Claim No. CA 008/2025

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Rule of Dubai

IN THE COURT OF APPEAL

BEFORE H.E. CHIEF JUSTICE WAYNE MARTIN, H.E. JUSTICE ROBERT FRENCH, AND H.E. JUSTICE SIR PETER GROSS

BETWEEN

KHALED SALEM MUSABEH HUMAD AL MHEIRI

Appellant/Claimant

and

JOHN CAMERON

Respondent/Defendant

---

---

JUDGMENT OF THE COURT OF APPEAL

---

UPON the Judgment of H.E. Justice Lord Angus Glennie dated 16 June 2025 (the “Judgment”)

AND UPON the Claimant’s Appeal Notice dated 7 July 2025 seeking permission to appeal the Judgment (the “Initial Application for PTA”)

AND UPON the Order of H.E. Justice Lord Angus Glennie dated 28 August 2025 dismissing the Initial Application for PTA

AND UPON the Claimant’s Appeal Notice dated 18 September 2025 seeking renewed permission to appeal the Judgment (the “Renewed Application for PTA”)

AND UPON the Order of H.E. Justice Lord Angus Glennie dated 7 October 2025 for the Appellant to pay the Respondent’s costs of the Initial Application for PTA (the “Initial PTA Costs Order”)

AND UPON the Order of H.E. Chief Justice Wayne Martin dated 6 November 2025 granting the Renewed Application for PTA on specific grounds

AND UPON hearing counsel for the Appellant and counsel for the Respondent at the appeal hearing held on 21 July 2026

IT IS HEREBY ORDERED AND DECLARED THAT:

1. The appeal is allowed.

2. The Judgment is set aside in so far as it dismissed the claim on the grounds of deceit and/or mistake.

3. The Application is remitted to the Court of First Instance, differently constituted, for retrial, limited to the question whether the Respondent was entitled to set aside the Indemnity Agreement on the grounds of deceit and/or mistake.

4. Within 28 days of the date of this Order the Respondent is to provide particulars of claim clearly enunciating:

5. The Appellant shall file and serve Points of Defence to the Particulars of Claim within 21 days of service of those Particulars.

6. The Respondent shall file and serve Points of Reply to any Points of Defence within 21 days of their service.

7. Following the exchange of pleadings referred to, the matter shall be listed for a Case Management Conference for further directions with respect to the retrial.

8. The order of the Judge requiring the Appellant to pay the Respondent’s costs of the proceedings at first instance is stayed until the case has been reconsidered by the Court of First Instance. The question of whether the stay on that order should be lifted, or the order set aside and another order made is referred to the Court of First Instance.

9. The Initial PTA Costs Order is set aside.

10. The Respondent shall pay 85% of the Appellant’s costs of the Applications for PTA and the appeal, including any costs thrown away by reason of the adjournment of the hearing scheduled for March 2026 to be assessed by the Registrar on the standard basis.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 1 September 2026
At: 10am

SCHEDULE OF REASONS

Summary

1. The Claimant, Mr Khaled Al Mheiri (“Mr Al Mheiri”), has appealed from the decision of the Judge at First Instance (“the Judge”) dismissing his claim against the Respondent, Mr John Cameron (“Mr Cameron”) under an Indemnity Agreement signed by Mr Cameron. The Judge found that Mr Cameron was entitled to set aside the Indemnity Agreement because he had signed it in reliance upon fraudulent misrepresentations for which Mr Al Mheiri was responsible.

2. None of the grounds of appeal challenge findings of fact made by the Judge. Rather, the focus of the grounds of appeal is upon the assertion that the Judge failed to find the facts necessary to sustain the conclusions at which he arrived, or to elucidate the process of reasoning which led to his conclusions. There is also an assertion that the Judge failed to determine an issue which was put before him and gave undue weight to hearsay evidence in arriving at his conclusions.

3. Given the nature of the appeal, it is appropriate to start with a detailed consideration of the reasons given by the Judge.

The Judge’s reasons

4. The Judge commenced his reasons with a summary of the claim under which Mr Al Mheiri sought payment from Mr Cameron pursuant to the terms of an Indemnity Agreement dated 26 August 2015 (“the Indemnity Agreement”) pursuant to which Mr Cameron agreed to indemnify Mr Al Mheiri in respect of his liability to Qatar National Bank SAQ (“QNB”) arising from a loan taken out by Mr Al Mheiri for the benefit of businesses in which he and Mr Cameron (and others) had an interest. As the Judge noted, the loan was not repaid due to the failure of those businesses. Mr Al Mheiri sought judgment in the amount of AED 91,250,000, being the asserted amount of his liability to QNB, minus AED 1,995,560, received from a Mr El Araj, who was the First Defendant in these proceedings and who compromised Mr Al Mheiri’s claim against him by a payment of the amount specified.

5. The Judge noted that Mr Cameron admitted that he entered into the Indemnity Agreement but asserted that he did so in reliance upon false representations made to him by or on behalf of Mr Al Mheiri as a result of which the Indemnity Agreement was not enforceable against him.

6. The Judge noted that the only oral testimony he received was from Mr Al Mheiri and Mr Cameron. He also received signed statements from Mr El Araj and Mr Nedjar which he described as having been “relied on to a limited extent as hearsay evidence”.

7. The Judge assessed the credibility of Mr Al Mheiri and Mr Cameron in the following terms:

8. The Judge then turned to the background of the dispute, observing that Mr Al Mheiri and Mr Cameron were amongst several ultimate beneficial owners (“UBOs”) with interests in two companies – Gulf Steel Strands FZE (“GSS”) and Odyssey Fasteners Manufacturing LLC (“Odyssey”). GSS had nine UBOs who included, in addition to Mr Al Mheiri and Mr Cameron, Mr El Araj and others, including a member of the ruling family of Qatar and Mr Emadi, who was at that time the Minister of Finance in Qatar, the Chairman of QNB, and who served on the Board of Qatar’s Sovereign Wealth Fund.

9. Odyssey had four UBOs, comprising Mr Al Mheiri, Mr Cameron, Mr El Araj and another.

10. In or about August 2008 GSS and Odyssey took out loans from HSBC Bank Middle East Limited (“HSBC”) totalling almost USD 100m – USD 52m to GSS and USD 47m to Odyssey. As part of the security for those loans, the UBOs of GSS and Odyssey, including Mr Al Mheiri and Mr Cameron each provided personal guarantees in favour of HSBC.²

11. The Judge noted that other security was provided to HSBC, including mortgages over land, plant and machinery, an assignment of contract proceeds and corporate guarantees from associated companies. The Judge observed that Mr Cameron valued the other security provided to HSBC highly, and because of the existence of the other personal guarantees considered that his exposure under the HSBC guarantee was relatively low. The Judge considered that Mr Cameron maintained this position in cross-examination and accepted his evidence on the topic.

12. The Judge observed that both GSS and Odyssey defaulted on the HSBC loans in about 2012 or 2013 and between them owed HSBC an amount approximating USD 100m.

13. The Judge noted that negotiations with HSBC with respect to the restructuring of the loans took place over the ensuing two or three years and were carried out on behalf of the companies and their UBOs by Mr Mehdi Dazi, Mr Manil Nedjar and to a lesser extent, Mr Dazi’s younger brother, Abdul Dazi.

14. The Judge referred to various items of evidence to support his conclusion that it was Mr Al Mheiri, perhaps with Mr El Araj, who took the initiative in arranging the restructuring of the finance. Mr Dazi was assisting him in this, possibly with the help of Mr Nedjar.

15. The Judge found on the evidence that the outcome of the negotiations was that HSBC agreed to sell the HSBC loans for a total of USD 24m to two Special Purpose Vehicles (set up for this purpose) (“SPVs”) – Elody Ventures Limited (“EVL”) and Elody Capital Limited (“ECL”), each of which were established by or on behalf of Mr Al Mheiri, albeit registered in the name of Mr Dazi. As part of the transaction HSBC agreed to release all the UBOs of GSS and Odyssey from their personal guarantees.

16. The Judge found that under the restructuring arrangement the GSS debt to HSBC was purchased by EVL for USD 23m, and the Odyssey debt to HSBC was purchased by ECL for USD 1m.³ Further, the purchase of the debts by the two SPVs from HSBC was funded by a loan of USD 25m from QNB to Mr Al Mheiri. HSBC released all the personal guarantors from their responsibilities on 26 January 2016.

17. The Judge noted that Mr Cameron contended in his witness statements that there were other transactions which were to take place as part of the restructuring, including the purchase of assets by the SPVs from each of GSS and Odyssey, on the basis that the assets would be leased back to the companies in return for rent which would be used to repay the debt to QNB, and that the SPVs would have the benefit of an option to purchase shares in GSS and Odyssey for a nominal sum.

