Claim No: CFI 073/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

LXT REAL ESTATE BROKER L.L.C

Claimant

and

SIR REAL ESTATE LLC

Defendant

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REASONS FOR THE ORDER OF H.E. JUSTICE ANDREW MORAN KC DATED 9 JANUARY 2026

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(References to documents hereafter are to page numbers of version 5 of the Hearing Bundle [n]. References to Transcripts are to T/1 or T/2/page/line.)

Introduction and Background

1. The Applications before the Court arise in connection with a very hard-fought dispute between the Parties, arising on the breakdown of their commercial relationship in which they were engaged together as real estate brokers in Dubai.

2. The Parties cannot even agree upon the characterisation of their relationship under an agreement of 14 June 2020, entitled “Partnership and Services Agreement” (the “Agreement”) which the Claimant (hereafter “LXT”) describes in its skeleton argument for the Hearing as, “an agreement between the parties dated 14th of June 2020 (the “Agreement”) pursuant to which they agreed to combine their businesses (LXT had traded as “Luxhabitat” and the Defendant- hereafter “SIR”- as “Gulf Sotheby’s”) into a single luxury real estate broker. As part of the arrangement, LXT transferred all of its sales agents to SIR and was to focus its efforts on branding and marketing activities.” LXT contends that the relationship, (although, as is common ground, not a partnership in law) was not just the sale of its business to SIR, but in the nature of a joint venture, founded on co-branding under the name “Luxhabitat Sotheby’s”, with each of them concentrating on their particular strengths in the marketing of real estate. Whereas in its skeleton, SIR Contends that “by virtue of the agreement SIR acquired LXT’s business in return for AED 5 million and LXT became an external marketing services provider to SIR.” Its case is that LXT was nothing more than a service provider; and was its agent for those purposes.

3. In short summary only, for these introductory purposes (and certainly not by way of a full contractual analysis of its terms), the Agreement provided by Clauses 4 and 5 separately and respectively [43-48], for the consideration for the purchase of the LXT’s Business and the consideration for the branding and marketing services to be provided by LXT to SIR. The latter consideration was dubbed and highlighted in the clause as “the Partnership Fees”. In the first year, this was a fixed amount of AED 2m. After the first year, it was agreed at clause 5.1 i., that the annual Partnership Fees will be the highest of AED2m (adjusted for inflation) or 5% of the “combined Gross Revenue” of the previous calendar year. The fixed amounts were amended by Amendment No. 1 to the Agreement [70], of 1 September 2021 to AED 3m for the year to 31 August 2022 and AED 2.4m (adjusted for inflation) for the years from 1 September 2022 onwards. By the Amendment, the percentage alternative payable as Partnership Fees (if higher than the fixed amount) for the year to 31 August 2022 remained the same at 5%; but for the years from 1 September 2022 onwards, it was increased to 6% of the combined Gross Revenue.

4. “Gross Revenue” is a defined term in the Agreement but “combined Gross Revenue” is not defined. Gross Revenue is defined as follows:

It is LXT’s case that the highlighted and defined word “Seller” is a manifest typographical mutual mistake that should be construed as meaning the Buyer; and the parties intended that this should be a reference to the “Buyer” as elsewhere defined, i.e. to SIR and SIRs Gross Revenue. By the Amendment Application, LXT seeks to plead a further or alternative claim for rectification of the Agreement to correct that alleged mutually mistaken use of the word “Seller”, by replacing it with “Buyer”, pursuant to Article 41B of the Law of Damages and Remedies.

5. From in or about April 2023, SIR decided to rebrand its business as “UAE Sotheby's”. LXT contended that this proposed re-branding amounted to a breach of clause 5.1 g of the Agreement and, on SIR’s case, declined to assist with the re branding over a sustained period. The Parties engaged in discussions relating to proposed rebranding between April and July 2023, but LXT continued to object to SIR’s plans and, it is alleged, refused to cooperate with the rebranding exercise.

6. In 2023, prior to commencing the proceedings next referred to, LXT claims that it discovered that SIR had been underreporting its revenue. Its case now is that SIR has been reporting revenues to LXT that were significantly lower than its actual revenues. It claims to have evidence that this discrepancy is of the magnitude of AED 439m (per its skeleton argument before me) or AED 443m (per paragraph 16 of its Particulars of Claim) over just three years of the ten-year term of the Agreement. It alleges that SIR has repeatedly failed, in pre-action correspondence, to provide any explanation or reconciliation for this discrepancy. It has also failed to provide an audit to corroborate its understated revenues, despite its express obligation to do so under the Agreement. LXT also claims that SIR has been routing a substantial part of its revenue through a new affiliated company, Prime Realty LLC established in February 2022, just as revenues from the property market in Dubai began to surge. LXT alleges that Prime Realty has the same ownership as SIR, its contact details are the same, it appears to employ the same real estate brokers as SIR, who use SIR’s email addresses to transact its business and it does not advertise itself independently as a real estate broker. Its use is – on LXT’s case – a device to avoid paying commission to it.

7. On 20 July 2023, LXT issued a Part 8 Claim Form seeking an injunction to prevent the re-branding. Initially, it tried to make an application on an ex parte basis, without notice to SIR, which was rejected by H.E. Justice Robert French. This rejection is recorded in his Schedule of Reasons (also referred to in submissions as “The French Judgment”) at [§3] [3204], for his order of 27 September 2023, refusing LXT’s application for an interim injunction. This followed an inter partes hearing on 22 September 2023. The learned Judge held, inter alia, that LXT’s claim for an interim injunction to prevent SIR’s rebranding did not raise a serious issue to be tried. SIR contends that the matters relied upon by LXT, and the relief sought, in the Injunction Proceedings, substantially overlap with the claims and issues now raised by LXT in these proceedings.

The Strike Out and Immediate Judgment Application

8. By paragraph 1 of its Strike Out and Immediate Judgment Application, of 16 December 2024, SIR seeks [78]:

9. By paragraph 2 of the Application, SIR advances its claim that these proceedings are abusive and should be struck out on two maintained grounds (the second – trading without a licence- is no longer pursued) which are:

10. By paragraph 3 of its Application, SIR advances the further or alternative grounds for striking out and immediate judgment which are that the Particulars of Claim disclose no reasonable ground for bringing the Claim, on six grounds stated as follows:

11. By its Application of 23 May 2025, to amend its Claim Form and Particulars of Claim [1621], LXT seeks to amend its claim form to add a claim for rectification and its Particulars in the form of the draft at [1629] which particularises that claim (in a manner which SIR contends is deficient and inadequate). The amendments sought also to modify its case on its gaining access to and use of SIR’s revenue data, in formulating and quantifying its claims for debt and damages, based on allegedly unpaid entitlements to a percentage of “combined Gross Revenue”.

12. In dealing with these applications insofar as they require the Court to form a view on the prospects of success at trial of the claims brought and/or which it is sought to bring by way of the Amendment Application, the Court has been careful not to form any concluded view beyond answering what are threshold questions of whether there are reasonable grounds for bringing the claims? and whether the impugned claims have a real prospect of success, i.e. a realistic as opposed to a fanciful prospect of succeeding at trial? For practical purposes, both questions may be answered upon a consideration of the second question – if the claims have a realistic as opposed to a fanciful prospect of succeeding, ipso facto, it is reasonable to bring them. The Court has also directed itself that the burdens of satisfying the Court lie on SIR in the abuse, strike out and immediate judgment applications; and on LXT in the Amendment Application. As the designated trial Judge who will determine the claims that survive the strike out/immediate judgment application (including upon the outcome of any appeal) it would be inappropriate and undesirable for me to embark upon any detailed summary and analysis of the claims allowed to proceed and their merits and demerits in these reasons – still less to form and/or convey in them, any view or assessment of the claims and defences beyond answering the threshold question, based on the limited materials before me, and without all that may be produced in evidence in the course of proceedings, to their conclusion at trial. Accordingly, the reasons which follow for my findings on the prospects of success (though not on abuse of process and striking out the claim for breach of fiduciary duty) are rendered with no more than references to the evidence and the main submissions before me, with the minimum required to inform the Parties of the reasons for my decisions and, generally, with the limitation or circumscription I consider appropriate.

