Claim No: CFI 091/2023

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) ACCESS GROUP DWC LLC
(2) PROEX PARTNERS LIMITED

Claimants

and

BLS INTERNATIONAL FZE

Defendant

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JUDGMENT OF H.E. JUSTICE LORD ANGUS GLENNIE

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UPON the Part 7 Claim Form dated 8 December 2023 (the “Claim”)

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the Trial held before H.E. Justice Lord Angus Glennie from 1 to 15 September 2025 (the “Trial”)

IT IS HEREBY ORDERED THAT:

1. The parties shall liaise with the Court to provide a draft order giving effect to the decisions in this Judgment, to be provided by no later than 4pm (GST) on 3 December 2025.

2. All questions of costs are reserved, to be dealt with in writing according to the timetable set out in the order.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 12 November 2025
At: 1pm

SCHEDULE OF REASONS

Introduction

1. The first Claimant, Access Group DWC LLC (“Access Group”), is a company incorporated in the Dubai World Central Free Zone, UAE. It claims in this action as assignee of a related group company, Access International FZC (“Access International”). The second Claimant, ProEx Partners Limited (“ProEx”), is a company incorporated in Beirut, Lebanon. Although, as appears below, they entered into separate contracts with the Defendant, it is common ground that nothing turns on the precise identity of the contracting party. Accordingly, except where it is necessary to distinguish between them, in this Judgment, as at the Trial, the Claimants are simply referred to the “Claimants” or “Access”.

2. The Defendant (the “Defendant” or “BLS”) is a company incorporated in the Al Hamriyah Free Zone in Sharjah, UAE. It is a wholly owned subsidiary of BLS International Services Limited (“BLS India”). Two wholly owned subsidiaries of BLS India also feature in this dispute, BLS International FZE (KSA) (“BLS Riyadh”) and BLS International Travel & Tourism Co (“BLS Jeddah”). Except where it is necessary to distinguish between them, BLS India and its subsidiaries are referred to in this judgment as “BLS”.

3. Companies in the BLS Group provide visa processing, consular and front end services to governments across the world. They act as “external service providers” to governments under a European Regulatory regime known as the Visa Regulation. The Claimants also provide visa processing services. So far as relevant to this action, they provided such services under a number of Subcontracts with the Defendants and were anxious for that relationship to continue.

4. The Claimants claim damages from BLS for (i) its wrongful termination (or purported termination) of five Subcontracts entered into between the parties for subcontracted visa application processing and related services, as well as (ii) for its breach of a “non- compete” clause in each of those five Subcontracts.

5. Those Subcontracts all relate to primary obligations undertaken by BLS under a contract or contracts entered into by them with the Spanish Ministry of Foreign Affairs and Cooperation (“the Ministry” or “MOFA”) or, in one case, with the Cyprus Embassy in Tehran (the “Cyprus Embassy”). The contracts with the Ministry are referred to as the “Ministry Contracts”. Details of the Ministry Contracts between MOFA and BLS and the Subcontracts between BLS and the Claimants are set out below.

6. Among the various issues arising in the action are the following:

7. In the course of this judgment, it will be necessary to say something about the procedure leading up to Trial, particularly as regards the disclosure and production of documents. I shall touch upon these matters when I consider the evidence,

The First Ministry Contract

8. In September 2016, following a public procurement contest, BLS and/or BLS India was awarded a contract by MOFA to act as an external service provider for receiving and processing visa applications for Spanish diplomatic and consular services in 53 embassies in various countries. Those included the Spanish embassies in Riyad in Saudi Arabia (“KSA”), Beirut in Lebanon and Accra in Ghana. This contract between the Ministry and BLS is referred to hereafter as the “First Ministry Contract”.

9. The visa processing system is designed to enable persons living in a foreign country who wish to visit Spain to obtain the requisite visa from the Spanish Government while still in their own country. Visa processing under that system would normally take place at a Visa Application Centre (“VAC”) situated at or near to the Spanish Embassy in that country, at which Value Added Services (“VAS”), such as a premium lounge, could also be offered and purchased as optional extras.

10. The provision of visa processing services is regulated under European law by Council Regulation (EC) No 810/2009 of the European Parliament and of Council of 13 July 2009 establishing a Community Code on Visas (the “Visa Regulation”).

11. The First Ministry Contract is described in the award letter as a “contract of cooperation on the part of external service provider in the reception and processing of visa applications ...”. It was a major new contract for BLS which, until then, had operated visa processing services in only about seven countries, mainly in respect of visas for India.

12. The award of the First Ministry Contract to BLS was the subject of a legal challenge under Spanish public procurement legislation which delayed its coming into force until 12 December 2016.

13. Clause Third of the First Ministry Contract set out the Period of Performance as being three years from 17 December 2016 subject to the possibility of one or more extensions up to a maximum in aggregate of two years. The text of the clause is as follows:

Some of the language used is slightly odd, such as the reference to “the object of this contract”, and there is a further oddity about the date being 17 rather than 12 December (when the contract came into force). But nothing turns on this – it is not in dispute that the First Ministry Contract was for a period of three years from 12 or 17 December 2016, with the possibility of one or more extensions for a maximum of two years in total, giving a maximum duration of five years in total with the latest expiry date of 12 or 17 December 2021. The parties to that contract appear to have proceeded on the basis that the relevant date was 12 December and, since nothing turns on the precise date, I shall proceed on the same basis.

14. The option to extend the First Ministry Contract was exercised twice, first in July 2019 and then in May 2020, in each case by an Addendum signed by the parties, the extensions being agreed to last until 12 December 2020 (“the first extension”) and then 12 December 2021 (“the second extension”). In both cases it was recorded in clause 2 of the Addendum that “the maximum scope of such extensions will be two years; and the second Addendum (that of May 2020) recorded in clause 4 that the Spanish Ministry “wishes to extend the contract for a second, and last, year” (emphasis added).

15. The First Ministry Contract was therefore due to expire at the latest on 12 December 2021. It is, however, common ground that it was further extended until 24 May 2022 under extraordinary statutory powers enacted by the Spanish legislature to respond to the spread of the SARS-CoV-2 virus and the Covid-19 disease that it produced (the “COVID extension”).

16. On 29 October 2021, before the COVID extension came into force and before even the expiry of the second extension to the First Ministry Contract, the Ministry announced a public procurement exercise for a new three-year contract to replace the First Ministry Contract with a value of €112 million.

17. This further contract was in due course and after a fresh public procurement exercise awarded to BLS. The progress of that public procurement exercise is described in two judgments of the Spanish Central Administrative Tribunal, which heard appeals under Spanish procurement law against the award to BLS:

18. It should be noted in passing that, as was to be expected, the new Ministry Contract introduced a number of changes to the scope of the work and the applicable fees. This is picked up later in an email from Mr Sahu of 3 July 2023 (see paragraph 47 below)

19. It is apparent from the above that the new contract between the Ministry and BLS India, i.e. the Second Ministry Contract, was still not concluded by the time the COVID extension to the First Ministry Contract expired on 24 May 2022.

20. To deal with this unanticipated hiatus, and “to ensure the maintenance of the service, thus protecting the important public interest in its uninterrupted service”, on 25 May 2022 the Spanish Ministry extended the First Ministry Contract for a yet further period commencing on that day and lasting until the start of the service then out for tender under the tender process described above or for a period of nine months from that date, whichever should first occur. This further extension of the First Ministry Contract is referred to as the “May 2022 extension”.

