December 16, 2025 court of first instance - Orders
Claim No: CFI 081/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
MICHAEL GEORGE FORBES
Claimant
and
ROBERT KIDD
Defendant
ORDER WITH REASONS OF H.E. CHIEF JUSTICE WAYNE MARTIN
UPON the Judgment of H.E. Justice Sir Jeremy Cooke dated 7 August 2025 (the “Judgment”)
AND UPON the Defendant’s Appeal Notice dated 14 October 2025 seeking to appeal the Judgment (the “Renewed Application”)
AND UPON the Claimant’s submissions in opposition dated 3 November 2025
AND UPON the Appellant’s application as set out in the Skeleton Argument dated 14 October 2025 to admit new evidence as set out in the (the “Application”)
IT IS HEREBY ORDERED THAT:
1. The Application is dismissed.
2. The Renewed Application is dismissed.
3. The Defendant is to pay the Claimant’s costs of the Application and the Renewed Application, to be assessed on the standard basis.
4. The costs to be paid by the Defendant pursuant to the preceding orders will be assessed by the Chief Justice in accordance with the following orders.
5. Within fourteen (14) days of the date of this Order, the Claimant shall file and serve a Statement of Costs and any submissions in support of the costs claimed.
6. Within fourteen (14) days after service of the Claimant’s statement of costs, the Defendant shall file any submissions in opposition to the quantum claimed.
7. The quantum of the costs to be paid will thereafter be assessed by the Chief Justice on the papers, unless earlier agreed.
Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 16 December 2025
At: 10am
SCHEDULE OF REASONS
Summary
1. The Defendant, Mr Robert Kidd (“Mr Kidd”) has applied to the Court of Appeal for permission to appeal from the judgment of the Judge of first instance (the “Judge”) whereby he entered judgment in favour of the Claimant, Mr Michael Forbes (“Mr Forbes”) following trial (the “Renewed Application”). Mr Kidd’s initial application for permission to appeal was refused by the Judge.
2. For the reasons which follow, the Renewed Application must be dismissed, as none of the proposed grounds of appeal has any real prospect of success and there is no other compelling reason why permission to appeal should be granted.
The decision at first instance
3. The Judge commenced his reasons with an overview of the claim for recovery of a success fee pursuant to a Letter of Engagement dated 21 November 2016 (the “LoE”) sent to Mr Kidd by email of 4 January 2017 by Mr Christopher Smylie on behalf of SarCogent Solutions DMCC (“SarCogent”), a company of which Mr Smylie was the Chief Executive and which had been formed by him and Mr Forbes. The Judge noted that Mr Forbes claimed as assignee of SarCogent pursuant to an assignment dated 10 April 2019 of which notice was given to Mr Kidd on 22 December 2022. The Judge observed:
“Whilst there was a pleaded issue as to the validity of the assignment, it is now accepted by Mr Kidd as being valid.”1
The LoE
4. The LoE was sent in a context in which SarCogent had previously been providing services pursuant to an LoE with A&E Investments, a company controlled by Mr Kidd, in connection with claims made arising from the sale of an interest in a business in 2009. Proceedings had been commenced in relation to those claims in the Court of Session in Scotland. The claim was, in substance, a claim against Burness Paull (“BP”).
5. The LoE was attached to an email sent by Mr Smylie to Mr Kidd on 4 January 2017. In the email, Mr Smylie referred to discussions with the Scottish lawyer acting in relation to the claim with respect to the name in which the proceedings should be maintained in which it was concluded that they should be maintained in the name of Mr Kidd. The email referred to the previous LoE between SarCogent and A&E Investments and enclosed a “fresh” LoE in Mr Kidd’s name, requesting that Mr Kidd sign a copy and scan and return a copy of the signed version to Mr Smylie.
6. The material terms of the LoE included the following:
“Assuming you agree with the terms and conditions set out below please counter sign this letter and return one copy to SarCogent Solutions DMCC c/o PO Box 34002, Dubai, UAE. Notwithstanding, your continuing instructions in this matter will amount to your acceptance of the contents of this engagement letter. This Letter of Engagement supersedes all prior letters of engagement in respect of the above matter including our Letter of Engagement dated 15 August 2015.
…
2. Scope of Engagement
You indicated previously that you required us to assist you in the pursuit of claims against Paull & Williamsons, Burness Paull LLP and a number of other parties (“the Claims”) in connection with the sale, in 2009, to Lime Rock Partners V, LP of a minority interest in ITS Tubular Services (Holdings) Limited, including managing and ensuring the proper conduct of any consequent court actions. You have confirmed that this remains the scope of our engagement.
…
3. Fees and expenses
Our fees for the services to be performed by us under this engagement shall be $250 (two hundred and fifty United States Dollars) per man hour. In the event that the Claims are successful, in whole or in part, a success fee shall also be due, calculated as a sum equivalent to Twenty per cent (20%) of the net sums recovered under any such Claims (“net” in this context meaning after deduction of all professional/legal fees and associated expenses, court dues and other outlays incurred by you [but not otherwise recovered by you by award of Court or other means] in the pursuit of the Claims). For the avoidance of doubt, all payments made by you to us under the immediately preceding paragraph shall be deductible unless otherwise recovered by you.
…
Payment of fees, outlays and expenses is due within 15 days of invoice, unless otherwise agreed. We shall be entitled to charge interest on any sums due and unpaid from the 16th day after the date of invoice until a payment at 6% above Noor Bank base rate.”
