Nicholas Tse and Ravinder Thukral of Brown Rudnick LLP for the Claimant
Charles Buderi of Curtis, Mallet-Prevost Colt & Mosle LLP for the Defendant
Judgment: 10 July 2014
SECOND JUDGMENT OF JUSTICE SIR ANTHONY COLMAN
1. There is before the Court an application by the First Defendant (hereinafter “Daman”) to strike out the claim in these proceedings.
2. This application is made in most unusual circumstances and on most unusual grounds.
3. The circumstances are most unusual because the Claimant has already obtained judgment on his claim against Daman following a trial before me, after which the appeal by Daman was dismissed by the Court of Appeal, following which Daman has successfully applied to re-open the appeal hearing.
4. The unusual grounds upon which this application is based are that it is said that the Claimant has never had any title to sue under the contract — a Sale and Purchase Agreement (“SPA”) under which he agreed to purchase from Daman an apartment to be constructed in a tower block called The Buildings by Daman — which he claims to have been entitled to terminate for delay in completion by Daman and in respect which he claims damages. The underlying issue is whether the Claimant divested himself of title to sue by entering into an Assignment of the SPA to Amlak Finance (“Amlak”) from which he borrowed 90 per cent of the purchase price under an Islamic facility called an Ijara Wa lqtina, otherwise “an Ijara”.
5. The case advanced by Daman is that, although it was a party to the Assignment and has had a copy of it throughout the history of these proceedings, it failed to realise its legal significance and therefore omitted to bring it to the attention of its lawyers and further that it was for the Claimant to produce that document because, otherwise, its pursuit of its claim would be an abuse of process. Daman submit that the Claimant deliberately failed to disclose the Assignment Agreement and has therefore concealed its lack of title to sue.
6. In advancing this application, Mr Charles Buderi, on behalf of Daman, has relied upon the recent decision of the English Court of Appeal in Higson and Another v Gvenault and Another  EWCA Civ 703 to the effect that, where fresh evidence is sought to be introduced in the Court of Appeal, it may be admitted, even though it was obtainable with reasonable diligence by both parties for the trial, if to ignore that evidence would lead to the appeal proceeding on a fundamentally false factual basis. Daman’s submission is that to ignore the existence of the Assignment Agreement in the present case would be contrary to the interests of justice, regardless of whether the Claimant never previously appreciated that the Assignment ought to have been disclosed and regardless of whether Daman itself ought to have appreciated its significance at the outset.
7. The Claimant’s evidence can be summarised as follows:
8. He wished to acquire a residential apartment in the DIFC where he worked as Managing Director, Head of Global Market Equities, at Deutsche Bank. On 26 February 2008 he paid AED 50,000 by cheque as a holding deposit for an identified apartment. Construction was only recently underway but was expected to be completed in 2009. He was provided on 9 March 2008 with two copies of the SPA, neither of which was signed or dated. That agreement provided for payment to Daman of a total price of AED 4,030,158 in five instalments, starting with 10 per cent on 26 February 2008. In the course of the next few days the Claimant paid the equivalent of AED 354,453.75 which, with the previous payment, made up 10 per cent.
9. Having resolved to borrow the remaining 90 per cent, the Claimant received from Amlak Finance an Offer Letter dated 19 March 2008 in respect of an advance of 90 per cent of the price. It described the Type of Facility as “Ijara Wa Iqtina (Lease with Promise to Sell to Lessee)”. Paragraphs 3–5 provided:
“Lease Term: Twenty (20) years as of the date of delivery by Amlak of the Leased Property to you. This period is subject to change depending on the actual completion date of the Leased Property. Total Fixed Rental Payment: represents the all/or portion of the value of the Leased Property financed by Amlak for AED 3,627,142.00 being 90% of such value.
Fixed Rental Payment: the proportion of each instalment of rental which is a fixed amount and calculated by dividing the Total Fixed Rental by the Lease Term.
