Claim No. CFI 006/2008
THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE DAVID WILLIAMS
HOWARD NORMAN LEEDHAM
OXFORD INVESTMENT MANAGERS LIMITED
(an exempted company of the Cayman Islands, Certificate
of Incorporation MC – 170960 – 17 July 2006)
Hearing: 21 March 2010
Counsel: Mr Howard Leedham (in person)
No appearance by the Defendant
Judgment: 21 June 2010
2. In September 2006, he was made an offer of employment by Mr Neil B. Stafford. Amongst other commercial and investment activities, Mr Stafford was and is the Chairman and controlling shareholder in Oxford Investment Managers Ltd, a company incorporated in the Cayman Islands on 17 July 2006 (“the Cayman Company”).
3. It was the intention of Mr Stafford and the Caymans Company to establish a wholly owned Dubai International Financial Centre (“DIFC”) subsidiary of the Cayman Company and to apply for the necessary Dubai Financial Services Authority (“DFSA”) Category Three License. Mr Stafford told the Claimant that, if appointed, he was to be responsible for the preparation, filing, and management of the application.
4. The Claimant accepted the offer of employment on 29 October 2006. His employment commenced in early January 2007. His employment ended in November 2007 in circumstances described in detail below.
5. The Claimant brought these proceedings to recover what he claims is owed to him as unpaid salary. In his Claim Form he said “the company owes me £270,849.33 in unpaid 2007 salary and three months notice salary totalling £124,999.99 (less AED 50,000) equalling £395,557.04”. While filing a Defence which disputed the claim and asserted a variety of defences there was no appearance on behalf of the Defendant at the hearing notwithstanding that due notice of hearing had been given.
“The amount of the Claim is GB Pounds 395,557.04.
A break down of the amount is as follows:
Owed salary from 1 January to 31 August 2007 at GBP 21,666 GBP 173,333.25 Two months salary, September and October 2007 GBP 83,333.33 Salary 1 November until 15 November (date of resignation) GBP 20,833.33 Less AED 50,000 (GBP 6,942.87) Total salary owed GBP 270,557.04 3 months salary owed by terms of notice GBP 125,000.00 Total claim less legal costs GBP 395,557.04″
8. The Claim Form and other Court documents (“the Court documents”) were served on the Cayman company on 18 December 2008. Although Mr Stafford later claimed that the Defendant had not been served until the Court emailed a copy of the claim documents to him on 15 July 2009, the Court finds on the evidence contained in the Court file that:
11. The Claimant, therefore, applied for Judgment by Default but on 23 September 2009 advised the Court that, although the “Defense” lodged on 16 August 2009 was not served in accordance with the Rules of Court, its existence could be interpreted as “the Defendant’s ineptly served desire to defend the claim”. He acknowledged that in such circumstances any Default Judgment might be overturned. He, therefore, elected not to proceed with the application for a Default Judgment.
12. It will be necessary to consider the unsigned typed three page Defence in detail below. For present purposes it is sufficient to record its conclusion which stated:
In conclusion, Oxford DIFC, the purported Defendant, maintains that:(a) the Claimant was never an employee of Oxford DIFC, had no contractual relationship with the company and that Oxford DIFC does not owe him any money;(b) the Claimant was at all times employed by Vientia;(c) the Claimant had agreed to take only 50% of his salary until the Fund closed. The Fund has still not closed; and(d) any claim that the Claimant may have could only be against Vientia or Oxford Cayman, that each of these entities lies outside the jurisdiction of the DIFC Courts and any such claim should be brought either in the Jersey courts or the Cayman Island courts.”
13. By email on 8 October 2009 Mr Stafford was notified that a Case Management Conference would be held on 15 December 2009. There was dialogue with Mr Stafford about the suitability, from his standpoint, of that date for the Conference. He eventually agreed by email of 13 October 2009 to the conference date of 16 December 2009 which the Court had by then specified as the conference date. However, as noted by the presiding Justice, “On 16 December 2009 Mr Stafford was sent the Case Management Directions of Colman J of December 2009, the Defendant having failed to appear due to the ill health of its representative, Neil Stafford”.
