February 07, 2018 court of first instance - Orders
Claim No: CFI-020-2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
GFH CAPITAL LIMITED
and
DAVID LAWRENCE HAIGH
REASONS FOR THE ORDERS OF JUSTICE SIR JEREMY COOKE ISSUED 11 JANUARY 2018
UPON the Orders of Justice Sir Jeremy Cooke dated 11 January 2018;
AND UPON reviewing the extempore reasons for the Orders delivered orally by Justice Sir Jeremy Cooke during a hearing of the case on 13 and 14 December 2017;
REASONING
Adjournment (2:04pm, 13 December 2017)
1.I have first to deal with an application made by the defendant, to whom I shall refer as Mr Haigh, for an adjournment of the hearing, which is set for today and tomorrow. The application was made in the context of an email of 12 December, that is, yesterday. As has been his recent practice, Mr Haigh seeks to make applications to this court simply by sending emails rather than filing appropriate forms with the court and paying the appropriate application fee.
2. The position, very broadly, is this: Mr Haigh has been acting in person in this matter since the end of August 2017, when he served a notice so stating and referring to the fact that Keystone Law no longer acted for him. Prior to that time he had instructed a series of different lawyers in DIFC in Dubai, that is onshore Dubai, and in the United Kingdom. At one time or another he has instructed Stephenson Harwood, Stephenson Harwood Middle East, Olswang, Keystone Law, Kaim Todner, and local lawyers in onshore Dubai in reference to the criminal proceedings there. Equally, leading and junior counsel appear to have been instructed in the United Kingdom in the context of a private prosecution which Mr Haigh sought to institute in the context of judicial review, and in the context of a freezing injunction which has been made in the courts of England and Wales in support of the claim made in this jurisdiction.
3. Mr Haigh is, in fact, a qualified solicitor in England and Wales. The documents which have been submitted to this court or sent to the claimants show that he has legal knowledge but there are, equally, signs of legal assistance from others with much more specialised knowledge than he apparently possesses.
4. I am driven to the conclusion, on all the material that has been made available to this court, that Mr Haigh has no real difficulty in appointing lawyers to act for him where he needs to do so or where he feels he has need to do so.
5. The Court of Appeal has found that Mr Haigh has in the past been guilty of what it termed as, "Gaming the system" in making use of lawyers to make representations to the court but not allowing them to go on record as being formally instructed by him. He also has a practice of telling the court that he has not received documents which have been sent to his email address, and of using almost any means to contest service of documents on him, whether by courier or email. I need do no more than refer to the Court of Appeal judgment of 18 September 2016 and the reasons there given in this context.
6. Under RDC 9.15 a party must give an address for service within the DIFC or Dubai but a physical address for service in Dubai or the UAE is not required if an email address is given. On 29 August 2017 on giving notice to the Court of Appeal that he was acting in person in place of Keystone Law, Mr Haigh gave a physical address in Cornwall in the United Kingdom and an email address, dlhpbl@gmail.com. He has since corresponded with the court by a different email address over a significant period of time and this includes the most recent emails from dhaiglegal@gmail.com.
7. The court is entirely satisfied that Mr Haigh receives emails at the address given and that service of documents by this means is entirely appropriate in the absence of a physical address in the DIFC, Dubai, or the UAE for such service.
8. Mr Haigh also has a tendency to seek adjournments of hearings at the last moment, either on the basis of not receiving the documents sent to him or on the basis of medical treatments that he says he then needs. This court has ordered, as Mr Haigh well knows, that any application to the court for a variation of its scheduling of orders on medical grounds is to be supported by a report, including a statement of truth, signed by a medical practitioner registered in the United Kingdom.
9. I can deal briefly, or I hope relatively briefly, with the history of these proceedings, which has significance in relation to the latest application. This action has a tortuous history, being commenced on 22 May 2014. After judgment was entered by order and reasoned judgment of Roger Giles J on 10 November 2016, the Court of Appeal set aside that judgment on 14 September this year by an order dated 24 September, with reasons given on 22 November of this year.
10. By that judgment and order of the Court of Appeal this matter was referred again to the first instance court for an expedited trial to be listed. Mr Haigh was required to file and serve any amended defence by no later than 20 September 2017 and provision was made for a CMC to be listed at the earliest possible date following the filing of any such amended defence with a view to giving directions for an early trial.
11. It is not necessary for me to explore what I have described as the tortuous history prior to that hearing before the Court of Appeal but, in its written reasons, the court drew attention at paragraph 4 to various unpalatable aspects of the position taken by Mr Haigh as indicated previously in earlier orders delivered on 2 March, 14 March, 16 May and 24 September 2017 as well as in various letters, to which reference can be made if necessary.
12. As set out in paragraphs 6 and 7 of the reasons of the Court of Appeal, the court considered that there were special circumstances constituted by the financial and physical condition of Mr Haigh which did, or could have, affected his ability comprehensively to rebut the serious charges of fraud and dishonesty made against him. The court consequently decided to allow him a further final opportunity to adduce oral evidence in his defence before any final judgment could be entered against him.
13. On or about 28 September, Mr Haigh submitted to the courts by email a document headed, "Amended defence and counterclaim". He had not been given permission by the court to pursue a counterclaim at all, nor had he been given permission to file a defence in any form that he chose. Furthermore, the document included additional parties, namely Mr Alrayes, Mr Patel and the UAE.
14. On 5 October this year Mr Haigh sent an email to the court with an application notice seeking the joinder of Mr Alrayes, Mr Patel, the UAE and the DIFC as parties to this action. In a witness statement also sent to the court, which was dated 26 September 2017, he requested that he be able to attend public hearings of his case by video link provided by the court at a convenient location, that he could use frozen funds to pay for legal representation and that reasonable adjustments should be made to take account of his medical condition.
15. In that witness statement he stated that he did not observe the jurisdiction of the court because the onshore Dubai Court had issued a civil award and these proceedings in the DIFC Courts were thus an abuse of process.
16. He further relied on reports from Professor Hakeem of 21 June 2016 and a letter from Dr Miller Colbar of 8 September 2017 in relation to his medical condition. He was, however, fully able to participate in the Court of Appeal hearing on 13 and 14 September 2017 by telephone, having refused to participate by video link, a refusal which is perpetuated as of the current date, at least so far as his communications with the registry are concerned.
17. Pursuant to the orders of the Court of Appeal, I gave directions on paper on 11 October 2017 for service of the application dated 5 October 2017 by 12 October, and for evidence to be filed by the parties in respect of that application.
18. In accordance with the terms of RDC 21.8, Mr Haigh needs the permission of the court to bring a counterclaim as it was not filed with his original defence on 22 September 2014, which was apparently prepared by leading counsel at a time when he was also represented by Stephenson Harwood. In accordance with RDC 21.16-24:
"A defendant may file and serve a notice making an additional claim against a non-party only with the permission of the court. By RDC 21.20, such an application for permission may be made without notice unless the court otherwise directs."
19. I did so direct. I decided that the application should be made on notice because it was obvious to me, on consideration of the documents supplied, that the counterclaim was beyond the scope of the order made by the Court of Appeal and potentially raised jurisdictional issues in relation to both the UAE and the DIFC, the latter of whom, although not specifically mentioned as a defendant in the document, was to be joined as a party if the 5 October application was to be pursued.
20. I ordered that the application be heard at a CMC to be fixed for either 20 or 22 November 2017. Despite corresponding with Mr Haigh at the email address which he currently uses, he maintained on 13 October that he had not received a copy of the order of 11 October, so I extended the time for compliance by one week in a revised order of 17 October, with the parties to indicate their preference for the hearing date on 20 or 22 November by 19 October.
21. Despite immediate communication with Mr Haigh notifying him of the order, it was on 16 October that he maintained that he did not receive it and could not comply with its terms. On 23 October he stated in an email that he could not make 20 or 22 November, was unwell and was planning to go to hospital in the last week of November, not, noticeably, 20 or 22 November, and in the first two weeks of December.
22. On 24 October he stated in an email that he was arranging hearings in the United Kingdom for the release of funds so he could appoint lawyers in both DIFC and the UK and he asked for a stay of proceedings in that email until funds were released.
23. In the light of these responses, the court fixed on 20 November for the CMC since it was obvious that he did not intend to attend and there was no good reason why he could not attend, if he so wished, by Skype video link or telephone on the date in question.
