Claim No: CFI 026/2012
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE SIR JOHN CHADWICK
DUBAI AEROSPACE ENTERPRISE (DAE) LIMITED
||16 January 2013
||Bushra Ahmed (KBH Kaanuun) for the Claimant
Fiona Campbell (Al Tamimi & Company) for the Defendant
||16 January 2013
JUDGMENT OF JUSTICE SIR JOHN CHADWICK
1. In these proceedings the Claimant, Mustafa Al-Hendi, seeks payment from his former employer, Dubai Aerospace Enterprise (DAE) Ltd, of sums in excess of US$1.3 million in respect of alleged breaches of Contract of Employment and benefits said to have become due to him on the termination of that employment.
2. The Claimant was employed under a written contract dated 8 July 2007. His employment is said to have commenced on 15 October 2007 and to have been terminated in early 2011; either by notice given by him on 30 or 31 January 2011 to expire at the end of April 2011, or by summary termination by the employer on 10 May 2011.
3. The proceedings were commenced by the issue of a Claim Form on 18 July 2012. That Claim Form was accompanied by Particulars of Claim dated 16 July 2012. The Defendant filed its Defence on 5 September 2012. On or about 27 September 2012, the Claimant served (i) a request for further information, pursuant to Part 19
of the Rules of the DIFC Court, and (ii) a notice to admit facts, pursuant to Rule 29. By application notice CFI026/2012/01, dated 30 September 2012, the Claimant sought an order that the Defendant provide responses to his request for further information and notice to admit. That application came before Justice David Williams at a Case Management Conference on 15 October 2012.
4. On 13 November 2012, Justice David Williams made an order which, so far as material, required the Defendant to file and serve response to the Claimant’s revised requests for further information as set out in a schedule said to be attached to that order. That schedule is in the form of a revised request originally prepared by the Claimant’s lawyers following the hearing on 15 October 2012 and amended by the Defendant’s lawyers and attached to an email from them dated 22 October 2012.
5. The Defendant’s response is contained in a document dated 20 November 2012 described as “Defendant’s further responses to Claimant’s revised request for further information following CMC”. That document conveniently sets out each request, as revised, and the Defendant’s response to that request.
6. The Claimant was dissatisfied with the response which it received. On 12 December 2012 he issued an application notice (reference CFI026/2012/2) seeking an order in these terms:
“(1) Unless the Defendant complies with the order of Mr Justice David Williams’ order (sic
), dated 13 November 2012, in relation to the Claimant’s revised request for further information pursuant to RDC Part 19
, by serving a full and proper amended response to a Claimant’s revised request for further information, ‘RFI’, within seven days, paragraphs 9.2, 13, 14, 15, 22, 23, 24, 26, 30, 33, 34 and 38 of the Defendant’s Defence dated 5 September 2012 be struck out.
(2) In the event that the Defendant complies with paragraph 1 above, the Claimant has permission to serve an amended reply to the Defence within 14 days’ receipt of the amended response to the RFI.
(3) The Defendant to pay the costs of and occasioned by this Application and amended reply to the Defence, if any, on an indemnity basis in any event.”
That relief was sought on the ground, as set out in the application notice, that the Defendant had deliberately and wilfully refused and/or failed to answer the RFI in contravention of the order and RDC Part 19.
7. It is that Application that is now before the Court. The task of the Court is to consider whether the revised request, which the Defendant was directed to answer by the order of 13 November 2012, has received an adequate response in the document of 20 November 2012; and, if and to the extent that it has not received an adequate response, to consider whether this is an appropriate case in which to make an “unless order” in relation to some, and if so which, of the paragraphs of the Defence mentioned in the application.
8. It is convenient, first, to address the response to the revised requests (1), (9) and (10). Revised request (1) relates to paragraph 9.2 of the Defence. That paragraph contains particulars of a general denial of paragraph 4 of the Particulars of Claim. Paragraph 4 of the Particulars of Claim sets out, or purports to set out, the terms of the agreement which constituted the Claimant’s written contract of employment. That, as I have said, was an agreement of 8 July 2007. In particular, the terms set out refer to clauses 8.1 to
8.3 of the agreement, which are said to oblige the Defendant to pay an annual cash bonus, and clause 8.4 of the agreement, which is said to oblige the Defendant to pay the Claimant a long-term bonus in accordance with the provisions of schedule 3. The basis for the computation of the annual bonus is described in paragraphs 4.2.1 and 4.2.2 of the Particulars of Claim: it is said to be based on target management objectives at being achieved in a particular year.