21. That extension was still not sufficient. It came to an end after nine months on 25 February 2023. Accordingly, on 25 February 2023, the Spanish Ministry entered into an emergency contract with BLS (the “2023 Emergency Contract”), under powers confirmed by national public procurement legislation to avoid serious harm to the public interest that would arise from any discontinuity of service. That was not an extension of the First Ministry Contract. It was a new contract designed to fill the gap between the expiry of the much extended First Ministry Contract on 25 February 2023 and the conclusion of the Second Ministry Contract at the end of the drawn out tendering process described above. The 2023 Emergency Contract was expressed to be for a term commencing on 25 February 2023 and was stipulated to last until the conclusion of “the contract resulting from the current tender procedure” (see clause 3).

22. The legal and practical effect of all this is that the First Ministry Contract finally expired on 25 February 2023 under the terms of the COVID extension and the May 2022 extension beyond that. It was replaced by the 2023 Emergency Contract which had effect from that date. That was a new, temporary contract designed to regularise the position pending the award of a new contract resulting from the new procurement exercise described above. The conclusion of the legal challenges enabled the Ministry and BLS to conclude the Second Ministry Contract on 13 April 2023 for three years with effect from 14 April 2023, capable of being extended “by means of a single two year extension.” The maximum duration of the 2023 Second Ministry Contract was therefore until 14 April 2028.

The Spanish Subcontracts

23. BLS India incorporated BLS as a local subsidiary in order to perform its operations in the Gulf region, including under the First Ministry Contract. This is reflected in the recitals to the Spanish Subcontracts between BLS and Access, which record that the performance in the relevant territories was being undertaken by BLS on behalf of BLS India. Nothing turns on this for present purposes.

24. Under each of the relevant Subcontracts (the “Spanish Subcontracts” or simply the “Subcontracts”) BLS outsourced operations under the First Ministry Contract to Access in respect of Lebanon, Iran, Ghana and Saudi Arabia. Relevant details are set out below.

25. Each of the relevant Subcontracts is in the form of a Memorandum of Understanding (“MOU”). So far as relevant to this dispute they are as follows:

There was in addition an MOU dated 20 March 2017 between BLS and Access relating to the Embassy of Spain in South Africa, but this proved unsuccessful and was cancelled by mutual agreement between the parties on 16 June 2019. Nothing more need be said about it.

26. There are minor differences between these contracts, resulting in different numbering for some of the clauses. None of these differences are material to this dispute. It is convenient to refer to the KSA Subcontract while cross-referencing, in most cases at least, the different numbering of the equivalent provision in the other Subcontracts.

27. Little turns on the details of the following clauses, but it is worth setting them out if only to identify the substance of the Subcontract obligations, the scope of the work undertaken and the provisions for remuneration.

28. Clause 2 made provision, by reference to Annexure A, for the “Scope of Services and Responsibilities” to be performed by each party. Annexure A made it clear that BLS was responsible for providing technical solutions and technical know-how and remained responsible for the website and software and any updates to the same; while Access was responsible for staffing, licences and approvals, capital set up costs, operation and management of day to day operations, provision of local support for BLS personnel, setting up the VACs to standards set out by BLS, and a number of other things which it is unnecessary to spell out in detail.

29. Clause 3 set out, by reference to Annexure B, agreed “Service Level Requirements”. This dealt mainly with technical issues to do with photography, fingerprints, timely transfer of completed Visa application forms to the relevant diplomatic or consular office as well as the installation of hardware equipment and compliance with Social and Labour Obligations. It provided that Access was liable to compensate BLS for any loss or damage incurred due to non-compliance or inadequate compliance with any of the SLR.

30. Clause 4 (“Consideration”) provided that the parties should share revenues among themselves in consideration of providing Services in accordance with Annexure C. Annexure C was headed “Commercials” and provided that Access would receive the Visa Service Fees and any VAS, out of which BLS would (in the KSA Subcontract) be re-imbursed 3 Euros per application from Visa Fees and 25% of Revenue from VAS after deducting direct VAS expense. BLS was also to get 50 Euros per month for Call Centre Server Maintenance and Technical support. Taxes, VAT and levy were to be borne by Access, as was all Capital Expenditure, Operating Expenditure and Depreciation. These amounts were to be “computed on a fortnightly basis and deposited in the nominated/ designated bank account of BLS within 7 days from the fortnight so computed.” Access was also to pay BLS in respect of biometric equipment provided by BLS. Finally, it was made clear that Access “shall bear all cost(s) including Rent, Salary, Refurbishment, Tax(s), Levy and Statutory deduction(s)/ payment(s) and other business expenses required to run the Centre(s)” in the relevant country.

31. As already mentioned, the Commercials differed from Subcontract to Subcontract. In the Ghana and Iran Subcontracts, for example, BLS were to be entltled to 2 Euros per application from Visa Fees, rather than the 3 Euros specified in the KSA Subcontract. But the basic remuneration package remained much the same.

32. It should be noted here that in July 2018, the parties agreed variations to the two most valuable Subcontracts, those for KSA and Iran, so as to increase the sums payable to BLS. The precise details are unimportant. What matters, from the point of view of the Claimants at least, was that this negotiation and re-negotiation took place, and took place amicably, notwithstanding the existence of a concluded agreement.

33. Each of the Subcontracts contained a non-compete clause (clause 6) in the following terms:

34. With the exception of the Iran Subcontract, where the wording was slightly different, each of those Subcontracts contained a clause (clause 7 in the Ghana and KSA Subcontracts and clause 8 in that relating to Lebanon) providing as follows (adopting the numbering of the Ghana and KSA Subcontracts:

The Iran Subcontract had a similar clause (clause 8) but it omitted the words “unless terminated earlier by either of the parties by giving 6 months’ written notice in advance” in the first sub-paragraph. It was this clause in each of the Subcontracts which gave rise to the main issue on construction between the parties. I shall refer to this clause in each Subcontract as the “Termination clause”.

35. The Subcontracts each contained a Force Majeure clause (clause 8 of the KSA and Ghana Subcontracts and clause 9 of those relating to Lebanon and Iran); and a “Severability Clause” (clause 10 of the KSA and Ghana Subcontracts and clause 11 of those relating to Lebanon and Iran)

36. Each contract also contained a clause setting out, albeit not in identical terms, “Representations and Warranties” undertaken or given by each party (clause 11 of the KSA and Ghana Subcontract and clause 12 of those relating to Lebanon and Iran). In each clause of the relevant Subcontract, each party “represents, warrants and undertakes” that (reading short) it is able to enter into the contract with the other party; but the Subcontracts relating to Saudi Arabia and Ghana go on to contain warranties in the following terms:

37. Each of the Subcontracts contained an Arbitration Clause (clause 15 of the KSA and Ghana Subcontracts, clause 16 of the Subcontracts relating to Iran and Lebanon) which, read short, provided for arbitration in the DIFC in accordance with the Rules of the DIFC-LCIA Arbitration Centre, the language of the arbitration being English.

38. Each Subcontract also contained a clause (clause 16 of the KSA and Ghana Subcontracts, clause 17 of the Iran and Lebanon Subcontracts) dealing with “Applicable Law and Venue”. That clause, using the numbering in the KSA Subcontract, was in the following terms:

Both parties have proceeded on the basis that the reference in clause 16.1 to “the laws of the United Arab Emirates” is a reference to onshore UAE law. For my part, I am far from persuaded that that is the case. There is authority to the effect that, in an appropriate case and depending on all the relevant circumstances, such wording can be construed as a reference to DIFC law, DIFC law being one body of law within the corpus of laws of the UAE: see for example DIFC Investments LLC v Zia [2017] CA 005 at para.33. In this case there are strong indications in the contract itself to suggest that the parties must have intended to choose DIFC law rather than onshore UAE law. Some parts of the Termination clause, which provides for no-fault termination on 6 months’ notice and gives each party the right to terminate immediately for material and incurable breach – which the parties presumably intended to have effect – are said to be unenforceable under the onshore Dubai Civil Code but would fit easily into DIFC law. The inclusion of that clause in the Subcontract terms makes no sense unless parties intended that the Subcontracts be governed and interpreted according to DIFC law. However, since parties have proceeded on the basis that onshore UAE law applies, it would not be right for me at this stage to undermine that agreement. I therefore proceed on the basis that the Subcontracts and the parties’ dispute in relation thereto are governed by and to be determined by onshore UAE law.

