invoicing and false accounting from late 2012 to 2014. The reason for doing so was in order to hide from the Bahrain Board [the Board of the Claimant’s parent company] and the CBB [the Central Bank of Bahrain] their involvement in specific projects, the source of their funding, and non-legitimate payments being made by the Claimant to various third parties. Further, this practice was designed to manipulate quarterly and other financial results of the listed parent company, GFH BSC. For the avoidance of doubt, the Defendant denies having ever created invoices, or caused invoices to be created, as alleged in the Particulars of Claim.”
The Millnet Money
20. Millnet provided services to the Claimant. It submitted invoices giving bank details for a Lloyds Bank branch. But, as I have mentioned, the Claimant’s claim in this instance did not involve false invoices.
21. Three emails were sent from the Defendant’s email box to the Claimant’s London solicitors, who held money on its behalf. They purported to have been sent by the Defendant.
22. The first email, on 26 July 2013, asked that GBP 47,600 be paid to a bank account described as –
“Millnet Limited
Natwest Bank PLC
153 Putney High Street
Putney
SW15 1RX
Sort Code: 60-17-11
Account: xxxxxx12
Reference / Project Rafael / Project Juliana Data room fees”
Another email a short time later corrected the amount to “57k”.
23. The second and third emails, on 1 August and 6 September 2013, asked that GBP 41,600 and GBP 38,200 respectively be paid to the same bank account, with slightly different references.
24. The solicitors paid the money as requested. In fact, the Natwest account was not a Millnet account, but an account in the name of a friend of the Defendant, Mr Rafael Utiyama. The Defendant nonetheless received the money by transfer from Mr Utiyama. He said in his Defence that the emails were drafted by staff on his behalf, that they were a genuine mistake, and that the GBP 57,000 was payment for expenses in relation to an apartment in London incurred in the course of his employment and the other two amounts would have been picked up in a reconciliation process for expenses within the Claimant.
25. This explanation is scarcely credible. It is odd that staff would draft emails sent from the Defendant’s email box, but the difficulty goes much further. Why would staff mistakenly insert a Natwest account of the Defendant’s friend in all three emails, stating it as a Millnet account and giving details as if in payment for Millnet’s services? The asserted practice of false invoicing cannot apply, nor that of false accounting if (as the Defendant said) it was a genuine mistake. If it was a genuine mistake, how can it now be ascribed in part to expenses? Further, and putting aside the first payment said to have been for expenses, the other payments would not have been thrown up in a reconciliation process for expenses. It would have been necessary for the Defendant to volunteer the mistake, which plainly he did not do.
The GPW Money
26. Companies in the GPW group provided services to the Claimant, invoicing it with bank details of accounts with HSBC. Fourteen other invoices were created, purportedly from GPW but in fact bogus, bearing dates 27 December 2012 to 30 November 2013 for a total sum of GBP 847,467.22, each with bank details of an account with Cooperative Bank in Manchester stated to be in the name of GPW & Co Limited. The Cooperative Bank account was in fact an account in the name of and operated by the Defendant.
27. The invoices were approved for payment within the Claimant, some with a stamp bearing the Defendant’s name, one bearing his apparent signature, and some without endorsement. Over the period 20 August 2013 to 18 December 2013 a total sum of GBP 848,320.70 was paid by the Claimant into the Cooperative Bank account. The money was paid in two ways.
28. On dates in August to November 2013, emails from the Defendant requested the London solicitors to pay sums from money held by them in a total amount of GBP 480,569.23. The first email for two of the invoiced amounts gave the details of the Cooperative Bank account, including that it was an account in the name of GPW Limited. The solicitors asked for invoices, and copies of the two bogus invoices dated in February and July 2013 were sent by the Defendant. Another email attached a copy of a third bogus invoice and asked for payment. Another email asked for payment of a further invoiced amount, giving the same details of the Cooperative Bank, and when the solicitors asked for invoices the Defendant sent a copy of one of the bogus invoices. The last payment requests were by emails attaching copies of the bogus invoices. The solicitors paid the money as requested.