Variable Rental Payment: All/or the proportion of each instalment of rental which is calculated by reference to 7.50% per annum on the outstanding balance of the Total Fixed Rental Payment and the Supplementary Rentals [if any].”
“Paragraph 10 provided:
“Promise to Sell the Leased Property & Registration Fee: Amlak promises to sell and transfer title to the Leased Property to you in accordance with the applicable laws in particular the Property Law on the expiry date of the Lease Period provided that you have paid the Rentals and fulfilled all your obligations and liabilities arising under the Lease Agreement to Amlak in full.”
Paragraph 11 provided:
“Promise to Take on Lease: You shall sign a promise to take on lease the Leased Property from Amlak immediately after it has been purchased or otherwise acquired by Amlak. The form of the promise is attached hereto.”
Paragraph 13 stated:
“The approval is subject to the execution of the enclosed Lease (or Forward Lease) Agreement between you and Amlak Finance PJSC Promise to Purchase, Assignment to sale Agreement and other documents pursuant to Amlak’s policy and within the given period mentioned in (12) above. This offer shall stand revoked and cancelled and shall be deemed null and void in the following instances:
a.) In case of any material change in the circumstances on the basis of which the facility has been approved.
b.) In case of any change in your average income or in your ability to pay your dues, or in case Amlak comes to find any undisclosed information that might have affected the decision of granting the facility.
c.) Any statement in the Facility Application was found to be false or uncertain.
d.) Failure to complete the documentation and avail the Facility within the given period.
e.) Upon request from relevant authorities or if Amlak had reasonable grounds to decide that the source of fund or the aim which the finance is requested for is illegal or in breach of the laws related to money laundering.”
Paragraph 14.1 and 14.2 stated:
“The Property will be registered in Amlak’s name; however, title deed will be transferred to your name upon expiry of the lease contract. Otherwise, and if Amlak accepted to register the property in your name, then you are required to establish first degree mortgage over the Property in favour of Amlak at your own cost and expense and deposit the original title and mortgage deeds with Amlak. You shall undertake not to mortgage, pledge, and charge, create security interest in the Property or otherwise encumber it in favour of a third party(s) without obtaining the prior written consent of Amlak.
Amlak will advice (sic) you of the new monthly instalment amount, which will fall due one month from the date of finance. You will then be required to set up Irrevocable Standing Order Instructions from your personal account with Emirates Bank-Dubai where Salary is being transferred (prior to final payment) for the transfer of the same to Amlak Finance’s account No 0022 404603-001 with Emirates Bank-Dubai.”
The offer letter was expressed by Paragraph 14.12 to be construed in accordance with the applicable Laws of Dubai and the U.A.E. to extent not contradicting with Principles of Islamic Sharia.
Paragraph 14.13 provided:
“You are also requested to review, understand and accept the enclosed documents:
1. Forward Lease Agreement along with all schedules.
2. Assignment Agreement (if applicable).
3. The other documents as required by Amlak for this transaction.”
10. The structure of the loan was thus that Amlak was to become owner of the apartment for the period of the Lease Term, namely 20 years, from the date of physical delivery of the premises to the Claimant who would hold it as lessee paying rental in variable monthly instalments, thereby discharging the loan together with payment of applicable finance charges. The Lease Term was therefore to run for 20 years from Daman’s delivery of the premises upon completion under the SPA.
11. The Claimant counter signed the Offer Letter on 22 April 2008 beneath the words:
“I accept the Facility offer as defined in this offer letter and the accompanying documents.”
12. Those documents included specifically the Forward Lease Agreement and the Assignment.
13. The Forward Lease Agreement provided by Clause 3:
“3.1 The Lessor shall lease and the Lessee shall take on lease the Leased Properties for a period of six months (the Lease Period) commencing from the date of delivery of the Leased Properties by the Lessor to the Lessee in the condition described in the preamble (the “Effective Date”).
3.2 The Lessee hereby undertakes to renew the Lease Period every six months the total of which equals 240 months (the Lease Term).”