24. In an email of 16 November, Mr Haigh then stated that he would be in hospital on 19 November for three weeks, a fact not previously communicated to the court as such, and which has turned out not to be true in any event, as appears from a more recent email. The court also has the benefit of letters from him of 14 and 19 November and an email of 19 November wherein he sought an adjournment of the CMC and sought to appeal the decision to hold a CMC set out in the orders of 11 and 17 October. In a further email of the same day he applied, without making any formal application or paying any filing fee, to dismiss this action for gross abuse of process and lack of jurisdiction, both of which points are matters raised in his draft amended defence and counterclaim.
25. A witness statement dated 15 November 2017 was also sent in support. On 17 November 2017, via email, to which reference can be made, the court informed Mr Haigh that it would not adjourn the CMC and informed him that he could still make submissions to the court in writing, which he duly did via the letters and email to which I have just referred. It also said that he could state dates to be avoided for future hearings.
26. On 20 November, in those circumstances, I heard the CMC and gave directions in the absence of any appearance by Mr Haigh, whether by video or telephone. As already indicated, he has told the court that he will not appear on any video link or Skype made available by the DIFC because he fears that authorities or others in Dubai will thereby gain access to his computer.
27. I refused the application to adjourn the CMC and, if I recall correctly, permission to appeal my case management orders of 11 and 17 October 2017. The transcript will show whether that was the case but, if I did not refuse permission then to appeal, I do so now. I merely gave directions on 20 November and gave liberty to Mr Haigh to apply within seven days because of his absence while setting a hearing for 13 and 14 December to deal with the application of Mr Haigh of 5 October 2017, and the communications and emails which the court was effectively prepared to treat as applications, though not formally made nor fees paid.
28. In the case management conference order the following appears:
"1. It is ordered that the submission of the document headed, 'Amended defence and counterclaim' be treated as an application by the defendant for permission to amend his defence dated 22 December 2014, pursuant to RDIFC Rule 18.3,
2. The submission of the witness statement dated 26 September 2017 by the defendant, be treated as an application for permission to add parties for the purposes of a counterclaim pursuant to RDIFC Rule 21.11. 3. The fees for filing of the applications described in paragraphs 1 and 2 above be postponed. For the avoidance of doubt, nothing in this paragraph constitutes any precedent as to the postponement of any other fees payable by the defendant, either in connection with such amendments to its statement of case as may be allowed or otherwise.
…
6. The question of service of the joint application on the federal government of the UAE and/or the Dubai International Financial Centre Authority be reserved to the hearing on 13 and 14 December 2017 provided for herein.
…
11. The amendment application and the joinder application shall be listed for hearing for two days on 13 and 14 December 2017. So far as the defendant's application to join the federal government of the UAE and/or the Dubai International Financial Centre Authority are concerned, the court should only consider the question of jurisdiction to hear such counterclaim as the defendant applies to bring."
29. I made provision in that order for the service of evidence and skeletons for this hearing and provided also once again that Mr Haigh could attend by video or telephone. Further directions were given leading to a trial on 1 July 2018 with a trial estimate of five days.
30. Mr Haigh was given the opportunity by the liberty to apply provision in paragraph 33 to come back to the court within seven days in relation to the dates given and the orders made, but did not do so. Despite notification to his email address of the order and reminders of the date when any evidence was due from him as and when that date passed, he did nothing in compliance at all.
31. However, on 11 December he stated that he was unable to accept service of documents by electronic means alone. In an email to the court expressing extreme concerns about the behaviour of the Registry, he stated:
"I am unaware of any deadlines or hearings as stated in the letter, nor have I been served any documents in relation thereto ... as the Registry is aware, I have been in hospital and was in London this week for London hearings. I am [which I suspect is a typo for 'have'] another hearing re the UAE on 12th-14. (1) countless emails and letters I have sent to the Registry have been unanswered, (2) my appeal against the CMC date was unanswered and ignored, (3) my application for abuse of process and lack of jurisdiction was ignored (4) my countless emails stating I could not access, and then when I could access, could not submit documents online have been ignored, (5) my email stating I was not served various documents by the claimant, such as a skeleton of the CMC, have been ignored and the CMC continued with."
32. Those complaints are totally unfounded. The Registry has responded to his emails and letters. The questions raised by his various "applications" in his various emails are to be dealt with today, insofar as not already dealt with. He has received the documents which have been sent by email since there is no reason whatsoever that he can put forward as to why they should have not been received, having been sent on more than one occasion. There is no basis for him suggesting that he could not access or submit documents online; this court has checked its system to ensure that is the case.
33. As already indicated, if I have not done so already, I refuse permission to appeal from my case management decisions of 11 and 17 October to fix the CMC for 20 November. Mr Haigh would have required permission to appeal against those orders and did not seek it, but I have treated it, or will now treat it, as an application for such permission, whilst refusing it.
34. In the hearing on 20 November I gave directions only, with liberty to Mr Haigh to apply within seven days. He made no such application and no purpose could possibly be served by any review of such case management decisions and any further attempt at delay by Mr Haigh is not to be countenanced.
35. As might now be thought inevitable, by an email yesterday Mr Haigh sought an adjournment of today's hearing on the basis that he was unavailable. In that email he asked that the court treat it as an application to adjourn the hearing set for 13 December without his consent. He stated that he could still not file the documents on e-Registry and the registry had failed to respond. He went on:
"You were made aware that I am not available on these dates. I am at the United Nations pre-session on the UAE giving evidence in the UAE's torture and rape of me and indeed your own court's failure to prevent that. This has been planned and arranged for months. It is astonishing that, with prior knowledge of this prior to the CMC, refusing to adjourn the CMC as I was in hospital, you then list a hearing for the exact dates of the UN periodic preview of the UAE. Notwithstanding this, you were further aware I was in hospital and then late last week in court and preparing for the same in the UK. It is simply impossible to keep up to a CMC timetable set down on input without my consent, as a litigant in person, unwell, whilst at the same time running litigations in various jurisdictions. No regard has been given to this. This is yet another hearing you are holding and, it would appear, ensuring that I cannot attend. The irony that you set hearings to decide whether I can add the UAE to a party for its torture of me whilst I am at the UN giving evidence of that torture is astonishing. It appears this court has simply given up on attempting to be just and equitable. You are in breach of the UN Declaration of Human Rights."
36. That email in itself is not untypical of the type of email that Mr Haigh is wont to send to this court. It is self-evident that Mr Haigh is perfectly able to conduct proceedings, as appears from his actions in the UK last week and his participation in the Court of Appeal hearing here in September. His own emails refer to the hearing in the UK and at no time prior to the email of 12 December was I aware, and so far as I am aware, was this court in any way aware, of the fact that he was planning to attend a UN pre-review session in Geneva, as now appears to be the case.
37. Mr Haigh has had plenty of opportunity by the terms of the orders made to come back to the court and say that the dates of 13, 14 December were inappropriate, for whatever reason. In his usual style, he failed to do that and then complains at the last moment of unavailability and seeks an adjournment. There is, in reality, no reason for him not to participate in today's hearings, save that he has chosen to go to Geneva to further his complaints against the authorities in onshore Dubai in relation to his imprisonment there for criminal offences and his alleged mistreatment. That was not something of which this court had previous knowledge.
38. The usual last-minute request for an adjournment is therefore refused as having no adequate basis. Mr Haigh has had plenty of opportunity to make any points he wished following the CMC on 20 November as well as opportunity prior to that. The court will not allow its process to be further frustrated by last-minute applications on the basis of supposed unavailability or even for health treatment reasons which Mr Haigh claims, spuriously, to have been previously notified.
39. Both the Court of Appeal and this court, in its CMC order, has made it plain that it will only change its timetabling on the basis of problems with Mr Haigh's health if there is proper evidence, in accordance with the terms of the orders made. If Mr Haigh chooses to make himself unavailable for hearings whether by opting for treatment on dates fixed or to pursue other claims elsewhere, that is a matter for him, but the court must have due regard to the order of the Court of Appeal and the need to progress this matter to trial in July 2018.
40. The matters which fall then to be dealt with today are, subject to any correction, amplification or addition of counsel, the following: first, there is the application to adjourn and the appeal following the orders of 11 and 17 October which I have treated as an application for permission to appeal, both of which I have refused.
41. Secondly, there is Mr Haigh's application for permission to amend his defence and to include a counterclaim. Thirdly, there is Mr Haigh's application to join additional parties. Fourthly, there are what this court is prepared to treat as Mr Haigh's application to dismiss these proceedings for abuse of process and want of jurisdiction, both of which points appeared in the draft pleading also. Fifth, there appears to be a request for a stay of these proceedings, made both in email and also at paragraph 71 of the draft pleadings.