Issues for Determination
14. The Case Management Directions ordered that the following issues be determined at trial:
15. To the listed issues may be added the question of the name and true identity of the Defendant and the assertion of lack of jurisdiction set out in the Respondent’s Defence. The amended list of issues is, therefore, as follows:
Issue (a): Name and True Identity of Defendant
“Case CFI 006/2008
21 March 2010
APPLICATION TO AMEND1. As Claimant, I hereby apply for the permission of the Court to amend my Claim Form and all subsequent documents pursuant to DIFC Rules 18.2 and 18.12 by deleting the words (DIFC Registered No.0393) and adding the words “Limited” (an Exempted Company) incorporated in the Cayman Islands (17 July 2006) Certificate of Incorporation dated 17 July 2006, Certificate Number MC-170960).2. I submit that there is no need to serve the Defendant again since the Defendant has filed a Defence (Trial Bundle document 13) acknowledging that Oxford Investment Managers Limited (Cayman Islands) has been served at its Registered Office in the Cayman Islands and the Defence itself shows that the Defendant clearly understands the nature of the case being made against it.
18. The Court noted that the relevant DIFC Rules followed very closely the English CPR Rules in relation to the grant of permission to amend the name of a party. The leading English case is Cobbold v Greenwich LBC [9 August 1999] unreported Court of Appeal, which contains a dictum of Lord Justice Peter Gibson. This dictum has been relied upon in many later cases, as is noted in Civil Procedure Volume 1 of the White Book 2007, page 420. Lord Justice Gibson said the overriding objective of the CPR is that the Court should deal with cases justly. That includes, so far as practicable, ensuring each case is dealt with not only expeditiously but also fairly. Amendments of the name of parties in general ought to be allowed so that the real dispute between the parties can be adjudicated upon.
19. In this case the failure to specify the correct name of the defendant company was understandable in view of the way in which Mr Stafford and other individuals employed within the Stafford group of companies used letterhead containing only the words “Oxford Investment Managers” and also because of the frequent use by Mr Stafford of different companies within his Oxford Investment Managers group for different purposes. The Court held that the inadequacy of detail in the name of the Defendant was a genuine mistake and ought to be remedied to avoid injustice.
20. The Court considered that it was appropriate for the application to be granted without the need to serve the application itself on the Defendant and it so ruled. The Defendant had filed its Defence which specifically addressed the issue of the proper Defendant. It advanced separate defences depending on whether the claim was construed as one against the DIFC Company which had been formed in mid-2007 but then de-registered or the Cayman Company. Mr Stafford is the controlling shareholder of the Cayman Company. It was, therefore, only fair and just to allow the amendment rather than adjourn the proceedings and require service of the application to amend the name. The Defendant had every opportunity to attend the hearing and the Claimant should not suffer further delay by the Court insisting on service. Even if the Defendant had been present it could not have successfully resisted the application.
Issue (b): Jurisdiction
21. The Defendant challenged jurisdiction in that section of the Defence headed Identity of Defendant which stated:
“1. Identity of the Defendant
The Claimant has issued a Claim against Oxford Investment Managers Limited incorporated in the DIFC. However, there are two Oxford Investment Managers Limited (the other one, which is the parent of the DIFC Company, is incorporated in the Cayman Islands) and the Claimant appears to have served the Claim at the registered office of the Cayman Islands entity and not the DIFC Company. It is, therefore, not entirely clear which entity the Claimant is trying to make the claim against.
If the Claimant is making the claim against Oxford Investment Managers Limited in the DIFC (“Oxford DIFC”) (as it appears from the Claim, despite the erroneous address that the Claim was sent to), then we refute that the Claimant was ever an employee or paid officer of that company. The DIFC entity was simply a vehicle that was incorporated to be utilised if and when the proposed Oxford Health, Science and Technology Fund LLP (the “Fund”) was launched. The Fund has, to date, still not launched and therefore Oxford DIFC has still not performed any function.
Therefore, we maintain that it is not possible for the Claimant to have any claim against Oxford DIFC as he was never employed by that entity and had no contractual arrangement with that entity.