14. The Assignment was dated 30 March 2008 and was, I infer, entered into and signed by the Claimant and on behalf of Daman and Amlak Finance on the same date. The Recitals, which by Clause 1 were stated to form an “integral part” of the Assignment, provided as follows:
“(a) The Seller has entered into a single unit residential sale and purchase agreement dated …/…/… with the Assignor attached hereto as “Appendix (1)” (the Agreement) to sell [Apartment] No. 10B, Floor No. 10 located in Building by Daman at the Dubai International Financial Centre (the “Unit”) constructed thereon/to be constructed thereon.
(b) The Assignor has since agreed to transfer the Agreement with the Seller in favour of the Assignee along with the transfer of all its deposits and down payments paid so far to the Seller.
(c) The Assignee has agreed to replace the Assignor as the purchaser in terms of the Agreement.
(d) The Seller has agreed to transfer the Agreement in favour of the Assignee and to sell the Unit to the Assignee.
(e) The Seller accepts that the new financial arrangement between the Seller and the Assignee would be on the basis of Islamic Sharia and pursuant to the provisions of this Assignment Agreement.”
15. Recital (a) did not include the date of the SPA because it had not yet been entered into. That did not happen until 24 April 2008. Consequently, as of the date when the Assignment was entered into, the agreement which underlay and gave rise to the chose in action sought to be assigned did not yet exist. Similarly, at the date when the Offer Letter was entered into, the SPA did not exist.
16. The completion of the apartment to which SPA relates has not yet taken place and accordingly there has been no delivery of the premises to Amlak neither as “Purchaser” nor by Amlak as Lessor to the Claimant as Lessee. Accordingly, whereas there is unquestionably in existence a SPA, there has been no instrument purporting to assign the benefit of it to Daman since it was entered into.
17. In the meantime Amlak has been paying to Daman the amounts due from the Purchaser under the SPA. Payments have been made on 8 October 2008 (AED 806,032.00), 25 November 2008 (AED 806,032.00), 6 January 2009 (AED 1,612,064.00) and on 27 April 2011 (AED 806,032.00). The final instalment will be payable on handover of the apartment. That will amount to AED 1,209,046.40.
18. Therefore the issue that now has to be decided is whether the effect of the Assignment entered into prior to the SPA having been entered into and/or the acceptance by the Claimant of the Offer Letter prior to the entry into the SPA is to divest the Claimant of the right to sue on the SPA and to transfer that right to Amlak.
19. With regard to the effect of the Ijara, it is submitted on behalf of Daman that Amlak is in the position, on account of that financing facility, where, as soon as the apartment is delivered, upon completion, it will be entitled to hold and register its title in the DIFC Real Property Registry as full owner of the property as soon as there is finalisation of the strata structure of the building. Thus, its present position is accurately reflected in the Official Search Certificate of the DIFC Real Property Register which states that Amlak has a “Registered Interest” in the apartment under an “Islamic Financing Scheme”, whereas the DIFC is the registered freehold proprietor.
20. The key submission on behalf of Daman is that the Assignment is essential to the operation of the Ijara. That is because it is the means by which, as soon as there is completion and handover of the premises by Daman, Amlak acquires title as security for its loan to the Claimant to whom it then makes delivery as lessor to its lessee. The latter is thereby divested of the right to acquire the freehold from Daman under the SPA. Amlak is thus put in the position of lessor whereby it can control its security in the premises by operation of the terms of the Forward Lease.
21. On behalf of Daman it is further submitted that the absolute nature of the assignment is conclusively demonstrated by Appendices 3 to 5 of the Forward Lease Agreement. Under Appendix 3 Amlak is obliged to sell the apartment to the Claimant for AED5,000 upon termination of the lease in 2028 without default by the Claimant and under Appendix 4 the Claimant is thereupon obliged to purchase the freehold from Amlak. Under Appendix 5 — the Agreement of Sale of Leased Properties — Amlak represents and warrants that it is the owner of the premises.