7. The LoE provided that it was subject to UAE Law and conferred exclusive jurisdiction on the DIFC Courts.
8. The LoE was addressed to Mr Kidd at his home address in Cyprus.
9. The email from My Smylie of 4 January 2017 also attached an invoice addressed to Mr Kidd from SarCogent in the amount of USD 102,970 for professional fees under the heading “General Consultancy”. As the Judge noted, the invoice described the services provided as being:
“General advisory and consultancy services in relation to:
(a) the management and conduct of ongoing litigation in the Scottish Courts during the period from 20 August 2016, including correspondence, telephone calls, general liaison with appointed legal team, attendance at meetings with you/legal team in Cyprus (September), attendance at meetings with you/legal team in Glasgow (October) and attendance at the diet of Debate in the Court of Session in Edinburgh (December); and
(b) all other project work carried out for you in the period from 1 April 2016 to 31December 2016 (excluding all RSS- related work, separately invoiced).”
10. The Judge noted that the invoice was partly paid 11 months later in December 2017 by a payment of GBP 20,000 from the solicitors acting for Mr Kidd in the Scottish proceedings, following an interim award of costs in those proceedings in the amount of GBP 1m in February 2017.2 The Judge noted that instructions to make the payment were provided by Mr Fraser Clarkson, who was authorized to do so by Mr Kidd.
11. The Judge noted that the issues in the case were:
(a) Whether SarCogent and Mr Kidd had reached agreement in the terms of the LoE;
(b) Was any such agreement unenforceable as being contrary to public order in the UAE because it involved the provision of legal services and SarCogent were not licensed to provide such services in the UAE;
(c) If the LoE provided for the provision of legal services, was the claim time barred;
(d) If the claim succeeds, what is the proper amount to be allowed to Mr Forbes having regard to the deduction of expenses incurred in the pursuit of the litigation and the claim for interest.3
12. The Judge then turned to an analysis of the pleadings, referring to the contextual allegations made in the Particulars of Claim to the effect that there were earlier arrangements between SarCogent and Mr Kidd in which Mr Kidd agreed to pay a success fee of 25%, which arrangements were varied by the LoE which provided for a reduction in the success free from 25% to 20%. The Judge noted that various defences were advanced in the pleaded Defence, many of which were abandoned or falsified save for the essential denial of an agreement in the terms of the LoE.4
13. The Judge then made findings with respect to the context in which the dispute arose, including with respect to the dispute which gave rise to the claim against BP for breach of fiduciary duty, which had been discovered by Mr Forbes, who discussed the claim with Mr Smylie and which resulted in the commencement of litigation in Scotland.5
14. The Judge noted that Mr Forbes and Mr Smylie moved to Dubai and incorporated SarCogent on 13 March 2015. He further noted that the license issued to SarCogent by the DMCC Authority stated that its sole licensed activity was that of “management consultancies” with a rider expressly stating “activities do not include providing legal consultancy or legal activity”. The Judge noted that Mr Smylie was the CEO and sole signatory for SarCogent, and that he worked part-time for Davidson & Co, a licensed firm of solicitors in Dubai. The Judge noted that Mr Smylie generally sent emails from his personal Gmail address, rather than from his Davidson & Co email address.
15. The Judge further noted that, following the assignment of SarCogent’s rights to the claim against Mr Kidd to Mr Forbes on 10 April 2019, SarCogent’s service license expired on 12 April 2019 and it was administratively dissolved by Mr Smylie on or around 9 June 2019.6
16. The Judge further noted that Mr Kidd’s claim against BP was settled on 9 January 2018 for GBP 20m, including the amount of GBP 1m the subject of the interim award of costs. The Judge noted that on 16 February 2018, after being unable to obtain details from Mr Kidd or others in relation to the appropriate deductions of expenses for the purposes of calculation of the success fee, Mr Smylie submitted an invoice from SarCogent to Mr Kidd for GBP 3,960,643.67 based on a success fee of 20% of GBP 20m. The invoice was marked “invalid” and returned to SarCogent. The balance of the settlement sum of GBP19m was paid to the lawyers acting for Mr Kidd in the Scottish proceedings on 28 February 2018 and after deduction of costs payable to the solicitors and counsel, the balance was paid to A&E Investments.7
17. The Judge further noted that the Scottish lawyers and a Mr Jonathan Brown (also a lawyer) were engaged under terms of engagement which provided for success fees which were found to be unlawful by the Courts of Scotland. Ultimately the dispute between Mr Kidd and the Scottish lawyers was resolved by a settlement agreement dated 11 January 2021 under which the lawyers received GBP 1.75m.
The Judge’s findings on UAE Law
18. The Judge then summarised the evidence which had been received with respect to UAE Law from experts appointed by each party, who had produced a joint report. The Judge noted that there was no material difference between the evidence given by the experts. On the basis of that expert evidence he made the findings set out below. As the content of UAE Law underpins a number of the proposed grounds of appeal, it is desirable to set out the Judge’s findings on those issues in full:
“Article 132 of the Civil Transactions Law (the Law) provides (in English translation):
“ An expression of intent may be made orally or in writing, and may be expressed in the past or present tense or in the imperative if the present time is intended or by such means as are customary even by a person who is not dumb, or by an interchange of acts demonstrating the mutual consent or by adopting any other course in respect of which the circumstances leave no doubt that they demonstrate mutual consent.”
Article 135 of the Law provides (in English translation):
“(1) the person who remained silent shall not be deemed to have made an utterance [acceptance], but silence in the face of need is [tantamount to] a statement and shall be regarded as an acceptance:
(2) in particular, silence shall be deemed to be an acceptance if there has been a prior dealing between the contracting parties and the offer is related to such dealing or if the offer will bring about a benefit to the person to whom it is made. ”
The experts agreed that “silence cannot be considered as an acceptance, but silence at the time that requires expression might imply acceptance” and that “silence shall be deemed acceptance if there was a previous course of dealing between the contracting parties and the underlying offer was relating to this previous course of dealing.”
