Plantation Holdings (FZ) LLC v Dubai Islamic Bank PJSC [2017] EWHC 520 (Comm)

[2017] EWHC 520 (Comm)

Case No CL-2013-000775

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/03/2017

Before

THE HON. MR. JUSTICE PICKEN

Between

PLANTATION HOLDINGS (FZ) LLCClaimant

DUBAI ISLAMIC BANK PJSCDefendant

Stuart Cakebread and Juliette Levy (instructed by David Wyld & Co) for Claimant

Robert Anderson QC and William Edwards (instructed by Baker & McKenzie LLP) for Defendant

Hearing Hearing dates: 24, 25, 26, 27, 28 and 31 October 2016, 1, 2, 3, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 28, 29 and 30 November 2016, and 1, 2, 5, 6, 7, 12, 13 and 14 December 2016

Judgment supplied in draft to the parties: 15 March 2017

Judgment Approved

THE HON. MR. JUSTICE PICKEN:

Introduction

[1]This is a claim by the Claimant, Plantation Holdings (FZ) LLC (‘Plantation’) for some US$2 billion. Plantation is a Dubai company which was incorporated in 2004 for the purpose of developing an upmarket and exclusive polo facility on the outskirts of Dubai which was to include villas, a hotel, rented flats and business units (‘Plantation Project’ or ‘the Project’). The land had originally, on 25 January 2004, been leased by the Dubai Development and Investment Authority (‘DDIA’), a company which subsequently assigned its rights under the Lease to Dubai Tourism Development Company LLC (‘DTDC’) (later renamed Dubai Land LLC (‘Dubailand’)) to Mr Arthur Fitzwilliam (the ‘Lease’), the majority shareholder and manager of Plantation who assigned his interest to Plantation in December 2004.

[2]Mr Fitzwilliam’s original idea had been relatively modest: to build what he picturesquely described as a “polo commune” for “polo mates” consisting of “a single polo field with some villas around it”. Although the focus of the Project was to remain on polo and equestrian matters, there was a substantial change in terms of the scale of the Project which was ultimately intended to be on so grand a scale that it would cover a land area a third larger than Hyde Park, with four polo fields. This was to be a very substantial development which would be constructed out of desert land at a considerable cost (as at January 2008, some AED 1.39 billion or US$380 million).

[3]The Lease permitted the development of a polo and equestrian facility, a hotel, business units, villas and apartments for sale. Specifically, the Lease, which was for a period of 49 years renewable for another 50 years and which was subject to Dubai law, defined the “Premises” as being “that piece of land consisting of more or less of … 14,372,941 sq. ft. … located at Dubai Land and as more particularly identified on the Plan of the Premises attached as the First Schedule hereto”. This was revised upwards to 20,000,000.50 square feet by an amendment entered into on 3 October 2004. The Lease went on to define the “Project” as being “the Project called Plantation to be constructed by the Tenant on the Premises which includes, but is not limited to, a multifunction development comprising a hotel in combination with an independent Cosmetic Surgery Clinic, Equestrian Center, polo fields, stabling, veterinary clinic and residential villas and or apartments for sale, and as may be varied with agreement of both Parties”. The 3 October 2004 amendment introduced into this description of the “Project” a reference also to an “Equine University”. As Mr Fitzwilliam put it when describing the scale of the Project when giving his evidence, there was an occasion fairly early on, when he drove out “to the desert, overlooking the piece of land before the one we actually got, because there were a number of changes” and parked “on this high dune looking over the land that had just been allotted to me, thinking, ‘Oh my God, what have I done?’”. Mr Fitzwilliam may have been momentarily somewhat overawed. He was nonetheless not apparently overly perturbed since, as I shall come on to explain, he thereafter set about turning his idea into reality. Unfortunately for Mr Fitzwilliam, the reality turned out to be rather different to that which he had hoped for. The “world full of fun and adventure” which one of the advertising hoardings on the site boasted the Project would be did not materialise: the Project was never completed and Mr Fitzwilliam was to find himself incarcerated in a Dubai prison for some three years as a result of his involvement with the Project, only ultimately to be acquitted of the charges which he faced, during which time the Defendant, Dubai Islamic Bank PJSC (‘DIB’), a Dubai incorporated bank and one of the largest banks in the Middle East, took possession of the land held by Plantation. This was clearly not the “adventure” (still less the “fun”) which Mr Fitzwilliam had hoped for.

[4]This case is a further consequence of Mr Fitzwilliam’s unfulfilled dream of creating the Project. Specifically, the case arises under a contract (‘the Restructuring Agreement’ or ‘the RSA’) entered into on 19 August 2007 and which provides for the restructuring of approximately US$501 million (the ‘Rescheduling Amount’) in payments owed to DIB. Specifically, the RSA was entered into as a result of the fraudulent misappropriation of certain funds received from DIB by individuals who are not involved in the current proceedings (the ‘CCH fraud’). These individuals, Mr Ryan Cornelius and Mr Charles Ridley, were investors in the Plantation Project, who, unbeknownst to Plantation, used about US$18 million of the misappropriated funds by way of investment in the Project. With the Plantation Project well underway, Plantation entered into the RSA agreeing to act as surety by granting DIB a conditional assignment of its leasehold land for the Project (‘the Conditional Assignment’). Just under a year later, on 9 June 2008, DIB alleged that Plantation had committed four breaches of the RSA and required the breaches to be remedied within 15 days. Those breaches alleged by DIB, including allegations that Plantation had not complied with Law No. 8 of 2007 (a Dubai law which had recently come into force and which was designed to protect those who purchase ‘off-plan’), were set out in a letter served on Plantation by DIB’s Dubai lawyers, Al Tamimi & Co. (‘Al Tamimi’), on 9 June 2008. That letter set out details of a number of alleged breaches of the RSA. Plantation’s position is that none of these alleged breaches had occurred at the time that the letter was sent on 9 June 2008. On the contrary, Plantation maintains that, in sending the letter, DIB was simply looking for ‘a way out’ and that this explains why unmeritorious breaches were asserted by DIB. In any event, the letter having been sent by DIB to Plantation and the alleged breaches having not been remedied in the time afforded to Plantation by DIB, with the result that, on 20 July 2008, DIB perfected the assignment of the Lease and thereby took control of the land to which the Lease related. Plantation contends in these proceedings that DIB had no right to take that action and that, as a result of DIB’s actions, Plantation has suffered substantial losses. It is Plantation’s case that in July 2008 the Lease was worth either US$2 billion or AED 2,934,491,309 (approximately US$800 million), depending on whether I decide that a particular deal would have been available in June 2008, and that, in the circumstances, DIB is liable to pay Plantation damages in one of these amounts.

[5]DIB denies liability to Plantation. DIB’s case is that it was entitled to act as it did and when it did, and that accordingly it was not in breach of the RSA in doing what it did. Even if that is not the case, however, it is DIB’s position that there is, in any event, no basis upon which Plantation can claim to be entitled to substantial damages since Plantation’s case entirely ignores both the highly precarious nature of Plantation’s financial position, specifically a funding model which required it to achieve sales at an unachievable (and unachieved) rate (all the more so having regard to the wider economic realities in the second half of 2008). DIB contends that, in the circumstances, even had DIB not taken the action which it did, Plantation would, in any event, have failed and DIB would, as a result, have been entitled to take possession following an Event of Default.

[6]These are the issues which must be resolved in these proceedings. It ought, however, to be acknowledged at the outset that the present proceedings are, in fact, the second set of proceedings to come before the Commercial Court concerned with the Project. The first involved Mr Cornelius and Mr Ridley as defendants in a claim brought by DIB seeking payment of some US$432 million (after giving credit for recoveries) arising under the RSA. In broad terms, DIB’s case in those proceedings, which resulted in a judgment in DIB’s favour handed down by Flaux J (as he then was) on 6 December 2013 (

[2013] EWHC 3781 (Comm)

), was that Events of Default occurred under the RSA which led to the acceleration by DIB of repayment of sums due, with the result that Mr Ridley and Mr Cornelius (and two other defendants), who were all guarantors under the RSA, were jointly and severally liable to DIB for the outstanding amount due under the RSA. Mr Ridley and Mr Cornelius were by that stage in prison in Dubai, having been arrested in May 2008 and subsequently convicted by the criminal courts there of defrauding DIB and paying bribes to DIB’s employees. They remain in prison to this day.

The factual witnesses

[7]It will be necessary in a moment to deal with the factual background in some considerable detail. Before doing so, I should, first, however, say something about the factual witnesses from whom I heard. As will become apparent, Mr Cakebread (leading Ms Levy for Plantation) and Mr Anderson QC (leading Mr Edwards for DIB) each made criticisms of certain witnesses. These are criticisms which I shall need to address and it is convenient to do this before addressing the facts. In particular, Mr Anderson QC submitted that one of Plantation’s witnesses, Mr Nicholas Bacon, gave evidence which was misleading and dishonest. This is a submission which I shall need to consider in some depth, not only because of its seriousness as an allegation but because of the importance of the evidence given by Mr Bacon which, Mr Anderson QC suggested and I agree, went to a major issue in the case. It is convenient to address the criticisms made of Mr Bacon as a witness in relation to that particular issue when addressing that issue rather than in an introductory section such as this and so somewhat divorced from the context in which the criticisms come to be made. I can nonetheless deal at this stage with other criticisms which were made concerning Mr Bacon and propose to do that at the same time as setting out my impressions concerning the other witnesses.

[8]In dealing with the factual witnesses, as opposed to the expert witnesses, it is right to acknowledge that, as Mr Anderson QC pointed out, given that the central events in the present case took place between 9 and 10 years ago, in 2007-2008, it is inevitable that witnesses’ recollection of relevant events will have been impacted by the time which has elapsed in the meantime. It is helpful in this respect to have in mind the observations which were made by Leggatt J in Gestmin SA v Credit Suisse (UK) Ltd

[2013] EWHC 3560 (Comm)

at [22]:

“… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

In the present case, these observations generally hold good. However, as will appear when I come on to address Mr Bacon’s evidence concerning a meeting which according to him took place in Hertfordshire in June 2008, there is at least one instance in this case where the issue is not merely an issue of recollection but is an issue of whether the witness is telling the truth. In short, either Mr Bacon did travel from Dubai to London and onwards to Hertfordshire to the meeting which he says was arranged for June 2008, or he did not: if he did not, the explanation for the evidence which he gave cannot simply be misrecollection.

Plantation’s witnesses

[9]I start with the factual witnesses called by Plantation. These were Ms Suzanne Sutherland, Mr Bacon, Mr Ian Kelly and Mr Fitzwilliam. Mr Anderson QC submitted that none of these witnesses gave evidence which particularly assisted Plantation, albeit for reasons which differed from witness to witness. Specifically, Mr Anderson QC suggested that not only was Mr Bacon a dishonest witness but that Mr Fitzwilliam was also not entirely straightforward with the Court when giving evidence, whilst submitting, further, that Ms Sutherland gave evidence which in important respects was mistaken and which needs, in any event, to be approached with considerable caution given her lack of relevant financial expertise and her clear closeness to Mr Fitzwilliam. As for Mr Kelly, it was Mr Anderson QC’s submission that his evidence, which he accepted was plainly truthful, provided little (if any) support to Plantation’s case. In my view and as I shall now explain, there is force in each of these various points.

[10]I make it clear at the outset that, in considering the evidence which was given by Plantation’s witnesses, I have taken into account the observations made by Mr Cakebread concerning Plantation’s inability to access documents and computers which were still on the Plantation site when DIB took physical possession in early November 2008. I bear in mind specifically, therefore, that witnesses such as Mr Fitzwilliam and Ms Sutherland were somewhat hampered in recalling matters without the assistance of all the relevant documents. As I shall explain, during the course of the trial, in fact after she had completed her evidence, various documents were disclosed which had been obtained from Ms Sutherland’s own personal (as opposed to Plantation) computer, but the fact remains that Plantation has not had access to material which it would otherwise have been able to consider when its factual evidence was prepared. In contrast, it does appear that, contrary to evidence given by DIB’s solicitor, Mr Hugh Lyons, who referred to DIB not knowing relevant passwords, DIB might very well have had access to Plantation’s computers and servers since one of DIB’s witnesses, Mr Ilahi, ultimately confirmed that password information was, in fact, sought and apparently obtained.

Arthur Fitzwilliam

[11]Although Mr Fitzwilliam was the last witness to be called by Plantation, it is appropriate that I should deal with my impressions in relation to him before dealing with the other witnesses. As I have already explained, Mr Fitzwilliam is the person who had the idea to develop the Project. Plantation was, in effect, his company. He set the company up and he stood to benefit very substantially from any success which the Project was going to achieve. Mr Fitzwilliam is plainly an intelligent man. This was apparent from the manner in which he conducted himself when giving his evidence. It was apparent also from my observations of him during the course of the trial generally. He is quick-witted and humorous. He has charisma. I can readily see that these characteristics, together with a charm which was also apparent when he gave evidence, equipped him very well in his business-related activities. He is an entrepreneur. It is clear, too, that Mr Fitzwilliam is somebody who commands loyalty, certainly from Ms Sutherland and I suspect from others who have worked for him over the years.

[12]Mr Anderson QC submitted nonetheless that Mr Fitzwilliam’s evidence should not be accepted without question. He did not suggest that Mr Fitzwilliam was dishonest in everything which he told the Court. He did, however, suggest that Mr Fitzwilliam must not have been telling the truth concerning the meeting which Mr Bacon was insistent had been arranged in Hertfordshire in June 2008, specifically that he (Mr Fitzwilliam) was travelling to that meeting when he was arrested at the airport in Dubai. I shall have to return to this topic. Other than in relation to this, the criticism which was made concerning Mr Fitzwilliam by Mr Anderson QC was that the evidence given by Mr Fitzwilliam should be viewed with some caution given that he bears an obvious grudge against Dubai in general and DIB in particular given that he had to endure a substantial period of time in a Dubai prison before his acquittal. Whilst I agree with Mr Anderson QC that Mr Fitzwilliam does indeed bear such a grudge, nonetheless I do not accept that this means that, as was suggested by Mr Anderson QC, Mr Fitzwilliam has lost the ability to consider matters rationally and, moreover, has sought to advance a case based on “wildly improbable conspiracy theory and assertion, lacking any basis in reality”. Mr Fitzwilliam is not, in my assessment, some sort of wild conspiracy theorist. It may be that he is wrong to think that what happened to him was the result of involvement of the Dubai Government and DIB’s connections with the Dubai Government. This is a matter which I shall come on to address. The fact that Mr Fitzwilliam holds his view does not mean that he is to be criticised for doing so. Mr Anderson QC highlighted in this regard certain evidence given by Mr Fitzwilliam concerning the causes of the Dubai property crash in 2008, specifically this:

“I’m strangely, and probably bizarrely, of the opinion that the problems that happened in Dubai had absolutely no reason to happen. Had the authorities not been arresting guys like me, and other guys like me and causing the investing public to worry about the deals they had made, there wouldn't have been a drying up of the liquidity. So there was absolutely no reason for Dubai to have the property crash that it did, if they had left us all alone.”

Mr Anderson QC suggested that this is a viewpoint which no rational person could hold. Even if that is right, however, it does not follow that Mr Fitzwilliam should be dismissed as a conspiracy theorist whose evidence should be discounted. Mr Fitzwilliam himself acknowledged, in giving the evidence which he did, that others might regard his view as strange or bizarre. The fact that he did so rather detracts from the submission that he lacks rationality. I repeat that Mr Fitzwilliam is entitled to his opinion. The more so, given what he went through after his arrest. Mr Fitzwilliam is a self-confident man. He is also an optimist. In the circumstances, I am in little doubt that he does indeed believe that, but for his incarceration, he could have made the Project a success notwithstanding the economic downturn. Although, therefore, I reject the suggestion that Mr Fitzwilliam’s evidence should be treated as evidence which is given by somebody with a grudge who lacks rationality, I do nonetheless recognise that Mr Fitzwilliam’s self-confidence and optimism do need to be borne in mind when considering Mr Fitzwilliam’s evidence in relation to the financial viability of the Project at any particular juncture and, in particular, the ability of Plantation to secure the monies required to make the Project a success. These characteristics, combined with Mr Fitzwilliam’s lack of experience in a development on the scale of the Plantation Project (still less in Dubai as opposed to his redevelopment of apartment blocks in London), are matters which mean that it would be unwise to accept at face value everything which Mr Fitzwilliam had to say on the progress of the Project and its ability to be a success.

Suzanne Sutherland

[13]Ms Sutherland was employed by Plantation as its Chief Financial and Operations Officer. She was, however, not somebody who had had prior experience in running a project such as the Plantation Project, whether in so senior a role or at all. Nor did she have equivalent high level managerial experience in other businesses. Ms Sutherland, indeed, very fairly (and characteristically so since I am in no doubt that she was an honest witness) acknowledged this when giving her evidence. She accepted, in particular, that she had never previously managed a construction project and nor had she ever before compiled and maintained financial projections for a construction project or, for that matter, cost schedules, cash flows, and business plans. Rather, her background was initially as an account manager in Australia “for an import scheme into usually third world countries”, and then from about 1995 as an account manager in Dubai with “an American company that was selling engines and boats in the marine industry”. This was followed, some four years later, by Ms Sutherland working for Mr Fitzwilliam “in a company that he had set up with partners from the UK, which was bringing in software for HR management”. It was another four years after this, in 2003, that Ms Sutherland started working for Mr Fitzwilliam on the Plantation Project. This was the first time that she had worked in a senior financial position, whether in relation to a construction project of any size or at all. It was also the last time that Ms Sutherland was to work in such a role since, after leaving the Plantation Project, she moved initially to work for Mr Fitzwilliam at another of his businesses, Regent Investment Consultants, before subsequently, within the last couple of years, setting up her own business running a children’s nursery in Dubai.

[14]In short, I agree with Mr Anderson QC when he submitted that Ms Sutherland was not qualified or sufficiently experienced to perform the role which she was asked to perform at Plantation. The role would have been very substantial and demanding for anybody with relevant experience. It was necessarily all the more demanding for a person in Ms Sutherland’s position who had never before carried out such a role. The fact that it entailed not only financial but also operational responsibilities would have made Ms Sutherland’s task especially taxing. Ms Sutherland was being asked, in effect, to learn ‘on the job’ and to do so in circumstances where that job was very large indeed. It is not a criticism of Ms Sutherland to make this observation since I am clear that she did the best that she could to make the Project a success. It is plain that she worked tirelessly to achieve such a result. I do consider, however, that there is substance in Mr Anderson QC’s suggestion that, in the circumstances, given Ms Sutherland’s lack of relevant experience, some of the evidence which she was able to give concerning the progress of the Project, and specifically its financial position at various stages, is properly to be viewed with some caution not because the evidence was given anything other than honestly but simply because Ms Sutherland’s lack of experience means that her evidence, in places, does not carry the same degree of weight as it would were it to have been given by a witness who has had a greater level of relevant experience.

[15]There is an additional aspect which should be mentioned in relation to Ms Sutherland. This is that, although I repeat that I do not doubt that Ms Sutherland gave evidence which was honest, it seems to me that there is nonetheless force in Mr Anderson QC’s submission that her closeness to the Plantation Project, a venture in which she invested a considerable amount of energy, and her longstanding (and continuing) association with Mr Fitzwilliam make it necessary not to take at face value everything which Ms Sutherland had to say when giving evidence. As Mr Anderson QC accurately submitted, Ms Sutherland clearly felt a certain sense of ownership in relation to the Project. That sense of ownership continues and explains, at least in part, why Ms Sutherland attended trial throughout the two months which it lasted. This was something which, she explained, she did at her own expense (and despite the fact that she has her own business in Dubai), albeit that she clarified that she was not having to pay for hotel accommodation because she was staying with Mr Fitzwilliam at his house in London. Ms Sutherland and Mr Fitzwilliam are clearly friends. Whilst this does not mean that Ms Sutherland is to be regarded as an unreliable witness, still less a dishonest one, it does nonetheless mean that Ms Sutherland is less independent than would otherwise be the case. That lack of independence is underlined by the fact that, as Ms Sutherland perfectly candidly acknowledged during cross-examination when asked by Mr Anderson QC, although there is no formal agreement that she will be compensated if Plantation succeeds in its claim against DIB, she believes that there will be what she described as “a discussion” about such compensation being paid to make up for the loss of the villa plot which she would have received had the Project been completed. This was a substantial 50,000 sq. ft. plot which, at least at one stage, might have been expected to have a value in the region of AED 20 million or US$5.4 million.

Nicholas Bacon

[16]Mr Bacon gave evidence concerning his efforts during the course of 2007 and 2008 to obtain funding for the Plantation Project. I have mentioned already that Mr Anderson QC’s submission was that Mr Bacon was dishonest in the evidence which he gave. This submission was mainly based on the evidence given by Mr Bacon concerning the meeting which he said was arranged to take place in June 2008 in Hertfordshire. However, Mr Anderson QC pointed to other aspects of Mr Bacon’s evidence unconnected with that evidence which, in his submission, demonstrated dishonesty on the part of Mr Bacon. It is difficult to divorce consideration of these other aspects from the June 2008 meeting evidence in the sense that, if Mr Bacon did give evidence which was dishonest in relation to the latter, then it is all the more likely that he would be willing to give untruthful evidence on other matters. However, having considered matters carefully, I have reached the conclusion that, even taking no account of the evidence which Mr Bacon gave concerning the June 2008 meeting, Mr Bacon was not a satisfactory witness.

[17]There were various points concerning Mr Bacon’s evidence which caused me some concern. These included the curiosity that, although Mr Bacon described himself in his witness statement, as having a first career as an army officer, when during cross-examination he was asked which regiment he was in, he refused to answer saying that he could only say if the Ministry of Defence gave its approval. It was then put to him that there is no record of him graduating from Sandhurst. He replied that this was because he was injured at the time of graduation and was “back-squadded”. There was also the oddity that in certain business literature he was described as having a degree from Oxford University when he did not go to that university. His explanation was that he had nothing to do with the particular document being put together. Again, this was evidence which caused me to have some doubt about Mr Bacon as a witness. Had matters rested there, nonetheless I would not have concluded that he was a dishonest witness. Matters did not, however, rest there.

[18]A particular matter highlighted by Mr Anderson QC concerns the evidence which he gave concerning a Mr Stephen Mallet, described in his witness statement as being the Chief Investment Officer of a company called Chescor Capital (‘Chescor’) which operated a mezzanine fund and whose Chairman and Executive Director was in 2008 a Dr Amin Badr-El-Din. It was with Dr Badr-El-Din that the meeting in Hertfordshire in June 2008 was, according to Mr Bacon, to take place. Indeed, Mr Bacon’s evidence was that the meeting took place on 9 June 2008 in the sense that he (Mr Bacon) attended on that day and met Dr Badr-El-Din and Chescor’s “other principals” but that Mr Fitzwilliam did not attend owing to his arrest in Dubai and so that the meeting was ineffective. This, I repeat, is a matter to which I shall return. What matters for present purposes is a narrower point, namely that Mr Bacon’s witness statement made no mention of the fact that, far from at the time Mr Mallet being Chescor’s Chief Investment Officer, Mr Bacon and Mr Mallet were, in fact, business partners who had been approached by Chescor to assist, not as employees (still less in Mr Mallet’s case as Chief Investment Officer) but as external consultants, in the development of its mezzanine fund. The fact that Mr Bacon and Mr Mallet were business partners was confirmed to me by Mr Bacon when I asked him during the course of cross-examination. This was confirmed two days later by an email from Chescor, specifically from one of its principals, Mr Alan Moore, which was produced by Plantation’s solicitors the following day. In that email, Mr Moore described Mr Mallet and Mr Bacon having both been engaged by Chescor to assist in the development of the mezzanine finance fund “sometime around 2008” and “for a relatively short period (I believe about three months)”. The impression given by Mr Bacon was, therefore, distinctly misleading. Nor is it easy to see how this is an impression which can have been innocently given. Mr Bacon obviously knew that he was in a business relationship with Mr Mallet at the relevant time. It is difficult to explain why, in the circumstances, Mr Bacon should have made no mention of this in his witness statement. It is also hard to see why Mr Bacon should have chosen to describe somebody with whom he was in partnership as Chief Investment Officer of a company which had asked that partnership for assistance.

[19]If this had been an isolated incident, then, I may have been inclined to the view that Mr Bacon had in his witness statement not expressed himself as fully as he should have done. However, it was not an isolated incident. On the contrary, there were other aspects to Mr Bacon’s evidence which involved a lack of straightforwardness. One example concerns Mr Bacon’s explanation in his witness statement that in the first quarter of 2008 he moved from a company called Alcazar Capital Ltd (‘Alcazar’), an asset management and investment advisory firm based in Dubai where he held the position of Senior Executive Officer, to another Dubai-based company, a private equity firm called Novati Group International SPC (‘Novati’), the company whose literature described Mr Bacon as having graduated from Oxford University, where he held the same job title and was Managing Director of its “Advisory and Proprietary arm”. His evidence, again in his witness statement, was that he left Novati in December 2009. However, as Mr Anderson QC pointed out, there are no documents showing that Mr Bacon joined Novati in 2007. Instead, it appears that it was not until late 2008 that Mr Bacon (and Mr Mallet) entered into some kind of relationship with Novati. Furthermore, Mr Bacon acknowledged under cross-examination that Novati was never registered within Dubai as a financial services company but that it held a metals trading licence. This is another fact not mentioned in Mr Bacon’s witness statement. Nor did Mr Bacon explain in his witness statement what he told Mr Anderson QC when giving evidence concerning Novati transforming, as Mr Bacon put it, into a different company called Novaar “with the same directors and staff” and the same ownership (a Mr Williams and a Mr Mapplebeck). Nothing had previously been said about Novaar at all and, furthermore, the documents do not support Mr Bacon’s claim since Mr Anderson QC was able to put to Mr Bacon an article dated 10 February 2009 in which Novaar was described as being a “family office” of HRH Prince Saud bin Mansour al Saud and another document emanating from the Dubai International Financial Centre which listed its shareholders as being Prince Saud’s relatives, not Mr Mapplebeck and Mr Williams, albeit that the latter document identified Mr Williams as a director and another document produced in 2010 by Highworth Research Ltd and shown to Mr Bacon in re-examination by Mr Cakebread identified both Mr Williams and Mr Mapplebeck as directors and, in Mr Williams’ case, as Chief Investment Officer. It appears, indeed, from the 10 February 2009 article and from the Highworth Research Ltd document that, far from Novati becoming Novaar, Novati and another company, Harald Quandt Holding, had an advisory role in the setting up of Novaar.

[20]This leads on to a related matter, which is that, although Mr Bacon was insistent when giving evidence that he had taken the Plantation Project with him when he moved to Novati from Alcazar, what appears actually to have been the case is that the Plantation Project did not go to Novati at all but was instead regarded by Mr Bacon as being his own personal piece of business. Having described how initially, in late 2007 and in the early part of 2008, he worked for Plantation “on a very part time basis … on a private, consultancy basis”, Mr Bacon went on to say this in his witness statement:

“When I moved to Novati, I took the Plantation project with me. My personal consultancy agreement with Arthur was terminated, and the Plantation project became one of the projects on Novati’s ‘Deal Flow Report’. Novati would have had a success fee agreement with Plantation, although I cannot now remember the exact terms.”

This is clear evidence expressed in unqualified terms, save perhaps for the “would have had” wording of the last sentence. The truth, however, is that no ‘success fee agreement’ between Plantation and Novati has been unearthed. Moreover, contrary to what Mr Bacon stated in his witness statement, it is quite apparent that, even after he maintained that he had moved to Novati, Mr Bacon was treating the Plantation Project as being a private (and so non-Novati) matter. This is demonstrated by the fact that the consultancy agreement to which Mr Bacon himself referred in his witness statement, which he explained contained terms which “would have been similar” to those which appeared in the consultancy agreement which he stated he entered into when first working on the Project (in late 2007), is an agreement dated 27 September 2008 between, importantly, Mr Fitzwilliam and Plantation, described together as the “Client”, and Mr Bacon (described as the “Consultant”) in his personal capacity. Indeed, tellingly, after Mr Bacon is identified in this way, the agreement then explicitly states:

“It is noted that Mr Bacon is a Managing Director of Novati Mid-East, SA of Emirates Towers, Sheikh Zayed Road, PO Box 31303, Dubai UAE and a Director of Gryphon Investment Bank of 52 Brook Street, London W1K 5DS, United Kingdom. One or both of these institutions may be involved with transactions with Mr Arthur Fitzwilliam and or Plantation Holdings, but they are not party to this agreement, and any fees due to those or any other entity connected to this transaction are wholly separate to this agreement.”

In the circumstances, it is quite impossible to see how Mr Bacon could be right to state in his witness statement that the consultancy agreement which operated after his move to Novati was between Novati and Plantation rather than as between Plantation and Mr Bacon. This agreement is sufficient by itself to make good the point that Mr Bacon cannot have been right in his witness statement to maintain that after his move to Novati, whenever this took place, the Plantation Project was no longer his personal business but became Novati’s business. However, there is other documentation which reinforces the conclusion that Mr Bacon was simply not right to state what he did in his witness statement. I have in mind in this respect the fact that on 18 May 2008, and so at a time when he claims to have moved to Novati, Mr Bacon sent Ms Sutherland an email enclosing a draft agreement in respect of something described in the covering email as the “WhiteWater” project. That draft agreement contained marked-up changes to a version which was apparently executed a month earlier on 13 April 2008. Importantly, it was an agreement between Plantation (not apparently Mr Fitzwilliam also) and Mr Bacon (with no mention of Novati). At the same time, Mr Bacon additionally enclosed an invoice on his own personal letterhead (and so again with no mention of Novati) dated 13 May 2008 and addressed to Mr Fitzwilliam at Plantation in respect of “1 Months [sic] advisory fees in advance” with payment details naming Mr Bacon (and not Novati) as the billing party. In addition, the same email also sent a draft agreement, again between Mr Bacon (with no mention of Novati) and Plantation, in respect of something known as the “Holly Bolly Project”. That Mr Bacon was operating on his own account in relation to these other projects and the Plantation Project is, in the circumstances, perfectly clear. I reject the suggestion that Novati was involved in any way. This applies whenever Mr Bacon joined Novati, whether in April 2008 or thereabouts, or later on in that year. I incline to the view that it was the latter rather than the former, hence the express reference to Novati in the 27 September 2008 consultancy agreement which does not appear in the earlier draft agreements. It seems to me also that this view is supported by the fact that on 25 May 2008 Mr Bacon sent Ms Sutherland an email entitled “Invoice” in which he stated that he “would appreciate if my May 13th invoice could be settled before the end of the month (May)” and continued:

“Advisory fees are due in advance, my fault entirely as I should have passed you the invoice on the 13th, however now that we are now running WW and Holly Bolly at the same time I am using a significant amount of resource from my office and need to keep the good will of my Partner”

. It was in the context of this email that I asked Mr Bacon who his “Partner” was and was told that it was Mr Mallet. This answer makes it all the more unlikely that Mr Bacon had by late May 2008 joined Novati.

[21]In the circumstances and even leaving to one side the evidence which he gave concerning the June 2008 Chescor meeting, which I found deeply unsatisfactory as I shall explain in detail later, I am clear that it is right in the case of Mr Bacon to adopt a cautious approach to the evidence which he gave. I regret to say that I did not find him to be a satisfactory witness. Although in some ways an engaging witness with an apparent wish to assist the Court, the instances which I have described lead me to conclude that, whilst I should not necessarily reject everything which he had to say in his evidence since that would involve too sweeping an approach, I should nonetheless only accept his evidence if satisfied that what he said was inherently likely to be right, or if there was support for his evidence from the documents or from other credible evidence.

Ian Kelly

[22]The other factual witness to give evidence on behalf of Plantation was Mr Kelly, a lawyer by training who has forged a very successful career in the oil industry. Mr Kelly explained that he and his wife, Susan, were purchasers of one of the villa plots in the Plantation Project. Having signed a contract with Plantation in July 2006 and having paid a deposit at the same time, he and his wife subsequently also made various agreed stage payments. Over eight years later, their villa having never been completed, none of these monies have been reimbursed. This is despite the fact that, he and his wife having brought proceedings against Plantation (and others, including Mr Fitzwilliam and DIB), they have obtained a judgment in the sum of AED5.2 million against Plantation. That judgment has not been satisfied for obvious reasons. However, as Mr Kelly very frankly accepted, were Plantation to succeed in the present claim against DIB, he “would recover all my money, plus interest”. Mr Kelly was a patently honest individual. He was intelligent and impressive. Nonetheless, I agree with Mr Anderson QC when he submitted that it was not altogether clear to what issue his evidence really went.

DIB’s witnesses

[23]Turning to DIB’s witnesses, these were (in the order in which they were called): Mr Ayman Kamal; Mr Habib Bitar; Mr Mohamed Al Sharif; Mr Ehsan Ilahi; Mr Jody Waugh; and Mr Hugh Lyons. As I shall explain, whilst Mr Kamal, Mr Bitar, Mr Al Sharif and Mr Ilahi were all at relevant times employees of DIB, Mr Waugh and Mr Lyons were lawyers who acted for DIB. I shall address each of these witnesses in turn, albeit indicating at the outset that Mr Cakebread’s criticism of DIB’s witnesses was primarily reserved for Mr Ilahi and, to a lesser extent, Mr Al Sharif since Mr Cakebread made no particular criticism of the other witnesses other than to suggest that all of DIB’s witnesses gave evidence which, as Mr Cakebread put it, involved following ‘the party line’, by which Mr Cakebread meant that they followed what he described as DIB’s “script” of defending DIB’s allegations of breach and its innocence in relation to the arrest of Mr Fitzwilliam.

Ayman Kamal

[24]Mr Kamal was the first of DIB’s witnesses to give evidence. Between July 2003 and April 2010 he was an Executive Vice President and Chief of the Construction Finance and Direct Investments Group at DIB. He no longer works at DIB. He explained that he sat on a committee at DIB formed in the summer of 2007 in order to deal with the aftermath of the CCH fraud (to which I have previously referred and which I shall describe in more detail shortly) and to implement the RSA. This was a committee described at the time as the ‘Project Stallion Task Force’ but which in the middle of 2008 was reconstituted and renamed as simply the ‘Task Force’. As part of his involvement in this way, Mr Kamal gave evidence concerning DIB’s provision of a standby loan facility and its purchase of certain villa plots in an effort to solve Plantation’s cash flow difficulties. Mr Cakebread accepted in closing that Mr Kamal was a straightforward witness who for the most part strove in his evidence to assist the Court. He highlighted, in particular, how Mr Kamal agreed with him as to the application of Law No. 8 of 2007. These are all matters which I shall address in due course.

Habib Bitar

[25]Mr Bitar joined DIB in January 2004. He held the rank, perhaps not immediately but shortly thereafter, of Senior Vice President. This placed him one grade below the half a dozen or so Executive Vice Presidents who reported to the Chief Executive Officer. He was the Head of Real Estate Finance and Investments at DIB, meaning that he ran with the Real Estate Finance team and the Investments team. His focus in this position was on DIB’s lending on, and investment in, property in the UAE and the wider Gulf region. He reported to Mr Kamal and worked very closely with him, speaking to him on an almost daily basis. He had a team of around 35 people reporting to him. He explained that his first involvement with Plantation came in August 2007, albeit that he was already familiar with the Plantation Project because a year or two earlier Plantation had sought financing from DIB. His involvement in August 2007 came in the wake of DIB’s entry into the RSA the same month, although he explained that it was not for several months after this that he was told about the RSA. This was on 3 December 2007 when Mr Kamal sent him an email with certain extracts from the RSA. Mr Bitar gave detailed evidence concerning his involvement, including in relation to Law No. 8 of 2007 and the various steps taken during 2007 and 2008 regarding the Plantation Project. Mr Cakebread did not suggest that Mr Bitar was anything other than a straightforward witness, albeit that he considered that at times Mr Bitar “tried to follow the party line”. I do not myself take the view that Mr Bitar was anything other than a straightforward witness.

Mohamed Al Sharif

[26]Mr Al Sharif is presently the Chief of Investment Banking at DIB, having between 1999 and 2010 been DIB’s Chief Financial Officer. As such, he is (and was) a very senior DIB employee. He gave evidence concerning a range of matters. Mr Cakebread suggested in closing that he was at times an evasive witness who “appeared genuinely scared to provide a truthful answer”. A particular aspect highlighted by Mr Cakebread in this regard was Mr Al Sharif’s concern at one point in his evidence to ensure that he corrected a suggestion made that the Dubai Government appointed the Chairman of DIB’s Board. Mr Cakebread suggested that this was indicative of DIB’s witnesses feeling under pressure from DIB or, indeed, the Dubai Government. For my part, I do not consider that such an observation is fair. Mr Al Sharif was a very careful witness. He certainly was not willing to give points away which he had any doubt about. He was cautious. This did make it sometimes difficult to follow what he had to say. He was sometimes inclined to argue with Mr Cakebread and his desire to be precise did occasionally suggest an evasiveness. Ultimately, however, I consider that he was straightforward enough. Indeed, Mr Cakebread himself observed that he was candid. I agree, although on no view could Mr Al Sharif be regarded as overly forthcoming.

Ehsan Ilahi

[27]Mr Cakebread’s criticism of Mr Ilahi was that he was engaged in a ruthless effort by DIB to assemble evidence against Mr Fitzwilliam in aid of the prosecution brought against Mr Fitzwilliam and in aid also of DIB’s case. It was suggested, in particular, that Mr Ilahi adopted the role not of a security holder but of a receiver. Mr Ilahi, who is now retired, is a chartered accountant by training. He worked for DIB for 23 years between 1989 and 2012, specifically in the Finance Department until 2011. His involvement with the Plantation project started in earnest in early November 2008, although it does appear that in July 2008 he was copied into an email which indicated that DIB would be taking over the Plantation site. His role was to “take on the day-to-day supervision of the Plantation Project”, reporting to Mr Nidal Shomali, then DIB’s Head of Collection. I shall come on later to deal with particular aspects of Mr Ilahi’s evidence which were criticised by Mr Cakebread, but my assessment of Mr Ilahi is that he was an honest witness doing his best to assist the Court. I reject the suggestion that he was evasive or difficult.

Jody Waugh

[28]Mr Waugh is a barrister and solicitor of the High Court of New Zealand and a partner in Al Tamimi, the largest firm of advocates and legal consultants in the UAE. He acted for DIB in relation to the Plantation Project during 2008. He explained that his task “was to assist senior management of the bank to understand the terms of the RSA and, more particularly, to assist with the signing and perfection of local security which had not been implemented as agreed by the parties to the RSA”. It was Mr Waugh who drafted the letter sent to Plantation on 9 June 2008. Mr Cakebread criticised Mr Waugh for seeking to “follow the party line”. However, he did not suggest that Mr Waugh was anything other than straightforward in the evidence which he gave. My impression of Mr Waugh as a witness is that he was, indeed, straightforward. However, like Mr Al Sharif, I did not find him particularly forthcoming. This may be a feature of the fact that Mr Waugh is DIB’s lawyer and is necessarily privy to certain information of a privileged nature.

Hugh Lyons

[29]The other lawyer witness called by DIB was Mr Lyons, a partner in the firm of Baker & McKenzie LLP although at the relevant time, in 2007 and 2008, a partner in Hogan Lovells International LLP. Mr Lyons gave evidence concerning the lead-up to the RSA as well as subsequent events, including the litigation which ensued in the wake of the arrests of Mr Ridley, Mr Cornelius and Mr Fitzwilliam. His evidence was unchallenged by Mr Cakebread, who accepted that Mr Lyons was an honest witness. That plainly was the case.

The Plantation Project

[30]I should next say something more about the Plantation Project and how it started, beginning with the Lease. Before I do so, I should make it clear that, in setting out the facts and in dealing with the issues which arise in this case, I shall endeavour to deal with the vast majority of the points raised by the parties. There were, however, very many points and it is not feasible nor even especially desirable that I should address every single point. I do not intend, in particular, to relate the entire factual narrative since to do so would only make this judgment even longer than it is, and unnecessarily so. I shall instead concentrate on those aspects of the evidence which have a direct bearing on the issues which are in dispute. I confirm nevertheless that I have taken into account everything which was submitted to me, by both sides, and all of the evidence before me. If I do not specifically address any particular point, therefore, it should not be assumed that I have failed to take it into account as that is not the case. One particular matter which I do not deal with is Plantation’s claim for an account as against DIB as mortgagee in possession, which, having received only relatively brief mention in Mr Cakebread’s and Ms Levy’s written opening submissions, did not feature at all in their written closing submissions or in Mr Cakebread’s oral closing submissions.

[31]I have previously explained that the Plantation Project was on a grand scale. This was no ordinary development. Mr Fitzwilliam explained in his evidence that his original approach to the DDIA in relation to the proposal to create a polo club with a single polo field and, as he put it, a few villas surrounding it was a proposal which interested the DDIA but that the DDIA was only interested in the Project if it was to be world-class and would also encompass a general equestrian facility. It was for this reason that he decided to increase the scale and scope of the concept, whilst making it clear to the DDIA that the Project would not be commercially viable as solely a sporting location and so would need substantial capital investment on the part of the Dubai government or a significant inducement for a private developer to undertake it. It was this which resulted in the idea to create 110 private villa plots which could be sold at a premium together with other residential and commercial development. This, then, is the context in which the Lease came to be entered into with the “Rent” set at a very modest AED 1 per year, albeit that clause 4.1.3 (“Utilities Payment and Connection”) imposed upon Mr Fitzwilliam (the original lessee prior to the assignment to Plantation in December 2004) the responsibility “for all connection charges to bring various utilities required onto the premises, and… for all consumption charges”. Clause 4.1.3, however, continues as follows:

“The Landlord shall be responsible for the construction of the infrastructure to enable the supply of any service to the boundary of the premises, along with the maintenance and repair of said infrastructure, to a standard commensurate to the reasonable needs and requirements of an up-market development. …”

. Clause 4.1.3 goes on to state as follows:

“Should the Tenant assign its obligations under this Clause 4.1.3 to any third party, the Tenant shall remain jointly and severally liable, along with the said third party, to make payments under this Clause 4.1.3.”

Clause 4.1.3 goes on to state as follows:

[32]Clause 4.2.2 (“Permitted Use”) then provides as follows: “The Landlord hereby grants to the Tenant the free right to build on the Premises in furtherance of the Project in accordance with the Plans and Specifications attached hereto as the Second Schedule and the Tenant shall be entitled to exercise any and all ownership rights to and for the buildings that it constructs and may deal with the buildings in accordance with, and subject to, the Parties’ respective rights and obligations pursuant to this Lease”.

[33]Clause 4.10.1 (“Assignment”) provides:

“Subject only to the terms and conditions of this Lease, the Tenant may assign, sublease, rent out, encumbered, pledge, hypothecated or allow the creation of a Leasehold Security Interest over this Lease or the whole or any part of the Premises or the Project or permit the Premises or the Project to be occupied by third parties (collectively, ‘Assign’) as follows: a. In respect of any assignment of the whole of this Lease, or of the whole of the Premises or Project (otherwise than by way of a Leasehold Security Instrument), to such third parties as the Landlord shall first approve in writing (such approval not be unreasonably withheld or delayed if, in the Landlord’s sole discretion, the proposed third parties acceptable financial status); or b. In respect of any assignment of part of this Lease, or of a part of the Premises or Project, or any assignment by way of Leasehold Security Interest, to such third parties as the Tenant shall in its discretion deem fit, subject that in each instance (other than the creating of a Leasehold Security Instrument), the party taking the benefit of the assignment has a valid trade licence given the Permitted Use of the Premises or is a resident of the UAE if he is an individual. This last restriction shall not apply in case of either a company or individual leasing one of the residences or residential plots.”

Clause 4.10.1(a) is the provision which enabled Mr Fitzwilliam to enter into the Assignment and Assumption Agreement dated 15 December 2004 under which he assigned his interest in the Lease to Plantation. Clause 4.10.1(b) permitted Mr Fitzwilliam or, in the event, Plantation to enter into contracts with purchasers of the villa plots the sales of which were intended to provide funding for the development of the Project.

[34]Upon completion of the Project, the parties’ intention was that Mr Fitzwilliam would be granted freehold title to the land. This was something which could not be done as a matter of Dubai law at the time that the Lease was entered into. Clause 5.4 (“Change of Law”) is in the following terms:

“In the event that the applicable laws shall at any time in the future allow for the Premises to be owned and full legal title to transfer to foreign natural person or a foreign legal entity then the Landlord shall execute with the Tenant a sale agreement upon mutually agreed terms for the sale of all or part of the Premises.”

In due course, by a letter dated 30 July 2007 sent to Plantation, since in the meantime Mr Fitzwilliam had assigned his interest in the lease to Plantation, Dubailand (by then the successor as the Landlord to the DDIA under the Lease) agreed to transfer freehold title, stating as follows:

“We confirm that in accordance with the principle contained in Clause 5.4 of the Agreement, Dubailand LLC will transfer freehold title to the land referred to in the Agreement. Dubailand LLC will not charge you for the transfer, but is only prepared to do so once construction is complete. You will be required to pay any statutory charges and government fees (including those charged by the Land Department of the Government of Dubai) associated with such a transfer, and comply with any other requirements imposed by any governmental authority.”

This was, as Mr Fitzwilliam frankly acknowledged before me, a very attractive deal for him and by extension, for his company, Plantation after the assignment of the Lease to Plantation.

[35]At the same time as entering into the Lease, Mr Fitzwilliam and the DDIA also entered into an agreement described as a Profit Share Agreement. Under this agreement, Mr Fitzwilliam (described as the “Developer”) agreed to make various payments to the DDIA (the “Authority”). Specifically, clause 5 provides as follows (the numbering is actual):

“5.1 The Developer shall pay the Authority ten percent (10%) of the annual sales revenue generated by the component of the Project (as described in the Second Schedule of the Lease) being the hotel. 5.2 The Developer shall pay the authority fifteen percent (15%) of any annual lease generated by the component of the Project (as described in the Second Schedule of the Lease) being the residences and residential plots (assigned in accordance with Clause 4.10 of the Lease). 5.3 The Authority shall sell and transfer the title of any residential plot upon instructions from the Developer, subject to the Authority’s approval of the sale agreement. The Developer shall pay the Authority fifty percent (50%) of the selling price of the residence (less the construction value of the residence and any reasonable cost incurred by the Developer in relation to such sale) and fifteen percent (15%) of the selling price of the residential plot as set out in the sale agreement. 5.5 The payments above shall be effected when the components of the Project described above or parts thereof become operational.”

[36]The following provision, clause 6 (“Audit”), then states:

“6.1 The Developer shall appoint independent auditors of an international firm approved by the Authority to audit the accounts of the project (the ‘Auditors’). The audited accounts shall be prepared no later than one hundred and twenty (120) days from the financial year end. 6.2 The Authority shall have access to the accounts of the project on demand basis only for the purpose of verifying the payments due in accordance with Clause 5.”

[37]The Lease and the Profit Sharing Agreement were not, however, the only agreements into which Mr Fitzwilliam entered in the early part of 2004 since shortly after entering into those agreements, on 19 February 2004, Mr Fitzwilliam concluded an agreement with Mr Cornelius and Mr Ridley which was described as a Joint Venture Agreement (the ‘Joint Venture Agreement’). This represented an opportunity to obtain financing, Plantation not being conventionally financed with its business model entailing funding largely from the sales of villa plots. As Mr Fitzwilliam acknowledged during the course of his cross-examination, he needed capital investment from the “get-go”. He was attracted to what Mr Cornelius and Mr Ridley had to offer because he was, as he put it, “only having to put up 30%” (a reference to the shareholding split in the Joint Venture Agreement) and he had previously done business with Mr Cornelius. Mr Fitzwilliam explained that at this stage he considered that Villa plot sales were better than expected, but he acknowledged that Mr Ridley and Mr Cornelius did not ultimately invest as much as had been intended. Be that as it may, the Profit Sharing Agreement provided for the incorporation of Plantation, the company, specifically for the purposes of the Project with the first recital making express reference to Mr Fitzwilliam having entered into the Lease with the DDIA and the second recital stating as follows:

“The Parties wish to organise under the laws of the United Arab Emirates a one hundred percent foreign owned limited liability company which shall be named Plantation Development Holdings LLC (the ‘Company’) for the purpose of developing, operating, marketing and selling a mixed use equestrian theme park development on the Property which is more particularly described in Schedule 1 Part 2 (the ‘Business’), and each of the Parties will, directly or indirectly, be the initial contributors to the Company”

. Clause 2.5 set out details of the agreed share ownership: Mr Fitzwilliam was to hold 70% of the shares in Plantation, whilst Mr Cornelius and Mr Ridley would each hold 15%.

[38]The Joint Venture Agreement also provided that the Lease was to be assigned to Plantation: clause 2.3.2. As I have previously mentioned, this was what was done in December 2004 when the Assignment and Assumption Agreement was entered into. It was shortly after this, Ms Sutherland explained, that work started on the site in about April 2005. The RSA and the Conditional Assignment entered into in August 2007 on discovery of the fraud committed by Ryan Cornelius and Charles Ridley The fraud

[39]It was Mr Fitzwilliam’s entry into the Joint Venture Agreement with Mr Cornelius and Mr Ridley which was, ultimately, to result in the RSA being entered into in August 2007. More specifically, it was because of the fraud which was committed by Mr Cornelius and Mr Ridley against DIB and the fact that that fraud entailed DIB’s money being used (unbeknown to Mr Fitzwilliam) by Mr Cornelius and Mr Ridley to fund their financial obligations in relation to the Plantation Project. The fraud is not as such an issue in the present proceedings. In the circumstances, I rely upon what was decided by Flaux J in his judgment in 2013 as providing the necessary background to the dispute which I must determine. In what follows, therefore, I draw on that judgment, whilst emphasising again that, after serving three years in a Dubai prison, Mr Fitzwilliam was fully acquitted by the Dubai Criminal Court of the charges relating to his potential involvement in the fraud. He is, therefore, an innocent man.

[40]Turning, then, to the CCH fraud which was described by Flaux J, from November 2002 onwards DIB’s Structured Finance Department entered into a series of agency agreements with CCH Europe GmbH and its associated company, CCH plc (referred to collectively as ‘CCH’) as the means by which short-term trade finance would be provided to exporters. Respecting the fact that it is not in accordance with Islamic principles for DIB to provide trade finance by way of short-term interest bearing loans, the model used was so-called murabaha agreements whereby DIB, with CCH acting as its agent, would buy the goods from the exporter, and then, again through CCH, sell the goods to the purchaser, making for DIB a profit represented by the difference between the purchase price and the sale price. These arrangements dated back to the 1980s when Mr Ridley and his then business partner, Mr Guvan Nil, did murabaha deals with DIB. They continued as before after Mr Nil died, with his son, Mr Eren Nil, another defendant to the proceedings which resulted in the 2013 judgment, replacing his father as Mr Ridley’s business partner. It was at this point that Mr Ridley and Mr Nil junior incorporated CCH, CCH becoming the corporate vehicle in Mr Ridley’s and Mr Nil’s dealings with DIB. Specifically, under the agency agreements, once CCH had put the contractual arrangements with sellers and purchasers in place, DIB was to remit the funds required into an account in the name of CCH. It was this that enabled the fraud to be perpetrated: Mr Ridley arranged with Mr Cornelius for one of the latter’s companies to generate fictitious requests for trade finance for non-existent supply contracts which were submitted to CCH’s office in Germany.

[41]This started in about 2003 and was what led, in due course, to the fraud which was to lead, in turn, to the RSA. Specifically, Mr Cornelius owned and/or controlled a number of companies including PSI Energy Holding Company SA (‘PSI’), a Bahraini company with an involvement with a refinery project in Pakistan (the ‘Refinery Project’) which Mr Ridley offered to finance. That finance came from funding which was provided by DIB as a result of the fictitious trade finance transactions which I have described, Mr Ridley telling Mr Cornelius that false invoices needed to be generated to maintain funding and Mr Cornelius agreeing that one or other of his companies would issue false financing requests which were sent for processing to CCH in Germany and submitted to DIB for financing. Flaux J observed in his judgment at [17] that the “range of goods ostensibly sold by PSI Middle East is staggering: jetting pumps, bunker fuel, packing machines, chiller plants together with vast quantities of aluminium sheet and steel beams”. Flaux J took this as an indication that the documentation which was created by CCH and Mr Cornelius’s companies cannot have related to genuine transactions.

[42]Flaux J went on, at [20], to describe what became of the monies diverted pursuant to the fraud, explaining that when DIB discovered the fraud in the summer of 2007, it became plain that some US$342 million out of the US$501 million which had apparently been advanced for short-term receivables financing had not been applied in respect of such transactions but instead in unauthorised long-term projects. These included the Refinery Project which I have mentioned and which entailed the dismantling of an oil refinery in Canada and its reassembly in Pakistan: about US$180 million of the monies needed to finance the Refinery Project came from funds advanced by DIB under the impression that the funds were going to be used for receivables financing. As Mr Ridley was subsequently to explain and as pointed out by Flaux J at [21], the costs of the Refinery Project having escalated, CCH’s response was to attempt to trade out of its difficulties by investing more of DIB’s monies in other unauthorised but shorter term projects, including the Plantation Project into which approximately US$18 million of DIB’s money was (unbeknown to DIB) invested.

[43]Flaux J dealt also with DIB’s discovery of the fraud. He explained, at [22], how it was discovered after DIB’s senior management decided to bring the Structured Finance Department under DIB’s direct management rather than under DIB’s subsidiary Millennium Capital Limited with effect from July 2007. It was in this context that Mr Naveed Ali took over responsibility at DIB for the CCH relationship and began to investigate the transactions. He almost immediately stopped any further drawings under the facility. The almost immediate result of which was a default on an invoice on the CCH account which should not have occurred if these were independent, genuine, transactions. He attended various meetings internally at DIB and with Mr Ridley but did not receive any satisfactory explanations. He then made a presentation to DIB’s Credit Committee on 22 July 2007 at which, Flaux J found (see [23]), he explained that he suspected that there had been a fraud.

The RSA

[44]Thereafter, as Flaux J explained at [24]:

“negotiations took place with the defendants and Mr Fitzwilliam with a view to a global settlement under which terms would be agreed for the repayment of the US$501 million outstanding and owing to the Bank (‘the Rescheduling Amount’). All parties were represented by English solicitors in those negotiations, Hogan Lovells (Mr Lyons) for the Bank, SJ Berwin (Mr Tim Taylor now QC who also gave evidence at the trial) for the second and third defendants, Clifford Chance (Mr Paul Davies) for Mr Fitzwilliam and Plantation Howes Percival for the fourth defendant and Field Fisher Waterhouse for CCH plc. The negotiations, which entailed detailed discussions in the week of 13 August 2007 between the solicitors as to the drafting of the RSA, culminated in its signature on 19 August 2007. The parties to the RSA were the Bank, CCH Europe (‘the Company’), CCH International Plc (‘the Parent’, the two CCH companies together being referred to as ‘the Corporate Guarantors’), the second, third and fourth defendants (‘the CCH Individual Guarantors’), Plantation and Mr Fitzwilliam. The RSA was signed on behalf of the Bank by Mr Omair Mooraj.”

[45]It is worth highlighting at this juncture that Mr Fitzwilliam’s response to learning about the fraud allegations was to instruct Clifford Chance to write to Lovells on 9 August 2007 in these terms:

“During the course of the last 48 hours it has become clear to Mr Fitzwilliam that an allegation of fraud and/or conspiracy may well be brought against him by the Bank. Mr Fitzwilliam is appalled by the recent disclosure that his company may have received funds intended by the Bank to be applied for another purpose, and is currently considering all legal options against Messrs Ridley and Cornelius, by whom he feels badly let down. Mr Fitzwilliam is equally appalled by the thought of fraud proceedings being brought against him, but is absolutely confident that he and the Company [Plantation] will be completely exonerated of any wrongdoing. He is quite prepared to defend any such proceedings in any jurisdiction in which they may be brought. It was in the spirit of openness and cooperation that Mr Fitzwilliam has made an open offer to the Bank to repay any monies that the Company [Plantation] might have received in breach of any agreement made by the Bank with third parties (on the basis that he accepts no legal liability to do so).”