9. Paragraph 9.2 of the Defence refers to clauses 8.1 to 8.5 and schedule 3 of the employment contract. It purports to provide particulars of reasons why the Defendant denies the allegations in paragraph 4 of the Particulars of Claim in their entirety. It is in these terms:
“Clauses 8.1 to 8.5 incorporating schedules 2 and 3 respectively of the agreement provide only for the Claimant’s eligibility to receive a discretionary conditional and/or bonus and also a discretionary conditional long-term bonus both of unspecified quantum in the event that key financial goals and management business objectives were, in fact, negotiated, approved by the Compensation Committee and agreed between the parties. That is pursuant to terms which were first ascertained and then, in fact, accomplished by the Claimant on an annual basis. The agreement did not require DAE to agree to pay to the Claimant any annual bonus or long-term bonus, let alone in the amounts claimed.
Revised request (1) seeks further information of the phrase:
“In the event that key financial goals and management business objectives (MBOs) were in fact negotiated, approved by the Compensation Committee of the Board and agreed between the parties.”
The Defendant was requested to state the date by which this process should have been executed in the employment year 2007 and, thereafter, during each full employment year that the Claimant was working for the Defendant.
10. The Defendant’s response takes the objection that this is not a proper request. It is said that the request selects part only of the pleaded Defence and seeks to interrogate on the basis of a mischaracterisation of the Defendant’s plea. But it is not open to the Defendant to refuse to answer a request on the grounds on the basis of that objection. The time at which to take that objection was when the matter was before Justice David Williams. Once the order was made, the Defendant was under an obligation to comply with it. The order could, of course, have been challenged on an appeal; but the Defendant has not sought to do so.
11. Nevertheless, on a true analysis, the Defendant makes no case in relation to the date by which key financial goals and management business objectives should have been negotiated and approved by the Compensation Committee and agreed by the parties either in year 2007 or thereafter: save in so far as pleaded in paragraphs 15 and 16 in respect of the employment in the year 2010. All that the Defendant needed to do, in answer to revised request (1) was to state that that was its position: it made no case in relation to the date by which the process should have been executed.
12. In those circumstances, it seems to me that to make an “unless order” threatening to strike out paragraph 9.2 of the Defence could not be an appropriate response to the Defendant’s failure to state the date by which the process should have been executed. All that paragraph 9.2 does is to set out what the Defendant’s understanding is of the effect of clauses 8.1 to 8.5 of the employment agreement. The appropriate disposal of the application in relation to revised request (1) is to invite the Defendant to state, in writing, that it does make no case as to the date by which the process should have been completed or executed either in employment year 2007 or thereafter during each successive full employment year that the Claimant was working for the Defendant. On the basis that that statement is made, as it has been in court, and confirmed in writing, I decline to make any order in relation to revised request (1).
13. Revised requests (9) and (10) relate to paragraphs 15 and 16 of the Defence. Those paragraphs were in these terms:
“9. It is admitted and averred that no key financial goals and management business objectives (MBOs) were in fact negotiated, approved and agreed by the Compensation Committee of the Board for the employment year ending on 14 October 2010 (or in the alternative for the calendar year 2010). That is no bonus criteria were first ascertained, let alone accomplished, by the Claimant for the purposes of the employment year ending on 14 October 2010 (or in the alternative for the calendar year 2010). None of the preconditions to clause 8 of the agreement and attendant schedules were satisfied and the Claimant had no entitlement to receive and DAE had no obligation to pay any sum in respect of bonuses at all, let alone in the amounts claimed in POC 16 and 17.
10. It is denied that the agreement was varied by conduct at all, let alone as alleged. The parties’ mutual failure to expressly negotiate and agree the criteria by which the Claimant might earn a bonus in employment year 2010 (or in the alternative for the calendar year 2010) in accordance with terms of the agreement cannot, in any event, constitute “conduct” evidencing a variation to the agreement.”
The revised requests were these:
“(9) What was the reason for the Defendant paying the Claimant a bonus in 2008 and 2009 and 2010?