22. It follows, Daman submits, without admission, that, whereas the Claimant could be said to retain a beneficial interest as a potential future owner of the apartment, at the time when the present proceedings commenced, there was no longer privity of contract between Daman and the Claimant, the latter having been divested of title to sue Daman by entering into the Assignment Agreement. Accordingly, applying such authorities as Pickthall v Dickenson LLP  EWCA Civ 543 the Claimant’s commencement of these proceedings was an abuse of process. Mr Buderi relies on the following passage from the judgment of the Mann J in the Court of Appeal.
“In my view the starting point is that where a man starts proceedings knowing that the cause of action is vested in someone else, then it is hard to see why those proceedings are not an abuse. He has started proceedings in which, even if he proves all the facts he wants to prove and establishes all the law he wants to establish, he will still lose because he does not have a right to sue. It is hard to see how that cannot be an abuse. Only people who own causes of action, or who have an appropriate interest in proceedings, have any business asserting the cause of action or starting proceedings. Any other use of the court’s proceedings is improper. The position would be likely to be otherwise if the claimant does not know, or is uncertain, as to whether he has title to the relevant cause of action. In the present case the claimant is the wrong person to assert the cause of action, and knows that he is. The proceedings could immediately be subject to an irresistible application to strike out, precisely for that reason. If those are the only facts, the conclusion that the proceedings are an abuse is inevitable…Mr Flenley sought to argue that a claimant’s starting proceedings without having the cause of action in his hands at the time, but in ignorance of that fact, was not of itself an abuse; and that knowing that he did not have it did not turn it into an abuse…he hoped to acquire the cause of action but foresaw that if he waited he would be met by a limitation defence; so he started proceedings which he had no right to start hoping that he would get in the cause of action. I confess that seems to me to be a plain abuse of the process.”
It is submitted that the Claimant, as an investment banker, conversant with the financial services industry, must have realised that, because of the Assignment, he had no right to sue on the SPA. Accordingly, to start these proceedings was an abuse of process with the consequence that they should be struck out.
23. On behalf of the claimant Mr Tse submits that whether or not there was a valid assignment of the SPA is a matter of DIFC Law. This is common ground. Both the SPA and the Assignment Agreement are expressly governed by DIFC Law. Consequently, the provisions of the DIFC Contract Law apply. Thus, it is provided by Article 93(2):
“A purported assignment of a right expected to rise under a contract not in existence operates only as a promise to assign the right when it arises and not as a power to enforce it.”
It is further provided by Article 97:
“A contract to make a future assignment of a right, or to transfer proceeds to be received in the future by the obligor, is not an assignment.”
The SPA had not been entered into on 30 March 2008, the date of the Assignment Agreement. It was only on 24 April 2008 that the SPA was entered into.
24. Further, there was uncertainty over the terms of the SPA. This emerges from the provisions of Clause 4 of the Assignment Agreement. This is expressed to contain the mutual agreement of Daman and Amlak to the amendment of certain terms of the SPA which “are not in compliance with the principles of Islamic Shariah (and) are not acceptable to the Assignee as it is an Islamic Financial Institution”.
25. Clause 4 then sets out in Sub-clauses (a) to (i) numerous amendments to the SPA, including in particular the following:
“A new definition entitled “Ultimate Beneficiary” shall be inserted:
(c) ‘Ultimate Beneficiary means a person who is in the process of purchasing the Property and to whom the Assignee has extended, or will extend in the future, financing for the purchase of the Property and ultimately receives title to the Property upon satisfaction of any financing advanced by the Assignee from the same’.”
“(h) The word “Purchaser” shall be replaced by the term “Ultimate Beneficiary” as applicable in Clause (9) [Additional Undertakings of Purchaser].”
Clause 9 of the SPA sets out continuing obligations of the Purchaser of the unit following the handing over of the premises on completion, such as taking over obligations with regard to the Supply of Utilities and contributing to the costs of the Management Association.
26. A further series of amendments to Clause 11 of the SPA appears to have been included in Clause 4(i):
“(i) Clause 11 [Default and Termination] of the Agreement shall be revised as follows:
(a) Clause 11-1(ii) has to be deleted and replaced by the words “to demand the Purchaser to pay the Compensation.