The Court’s Power to Strike Out a Claim as an abuse of its process and the principles to be applied

13. There is little dispute between the Parties on the power to strike out claims, or the principles to be applied, when an application to strike out on the grounds of an abuse of the process of the Court is made. The alleged abuse in this case, is in the form known eponymously as “Henderson” abuse, from the colonial case between parties of that name, Henderson v Henderson 67 E.R. 313, heard in the English Courts before the Vice Chancellor, Sir James Wigram, in 1843 [2682].

14. There had been earlier proceedings in the Supreme Court of Newfoundland on a bill in equity concerning an intestate, in which it had been held that certain sums were due to the several next of kin on the account of the estate of the intestate's father, possessed by one A, his former partner in trade in England; but that no account between A and the intestate had been laid before the Master. The Supreme Court had consequently decreed that sums found by the Master to be due to the next of kin and the costs should be paid to them by A. The next of kin brought their actions in England against A. upon the decree.

15. A then filed his own bill in equity in the English Court against the next of kin and personal representative of the intestate, stating that the intestate's estate was indebted to him on the partnership accounts and on private transactions; alleging various errors and irregularities in the proceedings in the Supreme Court, and that A intended to appeal therefrom to the Privy Council; and praying that the estate of the intestate might be administered, the partnership accounts taken, the amount of the debt due to A ascertained and paid; and that the next of kin be restrained by injunction from proceeding in their actions. A demurrer in response to A’s bill for want of equity was allowed on the ground that the whole of the matters were in question between the parties, and might properly have been the subject of adjudication in the suit before the Supreme Court of Newfoundland.

16. In so ruling and allowing the demurrer, the Vice Chancellor defined the applicable rule and the “Henderson” form of abuse of process (as it is now almost universally referred to in the Common Law World) on which he was acting, in the following terms, at page 319 of the report [2688]:

17. The Henderson rule and principle has been explained and refined in comparatively recent cases at the highest level before the English Courts. The Claimant has helpfully referred to and extracted the most important cases and dicta in its skeleton argument, which the Court is grateful to adopt and recite as those from beyond, but followed in this jurisdiction, governing its approach to determination of the claim of abuse of process now before it, as follows:

18. Per Lord Hobhouse in In Re Norris [2001] 1 WLR 1388 at [26]:

19. Per Lord Bingham in Arthur J S Hall & Co v Simons [2002] 1 AC 615 at [38]:

 

20. In Johnson v Gore Wood [2002] 2 AC 1, also per Lord Bingham at p. 31:

21. Per Lord Millett in the same case at pp.59-60:

22. Per Lloyd LJ in Stuart v Goldberg Linde [2008] 1 WLR 823

23. It is also appropriate to refer here to the important related procedural safeguard against abuse of process known as the “Aldi” principle, deriving from the per curiam observation of the English Court of Appeal in Aldi Stores v WSP Group plc [2008] 1 WLR at 748 [1993], that where, a party wishes to pursue other proceedings whilst reserving a right in existing proceedings, the proper course is for the issue to be raised with the court seised of the existing proceedings. The court will be able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It is in the interests of the parties, of the public and of the efficient use of court resources that that is done.

24. These well-developed Henderson and Aldi powers and principles are undoubtedly already part of the common law of the DIFC. This is evident from the decisions of the Court of Appeal in Al Khorafi v Bank Sarasin-Alpen [2018] DIFC CA 010 [3091] and Amira C Foods International DMCC v. IDBI Bank Ltd [2021] DIFC CA 004 (24 August 2021) [1875]. In the latter case, the Court considered not only its earlier decision in Al Khorafi, but also the decision of Deputy Chief Justice Sir David Steel under appeal, in which he had held that the Court should ask three questions – could the new claims have been brought in the earlier proceedings? Was it unreasonable not to bring the new claims in the earlier proceedings? And does the bringing of the new claim unjustly harass [the applicant]? In Sir David’s view, a positive answer to the first two questions would not necessarily have led to the resolution of the third (fundamental in the Court’s description of it) question. The Court of Appeal in Al Khorafi disagreed and held, per H.E. Justice Sir Jeremy Cooke, giving the judgment of the Court, that:

25. Commenting on this dictum, the Court of Appeal in Amira stated as follows [1861]:

26. It is thus quite clear that in this jurisdiction, Lord Bingham’s approach and dictum in Johnson v Gore Wood should be adopted and followed; and it accordingly has been followed by me below, in deciding whether the bringing of these proceedings is an abuse of the Court’s process of such a character and effect as to require and justify striking out of the proceedings. As I observed in the course of argument, Lord Bingham’s dictum provides practical guidance for a Judge at first instance, by its prescription of a “…broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

27. The decision of the Court of Appeal in Amira is also instructive on what has been termed “the merits question”. In relation to that question, the Court held as follows at §§13- 14[1883]:

28. Finally on Henderson abuse, the decision in Amira also provides useful guidance on the interrelationship between Lord Bingham’s dictum and test in Johnson v Gore Wood and the Aldi Principle (supra). At §§ 17-18 [1884] the Court held as follows:

29. Having regard to SIR’s submission in support of its abuse case, that these proceedings involve a collateral attack on the “French Judgment” (vide infra at paragraph 35), LXT relies on the principle that interlocutory orders are not final for any purpose, with argument and citation of authority at §§47-51 of its skeleton argument, substantiating that principle and its scope. As these submissions and the principles culled from the authorities there relied upon, were not shown to be wrong by any submissions of Mr Alex Potts KC, on behalf of SIR (although there was a confusing interjection by him at [T/2/28/3] to the effect that he had accepted interlocutory orders were not final but did not accept they were not binding), I do not consider it necessary for me to summarise them. The Court proceeds on the basis that whilst the view and decision of H.E. Justice French on the interpretation of Clause 5.1 (g) of the Agreement on the materials and evidence then before him, is persuasive in its effect and deserves and will be accorded the utmost respect, his decision is neither binding on me in deciding these Applications nor would it be binding upon me at trial. Whilst at trial, having heard and seen all relevant evidence and documents on the issue, I might (or might not) ultimately agree with the learned Judge, I presently only have to, and do give weight to his decision first in making the broad merits based judgment required to decide if these proceedings are Henderson abusive; and secondly, later in these reasons, when deciding whether SIR has satisfied me that LXT has no reasonable grounds for bringing/no real prospect of succeeding on, its claims based on its interpretation of Clause 5.1 (g) and SIR’s allegedly wrongful termination of the Agreement.

30. Proceeding from that review of the relevant authorities and applicable principles, I turn to consider first, SIR’s complaint that these proceedings amount to so-called Henderson abuse of process and LXT’s response thereto.

SIR’s Submissions on “Henderson” Abuse

31. These are found at Section D of its skeleton argument at §§15-22 and in Mr Potts KC’s oral submissions developing some of those written submissions at the Hearing [T/1/83/4- 89/8], all of which submissions the Court has taken into account, even if not mentioned in the essential summary of them which follows.

32. SIR first submits that a number of matters which now form the substantive part of LXT's claim could and should have been raised and determined in the injunction proceedings so that LXT is abusing the court’s process by raising identical issues in this second set of proceedings. It submits that in the injunction proceedings, LXT made extensive allegations that SIR had dishonestly under reported revenues in breach of the agreement and that these were central to LXT's case as to why SIR was pursuing a rebranding. It claims that it was put to significant time and expense in addressing those allegations in its evidence in response and in its written and oral submissions in the injunction proceedings. It further claims that it was open to LXT to seek substantive relief in the context of the injunction proceedings (referring to the “Brief Details of Claim” filed alongside the Part 8 claim for an injunction, which included claims for damages for alleged under-reporting of revenue and other claims summarised in §§9-10 of its skeleton argument) but it deliberately delayed bringing those claims and chose to issue a free standing and substantive claim against SIR in these proceedings.

33. In Mr Potts KC’s oral submissions at [T1/83/33-87/8] he advanced a more detailed explanation of and complaint about the bringing of fresh proceedings corresponding to the Brief Details of Claim filed, rather than within the still subsisting Part 8 proceedings in which the interim injunction had been sought and refused, but which had not been dismissed with finality. It was submitted that the delay of nine months in bringing these intimated claims in fresh proceedings, while “in the territory not of there being a final and binding res judicata that precludes the bringing of a second claim we are squarely in the territory though of Henderson and Henderson. should and could [sic] these proceedings or these claims have been brought in the existing proceedings rather than separating out and starting a fresh proceedings…”.