18. The Judge noted that in April 2016 EVL and GSS entered into an asset sale agreement by which GSS’s assets were transferred to EVL and on 31 May 2016 EVL and GSS entered into an equipment lease under which GSS agreed to hire the equipment from EVL, it being the anticipation of all that the rent would be used by EVL to repay the loan from QNB.⁴

19. The Judge observed that during the negotiations with HSBC most of the UBOs in GSS and Odyssey indicated that they wanted to exit the business, although Mr El Araj and Mr Cameron indicated their desire to remain involved. Mr Al Mheiri intended to exit the business and advised Mr El Araj and Mr Cameron that he required them to grant him an indemnity covering his entire liability under the loan from QNB. The Judge noted that in a witness statement Mr Cameron stated that because Mr Al Mheiri had assumed the entire repayment responsibility for the transaction, there needed to be a mechanism in place to protect him, which seemed only fair and that “is where the [indemnity] agreement comes in”. The Judge noted that Mr Cameron executed the Indemnity Agreement in favour of Mr Al Mheiri on 26 August 2015.

20. The Judge noted that Mr Cameron asserted in his first witness statement that when he executed the Indemnity Agreement he relied upon representations made to him by Mr M Dazi as agent for Mr Al Mheiri, and by Mr El Araj, to the effect that Indemnity Agreements in similar form would be entered into by each of Mr El Araj and Mr Emadi, and that the QNB borrowing would be financed by the two equipment leases, which would in turn be secured by share option purchase agreements in favour of EVL and ECL.⁵

21. The Judge noted that it appeared from other evidence that Mr El Araj did sign an indemnity in the same terms as the Indemnity Agreement, on either 25 or 26 August 2015, although he never returned the signed copy of the agreement to either Mr Nedjar or Mr Al Mheiri or anyone acting on their behalf.

22. The Judge noted that in a witness statement from Mr El Araj he explained that the reason he did not deliver the signed Indemnity Agreement to anybody was because he realised that key promises which had been made to him would not materialise. According to the witness statement of Mr El Araj, those key promises were that Mr Emadi would also sign an Indemnity Agreement, and that Mr El Araj would obtain shares in EVL and ECL and thereby obtain the benefit of a proposal to convert the loans to GSS and Odyssey into equity, thereby conferring an equity interest in the companies upon Mr El Araj and allowing GSS and Odyssey to clear their books and attract new working capital.⁶

23. The Judge also noted that in a witness statement Mr El Araj asserted that he became aware that Mr Emadi had no intention of providing an indemnity to Mr Al Mheiri and that Mr Al Mheiri intended to take all of the shares in ECL and EVL for himself around late August 2015, about the time he received and signed the Indemnity Agreement.⁷

24. The Judge then referred to Mr Nedjar’s witness statements, which were provided at an earlier stage in the proceedings, which he considered provided useful corroboration of the account given by Mr El Araj, and therefore the evidence of Mr Cameron.⁸

25. The Judge then set out an extensive passage from Mr Cameron’s witness statement in which he asserted that he had been told by Mr M Dazi and understood that he would receive shares in ECL and EVL, which would be distributed evenly between the four persons who would remain involved in the business – namely Mr El Araj, Mr Al Mheiri, Mr Emadi and Mr Cameron, although Mr Al Mheiri and Mr Emadi were planning to exit the business and relinquish their shares for a nominal sum once the debt to QNB was settled.

26. The Judge noted Mr Cameron’s evidence to the effect that the ownership of the SPVs was important for several reasons, because they were intended to acquire the assets of GSS and Odyssey which had a substantial value – their insured value being approximately USD 50m, and also because the SPVs were intended to be given an option to purchase the shares in GSS and Odyssey for a nominal sum, and because the SPVs had acquired the HSBC loans and had the benefit of significant receivables.

27. The Judge further noted that Mr Cameron’s evidence was to the effect that without any ownership stake in EVL and ECL he would be in no better position than the guarantors who did not take on any of the financial risk in relation to the restructuring of the HSBC loans, all of whom were entirely released by HSBC. He asserted that he was much worse off, having lost the benefit of the concurrent liability of the other guarantors in return for nothing.

28. The Judge further noted Mr Cameron’s evidence with respect to the significance of the indemnity to be given by Mr Emadi who was the Chair of QNB and a Minister in Qatar. Mr Cameron was confident that by reason of Mr Emadi’s position, in the event of default under the QNB loan, the loan would not be called in and some sort of restructuring deal would be worked out, as had occurred in relation to the HSBC loans.

29. The Judge further noted that in his witness statement Mr Cameron referred to two emails from Mr M Dazi in which he made it clear that Mr Emadi would be signing a similar Indemnity Agreement, although he never did.

30. The Judge also noted Mr Cameron’s evidence to the effect that he relied upon the proposal that the SPVs would repay the QNB debt using the rental that they received in respect of the lease of valuable equipment to be acquired from GSS and Odyssey and leased back to them.⁹

31. The Judge also noted that Mr Cameron executed a cheque payable to Mr Abdul Dazi in the amount of AED 92m (the amount of the QNB loan) on or about 28 January 2016, although the cheque was meant to have been made payable to Mr Al Mheiri. The cheque was provided as security for Mr Cameron’s obligations under the Indemnity Agreement. The Judge noted that the evidence did not establish what had become of the cheque, but as the claim was under the Indemnity Agreement, the “status of the Security Cheque is of little, if any, significance”.¹⁰

32. The Judge noted that GSS made no payments to EVL under the GSS equipment lease and Odyssey failed to enter into an agreement for the transfer of its assets to EVL or an equipment lease, with the result that there was no revenue flowing to EVL or ECL which could be used to service the debt to QNB.

33. In November 2016, QNB made demand for repayment of the loan. In July 2019, Mr Al Mheiri and QNB agreed that the amount due under the loan as at 23 May 2019 was USD 30,414,489.71, and subsequently QNB commenced proceedings in Dubai against Mr Al Mheiri. Mr Al Mheiri’s liability under the QNB loan was established, and by these proceedings he sought indemnity from Mr Cameron in respect of that liability.¹¹

34. The Judge then summarised the six lines of defence enunciated in the skeleton argument served on behalf of Mr Cameron, only two of which are relevant to the issues raised by the grounds of appeal – namely, the assertion that the Indemnity Agreement was procured by deceit or alternatively by mistake.

35. The Judge dealt first with the claim in deceit, noting that the Indemnity Agreement was governed by the law of Dubai and the Federal Laws of the UAE which required reference to the UAE Civil Code and relevant decisions of the UAE and Dubai Courts. The Judge noted that in accordance with the practice of this Court, he received submissions in relation to the content of those Laws, rather than expert evidence.¹²

36. The Judge referred to the general structure of the Civil Code of the UAE and in particular to Articles 185-187, 190, 194 and 195, which he set out in his reasons using a translation which had been agreed by the parties. Because there are varying translations of the Code, it is desirable to set out the agreed translation used by the Court:

37. In relation to Mr Cameron’s reliance upon deceit and mistake, the Judge observed “conceptually, these points merge into one another, and it is convenient to deal with them together”.¹³ As the Judge made no further reference to the defence of mistake, it is unnecessary to give any further attention to that defence and to focus attention upon the defence of deceit, which the Judge upheld.

38. The Judge noted that the argument advanced on behalf of Mr Cameron was to the effect that the Indemnity Agreement was vitiated because of the lack of Mr Cameron’s informed consent because before signing the Indemnity Agreement he was told by Mr Dazi and Mr El Araj that:

39. In this context the Judge inserted the following observation in parentheses:

40. In due course it will be appropriate to consider whether Mr Cameron did advance a case to the effect that the representations which he alleged were representations of present fact to the effect that it was then the intention (of somebody) that Mr Cameron would receive shares in the SPVs, that Mr Emadi would sign a similar indemnity agreement and that the loans would be repaid by equipment leases and that such intentions were not held (by whoever was said to have held them).

41. The Judge traversed Mr Cameron’s argument to the effect that these matters were important to him, together with the submission that none of the representations made were true. In this context the Judge did not identify the basis upon which Mr Cameron asserted the representations were untrue, and in particular, whether they were said to be untrue because it was not the intention (of somebody) that the represented matters would occur at the time the representations were made. As noted, it will be appropriate to consider whether that was the way in which Mr Cameron’s case was presented.

42. The Judge expressed the submissions put on behalf of Mr Cameron in the following terms:

It will be appropriate to consider whether Mr Cameron advanced a case based on the “deliberate silence” of somebody concerning a fact or set of circumstances such as to constitute a misrepresentation pursuant to Article 186.

43. For the purpose of addressing these submissions, the Judge then considered Mr Cameron’s evidence, and in particular two lines of cross-examination that were taken. The first concerned his evidence with respect to his exposure under the HSBC personal guarantee, which is not material to the grounds of appeal and need not be considered in any detail.

44. The second line of cross-examination is directly material to the grounds of appeal, as it relates to the responsibility of Mr Al Mheiri for statements made by Mr Dazi, and perhaps Mr El Araj. In that regard, the Judge held:

45. This passage has been set out in full because a number of findings made by the Judge that are significant to the grounds of appeal are contained within it.