42. None of these applications have been properly put before the court with an application notice, save for that of 5 October 2017, and no fees have been paid for any of them. The court does not accept that Mr Haigh cannot pay the fees required absent good evidence to that effect, and in the face of the proceedings that he is plainly able to take elsewhere, including the United Kingdom. It is today prepared to deal with these matters, however, as if proper applications have been made. In future, however, the court will take no action unless proper applications are made on the appropriate forms and not simply by email and fees paid, absent any specific waiver of such fees by the court.
43. The court has also to deal with the terms of a letter to the Dubai authorities as referred to in the case management conference order asking that Mr Haigh should be allowed to attend any trial or hearings here in the future, notwithstanding his deportation from the country.
Jurisdiction (2:53pm, 13 December 2017)
44. Mr Haigh complains that this court has no jurisdiction over his claim. There is no formal application to contest jurisdiction on that basis, but any challenge to the jurisdiction of this court in respect of the claim is untenable. There are any number of reasons why this court's jurisdiction over the claim is validly exercised.
45. The first and most obvious is the gateway provided by the judicial authority law, which is that the claimant is a DIFC entity. That is good enough for all purposes. It is further submitted to this court that some of the events took place in the DIFC. In addition, that is not a ground upon which I need rely.
46. Secondly, under RDC 12.4 and 12.5, any jurisdiction challenge had to be made within 14 days of filing an acknowledgement of service and had to be supported by evidence with a statement of truth. The terms of the rules provide that any filing of an acknowledgement of service without any such application in the specified time, amounts to an acceptance of this court's jurisdiction. Mr Haigh made no such application and put in no such evidence within the specified time limit. He is, therefore, deemed to have accepted the court's jurisdiction.
47. Thirdly, however, the point is not simply a technical question because Mr Haigh has not only filed a defence in this matter but has made numerous applications and appeals to this court for it to exercise its jurisdiction in his favour. Although in his original defence he purported to reserve his right to challenge the court's jurisdiction, not only do the rules not provide for that but, in taking all the steps that he has, Mr Haigh has unequivocally submitted to the jurisdiction of this court for the purposes of this action.
48. Fourthly, there is no basis for the contention that an award of civil damages has been made in the onshore civil courts of Dubai, as Mr Haigh has suggested in documents supplied to the court. The judgment of the Criminal Court in onshore Dubai specifically did not decide any accompanying civil law claim for compensation and specifically referred the civil law suit to, "The competent civil court". This court has been seized of the civil dispute since 2014.
49. Last, and probably least, it may well be that the Court of Appeal has already effectively decided this point against Mr Haigh. Certainly, there was an exchange between Mr Bodnar and the Court of Appeal whereby the true position, as shown by the Criminal Court's judgment/sentencing remarks, was pointed out and the court accepted that there was no concurrent civil claim being pursued in that court.
50. There is therefore no conceivable basis upon which any challenge to the jurisdiction of this court over the claim could possibly be made. Any future attempt to reserve rights in that respect, or to challenge the court's jurisdiction on that basis is, therefore, likely to be struck out summarily without further argument.
Abuse of Process (3:54pm, 13 December 2017)
51. It appears, in particular in paragraph 71 of the draft amended defence and counterclaim but also from passages elsewhere in the material supplied by Mr Haigh, that he seeks a stay of the claim on the basis that it constitutes an abuse of the court's process. The basis upon which this appears to be being pursued is that set out in paragraph 18A of the draft amended defence and counterclaim. There, he pleads that the proceedings have been brought by the claimant for an ulterior motive and/or improper purpose and that the claim form and amended particulars of claim ought to be struck out for abuse of process for the following reasons:
52. In paragraph 18A(a) he sets out his allegation that the claimant engaged in regular practices of forgery, false invoicing, false accounting and creating false audit trails. He goes on to say that:
“the claimant is bringing these proceedings against the defendant in an attempt to prevent the defendant from making well-founded allegations against the claimant, Mr Alrayes and GFH BSE, regarding their wrongdoings, to disable the defendant from defending these proceedings and criminal proceedings by preventing him from paying or instructing lawyers or paying living expenses, to damage the defendant's reputation and in order to make the defendant a scapegoat for the claimant's own wrongdoings, namely, its practice of using false invoices and forged signatures as the basis for payments by the claimant and to prevent and stifle the claims being made, at that time, by the defendant against the claimant. Further they are being brought an attempt to restrict the defendant's company Sport Capital taking legal action against the claimant for breach of contract following the collapse of the agreement with Sport Capital to purchase Leeds United Football Club from the claimant in January in 2014”.
53. Then, in paragraph 18A(b), allegations are made as to the means by which the claimant has attempted to obstruct the fair disposal of the dispute. In that context, reliance is placed upon the deceit that he says was practised upon him in luring him to come into the UAE, the procurement of a prosecution against him which led to his imprisonment, which he contends amounts to the tort of malicious prosecution and false imprisonment; then preventing his access to documents and lawyers in such a way as to make it difficult or impossible for him to defend himself.
54. At this stage, what I am concerned with is purely the freestanding abuse of process that is alleged which, it is suggested, should lead to the claim form and amended particulars of claim being struck out.
55. If regard is had to the White Book, which sets out in the context of CPR 3.4(2), the term "abuse of the court's process", one finds this:
"Although the term 'abuse of the court's process' is not defined in the rules or practice direction, it has been explained in another context as, “Using that process for a purpose or in a way significantly different from its ordinary and proper use.'"
56. It is said that the categories of abuse of process are many and are not closed and that the main categories which have been recognised are then described in the following paragraphs in the White Book. It is said that the court has power to strike out a prima facie valid claim where there is an abuse of process, but there has to be an abuse and the striking out has to be supportive of the overriding objective of doing justice between the parties. In all cases of abuse, the correct response has to be supportive of the overriding objective of doing justice between the parties. It therefore does not follow that, in all cases of abuse, the correct response is to strike out the claim; that should be the last option and, if the abuse can be addressed by a less draconian course, it should be.
57. Examples are then given of vexatious proceedings, attempts to re-litigate decided issues, collateral attacks upon earlier decisions and pointless and wasteful litigation, where the benefit attainable by the claimant in the action is of such limited value that, "The game is not worth the candle", or, as put in one particular decision, "Not even worth the wick". Various other forms of abuse are there set out.
58. The key authority to which I have been referred is a decision of the Privy Council in Crawford Adjusters (Cayman) Limited v Sagicor General Insurance (Cayman) Limited [2013] UKPC 17, [2014] A.C.366. The relevant passages appear at paragraphs 62 through to 66. There, it is said by Lord Wilson that:
"It is hard not to regard abuse of process as a tort distinct from malicious prosecution, if only because, apart from the need to establish a purpose not within the scope of the action, ie a collateral or, more hopefully, an improper purpose, abuse of process requires neither that the action should have been brought without reasonable cause nor that it should have terminated in favour of the alleged victim."
59. In defining what an "improper purpose" is, the court, unsurprisingly, encountered difficulty and resorted to a helpful metaphor which was expressed as that of, "A stalking-horse", citing an Australian decision:
"If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim on which the court is asked to adjudicate, they are regarded as an abuse of process for this purpose."
60. Lord Wilson goes on to say that the metaphor aids resolution of the conundrum raised by the example of the claimant who intends that the result of the action will be the economic downfall of the defendant, who may be a business rival or just an enemy. If the claimant's intention is that the result of victory in the action would be the defendant's downfall, then his purpose is not improper, for it is nothing other than to achieve victory in the action, with all such consequences as may flow from it. If, on the other hand, his intention is to secure the defendant's downfall or some other disadvantage to the defendant or advantage to himself, by use of the proceedings otherwise than for the purpose for which they are designed, then his purpose is improper.
61. That is the key to the question: are the proceedings being used otherwise than for the purpose for which they are designed? Although Lord Wilson did not approve of a dictum of Mr Justice Steyn, as set out in paragraph 65 of the Privy Council decision, he cited with approval Lord Justice Bridge in Goldsmith v Sperrings Limited:
"When a litigant sues to redress a grievance, no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress of that grievance."
62. The key therefore is use of proceedings otherwise than for the purpose for which they are designed, or seeking to achieve an object which is not reasonably related to the provision of some form of redress for the grievance.