If, however, the Claimant is actually claiming money from Oxford Investment Managers Limited, Cayman Islands (“Oxford Cayman”), then we suggest he makes such a claim in the appropriate jurisdiction, being the Cayman Islands courts. For the record, we refute that Oxford Cayman owes the Claimant any money.” (Underlining added)
22. Later in the Defence under the heading Employee Status this assertion was repeated:
“As far as Oxford DIFC is concerned, the Claimant never worked for the company and the company never had any obligation to pay him anything. As far as Oxford Cayman is concerned, the Claimant was, for a time, effectively seconded to the company whilst the Fund was being promoted. This secondment was made for practical reasons and was made with the agreement of the Claimant. The contractual relationship (and responsibility to make any salary payments) always lay with Vientia and all payments to the Claimant came from the personal bank account of Mr Neil Stafford. However, even if it was decided that the Claimant was an employee of Oxford Investment Managers Limited, it would and could only be Oxford Cayman and not Oxford DIFC and therefore any dispute lies outside the jurisdiction of the DIFC Courts.” (Underlining added)
23. In Shihab Khalil v Shuaa Capital psc CFI 017/2009 Judgment, 7 December 2009, Colman J discussed the jurisdiction of the DIFC Courts as follows:
The relevant provisions of DIFC Law identifying the scope of the Court’s jurisdiction are set out in Article 5(A) of the Judicial Authority Law (No. 12 of 2004) which provides as follows:
“(1) without prejudice to paragraph 2 of this Article, the Court of First Instances shall have the exclusive jurisdiction over:(a) Civil or commercial cases and disputes involving the Centre or any of the Centre’s Bodies or any of the Centre’s Establishments.(b) civil or commercial cases and disputes arising from or related to a contract that has been executed or a transaction that has been concluded, in whole or in part, in the Centre or an incident that has occurred in the Centre.(c) Objections filed against decisions made by the Centre’s Bodies, which are subject to objection in accordance with the Centre’s Laws and Regulations.(d) any application over which the Courts have jurisdiction in accordance with the Centre’s Laws and Regulations;”
And Article 19(1) of DIFC Law No 10 of 2004 which provides as follows:
“The DIFC Court of First Instance has original jurisdiction pursuant to Article 5(A) of the Judicial Authority Law to hear any of the following:(a) civil or commercial cases and disputes involving the Centre or any of the Centre’s Bodies or any of the Centre’s Establishments;(b) civil or commercial cases and disputes arising from or related to a contract concluded or a transaction concluded by any of the Centre’s Establishments or the Centre’s Bodies;(c) civil or commercial cases and disputes arising from or related to a contract that has been executed or a transaction that has been concluded, in whole or in part, in the Centre or an incident that has occurred in the Centre; and(d) Any application over which the DIFC Court has jurisdiction in accordance with DIFC Laws and Regulations.”18. In order to bring himself within Article 5(A) (b) the Claimant would have to establish that his claim arose from or related to a contract that had been executed in the Centre or arose from or related to a transaction that had been concluded in the Centre or from an incident that had occurred in the Centre. In order to establish that the claim “arose from” or “related to” such a contract or transaction the claimant must, in my judgment, be a party to any such contract or transaction and further the contract or transaction must form an essential part of his cause of action. Moreover, in the context of “civil or commercial cases and disputes” the natural meaning of “transaction” is wide enough to include a range of deals including, but not confined to, a contract, and the word “concluded” in that context obviously does not mean “completely performed.” So it must therefore mean concluded in the sense of “entered into”. Accordingly, the more specific phrase “contract that has been executed” must in, my judgment, refer to a contract that has been performed within the Centre. The words “in whole or in part” separated by parenthetic commas, must be available to qualify “executed” as well as “concluded” and therefore have the effect of covering a claim relating to a contract which has been wholly or partly executed, in the sense of performed, within the Centre.
24. In my judgment there is no doubt that this Court has jurisdiction under Article 5A (b) since, as discussed in more detail below, the employment contract had its genesis within the DIFC was signed within the DIFC, and performed within the DIFC and, to be more specific, largely in the offices of the Cayman company or its DIFC subsidiary which were leased within the DIFC. The salary payments made by Mr Stafford on behalf of the Cayman Company were sent to a bank within the DIFC. It matters not that one of the parties to the employment contract was a foreign corporation based elsewhere than in the Dubai International Financial Centre.
Issue (c): Did the Claimant have a contract of employment with the Defendant Cayman Islands Company?
Issue (d): Is the Claimant bound by any agreement for the reduction of his salary as alleged in the Defense and, if so, what were the terms of that agreement?