The Cyprus Main Contract and the Cyprus Subcontract

39. On 2 June 2019, BLS and the embassy of the Republic of Cyprus in Tehran made a contract for BLS to act as an external service provider for services including the provision of a visa application centre for the embassy and the reception and processing of visa applications for a period of three years. This contract is referred to as the “Cyprus Main Contract”.

40. On 31 March 2022, agreement was reached between BLS and the Embassy to extend the Cyprus Main Contract for a period of two years with effect from 1 June 2022, i.e. until 31 May 2024.

41. On 1 June 2019, BLS and Access Group entered into a Subcontract relating to the operation of a visa application centre in Iran (the “Cyprus Subcontract”). It was stated to come into force from the date of its execution and would remain in force “till the subsistence of the contract awarded by the Embassy in favour of BLS unless terminated earlier by either of the parties by giving 6 month’s written notice in advance.” Given the extension of the Cyprus Main Contract so that it lasted until 31 May 2024, the Cyprus Subcontract too remained in force until that date. The Iran-Cyprus visa application centre is referred to by parties in their dealings as “IVAC”.

42. There are two material difference between the Cyprus Subcontract and the Spanish Subcontracts. One is the duration of the Cyprus Subcontract. It lasted until 31 May 2024, significantly later than the duration of the Spanish Subcontracts which, after various extensions to the First Ministry Contract, came to an end on 25 February 2023 (see below). The other is that in the Cyprus Subcontract the parties have chosen English law as the law governing the contract. This is now common ground between the parties. I shall consider these aspects in due course.

The Claimants’ case on the facts giving rise to the dispute

43. It is not, I think, disputed that the Claimants performed well under the various Subcontracts. With two exceptions, to which I shall refer in due course, no specific complaints about their performance were made by BLS.

44. I take this summary mainly from the Claimants’ skeleton argument but in my judgment, it is supported by the evidence and was largely unchallenged. After the extended First Ministry Contract came to an end in February 2023, both parties continued to perform in substantially the same manner: the Claimants continued to operate the VACs; BLS invoiced the Claimants and demanded payment as before; and the Claimants made payments substantially as required. I say “substantially as required” advisedly – there was a dispute about late payment, to which I shall refer later, but for present purposes what matters, at least from the Claimants’ point of view, is that that dispute was conducted against the background of the detailed payment provisions in Clause 4 of and Annexure C to the relevant Subcontracts. Further, BLS required the Claimants to take steps to upgrade their systems and premises, to work with BLS to update its website, to work with local embassies to set up new processes and to hire and train new staff. In Lebanon, the Claimants relocated a Brazilian visa centre to a different location to comply with a specific request from MOFA.

45. By mid to late November 2022, it was clear that BLS’s bid for the further Ministry Contract was likely to be successful. Both sides were aware of the fact that BLS was the preferred bidder, though there were legal challenges still to be overcome. Nothing could be taken for granted even at this stage.

46. It would be wrong to imagine that matters simply proceeded after this on the basis that the Claimants would slot seamlessly into the new arrangements once the award of the Second Ministry Contract was confirmed, without any thought being given to the question of negotiating terms for the relationship between the parties to continue. Emails exchanged between Mr Kamouni and Mr Aggarwal in May and June reveal some contention as to how the relationship might continue and on what terms. On 2 June 2023, for example, Mr Aggarwal emailed Mr Kamouni complaining about the size of the share received by BLS from the Saudi and Iran Subcontracts and stating that “in order to continue this relationship we need to revisit our commercials asap and start with new commercials from July itself.” Mr Kamouni pushed back, emphasising the hard work put in by the Claimants to make the operation a success. It is unnecessary to set out these exchanges in any detail. But it is clear that both parties expected there to be some tough negotiating before a new Subcontract was in place to run alongside the revised (Second) Ministry Contract, assuming of course that that further Ministry Contract was awarded to BLS. Mr Kamouni confirmed in cross-examination that, as one would expect, he was expecting a renegotiation.

47. It seems that some further time was taken up finalising arrangements with MOFA about the new Ministry Contract, but it was against this background that on 3 July 2023 Mr Sahu of BLS emailed Mr Kamouni confirming that BLS’s “concession agreement” with MOFA “is now further renewed for 5 years.” His email went on to say that BLS had now been given “an additional mandate to process long term visas and this will increase our overall Spain volumes and Value Added Services business respectively.” He continued:

The email then identified “a few changes in the new contract” – Service Fee of 16.9 Euros inclusive of VAT, National Visas included, Strict governance/ monitoring of VAC management by BLS PMO office, BV checks/ approval from missions before engaging staff and Digitization of documents included in the process – and concluded:

48. The Claimants did in fact submit their response within the allowed time. On 4 July 2023, Mr Kamouni emailed Mr Sahu proposing one of two models, either a “cost per application approach” or a flat percentage split on service fees and VAS. Neither model was a straight continuation of, or even a straight uplift on, the “commercials” in place under the pre-existing Subcontracts.

49. On 7 July, Mr Sahu responded to the effect that, as they had been working together for the last 6 years, “it would be our priority to sign the next contract with your company” but “the commercials shared by you are nowhere close to the proposals received from other interested partners.” He asked for the Claimants’ “best and final offer” by 12 noon on the next day.

50. Not unnaturally, this message caused some dismay on the part of Mr Kamouni. By email the next day, 8 July, he asked rhetorically what had happened to their long term partnership and their 7/8 year track record working with BLS. He pointed out deficiencies in Mr Sahu’s response. He had not said which model he preferred. He was comparing the Claimants’ offer with an offer from someone wholly new to the operation. The whole approach, ignoring the fact that the Claimants were the existing partner in four countries, was unfair. He called for a discussion over zoom or face to face. No such meeting or discussion took place.

51. It is the Claimants’ case that BLS had, in fact, already decided to remove the Claimants from any involvement in the enterprise; and that the exchanges between the parties in early July 2023 were not a genuine attempt to negotiate terms but a pretext for that termination. While continuing to work alongside the Claimants, and pretending that they were anxious to continue working with the Claimants, BLS was in fact taking significant preparatory steps to effect that termination.

52. According to the Claimants’ Mr Kamouni, these and other events, including what he called the “sham” negotiations in July 2023 described above, gave rise to a growing concern within the Claimants that BLS was intending to ease them out of the picture.

53. On 19 September 2023, BLS sent the Claimants a formal “Legal Notice for Recovery of Outstanding Payment” (the “KSA Legal Notice”) demanding payment within three days of SAR 1,350,746.65 allegedly outstanding under the KSA Subcontract, failing which BLS reserved the right to take action under that Subcontract, including terminating it as it deemed fit. It should be noted that this demand for payment was made under reference to the “MOU dated 22 June 2017”, i.e. the KSA Subcontract, presumably on the assumption that that Subcontract continued to govern the relations between the parties. No similar notice was sent in relation to the Iran, Ghana, Lebanon or Cyprus Subcontracts.

