June 28, 2015 court of first instance - Orders,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
ORDER OF JUSTICE SIR DAVID STEEL
UPON reviewing the Defendant’s Application dated 28 May 2015 filed by way of letter seeking the release of funds and the Claimant’s response thereto dated 25 June 2015
AND UPON reviewing the Defendant’s Application dated 28 May 2015 filed by way of letter seeking a stay of the proceedings and the Claimant’s response thereto dated 22 June 2015
AND UPON reading the relevant material in the case file
IT IS HEREBY ORDERED THAT:
1. Save for the amounts of GBP 40,000 and AED 35,000 available for release in respect of future costs of the civil proceedings and criminal proceedings respectively as set out in the Order dated 14 May 2015, the Defendant’s application for the release of funds covered by the freezing order is refused.
2. The Defendant’s application for a stay of these proceedings is adjourned until after the hearing before the Court of Misdemeanours on 30 June 2015.
REASONS:
1. The Court is faced with two major applications on the eve of a hearing in the criminal courts for which purpose the court’s ruling is needed as a matter of urgency. Given the mass of written submissions that have been served it is not possible in the time available to do justice to all the points raised let alone in any detail. It may also be worth noting that although the Court has the benefit of submissions from the Claimant in response to the Defendant’s application for the release of funds, the Defendant has informed the Court that he will not be filing submissions in reply on the basis that a prompt response to the Claimant’s evidence is not possible due to his current circumstances. With regard to the Defendant’s application for a stay, and further to the Claimant’s submissions in response, the Defendant has indicated that he will contribute by way of reply in due course.
2. The Defendant’s application for release of funds is the latest of many such applications which have been presented to the Court since September 2014. One was withdrawn without explanation. The others are the subject of reasoned rulings by the Court. The ruling dated 25 March was subject to an application to appeal which was not pursued. Otherwise no appeal has been intimated let alone prosecuted in regard to these rulings.
3. The last ruling was issued on 14 May 2015. In regard to the civil proceedings this allowed for GBP 40,000 to be taken from the frozen funds so as to provide for the costs of preparing for the immediate judgment application (now fixed for 8 September) including the provision of amended particulars of the defence. It is to be noted that the figure sought at that time for these two items alone was GBP 300,000 out of the total disclosed assets of GBP 1 million. In regard to the criminal proceedings it allowed for the sum of AED 35,000 to be released to cover the cost of a month’s work including an imminent hearing before the prosecutor. This is to be compared with the figure sought of AED 500,000 for the entire criminal trial.
4. As already recorded no appeal was entered in regard to the 14 May 2015 ruling. The persistent theme of the new application is the complaint that the “human rights” of the Defendant are being compromised. In that context I have focused on the need for a fair trial before the criminal court. I put wholly to one side the “people-trafficking” complaint not least given the abandonment of the criminal proceedings in London. The foundation of that complaint was that the allegations of dishonesty were fabricated but in the same breath the Claimant is accepted to have a good arguable case. Indeed we understand that the Defendant has now been charged with breach of trust.
5. In considering a fair trial the dominant issue is the availability of legal assistance. In that connection it must be remembered first that a considerable sum was released with the agreement of the Claimant at the outset and second that the Defendant has already incurred liability for legal expenses far in excess of what he says are his total assets of about GBP 900,000. Indeed much of that liability had been incurred on extraneous matters such as the further proceedings in this jurisdiction and elsewhere. He has been unable to meet this liability. Indeed he could not do so even in the absence of a freezing order. In the result the patience and generosity of the many legal representatives, experts and others has been exhausted.
6. Incremental provision of help at modest rates is now called for given the earlier extravagance. But even this is at jeopardy given that he is left in the uncomfortable position that in order to meet any bail requirement he can only look to the very same frozen funds which he wishes to deploy on legal representation. One can only add to that the possibility of pro bono help from the local legal community which is something which does not seem to have been pursued.
7. The other important feature of ensuring a fair trial is interpretation. But the statements and documents are almost entirely in English. I have no reason to think that satisfactory translation and interpretation services for any hearing or trial will not be made available. It has to be accepted that there has been a prolonged period in custody without charge. But that is about to end with the concurrent opportunity for a bail application. Furthermore it is not a feature which has any direct bearing on the availability of a fair trial.
8. By way of introduction to the latest application regarding funding, the Defendant contends that there has been a sufficient change of circumstances to justify this Court reviewing the position once again. Four points are made:
(a) The Defendant is now a litigant in person. But this was the very outcome that was advanced in support of the previous application. The legal representatives threatened to come off the record unless very substantial payments were made in regards both to the costs that had been incurred already and the future costs. That threat duly came to pass. To rely on the fact that the Defendant is now a litigant in person is merely to reactivate the earlier argument.
(b) The criminal matter has now moved some 10 days after the last ruling to the Court of Misdemeanours and Violation. But this was much in mind as a possible if not likely outcome at the earlier hearing which justified some monies being tendered to enable representation at that transition stage.
(c) A bail application will be made. Rather the same point arises. It is far from clear that this is the first bail application. In any event the representation at the hearing will allow another application to be made if appropriate. There remains the further difficulty already mentioned that the Defendant, in seeking deployment of the frozen funds towards bail, has to have regard to the very same monies that would fund the legal expenses.
(d) New critical evidence has come to light. This is a point which if valid needs particularisation not mere assertion. Without that, no change of circumstances can be established.