Oral evidence of Mr Burkett (DIFC) and Ms Klitcher (DFSA)
“4. On or about 10 December 2006, the DFSA received a license application from Oxford Investment Managers Limited (“Oxford”), in formation, to become an Authorised Firm. At the time the application was received I was on maternity leave from my position as a Manager in the Authorisation Department of the DFSA. I returned from maternity leave on or about 25 March 2007. On or about 19 April 2007, I was assigned to replace the original case officer to complete the review of Oxford’s license application.I have reviewed the files containing Oxford’s license application and I am able to state the following:a. On or about 27 February 2007, the DFSA received an email from Mr Howard Leedham nominating himself as a further contact person for Oxford’s license application. I refer to a true copy of Mr Howard Leedham’s email dated 27 February 2007, and marked Exhibit “MMK1”;b. On or about 27 February 2007, the DFSA received a letter from Oxford’s legal advisors, Norton Rose, inviting the DFSA to contact Mr Howard Leedham should the DFSA require any further information with respect to the license application. I refer to a true copy of the letter from Norton Rose dated 27 February 2007, and marked Exhibit “MMK2”;c. On or about 4 March 2007, the DFSA received a letter from Mr Howard Leedham, on behalf of Oxford, proposing that he would undertake the licensed function of Licensed Director for Oxford. A Licensed Director is a function prescribed under Chapter 10 Rule 10.2.2(b) of the Authorisation Module (“AUT”) of the DFSA Rulebook. I refer to a true copy of Mr Howard Leedham’s letter dated 4 March 2007, and marked Exhibit “MMK3”;d. On or about 5 August 2007, the DFSA received an email from Mr Neil Stafford requesting that the license application for Oxford be withdrawn. I refer to a true copy of Mr Neil Stafford’s email dated 5 August 2007, and marked Exhibit “MMK4”; ande. For the period from 27 February 2007 to 5 August 2007, a large proportion of the correspondence between the DFSA and Oxford (including telephone calls, meetings and email correspondence) was conducted with Mr Howard Leedham.”
30. In oral answer to questions from the Claimant she explained the ownership structure put forward to the DFSA by Oxford Investment Managers by reference to a copy of the relevant Form AUT—core file: Application for authorisation to carry on Financial Services in or from the DIFC, which was produced to the Court by Claimant (Ex 1). She confirmed it was a true copy of the original filed with her at the DFSA. She said that it showed Mr Neil Stafford was the ultimate controller of the applicant firm and that he had full ownership of the applicant entity. The Form AUT—Core contained the following information:
“Full or proposed name of Applicant to be Licensed: Oxford Investment Managers Ltd
Individual controllers: Stafford Neil
Shareholding in Applicant or holding company as appropriate: 100%
List below all individuals who will act as authorised individuals in the Applicant firm: [to be done later]
Date and place of incorporation/formation of the Applicant: 17th July 2006 Cayman Islands”
31. She also confirmed that the DFSA had been promised many times by the Applicant, Oxford Investment Managers proof of the lodging in a local bank of the required minimum capital requirement. However, it was never supplied and in the end the DFSA, in August 2007, refused to grant any further extension of time to satisfy this requirement.
The Witness Statements
33. Here were invoices left unpaid by Mr Stafford including payment for the office rent and payment for the stationery that were usually paid on a monthly basis. In September 2007 or thereabouts Mr Leedham informed her that their salaries, which were supposed to be paid by Mr Stafford, had failed to arrive. Mr Leedham then paid her salary from his pocket. She said that on reflection this was not right. So she sent email to Mr Stafford emphasising the suffering he was inflicting on her and her family, being just a very ordinary individual in this part of the world and pleaded him to pay what he actually owed.
34. She said she also accentuated in her message to Mr Stafford that she accepted the job with OIM with full confidence that she would be leaving her company for a better company where she could benefit more but all her hopes had disappeared because of what Mr Stafford did to her and to Mr Leedham.
35. She stated that Mr Stafford did not reply to her first email, so she sent a follow up message which he answered. He promised to pay what he owed. As far as she knew she was the only one paid while Mr Leedham did not receive his salaries from Mr Stafford.
36. She said that from June 2007 till November, she and Mr Leedham had remained dedicated to their jobs despite the situation being abandoned totally by Mr Stafford. She concluded by saying she was lucky as Mr Leedham had been there to support her. He was a man with a very kind heart as, despite the fact there was no money from the fund where the salaries were to be taken due to Mr Stafford’s unfavourable act. Mr Leedham had provided her salary without hesitation from his pocket
37. As a result and in her own honest opinion, Mr Leedham deserved to be paid for all the services he had done for Oxford Investment Managers.