63. With that in mind, I then turn to what is alleged in the draft defence and counterclaim. As a matter of analysis of paragraph 18A(a) of that pleading, what Mr Haigh appears to be saying is this: first, the claimant is bringing the proceedings for the purpose of preventing Mr Haigh from making well-founded allegations against the claimant, Mr Alrayes and GFH BSE, regarding their wrongdoings. Self-evidently, the proceedings do not stop the defendant from making allegations since those are the very things that he is currently doing.
64. Secondly, it is suggested that the claimant is bringing the proceedings to disable the defendant, Mr Haigh, from defending the proceedings and criminal proceedings by preventing him from paying or instructing lawyers or paying living expenses. This, it appears, centres on the freezing orders that have been obtained. As was submitted by Mr Bodnar, there are a series of decisions made by a number of judges in different jurisdictions in relation to the freezing orders, all on the basis that the claimant has a good arguable case. Decisions have been made by Sir John Chadwick, by Sir David Steel in this jurisdiction, by Mr Justice Males, Mr Justice Flaux and Mr Justice Smith and, most recently, by Mr Justice Leggett in relation to the decision of Mr Justice Smith, so far as the English freezing order is concerned. Decisions have been made in Guernsey also, some of which have been made with the consent of the defendant or his vehicle, Sports Capital.
65. His complaint appears to be that the effect of the freezing orders is to make it harder for him to defend the proceedings because of the inability to instruct lawyers. That inability was also shown not to be the case. I was referred to the various sums of money which have been released to him to allow him to instruct lawyers, some £380,000 in one jurisdiction or another, including £120,000 from the pro bono fund in this country. Additionally, it appears that some £140,000 to £170,000 was paid to lawyers out of Sports Capital’s funds at a time when they were actually frozen. A whole sequence of proceedings has been begun by Mr Haigh in one jurisdiction or another, and many of them not pursued, but the idea that he is unable to pursue these matters in the context of all the litigation that has been taking place in England, Wales, in Guernsey and in this country, is far-fetched.
66. It is then further alleged that the claimant brings these proceedings in order to make the defendant a scapegoat for its own wrongdoings, namely, its irregular and systematic practice of using false invoices and forged signatures as a basis for payment, to prevent and stifle the claims being made and to stop Sports Capital taking legal action. None of those matters bear any scrutiny of any kind in the context of the facts which I have just related.
67. If one asks the question as to whether or not there has been some improper purpose or some purpose which is not reasonably related to the provision of some form of redress in these proceedings, there can only be one answer. It is self-evident that the claimants have brought proceedings in this jurisdiction with a view to obtaining judgment on what is recognised, both in this jurisdiction and in England and Wales, as a reasonably arguable case; indeed, one in which judgment was at one time given against Mr Haigh in this jurisdiction before the Court of Appeal decided that Mr Haigh should be given one last opportunity of adducing oral evidence in defence of the amounts claimed.
68. What is the collateral purpose which it can be said is improper in the present case? The claimants are plainly entitled to bring proceedings in this jurisdiction; the claimants are plainly entitled to seek freezing orders in this jurisdiction, in England and in Guernsey; and they have what is recognised a good, arguable case to pursue. Even if, which it is not accepted by the claimant is the position, there was motive which was the economic destruction of Mr Haigh, that would not bring the case within the boundaries of abuse of process within the meaning of the Crawford Adjusters case and other authorities.
69. When regard is then had to the particular matters that are set out in paragraph 80A(b) of the draft amended defence and counterclaim, one discovers a series of factual allegations made, relating to deceit, malicious prosecution, false imprisonment and the foreseeable consequences in the shape of personal injury, including physical abuse, torture and psychological harm, resulting from imprisonment in Dubai. Each of those matters, on the face of it, is also alleged to constitute an individual tort of one kind or another.
70. In those circumstances, there may be, if any of those allegations are well-founded, be a remedy available to Mr Haigh in damages for the torts of which complaint is made. None of them, however, can constitute an abuse of process which disables the claim itself from being made. There is nothing here in the nature of the type of abuse of process which informs some criminal proceedings, where what the prosecution does is deemed to be so out of tune with appropriate conduct on the part of the prosecutor that the interests of justice require that a prosecution be abandoned, (or discontinued by the court, I should say), even though the guilty might thereby get away with the crime in question.
71. As a free-standing abuse of process, nothing that is alleged in the draft amended defence and counterclaim can get off the ground. There is no basis in law, when looking at the allegations made, for any contention that the claim should be struck out, or that any particulars of it should be struck out, and the claimant prevented from proceeding with what is recognised to be a good, arguable case.
72. There are two further elements that I have not specifically mentioned: the first falls into the same category as the deceit, malicious prosecution and false imprisonment to which I have referred, namely, the conspiracy to injure by unlawful means or conspiracy with intent to injure by lawful means. That stands or falls with the other torts complained of.
73. The last matter is the allegation that there was conduct on the part of the claimant deliberately seeking to prevent Mr Haigh from receiving documents and access to lawyers whilst detained, and having limited privileges removed from him. The position now is, and has been since March 2016, that Mr Haigh is no longer in custody and has the opportunity fully to pursue any of the matters he wishes to pursue. If any damages are available to him for the torts in question, those he can pursue if they can be shown to be well founded. All in all I have no hesitation whatsoever in dismissing the application for abuse of process as being one that has no possible prospects of success.
Amendment – UAE (4:22 pm, 13 December 2017)
74. One element of the draft amended defence and counterclaim is a claim which is pursued against the UAE for the trial process, the imprisonment and the conditions of imprisonment of Mr Haigh as part of that criminal process. Paragraphs 163 through to 265 of the draft amended counterclaim contain a series of allegations about such matters, so that in paragraph 169 it is alleged that the United Arab Emirates is liable to the defendant for breaches of a duty of care to him as a prisoner in its jails and subjecting him to the mistreatment particularised, or allowing such mistreatment to occur, and for misfeasance in public office by the prison officers and police officers, who subjected the defendant to the mistreatment particularised, and the judiciary who failed to act in preventing the same.
75. It is alleged that Mr Haigh was incarcerated without charge for an initial period of approximately 15 months and then a further 5 months extended period, as set out, that the arrest was unlawful and without probable cause and that he was falsely imprisoned. During his time in prison it is alleged that he was physically and sexually abused, was tortured by prison officers and/or police; that he witnessed physical and sexual abuse, torture and rape of other prisoners; that he had to sleep next to the bed of an Emirati prisoner who had died the previous week; that he lived in constant fear of torture and was subjected to inhumane and intolerable living conditions in which he feared for his life and health. In consequence, he has suffered a number of psychiatric, physical and emotional health issues for which it is said he continues to receive treatment.
76. It is also alleged that this court, having been advised of those conditions, ought to have done something about it by ordering an independent investigation, though it is somewhat unclear what, in practice, this court could or should have done in the circumstances which are alleged.
77. From paragraph 170 onwards it is alleged that the UAE was in breach of its constitution, in breach of the UN Declaration of Human Rights, violated the United Nations Convention, (though quite what that means, I am unclear), and violated the right to protection against arbitrary detention. There are different categories of deprivation of liberty and it is said that the UAE violated his right to health, violated his right to be heard or tried before an independent and impartial court in the prosecution of the criminal complaint, and is therefore liable in damages.
78. The short answer to all of these allegations against the United Arab Emirates is that this court has no jurisdiction to deal with such matters at all. It can be seen that Mr Haigh's complaints, including a plea that the UAE should bring an end to the proceedings in this court, are of a public law character: they challenge the compatibility of Dubai and UAE substantive law with its constitution and customary international law. It is not suggested that the claimant is in some way liable jointly with the UAE for its laws and practices, so that this essentially amounts to a freestanding claim for redress against the government of the UAE.
79. There are two essential reasons why this court has no jurisdiction over such complaints: first, article 102 of the Constitution of the UAE provides that the UAE shall have a Federal Court of First Instance and that such a court has, within the territory of its jurisdiction, the powers to hear cases concerning civil, commercial and administrative disputes between the UAE and an individual, no matter whether the UAE is the plaintiff or defendant.
80. Under the terms of article 102.1 of the Convention, therefore, it is the Federal Court which has jurisdiction to hear complaints of the kind put forward in those paragraphs of the amended defence and counterclaim.