[46]The RSA provided for the repayment in instalments by CCH GmbH and CCH International plc of the Restructuring Amount (approximately US$501 million) pursuant to the Repayment Schedule set out in Schedule 2.

(D) as follows:

“In settlement of any potential claims against them in respect of the application of the Advances, the CCH Individual Guarantors have agreed to each provide a guarantee and indemnity to the Bank (‘the CCH Individual Guarantees’) in respect of the Company and the Parent's obligations under the Agency Agreements and this Restructuring Agreement and on the terms described herein.”

[47]Recital (E) then recorded that, in settlement of potential claims relating to the misappropriated funds, Plantation agreed to provide a guarantee and indemnity to DIB in respect of CCH’s obligations:

“In settlement of any potential claims against it (or its directors and officers) in respect of the application of the Advances, Plantation has agreed to provide a guarantee and indemnity to the Bank (‘the Third Party Guarantee’) in respect of the Company and the Parent’s obligations under the Agency Agreements and this Restructuring Agreement and on the terms described herein.”

[48]There then follow a number of definitions, the most relevant being the following:

“Earmarked Plantation Proceeds those amounts of Plantation Villa Proceeds that are: (a) Escrow Proceeds; or (b) required by law to be applied for building or other specified purposes … Escrow Proceeds those amounts of Plantation Villa Proceeds required by Law to be retained on escrow, but only for so long as they must remain in escrow or approved in accordance with Law Event of Default any one of the events mentioned in clause 18.1 (Events) … Guarantors the CCH Corporate Guarantors, the CCH Individual Guarantors and Plantation … Law any federal, state, local or foreign law (including common law and equity), statute, code, ordinance, rule or regulation Lease the lease agreement in respect of land at Dubailand in the United Arab Emirates dated 25 January 2004 between Arthur Fitzwilliam and Dubai Development and Investment Authority (or as subsequently amended or assigned) … Plantation Enforcement Event breach of the provisions of the following sub-paragraphs of clause 18.1(Events): sub-paragraph (a) and, where such breach is caused by the default of Plantation, sub-paragraphs (c) - (k), in the case of sub-paragraphs (a), (c) - (e) or (h) - (k) subject to the provisos at clause 18.1(a) (Events) Plantation Project all that project for the development and sale of land at Dubailand in the United Arab Emirates as set out further in the Lease Plantation Security that security granted by the Bank by Plantation pursuant to clause 8.2 (Security) Plantation Villa Proceeds the proceeds, when collected, of sale of plots in the residential villa element of the Plantation but excluding: (a) Earmarked Plantation Proceeds and (b) those Plantation Villa Proceeds received in respect of sales of plots made prior to the Effective Date. Plantation Villa Receivables the instalments due from contracted purchasers of residential villa elements of the Plantation in respect of sales of plots which are entered into after the Effective Date … Repayment Date the last Business Day of each of the periods set out in Schedule 2 (Repayment Schedule) Rescheduling Amount the aggregate amount from time to time outstanding under this Restructuring Agreement excluding the Profit, and at the date of this Restructuring Agreement being the amount set out in clause 4.1 … Standby Loan Facility a standby loan facility of up to US$50 million at any time to be used principally for the building of infrastructure for the Plantation Project in accordance with the master development plan in place for the Plantation Project as at the Effective Date.”

Event of Default any one of the events mentioned in clause 18.1 (Events) Guarantors the CCH Corporate Guarantors, the CCH Individual Guarantors and Plantation

Plantation Security that security granted by the Bank by Plantation pursuant to clause 8.2 (Security)

[49]As to the operative parts of the RSA, clause 4 (“The Rescheduling Amount”) provides (where relevant) as follows:

“Amount 4.1 The Rescheduling Amount as at the date of this Restructuring Agreement is US$501,284,616.56 representing all the Advances made by the Bank under the Agency Agreements and profit thereon and whether or not such Advances were applied in accordance with the terms of the Agency Agreements. Additionally, the Bank's costs (recoverable under clause 22.1 from parties other than the Parent) shall form part of the Rescheduling Amount. … Advances due and payable 4.4 All of the Advances shall, notwithstanding any provision of the Agency Agreements but subject to clause 3 (Standstill) be immediately due and payable and, to the extent necessary, the Agency Agreements shall be deemed to have been so varied.”

Advances due and payable

[50]Clause 5 (“Acknowledgement of Debt”) provides that all the non-DIB parties except Mr Fitzwilliam (but including Plantation) “acknowledge[d]” the sum of US$501 million (the “Rescheduling Amount”) as being due to DIB from CCH GmbH in full, and from CCH plc as to US$50 million. That contractual acknowledgment stood with certain guarantee and indemnity obligations assumed by Plantation to which I shall refer very shortly. Specifically, clause 5 provides:

“The Guarantors acknowledge the Rescheduling Amount as being due and payable to the Bank by the Company and the Parent as follows: (a) the Company in full, including for the avoidance of doubt both the Company Advances and the Parent Advances; and (b) the Parent, as to an amount of US$50m in respect of Parent Advances only, and in each case without set-off or deduction in any regard and in accordance with the terms of this Restructuring Agreement.”

[51]Clause 5 is followed by clause 6.1 (“Guarantee and Indemnity”):

“In consideration of the various releases set out in clause 12 (Release from liability) the Guarantors: (a) jointly and severally and as continuing security guarantee the repayment of the Rescheduling Amount on the terms set out herein; and, as an additional and independent obligation; and (b) jointly and severally indemnify the Bank as principal debtors in respect of any failure or inability to recover the Rescheduling Amount as provided for herein, provided that the liability of the Parent under this clause 6.1 shall not exceed US$100m and shall reduce by the amount paid by the Parent and/or the Company from proceeds of the CCH Agency Receivables or, in the case of sums paid by the Parent only, from any other source available to the Parent.”

Accordingly, Plantation had two obligations: “jointly and severally” with other parties to “guarantee the repayment of the Rescheduling Amount”, and “jointly and severally” with other parties to “indemnify the Bank as principal debtors in respect of any failure or inability to recover the Rescheduling Amount as provided for herein”.

[52]Clause 7 then deals, importantly, with “Repayment” of the Rescheduling Amount under three heads:(i) repayment in instalments (clause

7.1 );

(ii) “mandatory prepayment” by the application of certain “proceeds” (clause

7.2 ); and

(iii) a cash sweep provision (clause

7.3 ). As to (i), by clause 7.1, the two CCH companies undertook to repay in accordance with what was set out in Schedule 2 to the RSA, namely in the case of the first two payments (each amounting to US$25 million) within 120 and 240 days respectively, in the case of the third payment (US$70 million) within one year of the RSA’s Effective Date (2 October 2007) and so by 1 October 2008, and in the case of the fourth and fifth payments (US$110 million and US$270 million) within two and three years after the Effective Date.

[53]For completeness, clause 7.1 is in the following terms:

“7.1 Subject to the provisions of clauses 7.2 and 7.3 the Company and the Parent will repay the Rescheduling Amount to the Bank in instalments on each Repayment Date. The amount that shall be repaid to the Bank on or before each Repayment Date is the amount set out in Schedule 2 (Repayment Schedule) corresponding to such Repayment Date and in the case of the Parent limited to the Parent Advances.”

The schedule to which reference is here made, Schedule 2 (“Repayment Schedule”), provides: Period (from Effective Date) Amount Cumulative Amount Within 120 days $25 million $25 million Within 240 days $25 million $50 million Within 365 days $70 million $120 million Within 2 years $110 million $230 million Within 3 years $270 million $500 million The schedule to which reference is here made, Schedule 2 (“Repayment Schedule”), provides: Period (from Effective Date) Amount Cumulative Amount Within 120 days $25 million $25 million Within 240 days $25 million $50 million Within 365 days $70 million $120 million Within 2 years $110 million $230 million Within 3 years $270 million

$500 million

[54]As for (ii), this extended the obligation to repay the Rescheduling Amount beyond the two CCH companies since clause 7.2 requires that all the non-DIB parties (except Mr Fitzwilliam) were under an obligation to cause non-CCH assets and income-streams to be applied against the Rescheduling Amount. The clause provides (in material part) that: “The Guarantors shall take reasonable steps to procure that all of the following proceeds and any proceeds derived from the following sources (in each case net of any associated transaction costs including without limitation necessary and incidental amounts to third parties) shall be applied forthwith upon receipt and in mandatory prepayment of the Rescheduling Amount: …. (d) the Plantation Villa Proceeds so far as they exceed US$150,000 per month provided that such sum has been disbursed or committed to the purposes of the development of Plantation Project; …”.

[55]Then, as to (iii), by clause 7.3 (the cash sweep provision), Plantation (and Mr Fitzwilliam) undertook as follows:

“With the exception of: (a) amounts retained for the reasonable working capital requirements of the respective projects; and (b) Earmarked Plantation Proceeds, on the last Business Day of each calendar month: (c) Plantation and Arthur Fitzwilliam undertake that all cash received by Plantation in respect of the Plantation Project (save for any cash received in relation to sales made before the date of this Restructuring Agreement); shall be paid to the Bank to be applied towards the Rescheduling Amount.” on the last Business Day of each calendar month: shall be paid to the Bank to be applied towards the Rescheduling Amount.”

on the last Business Day of each calendar month:

[56]Clause 8 (“Security”) then addresses the issue of security, stating (again where relevant):

“8.1 As security for their respective obligations under this Restructuring Agreement, the Guarantors shall grant security as set out below. 8.2 Plantation shall (and Arthur Fitzwilliam shall procure that Plantation shall) grant to the Bank: (a) a first ranking charge, by way of conditional assignment, of the Lease. For the avoidance of doubt such security shall not encompass assets of Plantation not forming part of the development contemplated in the Lease; and (b) a first ranking charge by way of assignment of the benefit of: (i) the Plantation Villa Receivables; (ii) the Plantation Villa Proceeds; and (iii) the Earmarked Plantation Receivables, provided that: (iv) prior to the enforcement of the charge: (A) Plantation Villa Receivables may be collected in by Plantation in the ordinary course and dealt with in accordance with the terms of this Restructuring Agreement; and (B) the Earmarked Plantation Proceeds shall be available to be applied for those Earmarked Plantation Proceeds purposes; and (v) the charge shall not be enforceable against Escrow Proceeds for so long as they are held by Plantation in escrow.”

It was pursuant to clause 8 that Plantation entered into the Conditional Assignment to which I refer later. (a) a first ranking charge, by way of conditional assignment, of the Lease. For the avoidance of doubt such security shall not encompass assets of Plantation not forming part of the development contemplated in the Lease; and (b) a first ranking charge by way of assignment of the benefit of: (i) the Plantation Villa Receivables; (ii) the Plantation Villa Proceeds; and (iii) the Earmarked Plantation Receivables, provided that: (iv) prior to the enforcement of the charge: (A) Plantation Villa Receivables may be collected in by Plantation in the ordinary course and dealt with in accordance with the terms of this Restructuring Agreement; and (B) the Earmarked Plantation Proceeds shall be available to be applied for those Earmarked Plantation Proceeds purposes; and (v) the charge shall not be enforceable against Escrow Proceeds for so long as they are held by Plantation in escrow.”

[57]Clause 11 then goes on to deal with “Additional Funding”, an issue which clearly had to be dealt with given that the ability of Mr Ridley and Mr Cornelius to continue with the funding which they had until then been providing to Plantation using DIB’s monies (albeit unbeknown to Mr Fitzwilliam) was no more. With this in mind, DIB agreed, subject to certain conditions, to make available to Plantation a standby loan facility of up to US$50 million. Hence, clause 11 provides as follows: “11.1 Subject to such consideration, based on due diligence in respect of the Plantation Project, as a commercially reasonable lender would be expected to have (acting consistently with Sharia law), the Bank agrees to make available to Plantation the Standby Loan Facility. 11.2 Any such Standby Loan Facility shall be on commercially reasonable terms (having regard to the requirement that any terms are consistent with Sharia law) to be agreed between the Bank and Plantation and shall include a drawdown ratio such that:(a) in the first 120 days and up to a maximum of US$l5million after the facility is made available US$1 shall be available for drawdown against each US$1 actually repaid against the Rescheduling Amount; and

(b) thereafter US$1 shall be so available for each US$3 so repaid subject to air overall maximum facility limit of US$50 million. 11.3 The purpose of any such Standby Loan Facility shall be principally to finance the building of infrastructure for the Plantation Project so as to facilitate timely and full repayment of the Rescheduling Amount, and accordingly it shall be an event of default under the Standby Loan Facility (requiring immediate repayment of the Standby Loan Facility) if a Plantation Enforcement Event occurs.” (a) in the first 120 days and up to a maximum of US$l5million after the facility is made available US$1 shall be available for drawdown against each US$1 actually repaid against the Rescheduling Amount; and (b) thereafter US$1 shall be so available for each US$3 so repaid subject to air overall maximum facility limit of US$50 million.

[58]In addition, clause 9 (“Refinancing of Secured Assets”) contemplates that “further third party funding” might become available, with DIB being required in such circumstances to “act as would a commercially reasonable financier” in deciding whether to allow any security required as a condition of such third party funding to rank ahead of DIB’s security and provision being made in the event of any dispute for an expert to decide whether DIB was acting in such a manner. Clause 9 is in the following terms: “9.1 In the event that further third party funding becomes available in respect of the Plantation Project (and Plantation shall act as would a commercially reasonable developer in seeking and negotiating any such funding) the Bank shall act as would a commercially reasonable financier (having regard to the requirement that any action is consistent with Sharia law) in such circumstances in deciding whether to allow any security required by such third party to rank ahead in priority of the Bank’s security, including giving its cooperation to actions taken pursuant to clause 10 (Further Assurances) in creating sub-leases of the land comprising the Plantation Project. 9.2 In determining the reasonableness of the Bank’s response to proposals for refinancing of the Plantation Project, regard shall be had to the following factors:(a) the amount, terms and purpose of the proposed new funding;

(b) the realisable value of the collateral remaining available to the Bank of satisfaction of any prior secured creditor claims against the Plantation Project shall both before and after any proposed refinancing be not less than the aggregate of $260 million (or the balance outstanding on the Rescheduling Amount if lower) plus the outstanding balance, if any, on the Standby Loan Facility;

(c) the working capital requirements of the Plantation Project and, in particular but not limited to, the amount and timing of any drawdowns on the Standby Loan Facility shall not be materially adversely affected by the proposed refinancing; and

(d) that the purpose of the Standby Loan Facility shall remain achievable in the reasonable opinion of the Bank. 9.3 In responding to any proposed funding and security under clause

9.1 the Bank shall give a written account of its reasons by reference to the factors described in clause

9.2 together with any other factors material in the Bank’s decision. 9.4 Any dispute as to whether the actions of the Bank under this clause 9 with those of a commercially reasonable financier should be determined by an independent expert appointed by the president for the time being of the Chartered Institute of bankers …”. (a) the amount, terms and purpose of the proposed new funding; (b) the realisable value of the collateral remaining available to the Bank of satisfaction of any prior secured creditor claims against the Plantation Project shall both before and after any proposed refinancing be not less than the aggregate of $260 million (or the balance outstanding on the Rescheduling Amount if lower) plus the outstanding balance, if any, on the Standby Loan Facility; (c) the working capital requirements of the Plantation Project and, in particular but not limited to, the amount and timing of any drawdowns on the Standby Loan Facility shall not be materially adversely affected by the proposed refinancing; and (d) that the purpose of the Standby Loan Facility shall remain achievable in the reasonable opinion of the Bank.

[59]Clause 12 (“Release from liability”) then follows, providing in relation to Mr Fitzwilliam:

“12.1 In consideration of the Third Party Guarantee and the Plantation Security each of the Bank, the Company, the CCH Individual Guarantors and the Parent hereby irrevocably waives and compromises any and all claims, whether existing or future, known or unknown, it has or may have against each of Plantation and Arthur Fitzwilliam arising from or in connection with the Agency Agreements and the transactions contemplated by the Agency Agreements, provided that any claims in respect of Proceeds Assets shall not be waived or compromised unless expressly done so in writing by the Bank. 12.2 Each of the Bank, the Company, the CCH Individual Guarantors and the Parent acknowledges that each of Plantation and Arthur Fitzwilliam have entered into this Restructuring Agreement without any admission of liability with respect to any allegations that monies received by them have been misappropriated from the Bank with their knowledge or complicity.”

[60]Clause 16 then deals with certain “Corporate Covenants”:

“General On the Effective Date each of the Company, the Parent and Plantation covenants on its own behalf that it will: … (a) promptly give notice to the Bank of the occurrence of any Event of Default or any other event which, with the giving of notice or lapse of time or both or the satisfying of other conditions would constitute an Event of Default; … (d) provide the Bank within 180 days after the end of each of its financial years with copies of its annual profit and loss accounts, balance sheet, cash flow statements and annual report, to be audited by auditors acceptable to the Bank and to be certified by an officer of the Company, Parent or Plantation is giving a true and fair view of its financial condition as at the end of the period to which such statements relate; (e) provide the Bank with such other financial or other information as the Bank may reasonably require from time to time; (f) obtain, observe and renew all such authorisations consents and licenses which are required in relation to its business; … .”

[61]Clause 18, which is especially significant in view of the dispute concerning DIB’s alleged entitlement to do what it did in July 2008, goes on to deal with “Events of Default and Enforcement Events”, providing (where relevant) as follows: “Events 18.1 Each of the following will be an Event of Default: (a) If any amount payable in respect of a Repayment Date is not paid in the manner and at the time provided in this Restructuring Agreement save that: (i) there shall not be an Event of Default under this clause 18.1(a) if the amount paid to the Bank in respect of a Repayment Date represents 90% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months after the Repayment Date to which it relates; and (ii) no Plantation Enforcement Event shall arise consequent upon an Event of Default under this clause 18.1(a) if, during the 240 day period immediately following the Effective Date the amount paid to the Bank in respect of a Repayment Date falling within that period represents 50% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months of the Repayment Date to which it relates; … (d) If any Guarantor fails to perform any of its obligations other than those described in paragraph (c) under this Restructuring Agreement or any of its Security Documents or any other Security Provider fails to perform any of its obligations under any of its Security Documents and, in either case such failure (if capable of remedy in the opinion of the Bank) remains unremedied to the satisfaction of the Bank for 15 Business Days after notice requiring its remedy has been given by the Bank to the relevant Guarantor or the relevant Security Provider; (e) If any indebtedness of a Guarantor or any other Security Provider becomes due and payable or capable of being declared due and payable prior to its due date or any indebtedness of a Guarantor or any other Security Provider is not paid on its due date; (f) If a Guarantor or any other Security Provider (without the prior written consent of the Bank) stops payment of its debts or ceases or threatens to cease to carry on its business or is unable to pay its debts as they fall due or is deemed unable to pay its debts or enters into any arrangements with its creditors generally; (g) If a Guarantor or any other Security Provider becomes insolvent or is in liquidation or administration or subject to any other insolvency procedure in any jurisdiction or a receiver, manager, trustee, custodian or analogous officer is appointed in respect of all or any part of its property, undertaking or asset; …”. (a) If any amount payable in respect of a Repayment Date is not paid in the manner and at the time provided in this Restructuring Agreement save that: (i) there shall not be an Event of Default under this clause 18.1(a) if the amount paid to the Bank in respect of a Repayment Date represents 90% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months after the Repayment Date to which it relates; and (ii) no Plantation Enforcement Event shall arise consequent upon an Event of Default under this clause 18.1(a) if, during the 240 day period immediately following the Effective Date the amount paid to the Bank in respect of a Repayment Date falling within that period represents 50% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months of the Repayment Date to which it relates; … (d) If any Guarantor fails to perform any of its obligations other than those described in paragraph (c) under this Restructuring Agreement or any of its Security Documents or any other Security Provider fails to perform any of its obligations under any of its Security Documents and, in either case such failure (if capable of remedy in the opinion of the Bank) remains unremedied to the satisfaction of the Bank for 15 Business Days after notice requiring its remedy has been given by the Bank to the relevant Guarantor or the relevant Security Provider; (e) If any indebtedness of a Guarantor or any other Security Provider becomes due and payable or capable of being declared due and payable prior to its due date or any indebtedness of a Guarantor or any other Security Provider is not paid on its due date; (f) If a Guarantor or any other Security Provider (without the prior written consent of the Bank) stops payment of its debts or ceases or threatens to cease to carry on its business or is unable to pay its debts as they fall due or is deemed unable to pay its debts or enters into any arrangements with its creditors generally; (g) If a Guarantor or any other Security Provider becomes insolvent or is in liquidation or administration or subject to any other insolvency procedure in any jurisdiction or a receiver, manager, trustee, custodian or analogous officer is appointed in respect of all or any part of its property, undertaking or asset; …”.

[62]Clause 18.2 (“Plantation Enforcement Event”) then provides as follows:

“Without prejudice to any other remedy of the Bank, the Bank may not exercise its rights under the Plantation Security until the occurrence of a Plantation Enforcement Event.”

Clause 18.3 states: “In the event that the Bank, having enforced the Plantation Security, seeks to sell the Lease, the Bank agrees that: (a) prior to commencing the sales process it will commission a valuation by an independent real estate valuer (the ‘Valuer’) of international reputation and standards to determine the target market price; (b) it will provide a copy of its written instructions to the Valuer to Arthur Fitzwilliam within 7 days of the dispatch of those instructions; (c) Arthur Fitzwilliam may make such reasonable written representations as he deems appropriate to the Valuer; (d) it will market the Lease for a reasonable period (taking into account such advice as tendered by the Valuer) prior to entering into any sale agreement in respect of the Lease; (e) it will seek to achieve best value for the sale of the Lease and shall consider all offers received by it (including any offers received from Arthur Fitzwilliam, his affiliate or from affiliates of the Bank); (f) it will honour all contracts for the sale of villa plots entered into by Plantation and such other material contracts of any nature whatsoever entered into by Plantation prior to the Effective Date of disclosed in schedule seven and, in respect of such contracts entered into after the Effective Date, of which has been notified and agreed to in writing; and (g) any surplus remaining from the sale proceeds after the Rescheduling Amount has been repaid will be returned to Plantation. Clause 18.3 states: (a) prior to commencing the sales process it will commission a valuation by an independent real estate valuer (the ‘Valuer’) of international reputation and standards to determine the target market price; (b) it will provide a copy of its written instructions to the Valuer to Arthur Fitzwilliam within 7 days of the dispatch of those instructions; (c) Arthur Fitzwilliam may make such reasonable written representations as he deems appropriate to the Valuer; (d) it will market the Lease for a reasonable period (taking into account such advice as tendered by the Valuer) prior to entering into any sale agreement in respect of the Lease; (e) it will seek to achieve best value for the sale of the Lease and shall consider all offers received by it (including any offers received from Arthur Fitzwilliam, his affiliate or from affiliates of the Bank); (f) it will honour all contracts for the sale of villa plots entered into by Plantation and such other material contracts of any nature whatsoever entered into by Plantation prior to the Effective Date of disclosed in schedule seven and, in respect of such contracts entered into after the Effective Date, of which has been notified and agreed to in writing; and (g) any surplus remaining from the sale proceeds after the Rescheduling Amount has been repaid will be returned to Plantation.

Clause 18.3 states:

[63]This is followed by clause 18.4 (“Remedies”), an acceleration provision: “(a) If an Event of Default occurs pursuant to a breach of clause 18.1(a) or (h)-(k) for any reason or pursuant to a breach of clause 18.1(b)-(g) in relation to a failure by Plantation to perform its obligations the Bank may:(i) by notice to all or any of the Guarantors ('Notified Guarantors"), demand and declare the Rescheduling Amount and all other sums owed by the Notified Guarantors under this Restructuring Agreement to be immediately due and payable by the Notified Guarantors, and the same will become so immediately due and payable by the Notified Guarantors; and/or

(ii) subject to clause 18.2 (Plantation Enforcement Events) take steps to enforce all or any of the Security Documents to which Notified Guarantors are party (without prejudice to such rights as it may already have had to take such steps prior to the occurrence of an Event of Default). …”. (i) by notice to all or any of the Guarantors ('Notified Guarantors"), demand and declare the Rescheduling Amount and all other sums owed by the Notified Guarantors under this Restructuring Agreement to be immediately due and payable by the Notified Guarantors, and the same will become so immediately due and payable by the Notified Guarantors; and/or (ii) subject to clause 18.2 (Plantation Enforcement Events) take steps to enforce all or any of the Security Documents to which Notified Guarantors are party (without prejudice to such rights as it may already have had to take such steps prior to the occurrence of an Event of Default). …”.

[64]Clause 19 (“Conditions Subsequent”) then provides (again where relevant which is to say as regards the Plantation Project):

“The Restructuring Agreement is subject to the following conditions subsequent that, within 30 days of the date of this Restructuring Agreement: … 19.2 The landlord in relation to the Plantation Project consenting to the conditional assignment of the Lease and confirming in writing to the Bank that at the date of giving such consent, there has been no material breach of the Lease by Plantation; … … 19.5 If any of the Conditions Subsequent are not satisfied within 30 days of the date of the Restructuring Agreement then, notwithstanding any other clause of the Restructuring Agreement, and without prejudice to clause 19.4, the Restructuring Agreement shall be of no force and effect.”

[65]Clause 21 is concerned with “Termination” and provides:

“21.1 Unless otherwise required by Law, this Restructuring Agreement shall terminate only upon the occurrence of the later of: (a) the repayment in full to the Bank of the Rescheduling Amount; (b) payment to the Bank of the Profit. 21.2 Upon termination pursuant to clause 21.1 the Bank shall be required to surrender and or return guarantees, indemnities, options, property or security granted to it, pursuant to this Restructuring Agreement, by any of the parties or any third party prior to the date of termination. 21.3 Upon the termination of the entire Restructuring Agreement, otherwise than by clause 21.1, (including any termination of the Restructuring Agreement being required by operation of Law, notwithstanding clause 25.2 (Severability), due to invalidity, illegality or unenforceability) the parties shall cease to have any further obligations to each other hereunder, provided always that: (a) the provisions of the following clauses shall remain in full force and effect: 1 (Definitions), 2 (Interpretation), 4 (Rescheduling Amount), 5 (Acknowledgement of Debt), 6 (Guarantee and Indemnity), 8 (Security), 13 (Proceeds Assets), 22 (Costs), 23 (Payments), 25.1 (Delays), 25.2 (Severability), 25.3 (Confidentiality), 25.4 (Reservation of Rights), 25.5 (Specific Performance), 27 (Governing Law, Jurisdiction and Arbitration); (b) the Bank shall not be required to surrender, refund or return any: (i) payments made to it; or (ii) guarantees, indemnities, options, property or security granted to it, pursuant to this Restructuring Agreement or otherwise, by any of the parties or any third party prior to the date of termination; and (c) such termination will be without prejudice to any accrued rights of any party against any other party arising under or reserved notwithstanding this Restructuring Agreement.” (a) the repayment in full to the Bank of the Rescheduling Amount; (b) payment to the Bank of the Profit. (a) the provisions of the following clauses shall remain in full force and effect: 1 (Definitions), 2 (Interpretation), 4 (Rescheduling Amount), 5 (Acknowledgement of Debt), 6 (Guarantee and Indemnity), 8 (Security), 13 (Proceeds Assets), 22 (Costs), 23 (Payments), 25.1 (Delays), 25.2 (Severability), 25.3 (Confidentiality), 25.4 (Reservation of Rights), 25.5 (Specific Performance), 27 (Governing Law, Jurisdiction and Arbitration); (b) the Bank shall not be required to surrender, refund or return any: (i) payments made to it; or (ii) guarantees, indemnities, options, property or security granted to it, pursuant to this Restructuring Agreement or otherwise, by any of the parties or any third party prior to the date of termination; and (c) such termination will be without prejudice to any accrued rights of any party against any other party arising under or reserved notwithstanding this Restructuring Agreement.”

[66]Lastly:(1) The RSA contains an “Entire Agreement” provision, clause 25.6, as follows: “This Restructuring Agreement (including the schedules and appendices hereto), the Fitzwilliam Cornelius Agreement and the Rescheduling Documents whether in existence at the execution hereof or executed subsequently represents the entire understanding and agreement between the parties with respect to the subject matter hereof and, except as otherwise expressly provided in this Restructuring Agreement, can be amended, supplemented or changed and any provision hereof can be waived only by written instrument making specific reference to this Restructuring Agreement and signed by each party.”

(2) Clause 27 provides for the application of English law “save in so far as inconsistent with the principles of Sharia Law” and for the “exclusive jurisdiction of the English Courts with respect to all disputes arising out of or in connection with the terms of this Restructuring Agreement”.

[67]I shall obviously have to turn to the RSA at a later stage when addressing the issues which are in dispute in these proceedings. Suffice to say for present purposes that there are various construction-related matters which fall to be decided since the parties do not agree as to how a number of the RSA provisions are to be construed.

The Conditional Assignment

[68]As provided by clause 8.2(a) of the RSA and by clause 19.2 also (the provision dealing with conditions subsequent), Plantation was obliged to provide DIB as security a first ranking charge by way of conditional assignment of the Lease.

[69]The Conditional Assignment was entered into the same day as the RSA: 19 August 2007. It provides in clause 1 (“Background”) as follows:

“1.1 Pursuant to a land lease agreement dated 25 January 2004 made between Dubai Development and Investment Authority (‘DDIA’) and Arthur Panayotis Fitzwilliam (‘Mr Fitzwilliam’) certain land located at DubailandTM, Dubai, UAE (the ‘Premises’) has been released by the DDIA to Mr Fitzwilliam (the ‘Lease’) for the purposes of constructing a polo club and equestrian Centre, together with developing various plots into residential villas and certain other permitted structures (the ‘Project’). 1.2 Following the execution of the Lease, DDIA have assigned all its rights, title and interest in the lease to Dubai Tourism Development Company LLC by virtue of an assignment and assumption agreement dated 21 November 2004. Furthermore, Mr Fitzwilliam has subsequently assigned all its rights, title and interest in the lease to Plantation by virtue of an assignment and assumption agreement dated 15 December 2004. Dubai Tourism Development Company LLC (as landlord) and Plantation (as tenant) have now acquired their interest in the Lease by such assignment and assumption agreement aforementioned. Dubai Tourism Development Company LLC has since changed its name to Dubai Land LLC and continues to hold registered title to the land that is the subject of the Lease. 1.3 DIB and Plantation, together with other parties have on 19 August 2007 entered into an agreement whereby Plantation assumes certain obligations in respect of sums owing to DIB (the ‘DIB Agreement’). 1.4 Plantation has agreed to execute this Agreement with the assignment of its interest in the Lease in order to provide DIB with security in respect of its obligations under the DIB Agreement. 1.55 For the purposes of this Agreement, the expression Plantation Enforcement Event means an event of default pursuant to the DIB Agreement that would entitle DIB to exercise its rights to sell the Lease pursuant to, and on the terms set out in, Clause 18.3 of the DIB Agreement.”

[70]Clause 2.1 provides:

“In consideration of DIB entering into the DIB Agreement and subject to the terms and conditions of this Agreement and the effect of the provisions of clause 3 hereof, Plantation hereby irrevocably assigns its rights, interest and title under the Lease to DIB. For the avoidance of doubt, the assignment of the Lease shall occur, if, in the reasonable opinion of DIB, a Plantation Enforcement Event has occurred and a notice is served by DIB to DL [Dubailand] pursuant to Clause 2.3.”

This is followed by clause 2.3 as follows:

“In consideration of the undertakings of Plantation and DIB to DL [Dubailand] hereunder, DL [Dubailand] hereby consents to and acknowledges the assignment of the lease upon DIB issuing a written notice to DL [Dubailand] certifying that in DIB’s opinion a Plantation Enforcement Event has occurred under the DIB Agreement.”

Clause 2.5 then states:

“For the avoidance of doubt, the Parties agree that the assignment of the Lease shall only occur upon the occurrence of the event stated in Clause 2.3. DL [Dubailand] and Plantation acknowledge and agree that they will not be entitled to raise any objection to an assignment of the Lease occurring pursuant to the provisions of Clause 2.3.”

This is followed by clause 2.3 as follows: Clause 2.5 then states:

Post-RSA investigations by DIB and the FAD: October 2007 to April 2008

[71]In the above review of the RSA terms, I did not include clause 3 (“Standstill”). It is appropriate that I should, however, do so now because it provides the context for what followed the parties’ entry into the RSA, which is that DIB carried out investigations to ensure that it could recover what it had lost and that the Financial Audit Department of the Ruler’s Court in Dubai, the Diwan, (the ‘FAD’) also became involved. I deal with these matters at this juncture before then going on to address the progress of the Plantation Project and, in particular, its financial wherewithal by 9 June 2008 when DIB served its notice on Plantation setting out various alleged breaches of the RSA. After addressing this issue, I shall consider the circumstances in which Mr Fitzwilliam came to be arrested on 6 June 2008 and, in particular, whether DIB was behind that arrest.

[72]The definition of “Standstill Period” in clause 1 is as follows:

“the period commencing on the Effective Date and ending upon the later of notification of: (a) a standstill termination event to the Company and the Parent; and (b) in accordance with clause 3.5, provided that the Standstill Period shall automatically end upon the occurrence of any of the events referred to in clauses 18.1(f), (g), (h) or (j) (Events) in respect of the Company or the Parent, regardless of whether any notification is given.”

Clause 3 itself then is in the following terms:

“3.1 Subject to the terms of this Restructuring Agreement, the Bank agrees with the Company and the Parent that, during the Standstill Period, it will not: (a) exercise as against the Company and the Parent any rights which it may have under the Agency Agreements as a consequence of or in relation to any Agency Defaults; (b) petition for or initiate any insolvency or reorganisation procedure in relation to the Company or the Parent; or (c) make any claim or demand on the Company or the Parent in an amount such that such claim or demand would cause the Company or the Parent become insolvent on a cash flow or balance sheet basis. 3.2 Upon the expiry of the Standstill Period the Bank will be entitled forthwith and without further notice to any party to this Restructuring Agreement to exercise any and all rights which it may have against the Company or the Parent, subject in either case to such releases arising under clause 12 as have at the time in question become unconditional.”

Clause 3.4 then provides:

“During the Standstill Period, each of the Company and the Parent shall allow the Bank to assess the financial position of the CCH Corporate Guarantors who shall provide all assistance as may be reasonably required by the Bank to facilitate prompt and full collection of the CCH Agency Receivables, including but not limited to: (a) allowing the Bank, its agents, advisers or delegates of access to its books and records upon reasonable terms and on reasonable notice; (b) keeping the Bank regularly informed as to the progress made in collecting the CCH Agency Receivables; (c) providing adequate information and written confirmation of authority and beneficial entitlement to enable the Bank to contact and negotiate directly with the party oblige yours in respect CCH Agency Receivables terms for their repayment. The Bank acknowledges that prior to making its first contact with any such third party obligors it will, where practicable, consult and coordinate with the Company and/or the Parent as applicable; and (d) giving such directions as may be requested in writing by the Bank from time to time that such third party obligors make repayment direct to the Bank at its direction rather than to the Company or to the Parent.”

Clause 3 itself then is in the following terms: (a) exercise as against the Company and the Parent any rights which it may have under the Agency Agreements as a consequence of or in relation to any Agency Defaults; (b) petition for or initiate any insolvency or reorganisation procedure in relation to the Company or the Parent; or (c) make any claim or demand on the Company or the Parent in an amount such that such claim or demand would cause the Company or the Parent become insolvent on a cash flow or balance sheet basis. Clause 3.4 then provides:

[73]The investigations which followed the RSA are helpfully described by Flaux J in his judgment at [35] to [48]. These are passages which were plainly based on the evidence given by Mr Lyons in the trial over which Flaux J presided. In his witness statement in the present proceedings Mr Lyons covered the same territory. As I have previously observed, in cross-examination Mr Lyons was not challenged in relation to these matters. Mr Lyons explained that, since the RSA had been negotiated and signed in a short period of time, DIB had not had an opportunity to test the accuracy or otherwise of Mr Ridley’s explanations as to how the funds advanced by DIB had been dispersed. He referred specifically to the fact that in clause 15.2 of the RSA Mr Ridley and Mr Nil represented and warranted that the receivables held by CCH which could be recovered were “in the region of US$150 million”, and that in clause 17.6 Mr Ridley and Mr Cornelius were required to represent and warrant that “in the region of US$340 million” had been utilised to acquire “Proceeds Assets” (namely assets acquired with DIB’s funds). These provisions reflected what Mr Ridley had told Mr Lyons during the course of the RSA negotiations as to how DIB’s funds had been deployed. Mr Lyons referred also to the RSA provisions concerned with disclosure as contained in clause 17, the details of which I need not set out here but which required Mr Nil, Mr Cornelius and Mr Ridley to provide various information within certain time periods of the Effective Date. Mr Lyons went on to explain that between early October 2007 and the spring of 2008 he and his assistant, Mr Dooley, spent a considerable amount of time seeking to understand where DIB’s funds had been utilised.

[74]Plainly, as Mr Anderson QC submitted, DIB had a legitimate interest in getting to the bottom of what had happened, not least so as to ensure that it made a recovery from the sources to which it was entitled to look. The amount repayable under the RSA was, after all, over US$501 million, which is a very substantial amount. To that end, DIB’s Board of Directors met on 30 October 2007 and resolved as follows (as set out in “Resolution No. 31 for the year 2007”, a document dated 6 November 2007 which was signed by Dr Muhammed Khalfan bin Khirbash, the Chairman):

“The Board has resolved as follows: I. The Board approves in principle the agreement for settlement and restructuring of the financing portfolio with CCH-GMPH and others dated 19/8/2007 and to direct that executive management to submit its report in light of the following directions and instructions: 1. Follow-up and resolve the outstanding dispute between the Bank and Saudi Hollandi Bank and finalise the steps taken by the Bank immediately upon the signature of the settlement agreement, including procedures and meetings, in preparation for incorporating them into the agreement without prejudice to the Bank’s rights and pursuant to the terms and conditions of the agency agreement concluded between the two parties. 2. Submit detailed information concerning the real estate projects presented as guarantees for the financing portfolio. An independent real estate valuation of the Pleantation [sic] project must be carried out. 3. Instruct the Auditing and Follow-up Committee of the Board of Directors to conduct an investigation, determine the responsibilities of departments and employees, take required measures, make necessary recommendations, and advise the Board of a summary of its actions. 4. Under the settlement agreement, the financing portfolio shall be subjected to an accounting re-classification with the aid of the Banks’ [sic] external auditors, which requires the determination of its impacts on the balance sheet, especially with regards to reserves and disclosure requirements. II. This Resolution shall be implemented as of today’s date and all relevant parties are properly implemented as applicable.”

This was what resulted in the setting up of committee which was initially, as Mr Kamal explained, described as the ‘Project Stallion Task Force’ but which in the middle of 2008 was reconstituted and renamed as simply the ‘Task Force’.

[75]Mr Lyons went on in his witness statement to refer to Mr Cornelius as having provided substantial information, to Mr Ridley as having provided some information but as having failed to address what he described as a US$20 million “hole”, and to Mr Nil as having provided only minimal and manifestly incomplete and inadequate disclosure. In addition, various meetings took place with Mr Cornelius and Mr Ridley in late November 2007, in Mr Ridley’s case more than one meeting, during which details of the way in which the fraud had been committed were revealed. Mr Lyons went on then to explain that on 8 January 2008 DIB’s then Managing Director, Khaled Al Kamdam, told him that he was required to meet with the FAD that afternoon. This he did, meeting amongst others, the FAD’s Director General, Mr Yasar Amiri. Mr Lyons’ evidence is that it was plain from the questions which he was being asked that the FAD was deeply suspicious of the RSA and “did not seem to understand why the Bank would wish to reach a compromise, rather than simply reporting the fraud to the criminal authorities”. Mr Lyons explained the commercial rationale which lay behind DIB’s entry into the RSA and that DIB hoped that it would be able to recover all or at least a very substantial proportion of the funds which it had lost. However, the FAD apparently still considered that DIB had been wrong to reach the compromise which it had done.

[76]Mr Lyons then explained that, the following week, he and Mr Dooley met with Mr Ridley and Mr Cornelius on 15 and 16 January 2008 in Bahrain. One of the key purposes of the first of these meetings, with Mr Ridley, was apparently to explore with Mr Ridley the substantial “hole” that had been identified in relation to the disclosure provided by him. It was during the course of this meeting with Mr Ridley on 15 January 2008 that Mr Ridley explained that certain of the funds misappropriated from DIB had been used to pay bribes or corrupt payments to certain of DIB’s staff. Mr Ridley, however, refused to tell Mr Lyons or Mr Dooley which of DIB’s employees had received such bribes or how much of the misappropriated funds had been spent on such bribes. Mr Ridley stated that he was not willing to behave like a “sneak” and could not be persuaded to provide any further details. A few weeks later, Mr Lyons explained, Mr Dooley made contact with him from SJ Berwin’s offices, where he was reviewing various documents disclosed by Mr Ridley and Mr Cornelius, to say that he had identified a bank statement of one of Mr Ridley’s companies, Watamu Trading, in respect of which the words “Omair Marooj Habib Bank” had been written against a particular payment. Mr Marooj had previously been a senior DIB employee with oversight of DIB’s relationship with CCH, and this appeared therefore to be documentary evidence of a bribe having been paid by Mr Ridley to Mr Marooj.

[77]Mr Lyons went on to explain that at around the same time he learned from DIB that the FAD was keen to know what, if any, corrupt payments had been made to employees of DIB. Mr Lyons discussed the matter with Mr Ridley’s solicitor, Mr Tim Taylor QC at SJ Berwin, suggesting that Mr Ridley should ‘come clean’ but Mr Taylor was reluctant to allow his client to reveal to the FAD that they had been paying bribes to DIB employees. I can pick up the narrative from here by referring to Flaux J’s judgment at [46] and [47], Flaux J (unlike me) having heard evidence from Mr Nil:

“Mr Lyons discussed this with the Bank’s then head of the legal department, Mr Al Shamsi, who said that whilst the FAD might be prepared to give assurances, it was highly unlikely they would be in writing. It was arranged for Mr Taylor to meet FAD on 8 February 2008. Prior to the meeting, the FAD made clear that they wanted access to the second and third defendants' documents immediately after the meeting. As Mr Taylor recorded in an email to Mr Lyons after the meeting and confirmed in his oral evidence, the FAD were suspicious of the RSA, which one of them described as a money laundering document. Mr Taylor could not get even a verbal assurance about immunity and there were unsubtle hints about dire consequences if his clients did not provide information to the FAD. He feared they were pursuing an ill-conceived witch hunt against the then chairman of the Bank, Mr Kharbash, who had had a close relationship with Mr Nil senior and about whom there were rumours in Dubai that he was about to be dismissed. In the light of the fact that Mr Taylor did not receive any assurances from the FAD, [Mr Ridley] continued to refuse to provide any disclosure concerning bribes paid to the Bank’s employees. However, as Mr Lyons explains in his witness statement, he and Mr Taylor were conscious that the demand for information by the FAD, if not met, could lead to the arrest of the second and third defendants. Accordingly, during the spring of 2008, there were discussions between them and Howes Percival about a basis upon which [Mr Nil] could provide the necessary disclosure, in return for the Bank releasing CCH International Plc from its guarantee under the RSA. This came to nothing, although I have no doubt [Mr Nil] was well aware that bribes had been paid and to whom, despite his unimpressive denial of this in his oral evidence.”

[78]As I have mentioned, I shall return later to what happened next, specifically the arrests of Mr Ridley, Mr Cornelius and Mr Fitzwilliam. At that stage I shall deal with the suggestion which Plantation makes that the arrest of Mr Fitzwilliam was brought about at DIB’s instigation. The arrests took place some months later and so it is more appropriate to address them later, after first describing what Mr Lyons called in his witness statement the “souring of relations”, a term adopted by Flaux J in his judgment at [49] to [60]. In those passages, specifically at [49] to [52], Flaux J rejected the suggestion that there was a change of attitude towards the RSA and the desire to extricate DIB from it owing to a change in the senior management at DIB in the first half of 2008. This is an issue which I shall address later when dealing with the arrests rather than at this juncture. For now, I merely note that, in rejecting the suggestion to which I have referred, Flaux J accepted Mr Lyons’ evidence, on which he was not challenged before Flaux J nor before me, that the souring of relations which came about in the first half of 2008 was the result of DIB’s increasing concern that there was likely to be a repayment default under the RSA when the next repayment date was reached in early autumn 2008. As Mr Lyons put it in paragraph 17.1 of his witness statement (echoing essentially paragraph 174 of the witness statement which was before Flaux J):

“Whilst USD 60 million had been collected in the first few months after the RSA had been signed very little progress had been made since. Most concerningly, none of the Turkish receivables (totalling around USD 90 million) had been risk covered. It was from the Turkish assets, together with the sale of some of the Bahrain property (but not Marina West), that the first year’s recoveries had been expected to come.”

The Turkish receivables issue was, as Flaux J explained at [52], a reference to Mr Cornelius and Mr Nil having warranted in clause 15.12 of the RSA that to the best of their knowledge the value of the CCH Agency Receivables which could be recovered was US$150 million, yet none of the Turkish receivables representing about US$90 million of that figure had been recovered. Flaux J added by reference to certain evidence given by Mr Nil that he regarded his “attempt in cross-examination to suggest that he was only warranting the face value of the receivables as patently untrue” and that clearly “he was warranting what could be recovered”.

[79]Summarising Mr Lyons’ (unchallenged) evidence, Flaux J went on at [53] to say this:

“The extent to which that warranty would not be complied with emerged at a meeting in Bahrain on 18 March 2008 between [Mr Cornelius, Mr Ridley and Mr Nil], Mr Taylor and Mr Flannery of Howes Percival on the one hand and Mr Al Shamsi, Mr Lyons and Mr Dooley on the other. It became apparent that the Turkish receivables were highly unlikely to be recoverable because most of the debtors were distressed. It was agreed that the performance of the RSA might still be possible with a concerted effort by [Mr Cornelius, Mr Ridley and Mr Nil], but that there was now very little room for error. At that meeting, [Mr Ridley] also gave assurances that further receivables could be collected from Bills Express in Australia. However, in a conference call on 29 April 2008, he disclosed that US$14 million of receivables could not be collected from Bills Express after all, despite the previous assurance. As Mr Lyons says this increased the Bank’s concerns about the ability of [Mr Cornelius, Mr Ridley and Mr Nil] to continue to perform under the RSA.”

This reflects the evidence given by Mr Lyons before me also. Again that evidence was not challenged. Nor was the following passage in Mr Lyons’ witness statement at paragraph 17.8 (and again reflected in Flaux J’s judgment at [54]):

“I recall that in light of these difficulties Mr Taylor and I had discussed the ‘near miss’ provisions in clause 18.1(a) of the RSA (which gave the debtors three months to cure certain payment defaults). The situation was sufficiently serious that Mr Taylor had already suggested to me that the repayment obligations in the RSA might need to be ‘rescheduled’ to avoid a default.”

I agree with Mr Anderson QC that, in the circumstances, in the light of this unchallenged evidence, any suggestion on the part of Plantation that there was not by March or April 2008 a very real prospect of a payment default under the RSA taking place on 1 October 2008 as having an air of unreality about it.

[80]I have focused thus far on what DIB was doing in the post-RSA period and, as I say, this is an issue to which I shall return when dealing with the time period starting in May 2008 when Al Tamimi were instructed to act on DIB’s behalf to consider DIB’s position under the RSA, and going on to cover the arrests of Mr Ridley, Mr Cornelius and Mr Fitzwilliam in May/June 2008. I have only mentioned in passing what steps the FAD took after the RSA was entered into. I should now say something about this matter.

[81]The FAD was established by Law No.3 of 2007. As an institution in which the Dubai Government held a shareholding of greater than 25%, DIB was (and presumably still is) subject to FAD oversight by virtue of Article 7(3) of that Law. Indeed, as Mr Anderson QC pointed out in closing, Mr Cakebread expressly stated when cross-examining Mr Al Sharif that he did not mean to suggest that the FAD had been acting beyond their powers in relation to DIB. Nor was it suggested that DIB would have been entitled to withhold information requested by the FAD. Article 9, in particular, provides that the FAD “will perform the following within the limits of its competencies: 1. Investigating in the incidents of embezzlement and negligence, and in the financial violations detected by the [FAD] of by the Parties subject to audit, and searching for their reasons … .” The role and responsibility of position of the FAD were explained by Flaux J in his judgment at [39] to [41]:

“At this juncture it is necessary to outline the role and responsibility of the FAD. It was established by statute, Law no 3 of 2007, replacing an earlier body. As Mr Anderson QC submitted, a key aspect of its remit was the investigation of financial irregularities. Thus, Article 19 of the Law provided: ‘The following cases and incidents are considered financial violations that require investigation therein, whether detected by the [FAD] or by the Party subject to audit: […] 4. Any action, negligence or default that results in the payment of amounts unrightfully from funds subject to audit ... 5. Embezzlement of money under audit, or breach of trust, or fraud for the purpose of embezzlement, stealing or waste.’ Under Article 22, the staff of FAD had extensive rights of access to the documents and staff of an entity the subject of a FAD audit, confirming Mr Al Sharif's evidence that if the FAD asked the Bank for information, the Bank had to provide it: ‘The Director General or any employee authorised by him may audit any document, record or papers which he deems necessary for performing the audit duties completely, and he will have the right at any time to contact directly with the employees who work for the Party subject to audit, whether for the purposes of audit or investigation in the financial violations, and he may also get acquaintance with any document, record or papers that might be necessary for the investigation, and keep copies thereof, and interrogate any of the employees who may have relation to the detected financial violation.’ Furthermore, where an investigation by the FAD reveals the commission of a criminal offence, under Article 20(3) the Director-General of the FAD is under a positive duty to report to the Public Prosecutor: In case investigation in the financial violation has revealed the existence of a penal offence, the Director General should refer the papers to the Public Prosecution for taking whatever action it deems appropriate in this respect.’”

[82]As previously mentioned, it was Mr Lyons’ evidence that at his meeting with the FAD on 8 January 2008 he was informed that the FAD was “deeply suspicious of the RSA”. This is consistent also with the fact that Mr Taylor QC himself had a meeting with Mr Amiri, the FAD’s Director General, the following month. That meeting took place on 7 February 2008 and the next day Mr Taylor QC sent Mr Lyons an email in which he stated that he “gained the impression that they were generally more than a little suspicious of the whole Restructuring Agreement”. Later on, he referred to the FAD having a concern to “make sure that the government’s stake in DIB is protected by DIB being repaid”, stating that as far as that issue was concerned “I tried to explain how the RSA took care of that more effectively than any civil litigation or penal measure could have achieved”. He explained that the FAD “seemed pretty sceptical about that and not necessarily to appreciate that, even if any money had found its way back to Bank employees it would have to be repaid under the RSA anyway and DIB could not expect to make a double recovery by getting the same money or its value back twice from two separate sources”. He added that his “fear is that these guys … are suspicious that the Bank may not have been as rigorous as it might have been in fixing this problem after it had surfaced”.

[83]That the FAD had become interested in the RSA by very early 2008 is, accordingly, clear. Although Mr Cakebread was inclined to suggest that the FAD only became interested, and anyway only started investigating, some months later, in April or May 2008, that cannot be right in the light of the evidence to which I have referred. It is, I agree with Mr Anderson QC, hardly surprising that the FAD would be interested in investigating what was a very large fraud. Nor, I also agree with Mr Anderson QC, in view of the relationship between Mr Fitzwilliam, Mr Cornelius and Mr Ridley, combined with the fact that DIB’s monies had found their way into the Plantation Project, is it surprising that the FAD would wish to look into the Plantation Project. The fact that Mr Fitzwilliam was willing to enter into the RSA, and so take on the substantial obligations which he did, was also, no doubt, something which the FAD considered worthy of inquiry. Although Mr Fitzwilliam was ultimately acquitted of wrongdoing, the FAD might legitimately have suspected that he was aware of what Mr Cornelius and Mr Ridley had done with DIB’s funds.

[84]It is possible that the FAD even started its investigations at an earlier stage than January 2008. This is because, as Flaux J recorded in his judgment at [38], Lt-Col Belhaul of the Police General Headquarters in Dubai made a statement to the Public Prosecutor in Dubai, in which he stated as follows:

“… either in August or in September 2007, we received information from one of our secret sources in the Bank that the Bank had encountered a large fraud resulting to the illicit seizure of a large amount of money approximately ‘501 million US Dollars’. Based on that information, we started inquisition and investigation procedures and it appeared that such piece of information exists with the Financial Audit Department. Accordingly, we formed a team with the Financial Audit Department to conduct further inquiry in order to reach to the means by which the fraud operation took place and those involved therein.”

Asked a little later about timings, he again seemed to suggest that the FAD investigation started “from August 2007” and continued “until we transferred the case to Public Prosecution in May 2008”. I suspect, however, that the real investigations must have started in the autumn of 2007 since it is perhaps not insignificant that the FAD only made contact with DIB in early January 2008 and, furthermore, that the FAD was pressing for information in 2008 rather than before. I repeat, however, that I do not consider it right to suggest that the FAD only started looking into matters as late as April or May 2008. What is, in any event, clear is that by the time that the case was transferred by the Police and the FAD to the Public Prosecutor in May 2008, no disclosure having been made by Mr Cornelius, Mr Ridley and Mr Nil of the bribes which had been paid, including importantly who had received those bribes, what Mr Lyons and Mr Taylor QC had thought might happen as a result did happen: Mr Cornelius and Mr Ridley were arrested (as was, indeed, Mr Fitzwilliam subsequently also). This is a topic, I repeat, to which I shall return.

Financial position of the Project, specifically but not limited to June/July 2008

[85]I come on now to deal with the financial position of the Project. This is a matter which is particularly relevant as at June/July 2008 because that is when DIB sent Plantation its letter dated 9 June 2008 and subsequently, a month later, perfected the assignment by invoking clause 18.2 of the RSA and clause 2 of the Conditional Assignment. It is necessary, however, to set the financial position in that time period into context. This requires a consideration of the Project’s financial position both before and after the RSA was entered into in August 2007. Although it was in exploring these matters that Mr Anderson QC made criticisms in relation to Ms Sutherland’s financial management abilities and concerning her lack of relevant experience, criticisms which were in substantial part justified as it seems to me, nonetheless I do not find it necessary to go through every occasion when it was put to Ms Sutherland by Mr Anderson QC that she was somehow lacking. This is because what really matters for present purposes is what, in fact, the Project’s financial position was at particular stages, including most importantly as at June/July 2008, rather than whether Ms Sutherland was suitably qualified to do the job which she was doing or for that matter whether Mr Fitzwilliam was too detached from the day-to-day running of the Project (something alleged by DIB but disputed by both Mr Fitzwilliam and Ms Sutherland) or was overly optimistic and unrealistic as to the Project’s financial position.

[86]The starting point, and probably also as matters turned out the end point, when addressing the finances of the Project is to appreciate that Mr Fitzwilliam’s idea had always been that the Project would be financed through the sales of villa plots or at least very largely so. Ms Sutherland made this very point in her witness statement albeit suggesting that it was “not necessarily” the case that all of the Project’s funding was intended to come from villa plots sales. That she must be right about that is underlined by the fact that in June 2006 there was an attempt made to obtain a “Construction Loan” in the sum of AED 100 million. To this end, Jasper Capital on behalf of Plantation put together a proposal document which is instructive. This was at a stage when, as Ms Sutherland explained in her witness statement, the first of the polo pitches had been planted and was in use or was shortly to start being used. In addition, as stated in the proposal itself, there had been pre-sales of certain office plots and one villa plot (to a Mr Ezzat Jaffar). The proposal’s Executive Summary stated, amongst other things, as follows:

“Plantation will be developed over a twenty seven months period. The project completion date is planned for the 3rd quarter of 2010. The total financing requirement for a phased construction of the project is AED 1908 million and AED 2,622 million is assumed as revenues from pre-sales of luxury villas.”