38. There was also a statement from Ms Nada Al-Assaad Kivela who was an employee of OIM in the position of Office Manager from February to May 2007. In that capacity, her activities included liaising with parties in the DIFC and DFSA concerning OIM’s registration as a new company, fulfilling administrative tasks, and coordinating various business correspondence with employees and external prospective customers and partners. Her immediate supervisor was OIM Executive Director, the Claimant, Mr Howard Leedham.
39. During his tenure, Mr Neil Stafford was frequently consulted as the ultimate decision maker and approver, and was involved day to day operations, including financial transactions such as salary payment.
40. Ms Kivela said payment of her salary was consistently late (with one exception), and was only paid out “after my escalation to Mr Leedham and his follow up”. She left OIM because of various instabilities in the company, including the unreliable salary payments
41. The other witness statement was from Mr Robert C. Bush Jr. Prior to meeting Mr Stafford in January 2007 he said he had developed a trusting business relationship with the Claimant who had licensed the very first Hedge Fund in the DIFC prior to joining OIM as their Executive Director.
42. The Claimant had introduced him to Mr Neil Stafford and the Claimant’s association with Mr Stafford gave credence to Mr Stafford’s claims of significant wealth and sizeable business deals. Given his network of contacts in Dubai Mr Bush was asked by Mr Stafford if he would provide introductory services to OIM. Mr Bush was available for such work and negotiated a contract which included a percentage of funds raised into OIM’s proposed fund and an unconditional retainer of US$10,000 per month for three months, totalling US$30,000.00.
43. His evidence was that the agreement was discussed at length with Mr Stafford and signed by him on 6 February 2007. Mr Bush then proceeded to introduce Mr Stafford to several institutional investors, one of note being Dubai Islamic Bank (DIB) at CEO level. During the meetings with DIB Mr Bush was fairly taken aback by some of Mr Stafford’s claims of assets under management, namely US$300m, which he now knew not to be true.
44. During the second meeting at the DIB Mr Stafford claimed direct links with the leadership of Libya but he was embarrassed by DIB’s CEO who knew the leadership personally and upon his questioning of Mr Stafford the latter became embarrassed and evasive.
45. A further meeting was scheduled with DIB, but DIB subsequently cancelled without provision of any reason to OIM. Sometime later this was revealed to be because of their doubts over Mr Stafford’s credibility and his outlandish claims.
46. As to his remuneration Mr Bush said that upon the first retainer payment being due Mr Stafford became difficult to contact. Mr Stafford then informed Mr Bush that he would only pay the retainer at the end of the three-month period and not in accordance with his signed agreement. Upon the completion of the three months, and several more prestigious introductions for OIM Mr Bush requested his full retainer payment. Mr Stafford became extremely evasive but said on several occasions that he would pay. In the event he never did Mr Bush found out two months later that he had left Dubai with no fixed date for return. He was subsequently informed that OIM had been evicted from the DIFC for non-payment of rent. In conclusion Mr Bush said that:
“My experience of Mr Stafford is that he has not respected his own word or his own signature. It is now apparent that his procrastination regarding payment to make it “go away” seems to have been deliberate and I would not do business with Mr Stafford again or recommend that anyone do business with this individual or companies that he owns. The $30,000.00 he owes me remains unpaid.”
47. The Court finds that all of the evidence adduced by the Claimant, both oral and written, strongly supports the contention of the Claimant that he was employed by Oxford Investment Managers in the DIFC in Dubai from 2 January 2007 until 15 November 2007.1 The real question is by which corporate entity. I refer to a “corporate entity” because there was no suggestion that Mr Stafford himself was the Claimant’s employer. The Defence did not suggest any such thing. It asserted that the corporate entity which employed the Claimant was a company called Venetia. I shall consider this allegation when outlining the evidence of the Claimant.
Evidence of Claimant
49. A formal letter offering the Claimant a position was handed to the Claimant at the offices of Norton Rose, Solicitors, at their offices in the DIFC on 29 October 2006. Norton Rose was the law firm which customarily represented Mr Stafford and the Cayman company. The Claimant, Mr Stafford, and a lawyer from Norton Rose, Mr Graham Muir, were present.