(10) Please state why the procedures that the Defendant states were required to be followed pursuant to the agreement were not followed in the years 2008 and 2009 but the bonuses, nevertheless, paid.”
14. It was to those requests that the Court ordered the Defendant to respond. The basis upon which that information was thought to be of relevance and importance seems to me likely to have been this: that if the Defendant was resisting payment of bonuses in relation to the year 2010 on the grounds set out in paragraph 15 and 16 of its Defence, it would be material to understand why the Defendant should have paid such bonuses in 2008 and 2009 if the same procedures were not followed in those earlier years.
15. Again, the Defendant’s response begins with the words:
“These requests remain objectionable because there is no plea that DAE, in fact, paid to the Claimant any bonus in these years, let alone why or how any such payment is relevant to the Claimant’s claim.”
That objection is plainly misconceived. The Defendant had been ordered to respond to the Claimant’s revised requests. It was not open to the Defendant to contend that the order should not have been made; save by challenging the order on an appeal. Nor was it necessary that there should be a plea to the effect that bonuses were paid in 2008 and 2009: RDC 19.1(ii) enables the Court to require additional information to be given in relation to relevant matters whether or not the matter is referred to in a pleading.
16. The response does not end there. It goes on to assert that, although it had been contended by the Claimant that he was, indeed, paid a bonus in 2008 and 2009, the Defendant was investigating the circumstances in which, and the basis upon which, any payments made on account of bonuses or extra remuneration, had been made, however described. It was said that those investigations were on-going; and that the Defendant reserved its right to bring a counterclaim for recovery of any sums paid or overpaid by mistake and not owed to the Claimant pursuant to the agreement. There follows an assertion that the Claimant was not paid any annual bonus or long-term bonus pursuant to the agreement because no MBOs or other requisite criteria were, in fact, negotiated, approved by the Compensation Committee and agreed between the parties. The Defendant stated that it had established that AED 100,000 was paid on 21 May 2008 “as an extraordinary discretionary bonus payable to members of the HR Committee; in other words not under the contract of employment at all”.
17. In those circumstances the simple and appropriate response to the request made could have been to the effect that the Defendant cannot identify and does not admit the payment of any annual or long-term bonus in 2008 and 2009 and that, accordingly, question (10) does not arise. On the basis that that is the Defendant’s position, it seems to me unnecessary to require the Defendant to do more than it has done. Accordingly, as in the case of revised request number (1), I invite the Defendant to state in writing that its position in relation to annual or long-term bonuses in 2008 and 2009 is that it does not admit and cannot identify any such bonuses paid to the Claimant in those years and that, unless and until the Claimant provides Particulars of the payment of such bonuses, it is unable to respond further to revised requests (9) and (10). If that confirmation is provided, as Miss Campbell indicated it would be, then I decline to make any unless order in relation to requests (9) and (10).
18. I turn, therefore, to revised requests (2) to (5); which can conveniently be taken together. The requests relate to the allegation in paragraph 13 of the Defence that: “From November 2007, the Claimant arranged for the payroll department of DAE to pay him cash in the amount of US$12,000 each month in lieu of his entitlement to the housing automobile benefits.” The requests are these:
“(2) Is it being said by the Defendant that the Claimant should not have arranged for payroll to pay him these sums?
(3) If so, why not?
(4) Is it being suggested by the Defendant that the Claimant did not have approval to arrange the cash payment of US$12,500 in lieu of his entitlement to the housing and automobile benefits to himself?
(5) Please can the Defendant state the relevance of this assertion and its precise case by reference to the probative value of the said assertion?”
The response is in these terms:
“The Defendant does not allege that the Claimant acted dishonestly in arranging for the Defendant’s payroll to pay him in lieu of the housing and automobile benefits. However, the Claimant had no legal contractual right or authority to make these arrangements for himself or to vary the terms of his employment to his advantage contrary to the express terms of the agreement. The Claimant knew (or in the alternative should have known) the formalities and that his obtaining the ostensible approval of the Chief Executive Officer was insufficient matters of contract. The Defendant’s position is fully set out in paragraph 12 of the Defence.”
Paragraph 12 of the Defence refers to certain exchanges between the Claimant and Mr Johnson – who was, at the relevant time, CEO of the Defendant – and to two emails written by Mr Mushawa, the acting CEO following Mr Johnson’s departure in November 2010.