A little later, after referring to the Project as being “promoted by Arthur Fitzwilliam and Ryan Cornelius”, the document went on to state:

“Plantation is now approaching lenders to raise AED 100 million as construction loan for the phase I of development of this high-end equestrian mixed-use project in the middle of Dubailand. It is intended that all the following phases of the development will be financed through pre sales of high end luxury villas and apartments.”

[87]The intention to finance the Project (at least after the initial Phase I work which was ultimately largely completed by June 2008) through sales of villa plots was, therefore, made very plain indeed. The fact that Plantation was also seeking some external funding is also made clear by the very fact that Jasper Capital was involved at all. In the event, however, Plantation did not obtain the Construction Loan which Jasper Capital had sought on its behalf. Accordingly, as it turned out, the only finance which was provided came in the form of the US$18 million or so which Mr Ridley and Mr Cornelius invested in the Project, and so money obtained from DIB without DIB knowing that such money was going to be used for the purposes of the Project. Mr Anderson QC highlighted this during the course of closing when drawing attention to the fact that, in cross-examination, Mr Fitzwilliam explained that he believed that the money being advanced by Mr Cornelius and Mr Ridley “was coming out of their own back pocket”. Mr Anderson QC suggested that this was symptomatic of an amateurish approach to the running of the Project which would have been more suitable for a smaller project such as the conversion of an apartment block in London, one of Mr Fitzwilliam’s previous developments, rather than in relation to a development as large as the Plantation Project. In fairness to Mr Fitzwilliam, the answer highlighted by Mr Anderson QC involved Mr Fitzwilliam making the point that he was unaware that the money advanced by Mr Cornelius and Mr Ridley was DIB’s money as opposed to their own money. In the circumstances, it seems to me to be a little harsh to suggest, on the basis of this one answer, that Mr Fitzwilliam was too amateurish in his approach. Mr Fitzwilliam was entitled to treat the money invested by Mr Ridley and Mr Cornelius like any other money obtained by any other investor. The more significant point is that, besides the US$18 million which had been put into the Project by Mr Ridley and Mr Cornelius, no other external funding had been obtained other than the very limited amount of money which came into the Project from villa plot sales which had been achieved in the period leading up to the RSA in August 2007.

[88]That Plantation did not obtain external funding from other sources is not in dispute. This was not, however, because such funding was not sought since just before the RSA was entered into it is apparent that Plantation again was seeking a Construction Loan. This was done using a proposal document based on the earlier proposal which had been put together the previous year by Jasper Capital. At least on the face of it, Mr Cornelius was still involved at this stage because he was again mentioned as promoting the Project together with Mr Fitzwilliam. In all probability, however, the reference to Mr Cornelius was simply a hangover from the earlier proposal. In the Executive Summary, it was stated that:

“Plantation is now approaching lenders to raise construction loans for the development of this high-end the question mixed-use project in the middle of Dubailand.”

There was, therefore, in contrast to the Jasper Capital proposal from the year before, no mention of the amount of lending which was being sought. Indeed, later on, the “Term Sheet” page has “TBD” next to the word “Amount”. The same page, rather confusingly, has a reference to the loan being for a “3-year term” despite the fact that the Executive Summary went on to state as follows:

“It is intended that the payback period for these loans will be short, i.e. within two years with repayments being generated by the sales of the Land and Villas.”

Further on, on a page headed “Current Work-review”, this was stated:

“- The Plantation Developers have to date invested AED 50 million into the development of Plantation. … - Plantation has commenced the installation of the roads and infrastructure of Phase 1 and completion date is set for August 2007. - Plantation has programmed to start construction of 8 villas in October 2007 along with a second polo field. - Ongoing works are: - General site excavation to finished levels - Infrastructure and roads Phase 1 - Height buildup of Phase 2 roads ready for infrastructure to commence in these areas Dec 2007 - Retaining walls to villa plots Phase 1 and 2 - Development of the on-site nursery for the planting of phase 1”

. The reference in the first bullet point was, as Ms Sutherland acknowledged when Mr Anderson QC asked her, a reference to the US$18 million which Mr Cornelius and Mr Ridley had invested in the Project using DIB’s money. Further on, on a page headed “Current Work-review”, this was stated: - General site excavation to finished levels - Infrastructure and roads Phase 1 - Height buildup of Phase 2 roads ready for infrastructure to commence in these areas Dec 2007 - Retaining walls to villa plots Phase 1 and 2 - Development of the on-site nursery for the planting of phase 1”.

[89]It was suggested to Ms Sutherland by Mr Anderson QC that, comparing this proposal with the Jasper Capital proposal in 2006, it was apparent that not a great deal of progress had been made in the 15 months between the first Jasper Capital proposal in 2006 and this later Jasper Capital proposal in 2007. In particular, Mr Anderson QC highlighted how the follow-on page in the 2007 document stated:

“Polo & Equestrian - Horse purchases commenced in April 2006 and currently Plantation owns over 100 horses - Construction of 3 temporary stable blocks - Construction of 4th temporary stable block to commenced June 2007 Greening of Plantation Polo Field 1 - Polo Field 1 is currently planted and the 2006/2007 Polo season was played at Plantation. The Plantation Polo Team actively competed against local teams and participated in the Cortina Winter cup in Italy. - Polo Field 2 scheduled to start October 2007 as part of the Phase 1 Development.”

The Jasper Capital proposal had previously stated:

“Polo & Equestrian - Horse purchases commenced in April 2006 and currently Plantation owns over 100 horses - Construction of 3 temporary stable blocks Greening of Plantation Polo Field 1 - Polo Field 1 is currently planted and is expected to complete by October 2006.”

Mr Anderson QC referred also to the page headed “Current Work”, in which the 2007 proposal stated (with accompanying photographs):

“Greening of Plantation - Entrance to Plantation showing banking onto the main road to protect the development from road noise. - Nursery and turf farm established. - Phase 2 nursery extension finished Sept 2006. - Purchasing of seed stock for Phase One 80% complete.”

The 2006 proposal prepared by Jasper Capital had previously stated (likewise with accompanying photographs):

“Greening of Plantation - Entrance to Plantation showing banking onto the main road to protect the development from road noise. … - Nursery and turf farm established. - Phase 2 nursery extension to start April 2006.”

The 2007 proposal went on, again under the “Current Work” heading, to state:

“Retaining Walls - Retaining wall structure for Phase 1 plots around Polo Field 1 & 2. Clearly showing the 4-5 meter elevation. - Retaining wall for Phase 1 Plots 80% Complete. Excavation Work - Excavation of Polo Fields Three and Four 65% complete. - Base height of Phase 2 roads 45% complete. Roads & Intrastructure Phase 1 - 50% completed, finish date 30 August 2007.”

This compared with the 2006 proposal which stated:

“Retaining Walls - Retaining wall structure for Phase 1 plots around Polo Field 1 & 2. Clearly showing the 4-5 meter elevation.”

Ms Sutherland acknowledged, at least as I understood it, that the amount of work carried out between the dates of the two proposals was not as much as had been hoped for. She accepted also, in effect if not in express terms, that when the August 2007 proposal referred to certain work being imminently completed, it was not entirely reliable. That, for example, the roads and infrastructure of Phase 1 were not completed by the end of August 2007, just a few weeks after the proposal was put together, is plain. In short, this and other work was still being carried out, and money was needed. Without the funds which Mr Cornelius and Mr Ridley supplied and without other third party funding, money was necessarily short since villa plot sales were not by this stage sufficient to generate the finance which was needed. In such circumstances, it is not remotely surprising that the US$50 million standby loan facility available in the RSA was attractive to Mr Fitzwilliam (and so to Plantation) since it provided Plantation with a facility which it very much needed without having been able to secure a Construction Loan, without the funding which had to date been available from Mr Cornelius and Mr Ridley, and with insufficient funds coming in from villa plot sales. Greening of Plantation Polo Field 1 The Jasper Capital proposal had previously stated: Greening of Plantation Polo Field 1 The 2006 proposal prepared by Jasper Capital had previously stated (likewise with accompanying photographs): The 2007 proposal went on, again under the “Current Work” heading, to state: Excavation Work Roads & Intrastructure Phase 1 This compared with the 2006 proposal which stated:

[90]Mr Fitzwilliam explained in his witness statement the commercial considerations which, as far as he was concerned, lay behind Plantation’s decision to enter into the RSA. He stated, in particular, that, whilst he was reluctantly prepared for Plantation to provide DIB with security so as to give Mr Cornelius and Mr Ridley “the time to unwind the investments they had made with the Bank’s funds”, he was “not prepared to pay their debts for them”. As he understood the idea behind the RSA, it was that “Plantation could only be foreclosed upon by the Bank if, after they had collected from all the other sources that Cornelius and Ridley had, there was still a shortfall”. He went on:

“We essentially had nothing to do with the repayment to the Bank so had no say as to whether it would be over two, three, or five years, nor about how much was to be repaid each year, nor about what penalties the Bank would extract from Cornelius and Ridley. That was between the Bank and the perpetrators. Plantation’s only interest in regard to the repayment terms was that the repayment schedule was not unrealistic as that could threaten Plantation.”

He added that the “hoped for US$50m funding from the Bank would assist Plantation relatively cheaply with its cash flow”. As he went on to point out, at that stage, August 2007, Plantation’s income was “from two sources”: sales of villa plots, and what Mr Cornelius and Mr Ridley had provided, namely the US$18 million. The former had not by this stage generated sufficient funds to finance the development. The latter, on any view, was a source of funding which would not continue, hence the “commercial attraction of funding from the Bank”. Mr Fitzwilliam was here acknowledging the obvious: that Plantation needed the funding which was on offer from DIB. By this stage, earth levelling and other engineering works were being carried out in order to prepare for the next phase of the project when villa plot owners would set about building their villas. As I have explained, this work, the Phase I work, obviously required a substantial financial outlay. There was no other funding on offer from any other bank or other third party. As Mr Fitzwilliam explained during the course of cross-examination, when what Mr Ridley and Mr Cornelius had done came to light, Plantation “had been merrily working, right, going forward, developing itself” and “now we had bills to pay” meaning that “I needed the money from the bank to cover those bills if I was to continue at the rate that I had been going”. He added that, had he “known that no money was coming, I would have shut down the tap for a month, two months, until the revenues that we had coming in from sales already would have come in and replenished the coffers, as it were, allow me to pay the money I had overspent, and then we would have to wait for a bit more money to come in until we could start spending again”. Also, although only a standby loan facility subject to limitations in respect of any drawdown (a matter to which I shall return but which was somewhat skated over by Mr Fitzwilliam in the passages from his witness statement to which I have referred), I agree with Mr Anderson QC that the fact that the facility would be coming from a large and well-respected institution must have lent credibility to any efforts which might thereafter have been made by Mr Fitzwilliam and Plantation to obtain finance from elsewhere. It will be recalled in this context that, under clause 9 of the RSA, it was contemplated that it would be open to Plantation to obtain further third party funding, with DIB coming under an obligation to act “as would a commercially reasonable financier” in relation to the granting of security by Plantation to such a lender. In the event, no such third party funding was obtained, but what matters is that it was open to Plantation to seek and obtain such funding if it wished to do so.

[91]I come on, then, to consider the financial position of Plantation and the Project as at June/July 2008, and so just under twelve months after the RSA. At this stage, subject only to the question of whether a deal had been, or was about to be, reached with Chescor, the position remained that the funding available to Plantation consisted only of whatever could be achieved through villa plot sales and the US$50 million standby loan facility agreed in the RSA. There was no other third party funding, despite the fact that a further proposal for a Construction Loan, although undated, was apparently put together in March 2008. This document, which took the form of a PowerPoint presentation, was again based on the original Jasper Capital proposal prepared in 2006 as updated by the August 2007 proposal. Like the latter and in contrast to the former, this later proposal contemplated that the Project would take six years, rather than the three years to which the original Jasper Capital proposal was directed. This is despite the fact that the Executive Summary continued to state this:

“Plantation will be developed over a thirty six months period. …”

. Then, on a page headed “Phases”, the presentation stated as follows:

“The Plantation Phasing as per Appendix B has been broken into three stages: - Phase 1a – Comprising of villa plots 82 – 110, Polo Fields 1 and 2. The Roads and Infrastructure are 90% complete, Polo Field 1 is 100% complete and Polo Field 2 will be complete 1 May 2008. - Phase 1b – To be started in conjunction with the Dubai Islamic Bank. Its components are as per Appendix B. - Phase 2 – as per Appendix B. - Phase 3 – As per Appendix B.”

Although Appendix B has not apparently survived, what is stated on this page is instructive in relation to the progress which had been made with the Project by March 2008. Otherwise, under “Current Work-review”, what had appeared in the August 2007 proposal was repeated except for the second and third bullet points and the addition of the following “Ongoing works”:

“- Polo Field 2 - Temporary facilities for the equestrian.”

No change was made to the page concerning “Polo & Equestrian” and “Greening of Plantation Polo Field 1”. Nor was there any change to the “Current Work” page which dealt with Greening, and banking as well as purchase of seed stock. However, as for the subsequent page which dealt with retaining walls, excavation work and roads and infrastructure Phase I, new percentage completion figures were given, with the page stating as follows:

“Retaining Walls - Retaining wall structure for Phase 1 plots around Polo Field 1 & 2. Clearly showing the 4-5 meter elevation. - Retaining wall for Phase 1 Plots 95% Complete. Excavation Work - Excavation of Polo Fields Three and Four 80% complete. - Base height of Phase 2 roads 45% complete. Roads & Intrastructure Phase 1 - 90% completed, finish date 30 August 2007.”

It was pointed out to Ms Sutherland by Mr Anderson QC that in relation to roads and infrastructure, in particular, whereas the August 2007 proposal had stated that these were 50% complete and it was expected that they would be finished by 30 August 2007, in fact, some seven months later, in March 2008, the works had still to be completed. Ms Sutherland acknowledged that there “was possibly a delay” in starting those works but, as far as she could remember, once they started they “went to schedule”. The March 2008 presentation, like the two earlier proposals, is, therefore, instructive because it illustrates the delays which occurred with the Project. More directly relevant for present purposes, however, is the fact that the proposals are instructive for another reason also: they show that Plantation wanted to obtain loan finance but could not do so. Ms Sutherland confirmed that this was, indeed, the position. The position, quite simply, is that there was no such funding available as at March 2008, and that remained the position in June/July 2008. Then, on a page headed “Phases”, the presentation stated as follows: Excavation Work

Roads & Intrastructure Phase 1

[92]Turning to the standby loan facility, I have already observed that in his witness statement Mr Fitzwilliam appeared to refer to the US$50 million as though it was the equivalent of a simple loan from DIB. That was not, however, the case. The most that can, in truth, be said is that, after entering into the RSA, Plantation had available to it, by virtue of clause 11 of the RSA, the prospect of being able to draw on the facility, not that Plantation had any entitlement to do so. Clause 11 was clear about two things: first that DIB’s obligation to provide the facility was subject “to such consideration, based on due diligence in respect of the Plantation Project, as a commercially reasonable lender would be expected to have….” (clause 11.1); and secondly that the amount which could be drawn down under the facility was dependant on a formula set out in clauses 11.2(a) and (b). The latter condition meant that it was not necessarily the case that the full US$50 million would be available to be drawn down. On the contrary, the US$50 million was the maximum which might prove to be available; whether it would ultimately be available would depend on the calculations called for by clauses 11.2(a) and (b). In the event, after exchanges between Plantation and DIB spanning several months during which Ms Sutherland provided DIB with various financial information, and after preparation within DIB of a credit facilities proposal (something in relation to which Mr Bitar took the lead) which was approved by the Project Stallion Task Force and the Credit Committee on 24 January 2008, the agreement which the parties reached, Mr Fitzwilliam having originally objected to the pricing so that DIB reduced the cost of the facility initially from 12% to 10% and then ultimately to 8%, was contained in a letter from DIB dated 13 April 2008 and signed by Mr Fitzwilliam on 7 May 2008. That letter described the amount of financing (the “Modaraba”) as being AED 169,000,000 which equates to US$45.63 million. The reason why this was less than the US$50 million contemplated in the RSA is that DIB had by this stage itself purchased three villa plots. The first two were plot nos. 86 and 103 initially in late 2007 for a total of AED 37,266,250 or approximately US$10 million. Out of this about US$4 million went into the Plantation Project because, as Mr Bitar explained in his witness statement, the Project “was desperately short of cash”, and the money was needed to give Plantation the liquidity which, in his assessment, was “desperately needed”. Subsequently, in early 2008, plot no. 87 was also purchased by DIB, Mr Bitar explained, because of “Plantation’s urgent need for cash” and so “in order to provide Plantation with much-needed working capital” by providing Plantation with a further AED 12 million which Mr Fitzwilliam undertook to credit to Plantation’s current account with DIB. The letter went on to state in paragraph 2 as follows:

Roads & Intrastructure Phase 1

“Drawdown shall be subject to the conditions laid down in the rescheduling agreement dated 19 August 2007 and as amended on 02/10/2007, between DIB, CCH (Europe), CCH International plc, Ryan Cornelius, Eren Nil, Charles Ridley, Arthur Fitzwilliam and Plantation Holdings FZ LLC, the funds available for draw down are as follows: - AED 42.8 Million as on February 2008 - 1/3rd of any amount received above $25 Million thereafter.”

This reflected an email exchange between Ms Sutherland and Mr Bitar on 17 March 2008 when Ms Sutherland referred to having “a bundle of invoices that need urgent payment”. These added up to AED 4,746,991.35 (including AED 1,822,303.75 in respect of Bait Lahem), and Ms Sutherland explained that she needed “these invoices paid so that work continues on site”.

[93]As Mr Anderson QC pointed out in closing, since only about US$60 million had been repaid under the RSA by June/July 2008 (more accurately, US$60.4 million which had been received in the first few months after the RSA was entered into), the maximum amount which was going to be available to Plantation was US$11.67 million, one third of the difference between US$25 million and US$60 million (or, more accurately, US$11.8 million, based on the US$60.4 million figure). Rather than being entitled to US$50 million, therefore, the total available to Plantation was somewhat more modest. However, this was not the only difficulty as far as Plantation was concerned because the letter dated 13 April 2008 went on to set out certain conditions precedent, including that Plantation should provide DIB with the “Approved Master Plan”, a reference to the plan of the Project which had to be approved by various parties, including Dubailand. Although Mr Cakebread sought to suggest that there either had been approval or that, in effect, approval was a mere formality, the simple position is that there was no Master Plan which had been fully approved and, in consequence, this condition precedent was never fulfilled. In addition, although admittedly not described as a condition precedent or for that matter as a condition subsequent, there was also an obligation to provide personal guarantees for AED 169,000,000 from both Mr Fitzwilliam and Mr Cornelius, together with a further obligation to provide post-dated checks in favour of DIB for the same amount. Again, these things were not supplied to DIB. Had Plantation, therefore, sought to drawdown, DIB would have been entitled to refuse to pay anything. In the event, on 15 June 2008, DIB wrote to Plantation in relation to the letter dated 13 April 2008 stating as follows:

“With respect to the above Banking Facilities Letter accepted by you, we note that a notice of breach has been served on you in respect of the Restructuring and Settlement Agreement dated 19 August 2007 between the Bank, you and others. For this reason, we regret to inform you that the Bank shall not be able to proceed with the above Banking Facility at this time.”

Mr Anderson QC suggested in closing that this was the consequence of the failure to provide DIB with an approved Master Plan and also perhaps the failure to furnish personal guarantees and post-dated cheques. That is not the case, as the passage quoted above demonstrates. What matters for present purposes, however, is what would have happened had Plantation sought to drawdown. The answer seems pretty clear: Plantation would not have been entitled to receive any monies, whether as much as US$50 million or at all. I agree with Mr Anderson QC that, in the circumstances, it is not appropriate to view Plantation as having any entitlement to draw on the standby loan facility and so to regard it as having any relevance as a source of credit open to Plantation as at June/July 2008. In truth, leaving aside for the moment the Chescor issue, the position at that time was straightforward: Plantation’s only available source of funding was revenue from villa plot sales. The position in relation to these was, however, on analysis, not especially encouraging. Specifically, as I shall now explain, the monies which could be expected to be achieved from villa plot sales were wholly insufficient to meet Plantation’s liabilities as at June/July 2008.

[94]As to villa plot sales, Mr Fitzwilliam explained in his witness statement that at “the beginning of 2008 the income from villa plot sales was about US$2m per month”, but that he expected that this was “set to increase dramatically from additional villa plot sales at… much higher prices” as a result of an “unexpected rise in land prices in Dubai” which saw Plantation receiving interest at “around the AED 700/800 per sq ft level” as opposed to the somewhat more modest AED 70 per sq ft which he had originally expected to secure. He was plainly very optimistic at this stage that sales would be achieved. As Mr Anderson QC reminded me in closing, Mr Fitzwilliam explained in the course of his evidence that:

“It was bouncing every day; and every day it was bouncing differently from the way we had thought it was going to bounce the day before. Fortunately, every day was bouncing better; the more we did, the better it got, the better it got.”

This was Mr Fitzwilliam colourfully referring to the improving conditions as he saw them as 2008 unfolded. The truth, however, is that Mr Fitzwilliam, again perhaps characteristically, appears to have operated on the basis of his instinct as a businessman rather than on the basis of hard data. It is in this respect that Mr Anderson QC’s criticisms in relation to the various cost projections which were prepared by Plantation have some resonance. I agree with Mr Anderson QC that, whilst there is no reason to suppose that the building costs projections which were prepared by Plantation’s in-house quantity surveying department were anything other than appropriate, the financial projections which dealt with the financing of such building costs and which were prepared by Ms Sutherland and Plantation’s project management team, lacked the sophistication which might have been expected in relation to a project the size of the Plantation Project.

[95]In particular, based as they were on anticipated villa plot sales, the projections took no account of the possibility that such sales would not be achieved. An example to which Ms Sutherland was taken by Mr Anderson QC during the course of cross-examination is a schedule which was prepared in July/August 2007 and so immediately prior to the RSA. This document provides projected figures over a six-year period, Ms Sutherland confirming that the first of those years was intended in the document to be 2006 meaning that the final year was 2011. The first page sets out the “Development Costs” and as such is based on figures provided by Plantation’s quantity surveyors. The second page, entitled “Consolidated Cashflow Statement”, then sets out the projected revenue figures as well as sales, marketing and maintenance costs. The important point to note, for present purposes, is that by far the largest entry for revenue is “Villa Sales” with the bulk of the revenue from this source coming in years two and three, namely AED 1,275,353,000 and AED 1,289,750,000 respectively. Other revenue entries include modest amounts for “Equestrian Activities”, “Equestrian Events”, “Apartments Rents”, “Maintenance Fees” and “Boutique Offices Rent” together with something described as a “Project Management Fee on Villa Construction”. As to the villa plot sales, it was apparent from the answers given to Mr Anderson QC during the course of Ms Sutherland’s cross-examination that Plantation’s view that sales would be achieved at the rate contemplated in this document was not a view which was based on any market research carried out by Plantation but, as Ms Sutherland put it, was “based on being in the market at the time”. Furthermore, as previously noted, although in the previous year (2006) when Jasper Capital were seeking to obtain the AED 100 million Construction Loan it was apparently contemplated that the villas would all have been sold within a three-year period, in the consolidated cash flow statement the figures were based on a 6-year period (as was the case with the Jasper Capital proposal which immediately preceded the parties’ entry into the RSA in August 2007). In my view, this serves to underline the fact that no particular efforts were made on Plantation’s behalf to arrive at a reliable assessment as to the rate of sales which would be achieved.

[96]The projections prepared by Ms Sutherland and her team at Plantation continued, however, to proceed on the basis that the main element of revenue would be from villa plot sales. For example, and focusing on the position in 2008, Ms Sutherland was taken by Mr Anderson QC to the attachment to an email dated 10 May 2008 which she sent to DIB, described by her as “the Sales and Revenue file” which she had altered after much to-ing and fro-ing with DIB. That document set out at the top of the page details of the villa plots which had to date been sold and then went on lower down the page to set out details of the projected villa plot sales from March 2008 onwards, apparently ending in the third quarter of 2010. Accordingly, throughout, both in 2007 and 2008 and no doubt before this, Plantation’s financial projections hinged on its ability to achieve villa plot sales at the anticipated rate. If such sales could not be achieved as, and at the rate, contemplated, then, the projected revenues would not be secured.

[97]Furthermore, there being no dispute that the Project suffered substantial delays which inevitably had a monetary impact, for example delay on the part of Dubailand in relation to the availability of infrastructure, there was an unavoidable effect on progress and so on Plantation’s ability to make villa plot sales. I shall come back to this topic. However, this was not the only aspect concerning Dubailand which is relevant since it is also to be borne in mind that Plantation was a party to an agreement, the Profit Share Agreement, which needed to be factored into any financial projections. It will be recalled that under clause 5 of that agreement Plantation was required to pay Dubailand 15% of “the selling price” of any villa plot sales. It is apparent that there was a dispute between Dubailand and Plantation as to the time at which payment was due since there was correspondence in the period from September 2006 to January 2007 concerning this issue. Ms Sutherland was taken to this correspondence during the course of cross-examination, including a letter from Dubailand to Mr Fitzwilliam at Plantation dated 1 February 2007 in which Dubailand stated that they were “eager to close” the matter “at the earliest before we move on with 2007”. It was Ms Sutherland’s understanding that further correspondence ensued, although that does not appear to have been the case since no other exchanges are in existence. Be that as it may, it would appear as though Dubailand ceased, as Mr Anderson QC put it in closing, to press the point. What matters, for present purposes, however, is that at some point, whether sooner (as Dubailand considered was agreed in clause 5) or later (as Plantation considered had been agreed), Plantation would have to pay Dubailand 15% of the villa plots’ sales prices, yet in none of the financing projections produced by Ms Sutherland and Plantation was anything included in relation to this 15%. Ms Sutherland accepted that this was the position, explaining nonetheless that “it wasn’t not talked about or understood, that it was going to be there … it was a flat figure that would be going on at the end of all the production”. She acknowledged that “absolutely correctly, probably in the costs that should have been reflected”. Her point was that DIB “never wanted it on there”. I agree with Mr Anderson QC, however, that, in order for Plantation’s projections to show an accurate picture, they needed to include an accrual in respect of this liability. The fact that they did not do so inevitably undermines their reliability, certainly when gauging the ultimate financial condition of the Project.

[98]Importantly also, actual (as opposed to projected) villa plot sales were not quite what they might have appeared. These were the subject of a careful analysis in the written closing submissions which were produced by Mr Anderson QC and Mr Edwards. That analysis was based on the spreadsheet which Ms Sutherland attached to her email dated 10 May 2008, “the Sales and Revenue file” to which I have previously referred. At the top of that spreadsheet, which is plainly highly relevant since it was prepared only a month or so before the 9 June 2008 letter came to be sent, details were set out concerning the sales which had been made to date. Plot numbers were given, together with the identity of the individual purchasers, the dates when the relevant contracts of sale were signed, the size of the plot, the price and the payments which had been received. Included were the plots which Mr Fitzwilliam and Ms Sutherland had themselves purchased: plot nos. 107 and 26 respectively. Also included were the two of the three plots which DIB had purchased: plot nos. 103 and 86. I assume that the reason why the third plot (no. 87) was not included is that this sale was taking place at about this very time. This does not matter for present purposes since, like the sales involving Mr Fitzwilliam and Ms Sutherland, the sales to DIB can hardly be viewed as villa plot sales which are relevant when trying to ascertain the revenue which Plantation was deriving from this source of funding. The same applies, albeit for a different reason, in relation to three other plots which were listed in the spreadsheet, namely plot nos. 97, 98 and 108, in relation to which the purchaser was identified as a Mr Simon Welsh. The purchase price in the case of these plots added up to something in the region of AED 60 million: specifically AED 16,636,744 in respect of plot no. 97, AED 17,620,476 in respect of plot no. 98 and AED 25,142,620 in respect of plot no. 108. However, nothing had been paid by Mr Welsh as at March 2008 since, as Ms Sutherland explained in cross-examination, those “sales fell through completely” since Mr Welsh had decided, after “negotiations backwards and forwards”, not to continue based on “legal advice”. It follows that these sales should not be taken into account when considering the position as at June/July 2008. As Mr Anderson QC and Mr Edwards explained, removing from Ms Sutherland’s spreadsheet the sales involving Mr Fitzwilliam, Ms Sutherland, Mr Welsh and DIB results in a table as follows: Purchaser Plot Contract date Price (AED) Paid by March 2008 (AED) Prakash Nimmagadda 90 08/10/2007 13,811,592 4,143,477.60 Haroon Karim 54 03/01/2008 18,473,712 1,847,427.00 Dasmal 104 15/08/2007 12,726,180 0 Khosrow Fattahi 105 16/10/2007 17,071,830 1,195,028.10 Irfaan Siddik 29 17/10/2007 25,578,184 2,557,818.40 Russell Sharpe 30 22/09/2007 10,218,000 102,180.00 Ian & Susan Kelly 110 24/07/2006 10,798,000 1,048,550.00 Zubair Mir-Mohammed 100 25/07/2007 17,177,940 1,717,794.00 Jaffar 95 25/11/2005 12,540,467 3,762,140.10 Ahmad Mustapha 20 29/01/2008 17,631,284 1,763,128.40 Ahmad Mustapha 82 28/01/2008 21,640,344 2,164,034.40 Nasser Soufan 28 29/07/2007 13,562,970 2,712,594.00 Nasser Soufan 99 29/07/2007 13,562,970 1,247,793.00 Mohammed Ikhlaq 25 30/07/2007 16,439,321 3,287,864.20 Haron Karim 75 31/01/2008 16,791,700 1,847,142.00 Viqyan Rama 76 31/01/2008 16,791,700 2,015,066.00 Andrea Lee Williams 27 31/07/2007 14,531,400 4,359,420.00 Total 269,347,594 35,771,457

[99]Accordingly, out of a combined total price of AED 269,347,594, only AED 35,771,457 had been paid by March 2008. Furthermore, again as pointed out by Mr Anderson QC and Mr Edwards, there is some doubt whether in the case of Ms Andrea Lee Williams she should be regarded as a purchaser at all in circumstances where the agreement which she signed on 31 July 2007 was merely an option agreement and there is nothing to indicate that she exercised the option before it lapsed on 1 March 2008. That said, it does appear (at least based on what was shown in Ms Sutherland’s spreadsheet) that she paid not only an initial AED 3,000,000 in August 2007 but that she went on to pay a further AED 1,359,420 in March 2008. This rather suggests that Ms Williams did, indeed, exercise her option. In contrast, the purchaser of plot no. 104, a Mr Dasmal as listed in Ms Sutherland’s spreadsheet, was not shown in that spreadsheet to have paid anything up to March 2008. Ms Sutherland explained, when this point was put to her by Mr Anderson QC, that “he was one of the mortgage applications” meaning that he was not expected, initially at least, to make a payment. Ms Sutherland went on to explain that Mr Dasmal agreed to purchase the neighbouring plot (no. 105) to that of his father-in-law (Mr Fattahi) and that, after Mr Fattahi’s “wife was diagnosed with a very advanced case of breast cancer”, they “relocated to America, and we didn’t think it was quite correct to be hassling him to come back and formalise a final payment for his plot”. In the circumstances, it is somewhat doubtful that the sales to Mr Dasmal and Mr Fattahi were ever going to come to fruition. Combined, these sales amounted to approximately AED 30 million: AED 12,726,180 in respect of plot no. 104 (Mr Dasmal) and AED 17,071,830 in respect of plot no. 105 (Mr Fattahi). Stripping these sales out of the combined total price of AED 269,347,457 brings the total down still further to AED 239,549,584.

[100]There is, in addition, the point that, as Mr Kelly made very clear in the evidence which he gave, it is likely that purchasers such as Mr Kelly and his wife who did not see progress in line with their expectations would be reluctant to make payments in accordance with the agreed instalment mechanisms. Mr Kelly is clearly an astute businessman. As he wrote in an email to Ms Sutherland on 30 January 2007, albeit that the message was intended for Mr Fitzwilliam, in view of the delays in the schedule which were being experienced at the time, in particular in relation to the road infrastructure for Phase 1, something which he attributed in part at least to “the lack of co-ordination between consultants you have chosen and the inefficiency of the Plantation organisation generally”, he was not willing to continue making payments until progress had been made. As he explained when this message was put to him by Mr Anderson QC, he was “being robust … in my position” in what he regarded as “a negotiation”. I am in little doubt that other purchasers in Mr Kelly’s position, whether or not they had his experience in business, would, if necessary, have taken a similar stance. It follows that, as Mr Anderson QC submitted, the mere fact that other purchasers appeared still to be willing to purchase does not mean that Plantation would have received what was due when it was due.

[101]Another aspect which needs to be borne in mind in this context is that, as demonstrated by Ms Sutherland’s spreadsheet, there had been no villa plots sales since the end of January 2008 when a number of contracts were apparently signed: specifically the three contracts signed by Mr Welsh (plot nos. 97, 98 and 108), two contracts signed by a Mr Mustapha (plot nos. 20 and 82), a contract signed by a Mr Karim (plot no. 75) and a contract signed by a Mr Rama (plot no. 76). No contracts had been entered into in the intervening period leading up to Ms Sutherland’s preparation of her 10 May 2008 spreadsheet. It follows that the suggestion made by Mr Fitzwilliam in his witness statement that at “the beginning of 2008” villa plot receipts were running at “about US$2m per month but was set to increase dramatically from additional villa plot sales at the much higher prices” is open to considerable doubt unless Mr Fitzwilliam intended to refer in this regard just to January 2008. The following table prepared by Mr Anderson QC and Mr Edwards, again based on Ms Sutherland’s spreadsheet, demonstrates that in the period from October 2007 to March 2008, a period which might be thought to be a better reflection of the rate of receipts, the monthly average was below US$1 million: AED USD October 2007 1,749,135 472,266 November 2007 2,506,574 676,775 December 2007 0 0 January 2008 8,361,834 2,257,695 February 2008 3,534,446 954,300 March 2008 4,359,649 1,177,105 Total 20,511,638 5,538,142 Monthly average 3,418,606.33 923,023.71 It follows that Mr Fitzwilliam’s assessment of the situation cannot be right. Indeed, if the receipts for January 2008 are left out of account, the monthly average reduces still further to just US$656,089.

[102]Focusing, in particular, on the column in Ms Sutherland’s spreadsheet showing the anticipated receipts in respect of June 2008, as Mr Anderson QC pointed out in closing, these add up to AED 11,462,015. However, they include receipts from Mr Welsh for the three plots which it is known that Mr Welsh was not going to proceed with. They include also an amount in respect of plot no. 27 (Ms Williams) although, as I have explained, this may be legitimate notwithstanding the apparent absence of any signed reservation contract (as opposed to the earlier option which was entered into). In addition, there is an amount (AED 4,068,891) in respect of plot no. 28 where the purchaser was a Mr Soufan in relation to which no account is taken of the fact that the relevant contract provided for 10% instalments to be paid quarterly meaning that the correct figure ought to have been AED 1,356,297. The consequence is that, rather than the AED 11,462,014 stated in the spreadsheet by Ms Sutherland, a more appropriate figure would have been AED 2,809,437. This is substantially less than the US$2 million to which Mr Fitzwilliam referred in his witness statement. Additionally, Plantation’s HSBC bank statements reveal the receipt of just AED 2,557,818.40 in respect of villa plot sales, which again serves to confirm that what Mr Fitzwilliam and Ms Sutherland were apparently expecting was unrealistic.

[103]Furthermore, not only were there no sales (and so no receipts from such sales) between the end of January 2008 and when Ms Sutherland prepared her spreadsheet in May 2008, but that remained the position until 1 July 2008. It was on that date that Dressage Investments Ltd (‘Dressage’) signed a reservation contract, albeit that some weeks earlier, on 14 May 2008, Dressage wrote to Plantation formally accepting Plantation’s “offer of 70% of the purchase price of Plot No. 70”. Ms Sutherland was asked about this but explained that she was unable to comment as she was not involved with this transaction. Indeed, the letter dated 14 May 2008 was sent to Mr Thomas Woolf who was responsible at Plantation for handling sales at the time. As Mr Anderson QC submitted, however, the fact that Plantation was willing to provide financing to Dressage at all, especially to so substantial a degree, rather suggests that Plantation was not finding it particularly easy to find purchasers for its villa plots. Indeed, I agree with Mr Anderson QC that Plantation’s willingness to enter into an arrangement such as the one which it did with Dressage provides further support for the view that Plantation was at this time in real need of funds. This was, of course, Mr Bitar’s contemporaneous understanding and the reason why DIB purchased a third villa plot. The other feature of the Dressage sale which is relevant for present purposes is the price per sq ft which is involved which was AED 600 per sq ft. As Mr Anderson QC submitted, the fact that Plantation was willing to enter into a sale contract at this price makes it unlikely that in June/July 2008 Plantation would have achieved as much as the AED 1,200 per sq ft which at trial (in his oral evidence rather than in his witness statement) it was suggested by Mr Fitzwilliam would have been obtainable.

[104]This, then, is the position as regards villa plot sales. Clearly, they were somewhat limited, as were the funds which they generated. Theoretically, however, the limited amount of revenue coming into the Project would not have mattered were it not for the fact that, unsurprisingly in the circumstances, the Project very much needed money in order to take the development forward and to operate. Realistically by this stage, it was too late for Mr Fitzwilliam and Plantation to operate “the tap” or, as Mr Fitzwilliam put it earlier when dealing with the position after, again as he put it, “being told by the bank that we were about to receive 50 million”, “slow down our expenditure” and “hit the brakes”. At this point, very substantial debts had been incurred and were continuing to be incurred. In this context, I have again found helpful the analysis carried out by Mr Anderson QC and Mr Edwards as part of their written closing submissions because that analysis draws together the various points which were explored in some detail with, in particular, Ms Sutherland when she was being cross-examined. The short point, however, is that the approximately US$12 million monthly cash demand during 2008 to which Mr Fitzwilliam referred in his witness statement was simply too high to be met by the revenue levels which I have described. Mr Fitzwilliam was, however, there describing the expenditure which Plantation would have been incurring in working on the Project. On one view, the right approach would be to take account of this higher figure since, after all, if Plantation had scaled back its activities, it is most improbable that any new purchasers would have been persuaded to enter into reservation contracts and existing purchasers such as Mr Kelly would quite obviously have withheld payments. However, even focusing just on overhead costs, which Mr Anderson QC and Mr Edwards recognised would inevitably have been rather less, still the amounts involved can hardly be described as inconsiderable. Some indication as to what such overhead costs would have been in June/July 2008 can be gleaned from the fact that by October 2008, whilst Mr Fitzwilliam was still in custody and after DIB had taken the action which it did in August 2008, only essential staff had been retained by Plantation and even this cost AED 279,633.50 in October 2008. This can be seen from the list which Mr Ilahi sent to Mr Waugh under cover of an email dated 20 November 2008. That list set out the salaries for October and November. It excluded (under a heading “Staff who will not be paid”) certain employees, including three polo players each of whose monthly salary was AED 3,442.50 and Mr Fitzwilliam (AED 350,000) and Ms Sutherland (AED 49,505). As Mr Anderson QC and Mr Edwards pointed out, there would also have been running costs such as the cost of diesel for generators and horse feed, which would have added a further substantial monthly sum.

[105]Even ignoring these sorts of costs, however, the position of the Project was very difficult as at June/July 2008. There were very substantial outstanding creditor liabilities, as detailed in a document described as an “Aged Creditors Analysis (Summary)” which was dated 12 May 2008 and which was sent by Ms Sutherland to Mr Nemer Khalifa the following day in an email in which she referred to the document as “the current statement of account of payables”. This analysis listed Plantation’s various creditors, setting out details of the individual liabilities (in each case in AED) and indicating how long each of those liabilities (in separate 30-day periods) had been outstanding. The total added up to AED 8,724,710, with the largest single amount (AED 2,847,812) attributable to Bait Lahem Contracting Co. LLC (‘Bait Lahem’), Plantation’s roads and infrastructure works contractor. Specifically, AED 1,002,489.02 was shown as being “Current”, AED 508,848.25 was shown as having been due for over 30 days (described as “Period 1” in the document but, as Ms Sutherland explained, this was a reference to a 30-day period) and the balance (AED 1,336,475.67) as having been due for over 60 days (“Period 2”). Within a few months, on 17 September 2008, Plantation prepared an updated “Aged Creditors Analysis (Summary)” in which the Bait Lahem liabilities had increased to AED 4,504,704.46 out of a total of AED 12,779,837.73. Although not entirely matching, the AED 4,504,704.46 is nearer to what Bait Lahem was telling DIB in an attachment to a letter sent to Al Tamimi dated 19 August 2008 which listed payments covering the period from 31 January 2008 to 30 April 2008 (and so covering the period up to and, as it happened, including 13 May 2008) adding up to AED 4,349,774. Thereafter, between 15 May 2008 and 15 July 2008 four further payments were identified as having not been made totalling just over AED 1.1 million. Although, in the circumstances, it is not possible to marry up these various figures, what is clear is that a substantial amount of money was due to Bait Lahem. Indeed, Ms Sutherland fairly accepted in cross-examination that by September 2008 “there had been a very large sum of money outstanding to Bait Lahem for a very long period of time”. That undeniably was the case. It was also the case in relation to certain of the other creditors which were listed alongside Bait Lahem, adding up to a further AED 5,876,898.

[106]There is, then, in addition, the position of Dubailand to consider. It will be recalled that under clause 4.1.3 of the Lease (“Utilities Payment and Connection”) it was agreed that Dubailand (originally the DDIA) “shall be responsible for the construction of the infrastructure to enable the supply of any service to the boundary of the Premises…”. It is apparent, however, that notwithstanding this provision Dubailand was intent on passing to Plantation infrastructure-related costs. Mr Anderson QC explored, in particular, with Ms Sutherland the question of electrical substation costs. He referred in this context to a letter which Tatweer (essentially Dubailand) sent to Mr Fitzwilliam dated 3 April 2008. Headed “Cost Recovery for Plantation shared substation”, the letter stated as follows:

“We are in the process of awarding the shared 132kV substations project works and as such we need all beneficiaries to pay their share in the construction cost in advance enabling Tatweer to award the project. Hence, you are kindly requested to arrange the payment on before 13 April 2008 as per the attached table and invoice in order to meet the schedule as per the signup sheets. The actual cost will be advised upon completion of the project. It should be notified that any delay in the payment will have serious impact in delivery of the substation and power supply availability to the project in Phase 1.”

The accompanying invoice referred to an amount calculated as 46.71% of the total cost of AED 260,196,512.29, resulting in a demand for AED 124,631,366.96. Mr Fitzwilliam replied to this letter on 14 April 2008. He made the point that Dubailand had previously told Plantation (in a letter which he stated was dated 28 February 2006 but which was in fact dated 26 February 2006 and was sent, as the fax transmission details indicate, on 26 February 2007) that “our cost share would be AED 64.5 million” and questioning why, even allowing for “some price increase over the past years”, the price should “have doubled”. Mr Anderson QC asked Ms Sutherland why no specific provision had been made for such a cost in the financial projections which she had prepared. She suggested that it was because there was no obligation under the Lease to make any such payment - a reference, in other words, to clause 4.1.3. It was pointed out, however, that this was not a point which was made by Mr Fitzwilliam in his response to Tatweer. His focus was, rather, on the amount payable. As Mr Anderson QC pointed out, Dubailand (and Tatweer) held the whip hand in negotiations since if Plantation wished to have the infrastructure it so obviously needed provided, it was going to be in a very weak bargaining position. Ms Sutherland essentially acknowledged this when she referred to Plantation “being held over a barrel in regards to getting infrastructure put on”. As Ms Sutherland put it, “Dubailand was threatening with the non-supply of infrastructure, if it wasn’t paid” and so “at this stage we had very little choice”. Whether or not Ms Sutherland ought to have included a figure in her financial projections is nonetheless not the critical point at this juncture. Nor is the fact that it appears that it was not until 7 May 2008, as recorded in Mr Bitar’s internal progress report the same day, that Mr Fitzwilliam told DIB that “Dubai Land has recently sent him an invoice for AED 120 million for the future construction of the Projects [sic] electrical substation” and that he “met with Dubai Land on May 7 raising an objection to the payment terms and requesting a deffered [sic] payment plan”. What matters is that ultimately, after a meeting which apparently took place on 14 May 2008 and the further meeting which took place two weeks later on 28 May 2008, Plantation agreed with Dubailand and Tatweer that it would pay AED 107,109,165.32 as a contribution to the electrical substation, starting with a 30% payment on 30 June 2008 (AED 32,132,749.30) followed by two further 30% payments on 1 December 2008 and 1 June 2009 and a final 10% payment on 1 December 2009. This was set out in an email which Ms Sutherland sent to Mr Khalifa and Mr Bitar at DIB on 28 May 2008. Although Ms Sutherland was inclined to suggest in cross-examination that this was merely a “worst-case scenario” and that Mr Fitzwilliam was hoping to “get changes in the payment schedules”, propositions about which I am somewhat doubtful, what is important is that just a month or so later, on 30 June 2008, a substantial liability to Tatweer/Dubailand would accrue.

[107]As far as Ms Sutherland was concerned, she explained in her evidence, this would have to be paid using the “$50 million loan” from DIB. This was a reference to the facility set out in a letter dated 13 April 2008, which was issued by DIB at a time when it was unaware of there being any liability in respect of the substation. It is instructive that Ms Sutherland should refer to a “$50 million loan” when, in fact, for reasons which I have explained, the facility was not something which entitled Plantation to anything like US$50 million. In fairness to Ms Sutherland, although given her job description she might have been expected to know about such things, it was Mr Fitzwilliam who was really in charge of obtaining such external financing. Both Ms Sutherland and Mr Fitzwilliam should, however, have appreciated that the financial position in June/July 2008 in which Plantation found itself was precarious to say the least. Plantation had debts totalling AED 42,359,421 (equating to US$11.4 million), namely AED 4,349,774 in respect of Bait Lahem, AED 5,876,898 in respect of the other trade creditors identified in the 13 May 2008 analysis and AED 42,359,421 in respect of the electrical substation costs payable to Tatweer/Dubailand. On top of this, there were more modest (but not insubstantial) liabilities to pay salaries and running costs. Plantation simply did not have the means to meet this level of expenditure: its sources of revenue were at that stage insufficient and it did not have enough money in the bank since in its main HSBC bank account there was only a very modest AED 467,012 as at 30 June 2008.

[108]The significance of this is a matter to which I shall return: first, when dealing with the case which Mr Anderson QC sought to advance at trial, namely that there was an event of default for the purposes of clauses 18.1(e) to (g) of the RSA as a result of Plantation’s (alleged) inability to pay its debts; and secondly, when dealing with the issue of causation. As to the latter, it will be recalled that it is DIB’s case that Plantation would, in any event, have failed in view of its precarious financial position and what are described as “the wider economic realities by mid-2008”, with the consequence that the loss in relation to which Plantation now seeks to recover would have come about regardless of any breach of the RSA on the part of DIB.

Chescor

[109]I have so far left out of account the Chescor issue which I need now to come on to address. This is an issue which has considerable significance to the case generally, even though I detected something of a shift in the reliance which was placed on it by Mr Cakebread by the time that he came to make his closing submissions when Mr Cakebread explained that the Chescor deal was not, in fact, relied upon by Plantation because it did not happen and was not going to happen in the light of Mr Fitzwilliam’s arrest. He clarified, however, that the Chescor deal remained relevant because “if that deal was mooted and would otherwise have taken place, it places the valuation on Plantation at around $2 billion”. Mr Cakebread’s position was nonetheless that, in the circumstances, the extent to which Mr Anderson QC, during the course of cross-examination and in submissions, sought to discredit Mr Bacon was “disproportionate to the issue in the context of Plantation’s case overall”. I do not agree. On the contrary, I agree with Mr Anderson QC when he submitted that the Chescor issue is highly significant. I can hardly overlook the fact that it was Plantation which chose to call a witness, Mr Bacon, who gave evidence concerning the issue specifically, so demonstrating Plantation’s reliance on the deal in relation to which, according to Mr Bacon, an agreement in principle had been reached. Mr Fitzwilliam himself gave evidence that he was en route to London to meet Chescor’s principals. Indeed, according to Mr Fitzwilliam, this is why he was at the airport in Dubai when he came to be arrested. This point goes still further because in the amended Particulars of Claim, as Mr Anderson QC pointed out in closing, the allegation is made that DIB procured Mr Fitzwilliam’s arrest in order to “enable it to instigate and/or procure the perfection of the conditional assignment and thereby appropriate the Land and the Plantation Project for its own commercial benefit”, Mr Kamal having been made aware that Mr Fitzwilliam was to travel to London in order to secure US$600 million of equity funding during the course of a telephone conversation between Mr Kamal and Mr Fitzwilliam.

[110]Having regard to these considerations, the suggestion by Mr Cakebread in closing that Mr Bacon’s evidence in relation to the Chescor matter, and indeed what Mr Fitzwilliam had to say about it also, was not particularly important is belied by the way in which Plantation, at least coming into the trial, chose to put its case. I am clear that the reason for Mr Cakebread’s change of position by the time of his closing is an appreciation on the part of Mr Cakebread that Mr Bacon’s evidence did not, to put things mildly, go smoothly.

[111]The point goes further than this, however, because I agree with Mr Anderson QC that the Chescor deal (under which Mr Fitzwilliam was apparently, by which I mean according to Mr Bacon and Mr Fitzwilliam, going to receive as much as US$600 million in return for 30% in Plantation out of Mr Fitzwilliam’s shareholding), if it had been negotiated by Mr Bacon, would enable Plantation to say, in answer to DIB’s case that it was in a hopelessly insolvent state by June/July 2008 (and so in breach of the RSA at that time and anyway bound to be in breach by the time that the next instalment of the Rescheduling Amount fell due on 1 October 2008), that its position was about to be substantially improved through the money which the Chescor deal would have brought into Plantation’s coffers.

[112]It is worthwhile setting out what Mr Bacon had to say concerning the Chescor deal in his witness statement in full. In a section headed “Events at end of May, beginning of June 2008”, he said the following:

“23. Without warning Arthur told me that he now wanted to sell a 30% share in Plantation and thereby raise a much higher figure than the initial USD$100m that was being sought.”

I interject here to explain that Mr Bacon explained earlier in his witness statement that previously Mr Fitzwilliam’s intention was to raise “expansion capital of around US$100m”, and that this was what Mr Bacon, initially in his personal capacity and on “a very part-time basis” and subsequently on Novati’s behalf after he had moved to that company (a matter which I have previously addressed). With this clarification, I continue setting out the contents of Mr Bacon’s witness statement:

“It was clear that the timescale for achieving this was now extremely urgent. Of the twenty investors I had already held negotiations with, there were three or possibly four whom I considered would be interesting and capable of this level of investment within the revised timescale. 24. One of these four potential investors at this high level was a fund affiliated to a corporate finance and consulting group known as Chescor Capital (‘Chescor’). Its group chairman and executive director, who effectively owned this fund, was Dr Amin Badr-El-Din. Dr Badr-El-Din was a polo patron and a real estate investor and I considered that his fund would be a natural fit for Plantation. I therefore contacted Stephen Mallet, by then the Chief Investment Officer of Chescor and a former colleague at Alcazar, and as such in charge of its mezzanine fund. A mezzanine fund basically lends money, looking for rates of return that are geared to the underlying performance of the business so it is a blend of debt and equity. Often the mezzanine lender will have the right to convert the debt into equity. Due to the debt element of the investment (and therefore the reduced risk), the time needed to put the investment in places also reduced. 25. I discussed valuations of Plantation with Dr Badr-El-Din. I formally proposed a figure of around US$600m for a 30% equity share. This figure was not the highest that I thought I could achieve for Arthur which was US$2.15bn and Plantation [sic]. However, as a patron, Dr Badr-El-Din brought more to the project than just investment and I thought that he would be the preferred choice of investor. Arthur agreed with my assessment. 26. I had held three meetings with Dr Badr-El-Din in person, the first in Jordan on 12 May 2008 and the following two in Dubai on 19 and 20 May. I had also had considerable contact with his advisers as Dr Badr-El-Din was at the centre of a sophisticated business network. Heads of terms were discussed at these meetings and a figure for US$600m for a 30% equity stake in Plantation was agreed in principal [sic]. This investment was based on a valuation of Plantation in its undeveloped state at US$2bn. 27. Since negotiations with Dr Badr-El-Din were at the heads of terms stage, a further meeting was arranged between the principals of Plantation and Chescor respectively, i.e. Arthur and Dr Badr-El-Din. The meeting was arranged to be held at Dr Amin’s residence in Hertfordshire at 8.30 on 9 June 2008 and I had blocked out 2 days for it. I had arrived in the UK on 4 June and had already scheduled pre-meetings with Chescor in preparation for Arthur’s arrival. On the previous 2 days, 2 and 3 June, Arthur and I had discussed how we would deal with Chescor. The project name was ‘Merchant Bridge’. I recollect vividly attending the meeting with Dr Badr-El-Din and the other principals of Chescor Capital and waiting for Arthur who simply did not turn up. I had no idea where Arthur was and was unable to contact him on his mobile phone. He appeared to have vanished en route. Around 2/3 weeks later, and after I had returned to Dubai, we discovered that he had been arrested en route in Dubai, at the airport.”

[113]As for Mr Fitzwilliam, in his witness statement there are not the same details concerning the Chescor deal. However, in explaining the circumstances in which he came to be arrested on 6 June 2008, he had this to say in paragraph 64 and 65:

“On Friday, 6 June 2008 (the first day the weekend in Dubai) I was at the airport to fly to London to arrange the sale of 30% of Plantation for US$600 million to Dr Amin. I had told the Bank that I was leaving to go to London a couple of days before I was arrested. I had a telephone conversation with Mr Amon Adel Kamal, the most senior person I dealt with at DIB, the day before I was due to fly out. He asked why I signed the RSA, and I explained the moral debt I owed to Mr Cornelius. He said ‘it was too much, too much’. At the time I did not know what he meant, though in retrospect it is clear he knew of my impending arrest and/or the Bank’s intention to manufacture an event of default in order to seize the security. I am sure the security police would have known of my reasons for going to London and whom I was going to meet. Telephone monitoring is standard practice in Dubai, and the main way of gathering evidence. I had been abroad several times since the arrest warrant had been issued, and so could have been arrested at any time prior to this, at the airport or elsewhere. The Bank knew I was going to be arrested before I did, and the security police knew I was going to do a deal to sell off part of my equity in Plantation.”

The reference to an arrest warrant in respect of Mr Fitzwilliam is a matter to which I shall return. The significance of the evidence set out in these passages of Mr Fitzwilliam’s witness statement is, however, that Mr Fitzwilliam was here, like Mr Bacon, giving evidence concerning a deal with Chescor which would have entailed payment of US$600 million for a 30% stake in Plantation and which involved a meeting with Dr Badr-El-Din in in the UK in early June 2008. As to what Mr Kamal was told by Mr Fitzwilliam about that meeting, these passages do not state, in terms, that Mr Fitzwilliam told him that he was travelling to this country to finalise a deal involving US$600 million and 30%. This is in contrast to Plantation’s pleaded case in which it is specifically stated that Mr Fitzwilliam told Mr Kamal that he was going to be flying to London on 6 June 2008 in order “to sell part of his interest in plantation to raise funds to pay all the monies due under the RSA”. It is in contrast also with a witness statement which Mr Fitzwilliam made in the context of the trial before Flaux J since in that witness statement Mr Fitzwilliam stated that he told Mr Kamal more precisely why he was travelling to London. Asked about the matter in cross-examination, Mr Fitzwilliam essentially, although somewhat equivocally, intimated that he told Mr Kamal in express terms the reason why he was travelling. The fact that Mr Fitzwilliam was so equivocal leads me to conclude that he did not, in fact, tell Mr Kamal about the Chescor deal. This conclusion is underlined by the fact that Mr Kamal, who was pressed on the matter by Mr Cakebread during the course of cross-examination, explained that, having left the Task Force some months earlier, any conversations with Mr Fitzwilliam which he might have had in June 2008 would have been very rare and, accordingly, he would therefore have remembered such a conversation had it occurred.