54. On 26 September 2023, Mr Sahu sent an email to MOFA in the following terms:

55. On 27 September 2023, lawyers acting for Access responded to the KSA Legal Notice, rejecting the claim that that amount of SAR 1,350,746.65 was due to BLS and contending that in fact Access had been overcharged by a figure of SAR 166,641; contending that it has been agreed that the billing cycle was 30 days from receipt of BLS invoices; denying that any penal interest – or indeed any interest – was due even if Access was indebted to BLS; and advancing the following argument in response to the threat to terminate the Subcontract:

56. On 1 October 2023, lawyers acting for BLS wrote to the Claimants purporting to terminate all of the Spanish Subcontracts with immediate effect for reasons set out in the letter, particularly focusing on the alleged failure by the Claimants to meet their payment obligations. Again, it is pertinent to observe that the letter specifically identifies by date and details of the subject matter the Lebanon Subcontract, the Iran Subcontract, the Ghana Subcontract and the KSA Subcontract.

57. On 2 October 2023, BLS took over operations in Iran and Ghana. On 5 October 2023, having been given notice of an intended application by the Claimants for an injunction, BLS took over operations in KSA and Lebanon. The proposed injunction hearing did not take place

58. Finally, on 11 October 2023, lawyers for BLS wrote to the Claimants claiming that the sum of 540.84 Euros was outstanding and, perhaps more pertinently, had it been correct, making the argument that the Cyprus Subcontract was never extended and therefore “stands expired by efflux of time”. Without prejudice to that position, the letter also stated that the Cyprus Subcontract was terminated with immediate effect. The claim by BLS that the Cyprus Subcontract had expired by efflux of time was clearly wrong since, as noted above, the Cyprus Subcontract was co-terminous with the Cyprus Main Contract and lasted until 31 May 2024.

The Claimants’ case in outline

59. The Claimants’ case is on one view very straightforward. They say that, by their letters of 1 and 11 October 2023, BLS wrongly purported to terminate the Spanish and Cyprus Subcontracts. They had no right to terminate any of them. They say that BLS was particularly interested in taking over the KSA Subcontract, which was highly profitable and accounts for some 80% of the quantum of the claim. To do this, they had to get the Claimants out of the way. They orchestrated what was described by one witness as a “hostile takeover”. They effected a “secret plan”, in pursuance of which they made false statements, targeted the Claimants’ staff, and “abruptly” appropriated the Claimants’ business “without meaningful notice”, relying on “illegitimate and ulterior reasons” in purporting to terminate. Further, BLS did all this “notwithstanding its admitted obligation to act in good faith (and not to act in abuse of rights)”. In other words, BLS acted throughout in bad faith. BLS had no right to terminate the contracts or to take the actions they took prior to termination. As a matter of UAE law, BLS did not succeed in terminating the Subcontracts. But as a matter of reality, it has achieved this, contrary to the Claimants’ legal rights both as a matter of the termination provisions and the non-compete clause in each of the Subcontracts. In Saudi Arabia, BLS has now installed itself in place of Access and has arrogated to itself the business that Access was running. And in Iran, Ghana and Lebanon BLS has appointed alternative Subcontractors in place of Access, namely Kiaray Chista Mehr Co (“KCM”), Blueberry Travel (“Blueberry”) and Helen Holidays respectively.

Evidence

60. The argument for the Claimants raises issues of law as well as issues of fact. I shall deal with the legal questions later. First, however, it is appropriate to consider the evidence from the parties’ witnesses as well as the documentary evidence.

Two applications – privileged advice and strike out for non-disclosure

61. Before turning to deal with the witnesses and making findings on the disputed issues of fact, I should mention two applications made by the Claimants on the first day of the Trial which, in their different ways, had an impact on the assessment of the evidence during the course of the Trial.

(a) The privilege application

62. The privilege application arose out of the disclosure by BLS of an internal BLS email sent on 9 June 2023 summarising advice given to BLS by their lawyers earlier in June. That advice was clearly privileged. This email was disclosed by Emirates Legal, lawyers acting for BLS, at the end of August 2025, in the week before the commencement of the Trial on 1 September. At the request of BLS’ lawyers, it was put in the Supplementary Bundle for Trial. After an exchange of correspondence between lawyers acting for the parties, BLS asserted privilege over the document or its contents and sought to have it removed from the Supplementary Bundle.

63. The matter was argued at the beginning of the Trial. The document was clearly privileged. There was no dispute about that. The question was as to what flowed from that. I was referred to a number of English authorities on the point including Derby v Weldon (No. 10) [1991] 1 WLR 660, MMI Research v Cellxion [2007] EWHC 2456 (Ch), Rawlinson & Hunter Trustees SA v Director of the Serious Fraud Office [2015] 1 WLR 797, and Flowcrete UK Ltd v Vebro Polymers UK Ltd [2023] EWHC 22 (Comm). The legal framework for the discussion is that the disclosing party, here BLS, seek to prevent the use by the Claimants of documents which they assert to be privileged. Although the issue was raised by counsel for the Claimants, in principle the matter falls to be treated as though BLS, the disclosing party, was seeking an injunction to restrain the Claimants from making use of the document. As I have said, it was not disputed that the document was clearly privileged. The first question is whether the privileged document was disclosed by mistake and that mistake was or ought to have been obvious to the other party. If there was no obvious mistake in that sense the enquiry goes no further – privilege in that document has been waived and there is no basis upon which it can be argued that the other party should be restrained from using it. If, however, disclosure of the document was an obvious mistake, i.e. where the mistake was or ought to have been obvious to the other party, there still remains the question of whether it is just and equitable to prevent the use of that document or, to put it another way, whether it would be “unconscionable” to allow the party to whom the document has been disclosed by mistake to make use of it at Trial. Relevant factors might include whether there had been any significant delay in objecting to the use of the document, whether the refusal to allow use of the document might facilitate the covering up of some wrongdoing, whether the document revealed elements of dishonesty on a point central to the outcome of the case, and whether allowing the use of the document would be in the public interest. But that list is by no means exhaustive. The burden lies on the party seeking to restrain the use of the mistakenly disclosed document to make good his case.

64. Having read, with the agreement of both parties, the document and the surrounding correspondence, and having heard counsel for both parties, I came to the view that the document was disclosed deliberately and not by mistake, let alone an obvious mistake. The document was part of what was described by Emirates Legal in the week before Trial as “a non-exhaustive list of documents”, the inclusion of which was “necessary in order to present a complete record for Trial” and which, after liaising with counsel, BLS proposed to be added to the Supplemental Bundle. That correspondence made it clear that some thought had gone into the selection of those documents – the list included only 9 documents – and that the view had been formed that they must be included in the Trial Bundles. It should be stressed that the document was not only disclosed but was specifically required to be included in the Supplemental Bundle for Trial. I was satisfied that there was no mistake – far from it, the document had been selected as part of a careful review of what further documents ought to be included in the Trial Bundles – but even if there was a mistake it would not, in the circumstances I have described, have been obvious to the other party that there had been a mistake. On the contrary, on all the evidence they had, the Claimants would undoubtedly have regarded the decision to disclose the document as a deliberate decision, carefully thought through, to include the document in the Trial bundles because it would, or might, assist BLS’s case.

65. In those circumstances, the question of whether use of the document by the Claimants would be unconscionable or inequitable did not arise. I allowed use of the document and it was referred to frequently in the course of the Trial.