19. With hindsight, it was, perhaps, unfortunate that the Defendant took the view that, rather than answer the questions put to it seriatim, it should wrap them in up in a compound response. But I am told that it was thought that that approach was encouraged by Justice Williams. Seeking to unwrap the compound response, it seems to me reasonably plain that the Defendant’s answer to request (2) is “Yes, it is being said that the Claimant should not have arranged for payroll to pay him”; that the answer to request (3) – “If so, why not?” – is that the Claimant had no authority to do so; that the answer to question (4) – “Is it suggested that he did not have approval to arrange the cash payment in lieu of his entitlement to the housing benefit and automobile benefits?” – is, “Yes, it is being suggested”; and that the answer to question (5) is that the fact that the payments were made is no indication of the Claimant’s entitlement to them in the circumstances described.
20. On the basis that that is a correct interpretation of the Defendant’s response – which, as I understand it, Ms Campbell accepts it is – and that that position will be confirmed in writing, I think it unnecessary to make an “unless” order in relation to requests (2) to (5).
21. Revised requests (6) to (8) relate to paragraph 14 of the Defence. That paragraph is in terms similar to those of paragraph 13; save that it relates to the payment of cash in lieu of air travel rather than the payment of cash in lieu in respect of housing and automobile benefits. The paragraph contains the statement:
“It is admitted that the Claimant arranged for the payroll department of DAE to pay him cash in lieu of air travel, contemplated under clause 9.9.2 of the agreement, in the amount set out in POC 10. The Claimant was not entitled to be paid any cash or allowances as claimed or at all, there being no such term of the agreement. If, contrary to the express terms of the agreement, DAE was obliged to pay a Claimant cash in lieu of the air travel, which is denied, if they were under any obligation to do so, it would only be triggered following completion of the employment year with no payments being owed in circumstances where the Claimant had only worked for part of the employment year.”
The request is in these terms:
“(6) Please state whether the Claimant had ostensible authority to arrange for this payment to be made to him.
(7) If not, why not?
(8) If the Claimant was not entitled to be paid any cash allowances as claimed, please state the basis upon which he was paid these cash allowances in May of each full employment year.
The response was that:
“The Defendant does not allege that the Claimant acted dishonestly in arranging for the Defendant’s payroll to pay him in lieu of air travel, as defined in the agreement. However, the Claimant had no legal or contractual right or authority to make these arrangements for himself or to vary the terms of his employment to his advantage contrary to the express terms of the agreement. The Defendant’s position is fully set out in paragraph 14 of the Defence. The Claimant did not have authority to vary unilaterally the express terms of the agreement and should not have arranged to be paid in cash in lieu of benefits provided by the agreement as he did.”
22. Again, it might have been preferable, and perhaps might have avoided the present application in relation to this request, if questions (6), (7) and (8) had been answered specifically and individually. But again, as it seems to me, it is clear from the response that the Defendant’s case is that the answer to question (6) is, “No, the Claimant did not have ostensible authority to arrange for the payment to be made”; the answer to question (7) – “If not, why not?” – is that the Claimant had no authority; and the answer to question (8) is that the Claimant wrongfully procured the payment of cash allowances by instructions to subordinate members of the payroll staff.
23. If the Defendant will confirm that that is a correct understanding of the response – as I understand it will do – then, again, I see no reason to make an” unless” order in relation to revised requests (6), (7) and (8).
24. I have already addressed revised requests (9) and (10). Revised requests (11) to (14) are, again, grouped together. They relate to paragraph 22 of the Defence. Paragraph 22 of the Defence is a response to paragraph 15 of the Particulars of Claim. Paragraph 15 of the Particulars of Claim contains the allegation that:
“In breach of the agreement, the Defendant failed to provide the Claimant with a car or housing during the months of November 2010 and December 2010.”
The Defence to that allegation, in paragraph 22 of the Defence, is:
“To the extent that DAE was in breach of any obligation which is denied, then such alleged breach was procured by the Claimant such that DAE was prevented from performing any such obligations after November 2007. Consequently, the Claimant is estopped from, or otherwise prevented by DIFC law of contract from relying on any alleged breach. The legal basis for the Defence is that a party cannot rely on a breach by the other party, which he himself procured.”