[114]As I shall now explain, I am quite clear that the evidence which Mr Bacon and Mr Fitzwilliam gave in relation to the Chescor deal ought not to be accepted. I am satisfied that it is evidence which was essentially made up in an effort to support Plantation’s case that, contrary to what DIB has suggested, Plantation was in a sound financial condition as at June/July 2008 and, moreover, to provide a foundation for Plantation’s central complaint (indeed, the topic to which the vast majority of Mr Cakebread’s and Ms Levy’s written closing submissions were devoted) that DIB brought about Mr Fitzwilliam’s arrest and the Project’s demise for DIB’s own purposes. As will appear, in the case of Mr Bacon, but not Mr Fitzwilliam because there is no evidence to suggest that he was involved in the matter, my criticism goes further since I consider that evidence which he gave concerning flight details apparently obtained from his Emirates Airlines account was manufactured. That evidence, which was initially proffered in the morning of the second day of his cross-examination, was persisted in both that day and when he returned some weeks later to complete his testimony. I set out my reasons for rejecting Mr Bacon’s and Mr Fitzwilliam’s evidence concerning Chescor in what follows.

[115]First, I find it impossible to accept the evidence given by Mr Bacon concerning his interaction with Chescor. There is no evidence before me from anybody at Chescor which confirms that Mr Bacon had the dealings with Chescor which he described in his evidence. On the contrary, Mr Moore’s email rather points in the opposite direction. Had there been such dealings, it ought to have been relatively simple for such corroborative evidence to have been adduced, even allowing for any commercial sensitivities on Chescor’s part. I bear in mind in this context the evidence which Mr Bacon gave in his witness statement, as repeated in his oral evidence, concerning Mr Mallet’s role at Chescor. I have previously explained how Mr Bacon failed to mention that he and Mr Mallet were business partners at the relevant time. This was the matter which I asked Mr Bacon about during the course of cross-examination and the matter which Mr Moore, one of Chescor’s principals, confirmed in his email to Plantation’s solicitors, David Wyld & Co, sent on 10 November 2016. I have also expressed the view that it is hard to see why Mr Bacon should have chosen to describe Mr Mallet in his witness statement as Chescor’s Chief Investment Officer in circumstances where Chescor asked Mr Fitzwilliam and Mr Mallet for assistance since, if Mr Mallet really had been in that role at Chescor, it would have made no sense for Chescor to make any such request to Mr Fitzwilliam and Mr Mallet. The point goes further, however, since Mr Moore’s email dealt with what Chescor’s mezzanine fund entailed and what came of it. Mr Moore said this:

“To the best of my knowledge, Stephen Mallet and Nicholas Bacon were both engaged by Chescor Capital in the Middle East to assist in the development, structuring and placing of a specialist mezzanine finance fund that Chescor Capital was trying to develop sometime around 2008. This was for a relatively short period (I believe about three months). The fund did not get placed and the concept was subsequently abandoned.”

What Mr Moore had to say here makes it abundantly clear that Mr Mallet can never have been Chescor’s Chief Investment Officer since, if he had been, Mr Moore would have been bound to have said so in what, after all, is an email which was obtained on Plantation’s behalf by Plantation’s own solicitors. However, the email is also highly instructive in relation to what it says about the Chescor’s mezzanine fund never getting placed: quite clearly the fund never became operative, something which, in fact, Mr Bacon himself acknowledged when the point was put to him by Mr Anderson QC since he confirmed that “the fund did not actually launch”. I agree with Mr Anderson QC that, if the mezzanine fund had really been on the cusp of entering into the deal which Mr Bacon and Mr Fitzwilliam would have it was about to be concluded at a meeting in Hertfordshire which was to start on 9 June 2008, it is inconceivable that this would not have been mentioned by Mr Moore in his email. Although it seemed very likely that Mr Moore would have had explained to him by David Wyld & Co why he was being asked for assistance, I was told by Mr Cakebread that this was not the case and that no mention of Plantation was made when Mr Moore was asked to assist. Clearly, had Mr Moore been made aware of the context in which he was being approached, the absence of any mention of the proposed Plantation/Chescor deal in Mr Moore’s email would have been particularly striking. However, even if Mr Moore was not made aware of the reason for the inquiry, the point remains that his reference to the mezzanine fund not getting placed is at odds with its being about to enter into a deal involving Plantation since, if the mezzanine fund did not get placed, it is difficult to see how it could have been in a position to have agreed in principle to pay US$600 million for a 30% stake in Plantation during discussions with Mr Bacon in advance of the meeting which, according to Mr Bacon and Mr Fitzwilliam, was to take place in Hertfordshire.

[116]Secondly, although really this point is linked to the first reason why I cannot accept Mr Bacon’s and Mr Fitzwilliam’s evidence concerning Chescor, there is a complete dearth of documentation indicating that there were the dealings between Mr Bacon and Chescor which Mr Bacon described in his witness statement, whether in advance of the alleged Hertfordshire meeting or in its wake. Mr Bacon was asked, in particular, during the course of cross-examination about the valuation discussions which he said that he had with Dr Badr-El-Din. He explained that “I would have reported directly - I would have reported defining strategy to Arthur” but that “the documents are missing”. Although it is the case that documents and computers remained on the Plantation site after DIB took it over, and so Plantation has not had access to documents which might have touched on this issue, for there nonetheless to be no documents at all, including any which even hint at the discussions referred to by Mr Bacon, is striking. The more so, in circumstances where Mr Bacon referred in his evidence to “a draft termsheet” having “been reached” as well as to there inevitably needing to be “lots of going back and forth” when dealing with “a careful institution, which is internationally exposed” such as Chescor, yet there is not a single document which evidences such exchanges between Mr Bacon and Chescor. It is worth remembering in this context that, according to Mr Bacon, several meetings took place between Dr Badr-El-Din and him during the course of May 2008, followed by two days of pre-meetings which, he suggests, took place on 4 and 5 June 2008. Again, there is no documentation showing that such meetings, in fact, happened. This is all the more surprising given that the meeting which, according to Mr Bacon, was to take place in Hertfordshire starting on 9 June 2008 and lasting two days was a meeting which was intended “to close the deal”. Given that this was the purpose of the meeting, there simply must have been documentation produced, indeed on both sides and in all probability involving also professional advisers such as accountants and lawyers, but none has been produced. This was a very substantial deal which, according to Mr Bacon and Mr Fitzwilliam, was to reach a conclusion at this meeting. It is wholly inconceivable that documentation was not brought into existence. If that was the case, it is equally inconceivable that no documents now exist.

[117]The only document which was produced, and even then Mr Bacon was not able to say whether it was shown by him to anybody at Chescor, is a document setting out a valuation apparently prepared by Mr Bacon, which Mr Bacon explained he had recently unearthed after it had apparently lain in storage in Wales for some eight years. This emerged on the fifth day of the trial and so a week or so before Mr Bacon started his evidence. The document was a hard copy document; it was not available in soft format. Mr Anderson QC cast doubt in closing on its provenance, highlighting in particular how the document was in pristine condition despite its age and length of time in storage. Although, in the circumstances, given in particular what I come on to say concerning Mr Bacon’s Emirates Airlines account information, I have some reservations over the document’s provenance, I do not feel able to reject Mr Bacon’s explanation as to how it came to be found. For present purposes, the valuation does not, in any event, assist Plantation’s cause since, as Mr Anderson QC pointed out in closing, it is so lacking as a valuation that, if it had been shown to Dr Badr-El-Din (whom Mr Bacon described as a “very experienced and savvy businessman”), which Mr Bacon stated unequivocally it was not, then, I am confident that Dr Badr-El-Din, like any other sophisticated potential investor, would have seen that it was deficient and would not have placed any reliance upon it as justification for a valuation of Plantation which would support an equity raise in as high as a sum as that sought by Mr Bacon on Mr Fitzwilliam’s behalf. As I have mentioned, Mr Bacon did not, in fairness, suggest that the valuation was shown by him to anybody at Chescor. Indeed, given that the valuation refers to financial data contained in Plantation’s draft financial statements for the year ended 31 December 2007 and that financial data was not available to Mr Bacon before 29 May 2008, the document cannot have been before Mr Bacon when he had his meetings with Dr Badr-El-Din in May 2008 since those meetings took place before that date, specifically on 12, 19 and 20 May 2008. Be that as it may, the real point for present purposes is that, as Mr Anderson QC submitted, the valuation was very lacking and would inevitably have caused the potential investor in Dr Badr-El-Din’s position not simply to agree to what Mr Bacon was offering, as it would appear from Mr Bacon’s witness statement he was suggesting Dr Badr-El-Din did since there is no mention by Mr Bacon of any counter-offer having been made, though it is fair to point out that in cross-examination Mr Bacon suggested that his “experienced team … went through the documentation, questioned me over it”. The valuation is in a very substantial sum: US$2.103 billion. This compares to a valuation which [DTZ] prepared in August 2007 which saw Plantation valued at AED2.45 billion or approximately US$1 billion. Mr Bacon confirmed during the course of cross-examination that he arrived at his US$2.103 billion figure by using the 2008 “Projected Culmulative [sic] Free Cash Flow” figure of AED1.137 billion and multiplying that by a “Valuation Multiple” of 7.5, so as to give a value of AED 8.529 billion, which was then converted to US dollars at a rate of 0.2739, to give a value US$2.336 billion which was then discounted by 10%. Mr Anderson QC criticised each of these aspects. As to the multiplicand, he highlighted how Mr Bacon’s figures in his ‘Projected Cumulative Free Cash Flow’ did not represent sustainable future earnings but merely the projected “Cumulative Free Cash Flow” for “Year 2” in a “Consolidated Cashflow Statement” produced by Miss Sutherland on or about 13 June 2007 without paying any regard to whether villa plots sales had in the intervening year lived up to Ms Sutherland’s expectations. Mr Anderson QC also criticised the use of a multiplier of 7.5 or a discount of 10%, describing both as being entirely arbitrary. I consider that these various criticisms were justified, as were further criticisms concerning Mr Bacon’s somewhat confused, and anyway random, use of other data which saw him refer in one part of the valuation to a “cash in hand and at bank” figure taken from the audited balance sheet as at 31 December 2007, and refer in another part of the valuation to “net book value of plant machinery vehicles etc” information derived from the accounts for the previous year.

[118]Thirdly and perhaps most critically, there is the evidence which Mr Bacon, in particular, gave concerning the Hertfordshire meeting which, according to him, was to take place on 9 and 10 June 2008. There are a number of very considerable difficulties with Mr Bacon’s evidence in this regard. As I shall explain, I consider that Mr Bacon gave evidence on this topic which cannot be explained as having been given in error and which, in the circumstances, must have been given, I am driven to conclude, dishonestly. Mr Bacon cannot, in short, merely have been mistaken when he stated that he flew from Dubai to London in order to attend the meeting with Dr Badr-El-Din. He either did fly or he did not; there is no room for ambiguity. Equally, given that he was very specific in stating that the reason why he travelled to this country from Dubai in early June 2008 was to meet Dr Badr-El-Din and other representatives of Chescor, they can be no room for ambiguity or scope for misrecollection: either Mr Bacon was telling the truth about this or he was not.

[119]Mr Bacon’s evidence in his witness statement was clear and unequivocal. It was that, after meetings with Dr Badr-El-Din and agreement in principle, it was agreed that there would be a meeting at the Hertfordshire home of Dr Badr-El-Din which Mr Fitzwilliam would attend. This meeting, which supposedly Mr Fitzwilliam was to attend, was, Mr Bacon explained in his witness statement, preceded by meetings which he alone (without Mr Fitzwilliam) had with Chescor representatives. Mr Bacon was very specific about this, explaining that he arrived in this country on 4 June 2008, having the previous two days (2 and 3 June 2008) had discussions with Mr Fitzwilliam as to “how we would deal with Chescor”. This evidence was explored in considerable detail on the second day of Mr Bacon’s cross-examination. Mr Anderson QC started this part of his cross-examination by pointing out to Mr Bacon that no airline tickets or credit card statements had been produced showing his travelling arrangements for the relevant time. Mr Bacon answered by saying that he had not been asked to produce such documentation, albeit pointing out that he would no longer have flight tickets. As for his passport, he explained that he might possibly still have his old passport but that it would not have been stamped because he had a visa which enabled him to deal with things electronically. Mr Anderson QC then took Mr Bacon to certain diary entries. Mr Bacon explained that the entries were taken from a diary which was “just sort of my social home diary” and that “all of my work would have been conducted electronically via Outlook”. He added that the diary which, therefore, Mr Anderson QC was looking at was essentially a diary which let “my wife know where I was”. Mr Anderson QC asked Mr Bacon, in particular, about the entry for (Wednesday) 4 June 2008 which has at the top of the page a reference to Chescor followed by an entry stating “1000 hrs”. This was the day when, according to Mr Bacon, he travelled to the UK. Mr Anderson QC asked which airline he would have used to travel. Mr Bacon explained that it would have been either Emirates Airlines or British Airways, and that typically he would use an overnight flight arriving at Heathrow at 6 am. There was, however, in the diary for either 3 or 4 June 2008 no reference to any flight. This is in contrast to certain other entries on other days where such details are given, as well as on occasion hotel details. The absence of such details for 3 or 4 June 2008 may not be critical, however, given Mr Bacon’s explanation as to the function which this particular diary was designed to serve. Taken together, however, with the entries which follow for the days which followed, the position, in my view is clear: Mr Bacon did not fly to this country when he said he did, and the meeting which he insisted he held with Chescor in Hertfordshire did not take place.

[120]Starting with the entries for the afternoon of 4 June 2008, there are references to “Stephen – Chescor” and then (again) to “Chescor”. These are, however, as consistent with a meeting taking place in the UK between Mr Mallet (“Stephen”) as they are with a meeting taking place in Dubai, or indeed as consistent with discussions other than in a meeting taking place between Mr Mallet and Mr Bacon in London or Dubai. They certainly do not justify in and of themselves a conclusion that Mr Bacon must have been in the UK on the afternoon of 4 June 2008. There is no evidence from Mr Mallet stating that he met with Mr Bacon that afternoon in the UK. Furthermore, as Mr Anderson QC pointed out in his closing submissions, in the light of what Mr Moore had to say in his email to David Wyld & Co on 10 November 2016, there is no reason necessarily to suppose that the references to “Stephen – Chescor” and “Chescor” are references to discussions with Chescor as opposed to references to Mr Mallet and Mr Bacon merely discussing Chescor’s mezzanine fund having been asked to provide Chescor with the type of assistance described by Mr Moore. I agree with Mr Anderson QC also that subsequent entries to “Merchant Bridge” on (Monday) 9 June 2008 and (Tuesday) 10 June 2008, the days when Mr Bacon insists the Hertfordshire meeting should have been taking place, as well as on the following Wednesday and Thursday (11 and 12 June 2008), do not provide support for Mr Bacon’s evidence that he travelled to the UK. Mr Bacon suggested that “Merchant Bridge” was the project name which was given to the proposed deal with Chescor. However, I reject that evidence, in circumstances where MerchantBridge & Co Ltd is the name of an English private equity firm which invests in the Middle East with which Mr Bacon had professional contact. I consider it very unlikely indeed that Mr Bacon and Mr Mallet would have decided to adopt the same name for the Chescor deal. It would have made no sense at all to do so. It is much more likely that the various “Merchant Bridge” references have nothing whatever to do with any Chescor deal involving Plantation and instead reflect Mr Bacon’s dealings with MerchantBridge & Co Ltd. The fact that such entries appear where they do, in particular on 9 and 10 June 2008, is a strong indication that Mr Bacon was not in the UK on those days but was in Dubai.

[121]Other more mundane entries also point to Mr Bacon being in Dubai at the relevant time. To take an example, on (Thursday) 5 June 2008 there is a reference to “School Run”. Later on, after a reference to “Chescor” just before lunch, there are two entries for “Plantation” which are admittedly as consistent with Mr Bacon dealing with Plantation matters from the UK as they are with him doing so in Dubai. However, in the evening there is then a reference to “Desert Palm Hotel” which is the hotel near which Mr Bacon and his family lived. The following day (Friday) 6 June 2008, there are references to “Plantation Riding” in the morning and to “Home” in the afternoon followed by an entry in the evening which refers to “Raffles”, the hotel or restaurant in Dubai and mentions, as Mr Bacon explained, two friends of his. On (Sunday) 8 June 2008 there is another reference to “School Run” followed by an entry which states “Abu Dhabi Chescor” and so suggesting that, rather than being in the UK, Mr Bacon travelled from Dubai to Abu Dhabi, in all probability for discussions concerning the setting up of Chescor’s proposed mezzanine as described by Mr Moore rather than to discuss a deal concerning Plantation in relation to which there was to be a meeting the next day in the UK. Then, on (Monday) 9 June 2008, besides the reference to “Merchant Bridge”, there is an early entry which states “Run” followed by a reference to a meeting concerned with Plantation. Then, before an afternoon reference to “Merchant Bridge”, Mr Bacon has stated that he has eaten, or planned to eat, “Sushi”. (Tuesday) 10 June 2008 again starts with a reference to “Run” before containing entries for Plantation and “Merchant Bridge” both for the morning and the afternoon with a lunchtime engagement at “Grosvenor House”, another establishment in Dubai. In the evening the following entry appears: “7.30 Home Novatis Call”.

[122]These various entries seem to me to make it abundantly clear that throughout this time period Mr Bacon remained in Dubai, albeit with an excursion to Abu Dhabi on 8 June 2008. Perhaps the most significant entry, however, is one which I have not mentioned, namely a reference on (Thursday) 5 June 2008 as follows: “1000 hrs Tatweer”. This was a meeting concerning White Water Dubai which certainly took place in Dubai because amongst certain emails which were disclosed from Ms Sutherland’s personal computer after she had finished giving her evidence are exchanges between Mr Bacon and a Mr Ulrike Schwarz-Runder of Tatweer. Specifically, Mr Bacon sent Tatweer an email on (Monday) 2 June 2008 in which he began by referring to the fact that he had left “a voice message earlier to see if you were able to catch up over a coffee” and asking that he be given “a call if you are free at all this week”. He ended his email by stating that he understood “that there will be a meeting of [sic] Thursday when progress towards the MOU and land allocation will be discussed, however I would be very happy to catch up beforehand if you are free”. It is very difficult to see how Mr Bacon could have sent an email in these terms if he had been intending to travel from Dubai to London the following day, 3 June 2008, or indeed at any time that week. The email thread then continues with an email from Ulrike Schwarz-Runer to Mr Bacon on 5 June 2008, the day of the diary entry to which I have referred, stating that it “was good to see you again”. Significantly, Mr Bacon responded the same day saying this: “Thank you for your time today”.

[123]The position is clear: Mr Bacon must have been in Dubai on 5 June 2008. Mr Bacon, indeed, appeared to acknowledge this after the exchanges had been put to him, explaining that he had based his witness statement on his diary entries and “can only imagine that I in fact travelled that weekend” which was a reference to the weekend immediately after 5 June 2008. This nonetheless did not explain the entries for subsequent days, specifically 6 to 10 June 2008, which I have already described. I am clear that these entries are to be regarded as demonstrating that Mr Bacon did not travel to the UK when he said that he did. This is a conclusion which I would have reached, in any event, based on the material to which I have referred. However, Mr Bacon’s evidence then took an unexpected turn. The following day, the third day of his cross-examination, Mr Bacon returned to court to continue to be cross-examined by Mr Anderson QC. That cross-examination took all day but had still to be completed by the end of the day. Accordingly, Mr Bacon returned to Court for a fourth day. He had, however, overnight been looking into the position concerning his Emirates Airlines account. It is fair to say that Mr Bacon looked tired and troubled as he was about to resume his evidence. In my view, this was because he appreciated that the position which he now found himself in was somewhat difficult and, perhaps, appreciated or feared that it was about to become more difficult still. Mr Bacon had earlier that morning sent Ms Levy an email in which he stated as follows:

“see attached frequent flyer record downloaded from the re activated account. It shows a flight 8-10 June 2008 DXB to LHR amongst others”

. Attached was a PDF document described as “mystatement 2 08.26.08.pdf” and sized at 156 KB. Just over 10 minutes later, however, Mr Bacon sent Ms Levy a second email in which he stated that he had “managed to download in a more detailed format” and attached a second PDF document this time sized at 160 KB.

[124]Mr Bacon was asked about this by Mr Anderson QC, albeit plainly Mr Anderson QC was not in a position to deal with the matter in any depth and essentially confined himself to asking Mr Bacon for the necessary information to enable his Emirates Airlines account to be accessed. Mr Bacon explained that he had not “brought the details with” him and that he had only managed to obtain the information which he had obtained by resetting “a whole load of details”. Mr Bacon had a pre-arranged meeting for the afternoon and so time was short. As a result, arrangements were made for access to be had to Mr Bacon’s Emirates airlines account, the details of which I need not set out here. Ultimately, however, DIB sought an order requiring Emirates Airlines to provide certain information concerning Mr Bacon’s flights record. This came in the form of a letter to Baker & McKenzie from a Dr Abdulla Al Hashimi, the Divisional Senior Vice President of Emirates’ Group Security. That letter, which was dated 29 November 2016, attached the relevant account “travel summary for the period 22-Apr-2006 to 10-Aug-2009” and went on:

“Scrutiny into the travel history (Skywards) has revealed that no travel was undertaken by the Subject [Nicholas Bacon] during 07-Jun-2008 from Dubai to London Heathrow and 09-Jun-2008 to 11-Jun-2008 London Heathrow to Dubai.”

Mr Anderson QC submitted in closing that the attached details demonstrate clearly that Mr Bacon manipulated the Excel spreadsheet which he downloaded from the Emirates Airlines’ website, so as to alter the details of flights that he took on 29 and 31 May 2008 (to Heathrow from Dubai, and return) to make them look as though they took place on 8 and 10 June 2008. He then converted the document to a PDF file in order that his changes could not be traced, producing the document he then provided to Ms Levy. This is the point which he put to Mr Bacon when he returned to Court on 1 December 2016 in order to be asked about this matter and for his re-examination to be completed. Mr Bacon denied Mr Anderson QC’s allegation. He explained, in particular, that his laptop operated “over our corporate VPN network … so file size is important” and that saving in PDF form involves smaller files. Although I do not doubt that that is the general position, nonetheless I am equally in no real doubt that it suited Mr Bacon in the present case to save the download in PDF format because it enabled him to make changes. In short, I found Mr Bacon’s denials wholly unconvincing. I accept, without hesitation, the accuracy of the information which has been provided by Dr Al Hashimi. Mr Cakebread highlighted the fact that the Dubai government has an interest in both DIB and Emirates Airlines, hinting at DIB having conspired with senior management at Emirates Airlines to present false documentation. There is, however, no reason to suppose that there has been any such conspiracy. The position seems to me to be clear: entries 135 and 136 in the schedule which he has provided, showing flights taken by Mr Bacon in business class from Dubai to London Heathrow on 29 May 2008 and returning from London Heathrow to Dubai on 31 May 2008, do not appear in the PDF document which Mr Bacon created using the Excel document he downloaded from Emirates Airlines’ website. Instead, flights are described as having been taken on 8 June 2008 (Dubai to London Heathrow) and on 10 June 2008 (London Heathrow to Dubai), both in business class. The flight immediately before the 8 June 2010 entry in Mr Bacon’s PDF document is given as a flight on 15 May 2008 from Amman to Dubai. That flight appears also in Dr Al Hashimi’s schedule. The flight which comes after the 31 May 2008 flight referred to at entry 136 of that schedule is a flight on 9 July 2008 described as having been from London Heathrow to Dubai. That same flight appears in Mr Bacon’s PDF schedule. What has plainly happened here is that Mr Bacon has changed the dates for the intervening two flights from Dubai to London Heathrow and returning from London Heathrow to Dubai so that, instead of the flights being shown as having been taken on 29 and 31 May 2008 respectively, they appear as flights which were taken by Mr Bacon on 8 and 10 June 2008. The alterations were, no doubt, easily made in the Excel spreadsheet which Mr Bacon had access to. They are, of course, not able to be identified in a PDF document.

[125]Mr Bacon, in essence, returned to Court for a fourth day of cross-examination having doctored evidence so as to support a version of events which he knew to be untrue. Matters did not stop there, however, since, in returning to be asked about these matters on 1 December 2016, Mr Bacon was asked by Mr Anderson QC whether he would be agreeable to hand over the laptop on which the Emirates Airlines’ PDF documents had been created on 11 November 2016 so that an image could be taken of the hard drive and examined by specialists. He agreed to this, having confirmed in the meantime that the computer concerned was the computer which he used when accessing his account. Subsequent analysis revealed, however, that it was “extremely unlikely”, as DIB’s specialist put it, that the laptop which had been examined (a Lenovo Yoga machine running the Microsoft Windows operating system) had been used to create the PDF files since the PDF file properties of the document which Mr Bacon had provided to Ms Levy on the third day of his evidence (11 November 2016) indicate that that document was created using a Macbook, rather than any other type of computer, running Max OS X 10.11.6 Quartz PDF Context. Mr Cakebread responded to this point, which was made in Mr Anderson QC’s written closing submissions, in an email which was sent to me, with my permission, after the trial had concluded. In that email it was explained that Bishop Group, Plantation’s forensic computer experts, had been informed that Mr Bacon had told Ms Levy that his employer’s VPN “operates in an exclusively Apple environment” and that, in such circumstances, if Mr Bacon “remote-controls his work computer over the VPN, then that is most likely where the flight material and internet history will reside” whereas if Mr Bacon “simply uses the internet connection at his office over the VPN, the data will most likely be on the laptop and not the work computer as he is using the web browser, pdf creator etc. on the laptop and not his work computer”. In order to ascertain the position, apparently “it would be prudent to examine both if possible”. Accordingly, Mr Cakebread submitted, the use of Mr Bacon’s employer’s VPN may provide an explanation as to why the PDF was downloaded in an Apple environment. I must reach a view on this matter and, viewing the evidence in the round, faced with having to make a choice between Mr Bacon having made alterations to the Emirates Airlines’ account, on the one hand, and DIB conspiring with Emirates Airlines to create a false document, on the other, I regard the choice as clear: it was Mr Bacon who did the manipulation. I bear in mind in this context that Mr Cakebread went on in his email to describe the work which had been done by Bishop Group in relation to Dr Al Hashimi’s schedule. He explained that they had ascertained that this had been created by a user named Anf Ahamed who created it by printing it from Microsoft Excel 2010 on 28 November 2016. They apparently made the point that, in order to undertake any meaningful analysis, they required the original .XLSX spreadsheet from which Mr Ahamed produced the PDF file since, without looking directly at the Emirates Airlines’ flight database system, “the original spreadsheet is where we would find any data omitted from the PDF file”. They, therefore, required “access to the original Excel spreadsheet from which the PDF was generated at Emirates”. Such a request having been made of Baker & Mackenzie, their response on behalf of DIB was that it was not possible to provide the Excel file “as the data was extracted in a different format, i.e. from a database which was reformatted and presented in a PDF format”. Mr Cakebread reported that Bishop Group had not expected such a response but that “there may be a plausible explanation”. The only way of finding out the true position would be to access the Emirates Airlines database “to see if it contains the 2008 dates and to see if that has been tampered with by looking at the older back-up copies of the database that would have to exist” but that “would be an expensive operation”. I should record that Plantation did not seek any order permitting such access to be given; nor, as far as I am aware, was it sought on a voluntary basis from DIB. In the circumstances, for the reasons which I have given, I am left in the position which I have described already and have arrived at the conclusion which I have: that Mr Bacon, rather than Emirates Airlines in conjunction with DIB, made the alterations which I have described on the morning of 11 November 2016 as he was about to resume his evidence. In the circumstances, it is hardly surprising that, as I have previously observed, he looked as troubled as he did that morning: he had embarked on a course which entailed serious misconduct.

[126]In view of this conclusion, I should briefly mention that Mr Anderson QC referred in closing to Arrow Nomines Inc & Another v Blackledge & Others

[2001] BCC 591

. In that case, the Court of Appeal struck out an unfair prejudice petition on the basis that the controller of one of the petitioner companies had forged documents as part of his object of frustrating a fair trial. Chadwick LJ explained the rationale behind the striking out order in these terms at [54]:

“… I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.”

Mr Anderson QC submitted that I should, as he put it, “bear in mind” these observations. However, since he did not invite me to strike out Plantation’s claim, they are of only limited relevance. I prefer, in the circumstances, to deal with the case as advanced by Plantation on its merits.

[127]There are additional reasons why I reject Mr Bacon’s evidence concerning the Hertfordshire meeting and the alleged Chescor deal. The first of these is that I find it unrealistic to suppose that Mr Bacon can really be right when he gave evidence that he, along with Dr Badr-El-Din and the others at the meeting which he maintains took place, simply waited for Mr Fitzwilliam on 9 June 2008, doing nothing to try to find out what had caused Mr Fitzwilliam’s non-attendance. Such a reaction would simply have made no sense at all. This was a deal which, on the basis of Mr Bacon’s evidence, was wanted by Chescor. The notion that, in those circumstances, nobody would have done anything is utterly implausible. There is, however, nothing to indicate that anything was done. There is no sign of any email having been sent to Ms Sutherland, for example, to ask where Mr Fitzwilliam was. Nor does Mr Bacon or anybody else say that they made such contact. On the contrary, it would appear, based on Mr Bacon’s evidence, that the participants in the meeting simply waited for Mr Fitzwilliam to arrive and then dispersed without a single effort being made, either at the time or in the days or weeks which followed, to find out what had happened and, indeed, to inquire whether the deal could be revived. In fact, according to Mr Bacon, the first that he heard about that Mr Fitzwilliam’s arrest was not for another two or three weeks. It appears that Ms Sutherland decided to keep the fact that Mr Fitzwilliam had been arrested from Mr Bacon, instead telling him that Mr Fitzwilliam had had to travel to Greece to deal with certain family matters. It is significant, however, that it was only in cross-examination that Mr Bacon stated that “there was an absolute conversation with her the next-either that day or the next day about Arthur’s whereabouts and how angry” he was that Mr Fitzwilliam had not turned up at the meeting in Hertfordshire. This was in response to Mr Anderson QC asking why there is nothing to indicate in the documents that Mr Bacon got in touch with Ms Sutherland to ask what had happened to Mr Fitzwilliam. I found Mr Bacon’s evidence in this regard entirely unconvincing. If Mr Bacon really had got in touch with Ms Sutherland or anybody else at Plantation in the immediate aftermath of the meeting or indeed whilst still in Hertfordshire awaiting Mr Fitzwilliam’s attendance at the meeting, it is difficult to see why there is nothing in the documentation to indicate, or even hint, that such an inquiry was made. I am quite clear that Mr Bacon did not ask any such question at all. This, despite the fact that Mr Fitzwilliam had failed to attend a very important meeting concerning a very large and critical deal which had come to nothing through Mr Fitzwilliam’s ‘no show’. Mr Bacon only somewhat vaguely suggested, when asked by Mr Anderson QC, that Ms Sutherland had said something to him about Mr Fitzwilliam having travelled to Greece to deal with family matters. This was, I repeat, only as a result of questions from Mr Anderson QC asking why there are no documents indicating that any such inquiry was made by Mr Bacon of anybody at Plantation. Nor, it is worth bearing in mind also, is there any evidence from anybody else who attended the meeting in Hertfordshire, specifically from Chescor personnel, to indicate that they raised any query concerning Mr Fitzwilliam’s whereabouts. If the Chescor deal really was about to be finalised in Hertfordshire and this only failed to happen because of Mr Fitzwilliam’s non-attendance at the meeting, somebody would have been bound to ask why it was that Mr Fitzwilliam did not attend. The fact that nobody did provides strong support for the conclusion that Mr Bacon’s evidence concerning the meeting simply cannot be right.

[128]Furthermore, and crucially, there are documents showing that in the days which followed the alleged meeting in Hertfordshire there was contact between Mr Bacon and Plantation, specifically Ms Sutherland and Mr Woolf, in which the complaint was made that there had been no contact with Mr Bacon “since Thursday afternoon”. I refer here to an email which Mr Woolf sent Mr Bacon, copying in Mr Fitzwilliam and Ms Sutherland, on Saturday, 14 June 2008. In that email Mr Woolf asked Mr Bacon to “call to provide us with an update of where things are at from your side”, explaining that attempts had been made to contact him “via call, email and SMS on several different occasions since Thursday afternoon without response”. Mr Bacon’s response the same day was to email saying that he had “just got into Kuwait, to try a final tactic”. He then went on to make no mention of the Chescor deal and in particular the Hertfordshire meeting which Mr Fitzwilliam had failed to attend and instead raised matters in connection with a different project altogether namely something called the Holly Bolly project. There is not the slightest hint in either of these email exchanges that Mr Bacon had only recently returned from the UK having been at a meeting with Chescor which collapsed owing to Mr Fitzwilliam’s non-attendance. Subsequent email exchanges the following day involved Mr Bacon explaining that the Holly Bolly efforts he was making in Kuwait had come to nothing. It should be noted that there is no equivalent email exchange from Mr Bacon in the wake of the meeting which, according to him, took place in Hertfordshire the previous week. That Mr Bacon’s evidence in relation to the Hertfordshire meeting cannot be relied upon is additionally supported by certain emails which passed between Mr Bacon, Ms Sutherland and Mr Woolf in the days which followed. These emails, which came from Ms Sutherland’s own computer, were only disclosed during the course of the trial, indeed after Ms Sutherland had completed her evidence. Significantly, on 16 June 2008 Mr Bacon sent Ms Sutherland and Mr Woolf an email headed “Resourcing Plan Plantation Equity Raise” in which he referred to the fact that to “take this on will be a full-time commitment from me”. He went on to set out details which, far from being consistent with a deal such as the Chescor deal having already reached an advanced stage (only then to have failed in Hertfordshire), demonstrate that Mr Bacon (contrary to the evidence which he gave) was only instructed to find a purchaser for Mr Fitzwilliam’s equity interest in Plantation a week later, on 16 June 2008, and so after (albeit not apparently known to Mr Bacon at the time) Mr Fitzwilliam had been arrested. Interestingly, in a further email also sent on 16 June 2008 Mr Bacon asked Ms Sutherland to seek Mr Fitzwilliam’s approval in relation to various points, including Mr Bacon’s stated need to have “Arthur in Europe at various points in July and August”. Had Mr Fitzwilliam only recently failed to attend a meeting in Hertfordshire, Mr Bacon would have been bound to have made reference to this fact in that email. The fact that he did not do so is, accordingly, instructive. Even if the topic of an “equity raise through Plantation” had been discussed between Mr Bacon and Mr Fitzwilliam previously, it is perfectly obvious that it had not advanced to the stage of the type of meeting which Mr Bacon insisted was to have taken place in Hertfordshire. This is made plain by an email which Mr Bacon sent Mr Fitzwilliam, Ms Sutherland and Mr Woolf on 18 June 2008. In that email he said this:

“… Before Arthur left he asked me to prepare my thoughts on a significant equity race through Plantation. I did very little work on this until I met with Tom and Suzzanne [sic] on site on Monday, when we met to discuss Holly Bolly. During that meeting you asked me [to] execute a significant capital raise (circa USD $ 700M) and the options and likely hood [sic] of raising a fund. Long story short we agreed that we would do this in parallel and discussed that it would be an intensive programme would need to start immediately. I prepared some action points, including the likely cost and time commitment from my side which we agree to. Next, even before we had any formal agreement, but with your knowledge, I gave instructions to form a fund and secure the resources of two full-time members for a month. They set to work immediately and I also declined two other opportunities to focus on this very large project. This caused some concern with my partner who insisted that I formalise the engagement which I did with you yesterday morning … In addition to the preparation work and fund formation we have also conducted a number of interviews, arrange for a candidate to fly to Dubai, arranged investor meetings, prepared a brief and met with EFG-Hermes and gave a detailed briefing to our London placement agent. Whilst the exception of the fund establishment this can be all on-wound, time is very much of the essence as we were looking to get into the market in July and every day was valuable. … Trust me I am completely committed to you all and you have my full attention, however can we please not go off half-cock again, I am in for a tough day.”

Indeed, Mr Bacon appears to have drawn up a letter dated 16 June 2008 which specifically set out the terms of an agreement under which he was to act to raise US$700 million.

[129]This material makes it inconceivable that Mr Bacon’s evidence concerning the Hertfordshire meeting can have been true. In short, I am left in no doubt that the evidence given by Mr Bacon and Mr Fitzwilliam concerning the Chescor deal should not be accepted. It is that deal which has been my focus in this section. However, it is convenient to go on, relatively briefly, to address Mr Cakebread’s submission that, as he put it in the course of his closing, there was “substantial interest by potential investors with the means to acquire either whole of or a major stake in Plantation”. He had in mind, in particular, deals about which Mr Bacon gave evidence concerning Arbah Capital and Noor Capital. Mr Bacon’s approaches to these parties came later, when Mr Fitzwilliam was in prison. Mr Cakebread nonetheless prayed them in aid when seeking to refute Mr Anderson QC’s suggestion that Plantation was in so poor a financial state in mid-2008 as to be of no interest to third-party investors. Mr Cakebread suggested, in particular, that Noor Capital was willing to enter into a deal in late 2008 which would have seen Noor Capital pay US$720 million with full knowledge of Mr Fitzwilliam’s incarceration. Mr Bacon was asked about this matter in re-examination. Specifically, he was taken by Mr Cakebread to an email which he sent to Ms Sutherland and Mr Woolf on 30 October 2008. In that email he described having “had a long chat to Arthur today” and to their agreement that “I should go to Abu Dhabi today to open up more detailed negotiations with the second option”. The “second option” was, Mr Bacon explained, a reference to Noor Capital since Noor Capital were based in Abu Dhabi. Mr Bacon had previously explained in his witness statement that earlier in October 2008 he travelled to Abu Dhabi to meet Noor Capital’s principals, in the company of Mr Michael Williams and Mr David Mapplebeck from Novati, and that this meeting led to work being carried out with Noor Capital’s investment subsidiary, Gulf Cap. This work resulted in a proposal put together by Novati which entailed Noor Capital (described by Mr Williams in his letter to Mr Fitzwilliam dated 3 November 2008 as being Novati’s “co-investor”) purchasing the entirety of Mr Fitzwilliam’s equity interest in Plantation for “around US$720m - enough to pay the debt to the Bank, and preserve some value for Arthur” who would “remain as the principal with control of the development”. It was Mr Bacon’s opinion, as stated in his witness statement, that if DIB had not taken physical possession of the Plantation site on 4 November 2008 “there is a very strong likelihood that this transaction was completed in a very quick timescale as Noor both had the capital requirement and local understanding to complete the transaction”. Mr Bacon confirmed in re-examination that, as far as he was concerned, the US$720 million was “a firm figure”. He did so after Mr Cakebread had taken him to certain correspondence between DIB and Novati, specifically a letter from Mr Fahad bin Fahad, DIB’s Chief Risk Officer, to Mr Williams concerning a possible consultancy arrangement between Novati and DIB, which was followed by an email sent by Mr bin Fahad to Mr Nidal Shomali, DIB’s Head of Collections and somebody to whom I shall be referring shortly, on 22 December 2008 in which he referred to it having been “decided yesterday not to pursue an agreement with Novati based on our meeting with Noor capital and their preference of having a direct dialogue with DIB regarding their interest in the plantation project”. Mr Bacon was also shown an internal DIB email exchange involving Mr Ilahi on 25 January 2009 in which Mr Ilahi referred to his being “happy to receive the CEO of Noor Capital” in response to an email referring to a meeting with him which was to take place on 27 January 2009. That email described Noor Capital as being “the potential buyer of the Plantation Land” and stated that Noor Capital’s Chairman would also most likely attend the meeting. Mr Bacon suggested in re-examination that the fact that such a meeting was planned “would suggest that everything was fairly well advance between the two parties”. In truth, however, it seems to me that the amount of weight which can be placed on the Noor Capital discussions is relatively slight since it is not obvious to me that any such deal was going to be concluded. The most that can be said is that Mr Bacon and Novati were in discussions with Noor Capital which DIB took further forward, initially alongside Novati and subsequently without Novati’s involvement. Those came to nothing and, although Mr Bacon was minded to suggest in his witness statement that Noor Capital only “had some further due diligence of its own to complete”, I feel unable to place much significance on what Mr Bacon had to say in this regard in view of my doubts concerning his reliability as a witness generally. Mr Bacon went on in his witness statement to refer to Noor Capital as having been “committed to making the investment”, but again this is not evidence that I consider ought to be accepted without rather more documentary corroboration than exists.

[130]The same applies in relation to Arbah Capital, which withdrew their interest in November 2008 “citing”, as Mr Bacon put it in an email sent to Ms Sutherland and Mr Woolf on 25 November 2008, “market conditions and the changes to the circumstances of the transaction”. Mr Bacon explained in re-examination that in this regard Arbah Capital were being “professional and polite” since, in his view, the real reasons for Arbah Capital’s withdrawal were “the continuing situation with Arthur” which had become “public knowledge” and the fact that DIB had by that stage taken over physical possession of the Plantation site. It appears that Mr Bacon had made contact with Arbah Capital in September 2008. Indeed, following a meeting held at the offices of Norton Rose, Arbah Capital’s solicitors, Mr Bacon sent Ms Sutherland and Mr Fitzwilliam a document which he described as an “Arbah Termsheet” and which had been prepared by Norton Rose. That document described the “Investment amount” as being US$600 million which was to be paid in respect of 60% of the “common stock” of Plantation. It went on to refer to certain “Pre Contract Conditions” which included the following in particular:

“The Directors of Plantation Holdings FZ LLC warrants that they are not subject to any criminal proceedings in the United Arab Emirates or any other jurisdiction.”

It is instructive that this proposed deal involved, as Mr Bacon acknowledged during the course of cross-examination, effectively half of what, according to him, had been envisaged would be achieved through the Chescor deal. Aside from this, however, it is perfectly obvious that the pre-condition quoted above would represent a considerable difficulty for Mr Bacon and Plantation in seeking to bring the Arbah Capital deal to fruition, even though it is right to acknowledge that Mr Bacon’s solution in re-examination was that all that needed to happen was for Mr Fitzwiliam to be removed as a director. Another difficulty was the fact that the term sheet envisaged that 20 villa plots would be released onto the market by 17 December 2008. As Mr Bacon himself pointed out in an email which he sent to Norton Rose on 27 September 2008, “having to commit to 20 villa sakes [sic] by 17/12/08 is a little premature at this stage”. In any event, just a month later, on 28 October 2008, Mr Bacon was pressing Ms Sutherland and Mr Woolf to speak to Mr Fitzwilliam in relation to a matter which he described as urgent and which, he confirmed in cross-examination, involved his concern that Arbah Capital were about to pull out of the proposed deal. This, indeed, is why two days later, on 30 October 2008, Mr Bacon sent Ms Sutherland and Mr Woolf his email in which he referred to having spoken to Mr Fitzwilliam and to their agreement that Mr Bacon should travel to Abu Dhabi “to open up more detailed negotiations with the second option”, namely with Noor Capital. The proposed deal involving Arbah Capital was, accordingly, short-lived and not a transaction which was ever going to result in investment at any level. It was also, I should mention in passing, a transaction which Mr Bacon was driven to accept during the course of cross-examination he pursued in his personal capacity rather than on behalf of Novati. Mr Bacon insisted, however, that his colleagues at Novati were made aware of what he was doing in relation to Arbah Capital. This is not a matter about which I need to express a concluded view.

[131]In conclusion, before I come on to deal with Plantation’s case concerning deliberate breach on the part of DIB, I am quite satisfied that Mr Cakebread’s submission that there was substantial interest by potential investors with the means to acquire either whole of or a major stake in Plantation during the course of 2008 is simply not borne out by the evidence. The truth is that Plantation was in a bad financial state in June/July 2008 with little prospect of being able to attract the type of investment which would have enabled it to continue, even leaving aside the economic crisis which was about to envelop the worldwide business community. This is relevant both to DIB’s case that by June/July 2008 there had been an Event of Default under clauses 18.1(e), (f) or (g) of the RSA and to the case which is put forward by Mr Anderson QC in relation to causation.

Plantation’s case on deliberate breach and the arrests in particular

[132]I turn, then, to Plantation’s case on deliberate breach and, as part of that case, the suggestion that DIB was somehow responsible for Mr Fitzwilliam’s arrest. That arrest took place on Friday, 6 June 2008 and followed the arrests of Mr Ridley and Mr Cornelius which had taken place the previous month. Specifically, as Flaux J explained in his judgment at [61] and [62], Mr Cornelius was arrested at Dubai airport on 21 May 2008. Mr Fitzwilliam explained in his witness statement that at the time Mr Cornelius was on his way to Pakistan and that he was in the middle of a telephone conversation with Mr Cornelius at the precise moment of his arrest. Mr Ridley was then arrested six days later on 27 May 2008. The following day, again as noted by Flaux J at [62], a letter was sent by the General Directorate of State Security to Mr Al Zarouni, Assistant Public Prosecutor, in relation to the receipt of bribes by Mr Marooj, who was then arrested either the same day or the following day. As for Mr Fitzwilliam, he explained in his witness statement that, though he was unaware of it at the time, an arrest warrant had been issued in respect of him on 9 April 2008. That arrest warrant was valid for only seven days, and so had expired by the time that he came to be arrested in early June 2008. Be that as it may, as Mr Fitzwilliam went on to explain, immediately after his arrest he was interviewed for five hours, before being held incommunicado in state security cells for 10 days. He thought that, as he put it in his witness statement, his arrest “was just another Arab mess up that would resolve itself as the police and prosecutor learned more of the facts” but that, when he “saw the false evidence being produced against me sometime later”, he “realised someone wanted me to be kept in prison”. Explaining that “Dubai is not a western democracy, governed by the rule of law, with an independent judiciary or legal system” but “is an emirate governed by the Emir … who holds absolute power and rules largely through members of his family and chosen functionaries”, he went on to express the view that the “almost immediate service of the breach notice on Plantation fitted exactly with the decision taken very high up in the state”. Specifically, Mr Fitzwilliam went on in paragraphs 70 to 72 to say this:

“… It has to be appreciated that all of the bodies involved, the FAD, the Bank, public prosecutor, the state police, or reported to the same person, the Sheikh’s placement, Al Shaibani. … The issue is not whether there might be a document supporting the allegation that the Bank sought my arrest rather than the FAD or the public prosecutor. None of these bodies act independently. They are all part of the same state apparatus reporting to Al Shaibani and ultimately the Emir. In this respect it has to be understood that the stiff sentences handed out to Ridley, Cornelius and the corrupt bank officials reflected the fact that they had stolen from an organ of the state and therefore effectively the Emir himself. That is how things are understood in the Gulf. Seems to be simply fanciful to suggest that the breach notice was ‘co-incidentally’ served at the same time as I was arrested. It is plain and obvious that they were part of a scheme organised from the highest echelons of the Emirate to punish those who had betrayed Dubai by engaging in the original fraud and then being party to an agreement which sought to provide a smokescreen for the guilty.”

During the course of cross-examination, Mr Fitzwilliam added that, as he was being interviewed post-arrest, he was told that “If you sort this with the bank, it will all go away”. It is, in short, Mr Fitzwilliam’s strongly held opinion that DIB was behind his arrest and that his arrest was part and parcel of a strategy which involved the service of a default notice on 9 June 2008 followed, ultimately, by the taking of the assignment in mid-July 2008. More specifically, Plantation’s case is that, after Mr Al Shaibani became DIB’s non-executive Chairman in early March 2008, there was a change in DIB’s attitude brought about by his taking the view that Mr Fitzwilliam (along with Mr Ridley and Mr Cornelius and others) had defrauded DIB. It is then said that Mr Al Shaibani, through his position in the government of Dubai, was able to bring about the arrest and prosecution of Mr Fitzwilliam (and the others) in order to enable DIB to seize the Project.

[133]This same contention was put forward in the trial which took place before Flaux J. His conclusion was that DIB did not procure Mr Fitzwilliam’s arrest and that if any party did so it was the FAD. Specifically, Flaux J summarised his conclusion at [93] as follows:

“My overall conclusion in relation to the arrests and prosecutions is as follows. The overwhelming weight of the documentary evidence, confirmed by the evidence of Lt. Col. Belhaul to the Public Prosecutor, is that it was the FAD and Dubai State Security (not the Bank) which provided the report and file to the public prosecutor setting out the results of the investigation which the FAD had been conducting since the autumn of 2007. In other words, to the extent that anyone other than the Public Prosecutor's office itself procured the arrests, it was the FAD, not the Bank. In due course, based on the investigation the FAD had conducted, prosecutions of those individuals ensued.”

In his witness statement Mr Fitzwilliam criticised this conclusion as having “missed the point”. In his submissions, Mr Cakebread similarly criticised Flaux J’s conclusion. He made the point, in particular, that Flaux J did not have certain documents before him which were before me. Mr Cakebread additionally highlighted events in the immediate lead-up to Mr Fitzwilliam’s arrest which, he suggested, pointed to there having been “heightened activity” within DIB which is consistent with DIB knowing that Mr Fitzwilliam was about to be arrested. These events, suggested Mr Cakebread, particularly when viewed alongside a consideration of what Al Tamimi had been asked by DIB at the time to do, point strongly towards DIB not only procuring Mr Fitzwilliam’s arrest but engineering a situation where DIB could take over the Project. Specifically, it was Mr Cakebread’s submission that, even if Mr Fitzwilliam did not have the conversation with Mr Kamal in which Mr Fitzwilliam stated that he was going to be travelling to the UK to close the Chescor deal, DIB should be regarded as having knowledge of Mr Fitzwilliam’s imminent arrest. Mr Cakebread, furthermore, pointed to subsequent events as demonstrating what Mr Cakebread described as “the close relationship between the Bank, the Diwan and the prosecutor” as well as “the ruthless attitude adopted by the Bank towards [Mr Fitzwilliam], [Ms Sutherland] and Plantation and others which are perceived to be a threat to water have caused damage to it”. In this last respect, Mr Cakebread placed particular significance on the evidence which was given by Mr Ilahi.

[134]These are all matters which I come on now to address. As I shall explain, I cannot accept the case which has been advanced on Plantation’s behalf. There are a number of reasons for this. First, there is the position of Mr Al Shaibani, who was described by Mr Cakebread in closing as having been “tasked with cleaning up the Augean stables” which was the RSA. Although I make it clear that I have not in any sense regarded myself as bound by any of the conclusions which were reached by Flaux J since Plantation was not a party to the earlier proceedings, nonetheless I agree with Flaux J when he stated in his judgment at [49] that there is no evidence that Mr Al Shaibani “concerned himself with the day to day running of the Bank, including the administration of the RSA, which is not surprising for a non-executive chairman”. Furthermore, again as noted by Flaux J, “there is simply no evidence that, as Chairman of the Bank he influenced the course of an investigation by the FAD into the CCH fraud and the payment of bribes to Bank employees, which had clearly begun before he returned from London and became Chairman”. As Mr Anderson QC pointed out in closing, Mr Kamal’s evidence was that he was not aware of Mr Al Shaibani having any direct involvement in DIB. Furthermore, Mr Kamal explained very clearly, when asked about the involvement of the Dubai government in the running of DIB, that DIB “was managed totally independently”. He explained, in particular, that there “was a board and the bank management reported to the board, so there was no direction, let me say that, from the government towards Dubai of what to do and what not to do”. It was, he clarified, “entirely for the executive management to develop the business plans, execute them, and report to the board on the general items that are reported as and when they were due”. As far as Mr Kamal (who no longer works for DIB) was concerned, DIB operated “as an independent entity since the day I joined until the day I left”. Mr Al Sharif gave evidence to the same effect, drawing a clear “distinction between the board of directors and the executive management” and explaining that day today management was the responsibility of a Mr Al Kamda, the Group Managing Director (alternatively known as the CEO), in the relevant period in 2008. There is, in truth, nothing to demonstrate that Mr Al Shaibani, in his lofty position as DIB’s non-executive Chairman and as man who apparently has many other non-DIB related activities within Dubai, involved himself in management issues. As will appear, he did obviously perform functions such as the signing of resolutions, but it does not follow from this type of activity that he would have been engaged in RSA-related matters as Mr Cakebread suggested. As Mr Anderson QC submitted, Plantation’s case assumes that Mr Al Shaibani must have known about the RSA in not insignificant detail, yet there is no indication that this was the case. Nor, indeed, was this even suggested to DIB’s various witnesses. Furthermore, again as pointed out by Mr Anderson QC, the RSA and the misuse of DIB’s funds which led to it, whilst involving substantial sums of money, needs to be seen in the context of a bank whose balance sheet for the year to 31 December 2006 shows total assets of US$64.4 billion and shareholders’ equity of US$8.1 billion.

[135]Secondly, although this point is linked to the role played by Mr Al Shaibani, Mr Cakebread emphasised what he described as the “change of management” at DIB needs to be viewed alongside what he called the disbandment of the Project Stallion Task Force and the formation of the new Task Force in about April 2008. Mr Cakebread highlighted, in particular, the introduction of Mr Shomali, DIB’s Head of Collections, as a member of the Task Force, pointing to Mr Kamal’s evidence that Mr Shomali was in charge of “special accounts”, namely “accounts where the bank had problems collecting the debts”, and that in this role Mr Shomali “would interact with the relevant authorities, with the court, the lawyers, and negotiate with obligors to reach a settlement arrangement with the bank and pull off implementation of these arrangements”. This, Mr Cakebread suggested, indicates that there was, therefore, “a move from implementing the RSA and working in partnership with Plantation to build out the project” to a stance which involved “taking aggressive enforcement action against it, and other parties”. There are a number of difficulties with this suggestion, however. First, as Mr Lyons explained during examination-in-chief, the original Project Stallion Task Force, which had been set up pursuant to “Resolution No. 31 for the year 2007”, the document signed by Dr Muhammad Khalfan bin Khirbash on 6 November 2007, had on it seven or eight people, two of whom left DIB at the end of that year (2007), one of whom left no later than March 2008 and two of whom left during the summer of 2008. It is obvious, therefore, that the Task Force needed new members and this, Mr Lyons explained, is why its membership changed in April 2008 to include, alongside Mr Shomali, Mr Abdullah Al Hamli (as Chairman), Mr Fahad bin Fahd and Mr Al Sharif. The fact that, as both Mr Lyons and Mr Waugh explained in their evidence, instructions thereafter (including in the case of Mr Waugh the instructions to send the default notice on 9 June 2008) came from Mr Shomali is neither sinister nor surprising. Somebody had to give such instructions and, as DIB’s Head of Collections, Mr Shomali was probably the most suitable person to do so.

[136]Mr Cakebread’s point, however, goes further since it is not confined to the membership of the Task Force but importantly covers also its remit. In this context, Mr Cakebread relied heavily during the course of Mr Al Sharif’s cross-examination on a document which appeared in the chronological trial bundles either at the end of March 2008 or the beginning of April 2008. That document, the original of which is in Arabic and which is headed “Authorisation concerning CCH taskforce”, reads in translation as follows:

“I, Mohammad Ibrahim Al-Sheibani, in my capacity as the Chairman of Dubai Islamic Bank PJSC, hereby confirm that the following have been appointed members in the CCH Taskforce: 1. Abdullah Al-Hamli Chair 2. Fahad bin Fahad Member 3. Mohammad Al-Sharif Member 4. Nidhal Al-Shomali Member Necessary powers to managing, deciding, and entering into agreements concerning the CCH indebtedness recovery case have been vested in the Taskforce. Those powers are as follows: 1. Manage all matters related to the recovery case related to CCH, and do all necessary actions as decided by the Taskforce. This includes negotiating with all related parties, issue instructions to legal consultants, commencing with legal proceedings, negotiating, entering into agreements, incurring and paying legal fees and court and arbitration charges and fees. 2. In relation to Plantation land and project, manage, continue developing, as deemed necessary by the Taskforce, and operate the Project as required, including bearing and paying operation costs and expenses, contracting with other parties as deemed necessary, and deal and negotiate with related entities. 3. Implement, sign, and enter into representation, complete all documents, deeds, agreements, actions and all things on behalf of the Bank, and any other required or preferred matters in relation to any of the powers listed above, and 4. Authorize other employees at the Bank to carry out any of the above powers. Provided that Taskforce obtains the Bank’s Board approval prior to entering into any settlement agreement with any entity in relation to CCH or otherwise assigning any tangible assets (including Plantation Project).”