The effect of Article 132 is that the mutual consent required for the formation of a contract can take any form, including conduct, provided that the circumstances leave no doubt of such mutual intention. Where there was no formal offer and acceptance nor a formal contract document, acceptance could be implied from words and/or conduct. Where Article 132 speaks of “adopting any other course in respect of which the circumstances leave no doubt that they demonstrate mutual consent”, it was for the Court to decide, on the balance of probabilities, whether such doubt existed.
Under Article 135 (1), although silence in itself cannot constitute an acceptance, it can do so if the circumstances give rise to a need to speak to refute acceptance. Article 135 (2) then goes on to provide two specific instances in which silence is to be deemed an acceptance, without deviating from the general provision in Article 135 (1). Those two circumstances are, first, where there has already been a course of prior dealing between the contracting parties to which a new offer relates: secondly, where there has been a course of prior dealing and the offer benefits the person to whom it is made.
Whether or not there has been an implied acceptance under Article 132 or an acceptance by silence under Article 135 is a matter of fact for the Court to determine. In particular, in the circumstances of this case, acceptance of the Letter of Engagement did not have to be in writing but could be expressed by Mr Kidd’s acts which clearly demonstrated his consent to its terms. Furthermore, it was a matter for the Court to determine whether continuing the instructions to Sarcogent after receiving the Letter of Engagement demonstrated consent to its terms. The terms of the Letter of Engagement itself would be relevant in deciding whether or not there was a need for the putative acceptor to speak/inform the other party if its terms were not accepted.
Under Article 3 of the Executive Council Resolution No. 22 of 2011: “No person may undertake the profession of providing Legal Services to third parties in the Emirate unless he is registered or licensed to do so by the LAD”. It will be noted that the restriction applies “in the Emirate” and, as a matter of grammar, that expression refers to the location of third parties as opposed to the location of the provision of legal services. If there is any doubt about that, regard may be had to the aim of the provision which is referred to below as being to protect the public in the UAE against the practice of law by unregulated persons.
The two experts in UAE law agreed that the Letter of Engagement in itself would be void if the DIFC Court found that SarCogent was providing such prohibited legal services under it, because such services could only be provided by licensed lawyers in the jurisdiction and the provision of legal services without a licence would be contrary to UAE public policy. It is common ground that SarCogent had no such licence. The purpose of the provision, according to Mr Attia, but which is, in any event, self-evident, was to protect the public in the UAE from unqualified people providing legal services and to uphold appropriate standards in the provision of such services. It was the unchallenged evidence of Mr Attia that the provision of advice in the UAE on foreign law would not be caught by this prohibition because it was the provision of domestic services which was regulated.
Article 53(1) of the UAE Federal Decree Law No. 34 of 2022 would render the claim under the Letter of Engagement time-barred if SarCogent was providing such legal services under it, because a three-year limitation period would then apply, whereas, if no such legal services were being supplied, the limitation period would not have expired by 13 November 2023 when the current action was begun.
The UAE 1991 Legal Profession Law and Article 1 of the Dubai Executive Council Decision No. 22/2011 and the 2022 Legal Profession Law set out their scope of their application in materially identical ways. In translation, Article 1 of the Executive Council Decision referred to legal services which included, “without limitation, pleading, representing third parties before legal authorities, arbitration and conciliation entities and centres and administrative authorities, legal counselling, contract drafting and any other legal services”. Article 6 of the 2022 Law, though inapplicable to the events which preceded it, effectively reiterated that. In translation, it referred to the legal profession’s activities as including, without limitation, appearing on behalf of and representing persons in court and similar bodies, giving legal opinions and advice, drafting contracts and relevant legal documents as well as representing parties in non-traditional legal work under a limited power of attorney.”
The oral evidence
19. The Judge then reviewed the testimonial evidence.
20. The Judge considered that Mr Forbes was essentially honest and did his best to remember events of many years ago, although he did not consider that he had any real recollection of the details of meetings beyond what could be derived from the documents. The Judge noted that his evidence was erroneous in a number of respects, as demonstrated by the documentary evidence.
21. The Judge noted that Mr Kidd professed to have no recollection of seeing any document or of any event which militated against his case. The Judge considered that “he was a most unsatisfactory witness” … “motivated largely by a sense of grievance at the loss of his … business which had led to the BP litigation where the recovery made was much less than he had hoped for”.
22. The Judge noted a number of inconsistencies in the evidence given by Mr Kidd. He expressly found that his evidence of ignorance of the contents of the LoE was not credible, nor was his evidence with respect to his ignorance of the other success fees he had agreed. The Judge concluded:
His inconsistencies and disregard for the truth meant that his evidence was unreliable and, unless uncontroverted, supported by documents or inherent probabilities, I was unable to accept it.8
23. The Judge further found that on Mr Kidd’s own evidence, Mr Clarkson had told him of the terms of the LoE, after which SarCogent continued to act on Mr Kidd’s instructions, and part payment of the invoice issued in January 2017 was made in December 2017, again on Mr Kidd’s instructions.
24. The Judge noted that neither Mr Smylie nor Mr Lachlan Forbes (an associate and son-inlaw of Mr Kidd) were called to give evidence, although each had been significantly involved in relevant events and communications. Mr Smylie had apparently declined to co-operate with either party and was said to be suffering from ongoing health issues.No explanation was provided for the failure to call Mr Lachlan Forbes.9
25. The Judge found that Mr Fraser Clarkson, who was called to give evidence on behalf of Mr Kidd and who serves as Mr Kidd’s CFO, was “an even more unsatisfactory witness than Mr Kidd”. The Judge found that his evidence of his discussions with Mr Kidd in relation to the LoE in about July 2017 did not make sense and appeared to be designed to support a version of events which tallied with Mr Kidd’s second witness statement.10
The Judge’s findings of fact
26. The Judge then set out his findings of fact relying primarily on the documentary evidence. The Judge set out his reasons for concluding that:
The Judge’s reasoning
27. The Judge then addressed the issues he had earlier identified by reference to the findings of fact which he had made.