81. Secondly, this court's jurisdiction is, as is well known and established by a number of authorities, statutory. It is provided by the Judicial Authority Law and, in accordance with its provisions, for this court to have jurisdiction, a claim must fall within one of the gateways in Article 5A(1) of the law. Essentially, what that Article provides is that this court in the DIFC has exclusive jurisdiction to hear and determine various civil or commercial claims which fall specifically within the bounds of the terms of that Article, together with various other specific appeals against decisions or procedures or claims over which the courts have jurisdiction in accordance with DIFC laws and regulations. None of those provisions has any application to the claims which are being pursued in the relevant paragraphs of the Amended Defence and Counterclaim.
82. The consequence is that there is no basis upon which this court could be entitled to deal with any of those matters and therefore to allow such matters to be pursued against the UAE in this court is simply not possible. Whatever else may happen to the Amended Defence and Counterclaim, those allegations cannot survive and would fall to be struck out of any pleading that the court was disposed to permit. Permission to amend in this respect must therefore be refused.
Amendment – DIFC (4:39 pm, 13 December 2017)
83. A moment ago, I made a ruling concerning the claim against the UAE and the various paragraphs of the amended defence and counterclaim in which Mr Haigh seeks to pursue claims against it, I also made passing references to the DIFC. It will be recalled that there is an application to join both the UAE and the DIFC but the amended defence and counterclaim does not, in fact, pursue any claims against DIFC at all. The only references to DIFC which appear come in paragraph 168, 256, 257 and 258.
84. The gravamen of the complaint is that the DIFC did little or nothing to alleviate the position of Mr Haigh when he complained that he was the subject of torture and abuse in the onshore Dubai prison, but the effect of paragraphs 256 through to 259 is that the UAE should be abandoning, or causing the abandonment of, the proceedings against Mr Haigh in this court. It is said that the DIFC courts has conducted itself, and continues to conduct itself, in a vacuum with no consideration for the impact of its rulings on the defendant's rights in criminal proceedings, and that reasonable relief was sought from the court which it had power to grant. No particulars are given of the remedies which the DIFC courts is alleged to have been able to give. The effect of refusal to grant whatever relief it is suggested should have been given has resulted, it is said, in his inability to secure effective legal representation, the denial of his right to effectively participate in proceedings and the suffering of post-traumatic stress disorder and pain and damage to health.
85. The unfair nature of what it is suggested the DIFC has done "calls into question the fairness, independence and impartiality of the court itself." Then this appears in paragraph 259:
"Given the extent to which the defendant's mistreatment is entwined with these proceedings the only appropriate course of action is to request the UAE authorities to abandon or terminate any ongoing proceedings against him."
86. It is hard to see how any of this amounts to a claim against the DIFC, and none is specifically made. It would appear extremely odd if the suggestion is that this court should in some way request DIFC or, indeed the UAE, to require the abandonment or termination of these proceedings against Mr Haigh in this court. Whatever the position on that, I can see no basis upon which the DIFC can be made a party to this action when there is no claim expressly pleaded against it.
87. In my judgment, therefore, for similar but different and related reasons, the application to join both the UAE and the DIFC must be refused, as there is no cause of action to be pursued against either over which this court can conceivably have jurisdiction.
Proposed Counterclaim and Proposed Joinder (2:45pm, 14 December 2017)
88. Having dealt with proposed claims against two non‑parties arising out of the draft defence and counterclaim and application for joinder, I now turn to the rest of the proposed counterclaim and the proposed joinder of Mr Al Rayes and Mr Patel.
89. It is worth, for the purposes of considering these aspects, drawing attention to the matters which are raised in the skeleton argument of the claimant from paragraph 2 onwards. There it is submitted that the claimant's claim is straightforward inasmuch as Mr Haigh is said to have breached fiduciary duties to the claimant as its deputy chief executive by misappropriating substantial sums and securing payment of those sums into bank accounts held by him in Dubai and the United Kingdom, or in two instances to the bank account of a friend, Rafael Utiyama.
90. Payment instructions are alleged to have been given to the claimant's bank by means of instructions which bore Mr Haigh's signature or a facsimile of it, and payment instructions were also given to the claimant's solicitors to pay sums out of its client account for the claimant's purported benefit by emails sent from Mr Haigh's email account. Fraudulent invoices were introduced into the claimant's records to justify the payments to Mr Haigh, in the overwhelming majority of cases bearing some mark indicating that they had been approved for payment by Mr Haigh. The identities of legitimate suppliers of services were hijacked in order to create a fraudulent audit trail. In that context, the claimants recognise the possibility that Mr Haigh may have been assisted in his scheme by employees internal to the claimant itself.
91. Mr Haigh's case, as it appears to be, is that the claimant and its Bahraini parent are, and have throughout been, effectively a criminal organisation engaged in wide‑ranging and serious impropriety. The office of the claimants in Dubai employed no more than six people at the relevant time, including Mr Haigh, who was deputy chief executive officer. He says he was wholly ignorant of the wrongdoing that was going on until sometime in early 2014, at which point he was spending much of his time as managing director of Leeds United Football Club, which was at that point owned by the claimant but was potentially the subject of sale.
92. For reasons which have not been explained, Mr Haigh says he chose to create a file recording alleged improprieties and threatened to expose the claimant to the Dubai Financial Services Authority. Following the making of that threat, the draft pleading appears to say that the claimant simultaneously decided to retain Mr Haigh as an employee, despite the fact that he had resigned, and then to lure him to Dubai where he was to be subjected to a fabricated allegation that he had stolen funds from the claimant and to be subjected to cruel and inhuman treatment at the hands of the authorities in Dubai, who were, it is said, ready to do the claimant's bidding.
93. The alleged method by which Mr Haigh is said to have been lured to Dubai was to offer him a new job, although there is some inconsistency in the way that is put since it is alleged that he was continuously employed by the group in any event. Nonetheless, it is said that he was to be required to fly to Dubai to agree terms of new employment and to receive salary and bonus entitlements on the expiring employment. It appears to be Mr Haigh's case that having formed the view that the claimant was little short of a criminal organisation in early 2014, he resigned from Leeds United Football Club, where he had continued to be employed following the sale of the club itself, and flew to Dubai hoping to secure reemployment by the very organisation at which he complains that criminal conduct was endemic.
94. So far as concerns the money received into his bank accounts, Mr Haigh now claims to be unable to plead to the quantum of money received into those accounts having previously admitted effectively or virtually all of the claim made against him in his original defence. He asserts that such sums as he may have received were properly due to him as either salary, repayment of expenses or alleged commissions. It is noteworthy that there is no reason ever put forward for the concealment of such payments by a trail of false invoices and payments to accounts of one kind or another said to belong to other entities.
95. Mr Haigh is a qualified solicitor. He is not the ordinary litigant in person. It is clear, as I have already said earlier in the course of rulings made at this hearing, that he has had considerable assistance from lawyers in the past, both in relation to the original defence put forward in these proceedings and in the context of other proceedings in England and Wales and, indeed, in onshore Dubai. There came a point at which, however, he started to represent himself in these proceedings in August of this year.
96. Having examined the 69‑page draft amended defence and counterclaim in some detail, there is a plain inference to be drawn from its terms that Mr Haigh has had specialist legal assistance in formulating the draft. Furthermore, Mr Haigh has had at least since March 2016, when he was released from prison in Dubai, to research, investigate and formulate his case for the purpose of putting it forward in these proceedings. In those circumstances, the court can see no reason to extend any latitude to Mr Haigh of the kind that might sometimes be given to a litigant in person who is struggling to put forward in technical legal terms arguments which are complex in their nature.
97. Here, in a draft pleading, Mr Haigh has chosen to plead particular matters and has omitted to plead others and has from time to time asserted that he has either lacked the time or resources to present a properly particularised defence or counterclaim. The court is unable to accept that this is the position and, therefore, looks at the draft pleading with a view to discerning whether or not the claims put forward have realistic prospects of success and whether the facts as pleaded are capable of amounting to the causes of action which are being put forward.
98. It is worth noting, as I think I already have in earlier rulings, that Mr Haigh has been involved in proceedings elsewhere and, in particular, sought to bring private prosecutions of Mr Al Rayes and Mr Patel, two individuals who he wishes to join to his proposed counterclaim here, but abandoned those private prosecutions having spent a great deal of money on them and having incurred liability in respect of costs in respect of them.
99. At paragraph 9 of the claimant's skeleton argument details are given of various other elements of litigation in which Mr Haigh has been or is currently in one way or another involved.