Mr Cakebread highlighted the references to “the CCH indebtedness recovery case” and to management, continued development and operation of the Project Plantation land and project, manage, continue developing “as deemed necessary” or “required”. He contrasted these references with what appeared in the resolution setting up the ‘Project Stallion Task Force’ dated 6 November 2007. That earlier resolution did not contain such references. Mr Cakebread put to Mr Al Sharif that this document was, indeed, a document which dated from April 2008. Mr Cakebread did, however, inform Mr Al Sharif of the fact that DIB’s position was the document came later, specifically in November 2008. Mr Cakebread asked Mr Al Sharif whether the document was “a fair recollection of the task that the Task Force was set in April 2008”. Mr Al Sharif’s answer was that it was, something which he repeated in answer to a question which I put to him immediately after he gave his first answer. In such circumstances, Mr Cakebread submitted that, whether the document dates from April 2008 or November 2008, the role of the ‘Project Stallion Task Force’ in April 2008 onwards had changed from the role described in the 6 November 2007 resolution signed by Mr Al Shaibani’s predecessor. I agree with Mr Anderson QC, however, that, in the circumstances, given the uncertainty over the dating of the document, Mr Al Sharif’s evidence provides only slender support for Mr Cakebread’s submission. It is clear to me that Mr Anderson QC must be right when he suggested that the document is a November 2008 document and not a document which came into being in April 2008. Mr Anderson QC was able in this regard to refer to an email dated 25 November 2008 which Mr Shomali sent to his fellow Task Force members and in which he referred to the Word attachment as being “the revised mandate after taking out the power of development”, asking for “your views on the same”. Although the attachment did not appear in the trial bundles next to this email, it is tolerably clear that the document to which Mr Al Sharif was taken by Mr Cakebread in cross-examination is the attachment to that email. Mr Cakebread submitted that, even if that were the case, there must have been an earlier resolution which had “the power of development” in it, suggesting that that earlier resolution, which has not been disclosed by DIB, would show that the mandate of the Task Force must at an earlier stage have changed in the manner set out in the document which he put to Mr Al Sharif. I do not agree. It seems to me likely that in his email on 25 November 2008 Mr Shomali was referring to a draft resolution which contained the “power of development” rather than to an actual resolution post-dating the original resolution dated 6 November 2007 and pre-dating a later resolution made in late November 2008. There is nothing to indicate that the Task Force was as early as April 2008 set on taking over the Project. On the contrary, DIB was at that stage engaging with Plantation in relation to the US$50 million facility. This is not something which is consistent with a decision having by then been made to take over. The resolution which Mr Cakebread put to Mr Al Sharif is much more consistent with having coming into being after DIB took over physical possession of the Project, which happened on 4 November 2008, than with having pre-dated that event by some six months or so. In any event, I agree with Mr Anderson QC when he submitted in closing that Mr Al Sharif can have had no cause to consider the evolution of the Task Force’s mandate over time for many years and, as such, it is doubtful that he can now remember the precise chronology. Accordingly, I place no weight on the answers which Mr Al Sharif gave in this regard. I am quite clear, in short, that when Mr Al Shaibani took over from Dr bin Khirbash in the spring of 2008 there was no change to the remit of the Task Force at that stage, and that the remit only changed towards the end of 2008. Although it is right to acknowledge that no resolution has been produced which records the appointment of new members to the Task Force in about April 2008, including Mr Shomali, which might suggest that the undated resolution relied upon by Mr Cakebread should be treated as dating from that time rather than from November 2008, I consider the likely explanation for this is that either there was no other resolution in about April 2008 at all, on the basis that there was no need for a resolution dealing only with appointment of members of the Task Force, or that there was a resolution which was confined to the appointment of new members and the reason why the resolution which was put by Mr Cakebread to Mr Al Sharif listed the membership of the Task Force was because it made sense to do so given that the Task Force’s remit was changing. In my view, it does not follow from the fact that the only resolution listing the new members of the Task Force deals also with the new remit of the Task Force that the resolution must have been made in about April 2008 rather than in November that year.

[137]Thirdly, Mr Cakebread relied upon the role which was played by Al Tamimi. It was Mr Cakebread’s submission that Mr Al Shaibani’s arrival as Dr bin Khirbash’s successor coincided with a change in the nature of the instructions given by DIB to Al Tamimi. The submission was essentially wrapped up with Mr Cakebread’s cleaning up the ‘Augean stables’ submission to which I have previously referred. There is, in fact, no dispute that Al Tamimi were instructed in circumstances where DIB was concerned about whether the various RSA obligations would be performed, and that Al Tamimi were instructed to look for loopholes in the RSA in the sense of areas where there was default by parties other than Mr Cornelius, Mr Ridley and Mr Nil. Specifically, as Mr Waugh explained in his witness statement, Al Tamimi’s “job was to assist senior management of the Bank to understand the terms of the RSA and, more particularly, to assist with signing and perfection of local security which had not been implemented as agreed by the parties to the RSA”. He clarified during the course of cross-examination that, the RSA having been put together by Lovells on behalf of DIB, and there having been “changes within the bank” (clearly a reference to the arrival of Mr Al Shaimani), he understood that DIB “wanted a local law firm to give them a fresh view on the RSA”. As he went on to explain, “culturally many clients in the Middle East get comfort from dealing with Arabs or Emiratis as is the case, and in this case they wanted a fresh pair of eyes and essentially a second opinion”. This included giving “personnel within the bank that weren’t familiar with the RSA … a summary of key terms”. This Al Tamimi did, explaining that “at a certain point in time I believe Nidal [Shomali] raised with us the issue that they hadn’t received any repayment proceeds from the sales, and asked us to look at the RSA in that respect”. Mr Cakebread went on during the course of cross-examination to explore with Mr Waugh what he knew about particular breaches of the RSA, specifically those which came to be identified in the letter dated 9 June 2008 which he drafted on DIB’s behalf. The short point, in essence, was that Mr Waugh was reliant on what he was told by Mr Shomali in particular as to whether, for example, Plantation (as opposed to Mr Fitzwilliam) had registered for Law No. 8 of 2007 purposes. Mr Cakebread suggested that this was somehow odd, but I do not agree since it seems to me that it must commonly be the case that a lawyer in the position of Mr Waugh relies upon what his client tells him. In terms of timing, Mr Cakebread put to Mr Waugh that the focus moved on from summarising the terms of the RSA to looking at the question of whether the RSA had been complied with by the parties to it in about mid-May 2008. This appears likely given that on 11 May 2008 Al Tamimi (specifically Mr Waugh’s partner, Mr Khalid Al Hamrani) were included amongst a list of recipients of an email from Mr Khaled Al Kamda at DIB. The first addressee of this email was Mr Shomali and it was, indeed, an email to him from Mr Bitar which was forwarded by Mr Kamda. That email attached “the progress reports on plantation in Bahrain projects” which Mr Shomali had asked Mr Bitar to send him. Mr Kamda stated in his email to Mr Hamrani and the others that “It is clear from the report that there are [sic] pressure from Dubailand on the owner, we need to move quickly to protect the bank’s interests”. The report which Mr Bitar had sent Mr Shomali, and which was forwarded by Mr Kamda, set out details in relation to progress on the Project, focusing mainly on the requirements for the standby loan facility and Plantation’s compliance with those requirements. At the end, under “Other Issues”, the following was stated:

“We met with Arthur Fitzwilliam on the 7th May where he signed the Facility Advice Letter for the AED 169 million and discuss what is required from Plantation in documentation in order to close the finance transaction. Arthur has mentioned that Dubai Land has recently sent him an invoice for AED 120 million for the future construction of the Projects electrical substation. He met with Dubai Land on May 7 raising an objection to the payment terms and requesting a deffered [sic] payment plan. Arthur also mentioned that he is being verbally pressured by Dubai land to continue building the project irrespective to whether the project master plan approval is in place or not. There is a sense of apprehension that the project may be taken away from him if there is slow progress.”

Next to these passages somebody (it seems pretty clear Mr Shomali) has written in manuscript “Issue” and then “This can be a way out to take over project”. Mr Cakebread described this as “chilling”. That by about this time, mid-May 2008, DIB was looking at matters such as villa plot sales, no doubt in conjunction with Al Tamimi, is furthermore confirmed by an email between Mr Bitar and Mr Shomali on 15 May 2008 on which this same handwriting appears, so confirming that it belongs to the recipient of the email, Mr Shomali. Mr Shomali stated, amongst other things, that the “way forward” was that “all sales should go to Escrow Account”, tying in with the evidence given by Mr Waugh in cross-examination that DIB was at this stage focusing on the fact that no payments had been made either to it or into any escrow account for the purposes of Law No. 8 of 2007.

[138]Mr Cakebread submitted that Al Tamimi’s instructions thereby entailed what he described as an inexplicable expansion to include consideration of breach of the RSA on part of Plantation. I struggle to see, however, that this is an appropriate characterisation of the position. Al Tamimi were simply doing what lawyers typically do, which is to advise their clients as to their legal entitlements. DIB had entered into the RSA and had since developed concerns not only as to whether the obligations which it was owed under the RSA would be performed but as to the circumstances of the fraudulent behaviour which had led to the RSA in the first place. As the progress report to which I have referred illustrates, however, since it was primarily concerned with Plantation’s ability to comply with the standby loan facility requirements, at this stage DIB was apparently focused not on taking over the Project but on working with Plantation to make the Project a success. In short, I reject the submission that Al Tamimi’s involvement at this juncture is consistent with DIB having determined to extricate itself from the RSA. Flaux J dealt with a similar submission in his judgment at [56] and [57], saying this:

“It is in the context of the legitimate concerns of the Bank that the second, third and fourth defendants would not perform or would not be able to perform their obligations to make repayment under the RSA, of which Mr Lyons speaks in his witness statement, that Al Tamini [sic] were instructed by the Bank, as Mr Al Hamrani of that firm described in his evidence, to look for loopholes in the RSA, in the sense of areas where there was default by the other parties. Mr Al Hamrani thought those instructions were in November 2007 but I consider he must be wrong about that and prefer the evidence of his partner Mr Jody Waugh that the firm were instructed in May 2008. Mr Mallin sought to portray this as somehow sinister, supporting a case that the Bank was seeking to get out of the RSA and not honour it. I do not see the instruction of Al Tamini [sic] to look for loopholes in the RSA as in any sense sinister. It is perfectly normal for commercial parties to seek legal advice on ways of extricating themselves from contracts that, for whatever reason, have become disadvantageous, not by breaching the contract but by seeking advice on whether there has been a breach by the other party. Accordingly, in my judgment, there is nothing untoward in the Bank having sought legal advice as to whether there had been an Event of Default and, if there had, in serving notice to cure the default and then, if the default was not cured, seeking to enforce against security available under the RSA to the extent permissible. Far from that being a breach of the RSA, that is the Bank relying upon the provisions of the RSA intended to give it protection, if there was a default under the RSA by the other parties to it.”

I agree with this and also with what Flaux J went on to say at [59]:

“… there is no question of the Bank failing to perform its obligations under the RSA prior to the time when it served notices of default. I agree with Mr Anderson QC that the Bank was prepared to and did offer Plantation and Mr Fitzwilliam the Standby Loan Facility and the allegation that there was a repudiatory breach of the RSA by the Bank in failing to lend to Plantation is unsustainable. To begin with, since under clause 11.1 of the RSA, provision of the Standby Loan Facility was always subject to such consideration, based on due diligence of the Plantation Project, as a commercially reasonable lender would be expected to have, there was no obligation on the Bank to lend to Plantation. In fact, pending formal financing being put in place, in February 2008 the Bank agreed to purchase one of the Plantation Villa plots for AED12 million in order to tide Plantation over and make funds available to pay contractors and staff. The Bank was under no contractual obligation to make that purchase.”

[139]Fourthly, although this point leads on from the last matter, as to the “heightened activity” which Mr Cakebread suggested immediately preceded Mr Fitzwilliam’s arrest, reliance was placed on various exchanges within DIB involving Mr Shomali and Mr Nemer Khalifa in early June 2008 before Mr Fitzwilliam’s arrest on 6 June 2008. Specifically, Mr Cakebread highlighted how on 1 June 2008 Mr Khalifa sent Mr Shomali “the last updated study for Plantation” which consisted of details concerning villa plots sales and budget figures, and that later the same day Mr Khalifa forwarded an email which he had received from Ms Sutherland on 28 May 2008 in which she had set out details of the “final payment plan” which had been agreed with Dubailand/Tatweer concerning the electrical substation issue. The next day, Mr Cakebread pointed out, Mr Khalifa forwarded an even earlier email from Ms Sutherland which had been sent to him on 26 March 2008. The attachment to that email was an earlier version of the financial information which Mr Shomali had been sent the previous day by Mr Khalifa. As such, Mr Cakebread observed, Mr Shomali would have been able to compare the two versions. Then, on 3 June 2008, replying to Mr Khalifa’s email in which he forwarded Ms Sutherland’s 28 May 2008 email, Mr Shomali noted that “there is a substantial amount due from Arthur on the 30th as per the below payment schedule” and wondering “what would be sources of repayment” before asking “can we know if more plots has [sic] been sold recently, this is the only source I can think of!”. Two days later, on 5 June 2008, the day before Mr Fitzwilliam was arrested, Mr Khalifa asked Ms Sutherland if she would send him “copies of the sale contracts related to the sold Residential plots in Plantation to date”. Ms Sutherland responded stating that “we have sent them to the bank at least twice before” and adding that “If you can’t locate then let me know”. That same day, apparently after a telephone conversation, Mr Khalifa sent Mr Shomali a schedule detailing villa plots sales in the format which had previously been used by Ms Sutherland but adding calculations which Mr Khalifa had performed “according to your instructions”, namely converting AED figures into US$ figures and then deducting US$150,000 per month so as to arrive at “Amounts to be Received from Sales After deducting” that monthly amount. It was Mr Cakebread’s submission that this level of activity within DIB, in particular because it involved Mr Shomali as the Head of Collections and a prominent member of the Task Force, strongly points to DIB knowing that Mr Fitzwilliam was about to be arrested. I disagree. There is no suggestion in the exchanges that that is knowledge which Mr Shomali possessed. It seems to me that the exchanges are consistent simply with DIB gearing up to send, through Al Tamimi, the notice which was ultimately sent on 9 June 2008. This explains also why there was, as Mr Cakebread, characterised it, “heightened activity” on 9 June 2008 itself. DIB and Mr Shomali in particular were getting ready to send that notice. The fact, therefore, that Mr Cakebread is able to point to a number of exchanges on 9 June 2008 is hardly surprising.

[140]I fail to see how the sending of this notice can sensibly be thought to support the proposition that DIB procured Mr Fitzwilliam’s arrest, which leads me to a fifth point. In his evidence Mr Fitzwilliam sought to make much of the timing of the arrest as indicating DIB’s involvement in it. The timing needs, of course, to be taken into account. I can quite understand that when Mr Fitzwilliam learned about the notice which DIB sent to Plantation on 9 June 2008, he would obviously have noted that this was very shortly after he had been arrested. On analysis, however, as Mr Anderson QC submitted, it is difficult to see why DIB would have wanted Mr Fitzwilliam to have been arrested when he was or, indeed, at all. Certainly on the basis of Mr Fitzwilliam’s evidence, and that given by Mr Bacon, namely that DIB (specifically Mr Kamal) knew that Mr Fitzwilliam was going to be travelling to the UK to finalise the deal with Chescor (whether or not Chescor’s identity was known which I did not understand it to be suggested was the case), for DIB to have taken action to have Mr Fitzwilliam arrested at this particular time would have been a most curious thing to have done. If that deal, involving Mr Fitzwilliam reaping as much as US$600 million, had come about, it would surely only have been a good thing as far as DIB was concerned. Even leaving aside the Chescor deal, however, the evidence in relation to which after all I have rejected, there is another reason why I consider it distinctly unlikely that DIB knew, in advance, that Mr Fitzwilliam was about to be arrested, still less that DIB wanted him arrested, which is that, as Mr Anderson QC submitted, if DIB really had been attempting to procure an RSA default on the part of Plantation, it would have made much more sense for DIB to ensure that Mr Fitzwilliam was arrested sooner than he was. Again, I find myself in agreement with Flaux J on these matters. He said this in his judgment at [86] and [87]:

“There are other matters which also point away from the Bank having procured the arrest of Mr Fitzwilliam. To begin with, if the Bank had really known that he was on the way to London to sell a shareholding in Plantation for US$600 million, the inference that the defendants invite the Court to draw that the Bank then decided to thwart that sale by having Mr Fitzwilliam arrested, apparently so that the Bank could enforce against Plantation, makes absolutely no commercial sense. That is all the more so given that, at the end of May 2008, only days before the arrest, as is clear from the correspondence between Mr Taylor and Al Tamini [sic] confirmed by Mr Taylor's own evidence, the Bank was indicating an unwillingness to talk to the second and third defendants, unless there was a proposal for repayment of the outstanding Rescheduling Amount. If Mr Fitzwilliam's evidence about the US$600 million were true, it is inconceivable that the Bank would not have seized on that whole heartedly, as a means of obtaining complete repayment of the outstanding amount quickly. The Bank would hardly have preferred having Mr Fitzwilliam arrested in order to enforce against Plantation, the sale of which might take some time in circumstances where, since the RSA is governed by English law, any sale proceeds in excess of the outstanding Rescheduling Amount would be payable to Plantation anyway. Furthermore, as Mr Anderson QC pointed out, internally the Bank was still considering the documentation required to progress the Standby Loan Facility to Plantation as late as 4 June 2008, which is hardly consistent with a desire on the part of the Bank to get out of its obligations under the RSA by having Mr Fitzwilliam arrested. As Mr Anderson QC said and I have already noted, if these arrests were all part of some overall plan on the part of the Bank to get its hands on the ultimate prize of the Plantation land, as the defendants suggest, and the arrest of Mr Fitzwilliam was part of that plan in order to ensure that there was default by Plantation, the Bank would surely have procured his arrest first before the second and third defendants or, at least, before serving the first cure notice, lest he try to leave Dubai without passing through the airport.”

[141]Sixthly and focusing specifically on the circumstances in which Mr Fitzwilliam came to be arrested, in other words the involvement of the Dubai prosecution authorities, Plantation’s case that DIB procured Mr Fitzwilliam’s arrest overlooks the fact that the FAD had been investigating the circumstances in which the RSA came to be entered into since, in all probability, the autumn of 2007 after finding out about the RSA, as Mr Kamal explained in the trial before Flaux J, during its audit of DIB’s accounts and operations in October 2007. The suggestion, in the circumstances, that it was only because Mr Al Shaibani took over from Dr bin Khirbash in March 2008 that the RSA came under scrutiny cannot be right. As Mr Lyons explained, the FAD was deeply suspicious of the RSA. Since, as I have already explained, the FAD was under a statutory obligation to pass information to the public prosecutor, whatever role DIB might have played in relation to the arrest of Mr Fitzwilliam and the others, the public prosecutor was always going to be involved if the FAD unearthed anything which the FAD regarded as necessary to disclose to the public prosecutor.

[142]The same point was made by Flaux J in his judgment at [69] when considering a number of points made by Mr Cornelius’s counsel, Mr Max Mallin, in support of the contention that DIB procured the various arrests. Specifically, Flaux J said this at [61]:

“The second defendant [Mr Cornelius] was arrested at Dubai airport on 21 May 2008. Mr Mallin relied upon a Minute of an Investigation dated 23 May 2008 started by Mr Al Zarouni, Assistant Public Prosecutor in the Public Prosecutor’s office. This refers to the second defendant’s arrest and states that that day they had received a file from the General Directorate of State Security at Police Headquarters relating to three individuals accused of fraud, the second, third and fourth defendants [Mr Cornelius, Mr Ridley and Mr Nil]. The Minute says that, upon reviewing the documents they contained a case report issued by the General Directorate of State Security ‘concerning a complaint by [the Bank] for being defrauded by submitting forged papers’.”

I interject to say that the Minutes went on to state that after Mr Cornelius was arrested “he stated that he made a deal with the Second Accused, Charles Ridley, to set up fake companies and submit documentation of the said companies in order to obtain funding from Dubai Islamic Bank” and that Mr Cornelius stated that “in 2003, the so-called Arthur told him that he has a project and would like to obtain funding for it, and that he [Mr Cornelius] would get a certain percentage of the project”, Mr Cornelius subsequently agreeing “with Arthur that the Second Accused [Mr Ridley] would finance Plantation project, which belongs to the so called Arthur in Dubailand”. Mr Cornelius, it would appear, explained that Mr Ridley “stipulated that in order to receive the funding, false invoices should be fabricated”. In short, Mr Cornelius and Mr Ridley were ‘spilling the beans’ after their arrests.

Flaux J went on:

“Mr Mallin submitted that this supported the case that it was the Bank which had orchestrated the arrest of the second defendant [Mr Cornelius]. In my judgment it does nothing of the kind. The file which the Public Prosecutor received is clearly the case file which Lt Col Belhaul said the joint investigation team of the FAD and the police handed to the Public Prosecutor in May 2008 and reading the Minute in full makes that clear. Nothing in the Minute suggests that it was the Bank, as opposed to the FAD and the police, which conducted the investigation or decided to arrest the second defendant. The reference to the case file ‘concerning a complaint by the Bank’ is consistent with the Bank being the victim of the fraud and therefore, in one sense, the complainant, but it does not begin to demonstrate that the Bank was actively seeking the arrests.”

I agree with these conclusions. Mr Cakebread submitted in closing that the Minutes did not identify Mr Fitzwilliam as an accused and did not indicate that he was part of the investigation. The first observation is accurate, but the second seems to me to be somewhat unrealistic: Mr Ridley and Mr Cornelius were plainly implicating Mr Fitzwilliam and, in any event, it is plain and obvious that the authorities were interested in the fraud generally, a fraud which (unwittingly or otherwise) Mr Fitzwilliam and Plantation were inevitably embroiled. For present purposes, however, what matters is that the Minutes demonstrate that the FAD was instrumental in the investigations and, accordingly, the arrests which ensued. Flaux J went on:

[143]Flaux J then went on to deal with DIB’s reliance on a letter which Mr Amri, the Director General of the FAD, sent to Mr Al Zarouni in the Dubai Public Prosecutor’s office. He did so in his judgment at [64] to [66], as follows:

“The Bank placed particular reliance in this regard on a lengthy letter dated 15 June 2008 from Mr Amiri (the Director General of the FAD whom Mr Taylor had met at his meeting with the FAD in February 2008) to Mr Al Zarouni in the Public Prosecutor’s office. That letter was headed: ‘The use of funds embezzled from the Dubai Islamic Bank to Finance Plantation Holding Project, Dubai Land’. It then went on to describe in detail how pursuant to Law No 3 of 2007 and the FAD audit of the accounts of the Bank it had discovered that the Plantation Project had been funded by the sums embezzled from the Bank in the CCH fraud. In the third numbered paragraph, Mr Amiri says: ‘It was found out that CCH-GMBH Company, the Bank’s agent, had carried out fictitious operations through fictitious Murabaha through investing the Bank funds in some projects for the agent and by parties related to it … and the matter was referred to the Public Prosecution in case no. 12842 of 2008.’ At the end of the letter, Mr Amiri says this: ‘Whereas the incident in this respect constitutes a financial violation that falls under the provision of Article 19 of Law No. 3 of 2007 on Establishing the [FAD] and whereas this violation involves a criminal offence, and in accordance with Article 20 of this Law, it was decided to refer the matter to the Esteemed Public Prosecution to take the necessary procedures in accordance with the provision of the law.’ That is an express reference to the obligations imposed on the FAD (and not the Bank) by Law No. 3 of 2007 to investigate financial irregularities, including embezzlement and to report any criminal offence uncovered in such an investigation to the Public Prosecutor. I agree with Mr Anderson QC that that letter, coming as it does from the head of the FAD, makes it clear that it was the FAD and not the Bank which investigated the fraud on the Bank and which reported the part of the alleged perpetrators of the fraud, including Mr Fitzwilliam, to the Public Prosecutor.”

Again, I agree with Flaux J about this: it is quite obvious that the FAD was complying with its statutory obligation to report the findings of its investigations to the prosecution authorities. Mr Cakebread’s submission in relation to this document was, in my view, unrealistic. He submitted that since the “FAD had not even completed their investigation by 6 June”, the date of Mr Fitzwilliam’s arrest and nine days before this letter, demonstrates that the FAD “cannot have been responsible for the arrest” of Mr Fitzwilliam. This is not a submission which makes any sense: what matters is that Mr Fitzwilliam was arrested as a result of the investigations which were carried out by the FAD, not whether the FAD had completed those investigations. It is clear from the letter itself that the FAD regarded Mr Fitzwilliam’s involvement as suspicious since it went on to refer to the fact that it had been “found out that Mr Arthur Fitzwilliam and one of his employees works as a manager of the company, Suzan [sic], had acquired two plots of land without paying for them till now, with a market value of 67 million Dirham”, adding as follows:

“It is worth noting that the value of the estimated profits from the sales of the project lands (110 plots) reach 1.1 billion Dirham according the last evaluation by DTZ Qatar LLC, which estimated the value of the sales at 2.450 million Dirham as on 31/12/2007, … although it wasn’t found out that Mr Arthur Fitzwilliam had paid any of his personal funds in this project. It is clear from the aforementioned that Plantation Holding FZ-LLC had funded the project from the funds embezzled from Dubai Islamic Bank, equal to 65 million Dirham, in addition to the members of its Board of Directors committing the above-mentioned instance, which constitute financial violations that include criminal offences.”

This is the FAD, in accordance with its statutory responsibilities, telling the prosecution authorities about suspected criminal conduct on the part of, amongst others, Mr Fitzwilliam. Mr Cakebread suggested in closing that this did not mean that DIB, in particular Mr Al Shaibani, was not behind the arrests. His submission was that, since Mr Al Shaibani heads the Ruler’s Court and the FAD is a division of that Court, “there is no material difference in the actual mechanics” and that, in any event, it is plain that DIB must have provided information to the FAD to enable the report to have been made to the prosecution authorities. Again, however, I regard these submissions as lacking in reality: DIB was under an obligation to provide the FAD with relevant information, and so the fact that this was done cannot sensibly be relied upon as justifying a contention that it was DIB as opposed to the FAD which was behind the arrests and the prosecutions. As for the role played by Mr Al Shaibani and the suggestion that “the actual mechanics” do not matter, there is no real basis for the submission which Mr Cakebread made. In any event, as I have previously explained, the FAD having embarked upon the investigations which it did, it was inevitable that the findings would be reported by the FAD to the prosecution authorities. There is no evidence to indicate that Mr Al Shaibani or anybody else at DIB effectively took the matter out of the FAD’s hands and insisted that the FAD should do what it did.

At the end of the letter, Mr Amiri says this:

[144]Flaux J then addressed a document dated 3 June 2008 relied upon by Mr Ridley and Mr Cornelius which was on the headed notepaper of the Dubai Police Head Quarters, Directorate General of Criminal Investigation, Bur Dubai Police Station and was described as a “Standing Notice”. He did so in his judgment at [68] and [69]:

“The second and third defendants [Mr Cornelius and Mr Ridley] rely upon a number of documents in addition to the Minute of an Investigation to which I have already referred. First, they rely upon a Standing Notice produced by the Directorate General of Criminal Investigation at Dubai Police Headquarters dated 3 June 2008. That states: ‘On 02/06/2008, we received a file referred to by the Directorate General of State Security regarding a report of Fraud under a complaint filed by [the Bank]. Attached to the file was a report of investigations conducted by the Public Prosecution Service, the defendants being [the second to fourth defendants [Mr Cornelius, Mr Ridley and Mr Nil], Mr Mooraj, Mr Usmani and his brother]’. It goes on to set out a summary of how the fraud was perpetrated and concludes; ‘Accordingly, the facts have been recorded in a Criminal Notice. [The second and third defendants and Mr Mooraj] have been held in custody pending trial, and the search is under way for the others.’ Once again, the second and third defendants [Mr Cornelius and Mr Ridley] rely upon that reference to a complaint filed by the Bank as demonstrating that it was the Bank which was behind the arrests and the prosecutions. As with the Minute of Investigation, it seems to me this is reading far too much into the document. It is clear that the case was referred to the Directorate General of Criminal Investigation not by the Bank but by the Directorate General of State Security who also passed on a report from the Public Prosecutor, no doubt following the matter being referred to the Public Prosecutor by the police and the FAD in May 2008. I suspect that reference to the complaint filed by the Bank is reflecting the fact that it was the Bank which was the victim of the fraud, but even if there was a formal complaint by the Bank, there is simply nothing in this document to suggest that it was that complaint which caused the FAD and the Directorate General of State Security to pass the file to the Public Prosecutor. On the contrary, I suspect whatever the Bank said or did, the FAD was always going to report the fraud to the prosecuting authorities and press for arrests and prosecutions.”

This, again, seems to me to be right. Nonetheless, Mr Cakebread highlighted the fact that this document did not refer to Mr Fitzwilliam specifically and that the reference to a complaint having been filed by DIB did not state that that complaint included Mr Fitzwilliam. I am not clear, however, why Mr Cakebread considered that the absence of any mention of Mr Fitzwilliam in the context of the complaint made by DIB assists Plantation’s case that it was DIB which was behind Mr Fitzwilliam’s arrest three days later. If DIB had not made a complaint concerning Mr Fitzwilliam, it is difficult to see how it can be suggested that it was DIB which procured his arrest.

[145]Flaux J went on to deal with various other matters relied upon by Mr Cornelius and Mr Ridley in support of their contention that DIB was behind their arrests and, indeed, the arrest of Mr Fitzwilliam. These included so-called ‘cash for freedom’ negotiations which followed the arrests of Mr Cornelius and Mr Ridley: see the judgment at [75] to [84] in which Flaux J concluded that the negotiations did not support the contention that DIB procured the arrests. These negotiations were not relied upon by Mr Cakebread before me. Therefore, I need say nothing about them. There are, however, two further matters which are relied upon by Mr Cakebread and which were also prayed in aid by Mr Cornelius and Mr Ridley before Flaux J. I deal with these before coming on to address Mr Cakebread’s heavy reliance on a particular document which was not before Flaux J. First, Mr Cakebread points out that the arrest warrant under which Mr Fitzwilliam was arrested on 6 June 2008 and which had, in fact, expired by the time that it came to be executed, had been issued in the sense that it was sent by the Public Prosecutor, Mr Al Zarouni, to Bur Dubai Police Station, two months previously on 9 April 2008. Mr Cakebread submitted that the fact that the warrant, described as a “Provisional Confinement Order”, coincided with Mr Al Shaibani taking over from Dr bin Khirbash is significant, allied also with the change to the remit of the Task Force which Mr Cakebread contended came about at the same time. I cannot accept these submissions. I have previously dealt with the changing remit point. It follows that this does not assist Mr Cakebread’s argument. In addition, contrary to what Mr Cakebread went on to submit, it is clear, again as I have previously explained, that the FAD had already been investigating matters for several months by this stage. Mr Cakebread’s suggestion, therefore, that the arrest warrant cannot have had anything to do with the FAD’s investigations is simply not tenable. Flaux J addressed a similar submission in his judgment at [88] where he said this:

“Mr Mallin sought to address that point by referring to the fact that there seems to have been a Preventative Detention Order directed to the police to detain Mr Fitzwilliam for the period 9 to 15 April 2008, on charges of fraud and appropriation of others’ money, although he was not detained in that period (this apparently tying in with Mr Fitzwilliam's own assertion that he was eventually arrested on an expired warrant). Mr Mallin submitted that this demonstrated that the Bank had sought to have Mr Fitzwilliam arrested in April 2008, in other words before the second and third defendants. In my judgment it demonstrates nothing of the sort. The Preventative Detention Order is issued by the Public Prosecutor's office which ties in with the other evidence that it was the Dubai public authorities and, specifically, the FAD and the Public Prosecutor who were looking to arrest and prosecute Mr Fitzwilliam. Furthermore, the suggestion that the Bank was looking to arrest Mr Fitzwilliam on 9 April 2008 makes no sense at all, given that the letter offering the Standby Loan Facility for the equivalent of US$50 million was issued to Plantation on 13 April 2008.”

I completely agree, including with the last point which was made by Flaux J which demonstrates conclusively, to my mind, that at the time when the arrest warrant was issued, in April 2008, DIB’s focus was on working with Mr Fitzwilliam and Plantation to make the Project work, and not to try to have Mr Fitzwilliam imprisoned.

[146]The other document which, like Mr Cornelius and Mr Ridley in the trial before Flaux J, Mr Cakebread relied upon is a certificate dated 29 May 2013 which was issued by Mr Ahmad Mohammad Shareef, the Head of the Transactors Care Department in the Dubai Public Prosecutor’s office in response to a letter from a Dubai lawyer acting for Mr Cornelius which was made, it seems, the previous day. That letter requested, amongst other things, “permission to obtain a certificate which provides that on 01/06/2008 the applicant became wanted based on a complaint made by the Dubai Islamic Bank stating that he had committed the fraud and appropriated monies of third-person is and therefore he was arrested on 21/05/2008”. The certificate which, as I say, came just the next day obliged, stating:

“The Dubai Public Prosecution certifies that on 01/06/2008 the Dubai Islamic Bank filed a criminal complaint No. 9588/2008 (Bur Dubai) against Mr Ryan L.C - British national and others. The complaint was registered with the Public Prosecution under number 12842/2008 (Criminal) and it was referred to the Dubai Criminal Court.”

It went on to refer to Mr Cornelius’s subsequent conviction and the various appeals which ensued, before concluding:

“This certificate was issued based on the request made by the defendant’s lawyer to be submitted to whomever is interested without conferring any responsibility upon the Dubai Public Prosecution towards any third-party.”

Mr Cakebread submitted that this document demonstrates that DIB was, as he put it, “the complainant” and so that DIB must have procured the various arrests, including that of Mr Fitzwilliam. I do not agree. Nor did Flaux J when he stated as follows at [72]:

“There are a number of problems with placing much, if any, reliance on this document as evidence that it was the Bank which procured the arrest of the second and third defendants. To begin with, as Mr Al Hamrani pointed out in evidence, the Transactors Care Department is the counter section, so that Mr Shareef is in effect a senior clerk and not a member of the prosecution team who would have detailed knowledge of the case. In any event, even taking the certificate at face value, if the Bank filed this criminal complaint on 1 June 2008, that can hardly have led to the arrests which occurred prior to that, on 21 and 27 May 2008. Next, the complaint number 12042/2008 is not a complaint filed by the Bank but the criminal complaint referred by the FAD to the Public Prosecutor, as stated in Mr Amiri’s letter.”

Flaux J’s references to the arrests which occurred on 21 and 27 May 2008 related, of course, to Mr Cornelius and Mr Ridley rather than to Mr Fitzwilliam who was arrested on 6 June 2008. The point concerning the reliability of the certificate, however, applies as much to Mr Fitzwilliam as it does to Mr Cornelius and Mr Ridley.

Flaux J went on to add this in relation to the certificate:

“Finally, after receipt of the certificate, the Bank filed a request at the Transactors Care Department for a copy of the criminal complaint said to have been filed by the Bank, only to receive the puzzling response that there was no such complaint on the Public Prosecutor’s file.”

This was a reference to an exchange between DIB’s Legal Department on 4 September 2013 and Mr Al Zarouni, in which a request was made to be provided with a copy of “the incident report and the request for complaint filing form”. The response was that “there are no copies of the complaint filing form available” and so “the request could not be satisfied”. Mr Cakebread highlighted that it was not stated that no such complaint had ever been made, merely that a copy of the complaint was unavailable. Whatever the true position, however, seems to me that Mr Cakebread’s submissions place too great a reliance on references to a complaint having been made by DIB. As Flaux J put it in his judgment at [69], reference to DIB having made such a complaint is likely simply to reflect “the fact that it was the Bank which was the victim of the fraud”. Flaux J went on to add this in relation to the certificate:

[147]Besides this certificate, Mr Cakebread relied very heavily on a certificate which was not before Flaux J and which he suggested DIB’s witnesses (specifically Mr Kamal and Mr Al Sharif) had accepted was accurate. This is a certificate dated 16 October 2012, and so pre-dating the certificate issued on 29 May 2013. Like that later certificate, as appears from the rubric at the end of it which mirrors what was stated in the other certificate, it was again issued by Mr Shareef “on the accused lawyer’s request”. Since the “accused” to which this certificate relates is Mr Fitzwilliam, it is to be assumed that the relevant “lawyer’s request” was made by a Dubai-based lawyer acting for Mr Fitzwilliam. That request has not, however, been disclosed. Nor has any explanation been given as to why the request was made. However, as Mr Anderson QC observed in closing, it appears quite possible that Mr Fitzwilliam’s lawyer’s purpose in seeking the certificate was to obtain proof that Mr Fitzwilliam had been acquitted of the charges which he had faced. It is hardly surprising that, in the circumstances, Mr Fitzwilliam would wish to have something officially recording the fact that he had been acquitted. Whatever the precise reason for the certificate being sought, Mr Cakebread relied upon it as proof that DIB had levelled a complaint against Mr Fitzwilliam on 1 June 2008, and so just five days before Mr Fitzwilliam’s arrest. The certificate is in the following terms:

“Dubai Public Prosecution certifies that on 01-06-2008, Dubai Islamic Bank lodged crime report no. 9588/2008 Bur Dubai against Arthur Fitzwilliam Panayotis - a British national. The report was registered with Public Prosecution under number 12842/2008 (penal). On 27/04/2011, Dubai Court of First Instance ruled in the presence of the defendant that he was innocent of the charges made against him and dismissed the civil case brought against him on charges of participating in a crime, fraud, taking possession of others’ property and falsification of non-official documents. On 26/10/2011, the Appeal Court ruled in the presence of the defendant to accept the appeal in form and dismiss it in content, upholding the ruling that had been appealed against. On 26/12/2011, the Court of Cassation ruled to dismiss it and uphold the contested ruling. The case is still being tried at the Appeal Court, the next hearing being scheduled for 27/11/2012.”

Although, as Mr Al Sharif confirmed in cross-examination, there is no reason to doubt the correctness of what was stated in this certificate, despite the fact that it was prepared by somebody (Mr Shareef) who was not himself actively involved in the underlying prosecution, to suggest as Mr Cakebread, in effect, did that Mr Fitzwilliam’s arrest on 6 June 2008 was the result of DIB levelling a complaint on 1 June 2008 and had nothing to do with the on-going investigations carried out by the FAD is not a submission which I can accept. As I have explained, an arrest warrant was issued in respect of Mr Fitzwilliam almost 2 months previously, on 9 April 2008. That arrest warrant was, I have found, the consequence of the FAD’s investigations rather than anything which was done by DIB. Furthermore, as Mr Anderson QC pointed out in closing, the certificate’s reference to the report which was “registered with Public Prosecution” bore the number 12842/2008 which is the same case number to which Mr Amiri referred in his letter to the Public Prosecutor dated 15 June 2008. I agree with Mr Anderson QC, therefore, that the link between Mr Fitzwilliam’s prosecution and the activities of the FAD is very clear. Put another way, I do not agree with Mr Cakebread that it is possible to treat the FAD as having no role in Mr Fitzwilliam’s arrest. On the contrary, like Flaux J, I am clear that it was the FAD rather than DIB which played the central such role.

[148]This conclusion is not affected by a further point which was made by Mr Cakebread. This is that soon after Mr Fitzwilliam’s arrest, on 10 June 2008, the day after Al Tamimi sent its letter to Clifford Chance, a matter which I shall come on to deal with in more detail shortly, a request was made by the Director of the General Department of State Security at Dubai Police General Headquarters to the Public Prosecutor as follows:

“Subject: Fraud against the Dubai Islamic Bank and the accused in this case: One: Charles Mallory Ridley – of British nationality – in detention. Two: Ryan Leslie Cornelius – of British nationality – in detention. Three: Arin Nil – of Turkish nationality – a fugitive. Four: Arthur Peter Williams [sic] – of British nationality – in detention. All these are being held in detention by order of the Assistant Public Prosecutor/Maitre Khaled Al-Zarouni. Further to the fraud case against the Dubai Islamic bank, we take this opportunity of informing you that the aforesaid individuals (the first, second and third accused) have evidently conspired in a fraud against the Dubai Islamic bank and have expropriated sums of money amounting to 1.8 billion dirhams. We also take this opportunity of informing you that from an investigation carried out into the fourth accused it is evident that he served to conceal, disguise and take possession of some of the amounts obtained from the fraud against the bank and it is evident that the accused enacted to transfer the aforesaid monies obtained from the fraud against the bank to lease a plot of land in the Dubai Land project with an area of 20 million square feet in his name. He was able to take ownership of it after the promulgation of the Freehold Law and thereafter he transferred the ownership of it to the Plantation Holdings FZ LLC company – Since 2004 - which was incorporated with the aforesaid individuals. They also pumped approximately 20 million dollars into constructing the infrastructure for the aforesaid land. Accordingly, we now ask you to carry out the following: 1. To freeze the accounts of the first, second and third accused individuals held at all financial institutions in the State, in addition to any shares, securities, deposits and real estate owned by them. 2. To appoint a judicial receiver over the aforesaid companies which are owned by the accused either wholly or in partnership with others, the accounts of which have been used to transfer and conceal the monies obtained from the fraud against the Dubai’s Islamic Bank (money-laundering) and the companies listed in the following table [which included Plantation] … 3. Impose precautionary sequestration on the land referred to above in favour of the Dubai Islamic Bank, since it was purchased with monies obtain [sic] from a fraud against the bank, as well as the fact that the fourth individual referred to above sold parts of the aforesaid land and also transferred part of the monies obtained from the sale of those parts of the land to the aforesaid accused outside the State. He also granted to the woman Suzanne Southerland [sic] - of Australian nationality … and the man Horth Kalioubi - of Swiss nationality … jointly and severally - a general power of attorney to act to dispose of the land and all the related accounts.”

Mr Cakebread highlighted how two days later, on 12 June 2008, the Public Prosecutor, Mr Essam Aisa Al-Hamidan, wrote to Dubailand referring to “Criminal lawsuit No. 12842/2008 Criminal Fraud and money-laundering against the Dubai Islamic Bank” and stating as follows:

“The Public Prosecutor take this opportunity of extending to you his Best regards, right after examining the investigation records the aforesaid criminal case, and the letter of the director of the Gen Department of State Security … dated 10.06.2008, and the grounds for the request to freeze assets. The Public Prosecutor has decided to freeze any transaction involving plot of land in the Dubai Land project measuring 30 million square feet and which is owned by the company Plantation Holding FZ LLC which relates to the transfer of the ownership of it by sale or gift or any other disposal which transfers the ownership of it, until further notice. …”

. Mr Cakebread submitted that the speed with which this order was obtained suggests that DIB must have been instrumental in its having been sought. I see no basis for this suggestion. The application was made by the Director of the General Department of State Security at Dubai Police General Headquarters, not by DIB. The fact that, as Mr Cakebread observed, the order had the effect of safeguarding DIB’s position in circumstances where DIB had been defrauded by Mr Cornelius and Mr Ridley and the monies which had been stolen from DIB had found their way into the Project, does not seem to me to justify the conclusion that it was DIB which was behind the arrests. Mr Cakebread in this context relied on the fact that the following month, when DIB took the steps which it did concerning the assignment of the Lease, Al Tamimi were able to secure the agreement of the Public Prosecutor that the order did not prevent the assignment without any apparent difficulty, relying for these purposes on certain exchanges between Dubailand and Al Tamimi on 15 and 17 July 2008 from which it is clear that such agreement was obtained albeit that the letter from the Public Prosecutor containing such agreement is no longer available. In my view, this does not of itself demonstrate that DIB was the instigator either of the freezing order/attachment or the various arrests. Indeed, it is to be noted that, when the point was raised by Dubailand in its letter dated 15 July 2008, the response of Al Tamimi the same day was to point out that they “did not receive the copies of the letters from the Public Prosecution referred to as enclosures in your letter”, which is somewhat surprising if DIB was really the prime mover in relation to the freezing order/attachment, and to make the point that, whilst they noted that the advice received by Dubailand was that the assignment was affected by the freezing order/attachment, nonetheless as far as they were concerned it did not prevent the assignment taking place. In short, the letter from Al Tamimi reads very much as though they, and so DIB also, had nothing to do with the seeking of the freezing order/attachment which was obtained.

Accordingly, we now ask you to carry out the following:

[149]Mr Cakebread also pointed to the fact that in October 2008 Plantation’s bank accounts were frozen, the Central Bank sending out a notice dated 6 October 2008 to all UAE banks in these terms:

“Based on decision of Public Prosecution – Dubai, You are required immediately to search for and freeze any accounts or deposits or investments and inform us of any credit facilities or safe deposit boxes, and stop any remittances, in the name of Plantation Holdings FZ-LLC.”

Mr Cakebread highlighted an email which Mr Shomali had sent the previous month, on 19 September 2008, to Mr Waugh and Mr Lyons, in which he referred to DIB needing “to have quick instructions from prosecution to attach plantation accounts (with DIB and other banks)”. He also referred to an email from Mr Shomali to Mr Al Hamli three days after the notice from the Central Bank, in which Mr Shomali described the prosecution as having “issued the attachment on the bank account for Plantation which we have received already” before going on to say this:

“He is waiting for further instructions from the higher authorities with regards to actions going forward, please help to expedite the process.”

These exchanges, Mr Cakebread submitted, demonstrate that DIB was in a position where it could, in effect, tell the prosecution authorities what to do. This, he suggested, is further confirmed by an email from a Mr Beaver Chua in DIB’s Group Compliance Department to Mr Shomali, in which he referred to having “informed COD to freeze the Escrow accounts” in addition to Plantation’s non-escrow account at DIB. Mr Cakebread submitted that this email shows that DIB could even bypass the prosecution authorities when required. I disagree with Mr Cakebread about this. There is nothing to indicate that DIB was able to insist on the prosecution authorities taking particular action. Nor do I read Mr Shomali’s request to Mr Al Hamli as suggesting that Mr Al Hamli was in a position to interfere in steps or decisions taken by the prosecution authorities. As for the point concerning “COD”, this appears to be a reference to something internal to DIB and so it is not clear to me who it is suggested by Mr Cakebread was bypassed, but, in any event, my reading of the email (along with the thread to which it is a response) is that Mr Chua was, in effect, merely telling Mr Shomali that, as far as he was concerned, the notice from the Central Bank should be treated as applying to the escrow account set up by Plantation for the purposes of Law No. 8 of 2007, and not just the account set up in Plantation’s sole name.

[150]Mr Cakebread went on to make various points concerning the way in which the freezing order/attachment was subsequently treated by DIB in relation, for example, to the steps which were taken to have the Project valued in late 2008 when no mention was made of the freezing order/attachment’s existence. Similarly reliance was placed by Mr Cakebread on Mr Shomali’s response to a question posed by the Central Bank asking whether DIB “had the legal rights to sell or not”, the response being that “On the legal side of Plantation and our right to sell the answer is definitely YES but of course Dubai Land approval is required”. Mr Cakebread made the point that that answer suggests that, as far as DIB is concerned, the freezing order/attachment was not an obstacle. Mr Waugh, when asked about the matter in cross-examination, agreed with Mr Cakebread that it ought to have been disclosed. Mr Cakebread relied also on the failure to mention it when engaged in discussions with Mirage Holdings, a prospective purchaser, in the early part of 2010, despite being sent, and answering, a series of very specific “Legal & Operational Questions” which were concerned with disposal entitlements. Mr Cakebread also highlighted how DIB’s Group Internal Audit Department was not told that there was any impediment faced by DIB in dealing with the Lease, and nor was an impediment mentioned when Mr Shomali and Mr Ilahi discussed the contents of the audit report to be submitted in various exchanges between 23 and 30 March 2010. He relied, in particular, on the fact that, in answer to question 3 (“If tomorrow Plantation is acquired fully, do the committee has [sic] any plan for the disposal of the investment in terms of further development or sell as it is?”), Mr Shomali and Mr Ilahi answered that “The bank prefers to sell as it is but due to current situation, we cannot find buyer” without making any reference to the freezing order/attachment. Then, in answer to question 4 (“At the time of acquisition of Plantation, whether there was any bank account in the name of company? If yes what is the status this money?…), it was stated that “DIB has acquired only Land from Dubailand and has not taken over the company. Assets & Liabilities of the company or other properties of Arthur not acquired by DIB. All bank accounts of Plantation company blocked per court order”. Again, there was no mention of any bar on DIB’s ability to deal with the Lease. In contrast, in answer to question 21 (“Most of horses are getting old and their value is decreasing day by day. Have we officially requested the court to decide the case rapidly to avoid loss of value of assets due to delay as well as to reduce the cost of management?”), the answer was:

“Plantation assets, including horses were attached by Prosecution. We finally managed to obtain no objection from Prosecution to sell horses. Now waiting for a court order to do this”

. In relation to horses and Plantation’s assets, therefore, Mr Shomali and Mr Ilahi were pointing out that there were obstacles in terms of disposal. No such obstacle, in the form of the freezing order/attachment, was identified in respect of the Lease itself.

[151]Mr Cakebread suggested that, in circumstances where DIB did not apparently consider that there was any such obstacle, I should conclude that the freezing order/attachment was an invention on the part of DIB and that, in any event, if it did exist, it was only something which was obtained by DIB as part of the efforts which it was making in June 2008 to secure Mr Fitzwilliam’s arrest and cause the Project the very real difficulties which ensued in the wake of that arrest. I reject these submissions: it is clear to me that the freezing order/attachment was obtained without DIB’s direct involvement and certainly not at its instigation, but instead at the instigation of the party which sought it, namely the General Department of State Security at Dubai Police General Headquarters. It is wholly implausible that the documentation showing its being sought and then granted is anything other than genuine. The exchanges between Al Tamimi and Dubailand on 15 and 17 July 2008 are, equally, only consistent with this. The fact that Mr Shomali and Mr Ilahi failed to make reference to it is explained by a point which was made by Mr Waugh during the course of cross-examination when Mr Cakebread was putting to him the absence of any mention of the freezing order/attachment when valuations were being sought. Mr Waugh explained that “at the time we thought that if you mentioned to a valuer that the land can’t be transferred, it must means the valuation is redundant because they could never be a sale” and, accordingly, “there was, for the purpose of the valuation, it assumes that the attachment would be lifted and therefore allowing a sale subject to these provisions excluding the attachment”. As he later clarified, therefore, “the valuation was done on the basis of the bank would be to get that consent to lift it”. Although Mr Waugh rightly acknowledged that there should have been reference made when dealing with the Central Bank as part of the audit process, I consider it likely that Mr Shomali and Mr Ilahi would have thought in a similar way when providing the information which they did. Mr Waugh made essentially this point in that context later on in his cross-examination. Although Mr Cakebread suggested that the reason why Mr Waugh spoke in terms of DIB being able to have the freezing order/attachment lifted is that it was DIB which had obtained it, it seems to me that all that Mr Waugh was really saying was that, for any valuation to be meaningful, the assumption to which he referred needed to be made, and not DIB would necessarily be able to have the freezing order/attachment lifted. When Mr Ilahi was cross-examined on these issues by Ms Levy, it is fair to say that there was an element of confusion in the answers which he gave. He was, however, adamant that he had not intended to mislead in his dealings with the Central Bank or as part of the audit process. I am clear that he was not intending to mislead at any point.

[152]Lastly, Mr Cakebread submitted that DIB’s involvement in Mr Fitzwilliam’s arrest is supported by the “ruthless attitude” which, he suggested, can be seen to have been adopted by DIB on other occasions in relation to Plantation and those involved with it. This included reliance on an episode which involved DIB (through Al Tamimi) contemplating bringing a prosecution against Plantation, Mr Fitzwilliam and Ms Sutherland in respect of certain monies involving Dressage which it was wrongly suggested were received by them (as opposed to DIB), as demonstrated by a later email which Mr Ilahi sent Mr Shomali on 20 December 2008 and which clarified that the monies had been paid into the escrow account which had been set up with DIB. In particular, Ms Levy explored with Mr Ilahi at some length during the course of cross-examination the role which he played when he became involved with the Project after DIB took physical possession of the site. It was suggested to him that, contrary to the impression given in his evidence, he was involved in evidence gathering to assist in the criminal prosecution of Mr Fitzwilliam.

[153]An example which was put to Mr Ilahi is an email which Mr Shomali sent to him on 12 November 2008. In that email, Mr Shomali asked Mr Ilahi to “advise further what it [sic] the 4.8m transfer of debit balance to Arthur account” entailed, specifically whether it meant “that Arthur took this money personally and went to his personal account”. This was in response to an email which Mr Ilahi had sent the day before in which he set out details of “the Shareholders Account”. Mr Ilahi was also taken to an email which he sent Mr Shomali on 23 November 2008, in which he set out details of various suppliers and contractors as well as consultants, and specifically what had been paid to them. He denied that this was at Mr Shomali’s request, explaining that he was merely helping the accountant whom the Diwan auditors had asked for such information. He explained that “it was only just to help her to put it properly the way normally the Diwan auditors want” and that the “information was prepared by her completely from her own records”. He insisted that Mr Shomali had not asked him to do this and that he had helped simply because he had “a good understanding with the Diwan and I know how they want”. He was clear that he “was not assisting the Diwan” but was “just ensuring that the information which is going from plantation is proper information at the accountant was giving to them and in agreement with the books of accounts”. In the same email he described as an “Interesting Fact” that “Miss Leila (HR Head) had received commission on 7 June 08 (Dh. 100,000), 7 Sept 08 (Dh. 100,000) and 28 Sept 08 (Dh. 150,000)”.

[154]Although I consider that Mr Ilahi did somewhat downplay his role in assembling information which the Diwan, no doubt, would have found of assistance in its investigations, as illustrated, for example, by an email which he sent directly to a Mr Mustafa Hussain of the Diwan on 12 January 2009 setting out “details of sales were plot numbers and contact details of buyers”, nonetheless I reject the suggestion that what Mr Ilahi was doing, and was tasked by Mr Shomali to do, was to go out of his way to assist the Diwan and the prosecution authorities. Mr Ilahi clearly had to provide information if it was requested; he could hardly refuse such requests. As he put it later in his cross-examination, “the thing is we were working with the Diwan auditors in such a way that we had to provide them whatever they ask, the information”. He explained that he had no “detailed knowledge” of the CCH fraud or the cases which ensued from it “because the bank has kept it very secret and confidential”. I accept that evidence and, accordingly, reject the suggestion that the role played by Mr Ilahi and DIB involved a level of assistance to the Diwan and prosecution authorities which went beyond what might normally have been expected.

[155]Nor do I accept the suggestion that DIB (and Mr Ilahi in particular) adopted an overly vindictive approach. Ms Levy put to Mr Ilahi a number of what she and Mr Cakebread themselves described in closing as “trivial matters”. One example concerned a client whom he had been told by a Plantation employee, as he reported to Mr Shomali in an email on 8 September 2009, had not paid for a saddle and bridle. Mr Ilahi asked that the police be informed. He explained that he was merely reporting the matter to his superior, Mr Shomali. I suspect that he was doing rather more than that, hence his apparent request that the case be reported to the police. However, even if that were the position, it does not seem to me to justify a conclusion that it was DIB which, through its ruthless attitude, procured Mr Fitzwilliam’s arrest.