28. In relation to the primary issue of whether there was a contract in the terms of the LoE, the Judge stated that he had “no hesitation in coming to the conclusion that there was an agreed success fee” for reasons which he enunciated.21 The Judge had no doubt that there was an oral agreement to a 25% success fee in September 2013 and July 2014, after which there was some evolution in the terms, including a reduction from 25% to 20% and changes in the hourly rates.22
29. The Judge further found that there was an engagement letter of 15 August 2015 and that its terms were substantively identical to those of the LoE dated 21 November 2016.23 The Judge further found that Mr Kidd must have read the terms of the LoE and its predecessor and could not have failed to note the request to send back a signed copy and the provision that continuing to instruct SarCogent to act would amount to acceptance of the contents of the letter. The Judge noted Mr Kidd’s evidence to the effect that he would refer such matters to his team, which the Judge considered could only mean Lachlan Forbes. The Judge considered the absence of any evidence from Lachlan Forbes to be significant, given that he was Mr Kidd’s right hand man who had access to all of his emails and would therefore have been fully aware of the terms of the LoEs.24
30. The Judge considered it inevitable that Mr Kidd and Mr Lachlan Forbes would have discussed the LoE and its predecessor and could not have considered that they could simply ignore the terms which provided that continuation of instructions would be taken as acceptance if they disagreed with the terms of the LoE.
31. Couched in terms of UAE Law, the Judge concluded that Mr Kidd had accepted the LoE by conduct and in particular by continuing to instruct SarCogent to manage the litigation as it had been previously doing and by paying a SarCogent invoice which straddled the date of the LoE (November 2016) and included work done in December 2016. As noted earlier by the Judge, the previous course of dealing between the parties was significant, under UAE Law, in the identification of acceptance. Further, Mr Smylie attended the mediation which was held in November 2017 and met with Mr Kidd’s lawyers at the time and liaised with them thereafter, which the Judge considered amounted to an interchange of acts demonstrating mutual consent. The Judge concluded that:
The course adopted by Mr Kidd was one, which, in the circumstances leave me in no doubt that it demonstrates mutual consent.25
32. The Judge went on to consider that, in addition, the requirements of Article 135 of the Law were satisfied because although Mr Kidd never objected to the terms of either the LoE or its predecessor in the name of A&E, anyone reading the terms of the LoE however superficially would realise that it was incumbent on them to object if they did not agree to its terms, particularly given the prior history of oral agreement and discussion of terms relating to the means of calculating success fees and the hourly rates to be charged. The Judge concluded that both Mr Kidd and Mr Lachlan Forbes must have readily appreciated this and must have discussed the position and decided expressly to do nothing. In the Judge’s view, the circumstances gave rise to a need to speak under Article 135(1), with the result that silence was to be regarded as acceptance.26
33. The Judge’s conclusion on this issue was reinforced by the evidence of the discussions between Mr Kidd and Mr Clarkson in July 2017 relating to the LoE. In the Judge’s view, it must have been plain to them that there was a duty to speak if SarCogent was acting in reliance upon the existence of a contract which was denied by Mr Kidd. However, the decision was taken to do nothing because, according to Mr Clarkson, Mr Kidd did not want to “rock the boat”.27
34. Although the Judge did not consider that there was a course of prior dealing within the provisions of Article 135(2) of the Law, because the prior dealings were between Mr Kidd and Mr Forbes and between A&E and SarCogent, rather than SarCogent and Mr Kidd, those prior dealings nevertheless lent weight to the conclusion that there was a “need to speak” under Article 135(1) and an implied acceptance under Article 132 of the Law.
35. For these reasons, the Judge concluded that there was a contract on the terms of the LoE.
36. In relation to the issue of whether SarCogent provided legal services, although the Judge considered the point to be unmeritorious, he accepted that if it was correct, it would provide a complete answer to the entire claim. In this context, the Judge observed that Mr Kidd carried the onus of proving that legal services were provided under the LoE and that the contract was thereby rendered void.
37. In the context of his earlier findings with respect to UAE Law, the Judge observed that it was significant that the LoE did not require the provision of legal services in Dubai. Rather, Mr Kidd was in Cyprus, and the management of litigation in Scotland did not involve the provision of legal services in Dubai.
38. The Judge concluded that the drafting of loan agreements subject to UAE Law in 2016 was the provision of legal services, but any advice relating to the agreement and the agreement itself were provided to Mr Kidd outside Dubai and in any case were provided several months before the LoE and could not have been provided pursuant to its terms in such a way as to render it void. The Judge further observed that the provision of legal advice would not fall within the terms of the description of the services to be provided under the LoE, with the result that the drafter might not be entitled to charge for the work because the provision of the service was prohibited, but it would not render the LoE void, because the advice was not provided pursuant to its terms.28
39. In this context, the Judge observed that Mr Smylie used his Gmail address indiscriminately and in particular when carrying out work for Davidson & Co who were licensed in Dubai, and Mr Kidd had failed to establish that Mr Smylie was not undertaking that work under the aegis of Davidson’s.29
40. The only other matter which the Judge considered might constitute the provision of legal services was the sending of the email of 4 January 2017 which enclosed the LoE itself. The Judge observed that:
41. The Judge identified other instances of conduct which he considered did not constitute the provision of legal advice or services.31
42. The Judge concluded that neither Mr Smylie nor SarCogent could be said to have been providing prohibited legal services, let alone services which were capable of rendering the LoE void. Accordingly, there was no question of the LoE being unenforceable because it provided for a success fee in relation to the provision of legal services.