(b) Delete “Purchaser” shall have no further claim against Seller for any damages, compensation or costs” and insert “the Purchaser shall claim compensation from Seller” in Line (6) of Clause 11-3.”
These do not appear to fit with the wording of Clause 11 which was ultimately entered into by the Claimant and Daman.
27. The position seems to have been that the SPA entered into by Daman and the Claimant did not include the amendments to it previously set out as agreed by all parties, including Daman, in the Assignment Agreement. This was notwithstanding Clause 5(a) of the Assignment:
“Except as amended herein, the terms and conditions of the Agreement shall remain in full force and effect and rank parri passu with the conditions laid down in this Assignment Agreement. The amendments to the Agreement as set out in this Assignment Agreement shall be operative and binding on the parties hereto during the period the Assignee holds ownership interest in the Unit.”
28. The terms of the Assignment Agreement thus appear to have been ignored when on 24 April 2008, the SPA was entered into. The foundation of Mr Tse’s submission on behalf of the Claimant is that, although these contractual provisions are expressed to be binding between all the parties, they cannot be effectuated so as to give rise to a valid assignment of the SPA to Amlak in the face of Articles 93(2) and 97 of the DIFC Contracts Law. What is said to be lacking is a valid instrument of assignment of the SPA executed after the SPA was entered into.
29. It is therefore submitted that, far from there being a valid assignment to Amlak of all rights of action under the SPA, there has been no effective transfer of such rights and accordingly the application to strike out should be refused.
30. Further, Mr Tse relies on a judgment of this Court in Suhail Reza Badami v Daman Real Estate Capital Partners CFI 003/2013 in which an application by Daman to amend its Defence to allege that the Claimant in that case had no cause of action was refused. The proposed amendment was founded on an assignment of the SPA to a bank. The matter was briefly argued before me without reference to either Article 93(2) or 97 of the DIFC Contract Law. The grounds stated in the oral extempore judgment for refusing the application were that any such assignment was only of a security interest in the Unit and that the Purchaser/Claimant therefore retained an interest in the Unit as ultimate beneficiary, being entitled to obtain full title on repayment of the loan.
31. That application was briefly argued and I do not find the conclusion a firm basis for deciding the present application because, in the absence of criticism of Article 93(2) and 97, it was largely influenced by the distinction in English Law between absolute and equitable assignments.
32. It is important not to lose sight of where these proceedings have got to in their progress through the DIFC Courts.
33. Following a two day trial before me in the Court of First Instance, the Claimant succeeded on liability with damages to be assessed. The assignment issue was not raised on behalf of Daman. Those advising Daman claim that they were unaware of the assignment, although their client, which has in-house lawyers, had a copy. Daman, having lost on liability were then given leave to appeal. Their application relied on a submission on the construction of the SPA which had never previously been argued. The Court of Appeal upheld the conclusion of the Court of First Instance that the Claimant succeeded on liability but did so by way of an approach to construction of the SPA which had not been argued in the Court below. The appeal was dismissed. Following that decision, Daman applied for and obtained permission to re-open the appeal so that it could argue that the appeal ought not to have been dismissed but ought to have been allowed. Before the hearing of the re-opened appeal Daman launched its application to strike out this claim. The hearing before me took place a few days before the Court of Appeal heard argument in the re-opened appeal.
34. In order to make good this application — which is based on abuse of process by the Claimant — Daman has got to make good two points:
i. That the Claim is now and always has been hopeless on grounds that have never previously been argued at First Instance or in the Court of Appeal; and
ii. That the Claimant put forward the claim in the first place knowing it to be hopeless or, just possibly, reckless whether it be hopeless or not.