[156]In conclusion on this topic, having considered all the material which has been put before me (including some material which was not before Flaux J) along with the submissions which were made by Mr Anderson QC and Mr Cakebread, I find myself in agreement with the conclusions reached by Flaux J in his judgment at [93] and [94], as follows: “My overall conclusion in relation to the arrests and prosecutions is as follows. The overwhelming weight of the documentary evidence, confirmed by the evidence of Lt. Col. Belhaul to the Public Prosecutor, is that it was the FAD and Dubai State Security (not the Bank) which provided the report and file to the public prosecutor setting out the results of the investigation which the FAD had been conducting since the autumn of 2007. In other words, to the extent that anyone other than the Public Prosecutor's office itself procured the arrests, it was the FAD, not the Bank. In due course, based on the investigation the FAD had conducted, prosecutions of those individuals ensued. I consider that the most likely explanation for the reference in the documents relied upon by the second and third defendants to a complaint by the Bank is either that the Bank did make a ‘complaint’ to the FAD about employees accepting bribes (about which it was obliged to inform the FAD under Law No 3 of 2007) or that the reference to a complaint by the Bank is to be explained as the Bank being the victim of the fraud and subsequently the partie civile in the criminal proceedings. …”.

[157]The conclusions which I have reached make it unnecessary to go further and consider whether there is, in any event, any legal relevance to the case as advanced by Mr Cakebread on Plantation’s behalf. However, it is appropriate that I should do so, just as Flaux J did when he continued at [94] as follows:

“However, whatever the explanation for these references to the Bank making a complaint and even if the Bank did make some form of complaint to the police or the public prosecutor, in my judgment that would not have amounted to the Bank acting in bad faith vis-à-vis the other parties to the RSA. Given that the Bank was under a positive duty under Law No. 3 of 2007 to report any wrongdoing it discovered to the FAD, it cannot be criticised even if, in doing so, it was motivated in part by its own commercial interests. This conclusion essentially flows from or is akin to the principle which Mr Anderson QC relied upon, that no term can be implied into the RSA that the Bank would not report any wrongdoing to the FAD if it was required to do so, since such an implied term would be illegal and contrary to public policy: see by analogy William Cory & Son Ltd v London Corporation [1951] 2 KB 476 at 484 per Asquith LJ.”

[158]Although it was not disputed by Mr Anderson QC that in general a term is implied into contracts that neither party will prevent the other from performing their obligations under those contracts, the point was made that there are, however, very definite limits on the extent of the implied term concerned. The position is helpfully described in Lewison, The Interpretation of Contracts (6th Ed., 2015) at paragraph 6.14 as follows: “Both parties to a contract are taken to contract on the footing that they wish the contract to be performed, and accordingly must be taken to have agreed that neither will actively prevent performance. It is possible that the duty does not rest upon the implication of a term, but may be a positive rule of the law of contract that conduct of either the promisor or the promisee, which can be said to amount to himself of his own motion bringing about the impossibility of performance, is itself a breach of the contract. However, since ultimately the rule of law (if such it is) depends upon the intention of the parties, it is submitted that it may properly be categorised as an implied term. The essence of the prevention principle is that the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing. The classic formulation of the implied term is that of Cockburn C.J. in Stirling v Maitland (1864) 5 B & S 841: ‘I look on the law to be that if a party enters into an arrangement which can only take effect by reason of the continuance of a certain state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone that arrangement can be operative.’ This formulation has been applied many times. In Ogdens Ltd v Nelson,

[1903] 2 KB 287

(affirmed by HL: [1905] A.C. 109) Lord Alverstone C.J. said: ‘It is, I think, clearly established as a general proposition that where two persons have entered into a contract, the performance of which on one or both sides is to extend over a period of time, each contracting party is bound to abstain from doing anything which will prevent him from fulfilling the obligations which he has undertaken to discharge.’ … However, the limits of the implied term must be recognised. First, the implied term must not be illegal, contrary to public policy, or (in the case of a corporation) ultra vires the contracting party. Thus no term will be implied preventing a public authority from exercising powers vested in it by statute to be exercised for the public good. Second, the implied term is limited to the active prevention of performance, and probably does not extend to passivity in the face of the action of some third party; nor does it require positive steps to be taken to facilitate performance. Third, the act complained of must itself be wrongful, either as being a breach of the express or implied terms of the contract, or wrongful independently of the contract (for example tortious). As with other implied terms, the test of necessity must be satisfied. In Mona Oil Equipment & Supply Co Ltd v Rhodesia Railways Ltd, Devlin J. said: ‘In truth, the proposed term, like all other implied terms must be judged by the test whether or not it is necessary for the business efficacy of the contract. The fact that an act, if not prohibited by the contract, is one which would result in a party being robbed of the benefits which otherwise the contract would give him is certainly an important matter to be considered in relation to the business efficacy of the contract, but it is not necessarily the most important, and it is certainly not the only matter.’”.

[159]Mr Anderson QC submitted that the first of these limitations is applicable in the present case, so as to mean that it is not open to Plantation to rely upon the existence of the implied term which Mr Cakebread prayed in aid. In this regard, Mr Anderson QC relied on the statement in Chitty on Contracts, General Principles (32nd Ed., 2015) at paragraph 16-044 that a provision in any agreement not to disclose misconduct of such a nature that it ought, in the public interest, to be disclosed to others is against public policy. As Flaux J pointed out in his judgment at [94], this principle was described by Asquith LJ in William Cory & Son Ltd v London Corporation

[1951] 2 KB 476

at page 484. There, admittedly dealing with a different type of case, Asquith LJ said this:

“The first question, therefore, is whether the corporation’s act in making by-law No. 2 of 1948 was a breach of the contract at all. I will consider this first in abstraction from cl. 13 of this contract. The claimants argue that it is an implied term of every, or almost every, contract between A and B (and certainly of this contract) that A shall not prevent or disable B from performing the contract and vice versa, and that this was just what the corporation did by the act in question. In general, no doubt, it is true that a term is necessarily implied in any contract whose other terms do not repel the implication, that neither party shall prevent the other from performing it, and that a party so preventing the other is guilty of a breach. But an act cannot be a breach of a term of the contract - express or implied - (let alone a repudiation) unless the term in question is valid. There can be no breach, if the term in question is illegal, contrary to public policy, or (in the case of a corporation) ultra vires the contracting party, or for some other reason waste paper, because in such a case there is no binding obligation and only a binding obligation can be violated. You cannot break a rope of sand. It starts broken. …”

. Accordingly, it is clear that any contractual obligation (indeed, including any express term) not to report a serious fraud to the proper authorities would be contrary to public policy. As Mr Anderson QC submitted, that is all the more the case in relation to DIB in view of the positive obligation which DIB was under by virtue of Law No. 3 of 2007. This is, of course, the very point made by Flaux J in his judgment at [94] and it seems to me to be unanswerable. I agree, therefore, with Mr Anderson QC, that DIB cannot have been under any implied obligation not to tell the prosecution authorities about wrongdoing which was suspected by DIB. If, therefore, DIB made a complaint concerning Mr Fitzwilliam, whether to the prosecution authorities or to the FAD, and, even if that complaint was the reason why Mr Fitzwilliam was arrested on 6 June 2008, this cannot properly be regarded as having been in breach of any implied obligation to which DIB was subject.

[160]It follows that it is not open to Plantation to rely upon the suggested implied term. In any event, there is also the third of the limitations identified in Lewison to consider. In circumstances where it is not suggested that what DIB did was wrongful in the sense of being in breach of other terms of the RSA (whether express or implied terms), it is necessary to consider whether DIB’s conduct was “wrongful independently of the contract”. Mr Cakebread did not, however, advance a case directed to this consideration. On the contrary, as Mr Anderson QC pointed out in closing, Mr Cakebread made it clear during the course of his cross-examination of Mr Kamal that he was not suggesting that Mr Al Shaibani, the target of his criticism, acted improperly. The relevant exchange is set out below:

“Q. Right. So I suggest that the fact is, of course, that Mr Shabani, if he thought he was acting properly, and I’m suggesting he would act properly, in the interests of the state, of the Sheikh, of the Government of Dubai, would have the influence at least to have the Public Prosecutor arrest somebody? A. We are assuming here that -- arresting somebody innocently? I don't think this is – Q. No, let me stop – no, I’m not suggesting that for one moment. I’m suggesting that if he considered that there was good reason for it – I’m not suggesting he would arbitrarily arrest somebody. I’m suggesting that if he thought there was a good reason for doing so, a justification – corruption, for example, fraud – he would have the influence to have that happen?”

There is no hint here that Mr Cakebread was suggesting that Mr Al Shaibani acted without reasonable and probable cause nor that he acted with malice. These are, however, necessary ingredients of the tort of malicious prosecution, as is made clear in Clerk & Lindsell on Torts (21st Ed., 2014]) at paragraph 16-09:

“In an action for malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him by the defendant on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. …”

. It follows that, even if Plantation could establish the first necessary ingredient of the tort, namely that it was DIB which “set in motion” Mr Fitzwilliam’s arrest and prosecution (as opposed to the prosecution authorities and/or the FAD), the third and fourth ingredients have not been established or even alleged. The result is that, even if DIB played the role which Mr Cakebread suggested in relation to Mr Fitzwilliam’s arrest (and the arrest also of Mr Cornelius and Mr Ridley), it is of no legal consequence.

[161]There is, in any event, an insuperable causation difficulty with the case which is advanced by Plantation. This was identified by Flaux J in his judgment at [95]:

“What is more, even if the bona fides of the Bank in that regard could be impugned, any complaint by the Bank was not causative of the arrest and prosecution of the second and third defendants and Mr Fitzwilliam, which were clearly procured and instigated by the FAD and State Security police. In other words, whatever the Bank said or did, the FAD and the police were going to press for the arrests and prosecution in any event.”

I agree with this.

[162]For all these reasons, Plantation’s case on deliberate breach cannot, in any event, succeed. The truth is that it fails at every level. It follows that it is not open to Plantation to complain that any default which it may have committed under the RSA was the result of DIB having procured his arrest.

The notice which was served on 9 June 2008 and what followed

[163]I have referred on numerous occasions thus far to the letter which was sent by Al Tamimi to Plantation (strictly, in fact, to Clifford Chance, Plantation’s then solicitors) on 9 June 2008. This is the letter which followed the “heightened activity” to which Mr Cakebread referred during the course of his closing submissions and to which I have myself referred above. The letter, which was sent by Mr Waugh and which started by referring to the RSA, was in the following terms:

“It has come to our client’s attention that there are existing and continuing breaches of the RSA in relation to Plantation, including but not limited to: 1. Failure to pay all Plantation Villa Proceeds to DIB pursuant to clause 7.2(d) of the RSA. In this respect we note the following: (a) all Plantation Villa Proceeds (being all sale proceeds) over US$150,000 per month must be paid to DIB excluding (i) ‘Earmarked Plantation Proceeds’; and (ii) proceeds from villas sold prior to 2 October 2007. Earmarked Plantation Proceeds are defined as (i) amounts required by law to be retained on escrow; and (ii) amounts required by law to be applied to building or other specified purposes. (b) based on the financial information provided by Plantation to DIB: (i) 10 plots been sold by Plantation to third parties after 2 October 2007, being plots 54, 105, 29, 20, 82, 75, 76, 97, 98 and 108 (RSA plots); and (ii) the total deposits received in relation to the RSA Plots up to April 2008 is AED 18,595,465.30. (c) during the period from October 2007 to April 2008 (7 months), plantation was entitled to retain US$150,000 per month, being an aggregate of US$1,050,000 or AED 3,856,650. Accordingly up to April 2008, in relation to the RSA Plots Plantation was required to deposit the aggregate amount of AED 14,738,815.30 with DIB in repayment of the Rescheduling Amount or to be retained in the escrow account with DIB. Please note the above calculations do not include deposits received after April 2008 (which have not yet been confirmed) or any sale proceeds received in respect of plot 90 (the date of sale is unclear), and DIB reserves its rights in relation to the same. 2. Failure to register as a developer with the Real Estate Regulatory Authority of Dubai pursuant to Law No. 8 of 2007, as required under clause 16.1(f) of the RSA. 3. Failure to deposit sale proceeds from the Plantation Villas in an escrow account as required under Law No. 8 of 2007. 4. Failure to supply copies of all sale and purchase agreements entered into by Plantation for the Plantation Project and requested by DIB, as required under clause 16.1(e) of the RSA. Accordingly, DIB hereby formally gives notice to Plantation that it is in breach under the RSA. To the extent that the breaches above remain unremedied to the satisfaction of DIB within 15 business days of the date of this letter, pursuant to clause 18.4(a) of the RSA DIB shall proceed immediately to make demand of Plantation for the outstanding Restructuring Amount under the RSA and shall then take enforcement action against it. DIB reserves its rights for any other existing or future recent breaches of the RSA.”

Earlier the same day, as appears from an email exchange which contains heavy redaction, Mr Waugh had been sent the schedule which Mr Khalifa had sent Mr Shomali on 5 June 2008, namely the schedule originally supplied by Ms Sutherland on 26 March 2008 which Mr Khalifa had worked on to produce the additional calculations which Mr Shomali had asked him to include. Although it is not possible to know what Mr Waugh had to say in response, it is tolerably clear that he must have reverted with his views on the figures with which he had been provided. The GIA Department at DIB also reviewed the figures before the letter was sent by Mr Waugh to Mr Davies at Clifford Chance. (a) all Plantation Villa Proceeds (being all sale proceeds) over US$150,000 per month must be paid to DIB excluding (i) ‘Earmarked Plantation Proceeds’; and (ii) proceeds from villas sold prior to 2 October 2007. Earmarked Plantation Proceeds are defined as (i) amounts required by law to be retained on escrow; and (ii) amounts required by law to be applied to building or other specified purposes. (b) based on the financial information provided by Plantation to DIB: (i) 10 plots been sold by Plantation to third parties after 2 October 2007, being plots 54, 105, 29, 20, 82, 75, 76, 97, 98 and 108 (RSA plots); and (ii) the total deposits received in relation to the RSA Plots up to April 2008 is AED 18,595,465.30. (c) during the period from October 2007 to April 2008 (7 months), plantation was entitled to retain US$150,000 per month, being an aggregate of US$1,050,000 or AED 3,856,650. Accordingly up to April 2008, in relation to the RSA Plots Plantation was required to deposit the aggregate amount of AED 14,738,815.30 with DIB in repayment of the Rescheduling Amount or to be retained in the escrow account with DIB. Please note the above calculations do not include deposits received after April 2008 (which have not yet been confirmed) or any sale proceeds received in respect of plot 90 (the date of sale is unclear), and DIB reserves its rights in relation to the same. DIB reserves its rights for any other existing or future recent breaches of the RSA.”

[164]The letter sent on 9 June 2008 was followed by a further letter, this time sent directly to Plantation by Mr Kamal and Mr Shomali, but plainly drafted by Mr Waugh, on 16 June 2008. This letter (which was dated 15 June 2008) referred to the standby loan facility and stated as follows:

“With respect to the above Banking Facilities Letter accepted by you, we note that a notice of breach has been served on you in respect of the Restructuring and Settlement Agreement dated 19 August 2007 between the Bank, you and others. For this reason, we regret to inform you that the Bank shall not be able to proceed with the above Banking Facility at this time. The Bank may, in its sole discretion, consider providing the Facility at a future date. However, this will be subject to the above issue being resolved to the complete satisfaction of the Bank, and such other terms and conditions as the Bank may decide.”

[165]There followed a meeting which Mr Waugh attended, along with Mr Essam Al Tamimi, on behalf of DIB, with Mr Davies and Ms Sutherland on behalf of Plantation. This meeting took place at Clifford Chance’s offices. As Mr Waugh explained in his witness statement, its focus was on a request made by Plantation for “further time to repay the debt owed to the Bank”. No mention, Mr Waugh observed, was made of any deal under which Mr Fitzwilliam was to receive US$600 million for part of his interest in Plantation. Be that as it may, what happened next is that Mr Cornelius and Mr Ridley made an interim injunction application to the Commercial Court in London on the evening of (Sunday) 6 July 2008. They were concerned that the 15 business days which Plantation had been given in the notice served on 9 June 2008 to remedy the breaches which were alleged in that notice were about to expire. Their particular concern was that DIB would, therefore, imminently declare an Event of Default under clause 18.1 of the RSA. Simon J granted the interim relief sought, ordering that DIB should not exercise any rights under the notice given on 9 June 2008 until the return date (Wednesday, 9 July 2008). In the event, the inter partes took place on Thursday, 10 July 2008 before Tomlinson J who reserved judgment until 14 July 2008. Flaux J summarised what happened at that hearing in his judgment at [118] to [120]:

“In the event, the return date was 10 July 2008, when the matter came before Tomlinson J. The second and third defendants (as claimants in those proceedings 2008 Folio 682) had issued a Claim Form seeking declarations (i) that the notice dated 9 June 2008 had not been properly served (a point on which they lost before Tomlinson J and which has not been pursued before me) and (ii) that there had been no breach of the RSA by them or Plantation entitling the Bank to declare an Event of Default. The Bank resisted the continuation of the injunction, filing witness statements from Mr Lyons and Mr Waugh. In his witness statement, Mr Waugh dealt with the suggestion in the evidence of Ms Caldicott that Plantation had not paid over the Plantation Villa Proceeds because the Bank was in breach of an obligation to lend money pursuant to a letter of intent sent to Mr Fitzwilliam on 19 August 2007. Mr Waugh pointed out that the Bank had in fact made the offer of the Standby Loan Facility in its letter of 19 April 2008 and that the reason no lending was made under that facility was because Plantation failed to comply with the conditions precedent, so that there was no foundation for any suggestion that the Bank was in breach of that agreement. He also pointed out that, even if the Bank were in breach of any lending obligation, that would not afford Plantation with a defence to its obligations under the RSA, including its payment obligations. Tomlinson J accepted that the second and third defendants' case that the failure of the Bank to advance monies under the Standby Loan Facility prevented performance of Plantation’s obligations was unarguable and refused to continue the injunction. In his judgment at [22] he held as follows: ‘… it seems to me that the short passage in Ms Caldicott’s witness statement, to which I have referred is really a wholly inadequate basis upon which the court could be satisfied that there is an arguable case that the bank has itself broken a contractual obligation to Plantation which has in turn prevented performance by Plantation of its obligations to pay over the sales proceeds as and when they were received … it seems to me that there is no serious issue to be tried on the merits on the question of whether or not Plantation is in breach of the underlying agreement in, at any rate, the principal respect alleged;’ He also rejected an application made by Denton Wilde Sapte (recently instructed for Plantation and Mr Fitzwilliam in place of Clifford Chance) for a 14 day adjournment to enable them to take proper instructions given that Mr Fitzwilliam was in prison and it was difficult to contact him. Having heard submissions from counsel then acting for the Bank, he said at [3] of his judgment: ‘I am entirely persuaded that there is no basis upon which I can properly do so, whatever misgivings I may feel about the underlying situation.’”

[166]The same day as Tomlinson J lifted the injunction which had been obtained by Mr Cornelius and Mr Ridley, 14 July 2008, Al Tamimi wrote on behalf of DIB to Dubailand in the following terms:

“We refer to the: 1. Land Lease Agreement (Lease) between Dubai development and investment authority (now Dubai Land LLC) and Arthur Fitzwilliam (now Plantation Holdings FZ LLC) dated 25 January 2004; and 2. Conditional Assignment of Lease between Plantation Holdings FZ LLC and Dubai Land LLC dated 2007. Pursuant to clause 2.3 of the Conditional Assignment of lease, we hereby notify and certify to you on behalf of DIB that a Plantation Enforcement Event has occurred. Accordingly we request you to acknowledge the assignment of all of Plantation Holdings FZ LLC’s rights, interests and title under the Lease to DIB by signing the acknowledgement below. We would also kindly request you to: 1. update your records accordingly; 2. provide us with copies of all documents, plans, financials, contracts and other information relating to the Plantation land and project; and 3. cease communication with Plantation Holdings FZ LLC, and provide all other assistance reasonably required by DIB to ensure all sales, marketing and other activities in relation to the Plantation land and project are immediately stopped. … Acknowledgement Dubai Land LLC hereby acknowledges the assignment of all of Plantation Holdings FZ LLC’s rights, interests, obligations and title under lease to DIB as from the date hereof. …”

. The Acknowledgement was duly thereafter signed by Dubailand on 20 July 2008, after the exchanges to which I have previously referred concerning the freezing order/attachment and after the prosecution authorities had indicated that they did not object to the assignment. On the same day, 20 July 2008, Al Tamini wrote to Plantation referring to the “notice of breach dated 9 June 2008”, advising “that the breaches listed in the Notice remain unremedied” and informing Plantation that:

“Pursuant to DIB’s rights under the RSA and the Conditional Assignment of lease between Plantation Holdings FZ LLC, DIB and Dubai Land LLC dated 2007, all of Plantation Holdings FZ LLC’s rights, interests and title under the Lease have been assigned to DIB (as evidenced by the acknowledgement signed by Dubai Land LLC, copy attached).”

The letter then went on to say this:

“Accordingly, we direct you to immediately: 1. provide us with originals of all documents, plans, financials, contracts and other information relating to the Plantation land and project; and 2. cease (and direct all of your employees and agents to cease) all sales, marketing and other activities in relation to the Plantation land and project. DIB reserves all of its other rights and remedies under the RSA and at law.”

The next day, 21 July 2008, Al Tamimi wrote to the various parties to the RSA (including the lawyers) referring to the letter which had been sent on 9 June 2008, advising “that the breaches listed in the Notice remain unremedied” and demanding and declaring on DIB’s behalf accelerated payment of the “Outstanding Restructuring Amount” in the sum of US$440,818,275.65 pursuant to clause 18.4(a)(i) of the RSA informing Plantation. We would also kindly request you to: Acknowledgement The letter then went on to say this: DIB reserves all of its other rights and remedies under the RSA and at law.”

[167]Subsequently, on 11 September 2008, DIB issued a press release in which the following, amongst other things, was stated:

“Dubai Islamic Bank (DIB) Seeks [sic] to clarify its position regarding a transaction that has resulted in the bank recently taking action to enforce its security over a substantial area of land located in Dubai land. DIB confirms that following enforcement of the security, the bank has assumed ownership of the land which is the site for a premium property development project, known as the Plantation Project, which covers the bank’s exposure to the transaction in question. At all times, DIB had strong control of the security, as well as other securities covering the same transaction, and waited on foreclosure as per the legal requirements of the foreclosure process. In this regard, the bankers acted in the best interest of all its stakeholders and has at all times taken the necessary steps to safeguard those interests. …”

. Whether as a result of this press release or not, soon after this, as he explained in an email to, amongst others, Mr Shomali, Mr Kamal “received a call from a US-based investment group with presence in Dubai expressing interest to invest in Plantation”. Mr Kamal went on to say that he considered that “we need to have a decision on whether this project shall be sold or developed”, adding that:

“It is important to know whether a gain in addition to the outstanding amount can be realised by us or we are only entitled to the debt amount. In the later [sic] case, we need to be clear on whether the gain that may potentially be realised will be the entitlement of the Government or Arthur. I am sure we all agree that we do not want to work hard to make Arthur rich.”

In the event, that investment did not amount to anything. Nor did other expressions of interest which ensued during the course of the coming months, including after DIB had taken physical possession of the Plantation site on 4 November 2008. By this stage, as Mr Ilahi explained in detail in his witness statement, Plantation’s debts were very substantial and he had to spend a lot of his time working through the records and files “to get to the bottom of” matters. As demonstrated by an internal memorandum which he prepared for Mr Shomali on 10 January 2009, having worked through the information which he was able to glean and taking into account the various claims made by creditors, he ascertained that “the amount booked in Plantation” was AED 13,739,950.39 whereas the amounts claimed by the various contractors and suppliers who had made claims amounted to as much as AED 44,085,575.09. In addition to this, other liabilities had accrued, Mr Ilahi stating as follows in paragraph 7.37 of his witness statement:

“In addition, I recall that a very substantial sum (approximately AED 300 million, or a little under USD 81.68 million) was being claimed by Dubailand for roads (over AED 49.5 million, or a little under USD 13.5 million), utilities (including water supply, irrigation and sewerage (over AED 136.5 million, or a little over USD 37.16 million) and a power substation (over AED 107 million, were little over USD 29.13 million). I also recall a big claim was made by Dubai Land under its profit share agreement with Plantation. …”

. Ultimately, having scaled back the equestrian-related operations and ultimately selling the horses in June 2010, the decision was taken by DIB in about August 2010 to put the Project on hold and wait for a change of circumstances. The Project not having attracted any firm offers from any prospective investors, it remains on hold to this day.

The present proceedings

[168]The present proceedings were commenced by Plantation on 5 July 2013, which was shortly before the trial of the action brought by DIB against Mr Cornelius, Mr Ridley and others which took place in October 2013 before Flaux J. Indeed, as recorded in Flaux J’s judgment after that trial at [6], less than a month before the trial began, Plantation made an application that its claim be heard at the same time as DIB’s claim. Flaux J refused that application on the basis that it was made too late and that it would be impossible for the trial of DIB’s claim to go ahead as planned if Plantation’s claim were to be tried at the same time. Plantation’s application to the Court of Appeal in relation to Flaux J’s refusal to accede to the joinder application failed. Accordingly, Plantation took no part in the trial before Flaux J. Subsequently, in February 2015, Teare J dismissed Plantation’s summary judgment application, and so the matter proceeded to trial.

[169]I did not understand it ultimately to be in dispute between Mr Cakebread and Mr Anderson QC that Plantation’s case depends on its being able to establish that DIB had no entitlement, pursuant to clause 18.2 of the RSA, “to exercise its rights under the Plantation Security” (namely the Conditional Assignment) when it (through Al Tamimi) wrote to Dubailand on 14 July 2008 notifying Dubailand of “the occurrence of a Plantation Enforcement Event” (again for clause 18.2 purposes) and shortly thereafter secured Dubailand’s acknowledgement of the effectiveness of the assignment. Clause 18.2, it will be recalled, provides that “the Bank may not exercise its rights under the Plantation Security until the occurrence of a Plantation Enforcement Event”. It follows that the first question which I must determine, a question which goes to the liability of DIB, is whether, when DIB purported to “exercise its rights” in writing to Dubailand on 14 July 2008, there had by that stage been “the occurrence of a Plantation Enforcement Event”. If the answer to this question is that there had been “the occurrence of a Plantation Enforcement Event”, Plantation’s liability case must fail unless DIB is to be regarded as being precluded from relying upon such an occurrence through waiver or estoppel; if the answer is that there had not been “the occurrence of a Plantation Enforcement Event”, Plantation will have established liability. In that event, however, a further question then arises, a causation question, namely whether there would have been “the occurrence of a Plantation Enforcement Event” subsequently. If not, the last question which needs to be considered is what (if any) loss Plantation has suffered and so what damages are payable by DIB.

[170]These are the issues which I now come on to address. As will appear, my conclusions in this case are as follows:(i) that DIB was not entitled “to exercise its rights under the Plantation Security” in July 2008 since there had not by that stage been “the occurrence of a Plantation Enforcement Event” under clause 18.2 of the RSA or, if there had been, then, DIB is to be regarded as being precluded from relying upon such an occurrence through the operation of an estoppel;

(ii) that nonetheless there would have been “the occurrence of a Plantation Enforcement Event” subsequently, specifically in October 2008, meaning that DIB would shortly, in any event, have had an entitlement to “exercise its rights” under clause 18.2; and

(iii) that, in the circumstances, Plantation has not established its entitlement to the level of damages which it has claimed in these proceedings and is, at best, therefore, able only to recover nominal damages since no alternative case has been put forward by Plantation which focuses on the period between mid-July 2008 and early October 2008.

DIB’s entitlement under clause 18.2 of the RSA

[171]In considering whether DIB was entitled to invoke clause 18.2 of the RSA in mid-July 2008 by writing (through Al Tamimi) to Dubailand on that date notifying Dubailand of “the occurrence of a Plantation Enforcement Event” my focus is, at least in the first instance, on the various breaches of the RSA which were set out in the notice sent by Al Tamimi to Clifford Chance on 9 June 2008: the failure to pay Plantation Villa Proceeds to DIB (Breach 1); the failure to register as a developer pursuant to Law No. 8 of 2007 (Breach 2); the failure to deposit proceeds from Plantation villas into an escrow account pursuant to Law No. 8 of 2007 (Breach 3); and the failure to supply copies of all sale and purchase agreements entered into by Plantation as requested by DIB (Breach 4).

[172]I should explain that I have characterised Breach 1 as involving only a failure to pay monies to DIB despite the fact that in the 9 June 2008 letter the first of the breaches identified was (with the word “or” emphasised by me rather that in the original wording) that “up to April 2008, in relation to the RSA Plots Plantation was required to deposit the aggregate amount of AED 14,738,815.30 with DIB in repayment of the Rescheduling Amount or to be retained in the escrow account with DIB”. This is because the alleged failure to pay monies into an escrow account is the express subject of Breach 3. It, therefore, avoids confusion to deal with matters in this way, although when I come on to address Breaches 1 and 3 I shall do so together precisely because of the overlap between them. I should mention in this regard that Mr Cakebread suggested that, in drafting the 9 June 2008 letter, Mr Waugh was seeking to advance two different contentions which were inconsistent with each other. This submission, however, overlooked the “or” which I have highlighted. Mr Waugh was clearly framing Breach 1 in two alternative ways, the latter of which finding its echo in Breach 3 which should, therefore, also be regarded as primarily an alternative alleged breach.

[173]That said, as Mr Anderson QC pointed out both in opening and in closing, there is what he described as “a temporal point” which arises in view of the manner in which Law No. 8 of 2007 came into operation. Specifically, as Mr Anderson QC explained in his opening submissions, were I to take the view that Law No. 8 of 2007 applied to villa plots sale receipts (contrary to the primary position adopted by DIB in these proceedings, if not contemporaneously) but that it only applied to monies received after 28 December 2007 (for reasons which I shall come on to explain) and that registration under Law No. 8 of 2007 was achieved by Plantation in March 2008, then, it would be open to me to conclude: that there was a breach of clause 7.2(d) in respect of the period before 28 December 2007; that between 28 December 2007 and March 2008, there was a breach of clause 16.1(f) because registration ought to have been effected by 28 December 2007; and that from 28 December 2007 onwards (including after March 2008) there was a breach of the RSA because proceeds from villa plots sales were not paid into an escrow account. This means that it is theoretically possible for Plantation by April 2008 to have been in breach of an obligation to pay monies to DIB as well as in breach of an obligation to pay monies into an escrow account.

[174]After addressing Breaches 1 to 4, I shall have to come on to address Mr Anderson QC’s additional reliance on clauses 18.1(e)-(g), namely the insolvency/payment breaches (Breach 5) which, although not identified in the 9 June 2008 letter and although not apparently relied upon by DIB when invoking clause 18.2 the following month, it is now suggested can be relied upon by DIB to justify, in effect retrospectively, DIB’s actions.

[175]In considering each of Breaches 1 to 5, I bear in mind Mr Cakebread’s observation that none of the DIB personnel called to give evidence before me apparently considered at the time, and perhaps even at trial, that Plantation was in breach of the RSA in the respects set out in Al Tamimi’s letter dated 9 June 2008. The same applies in relation to Breach 5, the breach which was not identified in that letter. Although ultimately whether Plantation was in breach in these various respects is a matter for me rather than through these DIB witnesses, it is nonetheless instructive to have regard to the position, as it were, ‘in real time’ and ‘on the ground’. That position is, in any event, relevant when considering the waiver/estoppel issues which arise.

Construction issues

[176]Before coming on to address Breaches 1 to 5, I need, first, to deal with certain issues of construction which were in dispute between Mr Cakebread and Mr Anderson QC. I refer here to issues concerning:(a) the interrelationship of clauses 7.2(d) and 7.3 of the RSA (an issue which brings in the RSA definitions in respect of “Plantation Villa Proceeds”, “Earmarked Plantation Proceeds” and “Escrow Proceeds”, as well as clause 16.1(f));

(b) the applicability of the provisos set out in clause 18.1(a) to other clause 18.1 “Events” (an issue which brings in the RSA definition of “Plantation Enforcement Event”); and

[177]As to (a), it was Mr Cakebread’s submission that, having regard to commercial realities and so considering the approach to construction advocated by Lord Clarke in Rainy Sky SA v Kookmin Bank

[2011] UKSC 50

[2011] 1 WLR 2900

at [14]-[30], the parties should not be taken as having intended that there was an obligation on the part of Plantation to make the payments described in clause 7.2(d) at a stage when the Project was still being developed since it was clearly understood that US$150,000 per month was not enough to fund the development costs which Plantation was incurring at the time that the RSA was entered into and would thereafter be incurring. Accordingly, Mr Cakebread submitted, “clause 7.3 must have been intended to be the governing clause during the development phase”. The difficulty with this argument is threefold. First, clause 7.2(d) does not seek to distinguish between development and post-development situations. Mr Cakebread’s distinction is not, therefore, readily apparent from the wording of the provision. Secondly, clause 7.2(d) has proviso-type wording (“provided that such sum has been disbursed or committed to the purposes of the development of Plantation Project”) which positively suggests that, contrary to Mr Cakebread’s submission, clause 7.2(d) applies to the development stage of the Project and not to the post-development stage. Thirdly, clause 7.3 is under a sub-heading which reads:

“Application of surplus Plantation Project and Pakistan Project cash”

. Although clause 2.2 of the RSA earlier states that the “title of any provision of this Restructuring Agreement shall not affect the meaning of that or any other provision”, this sub-heading serves as a useful pointer to what clause 7.3 is addressing, namely surplus cash generated by the Project as opposed to “Plantation Villa Proceeds” which, as Flaux J put it in his judgment at [114], are “ring fenced by clause 7.2(d)”, in other words, the provision which expressly deals with “Plantation Villa Proceeds”, making it clear that any such proceeds in excess of US$150,000 per month must be paid to DIB “in mandatory prepayment of the Rescheduling Amount”. In effect, as Flaux J explained, “only the first US$150,000 per month can be expended on working capital requirements [see clause 7.3(a)] for the development of the Project”. Any other approach to clauses 7.2(d) and 7.3 would, I agree with Mr Anderson QC, mean that clause 7.2(d) was essentially a dead letter. There is nothing to suggest that clause 7.2(d) was intended to be read as somehow subject to clause 7.3.

[178]As to the obligation to pay villa sale proceeds into an escrow account, in my view, there was such an obligation under the RSA albeit that it is not as obvious as it might have been. I say this for essentially two reasons. First, under clause 16.1(f) Plantation was under an obligation, described as a covenant, to “obtain, observe and renew all such authorisations consents and licenses which are required in relation to its business”. This would include, as I see it, compliance with Plantation’s obligations under Law No. 8 of 2007. Secondly, as Mr Anderson QC pointed out, once the RSA definitions in respect of “Plantation Villa Proceeds”, “Earmarked Plantation Proceeds” and “Escrow Proceeds” are read into the definition of “Plantation Villa Proceeds” contained in clause 7.2(d), Plantation’s mandatory prepayment obligation becomes a requirement that it pay (ignoring any villa proceeds in respect of sales made prior to the Effective Date (2 October 2007):

“the Plantation Vila Proceeds [i.e. the proceeds, when collected, of sale of plots in the residential villa element of the Plantation but excluding those amounts of Plantation Villa Proceeds that are: (a) Escrow Proceeds [i.e. those amounts of Plantation Villa Proceeds required by Law to be retained in escrow, but only for so long as they must remain in escrow or applied in accordance with Law]; or (b) required by law to be applied for building or other specified purposes] so far as they exceed $150,000 per month provided that such sum has been disbursed or committed to the purposes of the development of the Plantation Project.”

Although this can hardly be described as the happiest drafting, I agree with Mr Anderson QC that it is nonetheless tolerably clear that what the parties to the RSA must be taken as having intended is that either sums received in respect of villa plots sales would be paid into an escrow account or they would be paid to DIB inasmuch as they exceeded US$150,000 per month.

[179]This brings me to the second of the construction issues which arises. This is concerned with the applicability of the provisos contained in clause 18.1(a) of the RSA. It will be recalled that clause 18.1 is in a section of the RSA headed “Events of Default and Enforcement Events”, specifically under a sub-heading of “Events”. Sub-paragraph (a) is concerned with “an Event of Default” where “any amount payable in respect of a Repayment Date is not paid in the manner and at the time provided in this Restructuring Agreement”. This is a reference to Schedule 2 which, again it will be recalled, sets out details of payments which it was agreed would be made on particular dates expressed in each case as a number of days from the Effective Date. Translated into actual dates, taking the starting point (the Effective Date) as to October 2007, the payment obligations in Schedule 2 entailed the following: an obligation to pay US$25 million on 30 January 2008; an obligation to pay a further US$25 million on 29 May 2008; an obligation to pay US$70 million on 1 October 2008; an obligation to pay US$110 million on 2 October 2009; and an obligation to pay US$270 million on 2 October 2010. Clause 18.1(a) subject to certain provisos, however, namely (albeit repeating what has gone before):

“(i) there shall not be an Event of Default under this clause 18.1(a) if the amount paid to the Bank in respect of a Repayment Date represents 90% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months after the Repayment Date to which it relates; and (ii) no Plantation Enforcement Event shall arise consequent upon an Event of Default under this clause 18.1(a) if, during the 240 day period immediately following the Effective Date the amount paid to the Bank in respect of a Repayment Date falling within that period represents 50% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months of the Repayment Date to which it relates;”

Mr Anderson QC characterised the first of these provisos as, in effect, a ‘near miss’ provision: almost the entirety of the relevant instalment has been paid and the balance is paid within three months. As for the second proviso, this covers the situation where, within 240 days of the Effective Date (2 October 2007) and so not later than 29 May 2008, 50% or more of the amount due on the relevant Repayment Date has been paid. In that situation, the shortfall can be paid within three months of that Repayment Date.

[180]As Mr Anderson QC pointed out, the second proviso is of no application in the present case since the 240-day period had ended on 29 May 2008, and so before the 9 June 2008 was sent. The first proviso is, however, relevant. The reason why this is the case is that, again as has previously been set out, the RSA defines “Plantation Enforcement Event” as being a “breach of the provisions of the following sub-paragraphs of clause 18.1(Events): sub-paragraph (a) and, where such breach is caused by the default of Plantation, sub-paragraphs (c) - (k), in the case of sub-paragraphs (a), (c) - (e) or (h) - (k) subject to the provisos at clause 18.1(a) (Events)”. In short, not all “Events of Default” constitute a “Plantation Enforcement Event” or, put another way, there can be an “Event of Default” which is not a Plantation Enforcement Event. The reason why, in turn, this matters is that, as I have previously explained, clause 18.2 of the RSA only gives DIB the entitlement to “exercise its rights under the Plantation Security” if there has been “the occurrence of a Plantation Enforcement Event”. Again, putting the matter differently, without “the occurrence of a Plantation Enforcement Event”, DIB had no entitlement to do what it did on 14 July 2008 when Al Tamimi wrote to Dubailand. That, indeed, is what Flaux J decided in his judgment at [150] to [152], referring at [150] to the first of the clause 18.1(a) provisos and recording the submission made on Mr Cornelius’s and Mr Ridley’s behalf that “since, at that time in June 2008, they had paid more than 90% of what was due at the 2 June 2008 240 day Repayment Date under Schedule 2 (US$60.4 million having been paid when US$50 million was due), that proviso operated to exclude the occurrence of a Plantation Enforcement Event”. He went on in paragraph [151] to refer to a submission which Mr Anderson QC had made before him (and which he essentially repeated before me) as follows:

“Mr Anderson QC submits that this literal construction is uncommercial as it would, in effect entitle Plantation to ‘cock a snook’ at its obligations under the RSA and fail to pay over to the Bank many millions received as Plantation Villa Proceeds and yet, if the Repayment Schedule were up to date, the Bank could never rely upon a Plantation Enforcement Event.

(a) ”

Flaux J rejected Mr Anderson QC’s argument, saying this in paragraph [152] and [153]:

“It seems to me there are a number of problems with Mr Anderson's construction. To begin with, it seems to me Mr Mallin is right that the provisos in clause 18.1(a) and the reference to them in the definition of Plantation Enforcement Event are intended as something of a brake on enforcement against the Plantation security which was regarded by the parties as the most valuable security of all under the RSA. There is nothing inherently uncommercial in that. Furthermore, so far as Mr Anderson's point about cocking a snook at the RSA is concerned, the risk of that is more apparent than real, given that the breach of clause 7.2(d) by Plantation is an Event of Default under clause 18.1(d) for the reasons given in the previous section of the judgment. If that default remained unremedied (as it did in the present case), then under clause 18.4(a) the Bank would be entitled to serve a further notice accelerating the debt, the effect of which would be, inter alia, that a Plantation Enforcement Event had then occurred, for the reasons given in the next section of the judgment. Even if I thought that the natural construction of the definition of Plantation Enforcement Event for which Mr Mallin contends was uncommercial, I do not consider Mr Anderson QC’s alternative construction would be viable without rewriting the contract. If the intention had been to protect the counterparties from the Bank relying upon another sub-clause of clause 18.1 to bypass the provisos, one would have expected that to be spelt out in the wording of clause 18.1, not by a side wind in the definition of a Plantation Enforcement Event, when Plantation Enforcement Events are not mentioned in clause 18.1 at all. Whilst it is certainly true, as Mr Mallin accepted, that the meaning of a contractual provision will yield to commercial common sense, it will not do so to the extent of rewriting the contract, which as I say would be what would be required to achieve Mr Anderson’s construction.”

On this basis, Flaux J’s conclusion in paragraph [154] was this:

“It follows that, at the time when the period of 15 business days for curing the default under clause 18.1(d) expired on or about 3 July 2008, at the time of the hearing before Tomlinson J on 10 and 14 July 2008 and at the time when the Bank served the notice on 20 July 2008 declaring a Plantation Enforcement Event, on the proper construction of the RSA, there was not or at least not yet a Plantation Enforcement Event and the Bank was not entitled to declare one when it did.”

Flaux J rejected Mr Anderson QC’s argument, saying this in paragraph [152] and [153]: On this basis, Flaux J’s conclusion in paragraph [154] was this:

[181]Mr Anderson QC submitted that Flaux J was wrong about this matter. He made the point that, whilst the provisos which appear in clause 18.1(a) make obvious sense in relation to the payment obligation contained in that provision, they make rather less sense in relation to certain of the other clause 18.1 “Events” which are listed in the definition of “Plantation Enforcement Event” as being “Events” to which the provisos are applicable, specifically subparagraphs (c), (d), (e), (h), (i), (j) and (k) (but not (f) and (g)).

(h) which is in the following terms:

“If it becomes unlawful for a Guarantor or any other Security Provider to perform all or any of its obligations under this Restructuring Agreement or any Security Document or any authorisation, approval, consent, licence, exemption, filing, registration or notarisation or other requirement of any governmental, judicial or public body or authority necessary to enable the guarantor or any other security provider to comply with its obligations under this Restructuring Agreement or any Security Document or to carry on its business is not obtained or, having been obtained, is modified, revoked, suspended, withdrawn or withheld or fails to remain in full force and effect;”

Mr Anderson QC drew attention to the fact that a breach of the type contemplated by sub-paragraph (h) is necessarily not tied to any particular date since the time when it becomes unlawful to perform will, unlike a date for payment, not necessarily be readily identifiable. He suggested that the same distinction applies to other sub-paragraphs. In addition, Mr Anderson QC pointed out, the sub-paragraph (a) provisos take as their reference points dates and timings which have nothing to do with the date of a breach falling within the ambit of sub-paragraph (h). In my view, there is considerable force in these submissions. It is far from easy to discern why the sub-paragraph (a) provisos can have any sensible application to other clause 18.1 “Events”. Indeed, as Mr Anderson QC went on to point out, the provisos themselves are very specific in their applicability being limited to sub-paragraph (a). This is demonstrated by the opening words of the first proviso (and “there shall not be an Event of Default under this clause 18.1(a) …”) as well as the opening words of the second proviso (“no Plantation Enforcement Event shall arise consequent upon an Event of Default under this clause 18.1(a) …”). Focusing still on sub-paragraph (h), Mr Anderson QC postulated that in order for the first of the provisos to operate, it would need to be reworded as follows:

“there shall not be an Event of Default a Plantation Enforcement Event under this clause 18.1(a)18.1(h) if the amount paid to the Bank in respect of a the Repayment Date preceding the date such unlawfulness arose or such failure to obtain occurred, or such modification, revocation, suspension, withdrawal, or withholding occurred or such failure to remain in force occurred represents 90% or more of the amount due on such Repayment Date and any such shortfall is paid to the Bank within 3 months after the Repayment Date to which it relates”

. Mr Anderson QC submitted that this amount of re-drafting demonstrates that the parties to the RSA cannot have intended the definition of “Plantation Enforcement Event” to make the sub-paragraph (a) provisos applicable to the other sub-paragraphs listed in that definition. The difficulty with this submission, however, is that the definition does just that and in very specific terms. If Mr Anderson QC were right, then, there would be no need for sub-paragraphs (c) to (e) and (h) to (k) to have been mentioned at all. Nor would there have been any need to exclude sub-paragraphs (f) and (g) from the list. Indeed, there would probably have been no need to have had any mention of the sub-paragraph (a) provisos since they would, in any event, obviously apply to sub-paragraph (a) regardless.

[182]As a matter of construction, therefore, like Flaux J, I consider that it is not obvious that I should reach a conclusion that the sub-paragraph (a) provisos do not apply to the other sub-paragraphs which were listed. However, I have sympathy with Mr Anderson QC’s submission that applying the provisos to other sub-paragraphs leads to an odd result, namely that, as long as payments have been made in accordance with Schedule 2 or unless the provisos are applicable, then there can only ever be a Plantation Enforcement Event if reliance is able to be placed on sub-paragraphs (f) or (g) (the provisions which are not listed in the “Plantation Enforcement Event” definition). As was submitted, this would mean that even the most egregious failure on the part of Plantation to perform its obligations under the RSA would not be capable of amounting to a “Plantation Enforcement Event”.

(c) which is in the following terms:

“If any representation or warranty made by any Guarantor in this Restructuring Agreement or any Security Documents or any notice delivered under any of them shall prove to have been incorrect in any material respect as of the time made;”

This is essentially the ‘cock a snook’ submission which Flaux J records Mr Anderson QC as having made before him. I am not clear, however, whether Mr Anderson QC’s submission at that stage focused only on scenarios in which “Events of Default” came about because of non-compliance with financial obligations. Certainly, in paragraph [151] of the judgment, where Flaux J records the ‘cock a snook’ submission, the example recorded as having been given by Mr Anderson QC was a failure on the part of Plantation to “pay over to the Bank many millions received as Plantation Villa Proceeds”. It is not obvious that Mr Anderson QC made a more broadly based submission to Flaux J by reference, as he did before me, to sub-paragraphs (c) and (h). Indeed, another example would seem to me to be sub-paragraph (d) insofar as the relevant failure to perform for the purposes of that provision is, as in the case of alleged Breaches 2 and 4, failures to provide DIB with sales contracts and to register under Law No. 8 of 2007. These, again, are matters which are not financial in nature, yet DIB’s ability to rely upon them (through sub-paragraph (d)), if Plantation’s argument is right and if Flaux J was right, would depend on the application of the sub-paragraph (a) provisos concerning payment of the Rescheduling Amount.

[183]In the circumstances, although ultimately the issue is academic in view of the conclusions which I have reached on Breaches 1 to 4, namely that they have not been established, I consider that Mr Anderson QC was right when he submitted that the RSA should be construed in a manner which treats the reference in the definition of “Plantation Enforcement Event” to the sub-paragraph (a) provisos being applicable to sub-paragraphs (c) to (e) and (h) to (k) as meaning that those provisos apply if and insofar as DIB seeks to rely upon sub-paragraphs (c) to (e) and (h) to (k) in relation to a non-payment which properly falls within sub-paragraph (a) and so should be relied upon, and only relied upon, in the context of that sub-paragraph. Put differently, it was not open to DIB to seek to characterise a non-payment within the scope of sub-paragraph (a) as something which comes within sub-paragraphs (c) to (e) and (h) to (k), and thereby to seek to circumvent the sub-paragraph (a) provisos. In my view, this construction makes better commercial sense and entails no undue violence to the “Plantation Enforcement Event” definition. I, therefore, disagree with the conclusion which was reached in this regard by Flaux J. I disagree, in particular, with his view, as expressed in the judgment at paragraph [153], that Mr Anderson QC’s argument would require a rewriting of the RSA. I do not believe that it would.

[184]This brings me, lastly, to the issue which relates to clause 18.4 of the RSA. On this issue, even allowing for my disagreement with him concerning the applicability of the sub-paragraph (a) provisos, I agree with the conclusion which was reached by Flaux J in his judgment at paragraphs [156] to [159], as follows:

“Following the judgment of Tomlinson J lifting the injunction, it is clear that there was an Event of Default under clause 18.1(d) because of the failure of Plantation to comply with its obligations under clause 7.2(d) or remedy that default within 15 business days, so that the Bank was entitled to serve a notice under clause 18.4(a) accelerating the debt and demanding immediate repayment of the full outstanding Rescheduling Amount, which it did on 21 July 2008. Mr Anderson QC submitted, that once it had served that notice and the full outstanding Rescheduling Amount fell due, any brake upon the occurrence of a Plantation Enforcement Event contained in the definition which might previously have been applicable fell away. Both Mr Mallin and Mr Mills sought to resist that conclusion on the basis that in some way clause 18.1(a) and its provisos remained in force, so far as a Plantation Enforcement Event was concerned, notwithstanding the acceleration of the debt. It seemed to me they had some difficulty in formulating their case as to how the RSA could be construed in that way, which is scarcely surprising since in my judgment that case is untenable. Once there has been acceleration under clause 18.4, the Repayment Schedule in Schedule 2 and clause 18.1(a) necessarily fall away because the Bank is entitled to say the whole outstanding Rescheduling Amount is payable immediately. It follows that the provisos under clause 18.1(a) no longer operate. By definition clause 18.4 only comes into play when there is already an unremedied Event of Default under clause 18.1 and clause 18.4 simply overrides clause 18.1. Mr Mills really recognised this when he said that clauses 18.1 and 18.4 have to be dealt with in sequence. In the alternative, on the true construction of the RSA, once a notice of acceleration has been served, the ‘Repayment Date’ in the opening words of clause 18.1(a) is the date of that notice, and the amount due on that date is the whole outstanding Rescheduling Amount. In those circumstances, the defendants cannot rely upon the proviso, because what they had paid was only about 12% of what was due (US$60.4 million as a percentage of US$501 million), nothing like 90%. It follows that the Bank was entitled to rely upon or declare a Plantation Enforcement Event as at the date of that notice, 21 July 2008 and the notice they actually served was only a day early. Mr Mallin in particular sought to rely upon the words ‘subject to clause 18.2 (Plantation Enforcement Events)’ in clause 18.4(a)(ii) and clause 18.2 itself in support of the proposition that the brake on enforcement against the Plantation security to which I have referred earlier remained in force even after acceleration. In the present context, it seems to me that argument is misconceived. All the reference to clause 18.2 in clause 18.4(a)(ii) is doing is making it clear that there cannot be enforcement against Plantation unless there is a Plantation Enforcement Event. For example, if there had been a material change in the financial condition of one of the Guarantors other than Plantation which amounted to an Event of Default under clause 18.1(k), entitling the Bank to accelerate the debt under clause 18.4, the Bank could still not enforce against the Plantation security because that default under clause 18.1(k) would not have been caused by any default of Plantation, so there could not be a Plantation Enforcement Event. However, contrary to Mr Mallin’s submissions, what the reference to the provision being subject to clause 18.2 is not doing is preserving the provisos in clause 18.1(a) which have necessarily fallen away once the full outstanding Rescheduling Amount is immediately due and payable.”

[185]I agree, therefore, that if there was an “Event of Default … pursuant to a breach of clause18.1 (a) or (h)-(k) for any reason or pursuant to a breach of clause 18.1(b)-(g) in relation to a failure by Plantation to perform its obligations”, and if clause 18.4(a) was invoked by DIB, the whole of the outstanding Rescheduling Amount would become “immediately due and payable” meaning that the provisions for instalment payments fall away and that there is necessarily a sub-paragraph (a) default. I reject, in particular, as did Flaux J when dealing with a submission which was advanced by Mr Mallin, Mr Cakebread’s suggestion that the opening words of sub-paragraph (ii) (“subject to clause

18.2 (Plantation Enforcement Events) …”) mean that it was not open to DIB to seek to enforce after such acceleration, at least inasmuch as Mr Cakebread sought to argue (if he sought to argue, which was not wholly clear) that there was an obstacle to enforcement even if there had been the occurrence of a Plantation Enforcement Event. I am quite clear that sub-paragraph (ii) merely provides that there cannot be enforcement unless there is a Plantation Enforcement Event. I certainly do not accept that the opening wording of sub-paragraph (ii) gives the clause 18.1(a) provisos continued life notwithstanding that the Rescheduling Amount has become immediately due and payable by virtue of the acceleration

Law No. 8 of 2007

[186]I need now to address certain issues concerning the applicability of Law No. 8 of 2007. The first question is whether this is a law which applied to villa plots sales at all. As Mr Cakebread observed in his opening submissions, DIB has adopted something of a “shifting” position in relation to this question. Specifically, despite Mr Kamal confirming in his oral evidence that, as far as he was concerned, Law No. 8 of 2007 applied in the present case, Mr Anderson QC submitted before me, supported by a Dubai law expert, Mr Abdulwahid Alulama, that it did not apply because it does not apply to a sale of a bare land plot where the developer does not also build on that land. This first issue also entails my dealing with certain factual issues concerning how the applicability of Law No. 8 of 2007 to the Project was contemporaneously addressed, not only by Plantation and DIB but also by the Real Estate Regulatory Authority (‘RERA’) in Dubai. The second issue is whether, if Law No. 8 of 2007 did apply, it did so in respect of the period leading up to 28 December 2007. Mr Michel Chaloub, Plantation’s Dubai law expert, considered that what he described as the ‘spirit of the law’ meant that, after Law No. 8 of 2007 had been passed in June 2007, in the transitional period which ended on 28 December 2007, developers who had not established an escrow account ought nonetheless to have opened an account in the name of the relevant project and paid the sales proceeds into that account, so complying with the ‘spirit of the law’. Mr Alulama did not agree about this: his position was that if in this period Plantation was not registered, then, there was no obligation, actual or within the ‘spirit of the law, to pay into any type of quasi-escrow account. There is then a third question which relates to the period after 28 December 2007 when Mr Alulama’s view (not shared by Mr Chaloub) is that the obligation to pay sales proceeds into an escrow account was absolute.

Applicability to the Project

[187]I start by setting out some background which I did not understand to be controversial between the Dubai law experts. This is that, as Mr Alulama explained in his report, the Dubai real estate market having gone through an unprecedented boom during the early 2000’s, some developers abandoned projects as the market started to slow down during the course of 2007. This left buyers, typically who had purchased apartments, left out of pocket and without the properties which they had purchased. It was in the circumstances that Law No. 8 of 2007 was introduced with the broad intention of protecting purchasers who had paid money ‘upfront’ by ensuring that that money was protected, isolated and earmarked for the construction of the project rather than used for other purposes.

[188]Specifically, Law No. 8 of 2007 provides in Article 3 as follows:

“This Law will apply to Developers who sell Units off-plan in Real Estate Development projects in the Emirate and who receive payments from purchasers or financers towards such Units.”

Article 2 defines “Developer” as being:

“Any natural or legal person licensed to engage in the purchase and sale of Real Property for Real Estate Development purposes, and this includes the master developer and the sub-developer.”

Article 2 also defines “Real Estate Development” as meaning:

“Projects for the construction of residential or commercial multiple storey buildings or compounds.”

As for “Real Property”, this is defined as being:

“Anything which is fixed and cannot be moved without damage or alteration of its structure.”

The word “Unit” is given this meaning:

“Any designated part of the Real Property that the Developer sells to third parties.”