34. SIR claims that the exaggerated value of the present claim is clear evidence of “vexatious or oppressive” conduct by LXT. It points out that LXT initially sought damages of USD 6 million but now seeks damages of over USD 110 million, with no good explanation provided for that extraordinary change in quantification, which, it claims, “reinforces the nature of the abuse”. It was submitted orally [T1/11/9-10] that “the court should already be alive to the possibility that the claim has been deliberately exaggerated for collateral purposes.”

35. It further submits that the present proceedings seek to include an undisguised, and impermissible, collateral attack on the French Judgment (in the absence of any appeal), referring to paragraph 38 of LXT’s Letter Before Action, where it maintained its case that co-branding was mandatory; and claimed the Judgment was not binding as it was rendered in respect of an interim injunction application.

36. It advances an extensive case that in bringing these proceedings, LXT has acted and is acting in breach of Clauses 9.5 and 11 of the Agreement and of statutory obligations of confidence binding it under DIFC Law (which are not in dispute and need not be recited in this summary). It relies on inconsistent accounts given by LXT of how it came to access and use the confidential information, which is the basis of the claim for underreporting of revenue and damages flowing from SIR’s breach of the Agreement to pay the share of revenue that LXT claims was and is due to it.

37. On the question of whether these contractual and statutory breaches of confidence should result in striking out of LXT’s claim, it relies (skeleton §22) on three propositions (supported by authorities as far as they may be relevant) namely that:

LXT’s Submissions on “Henderson” Abuse

38. LXT submitted in summary at §8 of its Skeleton Argument that:

39. These summary submissions are expanded at Sections E.2.2 and E.2.3 of LXT’s skeleton. LXT demonstrates at §59 how the present claim (or at least a very substantial part of it) could not have been brought at the time of the Part 8 injunction application because it had not arisen; and also because it had to obtain litigation funding to bring the claim. Even if it could have been brought, it should not have been brought with the injunction proceedings because the issues and processes were different. This submission was expanded orally and further explained in response to Mr Potts KC’s submissions at the conclusion of the first day of the Hearing at [T/1/89/19-90/16] and at [T/2/26/13-27/10]. Essentially, Mr Montagu-Smith KC submitted that had any attempt been made to bring the present claims in the Part 8 injunction application proceedings, it would have derailed the injunction proceedings and made no difference to what SIR is now facing in these proceedings.

40. LXT demonstrates at §§61-64 of its skeleton that the claim for unpaid partnership fees was drawn to the Court’s attention but that no claim was made in respect of them; that it was treated as irrelevant to the application before the Court and was barely addressed in SIR’s evidence. It demonstrated how the Aldi principle was complied with, by intimation of and production of the “brief details of the claim it will bring” at paragraphs 64 and 66 of its skeleton argument for the injunction application [1787-1799]. In his oral submissions at [T/2/29-30, Mr Montagu-Smith KC also submitted that counsel for SIR had mischaracterised the “brief details of claim” as a claim brought when it was not; referring to his skeleton argument for that hearing [982] paragraph 3, Mr Montagu-Smith KC submitted on behalf of LXT that SIR always knew that the issues that were being dealt with at the inter partes hearing of the injunction application, did not involve the underreporting claim, which would be the subject of a subsequent substantive claim. He concluded thus [T/2/30/2-6]:

41. LXT submits at §65 of his skeleton, that it would not have been sensible to try to bring the fees claim with the Injunction Claim, which was a narrow, urgent issue which needed a quick decision on a point of contractual construction, relevant to the operation of an ongoing contract. This claim is backward looking – seeking damages for breaches and repudiation of the contract. The issues are different. This claim will need the Court’s full procedural armoury – document production, evidence and trial. There was no possibility this claim could have been decided within the lifespan of the Injunction Claim, which lasted, in total, 2 months from start to finish. In his oral submissions, Mr Montagu-Smith KC also demonstrated [T/2/31/10-28] how when SIR determined that mediation would not be productive on 31 August 2023, three weeks before the inter-partes injunction application hearing, it was practically impossible to bring this substantive claim, or amend the existing part 8 claim for an injunction, to include it.

42. In response to SIR’s claim that it was put to significant time and expense in addressing those allegations of underreporting of revenue in its evidence in response and in its written and oral submissions in the injunction proceedings, it was submitted [T/2/31-32/9] on behalf of LXT that this was an exaggeration and counsel referred to the minimal evidence and submissions on that issue in the injunction application.

43. As to the complaint of abuse based on alleged breach of confidence in bringing the claim using revenue information from SIR’s Customer Relationship Management (CRM) software, this is refuted at §§67-71 of Mr Montagu-Smith KC’s skeleton (and as developed in oral submissions) on multiple bases in summary that:

44. In oral submissions at the Hearing, Mr Montagu-Smith KC focussed [T/2/25/14-26] on the need demonstrated in the authorities, for a party alleging Henderson abuse to show not only that the same claim could have been brought in the first action, but also that it should have been – essentially, that it would have conveniently fitted into the first action, raising the same issues or turning on similar facts and circumstances. The alleging party must show it has been unjustly vexed, harassed or oppressed by the Claimant in proceeding as it had done – and that upon any failure to follow the Aldi principle, a counterfactual inquiry would demonstrate that a different mode of proceeding under the direction of the Court, would have ensued. As it was put in oral submissions at [T/2/32/14-17]:

45. In response to the allegation that the claims are exaggerated to vex and oppress, Counsel submitted [T/2/32/23-29] that SIR had filed no evidence whatsoever about what its gross revenue actually was, how it was earned, how it was distributed, why the CRM system reports much greater revenue than the revenue that was reported to the Claimant. He submitted that if you are dealing with revenue of Dh 400 million you get to partnership fees of $6.5 million a year; and over the course of a 10 year Contract, (most of which, he submitted, has been underreported), “you get to a claim of the size that we get to, which is $36.5 million and then that obviously gets bigger because of the multiple damages claim”.

46. As to the ground of abuse that this claim mounts a collateral attack on the French Judgment, this can only refer to paragraph 29.3 of the Particulars of Claim and this was responded to in oral submissions as follows [T/2/33/5-14] (there are errors of transcription in the quotation which I have endeavoured to highlight with square brackets to illustrate my recall and understanding of the submission):

47. Finally, in his oral submissions [T/2/43-44/7], Mr Montagu-Smith KC explained and distinguished the authorities relied on by SIR in support of the submissions summarised at §37 above, submitting in conclusion that whilst in certain cases it might be possible to obtain an injunction restraining use of confidential information momentarily, that is not a general rule and there is nothing in the authorities referred to, to suggest that a court should strike out a claim in these circumstances, where confidential information is used in bringing proceedings. He concluded pithily on this issue at [T/2/44/10-12] – “the Claimant was entitled to the information and was entitled to make a claim on it. And it’s not abusive to bring a claim to vindicate those rights”.

Discussion and Determination of whether these proceedings should be struck out as an abuse of the Court’s process under RDC 4.16 (2)

48. As already indicated, and in line with the DIFC Court of Appeal authorities binding upon me cited above, this is a merits-based judgment (i.e. on the merits of whether LXT could and should have brought the claims in these proceedings as part of the earlier Part 8 proceedings for an interim injunction to restrain re-branding), in which I have taken account of all of the facts of the case, focusing on the crucial question of whether in all the circumstances, LXT is misusing or abusing the process of this Court by seeking to raise before it, issues which could and should have been raised before, in the earlier proceedings.

49. I have considered the Parties’ competing characterisations of the earlier proceedings and their contentions as to what could and should have been done within them. I am satisfied that LXT’s characterisation of the injunction proceedings and their purpose (§41 supra) and what could and could not be done within them (§39 supra and the oral submissions there referred to), are correct. I found Mr Montagu-Smith KC’s knowledgeable exposition of the relevant rules and procedure concerning Part 8 claims under the RDC and their purpose and limitations [T/1/89-90]; and about what happened in those proceedings, to be correct and compellingly persuasive that there was no abuse in bringing those proceedings – notwithstanding their failure – nor in subsequently bringing these proceedings.