35. In support of its case Daman has at first alleged that the Claimant ought to have disclosed the Assignment in the course of disclosure because it undermined his claims. That assumed that in the DIFC Courts there was the same principle of disclosure of relevant documents, including those adverse to the disclosing party’s case, as applies under the CPR. But that was a false assumption. The duty of disclosure in the DIFC Courts is set out in RDC 28.15 thus:
“Within the time ordered by the Court, each party shall submit to the other parties:
(1) All documents available to it on which it relies, including public documents and those in the public domain, except for any documents that have already been submitted by another party; and
(2) The documents which he is required to produce by any Law, Rule or Practice Direction.”
That duty does not extend to documents in the possession, custody or control of an opposing party: See RDC 28.17(4).
36. Thus, there was no requirement under the rules of disclosure for the Claimant to disclose the Assignment Agreement. Specifically, he did not rely on it and he was justified in assuming that it was in Daman’s possession.
37. Secondly, if, once the proceedings had commenced, Daman wished to deploy the Assignment Agreement as a defence to the claim, the correct course was to plead reliance on it. Had it been a particularly strong point it could have knocked out the claim at the outset. It would have been open to Daman to apply for summary judgment dismissing the claim before trial.
38. Those procedural opportunities were missed by Daman and went on being missed right up to the trial and the appeal hearing because the documentary investigation conducted for the purpose of mounting its defence was inadequate.
39. The allegation made on behalf of Daman upon this application that the Claimant was guilty of “obstructive and deceptive behaviour” in his conduct of the proceedings by concealing the Assignment was, in my judgment, entirely groundless and should never have been made.
40. What then of the strength of the Assignment Issue? Was it so obviously a determinative point that, had the Claimant known of it, it was his duty to disclose it failing which he would perpetrate an abuse of process?
41. In my judgement, the answer to this can only be no. The defect in the point can be shortly point. Once it is accepted, as could always have been ascertained by Daman and those advising it, that the SPA had not been entered into on 30 March 2008 when the Assignment Agreement was executed, the effect of the DIFC Contract Law Articles 93(2) and 97 must be to prevent that Agreement having the effect of divesting the Claimant of his right to enforce the SPA against Daman. The only escape from this conclusion might possibly be if it could be shown that, although the SPA was executed and dated 24 April 2008, the Parties had by their conduct before 30 March 2008 somehow arrived at a concluded SPA in identical terms to that now sued on.
42. I am bound to say that, on the evidence before this Court, that proposition appears to be extremely fallible. The documents do not suggest that before 30 March 2008 there was more than a draft of the SPA and that details remained to be inserted before it could be executed. Although there existed the Offer Letter and although by its terms the Claimant was required to accept the Forward Lease and Assignment, he had not accepted that offer by 30 March 2008 and did not do so until 22 April 2008.
43. If one tests the strength of the Assignment Point against the background of this relatively complex contractual network — the Offer Letter dated 19 March but not accepted until 22 April, the Assignment Agreement and Forward Lease entered into on 30 March and the SPA entered into on 24 April — and the effect of Articles 93(2) and 97 of the DIFC Contract Law, the Assignment point is seen as scarcely tenable.
44. That said, there is no basis for concluding that the Claimant must have appreciated that, on account of the Assignment, his claim was hopeless. If he gave the matter any thought at all, which appears distinctly improbable, the highest he might have rated the Assignment point, even on legal advice, would be that it might just about be arguable. But that is nowhere near the threshold of hopelessness of his claim which Daman would have to show to give this application any substance.
45. In National Westminster Bank plc v Rabobank Nederland  EWHC 2959 I said that it must only be in very rare cases that a trial court will entertain applications to strike out a claim after the commencement of the trial. In that case the trial had commenced but was still proceeding. Here, as I have already indicated, the delay in bringing the application is even more striking. Here is a point which, if it were going to be taken, had to be put forward at the outset and properly pleaded so that the Claimant knew exactly the way in which the defence was raised and in particular how the effect of Articles 93(2) and 97 was to be avoided. In the event, I have no doubt whatever that this is not one of those very rare cases where the Court should depart from its normal practice on striking out.
46. This application is therefore refused with costs.
47. Any further submissions regarding costs should be addressed to the Court in writing.
Date: 10 July 2014