October 03, 2016 court of first instance - Orders,Orders
Claim No. CFI 037/2015
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BEFORE THE DEPUTY CHIEF JUSTICE SIR DAVID STEEL
BETWEEN
WILLIAM DANIEL MILLIGAN
and
AL MOJIL INVESTMENT LIMITED
ORDER OF THE DEPUTY CHIEF JUSTICE SIR DAVID STEEL
UPON reviewing the Claimant’s Application No. CFI-037-2015/3 dated 9 June 2016 seeking to amend its particulars of claim (the “Claimant’s Application”)
AND UPON reviewing the Defendant’s Application No. CFI-037-2015/2 dated 7 June 2016 seeking to strike out the Claimant’s claim (the “Defendant’s Application”)
AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing on 6 September 2016
IT IS HEREBY ORDERED THAT:
1.The Claimant’s Application is granted, save for paragraph 21of the particulars of claim.
2. The Defendant’s Application is rendered moot.
3. There be no order as to costs.
Issued by:
Natasha Bakirci
Assistant Registrar
Date of issue: 3 October 2016
At: 9am
SCHEDULE OF REASONS
1.The Claimant applies to make substantial amendments to the particulars of claim following the discontinuance of his claim against a former Second Defendant, MMG. The Defendant (“AML”) has a counter-application for a strike out order but it is accepted that if leave to amend was to be granted such would be moot. Per contra, if the application for leave was refused the strike out application would in effect be bound to succeed.
2. The skeleton arguments and oral submission in regard to this application have been elaborate and lengthy but it is the nature of such an application that the court should avoid extensive reasoning, particularly with the aim of avoiding trespassing onto an analysis of the merits.
3. It is the Claimant’s case that he is entitled to recover his salary for July 2015, payment in lieu of 3 months’ notice and an end of service gratuity from AMI by reason of the termination of his employment contract. The position of AMI is that at all material times the Claimant was employed by MMG as indeed was contended by the Claimant in the claim against MMG which has been discontinued.
4. This change of tack by the Claimant is characterised as so implausible, contradictory and inconsistent as to justify refusal of the application to amend. However, in this context it is important for the Court to bear in mind the need to avoid conducting a mini-trial.
5. The primary grounds for the contention that the claim against AMI is unsustainable are threefold:
(a) The claim is advanced in Saudi Riyals which is not the currency prescribed under the AMI agreement
(b) The total sum of 1,155,045 Saudi Riyals is money due under a contract with MMG
(c) The claim in respect of 3 months’ notice is only consistent with the MMG contract.
6. As regards these points the response of the Claimant is as follows:
(a) An additional amendment is required to express the claim in UAE Dirhams and not Saudi Riyals
(b) The equivalent claim in Dirhams is due under the AMI contract
(c) The one month notice period in the AMI contract was amended to 3 months.
7. It is fair to say that the proposed amendment is in some respects not easy to follow. Furthermore, a number of searching questions are raised by AMI as to its credibility given the transposition of the claim by way of substitution of AMI for MMG. I have reread the skeleton arguments and my notes of the oral argument together with the documents referred to in the bundles.
8. I confess to have considerable doubts as to the validity of the claim now advanced. But I am unable to accede to the submission that the claim is in effect bound to fail.
9. The Claimant’s case in summary is that:
(a) He was employed by AMI under contract dated 26 May 2014
(b) On 10 June 2014 AMI seconded the Claimant to MMG
(c) In order to conduct affairs in Saudi Arabia and obtain an Iqama, the Claimant entered into a further employment contract with MMG dated 1 June 2014 solely for that purpose
(d) It was agreed that AMI would remain liable for his remuneration
(e) The employment contract was terminated on 2 August 2015.
10. Quite apart from its inconsistency with the claim as previously advanced, there are clear evidential difficulties with these contentions. For example:
(a) The Claimant was recruited for the post of CEO of MMG based in Dammam.
(b) The contract with AMI was proposed as an interim one for 2 months pending conversion to a position with MMG
(c) Although an employment agreement with AMI was executed on 26 May 2014 for an unlimited period with provision for payment in Dirhams, a further employment contract with MMG was executed on 1 June 2014
(d) Although AMI appear to have paid the Claimant’s salary such was against the background of promissory notes made by the Claimant for reimbursement of AMI in the event of payment by MMG
(e) Following the Claimant’s resignation MMG furnished a calculation of outstanding salary in Saudi Riyals
(f) The Claimant sought confirmation of three months’ notice by email dated 2 August 2015
(g) Further the Claimant emailed AMI on 20 October 2015 seeking payment based on one month notice (albeit somewhat surprisingly on the premise that he had only given notice to MMG and not AMI)
(h) On 29 November 2015, AMI wrote to the Claimant’s legal representatives confirming that the Claimant has resigned from both AMI and MMG.
11. I recognise that this material may well present a significant obstacle to the new claim advanced in the amendment, bearing in mind that the claim against MMG has been abandoned. But in considering all these issues, it is a paradigm example of circumstances in which the Court would benefit from witness evidence particularly if it was exposed to cross-examination. Any attempt to analyse the material on the present level of disclosure without oral evidence would be fairly described as a mini-trial.
12. The application to amend is granted, save that the proposed paragraph 21 is not a permissible amendment, being both irrelevant and improper.