(b) The disclosure application

66. The disclosure application was more substantial. The Claimants applied for an Order (i) declaring that there had been a failure of BLS to comply with its obligations as regards disclosure of documents; (ii) striking out BLS’s Defence in the action and entering judgment for the Claimants; alternatively (iii) an order that adverse inferences be drawn against BLS pursuant to RDC 28.61.

67. I heard detailed submissions from both parties. The Claimants complain of the following things in particular: the absence of a whole raft of documents which BLS must have, running into the thousands, the failure to produce such documents being caused in part by the mis-application of key words in the disclosure exercise and the fact that the search was carried out not by Emirates Legal, their lawyers, but by BSL itself; a failure to produce WhatsApp messages which would show what relevant individuals were thinking and saying to each other at relevant times; and the refusal by key individuals in BLS to allow their WhatsApp accounts to be searched for relevant material even by BSL’s own legal team at Emirates Legal. This extensive failure to disclose documents despite a number of Document Production Orders was, they said, part of a course of conduct by BLS amounting to the deliberate suppression and destruction of documents and was preventing a fair trial. The appropriate course in such circumstances, indeed the only just course where, as here, there could not be a fair trial due to the deliberate failure of BLS to fulfil their disclosure obligations, was to strike out the Defence and enter judgment for the Claimants on their claim. BLS accepted that the discovery process had not been satisfactory. But the final order for disclosure involved the complete re-run of the searches already undertaken. That was not practical in the event, despite extraordinary efforts on the part of their solicitors. It had to be born in mind that the first time any challenge was made to the reasonableness of the searches being undertaken by BLS was in June of this year, only three months before Trial. But even if there had been a substantial failure of disclosure, the central question was whether the court was satisfied that there could not be a fair trial. That had not been demonstrated.

68. I was referred to a number of authorities, including Arrow Nominees Inc v Blackledge [2001] BCC 591 at [54], Candy v Holyoake [2017] EWHC 373 (QB), Cable v Liverpool Victoria Insurance Co Ltd [2020] 4 WLR 110 at [45], Active Media v Burmester [2021] EWHC 232 (Comm) at [299]-[311] and Vision Construction LLC v Banque Misr UAE [2022] DIFC CFI 049. From these cases, I take the following principles in so far as applicable to this case:

69. After hearing argument I was satisfied, for the reasons advanced by the Claimants, that there is or had been in existence a considerable amount of documentation in the possession or control of the Defendants which was or might well be relevant and had not been disclosed. I was also satisfied, again for the reasons advanced by the Claimants, that a significant part of the blame for that lay with the Defendant. Without going through the argument point by point, I was satisfied that the Defendants were in breach of their disclosure obligations to a very significant extent. But I was not satisfied that any prejudice to the Claimants or, more particularly, to the fairness of the trial could not be achieved by the Court’s willingness, where appropriate, to draw adverse inferences from the absence of relevant documentation where such documentation must have existed but was not made available. In those circumstances, I dismissed the Strike Out application and continued the Adverse Inferences application until the end of the Trial. I noted that the appropriateness of drawing adverse inferences would ultimately be assessed on an issue by issue basis and the question in each case would be, on that particular issue, whether the absence of documentation on that issue was so serious that the Court should be minded to draw an adverse inference. I also noted that it was always possible to re-argue the strike out application at the end of the Trial, on the basis that the prejudice which has ultimately emerged is much clearer than it is presently able to judge on the basis of documents alone.

70. A further reason for refusing to strike out the Defence and enter judgment for the claimants, and this is not a reason I gave for my decision at the time, is that the Defendants have, or may have, legal defences to the claim which do not turn on the disclosure or non-disclosure of documents, and it would be unjust to enter default judgment for against the Defendants without permitting the Defendants to seek to run such defences at Trial.

Witnesses, credibility and additional findings of fact

71. I heard evidence from Khaled Mkahal and Nidal Kamouni, both co-founders of the Claimants. Mr Kamouni was also managing director of the Claimants. Both were straightforward in the way they gave their evidence, though Mr Mkahal was perhaps more abrasive, argumentative and confrontational. Whatever those small misgivings, however, I considered them both to be credible witnesses.

72. Evidence for BLS came from Jitendra Sahu, the BLS Group’s Chief Operating Officer, Prem Anand, President (Global Operations) of BLS India, Kulwant Thiara, Global Head of Special Projects, Anne Kurian, Regional Head (Middle East) of the Claimants, and Deepak Gupta, Finance Manager (Middle East). It was submitted on behalf of the Claimants that it was a case of Hamlet without the Prince: the people who should have been called to give evidence were Diwakar Aggarwal (Chairman on BLS) and Shikhar Aggarwal (Joint Managing Director). I reject that submission. I was not persuaded that they had much to say about areas not covered by other witnesses. It was also submitted on behalf of the Claimants that, with the possible exception of Mr Gupta, all of the BLS witnesses were “fundamentally dishonest” – part of a “dishonest conspiracy” to mislead the Court – and that their evidence should be rejected except where adverse to BLS. I do not accept that submission. It is true that they were at times argumentative and evasive, and hesitant about answering questions when they thought that the true answers would be detrimental to BLS’s case, but to say that they were fundamentally dishonest is in my opinion a step too far. Nonetheless, the absence of internal documents when documents should have been available made it difficult in many instances to accept their evidence.

73. It is not necessary in this judgment to detail every missing document and to spell out the inferences to be drawn from their absence. Instances were set out at length in the Closing Submissions for the Claimants. A few examples will suffice. It was to be inferred from the absence of documents (missing WhatsApps and emails) that steps were being taken as early as April 2023 to remove the Claimants from the operation in KSA and to establish rival VACs in their place. A similar inference could be drawn concerning the take over from ProEx in the Lebanon and the removal of the Claimants in other places. And it was to be inferred that the ostensible process of negotiation commenced by the email of 3 July 2023 was a sham, as was the pretence to have obtained competitive quotes from other potential sub-contractors. Those examples should suffice for present purposes to indicate that I broadly accept the Claimant’s case that as early as May 2023 BLS were considering going forward under the Second Ministry Contract with other subcontractors and that they had taken steps well before October 2023 to set up arrangements with other subcontractors who would take the place previously occupied by the Claimants in providing the visa services as subcontractors to BLS.

74. I should, however, make three discrete points on the evidence.

75. The first is to re-iterate that the Claimants always contemplated that there would, and would have to be a negotiation once the further Ministry Contract was in place. Nothing in the complaint about lack of disclosure affects this.

76. The second point relates to a serious data breach that occurred at the VAC in Tehran in June 2023. What appears to have happened was that one member of staff at the VAC was seen on CCTV to be taking photographs of passports belonging to visa applicants. The staff member was suspended but insisted that he was not taking the photographs for any nefarious purposes but rather to assist with his follow-ups with the courier company. He was ultimately dismissed. This was brought to the attention of the Spanish embassy in Tehran. Ultimately no damage appears to have been done, but the matter of most concern was that the Claimants had not notified BLS straight away but had sought to deal with the matter themselves. The incident had occurred on 21 June 2023, but BLS were not notified until 10 July, some three weeks later. That notification came not from the Claimants but from MOFA, who regarded it as sufficiently serious to warrant further enquiries. BLS understandably considered that it was something that was going to undermine confidence in them being able to continue to perform to the requirements regarded as necessary by the Spanish Government. This did not ultimately precipitate a break with the Claimants – I reject Mr Sahu’s evidence that this was a “deal breaker” for BLS – but I am satisfied that it was a contributing factor to the loss of confidence in the Claimants which was partly responsible for the breakdown of relations at the end of September 2023.