The requests were these:
“(11) Please provide details of the alleged breach that the Defendant states was procured by the Claimant.
(12) Please provide the following for each and every alleged act of procurement said to have been done by the Claimant:
What was the act of procurement?
When did this procurement take place?
Under what circumstances did this alleged procurement occur?
Where did this alleged procurement take place?
The identity of the parties that were involved.
(13) By reference to the alleged procurements, how is it said that the Defendant was prevented from performing its obligations after November 2007?
(14) Please detail the Claimant’s alleged conduct that the Defendant relies upon that estops him from pursuing his claim.”
The response was in these terms:
“These requests contrive to mischaracterise the Defence to the claim that DAE is in breach of the agreement, as purportedly amended, but which breach is denied for the reasons stated in paragraphs 19 to 25 of the Defence. If which is denied DAE was in breach of any obligation as alleged by the Claimant, then he had procured the very breaches of which he complains, namely failure to avail automobile and housing benefits. DAE, having discovered that the Claimant had unilaterally and without the authority of DAE and without complying with the governance procedures mandated in the agreement, arranged to vary the terms of his employment to his unilateral advantage without authority and by instructing subordinate personnel in the payroll department to pay him as cash in lieu of various benefits.”
25. Again, on a fair reading of the response, it seems to me that the answers to the questions posed are these: (11) that the alleged breach said to be procured by the Claimant was a failure to provide housing and automobile benefits under the contract; (12) that the alleged acts of procurement were the instruction of subordinate officers to pay cash in lieu of the various benefits; (13) that the Defendant was prevented from performing its obligations after November 2007 because the Claimant would not accept those benefits in kind. (14) that the Defendant relies on the Claimant’s refused to accept the benefits in kind, after having sought to arrange for payment in cash in lieu.
26. If that is – as I think it is – a fair reading of the Defendant’s response, then it seems to me that adequate information has been given; notwithstanding the lack of particularity in relation to the Claimant’s acts of instructing subordinate personnel in the payroll department to pay cash to him. Plainly, if the Defendant seeks to rely upon that allegation at trial (if disputed), it will have to call evidence that that is what happened. But it is not necessary to have a further response to the request for information under RDC Part 19
at this stage. So, again, I invite the Defendant to confirm that the response is intended to be understood as I have set out. If that is done, I see no basis for an “unless” order in relation to requests (11) to (14).
27. Revised request (15) relates to paragraph 23 of the Defence, which is in these terms:
“If contrary to the express terms of the agreement, but in recognition of the Claimant’s exchange of emails that Mr Johnson set out in Appendix B to the POC, DAE was obliged to pay the Claimant cash allowances as claimed, but which is denied, then by continuing his employment after November in full knowledge of DAE’s position, he thereby affirmed the agreement and lost any right, which he may have had, which is again denied, to give notice to terminate pursuant to clause 12.11 of the agreement.”
There are two points to note in relation to that paragraph. First, that it is said by the Defendant that the time from which the continuance of employment was relevant was November 2010 and that that date would be apparent if one looked at Annex B to the Particulars of Claim document, which is not in evidence. Second, that clause 12.11 of the agreement, which is pleaded in paragraph 9.11 in the Defence and referred to in terms at paragraph 4.10.1 of the Particulars of Claim, enables the Claimant to give notice of termination for cause by establishing that DAE was in fundamental breach of a condition or substantial or essential obligation of the agreement.
28. As to the first of those points, it is not in dispute that, in order to make sense of paragraph 23 of the Defence, the date has to be read as “November 2010”. The Defendant has indicated that it will confirm that in writing; and that in any subsequent amendment to the Defence the year 2010 will be included. If so understood, what is being said in paragraph 23 of the Defence is that, by continuing in employment after November 2010 – and, at least, up until the time at which he gave notice at the end of January 2011 – the Claimant lost his right to give a notice of termination for cause pursuant to clause 12.10 (at least in relation to a failure to pay him benefits in cash in lieu of benefits in kind. Whether or not that is a Defence that can be made out is of course a matter for trial.
29. The revised request is in these terms:
“of . . . then by continuing his employment after November 2011 in full knowledge of DAE’s position, he thereby affirmed the agreement. (15) Please state what the Defendant’s position was after November 2011? Please state each and every act of the Claimant that the Defendant relies upon to allege that the Claimant affirmed the breaches of the agreement in relation to each act. Please state the following: the date of the act, the nature of the circumstances of the act and the identity of the parties involved.”