46. First, the Judge notes that Mr Cameron’s case is not based upon an assertion that Mr Al Mheiri made representations to him in person – rather, the case is based on the proposition that the representations were made by Mr Dazi.

47. Second, the Judge noted that Mr El Araj may have contributed to Mr Cameron’s understanding, but he excluded that from consideration.

48. Third, the Judge found that Mr Dazi made a representation to the effect that Mr Emadi would be signing an Indemnity Agreement during the course of the restructuring process.

49. Fourth, the Judge found that representation was a material factor in persuading Mr Cameron to sign the Indemnity Agreement.

50. Fifth, the Judge expressed “no doubt” that that representation was false. However, no reasons for that conclusion are enunciated. In particular, the Judge has not enunciated whether his conclusion was drawn from the fact that Mr Emadi did not sign an Indemnity Agreement or whether it was based upon a finding that there was a representation to the effect that somebody (perhaps one or more of Mr Emadi, Mr Al Mheiri or Mr Dazi) intended that Mr Emadi would sign an Indemnity Agreement when in fact no such intention was held by that person or persons at the time the representation was made, or, perhaps, that although the intention may have been held at the time the representation was made, the relevant person or persons no longer held that intention at the time Mr Cameron executed the Indemnity Agreement but either or both Mr Al Mheiri or Mr Dazi had been (deliberately) silent in such a way as to misrepresent the true position to Mr Cameron.

51. Sixth, the Judge expressly declined to find that Mr Al Mheiri knew that a false representation was being made, as he did not consider that to be the question before him.

52. Seventh, however, the Judge considered that Mr Al Mheiri was liable as though he had made the representation because he had clothed Mr Dazi with his authority. Although the factual basis for that conclusion is identified, the principles of UAE Law which were relied upon to sustain that conclusion are not. Further, having declined to find that Mr Al Mheiri was aware that Mr Dazi had made fraudulent misrepresentations to Mr Cameron, with the result that Article 190 could not apply to render Mr Al Mheiri liable for those misrepresentations, the Judge did not identify the principles of UAE Law which sustained the conclusion that a contracting party was liable for the deceit of his or her agent under Article 185 and if so, whether the liability went beyond liability for agents with actual authority, and included agents with apparent or ostensible authority. Again, it will be necessary to consider how Mr Cameron’s cases with respect to agency was put.

53. Eighth, the Judge made the same findings with respect to the representations relating to the proposed shareholding in ECL and EVL and the equipment leases. That finding is said to be made by parity of reasoning with the findings made with respect to the representation relating to the provision of a guarantee by Mr Emadi. However, no basis for the findings that the representations with respect to the shareholding in the SPVs and the equipment leases is enunciated in the Judge’s reasons. In particular, the Judge does not identify whether he found those representations to be false because shares in the SPVs were not transferred to Mr Cameron and revenue derived from equipment leases was not used to repay the loan from QNB, or because the relevant representations were representations to the effect that it was the intention (of somebody) that those things would occur and the relevant person or persons did not hold that intention at the time the representations were made or, perhaps, because the relevant person’s intentions changed after the representations were made to Mr Cameron and somebody was deliberately silent with respect to such matters so as to give rise to a misrepresentation under Article 186 prior to Mr Cameron signing the Indemnity Agreement.

54. The Judge then directed his attention to clause 17 of the Indemnity Agreement which provides:

55. The Judge ruled:

56. The Judge indicated in his reasons that he had been referred to English authorities on the issue, and to a case in this Court¹⁹ which he considered to be distinguishable. He did not refer in his reasons to any provisions of UAE Law, or of the Civil Code which would sustain his conclusion (perhaps because he was not provided with any submissions on the application of UAE Law to this issue, other than a reference to the DIFC case which he considered distinguishable). However, for whatever reason, the Judge does not appear to have identified in his reasons the principles of UAE Law which would sustain his conclusion in relation to clause 17 of the agreement.

57. The reasons referred to above led the Judge to conclude that he should uphold Mr Cameron’s defence to the claim in reliance upon Articles 185-187 of the UAE Civil Code.

58. The Judge went on to consider, and reject, a number of other grounds of defence relied upon by Mr Cameron. Mr Cameron has not cross-appealed against those findings.

The Judge’s reasons for refusing permission to appeal

59. Mr Cameron seeks to rely upon assertions made by the Judge in his reasons for refusing permission to appeal on the basis that they augment and explain the reasons given in his judgment. The extent to which that course is appropriate, and the materiality of the assertions relied upon will be addressed later in these reasons in the context of the grounds of the appeal to which they relate.

The grounds of appeal

60. There are six grounds of appeal. Three of those grounds bear directly upon the Judge’s conclusion that Mr Cameron was entitled to set aside the Indemnity Agreement by reason of deceit. They are:

61. The Respondent has served a Respondent’s Notice to the effect that the Judge’s conclusion with respect to deceit should be upheld for reasons other than those which he gave, namely:

UAE Law

62. It is common ground that the Indemnity Agreement is covered by UAE Law. The relevant provisions of the UAE Civil Code are set out above in the form of a translation agreed by the parties. In general terms, Article 185 defines the circumstances in which misrepresentation will be taken to have occurred by “word or deed”. It also requires that the misrepresentation must lead the other party to consent to what would otherwise not have been consented to.

63. Article 186 is concerned with misrepresentation by “deliberate silence” in respect of matters which would have caused the other party not to make the contract if that party had been aware of those matters.

64. Article 187 identifies the circumstances in which the innocent party may cancel the contract as a consequence of misrepresentation.

65. Article 190 is concerned with circumstances in which a contracting party may be held liable for misrepresentations made by another party. The question of whether the Article defines exclusively the circumstances in which a contracting party may be held liable for misrepresentations made by another is one of the issues in this case.

66. Although the UAE Courts do not apply the doctrine of precedent in the same way as common law courts, cases decided in the UAE Courts provide helpful guidance with respect to the proper construction and application of the provisions of the Civil Code. Those cases indicate that although Article 185 refers to “misrepresentation” the critical components of the Article are:

Trickery of word or deed

67. Put another way, the focus of the Article is upon conduct by a contracting party which can be characterised as “trickery” and which deceives the other contracting party into consenting to that which would not otherwise have been consented to.

68. In the judgment of the Dubai Court of Cassation 270 of 2023 the Court observed:

69. So, put in terms familiar to common lawyers, there must be an intention to mislead which is put into effect causing detrimental reliance.

70. Article 187 provides that a party misled by misrepresentation may cancel the contract if the contract was “concluded by a gross cheat”. In the case referred to above, the Dubai Court referred to Article 187 in the following terms:

71. The Ras Al Khaimah Court of Cassation made similar observations in case 48 of 2025. There the Court observed that the relevant provisions of the Civil Code established that:

72. Consistently with these judicial pronouncements and the wording of Article 185, during the trial the Judge put to counsel for Mr Cameron the proposition that “the word trickery suggests some sort of deliberate misleading, which is very close to or maybe the same thing as dishonesty”. Counsel accepted that proposition.²³

73. In judgment 231 of 2020 the Dubai Court of Cassation observed of Articles 185 and 186 of the Code that they indicated:

74. In case No. 30 of 224 the Dubai Court of Cassation observed:

75. Consistently with these authorities, on the hearing of the appeal counsel for Mr Cameron submitted that:

76. Further, counsel accepted that “lying” required knowledge of the party making a representation to the effect that it was false.²⁷ Further, counsel for Mr Cameron accepted that “trickery” required both intention and knowledge. In the context of the debate, knowledge was shorthand for knowledge of falsity, and intention was shorthand for intention to mislead.²⁸

How was Mr Cameron’s case on deceit presented at trial?

77. It is obviously important to read the reasons given by the Judge in the context of the issues presented to him for determination at trial.

The pleadings

78. Mr Cameron’s defence of deceit is pleaded in the following two paragraphs of his Defence:

79. It is of considerable significance that Mr Cameron did not plead that the representations which all relate to matters which “would” occur at some indeterminate time or times in the future, were false, or known to be false at the time they were made. Rather, it is simply said that they “turned out to be false” because the things that it was said “would” happen did not in fact occur.

80. In other words, the pleading goes no further than asserting that representations as to future events were false because the events did not in fact occur.

81. No attempt is made in the pleading to contend that the representations were with respect to future events that created implied representations of present fact, such as that there were reasonable grounds for believing that the events would occur in the future, or that it was somebody’s intention that the events would occur in the future, and if so, whose intention that was. Nor is any attempt made to plead that such an implied representation of present fact was false because, for example, there were no reasonable grounds for believing that the events would occur in the future, or that the person who was said to have intended that these events occur did not in fact so intend at the time the representations were made.