Identification of the amount due under the LoE
43. The Judge then directed his attention to the quantification of the amount due under the LoE. Virtually all of the discussion on this topic in the Judge’s reasons is directed to the identification of the expenses properly deductible from the amount recovered pursuant to the terms of the LoE.
44. After calculating the net amount recovered by Mr Kidd after deducting expenses, the Judge calculated the success fee as 20% of that amount and observed:
To which it is agreed that interest should be added at 9% for a total of 2,728 days from 16 February 2018, the date of the invoice, to the date of this judgment. 32
The claim with interest totalled GBP 4,599,352.22, and judgment was entered in that amount.
Permission to appeal – legal principles
45. RDC 44.117 provides:
“44.117 The Court of Appeal will allow an appeal from the decision of the Court of First Instance where the decision of the lower Court was:
(1) Wrong; or
(2) Unjust because of a serious procedural or other irregularity in the proceedings in the lower Court.”
46. RDC 44.5 requires that an appellant obtain permission to appeal to the Court of Appeal except where the appeal is against a committal order.
47. RDC 44.19 provides:
“44.19 Permission to appeal may only be given where the lower Court or the Appeal Court considers that:
(1) The appeal would have a real prospect of success; or
(2) There is some other compelling reason why the appeal should be heard.”
48. RDC 44.19 provides that permission to appeal may only be given where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
49. In the context of an assessment of the prospects of success “real” means realistic rather than fanciful and involves the same test as is applied in applications for immediate judgment.33
50. A real prospect of success does not mean a probability of success, but more than mere arguability.34
51. “Some other compelling reason why the appeal should be heard” may include the public interest in clarifying the meaning and scope of relevant practice and provisions of DIFC and wider UAE law.35
52. It is established that “real” in the context of an assessment of the prospects of success means realistic rather than fanciful, applying the same test as is applied in an application for immediate judgment.36
53. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.37
54. Accordingly, in order to obtain the grant of permission a prospective appellant needs to establish more than the proposition that the proposed appeal is reasonably arguable – rather, it must be established that there is a real prospect of success.38
55. When a renewed application made to the Court of Appeal is refused, it is appropriate for the Court to provide reasons which adequately explain the reasons why permission has been refused. The adequacy and extent of those reasons will be informed by the fact that the refusal of permission is final and conclusive and determines the issues the subject of the appeal.
56. On the other hand, when a renewed application for permission to appeal is granted, the reasons for the grant can and should be expressed more briefly, and any views expressed should be expressed and read as provisional, on the basis that a different view might well be formed following the consideration of the fuller argument which will be presented at the hearing of the appeal. Further, the reasons for granting permission in respect of grounds of appeal will be expressed economically, not only because the determination of the issue raised by the ground must await the hearing of the appeal but also to limit the prospect that a party might consider that a member of the Court of Appeal does not retain an open mind in relation to any of the issues in the appeal.
Grounds of appeal
57. There are six proposed grounds of appeal. Some of the grounds are interrelated. Grounds 1 and 2 both rely upon the receipt of new evidence by the Court of Appeal as the basis for a challenge to the Judge’s conclusion that the LoE did not provide for the provision of legal services, and for his conclusion that there was a binding agreement in the terms of the LoE. Ground 4 relies upon the proposition that SarCogent provided legal services under the terms of the LoE and, to that extent, appears to depend upon the success of ground 1.
Grounds 1 and 2
58. Grounds 1 and 2 are conveniently considered together. They provide:
“Ground 1
1. The Judge was wrong to find at [98] that because certain activities occurred prior to the Letter of Engagement, they “could not render that contract void”.
2. Had the Judge considered (a) the email from Mr Smylie to Mr Kidd on 10 July 2017 and (b) the email from Mr Munro to Mr Smylie on 23 January 2017, he would have found that SarCogent provided legal services to Mr Kidd after 4 January 2017. It follows that the Judge would have found the Letter of Engagement to be void and therefore unenforceable for being contrary to UAE public order.
Ground 2
3. The Judge was wrong to find at [91] that the requirements of Article 135 of the UAE Civil Code were satisfied.
4. The Judge determined that, under Article 135(1) of the UAE Civil Code, there was a need for Mr Kidd to “speak” otherwise his silence would be regarded as acceptance of the terms of the Letter of Engagement. Had the Judge considered the exchange of emails between Mr Smylie and Mr Kidd between 4 January 2017 and 5 March 2017, he would have found that Mr Kidd did in fact “speak” and there was no silence that could be regarded as acceptance.
5. In any event, the action or inaction of Mr Kidd is only partly relevant when the validity of the Letter of Engagement falls to be decided under UAE public order.”
59. The documents to which reference is made in these grounds were not tendered in evidence at the trial.Rather, they have been produced as part of an application to the Court of Appeal to receive new evidence (as opposed to fresh evidence) which was made as part of the initial application for permission to appeal.
60. The application to admit new evidence is supported by witness statements provided by Mr Kidd and Mr Lachlan Forbes, in which an explanation is provided for the failure to identify and produce relevant documents pursuant to orders of disclosure made against Mr Kidd in the course of the proceedings.
New evidence – legal principles.
61. RDC 44.114 and 44.115 confer discretion upon an Appeal Court to receive evidence which was not before the lower Court. The Rules do not place any constraints upon the receipt of such evidence - rather, the matter is left to the discretion of the Appeal Court.
