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 DAVID STEEL
DUBAI AEROSPACE ENTERPRISE (DAE) LIMITED
||18 March 2013
||Bushra Ahmed (KBH Kaanuun) for the Claimant
Fiona Campbell (Al Tamimi & Company) for the Defendant
||17 April 2013
JUDGMENT OF JUSTICE SIR DAVID STEEL
1. The Court is faced with two applications which somewhat interrelate. The Defendant is seeking an order effectively to identify and recover documents which the Defendant contends the Claimant removed on departing from its employment. The Claimant seeks additional disclosure and also seeks to regain various documents which were taken from the Claimant’s office on his departure and which have been returned pro tem to the Defendant’s solicitors. The claim is a relatively straightforward one, although the costs that have been expended on this litigation, exemplified by the massive volumes that have been put before the Court for this case management conference, are a matter of gravest concern.
2. As I say, the case in principle is quite straightforward. The Claimant, Mr Al-Hendi, was an employee of Dubai Aerospace. His employment came to an end some time in early 2011. He seeks to recover damages from his former employers, those damages largely relating to an alleged entitlement to annual/long term bonuses together with some additional payments said to be due in respect of car allowances, travel allowances and so on. The total claim, I think, amounts to something in the region of US$1 million.
3. When he left the Defendant’s employment, there was some concern about the security of his documentation, his computers and his storage space in his office. The Defendant recovered, as I understand it, some keys from him and at least sought to recover, and it is not entirely clear to me whether successfully or not, a hard drive that had been attached to his desktop computer.
4. In due course, these proceedings were commenced and, in accordance with the order of the Court, there was an exchange of lists of documents. It is from that event that the problems with which I am concerned have primarily emerged because included in the Claimant’s list of documents were a number of documents which were, in effect, the Defendant’s documents. This led to an investigation by the Defendant as to the state of affairs with regard to the files that related to the Claimant and his employment. It is asserted by the Defendant that some documents appear to be missing and that the electronic file appeared to be deficient in some respects. In short they were concerned that the Claimant had removed a considerable body of documentary material – whether in hard copy or electronic form was not known. Anyway it was, at least from the Defendant’s perspective, obvious that the Claimant had somehow taken with him the documents which he had chosen to include in his list. Not surprisingly, the Defendant took exception to that and the matter was at least put into abeyance when the documents referred to in the list were bundled together and sent back to the Defendant.
5. In due course, as I say, the Defendant issued his application notice which sought a considerable measure of relief against the Claimant and, in particular – I will not read the draft order in any detail – required return of any documents that he had in his possession, a disclosure statement as to what had happened to any documents that were missing, and also an order that he be barred from making effective use of the documents that he had originally taken for the purpose of the proceedings. This application was advanced primarily on the basis that the documents were confidential, but on any view, confidential or not, they were the Defendant’s property.
6. The application was supported by a witness statement of Ms Jones, the company secretary, who explained what the research had revealed so far as she was concerned as to the state of affairs in the file. There was a response to that witness statement from the Claimant himself, which if I may respectfully say so does not really grapple with the complaint that was being made against him, but to the extent it does is somewhat equivocal on how it came to be that he was able to produce the documents which he had included in his list of documents. In paragraph 31 of his statement, he said:
“On 4 January 2013 KBH [his solicitors] delivered up all the additional documents by hand. Those were the copies I had delivered to KBH which were then delivered to the Defendant’s legal representatives. KBH has confirmed they do not have any copies of the documents in their custody or possession or control. I also confirm I do not have any other copies of the additional documents or any other documents for that matter relating to third parties.”
7. He added in paragraph 38 a somewhat surprising comment:
“It has always been and remains my position that all of the Defendant’s property remains in the Defendant’s office.”
8. In short, he tendered no explanation at all as to what he had done when he left the Defendant’s premises and thereafter was able to produce the documents that I have referred to. This left Ms Ahmed, who has presented the Claimant’s case with conspicuous skill, in something of a forensic difficulty. She tells me on instructions, as I suppose must be perfectly obvious, that what actually happened was that Mr Al-Hendi copied documents, either hard copy or on to some hard drive or stick, and took them away with him, and these documents, which were included in what is called the confidential documents bundle A4, are the product of his work. The suggestion that no other documents were taken in that manner is obviously open to some level of doubt, not least because it does seem improbable that Mr Al-Hendi was able to fillet the files simply to identify what he regarded as supportive of his future claim. It seems much more likely that he took a significant amount of material and has edited that so as to produce what he now says is material which supports his claim. That expression of scepticism about the scope of the removal of documents is somewhat enhanced by the fact that only this morning yet another document has emerged which must have originally been within the Defendant’s files.