50. The letter was in the following terms:
“29 October 2006Dear HowardFurther to our conversations I am pleased to confirm your position as Chief Executive Officer of Vientia Capital Partners Limited (“VCP”).
The package will be as follows:(a) A two year contract, automatically renewable unless revoked by either party (subject to 90 day Notice clause);(b) A salary of £500,000 (five hundred thousand pounds) paid per annum;(c) A 10% shareholding in VCP (which will give you 10% of the net profits of VCP) together with a seat on the Board of VCP. For the avoidance of doubt, you will benefit from any profits made by any subsidiary companies created under or by VCP through your 10% equity stake in VCP. You will also be entitled to a seat on the board of directors [sic] of any subsidiaries of VCP;(d) Assistance with accommodation and annual flights; and(e) Full health and life insurance benefits (self and two children). It is anticipated that your start date will be on (or as close to) 1 November 2006, or such other date agreement by mutual agreement, to be no later than 1 February 2007.
Best regardsNeil StaffordPO Box 309 GT
Cayman Islands …”
The Claimant emphasised the Cayman Island address at the foot of the letter.
51. As to the question of the involvement of Vientia Capital Partners Ltd (“VCP”) the Claimant’s evidence was that:
“Mr Stafford said that for now I would be given the title of CEO Venetia so as not to upset the defendant’s then senior executive officer, Mr Christopher Boyle, but it was reiterated that my employment duties would be solely DIFC based as negotiated in order to utilise my experience in the DIFC and with the DFSA and to also lever my local relationships in the [DIFC] financial sector.”
52. The Court finds this evidence is truthful and accurate. By the time the employment commenced this charade had ended. As noted below, the Defence acknowledged that in 2007 the Claimant had been seconded to the Cayman company.
53. The Claimant orally accepted the offer at the meeting and shortly thereafter resigned from his then current position and was “basically unemployed for the two months while I waited for my non-compete to expire”. His contract required him to commence work no later than 1 February 2007.
54. The Claimant’s oral evidence was that in discussions with Mr Stafford in November/December 2006 when he was not working, Mr Stafford advised him that Claimant would have the title Executive Director in the DIFC. Thus the title he had from the beginning of his employment on 2 January 2007 until his resignation.
55. There was produced to the Court by Claimant a letter dated 2 January 2007 addressed to the Emirates Bank. He said that he had needed such a letter to provide to his bank, Emirates Bank, to prove to the Bank that he was back in employment. The Claimant had drafted it and requested Mr Stafford to sign it. Mr Stafford made some additions and alterations to it including the description of the DIFC company and then signed it.
56. At the end of January 2007, the Claimant asked Mr Stafford how he would be paying his salary. He replied “by cheque”. The Claimant asked Mr Stafford how long it would be before the first salary cheque was paid. Mr Stafford then asked the Claimant if he would accept 50% of his salary “until the fund closed which was expected to be in a couple of months”. The Claimant construed this as being February or March 2007. The Claimant reluctantly agreed to the proposal.
57. However, when the first cheque arrived it was for £20,000 which was much less than the 50% promised.
58. Toward the end of February a short lease in the DIFC was taken up. The Claimant said he negotiated the lease on behalf of the Cayman company. (The DIFC subsidiary was not incorporated until 14 May 2007).
59. There was produced to the Court a true copy of a Board resolution of the Cayman company passed on 11 March 2007. This was in the following terms:
IN WITNESS WHEREOF this resolution is duly executed by
60. In his evidence the Claimant said that the securing of the lease were authorised by the Cayman company and secured on its behalf as required by the resolution. The Claimant pointed to these facts as showing that he must have been employed by the Defendant company since the DIFC subsidiary had not been formed at this point. The Court notes in passing that this evidence is strongly supported by the statement in the Defence, referred to in paragraph 22 above, that “the Claimant was for a time effectively seconded to the company (Oxford Cayman) whilst the fund was being promoted”.
61. The Court accepts the Claimant’s evidence that as from the outset of his employment, especially since the DIFC company was not in existence in January 2007, that he was acting as an employee of the Cayman company at the direction of its controller Mr Stafford. The date of incorporation of the Cayman entity was 2006 and the certificates for the DIFC entity were not issued until May 2007.