62. In exercising that discretion, it will generally be appropriate to distinguish between new evidence, which is evidence which was in existence at the time of the trial, and fresh evidence, which is evidence which has come into existence since the trial. This case, and the observations which follow, are only concerned with new evidence, as the relevant emails were all in existence at the time of trial.
63. In Silver v United Investment Bank39 H.E. Justice Gyles considered that the principles developed by the English Courts and specified in the leading decision of Ladd v Marshall40 should be used as a guide to the exercise of the discretion. According to those principles, before receiving such evidence the Court should be satisfied of three conditions:
(a) That the new evidence could not have been obtained with reasonable diligence for use at the trial;
(b) That the new evidence would probably have had an important influence on the result of the case, though it need not be decisive; and
(c) That the new evidence is credible, although not incontrovertible.
64. These principles were applied by H.E. Justice Cooke in Nest Investments v Deloitte & Touche (ME).41
65. However, in Emirates NDB v AFM LLC42 the Court of Appeal suggested that the principles in Ladd v Marshall should be applied “generously and not slavishly”.43
66. In this case, it is unnecessary to consider the rigidity of the principles enunciated in Ladd v Marshall, or indeed to consider anything other than the second of those principles which relates to the influence which reception of the new evidence might have had upon the outcome of the case had it been available at trial. That issue is relevant not only to the principles enunciated in Ladd v Marshall, but also to the critical question of whether the receipt of the new evidence would result in either ground of appeal having a real prospect of success. If the answer to the latter question is in the negative, it would be inappropriate to exercise the discretion to receive the evidence.
67. These considerations direct attention to the emails upon which grounds 1 and 2 rely.
68. The first is an email dated 23 January 2017 from Mr Monroe to Mr Smylie. It provides:
“Further to discussions with your client earlier today we confirm our agreement to extend the Loan Agreement as attached on the same terms for a six months period. Clause 3.3 of the agreement will continue to be applicable with the revised backstop date being August 24, 2017.”
69. On behalf of Mr Kidd, it is contended that:
“Mr Monroe clearly saw Mr Kidd as Mr Smylie’s client and the email dealt with the terms of the loan agreement that Mr Smylie had drafted. Accordingly, [the email] shows that SarCogent (through Mr Smylie) was providing legal services to Mr Kidd after 4 January 2017.”
70. That submission cannot be accepted. The reference to Mr Kidd as Mr Smylie’s client is entirely equivocal in relation to the question of whether legal services were being provided. Obviously, while lawyers have clients, so do management consultants. Further, the email doesn’t establish that Mr Smylie was the author of the loan agreement but assuming that to be the case, it doesn’t establish:
(a) Whether Mr Smylie drafted the loan agreement in his capacity as the CEO of SarCogent or in his capacity as an officer of Davidson & Co, lawyers; and
(b) when the loan agreement was prepared.
71. It seems reasonable to infer that the loan agreement to which reference is made in the email is the same loan agreement that was considered by the Judge in his reasons.44
72. As noted above, the agreement was prepared in August 2016, months before the LoE was presented to Mr Kidd, and the agreement was sent to Mr Kidd in Cyprus. To the extent that the email refers to an agreement prepared by Mr Smylie, it adds nothing to the evidence that was before the Judge at the trial.
73. The email is quite incapable of sustaining the conclusion that Mr Smylie provided legal services in the 19 days between the transmission of the LoE to Mr Kidd, and the receipt of the email from Mr Monroe.
74. For these reasons, the email of 23 January 2017 is incapable of having any impact upon the determination of the question of whether SarCogent provided legal services pursuant to the terms of the LoE.
75. The second email is an email dated 10 July 2017 from Mr Smylie to Mr Kidd. In that email Mr Smylie stated:
“I just wanted to check with you whether you were looking for any 'de mumbojumboed' advice on the legals. As I said to you last week, I spent quite a bit of time with Graham a couple of months back agreeing the form of our Note of Adjustment - which you'll remember Lord Tyre had asked for at the end of the Debate in December - effectively addressing the relevancy point the Defenders (sneakily) raised at that time. I'm conscious that, inevitably given the size of the Claim, the Record (ie the formal court pleadings comprising our case and BP/the insurers' answers to our case) is now a pretty lengthy document and, again inevitably, is stuffed full of legal mumbo-jumbo.”
76. The email also passes on an explanation provided by Mr Kidd’s Scottish lawyers in relation to the attitude of the Court to valuation issues.
77. On behalf of Mr Kidd, it is contended that this email shows that “there was a pattern of SarCogent (through Mr Smylie) giving legal advice to Mr Kidd, and therefore providing legal services”. It is further submitted that the email demonstrates that not only did Mr Smylie regularly give legal advice to Mr Kidd, he was also involved in drafting legal documents on behalf of Mr Kidd.
78. This submission cannot be accepted. First, a single email is not evidence of a pattern of anything. Second, the email does not contain any legal advice – rather, its thrust is to offer to explain “legal mumbo jumbo” provided by Mr Kidd’s lawyers, to Mr Kidd. That is precisely the role that one would expect a consultant intermediary managing litigation on behalf of a client to perform. It is to be distinguished from the provision of legal advice itself.
79. Third, the reference to Mr Smylie spending time with Mr Kidd’s Scottish lawyers “agreeing the form” of a document again suggests that Mr Smylie was acting as Mr Kidd’s agent or delegate for the purpose of providing instructions to the lawyer in relation to the preparation of a document to be provided to the Court. The terms of the email reinforce the view that Mr Smylie was acting as Mr Kidd’s representative for the purpose of managing the litigation which was being conducted on his behalf and does not sustain an inference to the effect that Mr Smylie was himself providing legal advice or services.
80. For these reasons, if this email had been before the Court at trial, it would only have reinforced the Judge’s conclusion that SarCogent was providing the services of a management consultant in the management of litigation rather than legal services.