50. I am satisfied (cf. § 40 supra) that in notifying the Court and SIR of the revenue claims (including the allegation of fraud in underreporting revenue), and by production of the “brief details of claim” to come, LXT complied sufficiently with its duty under the Aldi principle to enable SIR to apply for, and/or for the Court to issue or require, including of its own motion, such directions or undertakings as it might have considered appropriate in the light of the information before it. The Court did not require any undertaking regarding commencement of substantive proceedings of any kind or content; and LXT cannot, in my judgment, be criticised for taking the time it took to formulate the full claim it now brings. I am satisfied that it could only have formulated and brought a very substantial part of the claims in these proceedings, after termination of the Agreement - which came after the earlier proceedings. I am also satisfied that it was reasonable to take time to secure litigation funding to bring these claims, well within the limitation period the law allows. I accept the submission of Mr Montagu-Smith KC, which I have quoted in this respect, concerning timing and delay, at §44 above.

51. I do not accept that in dealing with the earlier part 8 proceedings, SIR was put to such significant time and expense in dealing with allegations of underreporting of revenue to render these proceedings abusive. It is plain those allegations were part of the background but were never in issue in the proceedings (which turned on the proper construction of Clause 5.1 (g) of the Agreement); and they were properly notified as part of a claim to come. My review of the limited extent of references to those allegations in the earlier proceedings, makes it clear that LXT’s submission, summarised at §42 above, is correct.

52. In short, I accept all of LXT’s submissions which I have summarised at §§ 39-42 above and am satisfied that they recount the facts correctly; and provide a proper characterisation of, and justification for the earlier proceedings not including the claims made in these proceedings.

53. On the ground of abuse, by alleged misuse of confidential information in bringing this claim, I make it clear I am not deciding finally any claim or application based on breach of confidence that might be brought, better particularised and evidenced as to breach, causation and loss, in the future. The allegation of breach of confidence in bringing these proceedings falls to be considered as part of the broad, merits-based judgment as to whether they are Henderson abusive, that I am embarked on. SIR must first satisfy me that there has been a breach of confidence by LXT in its use of the revenue information it was given access to (which provision of access is undisputed) in bringing the proceedings. It has presently so far failed to satisfy me of that fact, for the reasons advanced by LXT, which I have summarised at § 43 (a) (b) (c) and f. above, which I accept. But even if I am wrong about that finding, and the use of the information was in breach of confidence or in excess of the permission granted to use it, it would remain for SIR to satisfy me that such illicit use, by itself or in combination with the failure to include these claims in the original part 8 proceedings, should result in the striking out of these proceedings as an abuse. I am not so satisfied, for the reasons advanced by LXT which I have summarised in § 43 (d) above, based on the authority relied on (which submissions I accept); and those reasons summarised in §47 above, which I also accept; in applying the guiding dicta from the authorities on abuse and making the broad meritsbased judgment I am required to make, which follows.

54. As to the allegation contained in the Application [78], dealt with at § 43 (e) above, that the revenue information was obtained unlawfully; this allegation has not been pursued before me by SIR and there is evidence before me that access to the information was voluntarily given to LXT by SIR (whether it has misused it in breach of confidence or in excess of permission, is a separate matter). A prosecution instigated by SIR against Mr Font Mante for obtaining the information by hacking presently stands dismissed. Whilst there is an application before me to lead evidence to the effect that those criminal proceedings are not finally closed, which evidence I have considered de bene esse, I must and do proceed on the basis that the revenue information was not obtained by unlawful means. I should make it clear that in so proceeding, as I am bound to do, I do so with full respect for the criminal court and its process, and do not trespass in any way on its jurisdiction. In those circumstances, I have not considered it necessary to determine the application to admit the evidence that the criminal proceedings remain live.

55. As to the allegation that LXT has exaggerated its claims to vex and oppress, I am not satisfied it has done so. Whether there is merit in the claims or not, there are very large revenues in play and multiples of those revenues in any calculation of damages. The Article 40.2 claim for additional damages, is made pursuant to a legal and factual basis of claim, as to which and as found below, I am neither satisfied it has no real prospect of success nor that it is brought without reasonable grounds, if LXT’s pleaded allegations concerning SIR’s knowingly deceitful and fraudulent, conduct are proved at trial. As dealt with further below, when dealing with the strike out ground of inadequate pleading of loss and damage (which I also reject), LXT has in my judgment done its best in advance of disclosure and evidence, to formulate its claim and give proper notice of what that claim might amount to. It has not been done, in my judgment, to vex or oppress or to pressurise or to entice support from litigation funders; or in a manner or to an extent, which amounts to an abuse of the Court’s process. I accept LXT’s submissions summarised at §45 above, as to how one gets to a claim of the magnitude pleaded; and I also accept its fair point that SIR might have countered (but did not) with evidence of its revenue and a valuation of the claim (on the basis that LXT might succeed) of its own.

56. As to the alleged ground of abuse that these proceedings mount in part (paragraph 29.3 of the Amended Particulars of Claim [1644]) an abusive collateral attack on the French Judgment, I reject that contention for the reasons advanced by Mr Montagu-Smith KC, which I have quoted at §46 above. Also compelling that paragraph 29.3 of the Amended Particulars of Claim is not an impermissible and abusive collateral attack on a binding judgment, were counsel’s submissions which followed that quotation [T/2/33/18-34/28] about the claimed merits of LXT’s interpretation of Clause 5.1 (g); and how and why it is open to, and necessary to do justice for a Judge at trial to revisit the interpretation of Clause 5.1 (g) of the Agreement. That is because (as I find below) I am not satisfied there is no real prospect that after the full trial process, I might come to a different interpretation of the clause. I stress again, I am far from saying I will. There is however, on the evidence and submissions before me, a realistic prospect that I may differ from (just as there is a realistic prospect I will reach precisely the same conclusion as), H.E. Justice French, on the true interpretation of Clause 5.1 (g), after hearing all evidence and seeing all documents relevant to interpretation of the clause – which H.E. Justice French did not see or hear. This situation is a good illustration of why there is general rule that interim/interlocutory decisions and reasons, including on an issue of contractual interpretation, are not final and binding upon a Judge at trial. It is a rule that is particularly important in this jurisdiction, where the factual matters that are to be taken into account in the interpretation of a contract under Articles 49-51 of the Contract Law, are significantly different to, wider than, and without the familiar restrictions, that apply in most parts of the common law world (with some variations). Ascertainment of those relevant factual matters will depend upon a factual inquiry which can only be conducted at trial and include, perhaps most notably and differently, any known or communicated subjective intention of the parties. I have considered (also in relation to the strike out grounds based on alleged lack of a real prospect of success dealt with below) Mr Potts KC’s submission that Clause 14 of the Agreement, the Entire Agreement Clause, precludes or ousts reliance on or requires the Court to disregard the circumstances which Articles 49-51 the Contract Law mandates it shall have regard to in interpreting the Agreement. He has produced no authority to support the submission that an entire agreement clause could or should have that effect. I do not consider it would be appropriate to determine such a submission (which, for the complete avoidance of doubt, I do not hereby determine) summarily; and without full and complete argument on the point at trial (including drawing on authority from any jurisdiction – if there is any – deriving from the legal source of the Contract Law). It is also sufficient reason for me not to determine the submission, in circumstances where I am not satisfied that there is no real prospect of LXT succeeding in a submission to the contrary.

57. It follows from my findings set out above accepting LXT’s submissions, that I reject all of SIR’s submissions to the contrary summarised in §§31-36 above. I find the authorities it has referred to and principles it has culled from them, recited at §37 above, to be of very little assistance or relevance. They are not decisions on analogous factual circumstances to the use of confidential information in this case; and I accept LXT’s submissions distinguishing them referred to at § 47 above.