77. The third matter is the complaints made by BLS about a pattern of late payments giving rise to the KSA Legal Notice sent on 19 September 2023. Having heard the evidence, I prefer the explanation put forward by BLS. Payment from the Claimants were constantly late. But I do not consider that this can justify their termination of an implied contract of the kind alleged by the Claimants to be in existence. The point does not arise on the analysis which I prefer and set out below.

UAE Civil Code

78. As noted above, parties are agreed that the Spanish Subcontracts are governed by onshore UAE law.

79. UAE contract law principles are set out in Federal Law No. (5) of 1985 Concerning the Issuance of the Civil Transactions Law of the United Arab Emirates (the “UAE Civil Code” or, simply, “Civil Code”). It is not, so it seems, possible to find any authorised or agreed translation, though any differences in different translations appear to be stylistic rather than fundamental to an understanding of the relevant provision. An unofficial translation by James Whelan accompanies the Ministry of Justice Commentary; and this, with comments by Dr Al Mulla to indicate where, in his opinion, Whelan’s translation is a gloss on the text rather than a literal translation, was used by Griffiths J in the High Court in England and Wales in Dhir v Flutter Entertainment Plc [2021] EWHC 1510 (QB) at [135. That translation is adopted here. Alternative wording for certain parts of the relevant provisions of the Civil Code, filed in the Authorities Bundle for Trial though without attribution, are indicated by parentheses.

80. Part 2 of the Civil Code relates to the abuse of rights. This includes Article 106 which is in the following terms:

81. Principles relating to the performance of the contract include Articles 246 and 247 in the following terms:

82. The principles relating to construction of contracts are set out in Articles 257 – 266. They include the following:

83. General provisions concerning the dissolution of a contract are set out in Articles 267 – 272 of the Civil Code. They provide as follows:

Parties’ submissions in outline – the contractual position after expiry of the First Ministry Contract

84. The first question to be decided is as to the contractual position after expiry of the First Ministry Contract on 25 February 2023.

85. There was not much dispute about the basic principles to be applied. The Claimants submitted that the Court should apply the plain wording of the contract read in light of all its terms and clauses as a whole: Civil Code Article 258, Ted Jacob Engineering v Morrison [2018] CSOH 51 at [162]. In case of ambiguity or lack of clarity, the Court should interpret the relevant provision applying the principles set out in the Civil Code: see Article 265(2) and Abu Dhabi Court of Cassation Judgment No. 179 of 2024. Further, the contract must be performed in a manner consistent with the requirements of good faith, and must embrace “that which is appurtenant to it by virtue of the law, custom and the nature of the transaction”: Article 246. The obligation to act in good faith requires each party to carry out his obligations honestly and as agreed, without deception, and to avoid conduct which unfairly disadvantages its counterparty, to take the steps necessary to allow its counterparty to perform the contract, to avoid an abusive exercise of rights and to protect the legitimate interests of the counterparty: see e.g. Dubai Court of Cassation Judgment No. 288 of 2025. Reliance was also placed on Article 106(1) of the Civil Code: the exercise of a right is unlawful if there is an intentional infringement of the rights of others, if the interest desired or disproportionate to the harm that would be suffered by others or if it exceeds the bounds of usage and custom. None of this was seriously in dispute.

86. The provisions concerning termination of a contract gave rise to more controversy. Relevant provisions of the Civil Code on this point include Articles 267, 271 and 272. A valid and binding contract cannot be resiled from “save by mutual consent or an order of the court or under a provision of the law”: Article 267. Although Article 271 says that it shall be permissible for the parties to agree that in the event of breach the contract is cancelled spontaneously or automatically without the need for a judicial order, the Claimants submitted that a court order will be required to bring the contract to an end unless the contracting parties have expressly and clearly agreed that it should be dispensed with. Article 272 provides for an implied termination right that requires a court order before the contract is brought to an end. The Code is strict in its requirements for bringing a contract within Article 271 as opposed to Article 272. For termination without a court order there needs to be an “express resolutory condition” in the contract. In other words, it needs to be expressly stated in terms that a court order is not required for bringing the contract to an end on account of the other party’s breach: see Dubai Court of Cassation in Appeal No. 469 of 2021. In the present case, so the Claimants submitted, the Termination clause leaves room for judicial assessment e.g. of the gravity or materiality of the breach. That points away from there being a right to terminate without a court order; and the clause does not state in terms that a court order is not required. In any event, Article 272(2) gives the court power to order the obligor to perform, or may order that the contract be cancelled and compensation paid by the wrongdoer, in each case giving the defaulting party the opportunity of curing the breach, e.g. by payment, at any time up to the final court order: Dubai Court of Cassation in Appeal No. 469 of 2021, and see also Abu Dhabi Court of Cassation in Appeal No. 261 of 2013. In summary, therefore, so the Claimants submitted, the contract remains in place unless and until an order is made bringing it to an end.

87. The Claimants submitted, further, that the concept of termination at will, as set out in the first paragraph of the Termination clause (“unless terminated earlier by either of the parties by giving 6 months’ written notice in advance”), is a common law concept that is “simply not recognised and has no application under UAE law.” The only basis on which termination could be sought would be for breach under Article 272 of the Civil Code, which would require an application to the court. There would be no entitlement to bring the contract to an end unilaterally. It would generally be necessary to demonstrate breach. Any attempt to terminate for convenience would either be wholly unsuccessful or, if it were permitted at all, would only be permitted on the basis that the other party should receive compensation for the profit lost as a result of that termination: Dubai Court of Cassation (Commercial) Judgment No. 620 of 2013, Dubai Court of Cassation (Commercial) Judgment No. 253 of 2024.

88. The Claimants submitted that the Subcontracts continued to run without interruption until the expiry of the Second Ministry Contract for two reasons:

89. In support of their first submission, namely that the Subcontracts were, on their proper construction, to continue until the expiry of the arrangements under which the Ministry agreed to outsource visa application services to BLS, whether those arrangements were contained in the First Ministry Contract or in subsequent contractual arrangements, the claimants advanced six discrete and overlapping arguments:

90. The Claimants’ second submission was, in effect, that the parties by their conduct impliedly agreed to continue with the Subcontracts notwithstanding the termination of the First Ministry Contract through effluxion of time. Put simply, the parties simply continued to operate as before. Not only that, but BLS required the Claimants to undertake further significant steps, including making substantive changes to the VACs so as to comply with the new requirements laid down by the Ministry in the Second Ministry Contract. In short, so it was argued, both parties clearly conducted themselves on the basis that the Spanish Subcontracts continued in force. That is confirmed by the fact that, as noted above, the KSA Legal Notice referenced the KSA Subcontract as governing the parties’ relationship.

91. On behalf of BLS, it was submitted that the principles of construction under the civil law were not in doubt. The basic principle in contracts is the consent of the contracting parties and the obligations that they have assumed under the contract: Civil Code, Article 257. Words have their true meaning, their ordinary meaning, and may not be construed figuratively unless it is impossible to give effect to that ordinary meaning: Article 258(2). If the wording chosen by the parties is clear, it may not be departed from by way of interpretation to ascertain the intention of the parties: Article 265(1). The parties’ intentions are to be determined objectively

92. The wording of the termination clause in the Subcontracts identifies a specific contract under a particular award from MOFA. That meaning is plain and refers to the existing First Ministry Contract. That contract is referred to in the recitals to the Subcontracts. It does not mean any contractual relationship on those or similar terms that might be entered into at some point in the future. The claimants’ obligations under the Spanish Subcontracts were derivative upon the particular terms of the award, for example in its references to compliance with the Request for Procurement. If any new award were made, the commercial terms of any further relationship would need to be negotiated in order to reflect it. Each of the Spanish Subcontracts consequently expired, automatically and without the need for a court order, on 25 February 2023.

