July 14, 2021 court of first instance - Orders
Claim No. CFI 005/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
(1) ANOOP KUMAR LAL
(2) PAUL PATRICK HENNESSY
CASE MANAGEMENT ORDER OF H.E JUSTICE NASSER AL NASSIR
UPON reviewing the Court file
AND UPON reading the Case Management Bundle
AND UPON reviewing the Rules of the DIFC Courts (“RDC”)
AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the Case Management Conference held before H.E Justice Nassir Al Nasser on 7 July 2021
AND UPON the Claimant seeking permission to amend the Statement of Case
AND UPON the Defendant consenting to the proposed amendments to the Statement of Case
IT IS HEREBY ORDERED THAT:
Amended Statement of Case
The Defendant has time until 13 July 2021 to make amendments to her Defence and Counter-claim as needed to respond to the amended statement of case; and
The costs shall be costs in the case.
List of Issues – Agreed
1. Whether payments are due under the Settlement Agreement/Final ESOP Agreement?
2. Whether the Defendant has fulfilled her obligations under the Settlement Agreement/Final ESOP Agreement?
3. Whether or not the Claim filed by the Claimants are maintainable including legal interests from the date of due amount and the legal costs.
4. Is the Defendant entitled to:
a) compensation with respect to the overpayment under the Settlement Agreement/Final ESOP Agreement;
b) damages in respect of the loss suffered in the value received for the Business Sale; and
c) compensation with respect to legal fees incurred as a direct result of the Claimants’ misconduct.
List of Issues – Not Agreed
Claimant’s list of issues:
1. Whether the performance of the Settlement Agreement/Final ESOP Agreement can be sought independently of the employment contracts?
Defendant’s List of Issues
1. Under the Settlement Agreement/Final ESOP Agreement, were there any express and/or implied terms with respect to the Claimants’ respective compliance with their employment obligations, statutory obligations, fiduciary duties and in Mr. Hennessy’s case, his directorship duties and obligations?
2. Did the Claimants commit any of the following misconduct (the “Alleged Misconduct”):
a) sharing the Entertainer’s confidential information with third parties;
b) by entering into an agreement dated 5 September 2017, in their personal capacity, with Mr. Stephen Atkinson, in relation to payments by the Entertainer, without the Entertainer’s consent;
c) by engaging with proposed third party investors of the Entertainer in an attempt to acquire the Entertainer through a Management Buyout (“MBO”) and failing to disclose that conflict when the third party investor made an independent offer as part of the Sale of the Entertainer;
d) by setting up a special purpose vehicle called “The Entertainer Limited” to act as an acquisition for their intended MBO;
e) by misusing the Entertainer credit card and the Entertainer funds; and
f) by misusing the name and trademarks of the Entertainer.
3. Was any of the Claimants’ Alleged Misconduct in breach of:
a) their employment agreements, in particular their obligations to:
i. comply with all rules, policies and procedures set out by the Entertainer and to the extent applicable, all policies and requirements by competent authorities and/or any other relevant regulatory authorities pursuant to clause 3.2 of the employment agreements;
ii. perform the duties listed in Schedule 2 of the employment agreement and such other duties as will be incidental to their position and as may be assigned from time to time pursuant to clause 5.1 of the employment agreement;
iii. act in the best interests of the Company and the Group at all times and not engage in any other employment business activities without the Company's prior written consent pursuant to clause 5.2 of the employment agreement;
iv. devote best efforts to furthering the best interests of the Company and the Group and to not engage in any activity or investment that conflicts with the Company's and/or the Group's business interests, including without limitation, any business activity not specifically listed in the employment agreements pursuant to clause 18.1 of the employment agreements; and/or
b) their statutory duties as an officer of the Entertainer; and/or
c) their fiduciary duties owed towards the Co-Shareholders; and/or
d) in respect of Paul Hennessy only, breaches of his duties as a director of DATE Holdings.