82. The pleading falls manifestly short of pleading facts which could enliven the operation of Articles 185 and 187 of the Code. In particular, no facts are pleaded which, if proven, could establish fraud, deceit, “trickery” or a “gross cheat”. No facts are pleaded which would suggest that Mr Dazi, as Mr Al Mheiri’s agent, or Mr Al Mheiri knew that the predicted future events would not occur at the time the representations were made by Mr Dazi. Nor is it pleaded that either Mr Dazi or Mr Al Mheiri intended to mislead Mr Cameron.

83. Further, no attempt is made to invoke the operation of Article 186 of Code by pleading deliberate silence on the part of either Mr Dazi or Mr Al Mheiri which had the consequence of misleading Mr Cameron. Rather, the case is put entirely on the basis of misrepresentation by words.

84. Nor is any attempt made to satisfy the requirement under UAE Law that Mr Cameron lacked the capacity to ascertain the truth of the matters represented. In the case of the representation relating to Mr Emadi’s execution of an indemnity agreement, there would not appear to be any reason why Mr Cameron could not have contacted Mr Emadi and enquired as to whether he proposed to execute such an agreement. They were both UBOs in the commercial venture and both had an interest in its success.

85. Nor is any attempt made to invoke the operation of Article 190 of the Code by pleading that Mr Al Mheiri was aware of the representations made by Mr Dazi.

86. In these circumstances it is not surprising that Mr Al Mheiri replied to these assertions in the Defence by contending that they were inadequately particularized.³⁰

Mr Cameron’s skeleton argument for trial

87. The skeleton argument provided on behalf of Mr Cameron prior to trial did not address the deficiencies in his pleaded case. In the skeleton, the pleaded representations were described as “key promises” which “would not materialize”,³¹ or which “had not and would not be fulfilled until much later”.³²

88. The conversion of the alleged representations into “promises” in the skeleton argument rather suggested the contention that the representations had contractual effect, with the result that Mr Al Mheiri was obliged to ensure that the “promises” were performed. However, no legal or factual basis for any such contention was developed in the skeleton. Further, later in the skeleton, the representations were relied upon to support the claim in deceit.

89. In that context the pleaded representations are repeated in the skeleton as statements of things that “would” happen in the future.³³ It is then said that:

As with the pleading, there is no assertion that either Mr Dazi or Mr Al Mheiri knew that the represented matters would not occur at the time the representations were made. Nor is it contended that either Mr Dazi or Mr Al Mheiri caused the representations to be made with the intention of misleading Mr Cameron. Nor is it contended that Mr Cameron lacked the capacity to ascertain for himself whether the represented matters would come to pass. Nor is there any assertion to the effect that the representations with respect to future matters conveyed implied representations of present fact, such as with respect to the existence of reasonable grounds for belief that the matters would occur, or with respect to an intention of some person or persons to the effect that they would occur, nor is there any assertion to the effect that there were no reasonable grounds for believing that the matters would occur, or that the relevant person or persons did not hold the impliedly represented intention.

90. The skeleton did however contain the following assertions:

91. Articles 186 and 190 of the Code are cited (in footnotes) in support of the propositions in these paragraphs, even though no facts had been pleaded which would bring the case within the scope of either Article. Further, insofar as Article 190 was invoked, it is significant that the Judge expressly declined to find that Mr Al Mheiri was aware of the representations which had been made by Mr Dazi because that was “not the question”.

92. As regards Article 186, it is not clear from the skeleton whether it is said to apply to Mr Dazi, or Mr Al Mheiri, or both, and the circumstances which are said to have given rise to the “deliberate silence” of either or both are not identified. For example, it is not at all clear if it is being contended that Mr Dazi became aware that Mr Emadi did not intend to sign the Indemnity Agreement at some time after her made representations to Mr Cameron to that effect but before Mr Cameron signed the Indemnity Agreement, and that Mr Al Mheiri is liable for such “deliberate silence”? Alternatively, it is not clear if it is contended that Mr Al Mheiri is liable because of his “deliberate silence”. The basis for any such assertion is not enunciated in the skeleton. Further, any such assertion would appear to depend upon the proposition that Mr Al Mheiri was aware of the representations which Mr Dazi had made – a matter which the Judge declined to find.

The oral openings

93. In the course of his oral opening counsel for Mr Al Mheiri contended that the representations were statements of opinion.³⁶

94. In the course of his oral opening, consistently with the terminology used in the skeleton, counsel for Mr Cameron consistently referred to the representations as “promises”.³⁷ Further, counsel specifically relied upon Article 190 on the basis that Mr Al Mheiri had knowledge of Mr Dazi’s deceit. It was further contended that if Mr Al Mheiri knew that something was not true that had been said to Mr Cameron by Mr Dazi but did not then correct it, Mr Al Mheiri could be liable, thereby implicitly invoking Article 186.³⁸ Of course that proposition depends upon a finding that Mr Al Mheiri knew that Mr Dazi had made false representations to Mr Cameron and that Mr Cameron had no means of verifying the truth or otherwise of those representations. Counsel for Mr Cameron consistently referred to the representations as “lies”,³⁹ connoting that Mr Dazi must have known that the representations were untrue at the time he made them. However, in circumstances in which all of the representations were predictions of future events, counsel did not identify the basis upon which Mr Dazi was aware the representations were false at the time they were made, and no attempt was made to identify implied representations of present fact which were false and known to be false.

The cross-examination of Mr Al Mheiri

95. In cross-examination Mr Al Mheiri denied that Mr Abdel-Aziz Dazi held the shares in the SPVs on his behalf. He maintained that all relevant parties agreed that Mr Abdel-Aziz Dazi would hold the shares on behalf of all interested parties.⁴⁰ Mr Al Mheiri accepted that Mr Dazi transferred the shares in the SPVs to him in July 2020. This was many years after Mr Cameron signed the Indemnity Agreement in August 2015, and more than one year after QNB had commenced enforcement proceedings following default under the loan.

96. Mr Al Mheiri accepted the proposition put to him in cross-examination to the effect that the assets of GSS were transferred to one of the SPVs (EVL) and leased back to GSS.⁴¹ He also accepted that the revenue derived from the lease was supposed to fund the loan from QNB.⁴²

97. Mr Al Mheiri accepted that he was giving instructions to Mr Dazi in relation to the final terms of the Indemnity Agreement⁴³ and that it was he that introduced Mr Dazi into the restructuring process.

98. Mr Al Mheiri accepted that he knew that Mr Emadi would not be providing an Indemnity Agreement and asserted that he instructed Mr Mehdi Dazi to inform Mr Cameron about that.⁴⁴ He asserted that he instructed Mr Dazi to be transparent and to keep everyone in the picture in terms of all discussions and alternatives.⁴⁵

99. When the statement given by Mr El Araj to the effect that he did not return the Indemnity Agreement which he had signed to Mr Al Mheiri because he became aware that Mr Emadi would not sign an indemnity agreement and Mr Al Mheiri intended to keep all the shares in the SPVs for himself was put to Mr Almheiri, he denied that it was his intention to retain the shares.⁴⁶

100. Having regard to the reasons given by the Judge, it is significant that at no point during the cross-examination of Mr Al Mheiri was he asked whether;

101. Mr Al Mheiri was not asked when he first became aware that Mr Emadi would not be providing an indemnity, although it is clear from his evidence that it was at some time prior to Mr Cameron executing his Indemnity Agreement. However, it was not put to Mr Al Mheiri that he became aware that Mr Emadi would not be signing an indemnity agreement sometime after he became aware that Mr Dazi had advised Mr Cameron that Mr Emadi would be providing an indemnity.

102. In relation to the equipment leases, it was specifically put to Mr Al Mheiri that the equipment leases were put in place, and he agreed. It was not put to Mr Al Mheiri that:

103. Mr Al Mheiri denied that it was his intention to retain the shares in the SPVs and asserted that it was the common intention of all that Mr Abdel-Aziz would hold the shares on behalf of those who were providing indemnities in respect of the QNB loan. It was not put to Mr Al Mheiri that Mr M Dazi was at any time aware that it was Mr Al Mheiri’s intention to retain all the shares in the SPVs.

Counsel’s closing submissions at trial

104. In the course of closing submissions counsel for Mr Al Mheiri referred to the character of the representations as predictions of future events.⁴⁷ The Judge identified the issue which lies at the heart of these grounds of appeal when he asked counsel whether UAE Law recognised the distinction drawn in English Law between a statement of present fact and a promise that something would occur in the future, with the only statement of fact to be implied from the latter was an implied representation of reasonable grounds to believe that the event would occur.⁴⁸ Counsel for Mr Al Mheiri replied that UAE Law did recognise the distinction, and drew the Judge’s attention to the fact that there was no pleaded case with respect to an implied representation of present fact.⁴⁹

105. The Judge addressed the same question to counsel for Mr Al Mheiri, who is qualified and experienced in UAE Law, when he enquired whether UAE Law distinguished between representations of fact which can amount to deceit, and representations of opinion or promises for the future which are treated differently. Counsel for Mr Al Mheiri submitted that UAE Law recognised the same distinction, and that the relevant Articles dealing with deceit and mistake were based upon misrepresentations of fact.