93. The position of BLS is encapsulated in its Amended Defence and Counterclaim at paragraphs 39-44. The First Ministry Contract expired, by effluxion of time, on 25 February 2023. Accordingly, each of the Spanish Subcontracts also expired on that date by mutual consent under the Termination clause in the relevant Subcontract. Nothing in the UAE Civil Code precludes the parties to a contract from agreeing on a contractual expiry date, albeit one fixed by reference to the termination of another contract. It was at that time by no means certain that BLS would be re-appointed as external service provider by the Spanish Ministry. Accordingly, though they recognised that further negotiation would be necessary, the Claimants and BLS did not immediately enter into negotiations in respect of their re-appointment but continued to run and manage the visa applications as they had done under the Subcontracts. The parties’ conduct thus described gave rise to a new contract in respect of each visa centre operated by the Claimants, made or demonstrated by their conduct. By those contracts the parties agreed to continue to perform the services and obligations as they had done under the Spanish Subcontracts, without any fixed term but at the will of the other, alternatively on terms to be implied that either could give reasonable notice to determine the contract without cause. Each such contract was on the terms of the Spanish Subcontracts except the provision for a fixed term.

Discussion – the contractual position

94. Each of the Spanish Subcontracts provided in the Termination clause that the Subcontract would remain in force “till the subsistence of the contract awarded by the Ministry of Foreign Affairs and Cooperation of Spain in favour of BLS”. It is not in dispute that at the time the Spanish Subcontract were entered into, the only contract in existence between MOFA and BLS was what I have called the First Ministry Contract. As a matter of construction, therefore, it is plain that the reference in the Termination clause quoted above is a reference to that First Ministry Contract. In other words, the Subcontract was to remain in force “till the subsistence of the [First Ministry Contract]”.

95. Further, it is not now in dispute that the First Ministry Contract eventually expired, after various extensions, on 25 February 2023. With effect from that date it was replaced by the 2023 Emergency Contract. That Emergency Contract was in turn replaced on 14 April 2023 by the Second Ministry Contract. The obvious conclusion, therefore – and it is a conclusion which makes literal sense according to the wording of the clause and also makes commercial sense of the Subcontracts as at the time they were entered into – is that the parties to the Subcontracts agreed that each Subcontract should come to an end when the First Ministry Contract came to an end; otherwise the Subcontract would continue to exist but in a void, with no underpinning Ministry Contract to give it substance. Of course, it would be open to parties to seek to agree an extension of the Subcontracts in the event that the First Ministry Contract was superseded by a further contract with MOFA on the same or similar terms, but that is a different matter, and whether they did so or not is at the heart of this dispute between the parties. But the starting point must be that, absent any agreed extension, the Subcontracts themselves terminated, came to an end, at the same time as the First Ministry Contract.

96. It might be thought somewhat tendentious to refer to the “First” and “Second” Ministry Contracts. The Claimants original position was that what I have called the “First Ministry Contract” continued in existence throughout the whole of the relevant period, and will continue in existence until March 2028, that being the end of the five year extended period of the Second Ministry Contract plus the two year non-compete period thereafter. That position seems to have proceeded on the analysis that the 2023 Emergency Contract and what I have called the Second Ministry Contract were, or should be regarded as, simply extensions of the First Ministry Contract entered into in September 2016. That argument is no longer advanced, and rightly so – it was doomed to fail. The only Ministry Contract in existence when the Spanish Subcontracts were entered into in 2016 and 2017 was the Ministry Contract entered into in September 2016, i.e. the First Ministry Contract, and that was a contract which clearly came to an end in February 2023, when it was replaced first by the 2023 Emergency Contract and then by the Second Ministry Contract, all as described above.

97. As I have said, the Claimants no longer advance this argument. They now argue, as I understand it, that the Termination clauses in the Subcontracts should be understood as meaning that the Subcontracts would continue in existence if “a contractual relationship” between BLS and the Spanish Ministry continued to exist on terms similar to those contained within the First Ministry Contract. That argument too is, in my view, bound to fail. It ignores the plain meaning of the words used in the Termination clause in each Subcontract – which provide that the Subcontracts will remain in force “till the subsistence of the contract awarded by the Ministry of Foreign Affairs and Cooperation of Spain in favour of BLS” (emphasis added), in other words “till the subsistence of the First Ministry Contract”. It also introduces a large element of uncertainty. What if the First Ministry Contract comes to an end and there is a gap in time, maybe of several months, before a new contract is entered into between BLS and MOFA? What if any new contract between BLS and MOFA is on significantly different terms, imposing greater obligations on BLS, and therefore indirectly on subcontractors such as Access? And what if any new contract between BLS and MOFA provided for remuneration at lower rates than those applying under the First Ministry Contract. In all such circumstances, and I have only mentioned the most obvious ones, there would surely be scope for renegotiation of the agreed “Commercials” under the Subcontracts and possibly other aspects depending on the extent of any differences between the First Ministry Contract and any further contract between BLS and MOFA; and it could not be assumed that parties to the Subcontracts would simply accept that the Subcontracts continued on the same terms as before. It is clear that both sides anticipated that there would be a need for negotiations. The fact that alterations to the “Commercials” were agreed during the currency of the First Ministry Contract is neither here nor there – the point is that they might well not have been agreed and there was no obligation to agree them.

98. The Claimants put forward a number of arguments as to why the Subcontracts should survive the expiry of the First Ministry Contract. I have endeavoured to summarise them above. In some of those arguments the Claimants rely on the duties of honesty and trust and the duty to act in good faith. It is said that in terms of those considerations it would be contrary to principle for BLS “to remove a commercial counterparty” without notice and in the absence of material breach. Such arguments miss the point. On the proper construction of the Subcontracts the Subcontracts come to an end when the First Ministry Contract expires. There is no question of the Claimants being “removed”. The contract has simply run it course and a new contract has not yet been agreed. There can be no duty on BLS to renew the contract or negotiate a new contract with the Claimants on the same or similar or indeed any terms. As at 25 February 2023, the simple position was that the First Ministry Contract had expired and the Subcontracts between BLS and the Claimants had come to an end.

99. The more interesting question, conceptually, is as to what happened thereafter. It is a matter of agreement that the parties continued to act on the same basis and in the same manner as before. Indeed, as the Claimants point out, the Claimants went over and beyond their pre-existing obligations in some respects and made significant changes to the VACs in line with requests from the Spanish Ministry. Both parties contend that the parties were working together under a contract created by conduct. I agree. But the critical question is: what was that contract and what were its terms?

100. The Claimants’ case is that it was agreed by conduct that the Subcontracts would continue for the duration of the renewed (i.e. Second) Spanish Ministry contract and on the same terms as before “subject only to the question of the termination clause”. I find this difficult to accept. The submission, as I understood it, was that this analysis applied from the very first day, even the very first minute, after the First Ministry Contract came to an end on 25 February 2023. But as at that time BLS had not been awarded the new Second Ministry Contract and it was possible, albeit perhaps unlikely, that it would be awarded to some other entity. Why would it be assumed that the parties would immediately sign up (by conduct) to a new Subcontract which was contingent upon a Ministry contract which might never be awarded? Why would it be assumed that they would necessarily sign up to a new contract on the same terms without allowing for negotiations on price, scope of work, and the like? They might, of course, do all of that, but it is not a necessary inference from their conduct that they did so.

