CFI 034/2014 David Lawrence Haigh v (1) GFH Capital Limited (2) Hisham Al Rayes

May 14, 2015 court of first instance - Orders,Orders

Claim No. CFI 034/2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE JUSTICE SIR DAVID STEEL

BETWEEN

DAVID LAWRENCE HAIGH

Claimant

and

(1) GFH CAPITAL LIMITED

(2) HISHAM AL RAYES

Defendants

ORDER OF JUSTICE SIR DAVID STEEL

UPON the Claimant filing the Claim form on 9 October 2014

AND UPONhearing Counsel for the Defendants at the Case Management Conference on 12 May 2015 with the Claimant’s former legal representatives in attendance

IT IS HEREBY ORDERED THAT this Claim is struck out with costs, subject to the Claimant making an application to set aside this Order within 21 days.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 14 May 2015

At: 2pm

REASONS

1. This is a Case Management Conference in proceedings in which Mr David Haigh is the Claimant. There are two Defendants, GFH Capital Limited, who is the Claimant in the Fraud action (CFI 020/2014) and Mr Hisham Al Rayes, who is an officer of that Company.

2. The claim form was issued in October 2014. It contemplated the later issuance of Particulars of Claim which were duly served quite a long time later on 16 December 2014. The claim is in respect of shares that are said not to have been transferred to Mr Haigh in accordance with an agreement with the Defendants and/or a complaint that the value of the shares that were transferred was less than prescribed by the agreement. This latter feature was originally said to be the result of “share price manipulation by the GFH Capital” but that last allegation does not in fact find its way into the Particulars of Claim.

3. The thrust of the claim is that the Claimant had been awarded a bonus which was recorded in a letter from the Second Defendant Mr Al Rayes dated 4 April 2013. The letter made provision for a cash bonus together with the transfers of GFH shares on various dates. The express terms of the letter made it plain that the transfer of the shares would not take place if for any reason Mr Haigh was no longer employed by the company by the time of the vesting date and secondly that Mr Haigh agreed that he could not make any complaint or claim in the event there was some loss of value of the shares. Despite this the claim sought damages both in respect of an alleged fall in the value of the shares transferred and in respect of a transfer due on 4 April 2014 which had not been effected. In addition, it was contended that there remained unpaid an increase in the agreed bonus said to have been offered and accepted in a telephone conversation between the Claimant and Mr Al Rayes, a conversation which is said to have taken place only 11 days after the formal letter but is unrecorded in writing.

4. The Defendants submit that the claim as advanced in the Particulars of Claim looks hopeless in respect of two matters; namely, the complaint about a devaluation of the shares which Mr Haigh, as already noted, expressly disclaimed in his countersignature to the letter, and the complaint that he had not received the April 2014 allocation of shares because that is a date by which time he was no longer employed. I agree. The Defendants also say that the entire claim against the Second Defendant is also hopeless as there is no basis on which he could be said to have personal liability to pay any bonus that was agreed. Once again I agree. I leave to one side the question whether any claim against the First Defendant is misconceived in that the bonus on one view was the liability of the Bahraini holding company.

5. That leaves the incremental bonus allegedly agreed in the telephone conversation on 15 April 2013, over and above the cash bonuses that had been accorded to him in the letter of 4 April 2013. It has to be said that it is clearly improbable that Mr Al Rayes would agree to a substantial increase in the bonus only a very short time after he had made a formal agreement with Mr Haigh, let alone fail to record that substantial variation in writing. This impression is not undermined by the somewhat incoherent further information provided by the Claimant on the topic.

6. In summary, the Claim looks very shaky. It certainly looks hopeless in part and it looks thin so far as the balance is concerned. It may be that this explains why Mr Haigh has taken so few steps to advance it. The Particulars of Claim were served in December 2014. The Defence was filed in mid-January 2015 and there was then an application to extend time for service of a Reply, which was refused. There was then an attempt by the Court to fix a CMC, but that was resisted by Mr Haigh on the grounds that it conflicted with developments in the fraud trial and he was anxious not to incur expense in relation to the share claim until that matter was resolved.

7. The Court notified the parties that a CMC was going to be fixed in this week. What has happened since then is that Messrs Stephenson Harwood who, until a very short time ago were acting for Mr Haigh, have come off the record in relation to the share claim. In doing so they explained that they understood that Mr Haigh intended to apply for a stay of the share claim until after his release from prison. The response of the Defendants is that the Court should strike out this claim on the grounds that it is so unsatisfactory that it should not be allowed to simply fester in the Court file for a long period of time and that, if so advised, Mr Haigh can resurrect it or issue new proceedings in due course.

8. Because Messrs Stephenson Harwood have now come off the record, the Court is in the slightly difficult position that Mr Haigh is not here, and therefore not able to pick up the task of prosecuting the claim or to make any submissions in response to the Defendants’ assertion that the claim is a bad one. Nonetheless I conclude that it is unsatisfactory that this claim sits idle in the file for a very long period of time, given the fact that it seems to be lacking in merit and is a claim which has not really been prosecuted by the Claimant. I propose to strike it out, but subject to an application by Mr Haigh to set aside my order to be made within the next 21 days. Failing such an application, the action is struck out with costs.