29. The Defendant admitted receiving this money. (For complete accuracy, the Defence referred to five amounts, the sixth being added in the amended Particulars of Claim. The sixth amount was plainly also received). He said in the Defence that the amounts were payments for “commission/referral fees” owed to him. The payment of “commission/referral fees” rested upon what the Defendant alleged was an agreement between the Claimant and his company Seven Dash Limited (“Seven Dash”) entitling it to fees for referral of investors to the Claimant, it being further alleged that in or around November 2013 Seven Dash had assigned its right to the fees to the Defendant.
30. The existence of this agreement was disputed and doubtful, but even if it existed the Defendant’s explanation for the payments suffers in its credibility. It is not an attractive explanation, involving as it must that the Deputy Chief Executive of the Defendant knowingly used false invoices to cause the money to be paid, himself complicit in what he asserted was a practice of false invoicing to deceive the parent company and the Bahrain regulatory authorities. Nor does it attract belief. If the Defendant was entitled to referral fees, why the elaborate use of false invoices? Why pay relatively small amounts in dribs and drabs when the Defendant alleged that his entitlement was to over GBP 4 million? It does not make sense. The Defendant’s own use of the false invoices is particularly telling.
31. The remaining GPW money was paid directly by the Claimant to the Cooperative Bank account, pursuant to payment authorisations most of which bore the apparent signature of the Defendant. The Defence did not proffer a reason for its payment into his account.
The Lincoln Money
32. Lincoln also provided services to the Claimant. Its invoices for the services gave details of a bank account with an HSBC branch, including an account number. Thirty-one further invoices were created bearing dates from 27 December 2012 to 31 December 2013, purportedly from Lincoln but again bogus. They were for total sums of USD 50,000 and AED 8,735,344. They bore bank details of an account with another HSBC branch in the name of Lincoln giving two account numbers different from those in the genuine invoices. In fact, these accounts were in the name of and operated by the Defendant.
33. Each of the bogus invoices was approved for payment with a stamp bearing the Defendant’s name and in some cases also bearing his apparent signature. Over the period 8 June 2013 to 13 January 2014 a total of USD 50,000 and AED 8,735,340 was paid by the Claimant into the two bank accounts. The payments were usually of a single invoiced amount and sometimes of a combined amount, and were not uniformly proximate to the invoice date.
34. The Defendant admitted receiving the payments alleged in the original Particulars of Claim, and that must extend to the like payments added in the amended Particulars of Claim. He said in the Defence that the earlier payments were for expenses incurred during his employment and the later payments were for “commission/referral fees”. It may be assumed that he would explain the payments added in the Amended Particulars of Claim in a similar manner.
35. Again, this is scarcely credible. The Defendant denied that he created or caused to be created the false invoices, and alleged that someone else within the Claimant must have used his stamp or forged his signature on the invoices. He denied that he authorised the payments. Yet he received and kept the money, and gave specific reasons for each of the payments in the original Particulars of Claim. Quite apart from the all but terminal doubt cast upon his asserted ignorance by his use of the bogus invoices in relation to the GPW payments, there would have had to have been ongoing conduct by others within the Claimant, unknown to him, in order to deliver the benefits of expenses and commissions by false means; yet he knew what he received and why. Again, why the elaborate use of false invoices to pay fees to which he was entitled in dribs and drabs? And it may be added that from the third witness statement of Mr Patel the expenses which the Defendant asserts were satisfied by Millnet and Lincoln money were far in excess of any likely entitlement to expenses.
The Murray Money
36. Murray is a member of Fountain Court Chambers. He provided legal services to the Claimant, for which fee notes were provided. Thirty-three other fee notes were created, purportedly from Fountain Court Chambers on behalf of Murray and addressed to the Defendant. They were bogus fee notes. Their dates ranged from 24 December 2012 to 24 December 2013 and they totalled GBP 1,410,773.
37. The fee notes were approved for payment by a stamp and/or apparent signature of the Defendant. Payment to a bank account in the name of Murray with the Cooperative Bank in London, the account stated on the bogus fee notes, was authorised by the Defendant’s apparent signature. Over the period 17 January 2013 to 22 December 2013 a total of GBP 1,054,673 was paid to the Cooperative Bank account. There was not always correlation of amounts of the payments with the amounts of the fee notes, but each was purportedly a payment to Murray at his Cooperative Bank account and most could be related to a fee note. In fact, the account was in the name of and operated by the Defendant.