106. Consistently with the way the case had been opened, counsel for Mr Cameron closed his case by referring to the representations to the effect that things would occur in the future as promises,⁵⁰ but also as “lies”. In a context in which the Judge had earlier questioned opposing counsel in relation to the distinction between predictions of future events or promises and statements of present fact, counsel for Mr Cameron did not at any point in closing submissions suggest that the representations upon which Mr Cameron relied carried implied representations of fact which were false and known to be false by either Mr Al Mheiri or Mr Dazi. However, although not cast in terms of a false representation of present fact, counsel for Mr Cameron submitted that Mr Al Mheiri had admitted that he knew Mr Emadi would not provide a guarantee and that neither he nor Mr Dazi ever told Mr Cameron that.⁵¹ Significantly, counsel did not submit to the Judge that Mr Al Mheiri knew that Mr Dazi had told Mr Cameron that Mr Emadi would be providing a guarantee and, as already noted a number of times, the Judge declined to make a finding with respect to Mr Al Mheiri’s knowledge of the representations made by Mr Dazi.

107. Nor did counsel submit to the Judge that Mr Dazi was aware that Mr Emadi would not provide a guarantee, although counsel for Mr Cameron has invited this Court to make that finding on appeal, based on an admission from Mr Al Mheiri in his witness statement in which he asserted that Mr Cameron had been told by Mr Dazi that Mr Emadi would not provide an indemnity agreement before Mr Cameron signed the Indemnity Agreement because Mr Al Mheiri had asked Mr Dazi to inform Mr Cameron about Mr Emadi’s disinclination to provide an indemnity.⁵² We will return later to the question of whether it is appropriate for this Court to make findings of contentious fact which were not made by the Judge.

108. In closing counsel for Mr Cameron expressly advanced his case to the effect that Mr Al Mheiri was liable for Mr Dazi as his agent on the basis that Mr Dazi had Mr Al Mheiri’s apparent authority. No submission of actual authority was made.⁵³ Counsel referred the Judge to an authority for the principles of UAE Law applicable to apparent authority.

109. Counsel also placed reliance upon Article 190 on the basis of an assertion that Mr Al Mheiri had knowledge of the deceit. Although counsel referred to the possibility that a deliberate silence might equate to deceit, no submission was made to the effect that Mr Al Mheiri was liable on that basis. During the course of reply submissions, local counsel representing Mr Al Mheiri made submissions to the Judge with respect to the principles of UAE Law relating to apparent authority.

The parties’ submissions on appeal

110. On behalf of Mr Al Mheiri it is asserted that the Judge failed to make the necessary findings to sustain a conclusion that the Indemnity Agreement was liable to be set aside under UAE Law for deceit. It is contended that the Judge’s reasons contain no express finding that Mr Dazi knew that the representations he made were false, nor that he intended thereby to deceive Mr Cameron. It is further submitted that the Judge did not find that Mr Al Mheiri was aware of the representations said to have been made by Mr Dazi, or that such representations were false when made. It is further submitted that the Judge failed to address the question of whether the misrepresentations amounted to a “gross cheat” such that Mr Cameron was entitled to cancel the contract pursuant to Article 187 of the Code.

111. It is submitted that the Judge did not identify a positive act of deception by Mr Al Mheiri and that he drew an inference of deceit solely from the fact that assurances which had been made were later unfulfilled. It is contended that the mere fact that predictions of future events did not come to pass does not constitute deceit under UAE Law.

112. To the extent that the Judge may have proceeded on the basis that there had been implied representations of present fact with respect to intention, it is submitted that no findings were made with respect to whose intention it was that was represented (that is, Mr Dazi, Mr Al Mheiri, or Mr Emadi) whether the relevant intention was not held at the time the representations were made and whether the representor knew that the intention was not held at that time.

113. In the context of ground 4 it is contended that Article 190 of the Code provides the exclusive means by which a contracting party can be held liable for deceit practiced by another, even if that other is the contracting party’s agent. As the Judge made no finding that Mr Al Mheiri had knowledge of Mr Dazi’s alleged false representations, it is contended that the Judge should have found that Mr Al Mheiri was not responsible for those representations.

114. It is further submitted that the Judge erred in concluding that Mr Al Mheiri was responsible for representations made by Mr Dazi because he had Mr Al Mheiri’s apparent authority. It is further submitted that the Judge did not provide findings of fact or enunciate the process of reasoning which led him to conclude that Mr Dazi had Mr Al Mheiri’s apparent authority as a matter of UAE Law and was thereby liable for Mr Dazi’s deceitful conduct.

Mr Cameron’s submissions

115. In the skeleton argument served on behalf of Mr Cameron, it is asserted, correctly, that the Judge found that the representations were untrue and that Mr Cameron would not have agreed to the restructuring unless he had been assured that Mr Emadi would sign an indemnity agreement in similar terms. However, the skeleton makes no attempt to address the question of how the Judge found representations with respect to future events to be false at the time they were made. Rather, the skeleton asserts that:

116. It is clear from the summary of UAE Law presented above that this contention is not correct, as counsel for Mr Cameron conceded when he acknowledged that UAE Law required proof of knowledge of falsity and an intention to mislead.

117. This concession is consistent with a later portion of the skeleton in which it is asserted that:

118. On behalf of Mr Cameron reliance is placed upon statements made by the Judge at the time he refused permission to appeal, namely:

and

119. As already noted in the context of the oral closing submissions, reliance is placed upon Mr Al Mheiri’s evidence to the effect that he was aware that Mr Emadi would not be providing an indemnity and requested Mr Dazi to advise Mr Cameron of that fact.

120. It is submitted that the question of whether Mr Al Mheiri was aware that the representations had been made by Mr Dazi is “a moot point” because:

121. It is submitted that UAE Law does not distinguish between:

No authority is cited in support of this proposition. Nor is any attempt made to reconcile the proposition with the requirement that there be “trickery” and the appropriate concession that there be proof of both knowledge of falsity and intention to mislead.

122. The same may be said of the submission that under UAE Law, unlike English Law, the approach is not fault based “focusing on the fault of the representor; the focus is on the contracting party and whether their will/consent is impaired”.⁶⁰

123. On behalf of Mr Cameron it is submitted that Article 190 has no application to this case and that statements made by the agent of a contracting party fall within the scope of Article 185. In the alternative, it is submitted that if Article 190 does apply, the Judge found that Mr Al Mheiri had actual knowledge (relying upon the statements made by the Judge when refusing permission to appeal).⁶¹

124. In support of the Notice of Contention served on behalf of Mr Cameron it is contended that if the Court of Appeal decides that the Judge did not make a finding that Mr Dazi made a representation of fact which he knew to be false, then the judgment should be upheld on the basis that the Court of Appeal should find that Mr Dazi knew that Mr Emadi would not be providing an indemnity but deliberately decided not to tell Mr Cameron about it before he executed the Indemnity Agreement (relying upon Article 186).

125. It is further submitted that if the Court of Appeal finds that Mr Al Mheiri is not liable for the false representations made by Mr Dazi, the Court of Appeal should find that Mr Al Mheiri was aware that Mr Dazi made false representations to Mr Cameron (at least in relation to the provision of an indemnity by Mr Emadi) and that the judgment should be upheld pursuant to Article 190.

126. On behalf of Mr Cameron it is acknowledged that the Judge did not set out the principles of UAE Law which he had applied in order to conclude that Mr Dazi had the ostensible authority of Mr Al Mheiri, although it is submitted that the Court of Appeal should apply those principles and make any necessary findings of fact to sustain their application.

Analysis

The Judge’s observations when refusing permission to appeal

127. As noted, on behalf of Mr Cameron reliance is placed upon two observations made by the Judge in his reasons for refusing permission to appeal. It is appropriate to commence the Court’s analysis of the competing submissions of the parties with a consideration of the extent to which it is appropriate for a Court of Appeal to take into account observations made by a Judge subsequent to the publication of his or her reasons for decision when deciding an appeal from that decision.

128. A number of English cases have been cited in support of the proposition that the Court of Appeal should take such matters into account. In Greenwich Millenium Village Limited v Essex Services Group PLC & Ors⁶² Jackson LJ noted that the Trial Judge had amplified the reasons for his original decision in his decision refusing permission to appeal. He noted that the appeal complained about lack of reasons in one respect and considered it appropriate to take into account the Judge’s judgment on the permission application in relation to that ground of appeal.

129. The case concerned a claim for damages as a result of losses arising from the flooding of a building. Jackson LJ took the supplementary reasons given by the Trial Judge into account in relation to the causes of the flood, the time of installation of a surge arrestor, workmanship failures, and things of that kind.