58. Coming then to the application of the principles culled from the authorities referred to above, and making my broad merits-based judgment, I start from the beginning with the dictum of Sir Thomas Wigram in Henderson itself. I do not accept the claims in these proceedings could (practically and sensibly or in major part), still less should, have been brought forward in the earlier proceedings. There was no negligence, inadvertence or accident by LXT in not including these claims in those earlier proceedings. These claims did not properly belong to the subject matter of that earlier litigation, and they could not have conveniently been fitted into the first Part 8 proceedings, having regard to their urgent and confined scope; and the procedural unsuitability of that form of action, for determination of the claims now brought. There was in my judgment, therefore, no want of reasonable diligence by LXT in not bringing the present claims forward at the time of applying for an interim injunction.

59. Taking account of the public interest of efficient case management and determination of disputes before these Courts, and the private interest of a litigant with claims brought on reasonable grounds, who/which should not lightly be excluded from bringing them before the Courts, and having regard to all the facts and circumstances of this case as I have found them to be, I am not satisfied that LXT is misusing or abusing the process of this Court by seeking to raise its claims in these proceedings. I am not satisfied there is any unjust harassment, vexation or oppression of SIR by LXT.

60. It was in my view, sensible and reasonable to advance the different claims for an urgent injunction and damages separately; and a proper discharge of its “Aldi” duty, for LXT to give advance notice of these claims which were to come, at the time of the first proceedings.

61. In my judgment, SIR has consequently failed to discharge its burden of establishing that it is oppressive or an abuse of process for it to be subjected to this second action. For all the reasons now given, its application to strike out these proceedings under RDC 4.16 (2), is dismissed.

The Amendment Application

62. This depends on whether LXT has satisfied the Tribunal (the burden being on it) that the claim of rectification it seeks to add and make by the proposed amendment at paragraph 7.1.6 of the Amended Particulars of Claim, is made on reasonable grounds with a real, i.e. a realistic as opposed to a fanciful, prospect of success; and that the claim for rectification is sufficiently and adequately pleaded to justify allowing it. It is sensibly not suggested in advance of the filing of a defence and at this early stage of proceedings, that SIR would suffer any other prejudice in its ability to meet the claim for rectification, beyond the alleged deficiency of pleading on which it relies. There are other proposed amendments at paragraphs 14 and 15 of the Amended Particulars of Claim and whilst these are criticised on the grounds of inconsistency with previous accounts of how LXT came to access and use the allegedly confidential revenue information on which its claim for underreporting is based, this would not justify refusal of the amendment to make that case clear at this stage of the proceedings. Precisely how and by whom LXT accessed the information does not affect the merits of the claim based upon it.

63. It is an important preliminary legal fact to the determination of this Amendment Application (and the Strike Out and Immediate Judgment Application which follows), that the DIFC Contract Law differs from English contract law for the reasons explained by LXT in its skeleton argument at paragraphs 52-53 and may not be considered to be a pure question of law. This is made clear in the comprehensive review of the contrasting approaches to contractual interpretation across Civil and Common Law Jurisdictions by the Court of Appeal in Lals Holding v Emirates Insurance Company PSC [2024] CA-002 (2 July 2024) §§112-147 and upon consideration of Part 5 of the DIFC Contract Law. I accept LXT’s submission that parties’ subjective intentions are relevant to construction if they are known and declared or otherwise ascertainable; and that regard must be had to factors including preliminary negotiations and parties’ post contractual conduct. I accept for present purposes that LXT has demonstrated real prospects of success of defeating SIR’s submission that the Entire Agreement Clause 14, operates to exclude or nullify the mandatory statutory requirement for the Court to have regard to all the circumstances adumbrated in Article 51 of the Contract Law, when applying Articles 49 and 50 of that Law.

64. The rectification claim LXT applies to make, is pleaded at paragraph 7.1.6 of the Amended Particulars of Claim in the following terms:

65. Paragraph 7.1.6 advances a claim in the alternative to the case of construction of the word “seller” as if it was the word “buyer” in the definition of Gross Revenue in clause 1.1 of the Agreement [40], which case on construction is particularised at subparagraphs 7.1.1 – 7.1.5 of the original particulars. It is clear and obvious from LXT’s submissions to the Court in its skeleton argument at section E.2.4 and expanded orally, that it relies on the same factual matters for rectification as it does for its argument on construction to correct a mistake in drafting, that are set out in in sub-paragraphs 7.1.1- 7.1.5 preceding the new 7.1.6 in its amended pleading. Yet, deficiently and incorrectly, its amendment at paragraph 7.1.6 refers only to the reasons set out in paragraphs 7.1.5- 7.1.6 above . I have no doubt SIR and its representatives have always understood that the factual particulars pleaded in paragraphs 7.1.1 – 7.1.5 are also being relied upon in support of the alternative case for rectification it is now sought to add. They can be in no doubt whatsoever now that the case they have to meet on rectification includes those particulars, from the extensive exposition of it in written and oral argument that has been deployed before the Court in this Application.

66. I have considered all the particulars in all the sub-paragraphs of paragraph 7.1 of the Amended Particulars of Claim outlining the basis of a claim for rectification. I have carefully considered the much more expansive details of the case for rectification advanced before me by way of seven points of argument in paragraphs 74-93 of LXT’s skeleton argument and in Mr Montagu Smith KC’s oral submissions before me in further support of them. I have considered and weighed against them the submissions made by Mr Potts KC on this issue at §§23-27 that the rectification claim is without merit and should not be allowed (including the points regarding claimed deficiency in the pleading of it notified in Al Tamimi’s letter of 25 April 2025 at paragraph 4 a. [1704]) and Mr Pott’s KC’s oral submissions on both aspects of SIR’s resistance to the Application.

67. Upon that consideration, I have come to the conclusion and am satisfied that there is a real prospect of the rectification claim succeeding, notwithstanding the forceful argument to the contrary advanced on behalf of SIR. It is in my judgment, a claim that justice requires be determined at trial and not summarily, by a refusal to allow the amendment to add it. I accept that there is validity in SIR’s criticisms of the pleading from as long ago as April 2025 – and agree it is far from a model pleading of a claim for rectification under DIFC law; but it is in my judgment, sufficient to articulate the claim for rectification it is sought to bring. It would in my judgment be unjust and in breach of the overriding objective to refuse to allow the amendment on grounds of technical deficiency of pleading.

68. This is especially so at a stage of the proceedings and in circumstances where SIR has now been provided with far better particulars of LXT’s claim for rectification than would be required in a pleading fully compliant with the RDC, in its written and oral submissions on this Application. These contain extensive references to evidence and argument upon which it will rely to establish its case on rectification, which SIR would not normally obtain in a pleading. If SIR is concerned before pleading its defence, that LXT may depart from the case on rectification it has now advanced in detail, it is open to it to require further and petter particulars or information of the type it contends is missing from the pleading in advance of pleading its defence to the claim for rectification; or it may make a request to LXT to confirm that the particulars of its case now provided in its skeleton argument shall stand as (and/or be incorporated into) its pleaded case in the matter.

69. During the Hearing, Mr Montagu-Smith KC offered to comply with a direction of the Court if it saw fit to make one, that SIR re-plead its case on rectification to include the particulars SIR contends are missing. The Court does not consider it appropriate to make such a direction. It is for the parties to ensure that the pleadings meet the requirements of the rules in setting out their cases, by a rule compliant pleading in the first place; but they also have the means to do so also by a request, voluntary production of further particulars or compliance with an order of the court upon such a request being refused,. They are required to help the Court further the overriding objective under RDC 1.8 by dealing with cases justly. SIR has the means to require correction of any deficiency in the pleading of the case on rectification and LXT should assist the Court in furthering the overriding objective by co-operating, if and when SIR reasonably has recourse to those means. As already stated, I am satisfied I would not be dealing with this case justly (and I add that it would be excessive and disproportionate), if I were to refuse this Amendment Application on the ground of the deficiency in the pleading of the rectification claim that has been alleged.

70. The Amendment Application is accordingly allowed. SIR may advance its arguments on the costs of and consequential upon the amendment now allowed, and LXT may respond thereto, in the written submissions provided for in the order made by me on 9 January 2026.

The Strike out and Immediate Judgment Applications

71. I now deal with the five remaining grounds for these Applications in relation to separate parts or aspects of LXT’s claim, as set out in paragraph 10 above, items 2-5. For the reasons already given for allowing the Amendment Application, the part of the application at item 1, is rejected.