Clarity is not assisted by the reference to November 2011: first, because the pleading does not assert any year; and second, because November 2011 could not be the relevant year because no contention has been advanced that the Defendant did continue to be employed after November 2011. But, reading the revised request as if it referred to November 2010 – which is the sense in which the Defendant understood it in its response, as appears from the opening words: “The Defendants’ position from November 2010 is set out in the third and fourth sentences of paragraphs 12 and 24 of its Defence” – the Defendant’s response, as it seems to me, is adequate and cannot be said to fail to meet the requirements of the order. The Defendant’s response does explain the case it makes: in particular, the response makes it clear that it is not going to be said that there was some basis on which the Claimant lost the right to give notice to terminate pursuant to clause 12.11 other than the continuation in employment after November 2010. As I have said, whether or not that Defence can be sustained is a matter for trial.
30. Requests (16) and (17) relate to paragraph 24 of the Defence. It is alleged in that paragraph that, by accepting payment of the sums the Claimant claimed to be due in March 2011 (prior to his nominated termination date), any breach was thereby waived. Or, in the alternative, that the Claimant affirmed his contract of employment by his conduct after 31 January 2011: including, but not limited to, representations which he made to Mr Mushawa to the effect that he would formally retract his notice of termination and would continue to work for DAE for the duration of his employment period. The requests are to state the representations that the Claimant made to Mr Mushawa after 31 January 2011; and in particular to state the date each representation was made, whether it was made orally or in writing (and, if orally, the precise words used, and, if in writing, identifying the written documentation) and the circumstances in which the alleged representations were made.
31. The Defendant’s response is that, aside from their frequent interaction in the office during the course of their respective duties, Mr Mushawa and the Claimant met on several occasions in February and March 2011- on dates that Mr Mushawa is no longer able to recall – in order to discuss the parties’ respective positions. On those occasions, the Claimant discussed his role and relationship with DAE in terms which led Mr Mushawa to believe that, in consideration of the back dated payment in cash in lieu of automobile and housing benefit and reinstatement of those payments going forward, the Claimant would not carry out his threat to resign. In effect, there was agreement between them that the problem would be sorted out. That response, despite its lack of particularity as to dates and precise words of each representation, seems to me sufficient to enable the Claimant to know the case he has to meet on this point. It is not said that there was a representation in writing. It is not said that the Defendant, through Mr Mushawa, can recall just what words were used. Whether the allegation can be made out will turn on the oral evidence which Mr Mushawa and the Claimant may give as to these meetings in February and March 2011. I decline to make an “unless” order in relation to requests (16) and (17).
32. Revised request (18) relates to paragraph 26 of the Defence: in which it is pleaded that, for reasons stated above and in any event, the Claimant’s notice of termination dated 31 January 2011, pursuant to clause 12.11, is bad and did not effectively trigger any right to post-termination payments claimed under the clause. The request asks the Defendant to “state the basis upon which it is said that the notice is bad”. The answer is that the notice is said to be bad – that is to say, invalid or ineffective – for reasons pleaded in the Defence and in particular in paragraph 26. The only reason pleaded in paragraph 26 is that the notice was based on unspecified persistent breaches of material provisions. But there is scope for confusion because the paragraph begins with the words: “For the reasons stated above and in any event”.
33. In those circumstances, I invite the Defendant to confirm in writing to the Claimant that the only reason relied upon in support of the allegation that the notice of termination is bad is that it fails to include or specify the persistent breaches of material provisions upon which the Defendant relies. In inviting the Defendant to confirm that, I do not intend to preclude the Defendant from relying on the earlier point pleaded – that by January 2011, the Claimant had lost or waived his right to rely on the failure to pay him in cash – as a matter which could give rise to the right to serve a notice of termination. The pleading in paragraph 26 is plainly confined to what is stated in the notice: it is not intended to extend to the related, but different, question whether the Claimant had already lost the right to serve a notice at all in relation to certain specified alleged breaches. If confirmation in those terms is given, then I think it unnecessary to make an “unless” order in relation to request (18).