130. In English v Emery Reimbold & Strict Ltd⁶³ the English Court of Appeal reviewed the general principles relating to appeals based on the ground of inadequacy of reasons. In the course of considering those principles the Court observed that various reasons have been advanced in common law jurisdictions for the provision of reasons for decision including:

131. The Court observed that as a consequence of an earlier decision allowing an appeal on the ground of inadequacy of reasons, appeals on that ground had become “a cottage industry”. In that context the Court considered two possible solutions to the proliferation of appeals on that ground. One solution was to remit the matter to the Trial Judge with an invitation or requirement to give additional reasons, rather than direct a retrial. The Court noted that in the case which had precipitated the multiplicity of appeals, such a course was not considered appropriate because more than a year had passed since the hearing. In that context the Court observed that the delay between hearing and appeal will normally be too long to make remission to the trial Judge for further reasons a desirable course.

132. However, the Court observed that the same was not true of the position shortly after judgment had been given, and in that context the Court recommended a practice whereby a trial Judge considering an application for permission to appeal on the ground of lack of reasons should consider whether the application should be adjourned for the purpose of providing additional reasons. The Court suggested that a similar approach could be taken by an appellate court receiving an application for permission to appeal on the ground of lack of reasons – so that where it appeared that the application was well founded, the Court should consider adjourning the application and remitting the case to the trial Judge with an invitation to provide additional reasons for his or her decision.

133. In that context the Court observed:

134. It is of course implicit in these suggestions that the augmented reasons would be considered for the purpose of ascertaining whether the reasons given were adequate.

135. In Roche v Chief Constable of Greater Manchester Police⁶⁵ the Judge delivered a judgment in which he stated that he understood the proceedings had been brought on a particular basis, and if that understanding was incorrect, it would be necessary for him to receive further argument. The Judge then delivered a second judgment dealing with an additional matter not addressed in his first judgment, presumably against the contingency that his understanding was incorrect.

136. The Court of Appeal considered whether it should take account of the second judgment and concluded that it should. However, the circumstances of that case are a long way removed from the circumstances of this case.

137. In Skatteforvaltningen v Solo Capital Partners LLP,⁶⁶ after considering an application for permission to appeal from his decision on the grounds of inadequacy of reasons, Baker J decided to supplement the reasons given in his judgment “in the interests of at least reducing, if not eliminating, the scope for an appeal to result”.

138. In summary, in one of these cases (Greenwich Millenium) the Court of Appeal decided to consider observations made at the time of an initial refusal of permission to appeal and in another (Skatteforvaltningen) the Judge at first instance decided to take that course, although the reaction of the Court of Appeal to that approach is not known. In English the Court recommended procedural responses to a proliferation of appeals on the grounds of inadequacy of reasons which implicitly connoted acceptance of the proposition that a Judge could properly augment reasons for decision. Roche involved unusual circumstances and sheds no great light on the issue presently under consideration.

139. Of course this Court is not bound to follow the decisions of the Courts in any other common law jurisdiction. However, it will give consideration to the decisions of such Courts in deciding the principles which should be applied before deciding the principles which should be applied in the DIFC. The Court has not been referred to decisions on this issue in any common law jurisdictions other than England, perhaps because in some of those jurisdictions, such as Australia, applications for permission to appeal are not made to the Judge at first instance.

140. In assessing the approach which should be taken to this question in the DIFC, this Court places considerable importance upon the beneficial effect of the obligation to provide adequate reasons upon the likelihood that the resulting decision will result from a detailed examination of the evidence and the submissions advanced by the parties. That beneficial effect is of course lost after the decision has been made. Obviously, it is not possible for a Judge considering an application for permission to appeal to change the decision made, unless the case falls within the slip rule. It follows that supplementary reasons given after the decision can have no impact upon the outcome of the case and, if essential to the process of reasoning leading to the conclusion, would leave open the distinct prospect that the decision originally made was erroneous, the error being obscured by the Judge having “another bite at the cherry”.

141. We also take into account the fact that this Court has a miniscule case load when compared to the English Court of Appeal and has not experienced a proliferation of appeals brought on the basis of inadequate reasons.

142. In the particular circumstances of the DIFC we consider it appropriate to reinforce the requirement to provide adequate reasons in order to reduce the risk of inadvertent error. The circumstances of this case provide cogent support for this approach. In this case a substantial claim has been dismissed because of fraudulent misrepresentation. Of course it has been observed in many cases that a conclusion of fraud is not made lightly, and should only be made on the basis of cogent evidence. The obligation to identify that evidence, the findings of fact made on the basis of the evidence, and the process of reasoning which led to the conclusion of fraud will reduce the risk that a finding of fraud might be made erroneously. Further, it is obviously important that the party whose claim or defence is being dismissed, and the appeal court, are able to fully comprehend the findings of fact which have been made and the process of reasoning which has been adopted.

143. For these reasons this Court should, in general decline to consider any observations made by a Judge at first instance when refusing permission to appeal. However, we do not exclude the possibility that there may be cases in which it would be appropriate to consider such observations – for example, whether reasons given admit of more than one meaning and the Judge clarifies the meaning intended, or some words were inadvertently omitted. These examples are not meant to be exhaustive but rather to indicate that resort to observations made at the time of refusing permission to appeal will be exceptional rather than commonplace. In any event, questions of fact and degree are involved. It is one thing, having made a finding to supplement the reasons for it when considering an application for permission to appeal. It is or may be very different where a finding has not been made and it is sought to fill that gap on a later occasion. We find it difficult to envisage any circumstance in which it would be appropriate for a Court of Appeal to take into account findings of fact which are essential to sustain the decision made, but which were not made in the reasons for that decision and were only made subsequently, when refusing permission to appeal.

144. For these reasons we do not consider it appropriate to take into account the observations made by the Judge in his reasons for refusing permission to appeal.

145. However, had we taken a different view we do not think that those observations would have had any material impact upon the outcome of this appeal. That is because the observations are cast at such a level of generality as to be incapable of identifying any findings of fact not apparent in the original reasons for decision or of elucidating a process of reasoning not apparent in the original decision.

Should this Court make findings of fact not made by the Judge?

146. There is a related issue which is also appropriately considered as a preliminary matter, before addressing the grounds of appeal presently under consideration. That issue is the extent to which this Court should respond to the invitation made on behalf of Mr Cameron to make findings of fact which were not made by the Judge in his reasons. More specifically, the Court has been invited to find that:

147. In Krystal Financial Consultants LLC v Nextgen Robopark Investment LLC⁷¹ this Court considered the circumstances in which it should show constraint in reviewing first instance decisions. Consistently with established authority in many common law jurisdictions, this Court recognised that Judges at first instance enjoy considerable advantages not available to an appellate court in making findings of fact, especially when those findings are based upon contentious oral testimony. Cases involving allegations of fraud provide a paradigm example of a case in which an appellate court should be slow to review findings of fact or, we would add, make findings of fact not made by the Judge at first instance.

148. In this case the Judge made the findings of fact enunciated in his reasons after considering the oral testimony of the parties in the context of the documentary evidence. He was in a much better position to make findings of fact than this Court could ever be in. He expressly declined to make a finding with respect to Mr Al Mheiri’s knowledge of the representations made by Mr Dazi to Mr Cameron. In those circumstances it would be inconsistent with the principles enunciated in Krystal for this Court to take upon itself the role of making findings which the Judge declined to make on the basis of the evidence before him.

149. For these reasons we decline the proposition that we should make findings of fact not made by the Judge in order to uphold his decision. It follows that it is unnecessary to give any further consideration to the Respondent’s Notice served on behalf of Mr Cameron.

Did the Judge make sufficient findings of fact to sustain his conclusions?

150. As already noted, despite written submissions to the contrary, counsel on behalf of Mr Cameron conceded that in order to come within Article 185 of the Code, the representor must have knowledge of the falsity of the representation and an intention to mislead the representee. It follows that the requirements of Article 185 cannot be satisfied merely by establishing that a representation to the effect that something would happen in the future was made, and that thing did not in fact occur – as counsel for Mr Cameron conceded.⁷² Counsel for Mr Cameron suggested that in such a circumstance, Article 185 would apply if the representor knew that the represented thing was not going to happen.

151. That proposition is somewhat overstated as it connotes that the representor must know for a certain fact that the represented thing will never occur. However, there are other means by which a representation with respect to a future occurrence may be falsified, as the Judge observed during the hearing.

152. In this respect there are a number of different ways in which representations with respect to future matters can be classified. The following taxonomy is not intended to be exhaustive.

Statements of opinion or belief

153. Statements with respect to the occurrence of future events can be characterised as a statement of opinion or belief carrying embedded within it implied representations to the effect that the relevant opinion or belief is genuinely held (often, but not always) by the representor and that there are, as a matter of fact, reasonable grounds for the opinion or belief. If the representation is characterised as conveying such representations of fact it will be false if either the opinion or belief is not genuinely held by the person represented to hold it, or if there are not, as matters of fact, reasonable grounds for the opinion or belief. The representation will be deceitful if the representor knew either of those things at the time the representation was made.