101. Far more likely, so it seems to me, is what I suggested to the parties during their oral opening submissions, namely that the parties proceeded on an ad hoc basis, continuing to perform in the same way as they had under the First Ministry Contract in anticipation (a) that BLS would indeed be awarded a new Ministry Contract and (b) that they would in due course embark on a process of negotiation, which might be quick and easy or might be more protracted. Such an ad hoc arrangement makes perfect sense and reflects the commercial reality in which the parties found themselves. They would not want to be bound before they knew what they were agreeing to. Instead, they would “jog along” in anticipation of a new deal being done after the award of the new Ministry Contract and consequent negotiations

102. Such an ad hoc arrangement is, to my mind, simply another way of saying, as was submitted on behalf of BLS, that the parties by their conduct entered into a new contract, for each visa centre operated by the Claimants, in terms of which the parties agreed to continue to perform the services and obligations as they had done under the Spanish Subcontracts, “without any fixed term but at the will of the other”.

103. The Claimants’ answer to this analysis is to focus on some aspects of the evidence given by BLS’ witnesses. Mr Sahu, for example, appeared to think that the contract was continuing, his expectation being that BLS would continue with all its subcontractors. In reality, it was known from about November 2022 that BLS were very likely to be awarded a new Ministry Contract. Documents such as the KSA Legal Notice served by BLS referenced, as though still operative, the original KSA Subcontract. Everyone acted on the basis that the Subcontract simply continued and was going to continue for the duration of the Second Ministry Contract. That, they say, reflected the reality of the situation.

104. That argument cannot be dismissed lightly. But in my view, it both proves too much and leaves important questions unanswered. On the Claimants’ case the new contract, implied from conduct, came into being instantaneously on the expiry of the First Ministry Contract. That is an impossible submission, if only because at the moment the First Ministry Contract expired there was no conduct of any sort from which it could be inferred that the parties intended their relationship to continue into the future on any particular terms. Indeed, as noted above, Mr Kamouni gave evidence that back in 2022 he was aware that there would have to be a re-negotiation in light of the new Ministry Contract which it was hoped would be awarded. So, when did this implied contract crystalise? After a week of continuing as before? After a month? No clear answer is suggested, and rightly so, since it is impossible to point to any event giving rise to the inference that the parties intended to commit themselves to working together for the next several years in implementation of the Second Ministry Contract.

105. The proper analysis is that the parties simply carried on without giving much thought to the contractual situation until it became clear in June or July 2023 that negotiations on the terms of any new Subcontract might be challenging. As is clear from the narrative earlier in this Judgment, the parties never did reach agreement on any such Subcontract. When the time came that things fell apart in September/ October 2023, there was no question of removing the Claimants from the Subcontract. They were not in any such Subcontract and therefore could not be “removed” from it. The contractual relationship up to that point was simply a relationship of working together to keep the show on the road pending the outcome of negotiations for a new Subcontract. When those negotiations came to nothing that relationship ended.

106. The Claimants rely on the obligation of good faith under Article 246 of the Civil Code. But that takes them nowhere. Although dressed up as an argument that BLS were not entitled to terminate the Subcontract, there was on my analysis no binding obligation on BLS to enter into a new (or extended) Subcontract at all. The real complaint by the Claimants has to be that BLS did not enter into a new contractual relationship with them. The duty under Article 246 to act in a manner consistent with the requirements of good faith applies expressly to contractual performance. It can have no application to pre-contractual negotiations. There was no duty on BLS to act towards the Claimants in any particular way. There was no obligation on BLS to favour the Claimants in such negotiations, or to reveal to the Claimants that they were negotiating with others or that they were planning to keep some of the visa services in-house.

107. The Claimants have a fall-back argument. They say that, if BLS’s analysis is correct, and there was no fixed term contract but only an agreement to continue to perform the services and obligations “without any fixed term but at the will of the other”, then to get out of it BLS needed to terminate, and the only basis for termination was under Article 272 of the Civil Code. That required an application to the Court. There was no entitlement unilaterally to bring the contract to an end.

108. I do not accept that argument. Article 272, and Article 271 for that matter, are concerned with the position where one party is in breach, or has not performed, and the innocent party wants to terminate for such breach. The default position under Article 272 is that the innocent party has to get an order from the court. But this is not a case of breach. The implied contract, on my findings, is “without any fixed term but at the will of the other.” It is no more than an informal arrangement. So long as the parties perform, they will perform and be paid in accordance with the terms of the old Subcontract. The arrangement lasts, on an ad hoc basis, for as long as both parties want it to last – in the situation contemplated by the parties the implied contract will be expected to last until the completion of any negotiations between the parties, whether those negotiations result in a new Subcontract or simply end without agreement. It could be categorised as “fixed term” (the term being fixed by reference to the conclusion of negotiations, a moving target but recognisable when it is reached) or “without any fixed term”. The point is moot. On either view, there is no need for the formality of Articles 271 and 272.

109. It follows from the above that the Spanish Subcontracts came to an end on 25 February 2023 when the First Ministry Contract itself came to an end by effluxion of time. Those Subcontracts were not renewed so as to cover the Second Ministry Contract awarded to BLS in April 2023. Until such time as negotiations came to a halt in September/ October 2023, the parties conducted their business on the basis of an ad hoc contract, implied from conduct, whereby they simply continued to perform as though the Subcontracts were in force without any fixed term but at the will of the other. When those negotiations came to an end without agreement having been reached on a new Subcontract that ad hoc contract simply fell away.

110. In those circumstances, there can be no question of BLS being in breach by terminating negotiations with the Claimants or in the manner of their doing so.

111. It follows from the above that the Claimants’ claim for wrongful termination (or purported termination) of the Spanish Subcontracts identified in paragraph 25 of this judgment fails. Nor do the Claimants have any claim for wrongful termination (or purported termination of any other contractual relationship with BLS

112. In those circumstances, the Claimants’ claims for damages for loss of profit (or in lieu of an order for specific performance) also fails.

113. The Claimants advance a separate claim for damages for breach by BLS of the Non- Compete clause in each of the Subcontracts. In circumstances where I had found BLS to be in breach of the Subcontracts, this would present little difficulty. But I have found that BLS was not in breach in respect of terminating the Subcontracts. There is no doubt that from, say, 1 October 2023, BLS was either by itself or through other sub- contractors carrying on the business previously undertaken by the Claimants. So on the face of it BLS is in breach of the Non-Compete clause. But what damage have the Claimants suffered? They too are bound by the Non-Compete clause. They cannot therefore contend that they would have carried on profitable visa related activities had it not been for BLS already doing so in breach of the Non-Compete clause. They would not have been allowed to do so under the Subcontracts whether BLS were doing so or not. They could no doubt have applied to court for an injunction preventing BLS carrying on visa related activities in breach of the Non-Compete clause, and thereby have put themselves in a position from which they could have negotiated with BLS a price for allowing them to continue to act in that way, but they did not do so and it is now too late. This claim for damages must fail.

114. In light of the above, it is unnecessary to say anything about the expert evidence. I should record, in case the matter goes further, that I preferred the evidence given by the Claimants’ expert, Mr Maxime Girard.

115. There are certain miscellaneous heads of claim which I understand to be agreed:

Interest should be paid on such sums at 5% a year from 1 October 2023.

116. I am not clear whether any decision is required in respect of the Cyprus Subcontract. Nothing was said about it in closing submissions. If anything is required, parties can liaise with the Registry.

117. I would be grateful if parties could liaise with the Court to fashion an Order giving effect to my decisions.

118. I shall reserve all questions of costs, to be dealt with in writing according to the timetable set out in the Order.