72. There is no dispute as to the rule bound approach the Court must adopt in relation to these Applications and that the burden of establishing the grounds for the orders sought lies on SIR.

73. There is plainly an overlap between the grounds of the conjoined applications under RDC 4.16 (1) and RDC 24.1 (a), which is well-illustrated in the authorities referred to by the authors of the DIFC Courts Practice Second Edition (the “Practice”) and in their commentaries on them, at paragraphs 4.16.3 and 24.1.1 of the text. There are of course cases where an order for immediate judgment may be more appropriate than an order striking out a claim (and vice versa) but in this case, I am satisfied that the correct approach is for me to consider the two grounds for summary disposal of the remaining five impugned claims together, by deciding whether SIR has satisfied me there are no reasonable grounds for bringing the claims, because the Claimant has no real prospect of succeeding on them or not. If the Claimant has no real prospect of succeeding in these five claims, then it follows there are no reasonable grounds for bringing them; and they should be struck out. It is not necessary, in this case in my view, to do anything more than to strike out any claim, where I am so satisfied. There is nothing in the submissions before me, which demonstrates a need for immediate judgment on a claim that is struck out.

74. In deciding whether SIR has satisfied me that LXT has no real prospect of success, I have applied the now very well-established (in DIFC Law) principles and considerations derived from English Law (and the equivalent Civil Procedure Rules for summary judgments) set out in the Practice at §24.1.1. These were approved and adopted by Justice Giles in GFH Capital Ltd v Haigh [2014] DIFC CFI 020 (10 November 2016) at [9] and his adoption of them was approved by the Court of Appeal in IGPL v Standard Chartered Bank [2018] DIFC CA 002 (17 July 2018 at [57].

75. Rather than copy the principles, considerations and references to authorities from which they derive verbatim into this judgment, I consider it more helpful to highlight and extract those which have actuated my decisions which follow.

76. SIR has the burden of proving the negative proposition that LXT does not have a real prospect of success and there is no other reason for a trial. What must be shown is that there is no realistic as opposed to only a fanciful prospect of success. A claim has a realistic prospect of success if it carries some degree of conviction beyond being merely arguable; and a claim is fanciful if it is entirely without substance. I must avoid conducting a mini-trial as the object of the rules is to deal with cases that are not fit for trial at all. That does not mean I must take everything that a party says in its witness statements or pleading at face value without analysis; and it may be clear that there is no substance in factual assertions made. However, I should avoid being drawn into an attempt to resolve a conflict of fact normally resolved by the trial process. I must and do take into account not only the evidence before me on the applications, but also evidence which can be expected to be available at trial. I bear in mind that allegations of fraud such as those raised in this case, may pose particular problems in summary disposal of them, because they may depend not simply on facts, but on inferences that can properly be drawn from the facts and surrounding circumstances and my view of the state of mind of the parties. Ascertainment of knowledge and subjective intention will be necessary in this case, and I remind myself of Bowen L.J.’s oft quoted observation in Edgington v Fitzmaurice [1885] 29 Ch D 459 that, “The state of a man’s mind is as much a fact as the state of his digestion”. I also remind myself that whilst some disputes on the law or construction of a document or contract are suitable for summary determination, I should heed the warning of Lord Collins in AK Investment CJSC v Kyrgyz Mobil Telephone Ltd [2012] 1 WLR 1804 at [84] (in which case, co-incidentally, I was subsequently appointed as the Trial Judge to determine the issues in dispute), that it may not be appropriate to decide difficult questions of law on an interlocutory application, where the facts may determine how those legal issues will present themselves for determination and/or the legal issues are in an area that requires detailed argument and mature consideration. This warning applies with particular force to the construction of the Agreement, the claim for its rectification and SIR’s submission to the effect that the Entire Agreement Clause operates to oust mandatory statutory requirements of the Contract Law.

The Claim for Breach of a Fiduciary Duty

77. At paragraph 7.2 and 33.15 of its Amended Particulars of Claim, LXT alleges the existence and breach of a fiduciary duty owed to LXT by SIR.

78. I accept LXT’s submission at §99 of its skeleton that §§158(1) and (3) of the DIFC Law of Obligations, [3618] give rise to a fiduciary relationship and duties where a person undertakes to act for or on behalf of another “in circumstances which give rise to a relationship of trust and confidence”. In circumstances where the relationship is not one of the fiduciary relationships prescribed in Article 158 (2), this is a “question of fact in all the circumstances of the case”: §158(3)

79. LXT relies on four features of its relationship with SIR at §§7.2.1-4 [1636-7] to claim that the fiduciary duties specified in §7.2.5 arose in accordance with Schedule 3 of the Law of Obligations [3625]. Those four features are all features provided for in, and arising under the Parties’ contractual relationship defined by the Agreement. It is only in describing one of those features at §7.2.4 of the pleading, i.e. the recording and reporting of Gross Revenue obligation, that the words “entrusted” and “confidence” (which words do not appear in the relevant clauses of the Agreement at paragraphs 3.1 and 3.3 of Schedule 3 to the Agreement [60]) are imported into the description of the relationship and obligation by LXT. As they are relevant to the question of whether the circumstances of the relationship are such in which the law would impose fiduciary duties for the protection of a party, I observe in passing that LXT has not in its submissions dealt with or taken account of, the contractual protection against exploitation by SIR it has contracted for and secured, in paragraphs 3.4 and 3.5 of that Schedule. These paragraphs respectively impose an obligation on SIR to provide annual audited accounts within the first 45 days of every financial year conducted by one of the top four auditing firms in the UAE; and confer the right on LXT to have access to SIR’s financial accounts whenever any clarifications are needed, and also if required, the right to do its own due diligence in that regard.

80. In making its application to strike out this claim, SIR advances an assembly of compelling arguments in §§28-31 that no fiduciary relationship arose or existed in which SIR owed any fiduciary duty to LXT and that if any such duty did arise in the relationship, it arose and was owed the other way around by LXT to SIR (which contention it is not necessary for me to decide and I do not decide in making my decision on this aspect of the strike out application). SIR places emphasis on the lack of any undertaking to act for or on behalf of LXT in circumstances which gave rise to a relationship of trust and confidence so, it submits, that Article 158 (1) of the Law of Obligations is simply not engaged. Reliance was placed on authority in the DIFC (infra) showing that DIFC law defines fiduciary relationships in very similar terms to English law (which proposition is not disputed) and that it is exceptional for fiduciary duties to arise other than in certain settled categories of relationship and that they typically arise where one person undertakes and is entrusted with authority to manage the property or affairs of another and to make discretionary decisions on behalf of that person.

81. In dealing with LXT’s pleaded case on fiduciary duty at paragraph 7.2 of the Amended Particulars of Claim, at §31 of its skeleton, SIR submitted that the particulars in that paragraph do not come close to proving a fiduciary duty was owed by SIR to LXT. In support of that submission, including in oral submissions, reliance was aptly and helpfully placed on a most useful and compendious judgment in The Motoring Organisation Limited v Spectrum Insurance Services Limited [2024] EWHC 261 (Comm), per Simon Birt KC (sitting as a Deputy Judge of the High Court of England and Wales) at §§178 et seq. [3335-9]. This judgment contains one of the most extensive collections of illustrations and dicta from eminent sources and authorities that could be found to assist a Court in deciding if and when a person has undertaken to act for or on behalf of another “in circumstances which give rise to a relationship of trust and confidence”. Of particular assistance to me in making my decision on this part of the application, was the learned Judge’s extraction of paragraphs from the decision of Nugee J in Glenn v Watson [2018] EWHC 2016 (Ch), where at paragraph 131, that Judge had illustrated, by reference to numerous authorities and dicta, types of circumstances and relationships in which, and the principles applicable in deciding when, a fiduciary duty is owed by one party in a relationship with another.