154. In this case both the Judge and Mr Al Mheiri’s counsel suggested that the representations could be characterised in this way. However, that suggestion was never adopted on behalf of Mr Cameron, nor was his case ever presented on that basis.

Statements of intention

155. A representation that something will occur in the future can be characterised as a representation to the effect that it is somebody’s intention that the thing will occur, carrying embedded within it an implied representation that the relevant person intends that such a thing will occur. If characterised in this way, the representation will be false if the relevant person did not in fact hold that intention at the time the representation was made. The representation will be deceitful if the representor knew that the relevant person did not hold the intention at the time the representation was made.

156. In this case neither party nor the Judge suggested that the representations should be characterised in this way at any time prior to the conclusion of the hearing. However, the Judge adopted this characterisation in his reasons.

Promises

157. A representation to the effect that something will occur in the future can be characterised as a promise by the representor to the effect that the thing will in fact occur. If the promise is embodied within a binding contract as a term, the promisor may be liable in damages for breach of contract if the thing does not in fact occur. However, it has never been suggested that fulfilment of the representations made in this case comprised terms of a contract to which Mr Cameron was a party.

158. If the occurrence of the promised event is within the control of the promisor – say, that he or she will do something on or by a particular date, the promise might be construed as carrying embedded within its terms a representation to the effect that it is the intention of the promisor to perform the promise and perhaps a representation to the effect that the promisor believes, on reasonable grounds, that he or she has the capacity to perform the promise.

159. If the promised event is outside the control of the promisor and depends upon the actions of third parties, the promise might be characterised as carrying embedded within its terms a representation to the effect that the promisor intends to use his or her best endeavours to ensure that the promised event occurs and perhaps, a representation to the effect that there are reasonable grounds for believing that the promised event will occur.

160. In the cases posited in the two preceding paragraphs, the implied representation will be false if the promisor does not in fact hold the relevant intention at the time the representation is made, or if there were not reasonable grounds for the relevant belief. The representation will be deceitful if the representor knew either of those things at the time the representation was made.

161. In this case, the representations were characterised as promises in the skeleton argument and oral opening submissions provided on behalf of Mr Cameron. However, the case was presented on the basis that deceit could be established by the fact that the promises were not performed even though there was no suggestion that the promises had contractual effect. No attempt was made to establish that the promises carried implied representations of fact of the kind referred to above, or that such implied representations of fact were false at the time the promises were made.

162. There may be other ways of characterising a representation with respect to a future event as carrying embedded within its terms an implied representation of fact which is false or fraudulent. For present purposes it is sufficient to observe that Mr Cameron’s case was never pleaded or presented to the Court on the basis that the representations with respect to future matters carried within their terms implied representations of present fact which were false or fraudulent in any of the taxonomies referred to above, or in any other way.

The approach taken by the Judge

163. It seems from the observations made by the Judge in parenthesis in [43] of his reasons that he approached the case on the basis that:

164. This approach had a number of consequences in the terms of findings of fact necessarily made in order to conclude that representations cast in these terms were deceitful.

165. First, it was necessary for the Judge to identify the person or persons who were said to hold the relevant intention. In the circumstances of this case, the identification of such persons is by no means self-evident.

166. In the case of the representation to the effect that Mr Emadi would sign an indemnity agreement, the most obvious candidate for the attribution of intention is Mr Emadi. However, the possibility that the Judge might have approached the matter on the basis that the relevant intention was that of Mr Al Mheiri, or Mr Dazi, or all of Mr Emadi, Mr Al Mheiri and Mr Dazi, or some combination thereof cannot be excluded.

167. In the case of the representation with respect to the shares in the SPVs, the identification of the person whose intention was represented is not at all clear. The shares were held by Mr Abdel Aziz Dazi and Mr Al Mheiri denied that they were held by Mr Dazi on his behalf. In the course of the appeal Mr Cameron has not identified any evidence to the contrary. Potential candidates for the attribution of the relevant intention would appear to include Mr Abdel Aziz Dazi, Mr Mehdi Dazi and Mr Al Mheiri. The Judge did not identify which of those persons was represented to hold the relevant intention.

168. In the case of the equipment leases, it is noted that Mr Cameron’s case was presented on the basis that the relevant equipment leases were put in place after Mr Cameron signed the Indemnity Agreement. It follows that the representation can only have been false at the time it was made if it was somebody’s intention at that time that the operating entities would not pay the rental due under the equipment leases to the SPVs. The identification of the person said to hold that intention is not at all clear. Was it a person within the operating entities? Was it a person or persons with control of the SPVs who had no intention of enforcing the obligation to pay rental? If so, was it the shareholder in the SPVs – Mr Abdel Aziz Dazi, or was it the representor Mr Mehdi Dazi, or was it Mr Al Mheiri? No answer to these rhetorical questions is apparent from the Judge’s reasons.

169. Second, having identified the person or persons who were represented to hold the relevant intention, it was necessary for the Judge to find that such person or persons did not in fact hold the represented intention at the time the representations were made, in order to conclude that the representations were false.

170. Third, in order to find that the relevant representations were deceitful, it was necessary for the Judge to find that the representator, presumably Mr Dazi or perhaps Mr Al Mheiri knew that the person who was represented to hold the relevant intention did not in fact hold that intention at the time the representation was made.

171. The preceding analysis focusses upon the time the representation was made because the Judge referred to but did not appear to rely upon Article 186 as the basis for his conclusions, and made no findings which could enliven the operation of that Article. The circumstances of this case leave open the distinct possibility that Mr Dazi may have acquired relevant knowledge after making representations to Mr Cameron but before Mr Cameron signed the Indemnity Agreement. If that knowledge was relevant to the matters represented – such as, for example, whether Mr Emadi no longer intended to sign an indemnity agreement, the case might have been put on the basis that Mr Dazi was deliberately silent, giving rise to a misrepresentation pursuant to the provisions of Article 186. However, as noted, Mr Cameron’s case was never presented on this basis at trial.

172. If the case had been presented on this basis, findings of fact as to:

were required. The Judge made no findings with respect to such matters and, as noted, did not specifically rely upon Article 186 as the basis for his conclusion.

173. As the reasons of the Judge do not contain findings of fact in relation to each of the three representations which he found to be deceitful to the effect that:

the findings made in the reasons given by the Judge are incapable of sustaining his conclusion that Mr Al Mheiri was responsible for deceitful representations. It follows that grounds 1 and 3 must be upheld.

174. There is another gap in the Judge’s reasons which relates only to the representations with respect to the shares in the SPVs and the rental to be paid under the equipment leases. Each of Articles 185 and 187 of the Code require that the relevant representation induce the representee to enter into the contract. The Judge found that Mr Cameron would not have signed the Indemnity Agreement unless he had been assured that Mr Emadi would sign a similar agreement.⁷⁴ However, there is no similar finding in relation to the other representations which the Judge found to be deceitful.

Ground 4

175. Ground 4 challenges the Judge’s conclusion that Mr Al Mheiri is liable for fraudulent statements made by Mr Dazi on the basis that he was liable for Mr Dazi’s actions as his agent without finding that Mr Al Mheiri knew that Mr Dazi had made false representations to Mr Cameron. The argument advanced in support of the ground has two distinct components, namely:

176. The issue raised by the first aspect of this ground is essentially whether Article 190 provides a necessary condition which must be established before a contracting party can be held liable for the deceitful representation made by another, including the contracting party’s agents, or whether it simply provides a condition, which if satisfied, is sufficient to establish such liability. This is essentially a question of the proper construction of the Article.

177. There is nothing in the wording of the English translation of the Article which would suggest that it bears one construction or the other and neither party identified any case bearing directly upon the proper construction of Article 190.

178. On behalf of Mr Al Mheiri it is submitted that a construction of Article 190 to the effect that it imposes a condition which must be satisfied before a contracting party can be held vicariously liable for the deceitful representations of his or her agent should be preferred because there is no case in which a principal has been held liable for the deceitful representations of his or her agent of which he or she had no knowledge. Mr Cameron counters that argument with the submission that there is such a case, being Dubai Court of Cassation No. 141 of 2006. However, that case provides no support for the proposition advanced in reliance upon it.

179. The case concerned a claim for damages arising from an incident in which one of the defendants was piloting a boat towing a parasail which reached a height of 100m when the rope connecting the parachute to the boat snapped, causing the plaintiff’s son to fall on to the land and suffer significant injuries. Another defendant was the owner of the boat involved in the accident. The Court at First Instance ruled that both defendants were jointly and severally liable to the plaintiff. The driver of the boat was also convicted of a criminal offence.