38. The Defendant denied creating or causing the creation of the bogus fee notes, but admitted receiving most of the money paid on those fee notes as listed in the original Particulars of Claim. A small number of fee notes were added in the Amended Particulars of Claim, and they must be in the same position. The Defendant said in the Defence that the payments “represent salary for his role as Managing Director of LUFC and expense payments incurred during the course of that employment”.
39. The Claimant owned the Leeds United Football Club (“the Club”). A letter agreement dated 28 August 2013 recorded the Defendant’s employment by the Club from 20 November 2012 as Non-Executive Director and from 1 July 2013 as Executive Director and Managing Director. His salary was 500 Bahrain Dinar per day for each day in which he carried out his duties in the UK, subject to review, and he was entitled to reimbursement of expenses. The Defendant’s salary as Managing Director of the Club was payable by the Club, and he did not receive a separate salary from the Claimant referable to his Club employment.
40. The bulk of the Murray money was paid after 1 August 2013, some GBP 977,478. Even if the Claimant were responsible for payment of salary and expenses that is well in excess of any likely entitlement to salary and expenses for the period. But the Claimant was not responsible for that payment. As before, on the Defendant’s case the bogus fee notes were created by someone else within the Claimant. It is not clear whether he says that payment was authorised by someone else, the denial in the Defence being of authorisation knowing of falsity, but he identified precise reasons for receiving and keeping the money and this cannot reasonably stand with someone else’s creation, unknown to him, of the false fee notes. Once more, the Defendant’s explanation is scarcely credible.
Immediate Judgment
41. I have referred to apparent signatures of the Defendant. A handwriting expert cited in his Defence concluded in a preliminary report that there had been some transposition of the Defendant’s signature from other documents. The report accepted that there may have been some genuine signatures of the Defendant, but the expert was not in a position to be conclusive beyond what I have mentioned. The report was not clear as to the particular documents concerned. The Claimant did not have expert handwriting evidence. It was content not to contend that the Defendant had himself signed approvals or authorisations: but, it said, it remained that the Defendant procured those events. I do not think the expert’s report is of great weight in deciding whether there should be immediate judgment.
42. The Defendant admits or, so far as he does not do so I find, that he received the Millnet, GPW, Lincoln and Murray money. The money was paid to his bank accounts under false representations that they were the accounts of those purported payees.
43. It is necessary to consider all the conduct in the preceding account together, as each part may shed light on the other and the combination may have a force which the individual elements do not have. The payment of GPW money by the solicitors was by overt use by the Defendant of the false invoices, which tells strongly against any asserted ignorance of falsification of invoices or fee notes containing the false representations, and for the reasons earlier set out the Defendant’s explanations for the payments lack credibility. The evolution of his Defence as recounted in Mr Patel’s witness statement provides some additional support for considering the explanations as a concoction. Having well in mind that it involves a finding of dishonesty on the Defendant’s part, I am satisfied on the materials before me that he has no real prospect of successfully defending the claim.
44. Particularly when the Defendant has not participated in the hearing, I must consider whether other evidence may be available at trial which would put matters in a different light; or, as was indicated by Mummery LJ in Doncaster, whether a fuller investigation of the facts might alter the evidence and the outcome of the case.
45. The Claimant’s evidence has been full and detailed. It does not seem to me that the Defendant’s position is at all likely to be better at a trial. He received the payments in circumstances strongly telling of misappropriation, and his explanations’ lack of credibility is such that they are not likely to be better made out or received at trial. While I would be of this view in any event, I come to it more comfortably when the Defendant has not by evidence or submissions enlarged on or sought to support his position in this application. For similar reasons, I do not think the application for immediate judgment should be refused because my reasons involved a finding of dishonesty.
46. I do not think there is any other compelling reason why the case should be disposed of at trial. On the contrary, the Claimant has been delayed in obtaining a hearing of the application and, having concluded that the Defendant has no reasonable prospect of successfully defending its claim, I should give effect to that conclusion by ordering immediate judgment.
Relief
47. In the Claim Form and the Amended Particulars of Claim the Claimant sought wider relief, but confined its claim in this application to a declaration that the Millnet, GPW, Lincoln and Murray money was held on trust for it and judgment for the money. It is entitled to that relief.
48. I direct that the Claimant bring in draft orders.
Issued by:
Mark Beer
Date of Issue: 10 November 2016
At: 1pm