81. The third email upon which Mr Kidd relies is an email sent by him to Mr Smylie on 9 January 2017 in response to the email from Mr Smylie of 4 January 2017 which attached the letter of engagement. The email was in the following terms:
“Hope all is well.
I will take a look at our situation and get back to you later this week.”
82. On behalf of Mr Kidd, it is submitted that the transmission of this email satisfied Mr Kidd’s “duty to speak” in response to the proposed terms of engagement which would have significantly impacted the Judge’s reliance upon Article 135 of the Law.
83. That submission cannot be accepted. The duty to speak to which the Judge referred was a duty to advise SarCogent that the proposal was not accepted in circumstances in which:
(a) There had been a prior course of dealings between related parties;
(b) The LoE clearly stated that the continued provision of instructions would constitute acceptance; and
(c) Mr Kidd continued to provide Sarcogent with instructions without disabusing SarCogent of the view that he had accepted the terms of the LoE.
84. The terms of the email are entirely equivocal as to whether Mr Kidd was accepting or rejecting the LoE. However, to the extent that it sheds any light on the situation, it provided advice to Mr Smylie to the effect that Mr Kidd would look at the proposal and revert to him. For all the reasons given by the Judge, in those circumstances the failure to revert to Mr Smylie in a context in which continuing instructions were provided was a breach of the duty to speak if Mr Kidd did not accept the terms proposed in the LoE.
85. The other point to note about this email is that it directly contradicts Mr Kidd’s testimony to the effect that he could not recall receiving or reading the email of 4 January 2017.
86. For these reasons, if the email had been available at trial, it would have detracted from Mr Kidd’s case rather than enhanced it.
87. There is another reason why this email cannot give rise to any ground of appeal with a real prospect of success. That is because the Judge relied upon two alternative grounds for his conclusion that agreement had been reached. Breach of the duty to speak was only one of those grounds. The other ground was acceptance by conduct. None of the emails cast any doubt on the Judge’s conclusion on that topic.
88. There is a portion of ground 2 which suggests that part of the ground may not depend upon the email of 9 January 2017, where it is asserted that the action or inaction of Mr Kidd is only partly relevant “when the validity of the letter of engagement falls to be decided under UAE public order”. To the extent that this proposition is capable of being understood, it appears to refer to that aspect of UAE public order which depends upon a finding that SarCogent engaged in the provision of legal services without lawful authority to do so. For the reasons given in relation to ground 1, the emails relied upon in support of that ground do not sustain any prospect of a successful challenge to the Judge’s conclusion that SarCogent did not provide Mr Kidd with legal services under the terms of the LoE.
89. Grounds 1 and 2 have no prospects of success.
Ground 3
90. Ground 3 provides:
6. The Judge was wrong to conclude at [1] that the Deed of Assignment issued by SarCogent in favour of Mr Forbes was “agreed” and therefore a valid assignment under UAE law.
7. As part of his Defence, Mr Kidd produced a metadata report of the Deed of Assignment which showed that the document was created on 27 July 2023. At no point in the proceedings did the Claimant provide any contradictory metadata evidence. 27 July 2023 was well after the date on which SarCogent ceased to be an entity and based on the expert evidence on UAE law, that would render the Deed of Assignment invalid.
8. Had the Judge given proper consideration to the metadata report provided by Mr Kidd, he would have concluded, by drawing on the expert evidence, that the Deed of Assignment was invalid.
91. As noted, the Judge observed that the validity of the Deed of Assignment from SarCogent to Mr Forbes was agreed. This ground challenges this observation.
92. The Judge’s observation was plainly correct. Although Mr Kidd’s Defence put the Deed of Assignment in issue,45 in the course of opening submissions Senior Counsel for Mr Kidd expressly abandoned that component of the Defence. That was consistent with the skeleton argument served prior to trial on behalf of Mr Kidd in which reference is made to the joint view of the experts to the effect that an assignment executed on 10 April 2019 met the formal requirement for an assignment of rights in UAE Law and may therefore be considered valid.
93. The written closing submissions presented on behalf of Mr Kidd did not raise the issue nor make any reference to the metadata report, or dispute the proposition that the assignment was executed on 10 April 2019. Further, there was no evidence adduced at trial to the effect that the Deed was executed after 30 June 2019.
94. Although the metadata report was in the trial bundle, it was never proved, or explained. No witness was asked about the report. No expert was called to explain the conclusions properly drawn from the metadata report.
95. Significantly, it was not put to Mr Forbes in cross-examination that the assignment was not executed in June 2019.
96. In all these circumstances, it is far too late for Mr Kidd to attempt to raise this point before the Court of Appeal, and to invite the Court of Appeal to rely upon an unexplained metadata report to conclude that the Deed of Assignment was not executed until after SarCogent had been deregistered.
97. Ground 3 has no prospect of success.
Ground 4
98. Ground 4 provides:
“9. The Judge was wrong to conclude at [94] that the prohibition on legal services is “restricted to the jurisdiction of Dubai and to the practice of law within in (sic it)”.
10. The Judge failed to consider that SarCogent, as an entity registered and incorporated in the UAE, was not permitted to provide “Legal Consultancy or Legal Activities” (or any services other than “Management Consultancies”) as per the terms of its Service License. This was a prohibition that existed separately from the Executive Council Resolution 22 of 2011.”
99. Ground 4 contains two distinct propositions, although both fail for the same reason, namely the lack of any finding that SarCogent provided legal services to Mr Kidd.