180. The defendants appealed on the ground that their liability had been excluded by a provision in the contract pertaining to the provision of the parasailing experience. It was also contended that the owner of the vessel was not vicariously liable for the actions of the driver. In relation to those contentions the Court held:

181. In other words, the Court held that the boat owner was vicariously liable for the actions of its employee and that it was not possible to contract out of liability for acts constituting a crime. The Court went on to hold that the boat owner had the actual authority to supervise and direct the boat driver and was therefore vicariously liable for his actions and that it was not possible to challenge the basis for the boat driver’s conviction in civil proceedings. Accordingly, the appeal was dismissed.

182. As can be seen from this synopsis of the case, it has no bearing whatever upon the issues in these proceedings.

183. This Court has not been provided with any materials which would assist in the resolution of this issue of UAE Law. Neither party has provided any textual references or expert opinion on the question.

184. The Court does not consider that the text of the Articles provides any clear answer to the question. On the one hand, Article 190 is cast in terms which might be taken to suggest that it is the only means by which a contracting party is to be held responsible for the deceitful representations made by another person. On the other hand, a construction of Article 185 which would exclude the liability of a contracting party for deceitful representations made by an agent acting on the contracting party’s authority (albeit without his knowledge) would seem to leave innocent parties extremely vulnerable under UAE Law.

185. As the Court lacks the materials upon which to make a determination of this issue, it will be left open for determination when the case is reconsidered by the Court of First Instance.

186. Turning now to the second aspect of ground 4, relating to the adequacy of the Judge’s reasons, two deficiencies in the Judge’s reasons are asserted. The first concerns the lack of the findings of fact and enunciation of legal reasoning in accordance with the principles of UAE Law to sustain the conclusion that Mr Dazi had the ostensible authority of Mr Al Mheiri. The second asserted deficiency concerns the lack of the enunciation of any process of legal reasoning in accordance with principles of UAE Law to sustain the conclusion that Mr Al Mheiri is responsible for the acts of an agent acting with his ostensible authority.

187. It is first important to note that Mr Cameron’s case was advanced on the basis of ostensible authority, rather than actual authority. At trial (and on appeal) neither party identified any relevant legislative provisions pertaining to ostensible authority under UAE Law. However, at trial, Mr Al Mheiri relied upon a decision of the UAE Federal Supreme Court⁷⁵ for the proposition that UAE Law might recognise ostensible authority when the following conditions are satisfied:

188. At trial counsel for Mr Cameron generally accepted this proposition.⁷⁷

189. The Judge’s reasons for concluding that Mr Al Mheiri was liable for the false representation made by Mr Dazi are embodied in three findings:

190. This process of reasoning does not correspond with the principles of UAE Law which were not contentious in the argument presented to the Judge. In accordance with those principles, it was necessary for the Judge to find that:

191. There is obviously some overlap between the propositions advanced by the Judge and the principles of UAE Law cited to him. However, the correspondence is not complete. The Judge’s reasons focus upon whether Mr Cameron believed that Mr Dazi was representing Mr Al Mheiri’s understanding of the position, whereas UAE Law focusses upon agency and requires that the agent act in the name of the principal, and that the principal hold out the agent as his agent and that the party dealing with the agent believe that he is an authorised agent. While it is conceivable that the Judge might have made findings to that effect, he did not do so.

192. Turning to the second asserted deficiency in the Judge’s reasons on this topic, as the case was not presented on the basis of actual authority, the Judge made no finding to the effect that Mr Dazi acted with the actual authority of Mr Al Mheiri. That raises the question of whether a principal is liable for fraudulent representations made by an agent acting with his or her ostensible authority under UAE Law. That question was not addressed by the Judge.

193. The question has not been addressed in the submissions presented to this Court either. Accordingly, this Court is not in a position to determine whether, as a matter of UAE Law, a principal is liable for fraudulent representations made by an agent acting with the ostensible authority of the principal. This is another matter which must be left for determination when the matter is reconsidered by the Court of First Instance.

194. For these reasons ground 4 is upheld to the extent that it asserts that the Judge’s reasons were inadequate for his conclusion that Mr Al Mheiri was liable for deceitful representations made by Mr Dazi but not otherwise.

Ground 2

195. Ground 2 asserts that the Judge failed to make any finding as to when Mr Cameron first became aware of the falsity of the representations and failed to consider Article 192 of the Code concerning affirmation.

196. This ground proceeds on a false premise. The Judge expressly held that “Mr Cameron only learned the truth in about November 2017”.⁷⁹ Mr Cameron signed the Indemnity Agreement and provided a cheque by way of security years before November 2017, so no question of affirmation with knowledge arises on the facts found by the Judge.

197. Ground 2 must be dismissed.

Ground 5

198. Ground 5 contends that the Judge erred by not giving effect to the entire agreement clause within the Indemnity Agreement. The ground challenges the Judge’s conclusion that a deceitful representation vitiating consent would also vitiate Mr Cameron’s consent to the entire agreement clause.

199. The Court considers it inappropriate to consider and determine this issue in the absence of identified findings with respect to the relevant deceitful representations. As the Judge did not make such findings this ground should be left for further consideration by the Court of First Instance when such findings have been made. For that reason the Court did not call upon Mr Cameron’s counsel to address the issue in oral argument.

Ground 6

200. Ground 6 contends that the Judge erred by according too much weight to the untested hearsay witness statements of Mr El Araj and Mr Nedjar.

201. There are two reasons why this ground must be dismissed.

202. First, the attribution of weight to evidence is quintessentially a matter falling within the province of the Trial Judge rather than an appellate court. The principles of constraint enunciated in Krystal require that this Court would need to be satisfied that the Judge was “plainly wrong” to give any weight to those statements before an appeal could be allowed on this ground. As the Judge only relied on the statements for the purposes of corroborating other evidence which he had received, it cannot be said that his approach was so unreasonable that it could not have been taken by any Judge acting reasonably in all the circumstances of the case.

203. The second reason why the ground must be dismissed is that Mr Al Mheiri’s representatives did not take the steps open to them under the Rules of Court to test the evidence of the witnesses after being served with notice of Mr Cameron’s intention to rely on hearsay evidence in accordance with RDC 29.102. After Mr Al Mheiri’s representatives received that notice, it was open to them to apply to the Court for permission to call the makers of the statements to be cross-examined on the contents of their statements. However, no such application was made. Rather, Mr Al Mheiri instead chose to submit a further witness statement responding to the witness statements in question.

204. For these reasons ground 6 must be dismissed.

Summary

205. For the reasons given above:

Retrial or remission?

206. Mr Al Mheiri contends that if the appeal is upheld, there should be an order for a retrial. On behalf of Mr Cameron it is submitted that if the grounds with respect to inadequacy of reasons are upheld the matter should be remitted to the Trial Judge for the provision of further reasons.

207. We consider that a retrial must be ordered for the following reasons. First, the English cases recognise that significant delay between the trial and remission for the provision of further reasons provides a good reason for not remitting. In Flannery it was considered that a delay of 12 months precluded remission to the Trial Judge. The time between the trial and remission to the Trial Judge in this case would be in the same order of magnitude.

208. Second, we have referred above to the beneficial effect of the provision of adequate reasons upon the quality of decisions made. Obviously, reasons given after the decision has been made cannot confer that benefit. In this case the further findings of fact and enunciation of legal reasoning required to sustain the decision are significant and in our view it would not be in the interests of justice to require such reasons to be prepared on the basis that the outcome of the case is predetermined.

209. Third, as we have noted, Mr Cameron has never enunciated the facts, the principles of UAE Law or the processes of reasoning which sustain the conclusion that the representations with respect to the future matters upon which he relies were deceitful, in contravention of UAE Law. In our view fairness to the parties requires that this be done, in order that Mr Al Mheiri knows and has the opportunity to meet that case. This can only be done through a retrial.

Costs

210. The Judge ordered that Mr Al Mheiri should pay Mr Cameron’s costs of the action when dismissed his claim. That order should be stayed pending further consideration of the case by the Court.

211. The Judge further ordered that Mr Al Mheiri should pay Mr Cameron’s costs of the Initial Application for Permission to Appeal. As the appeal has been successful (in part), that order should be set aside.

212. The costs of the Renewed Application for Permission to Appeal were reserved to the Court of Appeal.

213. The Court considers that the costs of the two applications for permission to appeal and the appeal should be considered together. Each party has had a measure of success on the appeal, although the Court is in no doubt that Mr Al Mheiri has been the more successful party. Nevertheless, his costs should be reduced to reflect the grounds upon which he failed. The amount of that reduction is a matter of art rather than science. In all the circumstances the Court considers that Mr Cameron should pay 85% of Mr Al Mheiri’s costs of each of the applications for permission to appeal and of the appeal. Those costs should include any costs thrown away by reason of the adjournment of the hearing of the appeal in March 2026 which was vacated by consent. Mr Al Mheiri filed a statement of costs shortly before the hearing of the appeal. However, it does not appear that the statement covers his costs in relation to either of the applications for permission to appeal. As the assessment of the costs payable will require the assessment of three separate proceedings, the Court considers it preferable for that assessment to be undertaken by the Registrar.