Article 2 contains no definition for the words “off-plan”. Mr Alulama and Mr Chaloub have, however, agreed that by this is meant “selling or purchasing of property before the property is built with only the plans available for inspection”, and I am content to proceed on the basis that this is, indeed, what the words should be taken as meaning. Article 2 defines “Developer” as being: Article 2 also defines “Real Estate Development” as meaning: As for “Real Property”, this is defined as being: The word “Unit” is given this meaning:

[189]It was Mr Alulama’s opinion, in the circumstances, that the reference to “Units off-plan” in Article 3 is to be regarded as limited to parts of a larger building such as an apartment block, and that it does not include a bare plot of land which is not part of a larger building. In his view also, a bare plot of land cannot be regarded as coming within the ambit of a “Real Estate Development” project since, in accordance with the definition of that term contained in Article 2, the project must be “for the construction of residential or commercial multiple story buildings or compounds”, and a sale of a bare plot of land involves no element of construction. Furthermore, having looked at a sample convertible lease agreement of the type which villa plot purchasers entered into, Mr Alulama pointed out in his supplemental report that such purchases had no ownership interest in any of the Project’s common areas such as the equestrian facilities which were to be built, but merely an entitlement to access to such areas. Accordingly, he explained, it cannot be said that that entitlement changed matters.

[190]Mr Chaloub disagreed with Mr Alulama about this. He took a broader view, explaining that the reason why he did so is “that it is not the bare plot that is being sold, it is a bare plot in a project, and it is the development of the project that is protected, not only the unit of a particular person”. He went on to say this:

“It is not the units that I buy that is being protected, it is the whole of the project. If I can’t deliver the project as I have, you know, the plans that were given … This is the project that was being registered. Everything in this project is under the escrow law, whether it is a bare plot of land, anything else, whether it is car parks or anything else. Anything that is within this project is going to be considered an off-plan unit. Off-plan not because it is itself off-plan, yes, I agree a bare plot is there, you can sell it immediately. No, off-plan because it is within the whole of the project too.”

In answer to Mr Alulama’s point concerning the right to use, but not own, common areas, Mr Chaloub said this:

“It doesn’t affect the outcome. It is within a project and the project RERA and the authorities in Dubai, they will look at that project. They want that project to be continued, not only one part of the project. … they probably gave the RERA the calculation of the whole project, that included the purchase price of the plots of land. This purchase price should go in the escrow account in order for the rest of the project to be complete too, otherwise they take the bare plots of land, the purchase price of the bare plots of land, they don’t put it in the project and then the project is not complete because they don’t have the finances for it. That law is made to guarantee the completion of the projects.”

As he put it a little later, summarising the position:

“The plot money goes into the pot to guarantee the completion of the project.”

In my view, this broader approach is to be preferred to the more narrow approach which was favoured by Mr Alulama. I am satisfied, in short, that Law No. 8 of 2007 applied to villa plot sales which were effected by Plantation. It seems to me, indeed, that this accords with the rationale for the introduction of Law No. 8 of 2007 which Mr Alulama explained in his report. The matter needs to be viewed realistically and with common sense. The purchasers of the various villa plots were plainly as deserving of protection as were purchasers of individual apartments in a block. Both sets of purchasers needed to be protected against the risk that the developments were not completed with the consequence that they lost their purchase money. That is the risk which Law No. 8 of 2007 was designed to combat, and it was a risk which was no different for villa plot purchasers than it was for the purchasers of apartments. As he put it a little later, summarising the position:

[191]I should add that I reach this conclusion without having recourse to a particular point which was made by Mr Chaloub concerning a different law, namely Law No. 13 of 2008 which regulates Dubai’s Interim Property Register. Article 3 of that Law is in the following terms:

“Any disposition that occurs in respect of any Real Property Unit sold off-plan will be entered in the Interim Property Register, and any sale or any other legal disposition the transfers or restricts ownership or any ancillary rights will be void unless entered in that Register.”

The term “Real Property” is defined as follows (Mr Chaloub confirming in cross-examination, agreeing with Mr Anderson QC and Mr Alulama that “and/or” is appropriate despite the translation next to his report simply stating “and”):

“The land and/or any fixed structure constructed on it.”

This definition, with its reference to “land and any fixed structure constructed on it”, replaced an original definition which was in essentially the same terms as that contained in Law No. 8 of 2007 as a result of a change made by Law No. 9 of 2009. Mr Anderson QC relied upon this as demonstrating that it is not possible to derive assistance from Law No. 13 of 2008 in understanding the definition of “Real Property” in Law No. 8 of 2007. I agree with Mr Anderson QC about this. Indeed, if anything, it seems to me that the fact that there was a change to the definition in one of the Laws but not the other, far from supporting Mr Chaloub’s view on the “off-plan” issue, tends to support the view held by Mr Alulama. In the final analysis, however, since the two Laws are dealing with different matters, in my view, little assistance is to be derived from looking at Law No. 13 of 2008. Focusing on Law No. 8 of 2007, which is what matters for present purposes, I remain of the view which I have described, namely that Mr Chaloub is right that that Law applied to the villa plot sales which were made by Plantation in this case.

[192]In the circumstances, strictly speaking, I need not go on to address Plantation’s reliance on the position which RERA adopted in relation to Plantation, which was that Law No. 8 of 2007 applied to the Project, and the contention that this determination is legally determinative of the matter. The context in which this point arises is that Mr Fitzwilliam was seeking to argue during the period leading up to 28 December 2007 that Law No. 8 of 2007 did not apply to the Project since, as the point was described in a DIB Action Plan dated 11 November 2007, Plantation was “developing the infrastructure and [selling] villa plots and not units or villas”. As this document noted, however, RERA “is not accepting plantations [sic] argument, and accordingly, Plantation is required to get the approval from the land department by 28 December 2007 as per the law”. In his report Mr Chaloub dealt with a question asking whether Plantation could have lawfully refused to comply with a determination by RERA that the Law “applied to the project and the bare villa plots it was selling” by stating:

“No, Plantation could not have refused to comply with that determination. Once a developer has been accredited and licensed, it will be subject to Law No. 8 of 2007 and RERA’s oversight in respect of the project it is developing. …”

. In cross-examination, however, Mr Chaloub agreed with Mr Anderson QC that there is nothing in Law No. 8 of 2007 making RERA’s view as to whether the Law is applicable binding. He confirmed that he was not suggesting that RERA’s determination is binding and had not stated in his report that this is the case, although in re-examination Mr Chaloub suggested that what he meant when he referred to RERA making a binding determination is that Plantation was obliged to do as RERA told it to do but that this could be challenged in due course. It would appear, notwithstanding the clarification given in re-examination, that, as Mr Anderson QC put it in closing, all that Mr Chaloub was meaning to do in the passage set out above was to make the point that, once a developer is registered with RERA, the developer becomes subject to RERA’s oversight. This is not the same thing as saying that RERA’s determination that a developer should be registered because Law No. 8 of 2007 is applicable to the project which the developer is undertaking represents a binding determination. In such circumstances, the point made by Plantation falls away, and it is unnecessary, therefore, to address Mr Anderson QC’s reliance on any kompetenz-kompetenz point.

[193]Nor, again in the circumstances, need I consider in any detail Plantation’s reliance on the fact that both Mr Kamal and Mr Bitar confirmed in cross-examination that, as far as they were concerned at the time, Law No. 8 of 2007 applied to the Project. This is apparent from, just taking one example, the following passage in the course of Mr Kamal’s cross-examination:

“Q. … Now, next thing was, there was an ambiguity, was there not, as to whether the escrow law applied to this project …? A. At our end, I think don’t think it was ambiguity. I think the ambiguity was on the side of Mr Arthur [Fitzwilliam]. At our end, the cost was very clear. So long as the developer receives money from receivers, so long as there is construction happening on site for which this money is being used, the escrow rule should apply, so long as the schedules require needed some protection, the escrow should apply. And our view and my view from the beginning has always been that the escrow account - this escrow would prevail and apply to this project. Q. Well, thank you, Mr Kamal. I think we are at one on that. And in fact it is correct, isn’t it, that that was confirmed by RERA at a meeting in October 2007, which was attended certainly by Mr Bitar, maybe not by you. Do you remember? A. Yes. I have not attended any meeting with the Land Department at the time, for RERA, no. Q. Now – A. I know Habib maybe went, but – Q. So always clear to you. In fact I think it is right Mr Fitzwilliam is rather keen for it not to apply, because it would avoid the need for the bureaucratic intervention that follows from Law No 8 applying, is that right? A. I remember there was an argument of this and our stand was it applies and his stand was he doesn’t believe so, and we should move. He was pushing hard. We try to do the right thing. We tried to push, but at the same time we don’t want to violate the law.”

The position is really very clear: as far as DIB and RERA were concerned, but ironically not Mr Fitzwilliam (and Plantation) until he was told by RERA that his view was not accepted and could not prevail, Law No. 8 of 2007 applied to the Project and to Plantation as its developer. Q. Now – A. I know Habib maybe went, but –

The position in the period from 28 June 2007 to 28 December 2007

[194]As to the second issue which arises in the context of Law No. 8 of 2007, namely whether it placed developers such as Plantation under any obligation in respect of the period leading up to 28 December 2007, the relevant provisions are these:

“Article 4 The Department [defined as the Land Department] will maintain a register known as the ‘Register of Real Estate Developers’ in which is entered the names of Developers licensed to engage in the Real Estate Development business in the Emirate. No Developer may engage in such business unless he is recorded in that register and licensed by the Competent Entities in accordance with their relevant requirements. Article 5 A Developer may not advertise in local or international media and may not participate in local or international exhibitions to promote the sale of Units or Real Property off-plan, unless he obtains an authorisation in writing from the Department. … … Article 6 Any Developer who wishes to sell Units off-plan must submit to the Department a request to open an Escrow Account. … … Article 7 An Escrow Account will be open to pursuant to a written agreement between the Developer and the Escrow Agent whereby the payments made by off-plan purchases or by the financers of the project are deposited in an account opened with the Escrow Agent in the name of the Real Estate Development project. … Article 9 1. An Escrow Account will be opened in the name of the project and will be dedicated exclusively to the construction of that Real Estate Development project. No attachment may be imposed on the payments deposited in this account for the benefit of the creditors of the Developer. 2. In the event of multiple projects implemented by the Developer, each project must have a separate Escrow Account. … Article 16 Without prejudice to any penalties stipulated by any other legislation, a jail sentence and a fine of at least one hundred thousand Dirhams (AED 100,000), or either penalty, will be imposed on any person who: 1. engages in a Real Estate Development activity in the Emirate without a licence; … Article 18 Developers carrying on business at the date on which this Law comes into force must comply with it within six (6) months from the date on which it is published in the Official Gazette. The Department may extend this period as it deems appropriate.”

Article 5 Article 6 Article 7 Article 9 Article 16

Article 18

[195]Mr Chaloub’s view was that, after Law No. 8 of 2007 came into force, which was on 28 June 2007, and during the six-month period stipulated in Article 18 prior to what he described as the “infrastructure” being put in place, by which he meant registration by a developer and the setting up of the relevant escrow account, a developer such as Plantation “would have had to open a bank account in the name of [the] project and make sure not to mingle the revenue with any other project”. This, according to Mr Chaloub, was necessary “in order to comply with the ‘spirit of the law’”. He explained, when asked about this by Mr Anderson QC during the course of cross-examination, that his thinking was that since developers would have known, after Law No. 8 of 2007 was passed, “what the effect of that law is going to be”, were they to “choose to go against that law, it is a fraud to the law”. Pressed by Mr Anderson QC, Mr Chaloub acknowledged that he was not in a position to point to any case in which his ‘spirit of the law’ approach had been applied, explaining that he had not “researched that particular matter”, but that as far as he was concerned it “is a general principle of you do not try and obviate the application of the law by doing something that it tells you not to do before it gets into force”. For my part, I am unpersuaded by the point since there is absolutely nothing in Law No. 8 of 2007 which even hints at developers being under an obligation to comply with its requirements or its ‘spirit’ prior to the expiry of the six-month period stipulated in Article 18. On the contrary, the fact that Article 18 is in the terms which it is points compellingly to the conclusion that developers had six months within which to comply. Furthermore, as Mr Anderson QC pointed out, the suggestion that developers such as Plantation were under any obligation in the meantime is somewhat at odds with the agreement between Mr Chaloub and Mr Alulama in their joint statement that:

“During this six-month period, the Developer shall not be held liable under the Escrow Law for any violation pursuant to Article 18. However, the Developer may be held liable under any other laws (depending on the facts) in the event that it, during this six-month period, intentionally applied funds to the detriment of third parties and/or other than in accordance with the Escrow Law, in anticipation of it coming into force.”

I agree with Mr Anderson QC that this amounts to an agreement that developers cannot have been under any obligation to apply sales proceeds as provided by Law No. 8 of 2007 in the period starting at the end of June 2007 and ending on 28 December 2007, assuming that no escrow account had been established during this period, unless this entailed a breach of some other legal obligation arising independently of Law No. 8 of 2007.

[196]Accordingly, I reject the suggestion made by Mr Chaloub that Plantation was under an obligation to comply with Law No. 8 of 2007 before the end of the six-month period which followed its being passed, which is to say before 28 December 2007. It follows that, in my view, Plantation was not obliged to register with the Land Department/RERA before that date. Nor was Plantation under an obligation to open an escrow account before 28 December 2007. As a result, there was nothing to stop Plantation paying over proceeds from villa plots sales to DIB in this period. On the contrary, clause 7.2(d) of the RSA specifically required that this be done, since the consequence of my decision in this regard is that such proceeds did not amount to “Earmarked Plantation Proceeds” within the definition contained in Article 1 of the RSA and I have already determined the argument advanced by Mr Cakebread concerning clause 7.3(a) (“amounts retained for the reasonable working capital requirements of the respective projects”) against Plantation. I should just add in this context that, although the definition of “Earmarked Plantation Proceeds” refers to “amounts of Plantation Villa Proceeds that are:(a) Escrow Proceeds; or

(b) required by law to be applied the building or other specified purposes”, so suggesting on the face of it that there might be some other Dubai law which enables a developer subject to Law No. 8 of 2007 to spend villa plot sales proceeds “for building or other specified purposes” without having to put villa plot sales monies into an escrow account set up under the Law, it appeared to be agreed between the Dubai law experts (strictly in relation to Article 9 rather the “Earmarked Plantation Proceeds” definition) that a developer would not be allowed to bypass the obligation to pay the monies into the escrow account.

The position after 28 December 2007

[197]This brings me on to the period after 28 December 2007, and so the third question which I identified at the beginning of this section. In relation to this, clearly there was an obligation on the part of developers such as Plantation to comply with Law No. 8 of 2007. The transitional period in Article 18 having come to an end, it is obvious that this is the position. As a result, a developer either had to do what was required by Law No. 8 of 2007, and so register with RERA and set up an escrow account, or had to refrain from receiving sales proceeds from villa plots until such time as this could be done. Another option expressly mentioned in Article 18 would be to obtain from RERA an extension of the transitional period. Mr Chaloub suggested, however, that it was open to Plantation, again in the ‘spirit of the law’, “to do something in the middle, probably open an account for [the] project …, get the money in it, and disburse money in the interests of the project itself”. Mr Chaloub agreed with Mr Anderson QC that this would not be an account which would be immune from attachment as an escrow account set up by Law No. 8 of 2007 would be. Nor would it be subject to RERA audit. I struggle, in the circumstances, to see that it can, therefore, really be right to suggest that this was what the ‘spirit of the law’ required developers such as Plantation to do. I recognise that from a practical perspective what Mr Chaloub had in mind might make sense. This does not, however, mean that Plantation can be regarded as having been under any sort of obligation to adopt such a course. If there was no such obligation, then, it must follow that in the period after 28 December 2007 Plantation was obliged to register with RERA and open an escrow account in compliance with Law No. 8 of 2007. I agree with Mr Alulama that this obligation was an absolute obligation.

Breaches 1 to 5

[198]It is against this background that I now come on to consider Breaches 1 to 5. As will appear and despite the level of complexity which was involved in certain of the submissions made by Mr Anderson QC and Mr Edwards in their written closing submissions, in my view, as Mr Cakebread suggested, the position is actually relatively straightforward, my having already reached the conclusions which I have done in relation to the construction issues and Law No. 8 of 2007. I shall endeavour, in the circumstances, as much as possible to avoid complexity and instead to keep things simple. Breach 1 (the failure to pay Plantation Villa Proceeds to DIB) and Breach 3 (the failure to deposit proceeds from Plantation villas into an escrow account pursuant to Law No. 8 of 2007)

[199]As I have explained, the first of the breaches alleged in the 9 June 2008 notice, in fact, raised two complaints: first, that Plantation had not paid villa plot sales proceeds to DIB in breach of clause 7.2(d) of the RSA; and secondly but in the alternative, hence the use of the word “or”, that Plantation had not paid such proceeds into an escrow account set up pursuant to Law No. 8 of 2007. Despite this, for ease of presentation I have characterised Breach 1 as entailing only the former rather than also the latter which I have labelled Breach 3. It is nonetheless convenient to deal with Breaches 1 and 3 at the same time given that, in my view, DIB’s case in relation to both of them cannot succeed for a single reason. This is that, whether the villa plot sales proceeds ought to have been paid directly to DIB (as I consider should have happened in the period before 28 December 2007) or into an escrow account set up pursuant to Law No. 8 of 2007 (as I consider should have happened in the period after 28 December 2007), it was nonetheless not open to DIB to assert that such payments were not made in circumstances where DIB is to be taken as having known that no such payments had been made and as having taken no exception to this being the position.

[200]Mr Anderson QC submitted in closing that it was not open to Plantation to rely upon an estoppel to preclude DIB from complaining about Plantation’s use of villa plot sales proceeds on the development of the Project, and so to rely upon breaches of the RSA either in not paying such monies directly to DIB or in not paying them into an escrow account set up pursuant to Law No. 8 of 2007. Mr Anderson QC’s point was in the Amended Particulars of Claim the relevant estoppel pleaded in paragraph 37 was the following:

“Further, in the premises, as the Bank relied upon the application of Regulation No. 8 to the Plantation Project as particularised in paragraphs 43(a)(ii), 43(c), 45-47 below, the Bank is estopped from denying that Regulation No. 8 apply to the Plantation Project and villa plot sale proceeds as particularised in paragraphs 44-48 below.”

So, Mr Anderson QC submitted, the estoppel relied upon was directed to the question of whether Law No. 8 of 2007 applied to the Project, and Plantation’s case as set out in this paragraph was that DIB could not dispute that it did (as, indeed, I have decided was the case). Paragraph 37, however, as its cross-references illustrate, was followed by paragraphs 44 to 49 which appear under the heading “Estoppel/Waiver”. Thus, paragraph 43 states as follows:

“Further, alternatively, if contrary to its primary and alternative cases Plantation was not entitled under the RSA to retain villa plot sales proceeds, the Bank nonetheless waived any obligation on the part of Plantation to pay to it Plantation Villa Proceeds in mandatory prepayment of the Rescheduling Amount.

(d) ”

Particulars are then set out, with paragraph (a) giving details of what Plantation alleged in relation to “Waiver/estoppel in relation to the use and/or payments of villa sales plot proceeds to third parties for the purpose of the Plantation Project”, as follows:

“At all material times from on or about the Effective Date, the Bank knew about and/or expressly approved of and/or acquiesced in the use and/or payment of all villa plot sales proceeds by Plantation for the purpose of the Plantation Project prior to June 2008.”

This paragraph is followed by what was described as “Particulars of knowledge, approval and acquiescence”, as follows (I have not corrected typographical errors):

“(i) Plantation’s financial Position and Funding Requirements Both before and after the effective date, Suzanne Sutherland (Plantation’s General Manager) held regular meetings and was in regular contact by email with inter alios Habib Bittar and Nemr Khalifa (the Bank’s representatives) about, inter-alia: a. the drawing up and implementation of budgets and cash flow projections for the funding of the Plantation Project through the use of all villa plot sales proceeds; b. the provision of a US$50m facility by the Bank to Plantation to augment the villa plot sales proceeds in funding the costs for Phase 1 of the Plantation Project; c. the control and operation of Plantation’s bank accounts. (ii) The Application of Regulation No. 8 to the Plantation Project & the Villa Plot Sales Proceeds The Bank required that Plantation comply at all material times with Regulation No. 8 in relation to the Plantation Project, including in particular the use of villa plot sale proceeds, based upon the common assumption that Regulation No. 8 applied to the villa plot sales proceeds. The Bank and Plantation treated RERA’s determination that Regulation No. 8 applied to the Plantation Project and the villa plot sales proceeds as determinative and acted on the assumed state of fact that Regulation No. 8 applied to the Plantation Project and in particular the villa plot sales proceeds. Consequently, Suzanne Sutherland held regular meetings and was in regular contact by email with inter alios Habib Bittar, Nemr Khalf and Faisal Masood (the Banks’ representatives) about RERA and the obligations of plantation and the plantation project under regulation No. 8, including: a. its registration requirements, b. the appointment of an Escrow agent, c. the opening and operation of the Escrow Account, d. the preparation and filing of various documents required by RERA such as the registration application form, the RERA audit Form RT/02 and the cash flows and income schedules relating thereto. (iii) The Bank permitted such payments and/or did not direct Plantation to divert and/or pay any of the villa plot sales proceeds to the Bank as repayments of the Rescheduling Amount when it was aware that villa plot sales proceeds were: a. paid either into Plantation’s HSBC bank accounts or the bank account set up by and held at the Bank; b. being applied by Plantation for the Plantation Project and/or the Earmarked Plantation Proceed purposes, and would continue to be so applied by Plantation until completion of the Plantation Project.”

The pleading goes on to say this:

“(b) Acting in reliance upon the facts and matters set out in sub-paragraph 43(a) above, Plantation did not pay villa plot sales proceeds to the Bank in mandatory prepayment of the Rescheduling Amount. (c) The Bank relied upon, and continues to rely upon, the application of Regulation No. 8 to Plantation, the Plantation Project and the villa plot sales proceeds as the basis for its Default Notice and perfection of the Conditional Assignment.”

It concludes in paragraph 44 as follows:

“In the premises … the Bank is estopped, alternatively has waived its rights: (i) to rely upon its strict legal rights under Clause 7.2(d) (assuming them to be different from those set out in Plantation’s primary and alternative cases); (ii) to demand compliance by Plantation with such obligation; (iii) to deny that Regulation No. 8 applied to the Plantation Project and in particular the villa plot sales proceeds; (iv) to deny the Plantation’s obligations under Clause 7.2(d) should be construed other than in a manner consistent with the application of regulation No. 8 to Plantation, the Plantation Project and in particular the villa plot sales proceeds.”

Both before and after the effective date, Suzanne Sutherland (Plantation’s General Manager) held regular meetings and was in regular contact by email with inter alios Habib Bittar and Nemr Khalifa (the Bank’s representatives) about, inter-alia: a. the drawing up and implementation of budgets and cash flow projections for the funding of the Plantation Project through the use of all villa plot sales proceeds; b. the provision of a US$50m facility by the Bank to Plantation to augment the villa plot sales proceeds in funding the costs for Phase 1 of the Plantation Project; c. the control and operation of Plantation’s bank accounts. a. its registration requirements, b. the appointment of an Escrow agent, c. the opening and operation of the Escrow Account, d. the preparation and filing of various documents required by RERA such as the registration application form, the RERA audit Form RT/02 and the cash flows and income schedules relating thereto. a. paid either into Plantation’s HSBC bank accounts or the bank account set up by and held at the Bank; b. being applied by Plantation for the Plantation Project and/or the Earmarked Plantation Proceed purposes, and would continue to be so applied by Plantation until completion of the Plantation Project.” It concludes in paragraph 44 as follows:

“In the premises … the Bank is estopped, alternatively has waived its rights: (i) to rely upon its strict legal rights under Clause 7.2(d) (assuming them to be different from those set out in Plantation’s primary and alternative cases); (ii) to demand compliance by Plantation with such obligation; (iii) to deny that Regulation No. 8 applied to the Plantation Project and in particular the villa plot sales proceeds; (iv) to deny the Plantation’s obligations under Clause 7.2(d) should be construed other than in a manner consistent with the application of regulation No. 8 to Plantation, the Plantation Project and in particular the villa plot sales proceeds.”

[201]In the circumstances, I do not consider it right to suggest, as Mr Anderson QC did, that Plantation is precluded from advancing the estoppel argument which Mr Cakebread put forward during the course of his closing submissions. On the contrary, although it is true that the estoppel case as pleaded included a prominent allegation that DIB operated on the basis that Law No. 8 of 2007 applied to the Project, in my view, the case entailed more than just this as the wording at the beginning of paragraph (a) made clear with its allegation that DIB “knew about and/or expressly approved of and/or acquiesced in the use and/or payment of all villa plot sales proceeds by Plantation for the purpose of the Plantation Project prior to June 2008” (my emphasis). That this is the position is confirmed by what is stated in sub-paragraphs (iii)a and b where reference is made to DIB’s awareness that villa plot sales proceeds were used for purposes which did not include payment to DIB or (save somewhat obliquely through the reference to monies being applied “and/or for Earmarked Plantation Proceed purposes”) payment into an escrow account set up pursuant to Law No. 8 of 2007.

[202]Furthermore, it is instructive to note what Plantation went on to say in the paragraphs which follow:

“45. Further, alternatively, in the premises set out in paragraph 43 above, the Bank and Plantation acted on the assumed state of fact that villa plot sales proceeds were not required to be paid by Plantation to the Bank in mandatory prepayment of the Rescheduling Amount but rather were required to be used by Plantation for its costs until completion of the Plantation Project (“the Assumption”), the Assumption being shared by both Plantation and the Bank and/or made by Plantation and acquiesced in by the Bank. 46. Acting in reliance on the assumption, Plantation did not pay villa plot sales proceeds to the bank in mandatory prepayment of the rescheduling amount but to meet the costs of the Plantation Project. 47. In the premises, it would be unjust or unconscionable for the Bank to deny the truth of the assumption and allege or rely upon the fact that Plantation did not pay villa plot sale proceeds to it as required under clause 7.2(d) and the Bank is estopped by convention, as set out in paragraph 44 above.”

This seems to me to underline the appropriateness of the conclusion which I have reached in relation to Mr Anderson QC’s pleading objection. That conclusion is, however, further strengthened by what Plantation additionally pleaded when dealing with Breach 3 in paragraphs 71 to 75 of the Amended Particulars of Claim. Specifically, in paragraph 71(a)-(c) Plantation repeated the points made in paragraphs 43(a)(i) and 43(iii) concerning DIB’s awareness as to the fact that villa plot sales proceeds were being used for the purposes of the development of the Project and were not being paid into an escrow account set up pursuant to Law No. 8 of 2007. Paragraph 73 is explicit:

“Further, alternatively, in the premises set out in paragraphs 71(a)-(c) above, the Bank and Plantation acted on the assumed state of fact that until any escrow account had been opened and/or was operational Plantation could continue to pay and/or apply villa plot sales proceeds directly towards costs of the Plantation project (‘the Escrow Assumption’).”

I consider that, in the circumstances, Plantation should be taken to have alleged in the Amended Particulars of Claim that DIB is estopped from relying upon Breaches 1 and 3 because of DIB’s awareness of the fact that Plantation was neither paying villa plot sales proceeds directly to DIB or making payments of such monies into an escrow account set up pursuant to Law No. 8 of 2007. That, it should also be noted given that Mr Anderson QC was minded to suggest that the case had for the first time been put in this way only during the course of Mr Cakebread’s oral closing submissions, is also how the point was put in Mr Cakebread’s and Ms Levy’s written opening submissions, paragraph 100 of which stated as follows (with my emphasis):

“There is considerable overlap between this breach [Breach 3] and Breach 1 since in both instances both Plantation and the Bank acted on the common assumption that the proceeds of villa plot sales could be used by Plantation on the development and were not required to be paid to the Bank, or into an Escrow Account, until such account had been opened and/or was operational.”

[203]Turning, then, to the substance of the matter, there was no dispute between Mr Anderson QC and Mr Cakebread as to the relevant legal approach. Thus, in Republic of India v India Steamship Co Ltd

[1998] AC 878

, at 913, Lord Steyn summarised in general terms the relevant species of estoppel in this way:

“… estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption … .”

[204]Mr Cakebread referred also to a decision of Briggs J (as he then was), Commissioners for Her Majesty’s Revenue and Customs v Benchdollar Ltd & Others

[2009] EWHC 1310 (Ch)

[2010] 1 All ER 174

, in which the following useful summary of the principles applicable to the assertion of an estoppel by convention, albeit arising out of non-contractual dealings, was provided at [52]:

“i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it. iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”

[205]As noted in Spencer Bower: Reliance-based Estoppel (5th Ed., 2017) at paragraph 8.7:

“This formulation has been adopted at first instance and by the Court of Appeal in a number of subsequent cases, and is respectfully supported here with the glosses set out below. Although Briggs J applied his analysis to estoppel by convention in a non-contractual context, that is, where the convention is other than as to the meaning of a contract between the parties, in Mitchell v Watkinson [2015] L&TR 22 the Court of Appeal held the ‘differences of formulation’ between Briggs J’s and one applied on a contractual context to be ‘more apparent than real, and that in practice there is likely to be little if any material difference in the outcome whichever version of these principles as applied’, and in Pearson v Lehman Bros [2010] EWHC 2914 (Ch) and Dixon v Blindley Heath Investments Ltd [2016] 4 All ER 490, Briggs J’s formulation was applied by the Court of Appeal to rights under contracts. On these authorities, and because there is submitted to be no reason in principle for the criteria for an estoppel by convention (as opposed to the result of their application) to differ according to whether the context is or is not contractual, Briggs J’s analysis is here considered and adopted as applicable in both context.”

Indeed, in a contractual case, Mears Ltd v Shoreline Housing Partnership Ltd

[2015] EWHC 1396 (TCC)

, (2015) 160 Con LR 157 Akenhead J summarised the applicable principles in much the same way as Briggs J did in the Benchdollar case, saying this at [49]:

“From the cases, one can conclude that the relevant law on estoppel by convention is: (a) An estoppel by convention can arise when parties to a contract act on an assumed state of facts or law. A concluded agreement is not required but a concluded agreement can be a ‘convention’. (b) The assumption must be shared by them or at least it must be an assumption made by one party and acquiesced in by the other. The assumption must be communicated between the parties in question. (c) At least the party claiming the benefit of the convention must have relied upon the common assumption, albeit it will almost [be] invariably the case that both parties will have relied upon it. There is nothing prescriptive in the use of ‘reliance’ in this context: acting upon or being influenced by would do equally well. (d) A key element of an effective estoppel by convention will be unconscionability or unjustness on the part of the person said to be estopped to assert the true legal or factual position. I am not convinced that ‘detrimental reliance’ represents an exhaustive or limiting requirement of estoppel by convention although it will almost invariably be the case that where there is detrimental reliance by the party claiming the benefit of the convention it will be unconscionable and unjust on the other party to seek to go behind the convention. In my view, it is enough that the party claiming benefit of the convention has been materially influenced by the convention; in that context, Goff J at first instance in the Texas Bank case described that this is what is needed and Lord Denning talks in these terms. (e) Whilst estoppel cannot be used as a sword as opposed to a shield, analysis is required to ascertain whether it is being used as a sword. In this context, the position of the party claiming the benefit of the estoppel as claimant or indeed as defendant is not determinative or does not even raise some sort of presumption one way or the other. While a party cannot in terms found a cause of action on an estoppel, it may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on the estoppel, it would necessarily have failed. (f) The estoppel by convention can come to an end and will not apply to future dealings once the common assumption is revealed to be erroneous.”

[206]It is not in dispute that DIB was sent material which allowed its personnel to consider Plantation’s financial position throughout the period after the RSA was entered into in August 2007 and right up to the time when the notice was sent on 9 June 2008. Indeed, as I have explained, DIB (in conjunction with Al Tamimi and the GIA Department) looked at precisely this type of information when preparing that notice. The fact, therefore, that Plantation was neither paying villa plot sales proceeds to DIB or into an escrow account set up pursuant to Law No. 8 of 2007 would have been clear and obvious. This would have been the case, I repeat, throughout the period which followed the parties’ entry into the RSA. In truth, of course, DIB would know whether or not it had been paid any such monies. Mr Anderson QC nonetheless submitted that DIB cannot be taken to have known whether Plantation was complying with Law No. 8 of 2007 by paying villa plot sales proceeds into an escrow account as required by that Law because, he submitted, the Plantation bank accounts through which the monies passed were held not with DIB but with HSBC and, accordingly, DIB had “no visibility” in respect of the payments. This is, however, in my view, an artificial submission. It is obvious that anybody who looked at the financial information which Plantation supplied to DIB on numerous occasions in the period after the RSA was entered into would have seen that it was the revenue from the villa plot sales which Plantation was relying upon to fund the development of the Project. Indeed, as Mr Anderson QC pointed out and as explained earlier in this judgment, there was no other revenue or source of funding which was available to Plantation to carry out the development works. In the circumstances, it is unrealistic for Mr Anderson QC now to suggest that DIB might have been under the impression that villa plot sales proceeds were being paid into an escrow account set up under Law No. 8 of 2007. That very obviously cannot have been what was thought by the people at DIB looking at the various schedules supplied by Ms Sutherland. It is plain to me that, in the circumstances, the estoppel case advanced by Plantation must succeed.

[207]I am satisfied, in short, that Mr Cakebread was right when he submitted that Plantation and DIB are to be taken as having acted on the basis of an assumption that, at least until such time as an escrow account was set up pursuant to Law No. 8 of 2007, Plantation was free to use villa plot sales proceeds for development works connected with the Project. This is an assumption which probably emanated from Plantation but which was acquiesced in by DIB. It is an assumption which, furthermore, was, in my view and as elaborated on shortly in relation to a particular submission made by Mr Anderson QC concerning Mr Fitzwilliam, clearly relied upon by Plantation in the sense that Plantation did, in fact, use the villa plot sales proceeds for the purposes of the development. It should not be overlooked in this context that the notice which was sent on 9 June 2008 specifically relied upon non-payment either to DIB or into an escrow account “up to April 2008”. It, therefore, had as its focus a time period when, on any view and as was known by DIB, no escrow account had been set up by Plantation with DIB. As a result, consideration of Breaches 1 and 3 does not turn on what the position might have become after an escrow account had been set up. The position is much simpler than that: in the relevant period, there being no relevant escrow account in place, DIB is to be taken as having known that villa plot sales proceeds were not being paid either to DIB or into an escrow account set up under the Law. I might add that the notion that DIB could have thought that Plantation was paying such monies into an escrow account with another bank is, in the circumstances, not sustainable. DIB knew, at least from January 2008, that Plantation was intending to set up an escrow account with DIB itself. DIB knew also that Plantation had taken no steps to register with RERA by the end of 2007, and so it cannot have been the case that DIB was under the impression that Plantation was working with some other bank to open an escrow account.

[208]Mr Anderson QC went on to submit that, in any event, the estoppel (and waiver) case advanced by Plantation cannot succeed in view of clause 25.6 at the RSA. He did not suggest that the effect of this provision is to preclude Plantation from putting forward its estoppel (and waiver) argument. In the light of the recent decision of the Court of Appeal in Globe Motors Inc v RTW Lucas Varity Electric Steering Ltd

[2016] EWCA Civ 396

, this is unsurprising. In that case, at [100] Beatson LJ described the relevant principle as being that, absent statutory or common law restrictions:

“The parties have freedom to agree whatever terms they choose to undertake, and can do so in a document, by word of mouth, or by conduct. The consequence in this context is that in principle the fact that the parties’ contract contains a clause such as Article 6.3 does not prevent them from later making a new contract varying the contract by an oral agreement or by conduct.”

Moore-Bick LJ and Underhill LJ both agreed, Moore-Bick LJ explaining the position at [119] and [120] as follows:

“… The governing principle, in my view, is that of party autonomy. The principle of freedom of contract entitles parties to agree whatever terms they choose, subject to certain limits imposed by public policy of the kind to which Beatson LJ refers. The parties are therefore free to include terms regulating the manner in which the contract can be varied, but just as they can create obligations at will, so also can they discharge or vary them, at any rate where to do so would not affect the rights of third parties. If there is an analogy with the position of Parliament, it is in the principle that Parliament cannot bind its successors. I can see the force of the suggestion that there might well be practical benefits in being able to restrict the manner or form in which an agreement can be varied, but like Underhill LJ I do not think that there is a principled basis on which that can be achieved. A clause such as Article 6.3 in this case may have considerable practical utility, if only because it is likely to raise in an acute form the question whether parties who are said to have varied the contract otherwise than in the prescribed manner really intended to do so. As a matter of principle, however, I do not think that they can effectively tie their hands so as to remove from themselves the power to vary the contract informally, if only because they can agree to dispense with the restriction itself. Nor do I think this need be a matter of concern, given that nothing can be done without the agreement of both parties; and if the parties are in agreement, there is no reason why that agreement should not be effective.”

Mr Anderson QC instead submitted that none of the DIB personnel who would have looked at the financial material supplied by Ms Sutherland would have had authority to act in a way which gives rise to the type of estoppel or waiver relied upon by Plantation. Mr Anderson QC added that, since Ms Sutherland acknowledged in the course of her evidence that “it wasn’t my remit to be analysing the RSA”, the same applies to her. The key decision maker, Mr Anderson QC observed, was not Ms Sutherland but Mr Fitzwilliam. I reject this submission. As far as Ms Sutherland is concerned, it is perfectly clear that, as Plantation’s Chief Financial and Operations Officer, she had the requisite authority, actual or ostensible or otherwise, which Mr Anderson QC suggested was absent. The fact that Mr Fitzwilliam was behind her does not rob her of such authority. In any event, I am far from clear that clause 25.6 has the effect suggested by Mr Anderson QC.

[209]As far as Mr Fitzwilliam was concerned, he considered that Plantation could spend the money on the cost of the development and was not under any obligation to pay villa plot sales proceeds to DIB. He made this very point when Mr Anderson QC put to him a passage in the original version of the Particulars of Claim dating from July 2013 where it was stated that “Plantation was entitled to retain the sums in question for the reasonable working capital requirements of the respective projects which it had done”. Mr Fitzwilliam agreed that “that has always been my view, and that hasn’t changed”. Mr Anderson QC submitted that, in such circumstances, Mr Fitzwilliam can hardly be taken as having relied upon any action on the part of DIB capable of amounting to a relevant common assumption. Mr Anderson QC went so far as to suggest that, as he put it in his written closing submissions, “there is no evidence that he was aware of any of the communications with” DIB. Again, however, I regard that submission as being unrealistic. Mr Fitzwilliam may have left detailed financial matters to Ms Sutherland, but he clearly remained closely engaged with what was happening with the Project. Critically, as far as he was concerned, the villa plot sales proceeds were what were funding the development. He, therefore, must be taken as having appreciated that DIB was approaching matters in the same way. He obviously knew that Ms Sutherland was sending DIB the type of financial information which she provided, not least because he would obviously have been aware that DIB was working with Ms Sutherland closely, for instance in relation to the standby loan facility arrangements. Mr Anderson QC pointed to a document which Mr Dooley at Lovells sent to the various solicitors acting for the RSA parties, including Mr Davies at Clifford Chance, Plantation’s then solicitors, on 19 October 2007. He referred specifically to the attachment, which was a document entitled “DIB-CCH Restructuring Implementation Steps” and which referred under the “Task” column at point 7 to procuring “that net proceeds are paid to DIB from the following sources” including “Plantation Villa proceeds exceeding US$150,000”. Mr Anderson QC suggested that it was inconceivable that Clifford Chance did not pass this on to Mr Fitzwilliam and observed that, since Mr Fitzwilliam apparently took no notice of what was stated in that document, it should be assumed that he placed no reliance on any common assumption. I do not agree. As I see it, if Mr Fitzwilliam had been shown the document prepared by Mr Dooley, as to which there is no evidence either way, it does not change matters since the truth is that it is merely one document which falls to be considered. I do not consider it appropriate to reject Plantation’s reliance case on the basis of such an isolated piece of evidence. The evidence that DIB and Plantation proceeded on the basis that villa plot sales proceeds would not need to be paid to DIB or into an escrow account set up pursuant to Law No. 8 of 2007 is, frankly, overwhelming.

[210]In short, although in the period up to and including April 2008 (the period identified in the 9 June 2008 notice) there is no issue that Plantation did not make relevant payments to DIB or into an escrow account set up pursuant to Law No. 8 of 2007, I consider that DIB was precluded from relying upon such matters in its 9 June 2008 notice. I should explain that I reach this conclusion without having to address a particular argument in relation to Breach 3 concerned with the delay in setting up the escrow account with DIB caused by the name in which RERA went about registration. This is the matter to which I now turn. Breach 2 (the failure to register as a developer pursuant to Law No. 8 of 2007)

[211]Breach 2 concerns Plantation’s alleged failure, in breach of clause 16.1((f) of the RSA, to register as a developer for the purposes of Law No. 8 of 2007. For reasons which I shall relatively briefly explain, in my view, there is no merit in this suggested breach which raises, in truth, a relatively short point.

[212]The register maintained by RERA under Article 4 of Law No. 8 of 2007 is a register (the ‘Register of Real Estate Developers’) in which are entered “the names of Developers licensed to engage in the Real Estate Development business in the Emirate”. Article 4 stipulates that no “Developer may engage in such business unless he is recorded in that register and licensed by the Competent Entities in accordance with their relevant requirements”. DIB’s case depends on its being able to establish that Plantation, the “Developer” for the purposes of Article 4 and Law No. 8 of 2007 more generally, did not register with RERA. If DIB can establish this, then, it will have made out its case that, in breach of clause 16.1(f) of the RSA, Plantation failed to “obtain, observe and renew all such authorisations consents and licenses which are required in relation to its business”. If DIB can establish such a breach, then, in turn, it will have established that Plantation had failed “to perform any of its obligations other than those described in paragraph (c) under this Restructuring Agreement” as at 9 June 2008, when DIB served its notice requiring Plantation to remedy the failure.

[213]There is no issue that the obligation to register was on Plantation, rather than Mr Fitzwilliam personally. The question, therefore, is whether Plantation did, in fact, register itself. This is, indeed, a question of fact and, therefore, a matter for the evidence. As to that, there is (again) no issue that Plantation had not registered, indeed that it had taken no steps to register, before 28 December 2007. There can be no doubt about this since on 22 January 2008 RERA sent a notice to Plantation stating as follows:

“As the grace period given to the developers to adjust their status in accordance with Law No (8) of 2007 concerning Guarantee Accounts of Real Estate Developments in Dubai has elapsed. As you have not complied with law during the said period. Therefore, you are required to attend before Guarantee Accounts division at Real Estate Regulatory Agency within (3) days as of above-noted date. Failure to attend during the specified period will result in administrative fine being imposed on you, in addition to the necessary legal actions.”

That, therefore, Plantation was in breach of its obligation under Article 4 as at the end of 2007 is clear and indisputable. Mr Anderson QC accepted, however, that, in reality, DIB seems, as he put it, to have been “prepared to tolerate that” albeit on the basis that DIB, specifically Mr Bitar who was dealing with Ms Sutherland in relation to the steps which need to be taken in order to progress the standby loan facility, nonetheless wanted Plantation to do what was required to effect registration as soon as possible. The issue, in such circumstances, is whether the registration which was obtained from RERA was sufficient in the sense that it did, indeed, entail registration of Plantation (the company) as opposed to registration of Mr Fitzwilliam (the individual).

[214]As to that issue, the relevant “Real Estate Developer Registration Certificate” obtained from RERA and dated 9 March 2008 was in the following terms (in translation):

“Reference: 572/2007 The Real Estate Regulatory Agency (Trust Accounts Section) hereby states that Messrs/ ARTHUR FITZWILLIAM (PLANTATION) Has been registered in the Property Developers Register in the Emirate of Dubai after meeting all the conditions for Property Developers Regulation in accordance with Law No. (8) of 2007.”

The following day, 10 March 2008, RERA issued a further certificate, described as a “Certificate of Approval of a Real Estate Project” which adopted a similar approach. That certificate stated as follows (again in translation which might explain some different non-critical descriptions):

“The Real Estate Regulatory Agency (Trust Accounts Department) hereby states that approval has been granted for the following products belonging to: Messrs/ ARTHUR FITZWILLIAM (PLANTATION) who are registered in the Register of Real Estate Developers Register in the Emirate under number 572 in accordance with Law No. 8 of 2007. They are licensed to promote and sell on plan the project stated, subject to all the laws and stipulations relating to the business.”

This table then followed: Project Name Location Master Developer PLANTATION AL RUWAIAH (900-1036) MN DUBAI LAND The Real Estate Regulatory Agency (Trust Accounts Section) hereby states that Messrs/ ARTHUR FITZWILLIAM (PLANTATION)

Messrs/ ARTHUR FITZWILLIAM (PLANTATION)

[215]These certificates were sent by Ms Sutherland on 23 March 2008 in the context of arrangements being made to set up the relevant escrow account with DIB. This prompted a concern to be raised by DIB’s Central Operations Department in relation to the fact that the certificates had a two week validity and that time period had passed. That issue was overcome, however, because DIB obtained RERA’s confirmation that the certificates could still be used in setting up an escrow account. Another concern was, however, raised within DIB by Mr Faisal Masood on 6 April 2008 when he sent an email internally to Mr Khalifa who passed the email on to Mr Bitar in which he stated as follows:

“Could you please arrange for changing the attached approval with Shk Juma’s section at RERA. There has been a mistake and the approval, which shows Mr Arthur Fitzwilliam as the owner. In fact the project owner is Plantation Holdings FZ (LLC) and Mr Arthur is only the authorised signatory. This needs to be changed on the NOC for escrow account opening.”

Ms Sutherland suggested in her witness statement that the first that she knew of this point having been raised was when she received an email from Mr Masood on 28 April 2008, although Mr Bitar stated that “we would have raised this issue with Plantation” and so apparently suggesting that Ms Sutherland had been made aware of it earlier. It does not seem to me that this much matters, although the email on 28 April 2008 does rather suggest that Ms Sutherland had some prior awareness since it does not read as if this is the first time that the issue was being drawn to Ms Sutherland’s attention. That email stated as follows:

“Despite our tries, the Land Department has refused to issue an approval for the Plantations [sic] project in the name of Plantations [sic] FZ LLC. This is because the Sales Purchase Agreement/Land Lease agreement with Dubailand is in Arthur Fitzwilliam’s name. Therefore, for now, until we can arrange for a revised agreement on Plantations [sic] FZ LLC’s name, an account is to be opened in the name styled as Escrow A/c-Plantations-Arthur Fitzwilliam Would appreciate if you could send me the new account opening forms (as attached) showing the Account name in Arthur’s name and signed by him.”

Escrow A/c-Plantations-Arthur Fitzwilliam

[216]DIB had, therefore, approached RERA itself in an effort to have the registration changed. This was done without Ms Sutherland’s (and Plantation’s) involvement and apparently met with a lack of success. Why this should be is not clear. Mr Anderson QC suggested that the explanation is probably a combination of the fact that Plantation was only the assignee of the Lease (a point which was made by Mr Masood himself in his email and which Mr Bitar also made during the course of cross-examination), the fact that Law No. 8 of 2007 was new and the fact that Dubai law in relation to leasehold interests was at the time somewhat undeveloped. The reason does not, however, really matter for present purposes. What matters is whether it can really be considered that the registration did not cover Plantation (the company). I do not consider that it can.

[217]Mr Anderson QC pointed in closing to the fact that during cross-examination Mr Chaloub agreed with him that neither of the certificates refers to Plantation using its proper name, Plantation Holdings FZ LLC (albeit, it should be noted, he went on to make the point that the fact that the reference to “Plantation” in brackets could have been “a styling for the company and the project”). He suggested that, since they did not do so, it must follow that the entity which was registered was the natural person, Mr Fitzwilliam, and not Plantation, the company. In my view, this does not follow at all. Mr Kamal confirmed during cross-examination that, as far as he was concerned, the registration was, in Mr Cakebread’s terms, in the “joint name” of Mr Fitzwilliam and Plantation.

[218]As for Mr Bitar, he confirmed that the question of who should be registered was a matter for RERA in the following exchange during the course of cross-examination:

“Q. Who decides how a project is registered, you or RERA? A. RERA, definitely. Q. Right. Who decides what name is used for the developer, you or RERA? A. RERA will – is the one who will choose. Q. Right. You were present at the meeting in October with RERA. You were there when they said it would be registered the name of Arthur Fitzwilliam Plantation. Your dispute, if you have it, is with them, not Plantation, isn’t it? A. My dispute is basically: how my going to fund if it is going to be in the name of Arthur Fitzwilliam? That’s my dispute. So basically there was an issue regarding actual ownership and registration of escrow account. Q. That is not true, is it? Let’s just analyse that. Number one, everybody knew, you knew, Plantation knew, RERA knew, that the lease had been assigned to Plantation, yes? A. My Lord, that doesn’t mean that you, you know, it is a proper registered lease. Q. It is not for you to decide. It is for RERA, isn’t it? A. RERA - no, the courts will decide. Not RERA. Q. You told me a few minutes ago – A. Every - sorry, for interrupting. Q. – that you had to comply with RERA’s requirements. Is that only if you agree with them? A. Even if I don’t agree with them. Q. Right. They required to be registered in the name they chose: Arthur Fitzwilliam Plantation. A. And that is what happened. Arthur Fitzwilliam Plantation. Q. Your boss, Mr Kamal, said he considered that the registration was in joint names: Plantation and Arthur Fitzwilliam. Which looks about right, doesn’t it? A. Plantation Arthur Fitzwilliam, it is not Plantation LLC, a free zone. It is Plantation - it’s the name of the project. Q. So RERA got it wrong. A. RERA got it wrong? Q. Yes. A. RERA just mentioned the name of a project. So was the project, the project is supposed to be – Q. That is not right – A. The owner of the project is supposed to be Plantation LLC, and the name of the project is Plantation, so – Q. RERA required registration in the name Arthur Fitzwilliam Plantation. A. Yes. Q. Are you saying they got it wrong, to require that? A. That is what they determined, so basically, you know, that is their right. Q. Exactly – A. Whatever documentation they had in front of them, they had to make a decision, and their decision was Arthur Fitzwilliam Plantation. What does it signify? I don’t know. Q. So they were content that the developer would be entered on the register as Arthur Fitzwilliam Plantation. A. Yes, that is exactly what they have issued in their statement. Q. They also were content and required, because they chose it, that the escrow account would be in the name Arthur Fitzwilliam Plantation. A. Right. Q. Right. Was it open to you or to Mr Fitzwilliam to say ‘No, no, it will be done differently’, and ignore them? A. Ignore them? No, of course not.”

This exchange seems to me to encapsulate the reality that, whatever Mr Anderson QC might now say, in practical terms, Plantation had done what it needed to do as regards RERA in terms of registration. RERA was aware of the position in relation to Mr Fitzwilliam and Plantation. RERA chose to reflect this in the way that the certificates described the developer as “Arthur Fitzwilliam (Plantation)”. This may not formally be accurate, but it is what RERA chose to do. It is not Plantation’s fault that RERA made that choice. The truth is that RERA plainly regarded Plantation as having done what was required by Article 4 of Law No. 8 of 2007, and the only concern was that expressed by DIB, specifically by Mr Masood. Indeed, the point having been raised with RERA, no change to the certificates was apparently considered necessary or appropriate by RERA, so underlining the fact that, as far as RERA was concerned, Plantation had done enough to comply with the Law. Q. Right. Who decides what name is used for the developer, you or RERA? Q. It is not for you to decide. It is for RERA, isn’t it? Q. You told me a few minutes ago – A. RERA got it wrong? Q. That is not right – Q. Are you saying they got it wrong, to require that? Q. Exactly – A. Ignore them? No, of course not.”

Q. Exactly –

[219]I should add, lastly, that I am not persuaded by the evidence which was given by Mr Alulama on this topic. His position was that it was incumbent on Plantation to challenge RERA’s determination as to the name in which the registration was to be effected. When Mr Cakebread put to him in cross-examination that, RERA having made its determination, that was really an end of matters Mr Alulama’s response was to say that the “regulator is not always right, you have to challenge it, you know, if you have a basis”. He was insistent that this is the correct position, as demonstrated by the following exchange:

“Q. So they [Plantation] are in breach of the law because they didn’t challenge the law as it was applied? A. I didn’t say that. Q. Were they in breach of the law? A. Yes, if the actual developer conducting the development activities isthe company, then that should have been the entity that is considered. Q. So by complying with the direction of the regulator they were in breach of the law? A. Sorry, can you repeat that? Q. By complying with the direction of the regulator, they were in breach of the law; is that your evidence? A. Yes, because, you know, the facts were different than what was - the facts as I understand it are that the actual developer as this company and they should have been the one registered. … Q. It doesn’t sound quite right either, does it, to say that Plantation is in breach of the law by complying with RERA’s direction? A. But Plantation should have challenged, and it didn’t. Q. I see. And they are in breach of the law by not challenging the regulator’s decision? A. I think yes, because if they are going to conduct development activity in Dubai and were not registered itself as a developer, it would be in breach. Q. Yes. RERA had refused to register it in the name of Plantation Holdings FZ LLC – A. I don’t – Q. – and it had been registered in the name Arthur Fitzwilliam (Plantation). A. Mm-hm. Q. One of the bank’s witnesses said he didn’t have a problem – Mr Kamal, its executive vice president. He didn’t have a problem with this, he said, because it was a joint registration: ‘I regarded this as registering in both names’. A. Mm-hm. That could be his view. Q. He is just a senior employee of the bank, I mean, I’m not suggesting that he is necessarily right. A. Yes. Q. But would you think that was a reasonable point of view? A. Look, I wasn’t with them at that relevant point of time. I cannot, you know, imagine what the discussions were that were taking place at the time. But it sounds like a reasonable - say, a layman would say, if you ask me. Q. I’m quite puzzled by it, you see. It seems to me you are saying Plantation should have taken the view that they should challenge this and couldn’t continue without doing so? A. Yes, if they were the developer.”

This evidence was, in my view, wholly unrealistic. DIB had raised with RERA the correct identity of the Developer for Article 4 purposes. RERA had refused to change the certificates in this regard. There is, in such circumstances, no reason to think that, had Plantation raised the issue with RERA as well, there would have been any different outcome. Mr Alulama’s view that Plantation should have raised the matter itself, therefore, makes little sense. Q. Were they in breach of the law? A. Sorry, can you repeat that? A. I don’t –

Q. But would you think that was a reasonable point of view?

[220]In conclusion, I am quite satisfied that there was no breach of clause 16.1(f) of the RSA, and so that there was no relevant Even of Default for the purposes of clause 18.1(d). It follows that Breach 2 has not been established by DIB. Breach 4 (the failure to supply copies of all sale and purchase agreements entered into by Plantation as requested by DIB)

[221]This brings me to Breach 4 and DIB’s contention that Plantation failed to comply with clause 16.1(e) of the RSA by not providing DIB with copies of villa plots sales contracts which were requested by DIB on 5 June 2008, and so the day before Mr Fitzwilliam came to be arrested and only a few days before the notice was sent to Plantation’s solicitors, Clifford Chance, on 9 June 2008. Mr Anderson QC referred in his written closing submissions to an earlier request which was made to Ms Sutherland on 9 October 2007 and to a request which in her witness statement Ms Sutherland suggested was made at some point in February 2008, as well as to the fact that in re-examination Ms Sutherland referred to there probably having been oral requests for copies of sale contracts made in the period between October 2007 and June 2008 (something, Mr Anderson QC noted, which was not mentioned in her witness statement). It is, however, not necessary for me to address these matters since Mr Anderson QC accepted that the request which is important for present purposes is the request which was made by DIB on 5 June 2008.

[222]As for that request, this was made by Mr Khalifa early in the morning on 5 June 2008 in an email which asked for “copies of the sales contracts related to the sold residential plots in Plantation to date”. This was answered by Ms Sutherland very shortly afterwards (14 minutes later to be precise) by an email in which she stated:

“You already have these, we have sent them to the bank at least twice before. If you can’t locate then let me know.”

