Claim No: CFI 081/2023

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

MICHAEL GEORGE FORBES

Claimant

and

(1) ROBERT KIDD
(2) LYNN KIDD
(3) LACHLAN FORBES
(4) JODIE FORBES
(5) LOUISE KIDD
(6) SUZANNE KIDD
(7) LISA KIDD

Defendants

ORDER OF JUSTICE SIR JEREMY COOKE

UPON the Part 8 Claim form being filed on 13 November 2023 (the “Claim”)

AND UPON the Fifth Defendant’s Application No. CFI-081-2023/1 dated 16 February 2024 contesting the DIFC Courts’ jurisdiction (the “Jurisdiction Application”)

AND UPON the Order of Justice Sir Jeremy Cooke dated 20 March 2024

AND UPON review of the Court file and submissions contained therein

AND PURSUANT TO Rule 4.12 of the Rues of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The First Defendant’s application to contest the jurisdiction of the Court is dismissed.

2. The Second to Seventh Defendants’ applications to contest the jurisdiction of the Court are granted.

3. The costs of the First Defendant’s application shall be costs in the cause.

4. The Claimant shall pay the costs of the Second to Seventh Defendants’ application to contest jurisdiction, to be the subject of assessment by the Registrar if not agreed.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 2 May 2024
At: 11am

SCHEDULE OF REASONS

1. There is only one arguable basis put forward by the Claimant to justify this Court exercising jurisdiction over the First Defendant. It is said that he agreed to the jurisdiction of this Court by reference to a letter of engagement dated 21 November 2016. It is not alleged that the First Defendant signed that letter, but it is said that the First Defendant agreed to its terms by conduct in engaging SarCogent to act for him thereafter when the letter stated that “your continuing instructions in this matter will amount to your acceptance of the contents of this engagement letter.” The letter went on to provide for UAE law and the exclusive jurisdiction of the DIFC Court.

2. This raises a highly contested issue of fact, namely whether there was a contract on that basis, which the First Defendant denies. The Claimant alleges that he is the assignee of receivables under that contract of engagement which provided for a success fee in relation to a claim being pursued in Scotland by the First Defendant against a firm of solicitors. That factual dispute and others are not capable of determination at this stage and in those circumstances, the Claimant has a good arguable case that the claim, as framed falls within the terms of Article 5 (A) (2) of the Judicial Authority Law by reason of the alleged agreement to the jurisdiction of the DIFC Court. The First Defendant plainly has viable arguments to raise on the subject and the Court cannot weigh the rival contentions without fuller evidence, but the Court is satisfied, on the existing material, that the Claimant does have a good arguable case against the First Defendant.

3. The Claimant has, by contrast no good arguable case as to a cause of action against the other Defendants who are said to have received sums from the First Defendant which represented the proceeds of the settlement that the First Defendant agreed with his former solicitors, out of which the alleged success fee could have been, but did not have to be, paid. There is no basis in UAE law for any claim to be made against these other Defendants, whether or not they did receive any such proceeds and no facts have been pleaded, nor evidence supplied to this Court, which would support such a case. The provisions of UAE law relied on do not give rise to any cause of action against them and there is no evidence of any receipt of the funds nor of any knowledge on their part prior to receipt of any entitlement of the Claimant to any such funds in themselves, whether in the nature of a constructive trust or otherwise, nor even knowledge of an agreed success fee. Such evidence as there is on this subject comes from the Second to Seventh Defendants who deny such knowledge. There is no basis upon which any of them could properly be added as defendants under the provisions of RDC 20.7 as explained in the decided authorities and there is no other gateway available under the Judicial Authority Law.

4. In these circumstances, the Claim against the First Defendant alone can proceed under Part 7 with appropriate pleadings in accordance with the Rules of Court.

5. The jurisdiction of the Court over the First Defendant depends ultimately on the existence of the same agreement which is alleged to give rise to the substantive claim for a success fee. The Court is unable to determine the merits of the parties’ competing positions without evidence which will have to be tested at trial so it is right that the costs of the First Defendant’s application contesting jurisdiction should be costs in the cause. The other Defendants have succeeded in showing that this Court has no jurisdiction over them and in those circumstances, they are entitled to be paid the costs that they have incurred in this action.