100. Before turning to the details of the draft pleading, it is worth again referring to the general approach which this court takes towards counterclaims. Where there are claims which cannot be said to give rise to either legal set-off or equitable set-off, it is usually a matter of convenience in the sense of the court wishing to bring about the most expeditious, efficient and economic resolution of disputes between the parties that forms the basis for the court determining whether or not matters can be heard together in the shape of claims and cross-claims. Where there is some common basis of fact or some common witnesses or overlapping elements in the claim and cross-claims, the court will ordinarily allow those matters to be heard together because that is the most efficient way of doing so both from the point of view of the resources of the parties and the resources of the court.
101. I turn then to the first head of claim that Mr Haigh wishes to bring against the claimant, against Mr Al Rayes and Mr Patel, namely the claim for false imprisonment, which is to be found in paragraphs 152 to 154 of the draft pleading. There it is alleged that the matters pleaded in paragraphs 131 to 138, but with the reference "check" alongside the reference to paragraph 131, constitute the facts and matters which give rise to the false imprisonment claim. In broad terms, the essence of what is being said, in fact, appears from paragraphs 129 to 139 of the draft pleading, in particular in paragraph 138. There appears the following wording:
"The claimant had within their control to ensure the release of the defendant on bail. They declined to do so. Instead, the claimant sought to use the defendant's freedom as a bargaining chip in settlement discussions. The claimant had it within their control to have Mr Haigh released and the accusation against him dropped."
102. What does that plea amount to? I had thought initially that it was related to the freezing injunctions which had been granted by this court and the court in England, which tied up the assets of Mr Haigh so that I thought his complaint was that he was not able then to provide bail because of the inaccessibility of those funds to him. In fact, however, the freezing orders granted specifically make an exception in relation to the provision of bail. It is also apparently the case, so I was told on instructions today, that Mr Haigh was in a position to obtain bail had he accepted the terms on which the Dubai criminal court was prepared to grant it and had he complied with them. The terms required him to put up security for the sums which he was alleged to have stolen, namely some AED 24 million. Furthermore, his passport would have been confiscated. He doubtless would say that he was not able to do that.
103. The reality, however, appears to be this. The complaint is in truth a complaint that the claimant could have secured the release of Mr Haigh from prison either by telling the authorities that no security needed to be provided by way of bail or by dropping the accusations altogether.
104. The assertion of false imprisonment, therefore, essentially brings into play the decision of the court in onshore Dubai, which was prepared to grant bail but only on particular terms. Such a complaint falls foul of the principle set out in the decision in Hunter v Chief Constable [1981] AC 529 because it amounts to a collateral attack on the decision‑making processes of a competent court. In that context, the complainant in a criminal case can have no duty to bring about the release of a defendant on bail even if it is in a position to suggest that to the court or to influence the court's decision to take that course.
105. I was referred specifically to the decision in Hunter at 539E and 540E to 542H. I was referred, furthermore, in that context to the decision of the Court of Appeal in Iqbal v The Prison Officers' Association [2010] QB Div 732 and, in particular, paragraphs 15 to 22. At paragraph 21, the Master of the Rolls, as he then was, stated that, as a general principle, defendants are not to be held liable in tort for the results of their inaction in the absence of a specific duty to act, a duty which would normally arise out of the particular relationship between the claimant and the defendant. The distinction which is drawn is between positive acts and pure omissions. Such a hard and fast distinction between action and inaction might, it was said, appear to be arbitrary to some people but it was not unprincipled and it was necessary to ensure a degree of clarity and certainty in the law.
106. The nature, therefore, of the allegations made amounts to a failure on the part of the claimant to take steps which could conceivably bring about the release of Mr Haigh on bail without the provision of security or his complete release on the basis of dropping the accusations against him altogether. This plea is unsustainable. It is unsustainable because there can be no positive duty on the part of a complainant who has a good arguable case of embezzlement against a previous employee to drop the charges or to seek to persuade the court that bail should be allowed without payment of sufficient security, that security being such that the court considers appropriate in any given case.
107. The subsequent conviction of Mr Haigh shows that the prosecution was well founded and the complaint was well founded and the need for security is only too evident in the context of the proceedings that have been brought since. In consequence, there can be no basis for the allegation of false imprisonment being made against the claimant or, indeed, Mr Al Rayes and Mr Patel.
108. Turning then to the next head of claim put forward by Mr Haigh, which is that of malicious prosecution, which appears at paragraphs 140 to 151 of the draft pleading, at paragraph 140 it is boldly alleged that the breach of trust allegations pursuant to which the defendant was detained and prosecuted were brought falsely by the claimant. Since the defendant was convicted of embezzlement in breach of trust, this is once again a direct challenge to the decision taken by the criminal court in onshore Dubai and is impermissible as an abuse of process on the authority of the decision in Hunter, to which I have already referred. That is the beginning and end of the point so far as concerns the prosecution of the embezzlement in breach of trust matters.
109. There is, however, a second area of which complaint is made, which is entitled, "The Twitter Charges". The details of this allegation appear at paragraphs 141 to 148. The claimant had filed a criminal complaint that Mr Haigh was guilty of criminal libel, which is part of the law in onshore Dubai. It is perhaps worth bearing in mind that the origins of defamation as a tort in England were, indeed, the original offences of blasphemous or criminal libel. So it is no surprise to find that a crime of this kind exists elsewhere in the world and there is no basis upon which this court would be considering the validity or invalidity of any such offence for all the reasons I gave yesterday about the jurisdiction of the court.
110. Here, the key decision to which I was referred is that of the Supreme Court in Willers v Joyce (No. 1) [2016] UKSC 43, [2017] 2 All ER 327. There, a nine-justice court considered the application of the tort of malicious prosecution as extending to civil proceedings and by a small majority of five to four the decision was reached that the tort should so extend. In that context, Lord Toulson at paragraphs 42 and 52 to 56 set out the relevant ingredients of the tort of malicious prosecution. At paragraph 54, he set them out in a passage which, although necessarily obiter for the reasons he gave, is nonetheless of high authority:
"It is well established that the requirements of absence of reasonable and probable cause and malice are separate requirements [of the tort of malicious prosecution. Those two elements may be entwined, but it is necessary for the claimant to] prove both that the defendant was actuated by malice and that he had no reasonable and probable cause for prosecuting. In order to have reasonable and probable cause, the defendant does not have to believe that the proceedings will succeed. It is enough that, on the material on which he acted, there was a proper case to lay before the court.
Malice is an additional requirement ... means a wrongful act, done intentionally, without just cause or excuse. As applied to malicious prosecution, it requires the claimant to prove that the defendant deliberately misused the process of the court. The most obvious case [as set out] is where the claimant can prove that the defendant brought the proceedings in the knowledge that they were without foundation. But ... there may be other instances of abuse. A person, for example, may be indifferent whether the allegation is supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he has no colour of a right. The critical feature which has to be proved is that the proceedings instituted by the defendant were not a bona fide use of the court's process, and that the defendant did not have a bona fide reason to bring the proceedings.
111. It is I think reasonably clear from paragraph 149 of the draft pleading that the drafter had in mind the necessity for these two elements because that is an express plea that there was no reasonable and probable cause for the prosecution and that the claimants and Mr Al Rayes acted maliciously.
112. If Mr Haigh was to make this point good, he would have to satisfy the requirements set out in Willers v Joyce and show that what was being done by the claimants was not a bona fide use of the court's process; that there was no bona fide reason to bring the proceedings; and that there was not a proper case to lay before the Court.
113. The claimants would have to be shown, if Mr Haigh was to succeed, to have clear knowledge that its allegations were unfounded. It is in that context that one then turns to what is pleaded in relation to those elements. The basis of the defence, which is put forward, appears in paragraph 144 of the draft pleading. It is not suggested by the defendant that the that the material tweets, of which complaint was made by the claimant, were not defamatory. What is said, however, is that the claimant and Mr Alrayes must have known – and did in fact know – that Mr Haigh, who was incarcerated in prison in Dubai, had no access to the Internet whatsoever and therefore could not have been managing his own Twitter account upon which these various defamatory remarks were to be found.
114. What is clear, on the material that has been put before the Court, is that Mr Haigh was well able to communicate from prison; he was not incommunicado as is apparently suggested in the pleading. Above all, in addition to various press releases, which specifically refer to interviews with him while he was imprisoned and the use of a device borrowed from a guard to make a call on Skype, the material shows that he also was able to ensure that Twitter feeds came from him and were published by his sister. A note has been produced to this Court from Mr Haigh to his sister, which lists a series of tweets to be put out on his behalf. Instructions are given that tweets are only to be made on his instructions.