9. I am wholly unpersuaded that there has been any change of circumstance which would justify my revisiting my earlier order. Even if there was, I would be unable to accept that further funds would be justifiable. As regards the criminal proceedings, the Defendant’s legal representatives, as already noted, wanted AED 500,000 as a lump sum payable forthwith covering costs through to the end of the trial. That was at a stage when the Defendant repeatedly complained he was yet to be charged. There is a hearing this coming Tuesday. Anyway not content with the earlier request, the legal advisers now retained by the Defendant are twofold. Messrs International Counsels require AED 850,000 in total for the trial, appeal and cassation phase (payable upfront or in tranches). This is based on a rate of AED 3,500 per hour which I regard as exorbitant. Messrs Sahar by way of support to International Counsels have invoiced for AED 900,000 through the appeal stage (but “only payable once funds received for DIFC Courts out of David Haigh Funds”). This makes a total of AED 1.75 million (i.e. in excess of GBP 300,000) which is over three times the earlier price. This alone is a massive sum which is disproportionate both as to the services required and the assets that are frozen.
10. But this is by no means the total of the payments sought. Although they have come off the record in the civil proceedings, an unidentified sum is claimed for consultation with Messrs Stephenson Harwood in the criminal proceedings. Something in the region of GBP 80,000 (AED 450,000) is put forward for the ongoing cost of witness evidence both factual and expert.
11. It should also be noted that the claim for funds puts forward yet again the previous costs incurred by Samuels LLP, PWC, BR Consult, Arab Lab, Transperfect and Nasser Malalla. These have been rejected on previous occasions. To seek to resurrect them is an abuse of process.
12. In these circumstances I propose to add nothing to my previous order save to say that it is not restricted to a payment to Nasser Malalla. It can be treated as available for work over the next month including the hearing on Tuesday. As explained before any further sum will depend on a detailed estimate.
13. As regards the civil proceedings the main plank of the Defendant’s position would seem to be the application for a stay which I deal with below. There are however a whole range of other matters which I will try and deal with (although not in any logical order):
(a) The Defendant insists there has been no admission or acceptance of a good arguable case on his part. This stance is untenable (and in any event clearly misconceived). This applies to both the cause of action in fraud and the proprietary interest of the Claimant in the monies.
(b) To the extent that the application is a repeat of earlier applications for payment of fees and disbursements it can simply be dismissed.
(c) The application advanced for funds to challenge the Commercial Court order is simply a request to fund an abuse of process in the form of a collateral attack on this Court’s order.
(d) The request to be permitted to liquidate all his assets serves no purpose unless needed to fund a bail bond. Such need has yet to arise.
(e) Equally the application to exclude his bank accounts from the order runs counter to the whole purpose of the exercise.
14. I turn now to the application for a stay. I confess it is not entirely clear what the scope of this application is. To the extent that it is an application to stay the whole action, this would if granted have the side effect of precluding any applications for funds absent agreement by the Defendant or order of the Court. I suspect the focus of the stay application is in fact the hearing of the application for immediate judgment filed by the Claimant and presently fixed for the 8 September i.e. some 2 months away.
15. The following considerations seem to be the most important:
(a) The exercise of seeking immediate judgment imposes on the Claimant the heavy burden of establishing that the defence has no realistic prospect of success.
(b) From the Defendant’s perspective this requires an opportunity to file a defence and to have the benefit of legal argument in establishing that it is arguable.
(c) It is common ground that the funds were transferred to the Defendant’s bank accounts by virtue of false invoices.
(d) It is difficult to see how handwriting or accountancy evidence will help. But if it is of value the Defendant has already spent considerable sums in obtaining it.
(e) The Defendant can put in his own statement to explain how matters arose supported by statements from others. The Court will not embark on oral examination of that evidence. If it leaves an issue to be tried the immediate judgment application will fail.
16. The Defendant has already filed a defence. This, it is said, requires some amendment. The Defendant has already made various statements. He has obtained wide ranging expert evidence. It may be that an additional statement is required. There may be the need to obtain some additional evidence. On the face of it there is plenty of time to achieve this and prepare for the hearing. Indeed over the last year a large amount of material has been promulgated on the Defendant’s behalf and by the Defendant himself. The question comes back to the availability of legal assistance. This last aspect has to be considered in the context of the fact that the Defendant is himself an experienced lawyer, the history of this litigation and the prodigal deployment of resources by the Defendant up to this stage.
17. It seems to me that no good reason has been advanced for increasing the figure of GBP 40,000 for these purposes. Indeed this may be generous given the undoubted opportunities for pro bono representation which have been suggested to the Defendant. As presently advised I see no compelling reason to require the Claimant to await the outcome of a trial, an appeal (which indeed seems to be anticipated by the Defendant) and any sentence before being able to advance its claim for immediate judgment.
18. The thrust of the Defendant’s application for a stay is based on a range of matters summarised towards the end of his written application. He repeats his complaint that the Claimant improperly induced him to enter the jurisdiction on a false charge. He points to the physical difficulties in terms of access, communication and general conditions whilst in custody in dealing with the claim. He re-emphasises his complaint that his medical condition is a further impediment.
19. I confess that I am under the impression that some of these difficulties (such as access to lawyers and documents) are somewhat exaggerated. But it seems to me that the proper course is to adjourn this application until after the hearing on Tuesday when the existence or otherwise of a criminal charge or charges and the provision of translation facilities will be apparent and the availability and terms of bail will be determined. The Defendant will also have had an opportunity to raise the issue of legal assistance with the Court and to also apply for pro bono legal assistance available from practitioners registered with the DIFC Courts.
Issued by:
Mark Beer
Date of issue: 28 June 2015
At: 3pm