82. In his oral submissions, [T/1/69-74] Mr Potts KC argued that it is impossible to see how SIR could have become a fiduciary to LXT in the absence of any duty of loyalty in a relationship for the provision of a marketing service. He drew attention to the decision of the Court of Appeal in Gate Mena v Tabarak DIFC CA 002 to found his submission that the decision effectively imports English Law as being persuasive in the analysis of whether a fiduciary relationship exists under DIFC law. He then turned to citation of passages from The Motoring Organisation Limited v Spectrum Insurance Services Limited and Glenn v Watson (supra) to demonstrate that the recognised characteristics of a fiduciary relationship are not present on the facts of this case, in support of his case that there is no real prospect of LXT succeeding in its claim for breach of fiduciary duty. It is not necessary for me to lengthen this judgment by quotation of all of the paragraphs he relied on but I have taken them into account in reaching my decision. Of particular force, was his submission at [T/1/73/25-32] advancing the submission made at paragraph 31.1 of his skeleton that:

83. In his oral submissions in response [T/2/63/9-65/18], Mr Montagu-Smith KC somewhat disarmingly began with the suggestion that: “It, in a way, doesn’t matter whether you characterize the relationship as fiduciary or not, but essentially what matters is that the relationship was such that we were entitled to trust them to give us accurate [financial] results” and went on to admit it could affect the multiple damages claim and whether the breaches were egregious and deliberate. He also later submitted in effect, that I should leave the claim standing because I am going to have to consider all of the facts and circumstances of an alleged fraudulent and deceitful breach in any event. This evoked the impression of a party making a claim in the hope that something might turn up at trial to sustain it. His essential submission was that SIR was entrusted with the job of accurately reporting revenues and the court could conclude it was a fiduciary for that purpose. He went on to confirm that limitation of the factual basis of the claim by submitting that the pleading in paragraph 7.2.4 of the Amended Particulars of Claim is the “centrepiece” of it. He pointed to nothing more that might emerge at trial that would expand that very confined factual basis of the claim or enhance the prospects of it being found at trial, that the contractual duty to report revenues accurately, would be elevated to a fiduciary duty to do so. He asserted that SIR was doing a job for LXT in reporting for its benefit and was in a position of conflict thereby, relying on paragraph 242 of the Gate Mena case [3255]. This was to suggest that the conflict made it necessary to impose a fiduciary duty, where SIR was making decisions in reporting revenue which affected LXT’s interests. He pointed to the reference in Nugee J’s judgment in Glen v Miller to the decision of Henry J in Arklow Investments v Maclean [2000] 1 WLR 594 at 598G in which he had held:

84. He submitted this claim involves a fact sensitive inquiry which needs to be granular; and that the Court has to look at specific obligations and decide whether those are fiduciary in nature.

Discussion and determination of the application to strike out the claim for breach of fiduciary duty

85. I begin with reference to the decision and dicta in The Motoring Organisation Limited v Spectrum Insurance Services Limited and Glenn v Watson (supra) , that font of learning on this question, of when and in what circumstances a fiduciary duty will be held to arise – or put another way, when equity’s supervision of a party acting under a contractual obligation for the benefit of another is required.

86. I will not import the whole collection of relevant dicta (which may be taken as read) into this judgment for brevity’s sake, but I apply the guidance in them and find, upon consideration of them in sequence, as follows.

87. This is a fact sensitive inquiry but I am satisfied that the particular factual basis for the claim relied on in §7.2.4 of the Amended Particulars of Claim, which would not be improved or enhanced at trial (there has been no suggestion on behalf of LXT that it would), would not warrant holding that fiduciary duties arise on those facts. (cf [3335] and the citation in Glenn from Snell’s Equity at §7-005).

88. A fiduciary duty should not and would not be imported into this purely commercial relationship, in which there is no indication that either party has subordinated its own interests to those of the other party. LXT has merely entrusted SIR with the contractual obligation of recording and reporting of revenue of the business; but it has also secured for itself contractual rights of access to and delivery up of all relevant financial records and information to check and ensure performance of that obligation. (cf Glenn 131 (3) [3336] and 131 (8) [3338]). Even if it were to be found (and I presently make no such finding) that there were some features of a joint venture in the Parties’ contractual relationship, there is no basis for finding that the recording and reporting obligation relied on, is or carries with it an obligation of a fiduciary nature. There is no real prospect of showing at trial any particular or special features in this commercial relationship, that could give rise to the fiduciary duties contended for.

89. There is in my judgment, no real prospect of LXT showing at trial that SIR has undertaken to record and report revenue, in circumstances which give rise to a relationship of trust and confidence, when, as already noted, those circumstances include LXT’s acquisition of reciprocal and protective rights of delivery up of audited accounts and/or access to the very information that SIR has undertaken to record and report – those features of the commercial relationship, indicate the absence of the necessary relationship of trust and confidence (cf. the reference to Mothew [3337]).

90. There is no real prospect of LXT showing that SIR has assumed responsibility for the conduct of LXT’s affairs or any duty of loyalty or duty of putting LXT first, in discharge of its contractual duties. SIR has assumed a contractual obligation to record and report revenue information and in the conduct of its affairs, LXT has acquired a right (in short) to check performance of that obligation. It is only half the story for LXT to recount that it has entrusted SIR to perform the job of recording and reporting revenue for its benefit without recounting the rights it has acquired, which it claims have been breached, to verify that SIR has duly performed its contractual duty (cf. Glenn §121 (6) (c) and (d) [3337]).

91. In consideration of paragraph 121 (6) (e) of the decision in Glenn and the Ross River case there referred to (including the referenced texts by Bean and Finn) referred to by Lloyd L.J. in Ross River, SIR was not entrusted with power to act for the benefit of LXT, it was instead under a contractual obligation to perform a particular duty recording and reporting revenue, under supervision or oversight by LXT, which the contract elsewhere provided for. SIR did not have freedom to determine how LXT’s interests were to be served; it had a contractual duty to perform for LXT’s benefit. SIR had no autonomy in decision making that requires equity’s supervision by the imposition of fiduciary duties.

92. Finally, with regard to the summary of the effect of all of the citations by Nugee J in Glenn at §131 (7), I find there is no real prospect of LXT showing that it was reliant or dependent on SIR to exercise rights or powers or otherwise act for its benefit, and could reasonably expect SIR to put its interests first – colloquially put - to be on its side. There is also no real prospect of LXT demonstrating the distinguishing obligation of a fiduciary, which is the obligation of loyalty.

93. I am therefore satisfied by SIR’s submissions on the material before me, that LXT has no real prospect of establishing the existence of fiduciary duties owed to it by SIR, corresponding to, or extending beyond its contractual obligations under the Agreement. I am also satisfied that nothing would emerge at trial that might alter my finding. The issue of breach of such a duty therefore does not arise. Accordingly, there are no reasonable grounds for bringing this claim and I have made an order striking it out under RDC 4.16 (1).

The Claim based on the allegation that Prime Realty Estate (“Prime”) is an affiliated company of SIR, that its revenues are within the definition of SIR’s Gross Revenue for the purpose of calculation of Partnership Fees payable to LXT, and that the due proportion of its revenues have not been paid

94. This claim depends of course on LXT arguments on the construction of the definition of “Gross Revenue” in the Agreement and/or its claim to rectify that definition by substituting Buyer for Seller in it, which I have allowed to proceed to trial.

95. SIR applies to strike out this claim (made at §§17-20 of the Amended Particulars of Claim [1640-1641]) and/or for immediate judgment, on the basis that the claim is bound to fail because on a proper construction of the Agreement, Prime was not an affiliated company of SIR (skeleton §4.5). Its argument for a construction of the undefined term “other affiliated companies” in the Agreement [40] so as to exclude Prime, is advanced at §§32- 35 of its skeleton, which argument was reiterated in oral submissions at [T/1/74/27- 35/32]. I have considered those submissions carefully but do not consider it necessary to recite or summarise them. On what is presently before me, they are arguable points of construction; with real prospects of success at trial.

96. LXT’s submissions for a construction of “affiliated company” that would include Prime; and that, in any event, a correct interpretation of “Gross Revenue” includes income generated and channelled through Prime by SIR’s employees, were advanced at §§103- 109 of its skeleton and orally by Mr Montagu-Smith KC at [T/2/65/19-69/17]. His submissions were not confined to pure arguments of construction, but included submissions that on the facts of the relationship pleaded at paragraph 17 of the Amended Particulars of Claim, the revenue received by Prime was in fact revenue generated by SIR through its employees (and thus within the definition of Gross Revenue if construed or rectified as LXT claims it should be) and routed through Prime, as a device and part of the fraudulent scheme alleged in paragraph 33.4 of the Amended Particulars of Claim. LXT relies on SIR’s failure to provide information in relation to Prime’s revenue and the need for a trial to establish the relevant facts both as to interpretation of the term “affiliated company” and whether Gross Revenue generated by SIR’s employees, that should have been recorded and reported as SIR’s revenue, has been fraudulently diverted to Prime.