100. The Judge correctly held, consistently with the joint expert evidence on UAE Law, that the LoE would only be void if it provided for the provision of legal services by an unlicensed entity. He also held, correctly, that Mr Kidd carried the burden of proving that the LoE related to the provision of legal services by SarCogent. The Judge gave a number of reasons for his conclusion that Mr Kidd had failed to discharge that burden. The first was that the terms of the LoE itself made no provision for legal advice or services and referred only to services relating to the management of litigation on Mr Kidd’s behalf.
101. The second reason for the Judge’s conclusion was that there was no evidence to the effect that SarCogent provided any legal services to Mr Kidd after the LoE was sent to Mr Kidd on 4 January 2017.
102. The Judge’s observations with respect to the geographical operation of the prohibition relating to the provision of legal services in the UAE related only to the loan agreement which was prepared by Mr Smylie months before the LoE. As the Judge correctly observed, even if the preparation of that agreement constituted a breach of the laws of the UAE or Dubai, it could have no effect upon the validity of an agreement entered into months later.
103. The second aspect of ground 4 relies upon the terms of SarCogent’s license to provide services and asserts that the Judge, in effect, failed to consider the restrictions imposed by the terms of SarCogent’s license as an independent source of invalidity, over and above the global prohibition on the provision of legal services by unlicensed entities. However, there was no need for the Judge to specifically consider this point, as it depended upon a finding that SarCogent had in fact provided legal services pursuant to the LoE. The Judge made no such finding, and for the reasons already given, there is no prospect that the Court of Appeal would make such a finding. Accordingly, argument based upon the proposition that the provision of legal services falls outside the terms of SarCogent’s license is simply irrelevant.
104. Ground 4 has no prospect of success.
Ground 5
105. Ground 5 provides:
“11. The Judge was wrong at [18] to apply a “balance of probabilities” test to the question of whether or not there existed mutual consent. Article 132 of the UAE Civil Code required “the circumstances [to] leave no doubt that they demonstrate mutual consent”. Given the wording of Article 132, it was incumbent upon the Judge to apply a higher standard of proof and/or carry out a heightened examination of the facts.”
106. This ground takes one phrase in a passage of the Judge’s reasons out of context, being the passage in which the Judge observed that it was for the Court to decide, on the balance of probabilities, whether the circumstances leave no doubt that mutual consent is demonstrated. The proposition that this suggests that the Judge did not address himself to the question of whether there was no doubt that the circumstances demonstrated mutual consent is entirely semantic and pedantic. The passage itself makes clear that the question itself to which the Judge was directing himself was whether the circumstances left no doubt of mutual consent. The Judge expressly found, in a number of passages in his reasons to which reference is made above, that he had no doubt that the circumstances demonstrated mutual consent.
107. There is no doubt that the Judge correctly applied the standard required by Article 132 of the Law. Ground 5 has no prospect of success.
Ground 6
108. Ground 6 provides:
“12. For three separate reasons, the Judge was wrong to find at [124] that interest at the rate of 9% on £2,750,315.27 was to be calculated from the date of the invoice until the date of the Judgment:
12.1 Interest should have been calculated from the date of Judgement instead of from the date on which the SarCogent invoice was issued.
12.2 Alternatively, interest should have been calculated at the rate of 7.75% per annum.
12.3 Further alternatively, interest should have been calculated from 4 March 2018 (and not from 16 February 2018).”
109. This is another ground which seeks to present to the Court of Appeal an issue which was not presented to the trial Judge. As noted above, the Judge observed that it had been agreed that interest should be added at 9% from 16 February 2018. That was a correct statement of the position.
110. The proposition that interest should only accrue from the date of judgment is inconsistent with the express terms of the LoE, which provided for interest to accrue from a date calculated by reference to the date of invoice. No submission to the effect that interest should not accrue prior to judgment was presented to the Judge. On the contrary, the parties were directed to provide a schedule setting out their respective positions in relation to the calculation of quantum in the event that the claim succeeded, including a calculation of interest. The respective positions of the parties were presented to the Court in a schedule to which both parties had input and which was presented as an agreed statement of their respective positions.
111. In that schedule the item relating to interest was specified in the following terms:
“Interest to be calculated at 6% above Noor Bank base rate from 16 February 2018 (date of invoice) until 24 July 2025 at 9% (2,715 days).”
112. Because of the different positions adopted by the parties with respect to the amount due, obviously the interest which they calculated varied significantly, between Mr Kidd’s calculation of GBP 55,565.00 and Mr Forbes calculation of GBP 1,602,258.00. However, the parties did not differ in relation to the date from which interest was to be calculated (16 February 2018) or the rate which was to be applied (9%).
113. On behalf of Mr Kidd, it was never contended at trial that the interest rate should be lower than 9% and no evidence was adduced of the Noor Bank base rate over the many years between February 2018 and the date of trial. Nor was it ever contended on behalf of Mr Kidd that the starting date for the calculation of interest should be 16 days after the date of invoice.
114. On the materials presented to the trial Judge, his conclusion that the manner in which interest was calculated had been agreed was correct. Having agreed that interest should be calculated in this manner, it is now too late for Mr Kidd to suggest a different manner of calculation on appeal.
115. Ground 6 has no prospect of success.
Some other compelling reason
116. On behalf of Mr Kidd, it is contended that some of the grounds raise issues of UAE Law which merit consideration by the Court of Appeal and which provide a compelling reason for the grant of leave. However, for the reasons given, the issues of UAE Law to which reference is made would only arise if there were some doubt in relation to the Judge’s conclusion that there was a binding agreement or in relation to his finding that SarCogent did not provide legal services pursuant to the LoE. As there is no doubt in relation to the Judge’s findings with respect to these matters, no issue of UAE Law would arise.
Conclusion
117. As none of the proposed grounds of appeal has any prospect of success and there is no other compelling reason for the grant of permission to appeal, the Renewed Application must be dismissed with costs.
