November 10, 2016 court of first instance - Orders,Orders
Claim No: CFI-020-2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE ROGER GILES
BETWEEN
GFH CAPITAL LIMITED
and
DAVID LAWRENCE HAIGH
ORDER WITH REASONS OF JUSTICE ROGER GILES
UPON hearing Counsel for the Claimant at the hearing of Application Notice CFI-020-2014/3 dated 17 March 2015 for immediate judgment on 17 October 2016
AND UPON rendering judgment orally on 18 October 2016 and directing the Claimant to bring in draft orders
AND UPON reviewing the Claimant’s draft order dated 18 October 2016 and the submissions on indemnity costs dated 23 October 2016
IT IS HEREBY ORDERED THAT:
1.The Application for immediate judgment be allowed.
2. Judgment be entered for the Claimant in the amounts of AED 8,735,340, USD 50,000 and GBP 2,039,793.70, plus simple interest from 28 May 2014, accruing at the rate of EIBOR (three month rate) + 1 per cent.
3. Save where the subject of previous costs orders, which remain in force, the Defendant shall pay the Claimant’s costs of the proceedings on the indemnity basis, to be assessed if not agreed.
Issued by:
Mark Beer
Date of issue: 10 November 2016
At: 1pm
REASONS:
1.At the conclusion of my reasons delivered orally on 18 October 2016, I directed that the Claimant bring in draft orders. The Claimant had asked for indemnity costs, and I also sought submissions in support of that request.
2. The Court has a discretion as to costs (RDC 38.6). Practice Direction No 5 of 2014 records factors taken into consideration in determining, in the exercise of the discretion, whether costs should be assessed on the indemnity basis rather than the standard basis. They are –
“(i) circumstances where the facts of the case and/or the conduct of the paying party are/is such as to take the situation away from the norm; for example where the Court has found deliberate misconduct in breach of a direction of the Court or unreasonable conduct to a high degree in connection with the litigation; or
(ii) otherwise inappropriate conduct in its wider sense in relation to a paying party’s pre-litigation dealings with the receiving party, or in relation to the commencement or conduct of the litigation itself; or
(iii) where the Court considers the paying party’s conduct to be an abuse of process.”
3. These factors reflect the established approach under English law, see for example the summary by Gloster J in Euroption Strategic Fund Ltd v Skandinavska Enskilda Banken AB [2012] EWHC 749 (Comm) at [11] – [14]. In particular, where a claim is successfully brought on the basis of the defendant’s fraud, the fraudulent conduct need not of itself warrant indemnity costs but is something which may be taken into account.
4. I consider that indemnity costs should be ordered in the present case.
5. On my conclusions in the application for immediate judgment, the Defendant acted dishonestly in misappropriating money from the Claimant. But more than that, he sought to defend the claim against him with explanations which I considered to be lacking in credibility and a concoction. In the course of the proceedings the Defendant brought applications and appeals with marked paucity of success and diversionary and collateral proceedings, while not engaging with the application for immediate judgement made in March 2015. In my opinion, his dishonest conduct and his conduct in relation to the claim brought against him was inappropriate and unreasonable, to the level of taking the case out of the norm and warranting an order for costs on the indemnity basis.
6. I therefore make the following orders:
(1) The money judgment will carry interest at the post-judgment rate provided by DIFC Courts Practice Direction No. 1 of 2009 from the date of commencement of the proceedings.
(2) The application for immediate judgment be allowed.
(3) That the sums of AED 8,735,340, USD 50,000 and GBP 2,039,793.70 when received by the Defendant were held by him on trust for the Claimant.
(4) Judgment for the Claimant in the amounts of AED 8,735,340, USD 50,000 and GBP 2,039,793.70, plus simple interest from 28 May 2014, accruing at the rate 1 percent over the Emirates Inter bank Offered Rate (EIBOR) per annum.
(5) Save where the subject of previous costs orders, which remain in force, the Defendant shall to pay the Claimant’s costs of the proceedings on the indemnity basis, to be assessed if not agreed.