62. The Court referred the Claimant to the Defence which asserted that the Claimant had always been an employee of Vientia. The Claimant said that the Defence was the first time it had been suggested that he was all along an employee of Vientia. He confirmed his earlier explanation (see paragraph 50 above). He stated that he had never conducted any business for Vienta and was never asked to. When asked to look at the statement in the Defence that:
63. The Claimant said he had never had anything to do with Vientia Capital Partners and it was never suggested by Mr Stafford or anyone else until the Defence was filed that he had been employed by Vientia. The Claimant produced evidence that that company had been struck off the Jersey Companies Register on 1 October 2008.
64. As to the Defence contention, noted in paragraph 12(c) above, that “the Claimant had agreed to take only 50% of his salary until the Fund closed and the Fund still has not closed, it is necessary to examine the events in mid-2007. The Claimant wished to purchase an apartment in Dubai. He needed his unpaid back pay to help finance the purchase. He explained the situation to Mr Stafford and said he needed his back pay in order to put enough funds down to reduce the size of the mortgage on the property. He emphasised to Mr Stafford that he would only buy the apartment if he was going to see good my back pay in the immediate future. Mr Stafford said, “I don’t see a problem”.
65. The Claimant then provided a letter to the National Bank of Dubai which was to be the mortgage company. The letter confirmed the amount of his salary because the size of the salary as stated on his salary letter did not match the inflow or the deposits from Oxford Investment Managers. Four documents were signed by Mr Stafford for provision to the Banks. One of them, a letter Mr Stafford signed on 11 June to the Bank of Dubai referred to the unpaid salary. It stated:
66. The Claimant said that the £130,000 referred to in the letter represented the unpaid amount of the agreed salary. The Court finds the reference in the letter to the then unpaid salary of £130,000 amounts to an unequivocal statement by the Defendant that the Claimant had not foregone any salary but had agreed earlier only to defer payment. The letter states unequivocally that the unpaid salary “will be payable no sooner than 30 June 2007 and no later than 31 December 2007 as per his request”. This is wholly inconsistent with any claim that the salary had been foregone permanently.
67. The failure of Mr Stafford or the Defendant to pay the back pay owing became a serious problem for the Claimant. He was later told by Mr Stafford that the back pay would come out of the Minimum Capital Deposit which would have to be paid on behalf of the DIFC subsidiary in order for it to achieve registration with the DIFSA. As to that, the evidence of the Claimant was as follows:
69. As to the registration of the DIFC subsidiary, progress had been made in May but its bank account had not been seeded. The amount needed on 17 July 2007 was in the vicinity of US$975,000. Mr Stafford emailed saying the money was on the way. The Claimant negotiated extensions of time with the DFSA but in the end the funds did not materialise. The Claimant advised that it would be damaging to Mr Stafford’s reputation and any future dealings in the DIFC if the application was refused and he recommended it be withdrawn. Mr Stafford agreed and it was withdrawn.
70. In late September 2007, at the instructions of Mr Stafford the Claimant commenced work on a DIFC reapplication. At that time the Claimant was under great financial strain. Despite significant protest, Mr Stafford basically made him remain on half-salary until the end of August 2007. At the end of August the Claimant was working on the revamp of the original application. He was still emailing Mr Stafford frequently and calling him trying to get payment of the back-pay. By now he owned the apartment because he would have lost his deposit if he had not bought it. He was now having to make good on the mortgage, after having to put twice the down-payment that he had expected to have to put down.
71. The re-application work continued but at the end of September no back salary had arrived and Mr Stafford was completely unresponsive. The Claimant continued to correspond with him and to ask him repeatedly what was happening with salaries.
73. The Court finds that there was no agreement for the reduction of his salary so as to preclude a full recovery of his agreed salary. The Court consider that the arrangement to take 50% only was an agreement to a payment of 50% only for a reasonable time, not as alleged at one point by Defendant, “until the Fund” closed. A reasonable time had long since passed by the time of the Claimant’s resignation in November 2007. This defence fails accordingly.
74. For all of the foregoing reasons the Court answers Issue (c) “Yes” and Issue (d) “No”.
Issue (e): Is the Defendant bound by an admission in the letter of 8 January 2009 that it was liable for unpaid salary in the amount claimed or any amount?
The parties now wish to settle on the following terms:
It must also be explicitly understood that all facts and correspondence regarding the Claim and this letter of agreement shall remain confidential and will not be disclosed to any parties with the exception of legal advisors.