97. I have considered the submissions advanced on behalf of LXT carefully, and have followed the approach I have mapped out in paragraph 76 above. I am not satisfied by SIR’s submissions and arguments that LXT has no real prospect of success in establishing its case that the correct interpretation of “affiliated company” in all the circumstances of this case, is apt to include Prime; nor am I satisfied that it has no real prospect of demonstrating that the revenue generated by its employees and channelled through Prime, should have been included in SIR’s “Gross Revenue” for the purpose of calculation and payment of partnership fees. I am satisfied that the issues in play in relation to this part of the Application, can and should only be resolved, after the full trial process including disclosure and upon hearing witness evidence, tested in cross-examination.

98. For these reasons, this part of the Strike Out and Immediate Judgment Application has been dismissed.

The claim based on SIR’s alleged unlawful termination of the Agreement

99. SIR’s submissions in relation to this aspect of the Application are found in §§36-38 of its skeleton and in oral submissions at [T/1/76/1-77/15]. They depend primarily on the claim that in repudiatory breach of LXT’s obligations to provide marketing services, it refused to co-operate with SIR’s proposed re-branding and provide its services to that end; so that it had reason to believe it could not rely on Mr Font Mante’s and LXT’s future performance of the Agreement. In addition, as it was put in argument, he/LXT “is now suing us and alleging fraud deceit and dishonesty..”. These submissions obviously proceed on the basis of SIR’s interpretation of Clause 5.1 (g) of the Agreement as upheld in the interlocutory judgment of Justice French and on there being no basis for the claims of fraudulent underreporting of revenue being made by LXT in these proceedings. However, as I have decided in paragraph 29 above, that judgment, although accorded the utmost respect by me, is not final and binding on me in this Application nor would it be at trial. If at trial it was decided that the correct interpretation of the clause 5.1 (g) is as contended for by LXT; and if it was decided that there had been underreporting of revenue, then the position taken and case advanced by LXT for wrongful termination by SIR (referred to below), cannot and should not in my judgment, be found to have no real prospect of success.

100. LXT’s case and submissions on this issue of wrongful termination and the underlying issues I have identified, are found at §§110-114 of its skeleton and orally at [T/2/69/18- 74/29]. In those oral submissions, a completely different characterisation of the factual events leading to termination of the Agreement is presented to show that it was in fact SIR that was in repudiatory breach of the Agreement and prevented LXT’s due performance of it in accordance with its terms, by its own wrongful acts. Reliance is placed on the DIFC Law enactment of the Prevention Principle in Article 78 the Contract Law [3414].

101. In circumstances where: (i) I have already found, at paragraph 56 above, that the French Judgment as to the interpretation of Clause 5.1 (g) of the agreement is not final and binding upon me; and (ii) I do not accept that LXT’s contrary interpretation of Clause 5.1 (g) advanced by Mr Montagu-Smith at [T/2/33/18-34/28] has no real prospect of being accepted at trial; and (iii) upon careful consideration of the submissions advanced on behalf of both Parties on this issue; and (iv) upon adopting the approach I have mapped out in paragraph 76 above; I am also not satisfied that LXT’s case on wrongful termination has no real prospects of success; and satisfied that fairness and justice require that it be determined at trial.

102. For these reasons, this part of the Strike Out and Immediate Judgment Application has also been dismissed.

Striking out and/or immediate judgment on the ground that the quantum of sums claimed is insufficiently particularised and/or artificially inflated and that the claim under Article 40 (2) of the Law of Damages and Remedies for additional damages is bound to fail

103. It is convenient to deal with these parts of and grounds for the Strike Out and Immediate Judgment Application together, as they are referred to sequentially and together in parts of SIR’s submissions, which are found at §§39-44 of its skeleton and in various parts of Mr Potts KC’s oral submissions, including at [T/1/39-41] and [T/1/77/16-81/32]. In that latter section of his oral submissions, Mr Potts KC’s core submission was that Article 40 (2) damages are “not capable of being awarded in Contract cases” in the DIFC and he suggested that the decision of the Court of First Instance, per Sir John Chadwick, in Al Khorafi v Bank Sarasin, [2018] DIFC 010 at § 164 [2898-9] was decided per incuriam and is wrong in implying as it does, that additional damages may be awarded for a breach of contract in the DIFC, if the Court is of the view the circumstances of the breach warrant such an award. LXT’s submissions on the first of these damages issues have already been referred to above but for convenient reference, its submissions on both elements of the damages claim are to be found in its skeleton at §§115-124 and those made orally at [T/2/74/31-79/19]. LXT’s case on additional damages is pleaded in detail at section G of its Amended Particulars of Claim. Determination of these serious allegations involving fraud and deceit, including knowing exploitation of a mistake in the drafting of the Agreement; and allegedly false criminal allegations against Mr Font Mante of hacking to see off legitimate claims, will plainly depend on documents disclosed, witness evidence and inferences to be drawn or not drawn from all of the evidence in the case. I have given careful consideration to LXT’s pleading of its claim and both Parties’ submissions on these difficult issues in reaching the conclusions which follow.

104. At paragraph 55 above, I have already made my finding clear for the reasons there given, that the claim for ordinary damages is quantified in a manner that is the best that LXT could do in the circumstances; and I am not persuaded at this interlocutory stage of the proceedings that there is no real prospect of success in a claim for damages for the breaches of contract relied on by LXT, of the order of magnitude contended for. That is of course without prejudice to arguments that I can see might be available to SIR to defeat the claims or diminish any award that might be payable, if the breaches alleged were proved. In my judgment, that is all properly a matter for trial, after full and complete disclosure of all the relevant financial inputs that would go into the quantification of such a claim. It would therefore be wrong and unjust for me to strike out or enter judgment on these claims for SIR, on the claimed grounds of insufficient particularisation or artificial inflation of them, and accordingly, I have refused to do so.

105. As for the claim for additional damages under Article 40 (2), I am not prepared to decide on a summary basis, whether such damages are or are not available in cases of deliberate and particularly egregious or offensive breaches of contract, including as is alleged fraud and deceit; or summarily decide whether what LXT alleges about how SIR has behaved, could amount to deliberate and particularly egregious or offensive conduct in committing a breach of contract and/or perpetrating a fraud on LXT. Although I have struck out the case for breach of fiduciary duty, the claim for additional damages will depend on the Court’s findings on the documents and evidence before it at trial, in relation to what, if any, unlawful misconduct SIR has engaged in, and with what state of mind and intentions. The fact that I have determined there is no real prospect of LXT proving that SIR was its fiduciary, does not preclude the real prospect of a finding that all the misconduct that is alleged, occurred; or a finding that it was of such a deliberate, egregious or offensive nature as to merit an award under Article 40 (2).

106. In the first place, this is a dispute and claim based on the construction, meaning, scope and application of a law on which there is limited authority or experience of its application in this jurisdiction. Secondly, its resolution will depend on findings on hotly disputed factual issues, determination of which issues, will depend on disclosure of documents and witness evidence examined at trial and inferences to be drawn, and which in my judgment, are unsuitable for summary determination. In the circumstances of this case and the contests arising in it as they appear to me, I should and do heed the warning of Lord Collins in AK Investment CJSC v Kyrgyz Mobil Telephone Ltd [2012] 1 WLR 1804 at [84] (supra), and I find that it is not appropriate to decide these difficult question of fact and law involved, on an interlocutory application, where as he put it, the facts may determine how those legal issues will present themselves for determination. I also find that the legal issues are in an area that requires detailed argument and mature consideration.

107. In all of those circumstances, and for the reasons now given, I have accordingly refused to strike out any of LXT’s claims for damages or render immediate judgment against it, in respect of them.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 20 January 2026
At: 8am