115. The very foundation of the defence, which is said to be matters of which the claimant and Mr Al Rayes was aware, therefore falls to the ground. Not only did he have actual access to the Internet in this way, but it is clear that there is no reason for the claimant and Mr Al Rayes to have thought otherwise. How can it possibly be said that the test set out in Willers v Joyce is satisfied in those circumstances?
116. The claimant and Mr Al Rayes had reasonable and probable cause to believe that he did and could operate his Twitter account and that material, which appeared to emanate from him, truly did emanate from him. Once again that cause of action is, on its face, unsustainable and there is no realistic prospect of success in relation to it.
117. There is then a further allegation of conspiracy to injure in respect of the Twitter charges. That is said to be a conspiracy to injure the defendant, to which the claimant and Mr Al Rayes were party, and the conspiracy is said to be one to injure the defendant by unlawful means. The unlawful means pleaded at paragraph 155 of the draft pleading are the malicious prosecution and/or the false imprisonment, to which I have already referred.
118. As those elements of unlawfulness fall to the ground, so too does the conspiracy to injure in respect of the Twitter charges. Again, there is no realistic prospect of success in relation to them.
119. There is then a further claim against the claimants and Mr Patel in this case for libel and slander. That appears at paragraphs 158 to 162 of the draft pleading and it is worth referring to that in a little detail because of the absence of particularity in what is set out. It reads as follows:
"158. The defendant is collating all the evidence of libel and slander and was unable to provide the full details in the time available, such has been the volume of the libel and slander of the defendant by the claimant who appointed no less than three PR advisers to damage the reputation of the defendant.
159. On X 2015 dates the following statements were made regarding the defendant by the claimant and specifically by Mr Patel: (a) the defendant was pedalling lies and they were just lies; (b) the defendant was spreading lies; (c) the defendant was derailing Leeds United; (d) the defendant had committed fraud 'the fraud committed by David'; (e) the defendant had stolen fans' money.
160. Numerous other defamatory statements were made regarding the defendant by the claimant and specifically by Mr Patel and the company Woodstock Lester acting as agent for the claimant to a wide range of media. These will be more fully particularised in the revised amended defence and counterclaim and cannot be particularised here due to illness and insufficiency of time.
161. The statements were false and defamatory in that the statements stated that the defendant was dishonest, had committed fraud, had stolen fans' money.
162. The statements were sent to Leeds United Football Club fans and published to the BBC in the United Kingdom and distributed to a wide media audience by the then PR adviser of the claimant retained solely to damage the defendant's reputation."
120. What is odd, to say the least, about this plea is that, although at paragraph 159 there are references to what was supposedly said by the claimant and specifically by Mr Patel, no details are given as to when those matters were said, what exactly was said, and to whom those matters were said. The date "2015" appears without any further amplification. Because the various matters appear in quotes it is to be assumed that at the time that the drafter put together his pleading there was material in front of him or her showing that such matters were said. The details therefore should have been apparent and capable of being pleaded.
121. To suggest that there was inability on the part of Mr Haigh to provide full details "in the time available" and by reason of "illness and insufficiency of time" and that there would be more full particularisation in a revised amended defence and counterclaim is playing fast and loose with the Court. As I have already indicated, Mr Haigh has had plenty of time to put his case together over the years and if this was a matter to be pursued he should be putting forward his case with due particularity. It is well known that in the context of defamation there is a need for matters to be spelt out so that the individual or company against whom the complaint is made is able to plead to it knowing exactly what it is that is being said against him and the circumstances in which it is said that the defamation arose.
122. It is worth pointing out that this element of the draft counterclaim is somewhat discrete from the other elements of it. The publication, as alleged, was in the United Kingdom and appears to be related in some way to a PR adviser of the claimant who is not identified specifically unless one is to read paragraph 160 and 162 and 159 together as referring to one and the same organisation, which is not a natural reading of the words used.
123. I raise this point at this stage for one reason only: that is that the Court of Appeal, as I indicated yesterday, was prepared to give Mr Haigh one final opportunity to support the defence already made by oral evidence and to amend his pleading by way of defence. In that context, I am clear that they would not have foreseen the likelihood of a claim for defamation of this kind being tacked on as a counterclaim to the matters with which the Court is expected to deal.
124. In these circumstances, particularly as issues appear to be raised regarding Leeds United, which otherwise essentially fall outside the ambit of these proceedings, I would think it not particularly convenient for these matters to be dealt with at the same time.
125. There is a further point, which arises here, in the context of damage to Mr Haigh's reputation. For a defamation claim to succeed, it would in the ordinary way be necessary to show that damage to his reputation would result from the publication. The reputation in question is the way in which an individual is seen in the eyes of ordinary right-thinking people.
126. Given that Mr Haigh has been convicted of embezzlement and breach of trust it is hard to see that referring to him as a liar or as having committed fraud could in any way have such an impact. While the references to Leeds United might be particularly exciting to a given group of people, it is hard to see how the general reputation of an individual who has been convicted of the matters of which Mr Haigh has been convicted could be lowered by the references in question.
127. In those circumstances, it appears to me not only that the absence of particularisation means that the pleading is in itself an embarrassment and ought not be permitted by way of amendment, but that there cannot be realistic prospects of success given the reputation of Mr Haigh as it currently stands. If these are matters that he wishes to pursue they are in any event matters better pursued in litigation in the United Kingdom rather than being tacked on to the matters in issue in this Court.
128. That then takes me to the claim made for deceit and conspiracy against the claimants, Mr Al Rayes and Mr Patel, which involves the "luring" of Mr Haigh to Dubai. The pleas of malicious prosecution and false imprisonment overlap with this element of claim because it is said that the luring of Mr Haigh to Dubai is what gave rise to the possibility of the prosecution and the imprisonment in question.
129. The core of the complaint in relation to deceit is that it is said that Mr Haigh was lured to travel to Dubai under false pretences. I have spent some time, with the assistance of counsel, in examining the manner in which this allegation is pleaded at paragraphs 87 through to 136 of the draft pleading. It is fair to say that none of this creates any coherent defence to the claims that are made against Mr Haigh. It is also fair to say that, on an examination of the WhatsApp exchanges in March and April, the factual basis upon which it is put forward does not appear to be well founded.
130.Contrary to the allegations made, what one finds on examination of the WhatsApp messages is not the slightest hint of any suggestion that Mr Haigh is about to blow the whistle on the claimant in respect of the nefarious dealings to which he refers in his draft pleading.
131. There is also not the slightest indication that the claimant was pressing for Mr Haigh to go to Dubai in order to provide him with a job, which had already been assured to him. To the contrary, he is found complaining that he has no job and is pursuing the claimants with a view to them providing him with a job of one kind of another, whether as general counsel, whether as an employee to work in India, whether as someone to work in London for commission, or someone with contacts in Africa, which would be to the advantage of the claimant.
132. There is no complaint about misdoings on the part of the claimant and Mr Alrayes or Mr Patel. Once again, to the contrary, it is Mr Haigh who appears anxious to secure employment with the very organisation whose activities he says are so heinous.
133. It is not for this Court to decide factual issues at this stage and indeed it cannot do so on the basis of the limited material before it, although it is fair to point out that Mr Haigh has been given the opportunity to produce factual material to the Court for the purpose of the hearing and has not taken up that opportunity.
134. The key here however, once again, is whether or not the pleas in question are capable of supporting the allegations made. The elements of the tort of deceit are well known, as set out in most recently Hayward v Zurich [2016] 4 All ER 628 and conveniently by Lord Toulson at paragraph 58.There is a need for the dishonest making of false representations; for inducement; and for loss.
135. More recently in the decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, [2017] 3 WLR 1212, the Court had cause to consider the elements of dishonesty as historically enunciated in the well-known decision of R v Ghosh [1982] QB 1053, per Lord Hughes at paragraph 74.:
"When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest."
136. The question arises then as to where is the dishonest false representation alleged in the draft pleading. In paragraph 136 it is said that:
"The foregoing events amount to (a) deceit, fraud and misrepresentations by the claimant, Mr Al Rayes and Mr Patel in respect of statements made to the defendant in the knowledge that they were untrue that (i) he was being offered a new position and would be paid all monies owing to him and (ii) it was necessary to travel to Dubai for sign-off of the appointment and to receive monies due when they knew this to be untrue. The deceit induced the defendant to resign his employment with Leeds United Football Club and to travel to Dubai under false pretences."