34. Revised request (19) is for particulars of the allegation in paragraph 30 of the Defence that the Claimant procured DAE to pay him, as cash, the sum set out in paragraph 10 of the Particulars of Claim. The Defendant is requested to state the basis upon which it is said that the Claimant procured the Defendant to pay him the sums set out in paragraph 10. That request, as it seems to me, is covered by the responses to requests (11) to (14). In short, who was told to pay him will be answered by the evidence in due course. It is unnecessary to insist on a further response to request (19). The response that the Claimant arranged to be paid by instructing his subordinates, including the payroll department, is sufficient to enable him to know the Defence which he has to meet.
35. Revised requests (20), (21) and (24) seek further information as to why it is alleged in paragraphs 33, 34 and 38 of the Defence that the Claimant’s plea is “inherently inconsistent”. The full allegation, in each case, is that the plea is “embarrassing and inherently or mutually inconsistent”. If the intention is only to assert that two pleas, made in the alternative, are in fact inconsistent, the criticism is misconceived: it is not an unusual, or unacceptable, for a party to say, by way of alternative pleas: “If I establish Case A, then you owe me X thousand dollars, but if I do not establish Case A, but only establish alternative Case B, then you will owe me Y thousand dollars.” What he obviously cannot say is that, “You owe me both X thousand dollars and Y thousand dollars”. If the intention is to assert something other than that the two alternatives are in fact inconsistent, then I have not been able to follow the criticism. In particular, I have not been able to understand what the assertion “embarrassing and inherently inconsistent” adds to the response. Accordingly, I invite the Defendant to confirm in writing that the allegation of “embarrassment and inherent inconsistency” or “embarrassment and mutual consistency” is not intended to add anything to the particularised response which appears under revised request 20. If that confirmation is given, then I see no reason to make an “unless” order. If that confirmation is not given, then it seems to me that I should make an “unless” order; because I, like the Claimant, am unable to understand what the words “embarrassing and inherently inconsistent” are intended to add. If something is intended to be added by those words, then what that something is does need to be spelt out. If confirmation is given that those words are not intended to add anything, I need not make any order; but if the words are intended to add something, then that must be spelt out; and, if not spelt out, then I will strike out those words in the three paragraphs in which they appear.
36. That leaves revised request (25) which also relates to paragraph 38 of the Defence. That paragraph 38 asserts that the pleas in paragraphs 28 to 32 are embarrassing to the extent that they are mutually inconsistent and contain calculation errors on the case as premised by the Claimant. Further, it is said, the Claimant fails to particularise any claim for damages.
37. I have been unable to identify anything in paragraphs 28 to 32 of the particulars of claim which can properly be characterised as a “calculation”. What those paragraphs do contain are assertions that the Defendant is indebted to the Claimant in certain sums. Perhaps the only calculation is that the total -$1,300,913.92 – is the arithmetic sum of the four amounts set out under 29.1, 29.2, 29.3 and 29.4. My own calculation is that it is indeed the arithmetic sum of those four amounts. If it is said that it is not, then the Defendant needs to state what it contends is the arithmetic sum of those four amounts.
38. The only other calculation that I have been able to identify is that in paragraph 27 of the Particulars of Claim: in which the Claimant’s base salary is multiplied by a number of days 74.4 (based on his period of continuous service of 3.54 years). That would be a clear example of a calculation: but that is not a calculation which is said to be in error. In those circumstances, I propose to make an “unless” order in relation to the allegation that the pleas contain calculation errors unless those errors are identified: that is to say unless there is a proper response to the request number (25). At present, the response is simply: “It is not for the Defendant to make good the Claimant’s claim or his mathematics”. I accept that it is not for the Defendant to make good the Claimant’s mathematics: but, if it is said that the Claimant’s calculations are in error, the Defendant must identify the calculation error alleged. For those reasons, the order will be as I indicated. The Defendant’s plea as to calculation error will be struck out unless proper particulars of it are given or perhaps it is withdrawn.
39. The other matters will remain as pleaded. I make no “unless” order striking out the Defendant’s pleading save in relation to the phrase “embarrassing or inherently inconsistent” in paragraphs 33, 34 and 38 of the Defence if it is not confirmed that that phrase is not intended to add to the more specific pleading in those paragraphs. In relation to the other requests, as I have indicated, I will not make an order if the confirmations that I have identified are given.
Date: 12 March 2013