“NB Stafford” (signature)
77. It will be noted that the offer was not expressed to be without prejudice. The signed offer letter explicitly acknowledges in paragraph 1 that Oxford Investment Managers owes the full amount of the claim.
78. The offer was not accepted by the Claimant because of the uncertainty of paragraph 1. The letter amounts to an admission of liability for the full amount claimed. However, the Court was not given details about the circumstances in which the offer was made, and in particular whether the offer was made in the course of without prejudice negotiations. The Court is inclined to the view that paragraph 1 of the letter contains an admission that the Defendant owes the Claimant £395,557.04. However, this is not a matter of moment because the Court finds, on the evidence, that the sum of £395,557.04 is due and owing and nowhere in the Defence was there a challenge to the precise quantum of the claim. The only aspect of quantum which was in dispute was the suggestion that the Claimant had agreed to defer payment of 50% of his salary. The Court has rejected this Claim.
Issue (e): What Amount is Due?
Issues (f): Interest
81. I consider that, in the circumstances of this case, the Claimant is entitled to an award of pre-judgment interest. However, the Court has a discretion as to the period for which interest should run. As to the exercise of the discretion in this case, in discussion with the Court the Claimant acknowledged that his lawyer’s letter of 11 February 2008 was the first occasion on which he had notified the Defendant of the precise amount of the claim he was making. An appropriate date from which interest should run is, therefore, 25 February 2008 i.e. 14 days after the solicitor’s letter of 11 February 2008.
82. The Claimant is also entitled to interest on the amount awarded under this judgment by virtue of DIFC Law No.10 of 2004, DIFC Rule 45.19 (Interest on Judgment Debts).
83. As to the rate of interest, the Court holds that the rate for both pre and post-judgment shall be as prescribed in Practice Direction No.1 of 2009 (Interest on Judgments) and Practice Direction No.1 2009 (Interest on Judgments (Clarification)). They both provide that “a Judgment of the DIFC Courts shall carry interest, from the date the Judgment is entered, at the rate of 1% over the Emirates Interbank Offer Rate (“EIBOR”) or such other rate as the Judge may prescribe in the Judgment. Reference to Eibor is to the Eibor three month reference rate as at the date of Judgment”.
Issue (g): Costs and disbursements
“Until such time as the Rules are fully enacted and thereafter if no provision is made … by the Rules or any law enforced in the DIFC, the following rules of practice and procedure shall be followed and adopted:
86. The legal position in the United Kingdom may be summarised as follows. For more than a 100 years it was the practice in the United Kingdom not to award costs to a litigant in person: London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872. In that case Brett MR said at page 875:
“When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs his solicitor to assist him; the remuneration to the solicitor is mainly paid out of pocket. He has to pay the fees of the Court, and that is money paid out of pocket; but for the loss of time the law will not indemnify him.”
87. There is nothing on the topic in the English Admiralty and Commercial Courts Guide. Therefore, one then turns to the provisions of Rule 48.6 of the CPR which deals with the costs of litigants in person. Rule 48.6 provides as follows:
“Litigants in person
(3) The litigant in person shall be allowed—
(a) costs for the same categories of—
(4) The amount of costs to be allowed to the litigant in person for any item of work claimed shall be—
(6) For the purposes of this rule, a litigant in person includes—
89. As to that limit the next question is what would have been the costs in this case if the Applicant had been represented by a lawyer and how should the Court establish the starting point from which the two-thirds calculation is to be made? Based on my own experience of fees of counsel in a DIFC case such as the present, I consider that the hourly rate of an experienced law firm associate with moderate Court room experience would be AED1500 per hour which approximates at current exchange rates to a US400 hourly rate. I consider that this rate should be applied to half of the 150 hours claimed since I regard 75 hours as a more realistic number of hours for this case. This results in a costs limit of US$30,000 and the Court must not award any greater sum than two thirds of this amount. Two thirds of that sum amounts to US$20,000.00 and the Court therefore awards $20,000.00 in this case. Out of pocket disbursements
90. As the Court file shows, the Claimant has had to pay filing fees and other disbursements totalling US$3,850.00. Decision
91. In summary, the Claimant is entitled to judgment for the amount of his claim plus costs and disbursements. It is, therefore, ordered that the Defendant forthwith pay the Claimant:
Justice David Williams
Date of Issue: 22 June 2010
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