4. Alternatively, did the Defendant enter into the Settlement Agreement/Final ESOP Agreement in reliance on the Claimants’ representations that they were, and would remain, aligned with the Co-Shareholders of DATE Holdings in achieving the Business Sale?
5. If so, did the Claimants misrepresent to the Defendant that they were aligned with the Co-Shareholders of DATE Holdings with respect to the Business Sale?
6. Are the Claimants’ actions, if proved true, contrary to the principles of “clean hands” and if so, are they a defence to the equitable remedy sought in the form of specific performance of the Settlement Agreement/Final ESOP Agreement?
Production of Documents (RDC Part 28)
1. Standard production of documents shall be made by each party by 4pm on 4 August 2021.
2. The parties shall file and serve a Request to Produce1, if any, by 4pm on 18 August 2021.
3. Objections to Requests to Produce, if any, shall be filed and served within 7 days thereafter and in any event by 4pm on 25 August 2021.
4. Where objections to any Requests to Produce2 have been made, the Court shall determine those objections and shall make any disclosure order within the following 7 days and in any event by 4pm on 1 September 2021.
5. The parties shall comply with the terms of any Disclosure Order and file a Document Production Statement within 14 days thereafter and in any event by 4pm on 15 September 2021 or such later date as the court may order when deciding on point 4 above.
6. Where there are no objections to a particular Request contained in a Request to Produce, documents responsive to that request shall be produced within 21 days from the date of the Request to Produce, and in any event by 4pm on 1 September 2021.
Witness Statements (RDC Part 29)
7. Signed statements of witnesses of fact, and hearsay notices where required by the RDC shall be exchanged 8 weeks following the close of the disclosure stage, and in any event by 4pm on 10 November 2021.
8. Any Witness Statement evidence in reply shall be filed and served within 4 weeks thereafter and in any event by 4pm on 8 December 2021.
9. Unless otherwise ordered, Witness Statements shall stand as evidence in chief of the witness at trial.
Expert Reports (RDC Part 31)
10. Expert Reports shall be filed and served by 4pm on 5 January 2022.
11. Supplemental Expert Reports shall be filed and served by 4pm on 2 February 2022.
12. The DIFC Courts shall, at the Pre-Trial Review, consider what directions to give concerning a meeting and discussion between experts.
Progress Monitoring Date (RDC Part 26)
13. The Progress Monitoring Date shall be listed at 10am on 16 February 2022.
14. The parties shall file and serve a Progress Monitoring Information Sheet at least three clear days before progress monitoring date and in any event by 4pm on 13 February 2022.
Pre-Trial Review (RDC Part 26)
15. A pre-trial review shall be listed at 10am on 23 February 2022, being within the normal range of 4 to 8 weeks before trial.
Trial Bundles (RDC Part 35)
16. Agreed trial bundles shall be filed and served no later than 2 weeks before trial and in any event by 4pm on 7 March 2022.
Reading List and Trial Timetable (RDC Part 35)
17. An agreed reading list for trial along with an estimate of time required for reading and an estimated timetable for trial shall be filed with the Court by the Claimant no later than seven clear days before trial and in any event by 4pm on 9 March 2022.
Skeleton Argument and Chronology (RDC Part 35)
18. Skeleton Arguments shall be filed and served seven clear days before the start of trial for the Claimant and in any event by 4pm on 9 March 2022 and four clear days before the start of trial for the Defendant and in any event by 4pm on 14 March 2022.
19. The parties shall prepare an agreed Chronology of significant events cross-referenced to significant documents, pleadings and witness statements which shall be filed with the Court by the Claimant by 4pm on 14 March 2022. In the event that there are areas of disagreement, the Chronology shall include an agreed Chronology and a Chronology of events which are disputed, with the parties’ respective positions outlined therein.
Trial (RDC Part 35)
20. The trial of this matter shall be listed at 10am on 21 – 23 March 2022 with an estimated duration of 2– 3 days
21. Costs of the Case Management Conference shall be costs in the case.
22. The parties shall have liberty to apply.
Date of issue: 14 July 2021
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