137. If one then examines the preceding paragraphs to ascertain what the foregoing events are that are referred to, one looks in vain to find material to support what is there being alleged. I have looked particularly closely at those paragraphs and in particular paragraphs 103, 104, 108, 109, 111, 115 and 119, which are said to set out the discussions and statements of the claimant, Mr Patel and Mr Al Rayes, in relation to the prospect of a job and a meeting with a Dr Khalid who would decide whether or not such a job would be offered to Mr Haigh.
138. The bottom line is that paragraph 136 is not supported by the previous paragraphs. At no point before 18 May is it said in the pleading that Dr Khalid signed off on the appointment of Mr Haigh as an employee. The material that has been put before the Court in the pleading and in the WhatsApp exchanges shows that Mr Haigh was constantly asking how he was to impress Dr Khalid in the meeting in order to secure Dr Khalid's approval for his employment. It is plain from the material that Dr Khalid's sign-off was necessary before any offer was to be made and no one was saying that there was a done deal, whether or not there were statements that suggested that Dr Khalid could readily be satisfied as to the appropriateness of providing employment for Mr Haigh.
139. In the circumstances, neither paragraph 136(a)(i) nor 136(a)(ii) are in any way supported by the prior allegations made in the pleading. There is in truth no plea of any false intention on the part of the claimant or the individuals concerned, no representation that a job had been offered and no representation that money would be paid, and indeed such representations as might be inferred from the pleading appear to be representations of future conduct and not representations of fact of any kind.
140. What is significant in this context is that the very case, which is now being proposed as a case to be put here, is the same case that was put before the Magistrates Court in London by way of private prosecution and was subsequently abandoned by Mr Haigh.
141. In this context therefore the claim of deceit cannot run because the necessary ingredients of such a cause of action have not been pleaded.
142. Since this is the very essence of the case, which Mr Haigh has constantly sought to put, there is no difficulty in my examining these matters with care in order to determine that no proper cause of action has been pleaded. There is no need for any latitude to be given to Mr Haigh in circumstances where he has had plenty of time and received assistance over the years in framing the claim that he wishes to put.
143. If one then goes to paragraph 136(b) one finds that the allegation of conspiracy to injure the defendant by unlawful means, which is made against the claimant, Mr Al Rayes and Mr Patel, relies on the three elements to which I have already referred as the unlawful means in question. First the deceit, second the unlawful arrest and imprisonment on the basis of the breach of trust allegations or embezzlement allegations, of which he was convicted, and thirdly the unlawful arrest and imprisonment of the defendant on false Twitter abuse charges.
144. As I have already decided that the deceit and the unlawful arrest and imprisonment allegations cannot succeed, there is no basis then for a conspiracy to injure the defendant by unlawful means. That has no realistic prospect of success either.
145. What is left then in paragraph 136(c) is an allegation of a conspiracy between the claimant, Mr Al Rayes and Mr Patel, to injure the defendant by lawful means, namely facilitating or procuring an arrest and imprisonment with intent to injure. That too cannot stand. The predominant purpose of any conspiracy to injure by lawful means must be the injury of the party in question, as is established by more than one authority at the highest level in England.
146. Here, however, there is no possible basis upon which such an allegation of conspiracy could succeed, for a report to be made to the criminal justice authorities of unlawful action or allegedly unlawful action cannot in itself constitute the basis for an allegation of conspiracy. As a matter of public policy, individuals are expected to report crimes or potential crimes to criminal justice authorities, even if they have no legal duty to do so. The idea that in doing so, with the criminal justice authorities taking such steps as they may be advised, as they did in the present case, cannot be seen as giving rise to a tort against the individual who is then subjected to arrest and trial and imprisonment at the hands of those authorities. Once again, there is no realistic prospect of success on a claim of this kind.
147. The effect of my decisions of yesterday and today is that none of the draft counterclaim is to be permitted save in so far as it echoes the pleas made in the defence in relation to what is alleged by the defendant to be entitlement to salary, to expenses, to commission and referral fees.
148. At paragraphs 79 to 86, as part of the counterclaim, there is reference to liability, as alleged, of the claimant for the defendant's salary, expenses, bonus and bonus shares, and various other elements, which are said to represent entitlement in respect of employment.
149. There are two additional elements, however, which fall outside that. The first is that which appears in paragraphs 75 to 78. Paragraph 75 is a most odd-looking plea. It can be cross-referenced to paragraph 17(e) of the amended defence; that latter paragraph coming in by way of that amendment. What it says is that the defendant resigned from his position as Deputy Chief Executive Officer of the claimant on 10 March 2014 as a result of constructive dismissal and resigned from his position as Managing Director of Leeds United Football Club on 11 April 2014:
"At the time of the deceitful and dishonest actions in luring the defendant to the UAE and fabricating false claims against him pleaded below, the defendant was a group employee of the claimant and was working his notice period with the claimant when he was reappointed as a group employee."
150. The only basis for that plea appears to be the last sentence of paragraph 17E; that is the second paragraph 17E in the draft, where it is said that:
"The claimant, through Mr Al Rayes, informed the defendant, that is Mr Haigh, after 10 March that he was still employed by the claimant/GFH BSC Group and would be paid in the normal course and remained an employee."
151. While I do not find any of this very intelligible, it is put forward as the basis of express or implied duties owed to the defendant under paragraph 76. In truth it adds little or nothing to the conspiracy allegations - and since the whole basis upon which this matter is put forward is unclear - I once again consider that the formulation of the pleading is embarrassing and makes it difficult, if not impossible, to plead to. I therefore will not be prepared to give permission to amend in relation to paragraphs 75 through to 78 as matters stand.
152. There is additionally the amendment of the defence in paragraphs 68 through to 70. The amendment there is very limited and refers to a signed version of a contract being disclosed "in the revised amended defence when the defendant has sufficient time". That is a wholly inadequate way in which to put forward a draft pleading for permission by the Court and in those circumstances those particular words should not be permitted by way of amendment.
153. The whole plea, which was in the original defence, is again an odd one in referring to a referral agreement, which has not yet been disclosed; to an assignment, which again is to be disclosed in the revised amended defence when the defendant has sufficient time. Once again that element of the amendment should not be allowed. This Court is simply not going to give Mr Haigh any form of carte blanche to produce further revised pleadings as and when he thinks he has sufficient time to do so. Otherwise, it appears to me that the pleas remain in being in the defence in essentially the form that they were originally made since no application has been made to strike them out on any basis.
154. There is also, in the defence in paragraph 17, by way of amendment, a whole series of allegations, which appear difficult to understand from the context and the relevance of which is hard to discern. I am not inclined to strike them out or refuse permission for them because I am unable to see whether or not they are related to the whistle-blowing allegations that have been made and in reality can see little difficulty in those matters being dealt with, should they form part of any relevant issue for a trial in this matter.
Withdrawal of Admission (4:00pm, 14 December 2017)
155.Finally, there is the question of withdrawal of admissions. As I have already indicated, Mr Haigh has sought to withdraw admissions about the receipt into his account of monies in circumstances where virtually all the missing monies were alleged to have been received by him or by Mr Rafael Utiyama. It is hard to understand how, in circumstances where, at the time of the defence, Mr Haigh was represented, such admissions could be made, and now it is said that they were not properly made and an attempt is made to withdraw them. No explanation has been given for such an approach.
156. In the ordinary way I would be disinclined to allow any such amendment but here I am told that matters are clearly established on the face of bank statements so that the reality is that no difficulty is presented by the withdrawal of the admissions and the time of the court will not be extended by allowing these amendments to be made. It should not be thought that the court is amenable to amendments being made of this kind but in the circumstances I see no prejudice resulting and therefore am prepared to allow amendment to the defence in that respect.
157. I think I have then dealt with all the elements in the draft amendment both to the defence and to the counterclaim, about which I have been asked to make a determination, and the joinder of the various parties. For the reasons that I have given there remains nothing to be pursued against the individual defendants, Mr Al Rayes and Mr Patel. There remains no counterclaim to be pursued save that which arises out of the defence, should any such sums that are alleged to be owing by way of salary and the like overtop any claim that is made in the other direction.
158. As with all proceedings, any further amendments which are sought must be sought with the permission of the court.
Costs (4:05pm, 14 December 2017)
159. I think the costs on the CMC should be costs in the case, and that the Claimant is entitled to the costs of today and yesterday on the basis that just about everything that mattered has been refused by me in relation to the amendments that were sought.
Issued by:
Amna Al Owais
Date of issue: 7 February 2018
At: 12pm