9. Accordingly, the Court has some sympathy with the Defendant in seeking relief against the Claimant in the enterprise which he has embarked upon. It is necessary for me to try and keep this judgment brief and, therefore, I am not going to embark upon a detailed analysis of the submissions I have had from Ms Campbell for the Defendant and Ms Ahmed for the Claimant relating to what would be an appropriate order in all the circumstances. I am clearly of the view that the Defendant is entitled to an order which does or at least should satisfy them that the stables have been cleaned and the documents have been returned and no copies retained. The precise formulation of my order perhaps needs a little bit more care than I can accord to it in an ex tempore manner, but broadly what I would have in mind is to order:
10. Firstly, that the Claimant and his legal representatives, KBH, deliver up and return to the Defendant any of the property of the Defendant retained by the Claimant including, in particular, documents in whatever form, electronic or otherwise.
11. Secondly, that the Claimant – and when I say the Claimant I do mean the Claimant – shall provide a disclosure statement on oath, or at least affirmed, dealing with the following topics. Firstly, at what stage did he take copies from the files of the Defendant? What copies did he take? How were they selected? In what form were they removed? Secondly, identify for what purpose those documents were removed. Thirdly, identify the extent of the efforts that have been undertaken to locate and return those documents. Fourthly, specify any of those documents which are no longer in his possession or control and what has become of them.
12. Thirdly, that the Claimant should be restrained from any further processing or disclosing of the documents which he removed or the contents of them without the order of the Court. That deals I think with the first application. The cross application from the Claimant related really to two topics: one, an application notice for disclosure of various categories of documents and, second, an application for specific disclosure of the very documents that the Claimant had returned to the Defendant’s solicitors, to which I have already referred. We had the somewhat bizarre situation in court in which I was provided with a bundle containing those documents which was described, as I have already noted, as confidential and which was a bundle as such which was not available to the Claimant and was noted to be furnished on the basis that the contents were not to be read in open court and the bundle to be returned to the Defendant’s solicitors on the conclusion of the hearing.
13. It seemed to me that it was impossible to proceed on the basis that an application for disclosure of those specific documents which had been obtained in that rather bizarre if not unsatisfactory fashion and then returned on those terms, and accordingly I was not willing to accede to the application for specific disclosure of that bundle and those documents. I invited the Claimant to present the application for disclosure in a slightly different way and, having listened to the helpful submissions from both sides, have come to the conclusion, firstly, that it is appropriate for the Defendant to disclose any documents relating to the assessment and payment of annual/long-term bonuses to Mr Al-Hendi or others engaged on similar terms and at a similar level for the years 2008, 2009 and 2010. Secondly, that the Defendant should disclose all documents relating to the assessment and payment of allowances to Mr Al-Hendi in respect of those same years. That I think ought to cover, save to the extent that material is privileged or otherwise irrelevant, all or certainly most of the documents which are within the confidential bundle. I know that because, of course, the Claimant has seen them, the Defendant knows about them, and some of the debate in the argument has necessarily focused upon the kind of documents that are there.
14. The Claimant seeks some additional material, which is referred to in the application notice. The first two categories related to pension payments. I am not persuaded that there is any justification for making a general order for the production, as it is put, of any and all documents relating to pension schemes and like funds of which the Claimant was a member. That deals with one and I think also covers two; it is the same point. Class 3 of the documents that are sought related to spreadsheets, tables, flow charts, and organograms illustrating the structure of the Defendant including internal committees and so on. Again, I am not persuaded that that is material which is relevant to the issues in the case. Then items 4 and 5 touch upon internal emails relating to the reception of the Claimant’s notice of termination of employment dated 30 January and further emails that took place in April 2011 touch upon the 30 January retirement. Again, I am unable to see to what issue that material is going to go and I am not minded to order it. Item 6 in that list I have already covered in regard to the points that I have made about the class of documents relating to bonuses and so I will not touch on that as a separate matter.
Date: 17 April 2013