No response was received to this email prior to the letter which was sent on 9 June 2008. Mr Anderson QC suggested in closing that that letter was, in effect, a response to Ms Sutherland’s email, bearing in mind that it called upon Plantation to remedy the various defaults which were identified (including in relation to clause 16.1(e) within 15 days. Mr Anderson QC was, in a sense, right about this but only, in my view, in a technical sense. I am quite clear that Ms Sutherland’s email called for a specific response if it really was going to be suggested a few days later that Plantation had failed to comply with a request for information made by DIB. The fact that Mr Khalifa did not revert to Ms Sutherland to say that, notwithstanding what she was telling him about DIB having been sent copies of the sales contracts “at least twice before”, he required them to be sent again, whether because he could not locate them or for any other reason, is curious. I reject the suggestion, in particular, that Ms Sutherland was in her email refusing to comply with the request which Mr Khalifa had made. I do not consider that she was doing anything of the sort. She was merely putting the ball back into Mr Khalifa’s court, inviting him, if necessary, to come back to her. The fact that Ms Sutherland did not send copies of the sale contracts between 5 June 2008 and 9 June 2008 is readily explained by Mr Khalifa’s silence in response to her email. In the circumstances, it is nothing to the point that Ms Sutherland might have been able to dig out the relevant sales contracts and send them to Mr Khalifa in relatively short order, as Mr Anderson QC suggested, since I am clear that as far as she was concerned, having not heard back from Mr Khalifa in response to her very prompt email, Mr Khalifa had managed to locate copies of sales contracts which Plantation had previously supplied to DIB.

[223]It follows that, in my view, DIB’s reliance on Breach 4 is not sound. As to Mr Anderson QC’s suggestion that the 15-day period identified in the 9 June 2008 notice is relevant for present purposes, I disagree. DIB was only entitled to give such notice if there had been a breach of clause 16.1(f), and I do not consider that there was for the reason which I have given. Since there was no such breach as at 9 June 2008, it follows that the 15-day notice purportedly given under clause 18.1(d) of the RSA ought not to be regarded as a legitimate notice under that provision.

Breach 5 (the insolvency/payment breaches)

[224]In dealing with Breaches 1 to 4, I have been addressing the various breaches which were alleged in the 9 June 2008 notice which was sent to Clifford Chance. It is not in dispute that that notice did not include Breach 5, the insolvency/payment breaches. It was Mr Cakebread’s position that, precisely because Breach 5 was not mentioned in the 9 June 2008 notice, it is not now open to DIB to rely upon Breach 5 in response to Plantation’s claim in these proceedings.

[225]I should, first, say something about clauses 18.1(e), (f) and (g) which, I agree with Mr Anderson QC, overlap to some degree. In doing so, it is as well to set out again what the various provisions have to say. Starting with clause 18.1(e), this provides that there is an Event of Default if “any Indebtedness of a Guarantor … becomes due and payable or capable of being declared due and payable prior to its due date or any Indebtedness of a Guarantor … is not paid on its due date”, with “Indebtedness” being defined in Article 1 as being “any obligation for the payment or repayment of money, whether actual or contingent, present or future, incurred as principal or as surety”. Clause 18.1(e) is not, in view of the conclusion which I have reached previously concerning the application of the provisos mentioned in clause 18.1(a), subject to such provisos unless what is relied upon by DIB is a non-payment which properly falls within clause 18.1(a).

[226]As for clause 18.1(f), which (like clause 18.1(g)) is not, in any event, subject to the clause 18.1(a) provisos because it is not a provision which is not stated to be subject to those provisos in the definition of “Plantation Enforcement Event”, this provides that there is an Event of Default “if a Guarantor … (without the prior written consent of the Bank) stops payment of its debts or ceases or threatens to cease to carry on its business or is unable to pay its debts as they fall due or is deemed unable to pay its debts or enters into any arrangements with its creditors generally”. Mr Anderson QC submitted, in my view rightly and not controversially as far as I could tell, that the references to the stopping of payment and the ceasing or threatening to cease to carry on business were intended to cover the situation where Plantation found itself unable to secure the financing which it needed and was, accordingly, minded to mothball the Project until such time as financing became available.

(e) of the Insolvency Act 1986, which provides that:

“A company is deemed unable to pay its debts – […] (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due.”

He submitted that this demonstrates a clear linkage, and that, accordingly, in considering clause 18.1(f), it is appropriate to have regard to how section 123(1)(e) is approached. Specifically, Mr Anderson QC highlighted how for the purposes of this statutory provision the non-payment of an undisputed debt gives rise to an inference of inability to pay, even if the company in question has a surplus of assets over liabilities (see Cornhill Insurance plc v Improvement Services Ltd

[1986] 1 WLR 114

), and an inability to pay debts as they fall due encompasses more than what has fallen due by a particular point in time, but extends to cover “debts falling due from time to time in the reasonably near future” (see BNY Corporate Trustee Services Ltd v Eurosail-UK 2007-3BL plc

[2013] UKSC 28

[2013] 1 WLR 1408

at [37] per Lord Walker)

[227]This leaves clause 18.1(g), which provides that there is an Event of Default “if a Guarantor … becomes insolvent or is in liquidation or administration or subject to any other insolvency procedure in any jurisdiction or a receiver, manager, trustee, custodian or analogous officer is appointed in respect of all or any part of its property, undertaking or assets”. Mr Anderson QC submitted that the fact that there is this separate provision dealing with the situation where Plantation “becomes insolvent” demonstrates that the parties’ intention in entering into the RSA should be taken as having been to extend the circumstances where there could be an Event of Default to a situation where there is balance-sheet insolvency, applying the test under section 123(2) of the 1986 Act, since otherwise there would be no need to make separate mention of “insolvency” in view of the fact that clause 18.1(f) has the “deemed unable to pay its debts” wording. I did not understand Mr Cakebread to take issue with this. Indeed, like Mr Anderson QC, Mr Cakebread referred me to In the matter of Cheyne Finance Plc

[2007] EWHC 2402 (Ch)

, in which at [51] to [57] Briggs J (as he then was) gave the following explanation as to the modern (Mr Cakebread described it as “holistic”) approach:

“51. It is clear from that brief review of the Australian decisions that in an environment shorn of any balance sheet test for insolvency, cash flow or commercial insolvency is not to be ascertained by a slavish focus only on debts due as at the relevant date. Such a blinkered review will, in some cases, fail to see that a momentary inability to pay is only the result of a temporary lack of liquidity soon to be remedied, and in other cases fail to see that due to an endemic shortage of working capital a company is on any commercial view insolvent, even though it may continue to pay its debts for the next few days, weeks or even months before an inevitable failure. 52. Furthermore, the common sense requirement not to ignore the relevant future was found to be implicit in the Australian cases in the simple phrase ‘as they become due’. 53. Returning to the English legislation, it is, in my view, critical to note that when separating out balance sheet insolvency from commercial insolvency in 1985 the legislature did not merely remove the requirement to include contingent and prospective liabilities in framing s.123(1)(e) out of its predecessor, but added what in Australia have always been regarded as the key words of futurity, namely the phrase ‘as they fall due’. In that context ‘fall due’ is, in my judgment, synonymous with ‘become due’. 54. Mr. Trower submitted that the existence of the balance sheet test in s.123(2) makes an Australian type of approach to the commercial insolvency test unnecessary, because a company will always be balance sheet insolvent in circumstances where a review of future debts shows that it is commercially insolvent. I disagree. First, I can see no good reason why the developed understanding in Australia of the nature of the exercise required by the phrase ‘unable to pay debts as they become (or fall) due’ should not be recognised when the same phrase is, for the first time, deliberately inserted into the English insolvency test. The Australian approach makes commercial sense, whereas the blinkered approach of ignoring the future does not. 55. Secondly, a company may not always be balance sheet insolvent where an Australian style test for commercial insolvency is satisfied, as in this example: The company has £1,000 ready cash and a very valuable but very illiquid asset worth £250,000 which cannot be sold for two years. It has present debts of £500, but a future debt of £100,000 due in six months. On any commercial view the company clearly cannot pay its debts as they fall due, but it is, or would be, balance sheet solvent. 56. In my judgment, the effect of the alterations to the insolvency test made in 1985 and now found in s.123 of the 1986 Act was to replace in the commercial solvency test now in s.123(1)(e), one futurity requirement, namely to include contingent and prospective liabilities, with another more flexible and fact sensitive requirement encapsulated in the new phrase ‘as they fall due’. 57. In the case of a company which is still trading, and where there is therefore a high degree of uncertainty as to the profile of its future cash flow, an appreciation that s.123(1)(e) permits a review of the future will often make little difference. In many, if not most, cases the alternative balance sheet test will afford a petitioner for winding up a convenient alternative means of proof of a deemed insolvency.”

[228]Turning to whether it is open to DIB to advance its Breach 5 case at all in circumstances where no mention was made of any breach of clauses 18(1)(e)-(g) in the 9 June 2008 notice, Mr Cakebread took me during the course of his closing submissions to certain authorities to which he had taken me at the start of the trial when objecting to Mr Anderson QC’s application to re-amend the Amended Defence in order to plead reliance on clauses 18(1)(e)-(g), an application to which I acceded on the basis, however, that it would be open to Plantation to contend that DIB cannot rely upon Breach 5 because it was not mentioned in the 9 June 2008 notice. First, Mr Cakebread relied upon ED & F Man Commodity Advisers Ltd and another v Fluxo-Cane Overseas Ltd and Another

[2010] EWHC 212 (Comm)

. In that case, which involved an issue as to whether a sugar broker (‘MCA’) was entitled to liquidate the position of its customer (‘FCO’) under an agreement which entitled close-out in the event that, under clause 16.1.14, MCA “reasonably considere[ed] it necessary or desirable for our own protection”. MCA’s primary case was that it was entitled to close out in reliance on another provision of the relevant agreement, clause 14, under which it was open to MCA to require FCO “to provide margin”. David Steel J decided that MCA’s reliance on this provision was premature, before then going on to consider whether MCA could rely upon clause 16.1.14. He dealt with that question at [56] to [61], as follows:

“56. Despite a premature reliance on the failure to pay margin, is MCA entitled to justify the liquidation on the basis of Clause 16.1.14 of the Customer Agreement to the effect that closing out FCO's position was permitted if MCA were to ‘reasonably consider it necessary or desirable for our own protection’? 57. The first point taken by FCO is that, on the basis that MCA did not rely on (or even have in mind) Clause 16.1.14 in embarking on the liquidation, it cannot now rely on the clause. This, it was said, was further exemplified by the threshold to Clause 17 to the effect that the entitlement to liquidate in such event was ‘at [MCA’s] discretion’. 58. I am unable to accept this submission. The discretion relates to the various options available to MCA in the event of default. There is no question that MCA exercised its purported discretion to liquidate FCO’s position under Clause 17.1. This could be effected with or without notice. The issue is whether MCA was entitled to exercise that discretion. The justification advanced by MCA was non-payment of margin. No such default had occurred. But there is nothing to inhibit reliance on any other event of default. 59. The context of MCA’s decision is very striking: i) On 16 January, ICE had ordered each clearing member to reduce FCO's position. ii) MF Global’s obligation in this regard was in turn MCA's obligation. iii) Compliance with ICE directives was of itself reasonably necessary or desirable from MCA’s perspective. iv) Yet by the end of 17 January no reduction had been made. v) MCA learned from the letter of 16 January forwarded to them that: a) FCO had significantly exceeded its permitted limits. b) FCO had refused to rectify the position despite ICE demands. c) FCO had on the contrary increased its short position. vi) In the meantime it had emerged that FCO had no less than 9 other brokers all required to reduce FCO’s position (albeit on an unknown scale). vii) By the time of the meeting on 17 January (and indeed during the meeting) it was apparent that some brokers were already embarking on the process of closing the excess positions. viii) Mr Garcia was somewhat coy during the meeting as regards his willingness to pay margin calls, a feature enhanced by the indication from the back office of FCO that any margin payment would have to await the outcome of 17 January meeting. 60. Mr Jenkins dealt with the position in the course of his evidence. He described the ICE instruction as ‘unprecedented’. The basis upon which ICE had issued the instruction was not challenged or even commented on by FCO. The mark to market accounting of the FCO position had a deficit as at 17 January of $13 million and a value at risk of $19 million. Indeed the margin due to MCA at the close of business on 17 January was calculated at $27 million. 61. Against that background, I accept that MCA considered that liquidation of FCO’s position was highly desirable if not necessary and had reasonable grounds for so concluding.”

Importantly, David Steel J was here dealing with a situation where, as he decided, MCA did actually consider that liquidation of FCO’s position was at least (highly) “desirable” within the meaning of clause 16.1.14 and did so “reasonably” again within the meaning of that provision. David Steel J was not, therefore, dealing with a situation where at the time that it took the action which it did MCA did not have in mind such matters. i) On 16 January, ICE had ordered each clearing member to reduce FCO's position. ii) MF Global’s obligation in this regard was in turn MCA's obligation. iii) Compliance with ICE directives was of itself reasonably necessary or desirable from MCA’s perspective. iv) Yet by the end of 17 January no reduction had been made. v) MCA learned from the letter of 16 January forwarded to them that: a) FCO had significantly exceeded its permitted limits. b) FCO had refused to rectify the position despite ICE demands. c) FCO had on the contrary increased its short position. vi) In the meantime it had emerged that FCO had no less than 9 other brokers all required to reduce FCO’s position (albeit on an unknown scale). vii) By the time of the meeting on 17 January (and indeed during the meeting) it was apparent that some brokers were already embarking on the process of closing the excess positions. viii) Mr Garcia was somewhat coy during the meeting as regards his willingness to pay margin calls, a feature enhanced by the indication from the back office of FCO that any margin payment would have to await the outcome of 17 January meeting.

[229]The second case to which Mr Cakebread referred was Sucden Financial Ltd v Fluxo-Cane Overseas Ltd and Another

[2010] EWHC 2133 (Comm)

, [2010] 2 CLC 216. The context of this case was similar to that in the ED&F Man case. At [45], having (like David Steel J) rejected an argument based on an entitlement to close out on the basis of non-payment of margin, Blair J said this:

“In summary, I conclude that though non-payment of margin did not constitute an Event of Default at the time when Sucden began the liquidation on 18 January 2008, there were other subsisting Events of Default under both clause 46.1(e) and (k) of the TOB. By clause 47.1 therefore, Sucden was entitled to without prior notice to close out Fluxo-Cane’s various transactions, which is what it proceeded to do. On the facts as I find them to be, this is not a case in which the claimant is seeking retrospectively to rely on an Event of Default upon which it did not rely at the time. Despite the fact that neither point is mentioned in the letter of default, I am satisfied that in taking the action that it did, Sucden had in mind both Mr Garcia’s repudiatory statement of 18 January 2008, and the necessity to protect itself. I am satisfied on the facts that the situation demanded such action. Essentially the same conclusion was reached in ED & F Man at [58]. In that case also, the justification advanced by the brokers at the time was non-payment of margin, but no such default had occurred: ‘But’, as David Steel J said, ‘there is nothing to inhibit reliance on any other event of default’. The same applies in this case.”

Mr Cakebread highlighted the fact that in this passage Blair J made it clear that he considered that, if a party is to be permitted to rely upon something which it has not mentioned to its contractual counterpart when alleging default, it is necessary that that party should nonetheless have had in mind and relied upon that something, albeit that it was not mentioned. Mr Anderson QC drew attention, however, to the wording of clause 46.1(k) which was in similar terms to clause 16.1.14 in the ED&F Man case (“we consider it necessary or desirable for our own protection/any action is taken or event occurs which we consider might have a material adverse effect upon your ability to perform [of] your obligations under this Agreement”) as well as the language used in clause 47.1 of the relevant agreement in the Sucden case, which was in the following terms:

“Default: On an Event of Default or at any time after we have determined in our absolute discretion, that you have not performed (or may not be able or willing in the future to perform) any of your obligations to us, we shall be entitled without prior notice to you:… (c) to close out, replace or reverse any transactions, buy, sell, borrow or lend or enter into any other transaction or take, or refrain from taking, such other action at such time or times and in such manner as at our sole discretion, we consider necessary or appropriate to cover, reduce or eliminate our loss or liability under or in respect of any of your contracts, positions or commitments; …”

. Mr Anderson QC submitted that these provisions, with their requirements for what might be described as ‘contemporaneous consciousness’ and at all events subjective knowledge, explain why both David Steel J and Blair J approach matters on the basis that it is necessary that a party has in mind and relied upon the relevant event of default even though that party did not mention it expressly.

[230]Mr Anderson QC submitted that the proper approach in a case such as the present, where clauses 18.1(e)-(g) do not involve any equivalent requirement, is to apply the well-known principle derived from Boston Deep Sea Fishing & Ice Company v Ansell (1888) LR 39 Ch D 339 that, where a contract is brought to an end by the acceptance of a party’s repudiatory breach, the terminating or innocent party is entitled later to rely upon, in justifying termination, repudiatory breach which it did not rely upon or even know about at the time that it accepted its counterpart’s repudiatory breach so as to bring the contract to an end. That principle is summarised in Chitty on Contracts at paragraph 24-014, as follows:

“One party to a contract may, by reason of the other’s breach, be entitled to treat himself as discharged from his liability further to perform his own unperformed obligations under the contract and from his obligation to accept performance by the other party if made or tendered. The expression ‘discharge by breach’ is commonly employed to describe the situation where he is entitled to, and does, exercise that right. Nevertheless, the expression is not wholly accurate, at least without further explanation. In the first place, not every breach of contract has this effect. Discharge from liability is not necessarily coincident with a right to sue for damages. The rule is usually stated as follows: ‘[a]ny breach of contract gives rise to a cause of action; not every breach gives a discharge from liability’. Thus the main question discussed in this chapter is whether a party who admittedly has a claim for damages is also relieved from further performance by the other party’s breach. Secondly, although sometimes the innocent party is referred to as ‘rescinding’ the contract and the contract as being ‘terminated’ by the breach, it is clear that the contract is not rescinded ab initio nor is it extinguished by the breach. The innocent party, or, in some cases, both parties, are excused from further performance of their primary obligations under the contract; but there is then substituted for the primary obligations of the party in default a secondary obligation to pay monetary compensation for his non-performance. Thirdly, the innocent party is not ordinarily bound to treat himself as discharged: if the contract is still executory, he may elect instead to treat it as continuing. He may also waive his right of discharge, accept the defective performance of the other party, and content himself with damages, which are his remedy in any event.”

[231]I agree with Mr Anderson QC about this as a matter of general principle. Indeed, in his reply submissions it appeared that so did Mr Cakebread, who described Mr Anderson QC’s submission as being “True as far as it goes” before adding, however, that “it doesn’t go far enough” and reminding me that clause 2.1 of the Conditional Assignment, from which I have previously quoted, states as follows in the second sentence:

“For the avoidance of doubt, the assignment of the Lease shall occur, if, in the reasonable opinion of DIB, a Plantation Enforcement Event has occurred and a notice is served by DIB to DTDC [Dubailand] pursuant to Clause 2.3.”

Mr Cakebread submitted that, given the requirement that DIB should have a “reasonable opinion” that a Plantation Enforcement Event has occurred, it is not open to DIB to rely upon Breach 5 unless it can show that at the time, namely in mid-July 2008 when it wrote to Dubailand giving notice of Breaches 1 to 4, DIB also held the “reasonable opinion” that there were additionally breaches of clauses 18.1(e)-(g).

[232]I agree with Mr Cakebread about this. It seems to me that clause 2.1, in effect, brings in the type of subjective aspect which was entailed with the various clauses in the ED&F Man and Sucden cases which caused David Steel J and Blair J to conclude that it is necessary that there should be subjective knowledge and contemporaneous reliance. It follows that, although I do not take issue with the general approach as explained in the Boston Deep Sea Fishing case and in Chitty at paragraph 24-014, in the present case that approach is inapposite because of the specific requirement in clause 2.1 of the Conditional Assignment that DIB should hold the opinion (indeed, the reasonable opinion) that there has been a Plantation Enforcement Event. The simple fact is that at the time nobody within DIB had clauses 18.1(e)-(g) in mind.

[233]Accordingly, I am not persuaded by Mr Anderson QC that I should permit DIB now to rely upon Breach 5. In the circumstances, in view also of the conclusion which I come on to reach in relation to the topic of causation, I do not, therefore, propose to lengthen this already long judgment by dealing with Breach 5 any further.

Repudiatory breach

[234]The next matter which needs to be addressed is Plantation’s case that, in purporting to perfect the assignment in July 2008 under clause 18.2 of the RSA and clause 2.3 of the Conditional Assignment at a time when there had been no occurrence of a Plantation Enforcement Event, DIB acted in repudiatory breach of the RSA and this means that the RSA had ceased to exist by the time that the next instalment of the Rescheduling Amount would have been payable, namely 1 October 2008 which was the next Repayment Date under Schedule 2. Plantation’s case is, accordingly, that it is not open to DIB to rely upon that obligation in resisting its case on causation (the topic to which I shall come next).

[235]There are a number of substantial difficulties with Plantation’s position. First, although I am prepared to assume for present purposes that, when DIB wrote to Dubailand on 14 July 2008 seeking to perfect the assignment and declaring a Plantation Enforcement Event, DIB was in repudiatory breach of the RSA even though it was not until 4 November 2008 that DIB actually took physical possession of the Project’s site, and so it is somewhat doubtful that what DIB did in July 2008 went to the root of the RSA so as to amount to repudiation, it is quite clear that there was, in any event, no acceptance of DIB’s repudiatory breach by Plantation at any time before 1 October 2008 when the next instalment of the Rescheduling Amount became payable. Indeed, it is far from clear that Plantation has ever accepted DIB’s repudiatory breach so as to bring the RSA to an end.

[236]Flaux J reached the same conclusion in his judgment at [164] to [166], addressing arguments (in particular concerning alleged continuing breaches of the RSA by DIB) which were similar to those addressed to me by Mr Cakebread. Those paragraphs state as follows:

“164. Second, nothing was actually said or done by the second defendant [Mr Cornelius] or Plantation at that stage by way of acceptance of a repudiatory breach. Mr Mallin relied upon the decision of the House of Lords in Vitol SA v Norelf Limited [1996] AC 800 and in particular a passage in the speech of Lord Steyn at 811-12: ‘It is now possible to turn directly to the first issue posed, namely whether non-performance of an obligation is ever as a matter of law capable of constituting an act of acceptance. On this aspect I found the judgment of Phillips J. entirely convincing. One cannot generalise on the point. It all depends on the particular contractual relationship and the particular circumstances of the case. But, like Phillips J., I am satisfied that a failure to perform may sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end. Postulate the case where an employer at the end of a day tells a contractor that he, the employer, is repudiating the contract and that the contractor need not return the next day. The contractor does not return the next day or at all. It seems to me that the contractor's failure to return may, in the absence of any other explanation, convey a decision to treat the contract as at an end. Another example may be an overseas sale providing for shipment on a named ship in a given month. The seller is obliged to obtain an export licence. The buyer repudiates the contract before loading starts. To the knowledge of the buyer the seller does not apply for an export licence with the result that the transaction cannot proceed. In such circumstances it may well be that an ordinary businessman, circumstanced as the parties were, would conclude that the seller was treating the contract as at an end. Taking the present case as illustrative, it is important to bear in mind that the tender of a bill of lading is the pre-condition to payment of the price. Why should an arbitrator not be able to infer that when, in the days and weeks following loading and the sailing of the vessel, the seller failed to tender a bill of lading to the buyer he clearly conveyed to a trader that he was treating the contract as at an end?’ 165. Mr Mallin relied on that passage in support of his submission that a continuing failure to perform may be sufficiently unequivocal to constitute acceptance of a repudiation, in other words that, in an appropriate case, an acceptance of a repudiatory breach may be spelt out from inactivity or acquiescence. I accept that is a possibility in an appropriate case but, as Mr Mallin himself accepts, generally inactivity or acquiescence will not amount to acceptance. It all depends on the circumstances. The essential difference between Vitol and the present case is that, in that case and the examples Lord Steyn gives, after the repudiatory breach, if the contract was still on foot, it was incumbent on the innocent party to perform a positive obligation under the contract, there the tender of the bill of lading by the seller. 166. In the present case, in so far as there were obligations imposed on the defendants and Plantation by the RSA, they were not fresh obligations arising after the alleged repudiatory breach, but obligations (for example to pay over the Plantation Villa Proceeds) of which the defendants were already in breach. A continuing failure to perform, such as in the present case, is necessarily equivocal, as is made clear in the passage in Lord Steyn’s speech (at 812) immediately following the passage on which Mr Mallin relied: ‘In my view therefore the passage from the judgment of Kerr L.J. in the Golodetz case [1989] 2 Lloyd's Rep. 277, 286, if it was intended to enunciate a general and absolute rule, goes too far. It will be recalled, however, that Kerr L.J. spoke of a continuing failure to perform. One can readily accept that a continuing failure to perform, i.e. a breach commencing before the repudiation and continuing thereafter, would necessarily be equivocal.’ Furthermore, no response was required from the second defendant [Mr Cornelius] under the RSA to the Bank relying upon a Plantation Enforcement Event, so that acceptance of a repudiatory breach cannot be spelt out from the second defendant’s inactivity and silence.” ‘It is now possible to turn directly to the first issue posed, namely whether non-performance of an obligation is ever as a matter of law capable of constituting an act of acceptance. On this aspect I found the judgment of Phillips J. entirely convincing. One cannot generalise on the point. It all depends on the particular contractual relationship and the particular circumstances of the case. But, like Phillips J., I am satisfied that a failure to perform may sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end. Postulate the case where an employer at the end of a day tells a contractor that he, the employer, is repudiating the contract and that the contractor need not return the next day. The contractor does not return the next day or at all. It seems to me that the contractor's failure to return may, in the absence of any other explanation, convey a decision to treat the contract as at an end. Another example may be an overseas sale providing for shipment on a named ship in a given month. The seller is obliged to obtain an export licence. The buyer repudiates the contract before loading starts. To the knowledge of the buyer the seller does not apply for an export licence with the result that the transaction cannot proceed. In such circumstances it may well be that an ordinary businessman, circumstanced as the parties were, would conclude that the seller was treating the contract as at an end. Taking the present case as illustrative, it is important to bear in mind that the tender of a bill of lading is the pre-condition to payment of the price. Why should an arbitrator not be able to infer that when, in the days and weeks following loading and the sailing of the vessel, the seller failed to tender a bill of lading to the buyer he clearly conveyed to a trader that he was treating the contract as at an end?’ ‘In my view therefore the passage from the judgment of Kerr L.J. in the Golodetz case [1989] 2 Lloyd's Rep. 277, 286, if it was intended to enunciate a general and absolute rule, goes too far. It will be recalled, however, that Kerr L.J. spoke of a continuing failure to perform. One can readily accept that a continuing failure to perform, i.e. a breach commencing before the repudiation and continuing thereafter, would necessarily be equivocal.’ Furthermore, no response was required from the second defendant [Mr Cornelius] under the RSA to the Bank relying upon a Plantation Enforcement Event, so that acceptance of a repudiatory breach cannot be spelt out from the second defendant’s inactivity and silence.”

[237]These passages were focused, mainly at least, on the position of Mr Cornelius, but Flaux J’s observations apply just as much to Plantation as they did to Mr Cornelius. It is impossible to spell acceptance out of Plantation’s conduct after July 2008. Indeed, I am not even sure that it would be right to characterise Plantation as having been inactive or acquiescent after July 2008 since, on the contrary, Ms Sutherland continued to interact with DIB in the same way as she had done before DIB perfected the assignment. It is perfectly plain that there was no acceptance, express or implied by Plantation’s conduct, at any time before 1 October 2008. This is significant, as I shall explain when dealing with the issue of causation and as Flaux J explained in his judgment at [167] (albeit he referred to the relevant date as being 2 October 2008):

“Third, even if the argument that the effect of acceleration on 21 July 2008 was that there was now a Plantation Enforcement Event were wrong, there clearly was a Plantation Enforcement Event on 2 October 2008, the next Repayment Date under Schedule 2, for the reasons already given above. If there had been a repudiatory breach prior to 2 October 2008, it had not been accepted and would have ceased to have any effect on 2 October 2008, because on any view the Bank was then entitled to rely upon a Plantation Enforcement Event.”

[238]In an effort to meet this difficulty, Mr Cakebread made two particular points. First, he submitted that, since DIB had not alleged affirmation in advance of trial, it was not open to DIB to run a case that Plantation had not accepted DIB’s repudiatory breach. This is a bad point, however, because it overlooks the fact that it is for Plantation, as the party contending that the RSA came to an end, to demonstrate that DIB’s repudiatory breach was accepted by it. It is not for DIB to have to prove affirmation. Secondly, Mr Cakebread referred to Stocznia Gdanska SA v Latvian Shipping Company Ltd

[2002] EWCA Civ 889

and specifically the following passage in the judgment of Rix LJ at [99] and [100]:

“99. It seems to me that an affirmation of a repudiatory actual breach may differ from an affirmation of a merely anticipatory repudiatory breach in that the former breach is complete at the time it occurs whereas the latter breach looks to the future. An affirmation of an actual breach may therefore be said to leave nothing outstanding for the future, in that the worst has already occurred, whereas an affirmation of an anticipatory breach still leaves the future open. Prima facie an election or waiver looks to the past, even if it is possible, in a very clear case, to waive one’s rights for the future too. Two views might therefore be taken as to the effect of an affirmation of an anticipatory breach. One is that it is a waiver for the future as well: that was what Colman J decided and Mr Glennie submitted. The other is that the affirmation prima facie relates only to the past, leaving open the question of a continuing or renewed anticipatory breach. It seems to me that the latter view is to be preferred, and is inherent in the decision in Safehaven v. Spingbok and in the decision already taken in relation to this case. That would still leave open of course the question of how one tells whether an anticipatory breach is a continuing one, and the correct way of viewing silence. Professor Treitel highlights the undesirability of subverting considerations of substance or policy to the accidents of negotiation (at 26). I wonder whether each case does not in truth have to be decided on its own facts. However, substance and principle suggest that silence should not in this context be too readily regarded as equivocal; and that against the background of an earlier anticipatory repudiation it should not take much further to prove continuing repudiatory conduct. 100. It also occurs to me that even in the case of an actual repudiatory breach, where the breach is of a continuing nature, such as a failure to pay or to deliver, an affirmation at one stage is not necessarily an irrevocable affirmation for all time in the future. If it were otherwise, the law could not have developed the doctrine of Rickards v. Oppenhaim.”

Mr Cakebread submitted that DIB’s breach continued after July 2008 when it perfected the assignment, his point apparently being that ever since this happened Plantation has, as a result of the assignment, continued to be prevented from developing the Project. So, Mr Cakebread submitted, even if Plantation is to be regarded as having failed to accept DIB’s initial repudiatory breach in July 2008, indeed as having affirmed the RSA at that time, there is no justification for a conclusion that Plantation affirmed the RSA “for all time in the future”.

[239]This is an argument which is hopeless. First, I do not accept that DIB should be regarded as being in continuing repudiatory breach: DIB did what it did in July 2008 and that was a single action. The fact that the consequences continued does not mean that there is more than one breach. Secondly, Mr Cakebread’s contention would, in any event, only be relevant if he could point to an acceptance by Plantation in advance of 1 October 2008. He cannot do this; indeed, he did not even suggest that there was an acceptance in that timescale. On the contrary, it is instructive that shortly after that date, on 13 October 2008, Denton Wilde Sapte, then acting for Plantation, wrote to Al Tamimi and Lovells asking to be provided with copies of certain instructions which had been sent to certain valuers. In doing so, an entitlement was being asserted under clause 18.3(b) of the RSA, indicating that Plantation was not at that stage treating the RSA as having come to an end. If the RSA was not at an end at that stage, it cannot have been at an end before 1 October 2008. Furthermore, the day before this, Galadari & Associates wrote to DIB attaching a letter from Plantation dated 11 October 2008 which made a settlement proposal and stated, in part, as follows:

“We refer to the Restructuring Agreement dated 19 August 2007 (the ‘RSA’) between (among others) Dubai Islamic Bank PJSC (‘DIB’), Plantation Holdings FZ-LLC (‘Plantation’) and Mr Arthur Fitzwilliam (‘Mr Fitzwilliam’). By letter dated 21 July 2008, addressed to Plantation and others, Al Tamimi & Co, acting on behalf of DIB, served a notice under Clause 18.4(a)(i) of the RSA (the ‘Demand Notice’) demanding payment by Plantation and those others of certain sums … … In serving such notice, DIB relied upon certain alleged breaches of the RSA by Plantation. Plantation has denied such breaches. In relation to one of them, it contends in the alternative that DIB waived the breach. Based on the alleged breaches of the RSA, DIB has, by way of enforcement of its security, taken an assignment of the lease between Plantation and Dubai Tourism and Development Company over a parcel of real property located within the Dubailand Development situated to the south of Emirates Road, which has been designated for the development of a world-class equestrian facility incorporating a mix of residential, retail, boutique office, hotel and equestrian-related uses (the ‘Asset’). Plantation has contended that DIB was not entitled to enforce its security in this way. Without prejudice to Plantation’s contentions regarding breach of the RSA and DIB’s enforcement of its security, this letter gives formal notice that Plantation intends to discharge the demand made of Plantation in the Demand Notice … are set out below. Plantation has secured through a consortium of KSA and Bahrain-based investors (the ‘Consortium’) an investment commitment of US$600 mn (the ‘Investment’) into the project known as ‘Plantation’ (the ‘Project’). It is proposed that the proceeds of the investment be allocated and applied as follows: 1) the Outstanding Rescheduling Amount, the DIB Legal Costs and the Additional Recoverable Legal Costs be paid to DIB in full and final settlement are set out below (the ‘Settlement Sum’); and 2) the balance of the Investment be used to complete outstanding infrastructure works and allow the Project to proceed to planned completion in 2010. The proposal is that the Consortium will acquire 60% of the issued share capital of a newly-incorporated BVI company (‘Plantation NewCo’), the balance of 40% being issued to Mr Fitzwilliam. … This letter is written on an open basis. Plantation reserves the right to refer to, and rely upon, the contents of this letter in the event that DIB takes any step to dispose of the Asset.”

It is doubtful, to put it mildly, that there was available to Plantation any such investment, but what matters for present purposes is that, again, this is a communication which is only consistent with Plantation not having by this time, mid-October 2008, decided to treat the RSA as at an end. The fact that the letter was marked as being ‘subject to contract’ is nothing to the point since this does not make it ‘without prejudice’.

[240]These conclusions make it unnecessary for me to determine a dispute concerning the proper construction to be afforded to clause 21 of the RSA, the provision which deals with “Termination”. It is appropriate nonetheless, if only out of completeness, that I should do so. There are two separate issues here: first, whether it was open to Plantation to bring the RSA to an end by accepting DIB’s repudiatory breach (assuming that there was such breach and that Plantation did, in fact, accept it); and secondly, if it was open to Plantation to do this, what the consequences are. The first of these issues has as its focus clause 21.1, whereas it is clause 21.3 which is relevant to the second.

[241]It will be recalled that clause 21.1 provides as follows:

“Unless otherwise required by Law, this Restructuring Agreement shall terminate only upon the occurrence of the later of: (a) the repayment in full to the Bank of the Rescheduling Amount; (b) payment to the Bank of the Profit.”

Mr Anderson QC submitted that the words “Unless otherwise required by Law” cover the situation where there is some rule of law which provides for mandatory termination, as opposed to a situation where termination is not mandatory but depends on either both parties to the contract agreeing that it should terminate or, as in the case of repudiatory breach, one of the parties (the innocent party) making a decision to accept the other party’s repudiation of the contract with the result that the contract is brought to an end. Mr Anderson QC’s submission was, in effect, therefore, that the parties to the RSA should be taken as having agreed that there would be no right to bring the RSA to an end in the event that there was a repudiatory breach.

[242]As Mr Anderson QC accepted, whether the RSA party should be treated as having reached such an agreement depends on the proper construction to be afforded to clause 21.1. This is the point which was made by Moore-Bick LJ in Stocznia Gdynia SA v Gearbulk Holdings Ltd

[2009] EWCA Civ 75

[2010] 1 QB 27

at [19]:

“… Whenever one party to a contract is given the right to terminate it in the event of a breach by the other it is necessary to examine carefully what the parties were intending to achieve and in particular what importance they intended to attach to the underlying obligation and the nature of the breach. The answer will turn on the language of the clause in question understood in the context of the contract as a whole and its commercial background. Sometimes, as in Lockland Builders v Rickwood, the parties will have intended to give a remedy of a limited nature for breaches of a certain kind; in other cases the terms of the contract may reflect an intention to treat the breach as going to the root of the contract with the usual consequences, however important or unimportant it might otherwise appear to be. Inevitably, therefore, there can be no hard and fast rule.”

Moore-Bick LJ went on at [23] to say this:

“Mr. Dunning submitted that since that decision the approach of the courts to the construction of exclusion clauses has developed in favour of a greater willingness to give them the meaning which the words used would naturally bear. I would accept that, but I would not accept his suggestion that as the law stands today there are two competing approaches struggling for supremacy: one requiring clear express words, the other favouring the natural meaning of the words used. It is important to remember that any clause in a contract must be construed in the context in which one finds it, both the immediate context of the other terms and the wider context of the transaction as a whole. The court is unlikely to be satisfied that a party to a contract has abandoned valuable rights arising by operation of law unless the terms of the contract make it sufficiently clear that that was intended. The more valuable the right, the clearer the language will need to be.”

In my view, the language used in clause 21.1 is not clear enough to justify a conclusion that the parties to the RSA agreed that there would be no entitlement to bring the RSA to an end by one party choosing to treat the other party’s breach of contract as being repudiatory. If they had truly intended to reach such an agreement, I would have expected it to have been expressly, and clearly, laid out in the RSA. This, on any view, was not done, as demonstrated by Mr Anderson QC having to read into the introductory language of clause 21.1 a meaning which is not explicit. Moore-Bick LJ went on at [23] to say this:

[243]I note, in passing and since it brings me to the second issue which arises, that in his judgment at [170] Flaux J proceeded on the basis (possibly as a working assumption, although it is not clear) “that the definition of ‘Law’ includes common law” and so that “termination by accepted repudiation would be ‘by operation of Law’ under clause 21.3”. Again for convenience, I repeat the relevant parts of clause 21.3:

“Upon the termination of the entire Restructuring Agreement, otherwise than by clause 21.1, (including any termination of the Restructuring Agreement being required by operation of Law, notwithstanding clause 25.2 (Severability), due to invalidity, illegality or unenforceability) the parties shall cease to have any further obligations to each other hereunder, provided always that: (a) the provisions of the following clauses shall remain in full force and effect: 1 (Definitions), 2 (Interpretation), 4 (Rescheduling Amount), 5 (Acknowledgement of Debt), 6 (Guarantee and Indemnity), 8 (Security), 13 (Proceeds Assets), 22 (Costs), 23 (Payments), 25.1 (Delays), 25.2 (Severability), 25.3 (Confidentiality), 25.4 (Reservation of Rights), 25.5 (Specific Performance), 27 (Governing Law, Jurisdiction and Arbitration); …”

. Mr Anderson QC submitted that this provision makes it clear that certain core obligations, including those owed by Plantation, survive termination including as a result of the acceptance by the innocent party of the other party’s repudiatory breach. Mr Cakebread, on the other hand, submitted that this cannot be right since, if it were, it would apply to all types of repudiatory breach including cases where the breach was deliberate. In my view, however, clause 21.3 is clear. There is no ambiguity about the position. The parties agreed what they agreed. It is not open to me to re-fashion that agreement yet that is what Mr Cakebread’s submission would essentially require. At [170] Flaux J went on to say this:

“… Clause 21.3(a) makes it clear that, in that event, the defendants' obligations to repay both as guarantors and as primary obligors remain in full effect: hence clauses 4, 5 and 6 remain in full force and effect. On the other hand provisions which limit or circumscribe those obligations in any way such as clause 3, the standstill provision, do not survive.”

I agree. I agree also with what he said in the next paragraph:

“Mr Mallin sought to argue in his closing submissions that somehow there was no obligation on the defendants to repay because one of the provisions which did not survive on termination was clause 7, the Repayment provision. However, in my judgment, that provision is about repayment in instalments and payment over of asset proceeds such as Plantation Villa Proceeds, whilst the RSA is up and running. Once that provision and the standstill provision in clause 3 have fallen away as they do upon termination, what is left is an unqualified obligation under clause 4.4 that all of the Advances (i.e. the Rescheduling Amount as the opening words of clause 4.1 make clear) are immediately due and payable. It follows that, even if the RSA had terminated, the defendants remain fully liable to repay the outstanding Rescheduling Amount.”

It follows that, even though I have not accepted Mr Anderson QC’s argument in relation to clause 21.1 and assuming that Plantation did accept DIB’s repudiatory breach in advance of 1 October 2008, this did not relieve Plantation of its obligations under the RSA. (a) the provisions of the following clauses shall remain in full force and effect: 1 (Definitions), 2 (Interpretation), 4 (Rescheduling Amount), 5 (Acknowledgement of Debt), 6 (Guarantee and Indemnity), 8 (Security), 13 (Proceeds Assets), 22 (Costs), 23 (Payments), 25.1 (Delays), 25.2 (Severability), 25.3 (Confidentiality), 25.4 (Reservation of Rights), 25.5 (Specific Performance), 27 (Governing Law, Jurisdiction and Arbitration); …”. I agree. I agree also with what he said in the next paragraph:

Causation

[244]I come on now to deal with what, in view of my conclusions so far, is a subject of significant importance, namely the issue of causation.

[245]At the start of the trial there appeared to be a fundamental dispute between Mr Anderson QC and Mr Cakebread concerning the proper causation approach to be adopted in relation to contractual claims. Mr Anderson QC pointed out in his written opening submissions that Plantation’s case appeared to boil down to an assertion that, if DIB was not entitled to act as it did, then, Plantation must receive damages assessed by reference to the market value of Plantation, with damages being assessed as at the date of breach with no reference to subsequent events or what would have occurred absent the breach. Mr Anderson QC’s submission was that this was an entirely wrong approach since ‘stopping the clock’ in this way would involve affording Plantation compensation on a basis which ignored reality, specifically the fact that as at 1 October 2008, when the next instalment of the Rescheduling Amount became due, a Plantation Enforcement Event would have occurred in any event. As a result, Mr Anderson QC submitted, Plantation cannot show that it has suffered any recoverable loss.

[246]In this regard, Mr Anderson QC relied upon Golden Strait Corp v Nippon Yusen Kubishka Kaisha (The ‘Golden Victory’)

[2007] UKHL 12

[2007] 2 AC 353

as authority for the proposition that there is no immutable or inflexible rule requiring damages to be assessed as at the date of the relevant breach of contract. This is clear, Mr Anderson QC submitted, from the following short passage in the judgment of Lord Bingham in the Golden Victory case at [13]:

“The charterers further submit that even if, as a general rule, damages for breach of contract (or tort, often treated as falling within the same rule) are assessed as at the date of the breach or the tort, the court has shown itself willing to depart from this rule where it judges it necessary or just to do so in order to give effect to the compensatory principle. I accept that this is so.”

Lord Bingham, who along with Lord Walker dissented from the majority, went on to consider situations in which courts have departed from the general rule, noting that none of the cases involved the accepted repudiation of a commercial contract such as a charterparty.

[247]The Golden Victory case was such a case. In that case, charterers repudiated a 7-year time charter some three years after it was entered into and some 14 months before the outbreak of the Second Gulf War in March 2003. Their argument was that the damages payable to owners should reflect the fact that under a provision in the charter (clause 33) there was a right to cancel in the event of such a war. Accordingly, they contended, the damages should be limited to the period up to March 2003 when the Second Gulf War broke out and should not extend to 6 December 2005 when the charter would, had its run its full course, come to an end. The majority (Lord Scott, Lord Carswell and Lord Brown) held that the principle that damages should be assessed as at the date of breach is not inflexible and that the desirability of achieving certainty in commercial contracts is subject to the overriding compensatory principle that the damages awarded should represent no more than the value of the contractual benefits of which the claimant had been deprived. Therefore, if by the time that damages come to be assessed, an event has happened which would have resulted in the termination of the contract or which otherwise reduces the contractual benefits enjoyed by the innocent party, then, this would need to be taken into account in assessing the damages payable. It followed, the majority decided, that since the event entitling the charterers to terminate the charterparty under clause 33 had happened before the damages had been assessed and the owners’ right to receive the hire rate and profit share provided for by the charterparty would thereby have been brought to an end, the owners were not entitled to damages in respect of the period thereafter. Lord Scott, in particular, explained the rationale as follows at [29] to [32]:

“29. My Lords, the answer to the question at issue must depend on principles of the law of contract. It is true that the context in this case is a charterparty, a commercial contract. But the contractual principles of the common law relating to the assessment of damages are no different for charterparties, or for commercial contracts in general, than for contracts which do not bear that description. The fundamental principle governing the quantum of damages for breach of contract is long established and not in dispute. The damages should compensate the victim of the breach for the loss of his contractual bargain. The principle was succinctly stated by Parke B in Robinson v Harman (1848) 1 Exch 850 , 855 and remains as valid now as it was then: ‘The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.’ If the contract is a contract for performance over a period, whether for the performance of personal services, or for supply of goods, or, as here, a time charter, the assessment of damages for breach must proceed on the same principle, namely, the victim of the breach should be placed, so far as damages can do it, in the position he would have been in had the contract been performed. 30. If a contract for performance over a period has come to an end by reason of a repudiatory breach but might, if it had remained on foot, have terminated early on the occurrence of a particular event, the chance of that event happening must, it is agreed, be taken into account in an assessment of the damages payable for the breach. And if it is certain that the event will happen, the damages must be assessed on that footing. In The Mihalis Angelos [1971] 1 QB 164 , 210, Megaw LJ referred to events ‘predestined to happen’. He said that ‘if it can be shown that those events were, at the date of acceptance of the repudiation, predestined to happen, then… the damages which [the claimant] can recover are not more than the true value, if any, of the rights which he has lost, having regard to those predestined events.’ Another way of putting the point being made by Megaw LJ is that the claimant is entitled to the benefit, expressed in money, of the contractual rights he has lost, but not to the benefit of more valuable contractual rights than those he has lost. In Wertheim v Chicoutimi Pulp Co [1911] AC 301 , 307, Lord Atkinson referred to ‘the general intention of the law that, in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed’ and, in relation to a claim by a purchaser for damages for late delivery of goods where the purchaser had, after the late delivery, sold the goods for a higher price than that prevailing in the market on the date of delivery, observed, at p 308, that ‘the loss he sustains must be measured by that price, unless he is, against all justice, to be permitted to make a profit by the breach of contract, be compensated for a loss he never suffered, and be put, as far as money can do it, not in the same position in which he would have been if the contract had been performed, but in a much better position.’ 31. The result contended for by the appellant in the present case is, to my mind, similar to that contemplated by Lord Atkinson in the passage last cited. If the charterparty had not been repudiated and had remained on foot, it would have been terminated by the charterers in or shortly after March 2003 when the Second Gulf War triggered the clause 33 termination option. But the owners are claiming damages up to 6 December 2005 on the footing, now known to be false, that the charterparty would have continued until then. It is contended that because the charterers' repudiation and its acceptance by the owners preceded the March 2003 event, the rule requiring damages for breach of contract to be assessed at the date of breach requires that event to be ignored. 32. That contention, in my opinion, attributes to the assessment of damages at the date of breach rule an inflexibility which is inconsistent both with principle and with the authorities. The underlying principle is that the victim of a breach of contract is entitled to damages representing the value of the contractual benefit to which he was entitled but of which he has been deprived. He is entitled to be put in the same position, so far as money can do it, as if the contract had been performed. The assessment at the date of breach rule can usually achieve that result. But not always. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443, 468–469 Lord Wilberforce referred to ‘the general rule’ that damages for breach of contract are assessed as at the date of breach but went on to observe that ‘It is for the courts, or for arbitrators, to work out a solution in each case best adapted to giving the injured plaintiff that amount in damages which will most fairly compensate him for the wrong which he has suffered’ and, when considering the date at which a foreign money obligation should be converted into sterling, chose the date that ‘gets nearest to securing to the creditor exactly what he bargained for’. If a money award of damages for breach of contract provides to the creditor a lesser or a greater benefit than the creditor bargained for, the award fails, in either case, to provide a just result.”

Lord Scott went on at [37] and [38] to address Lord Bingham’s dissenting view: “37. My noble and learned friend, Lord Bingham, in what has been rightly described as a strong dissent, has referred, in para 9, to the overriding compensatory principle that the injured party is entitled to such damages as will put him in the same financial position as if the contract had been performed. On the facts of the present case, however, the contract contained clause 33 and would not have required any performance by the charterers after March 2003. It should follow that, in principle, the owners, the injured party, are not entitled to any damages in respect of the period thereafter. As at the date of the owners’ acceptance of the charterers' repudiation of the charterparty, the proposition that what at that date the owners had lost was a charterparty with slightly less than four years to run requires qualification. The charterparty contained clause 33. The owners had lost a charterparty which contained a provision that would enable the charterers to terminate the charterparty if a certain event happened. The event did happen. It happened before the damages had been assessed. It was accepted in argument before your Lordships that the owners’ charterparty rights would not, in practice, have been marketable for a capital sum. The contractual benefit of the charterparty to the owners, the benefit of which they were deprived by the repudiatory breach, was the right to receive the hire rate during the currency of the charterparty. The termination of the charterparty under clause 33 would necessarily have brought to an end that right. 38. The arguments of the owners offend the compensatory principle. They are seeking compensation exceeding the value of the contractual benefits of which they were deprived. Their case requires the assessor to speculate about what might happen over the period 17 December 2001 to 6 December 2005 regarding the occurrence of a clause 33 event and to shut his eyes to the actual happening of a clause 33 event in March 2003. The argued justification for thus offending the compensatory principle is that priority should be given to the so-called principle of certainty. My Lords, there is, in my opinion, no such principle. Certainty is a desideratum and a very important one, particularly in commercial contracts. But it is not a principle and must give way to principle. Otherwise incoherence of principle is the likely result. The achievement of certainty in relation to commercial contracts depends, I would suggest, on firm and settled principles of the law of contract rather than on the tailoring of principle in order to frustrate tactics of delay to which many litigants in many areas of litigation are wont to resort. Be that as it may, the compensatory principle that must underlie awards of contractual damages is, in my opinion, clear and requires the appeal in the case to be dismissed. …”. ‘The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.’ If the contract is a contract for performance over a period, whether for the performance of personal services, or for supply of goods, or, as here, a time charter, the assessment of damages for breach must proceed on the same principle, namely, the victim of the breach should be placed, so far as damages can do it, in the position he would have been in had the contract been performed. ‘if it can be shown that those events were, at the date of acceptance of the repudiation, predestined to happen, then… the damages which [the claimant] can recover are not more than the true value, if any, of the rights which he has lost, having regard to those predestined events.’ Another way of putting the point being made by Megaw LJ is that the claimant is entitled to the benefit, expressed in money, of the contractual rights he has lost, but not to the benefit of more valuable contractual rights than those he has lost. In Wertheim v Chicoutimi Pulp Co

[1911] AC 301

, 307, Lord Atkinson referred to ‘the general intention of the law that, in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed’ and, in relation to a claim by a purchaser for damages for late delivery of goods where the purchaser had, after the late delivery, sold the goods for a higher price than that prevailing in the market on the date of delivery, observed, at p 308, that ‘the loss he sustains must be measured by that price, unless he is, against all justice, to be permitted to make a profit by the breach of contract, be compensated for a loss he never suffered, and be put, as far as money can do it, not in the same position in which he would have been if the contract had been performed, but in a much better position.’

Lord Scott went on at [37] and [38] to address Lord Bingham’s dissenting view:

[248]In opening, Mr Cakebread was somewhat dismissive of Mr Anderson QC’s reliance on The Golden Victory, suggesting that it had no application to a case such as the present. He did not, however, at that stage explain why he considered that to be the position. The explanation came in closing when Mr Cakebread engaged in something of a re-characterisation of the nature of the claim advanced by Plantation. Mr Cakebread explained and I quote directly from his oral submissions, that DIB having decided “to take the Lease without there being a Plantation Enforcement Event”, damages should be assessed on the basis that there had been a “conversion of Plantation’s property”. Mr Cakebread went on to suggest that Mr Anderson QC’s submission confused what Mr Cakebread described as “a simple act of conversion” with a claim for “contractual damages for loss of the benefit of a contract”. Mr Cakebread did not, therefore, take issue with the The ‘Golden Victory’ case as such, nor obviously could he. His only point was that the present case involved a claim in conversion albeit “in the context of a contract”, and so merited a different approach to the assessment of the damages payable (namely an approach which is analogous to the approach adopted in conversion cases).

[249]Mr Cakebread drew an analogy in this regard with a case where a solicitor is alleged to have been negligent, making the point that in relation to such a case “there can be tort within a contract”. In this context, Mr Cakebread took me to various authorities which, he suggested, supported his core submission. He started with Mercer v Jones (1813) 3 Campbell 477, 170 ER 1452, a claim in trover for a bill of exchange, in which Lord Ellenborough identified the basis on which damages in such cases are payable, as follows:

“In trover the rule is, that the plaintiff is entitled to damages equal to the value of the article converted at the time of the conversion. There is no reason why this rule should not be applied to trover for bills of exchange. The damage is, therefore, in this case, must be coordinated by the amount of the principal and interest due upon the bills of exchange at the time of the demand and refusal to deliver them up.”

Next, Mr Cakebread took me to the following passage in McGregor on Damages (19th Ed., 2014) at paragraph 22.010:

“There are, however, authorities, and over a very long period, where the concurrent liability is for breach of contract and in the tort of conversion. Here it is thought that a claimant should be entitled to tortious damages where these are higher than the contractual. This is because the two claims are not for the same type of default, as with negligence, but with different types of default, the one being the breaking of a contract concerning goods, the other being the conversion of those goods. The cases have concerned, as defendant, a seller or a carrier of goods who has so dealt with them as to be liable in conversion to the other contracting party. Actions of conversion have been brought where a seller of goods has, after the property has passed to the buyer, refused to deliver them or has resold them to a third party, and where a carrier of goods has delivered them on their arrival to the wrong person, has improperly sold them in transit or has made a short delivery to the claimant. In such cases the market value of the goods at the time and place of due delivery, which is the normal contractual measure, will generally be the measure for conversion, since the latter measure also looks to market value and since the time and place of conversion is generally the time and place at which the goods should have been delivered. There are, however, two possible variants that could arise. (1) In the first place the goods may have been sold by the claimant to a third party at a price higher than the market value at due delivery and the claimant, without a market available to him in which he could buy equivalent goods, has been unable to carry out this contract. In the absence of knowledge of this contract, the defendant seller or carrier would not generally be liable to the claimant for his loss of profit in an action for breach of contract.”

[250]I was then shown Solloway v McLaughlin

[1938] AC 247

, a Privy Council case involving stockbrokers who, whilst purporting to comply with their client’s instructions to purchase particular shares in a particular company, in fact, having purchased such shares on behalf of their client, then contemporaneously sold those (the client’s) shares to others. The particular aspect highlighted by Mr Cakebread related to other shares in the same company which the client had deposited with the stockbrokers as margin, only to find out later that the stockbrokers had sold those shares also. When the client closed his account, the stockbrokers went into the market and bought shares in the same quantity as the shares which had been deposited with them by the client. Mr Cakebread relied on the following passages at pages 257 to 259 in the judgment of Privy Council which was given by Lord Atkin:

“As to the deposited shares, in the circumstances of the case the company never had any right to deal with them. If the transaction had been originally honest, the company would only have had a special property which, on the facts of the case, even had the transaction been honest throughout, would not have given them the right to dispose of the shares, for there never had been default. But on the actual facts of a mandate accepted for the express purpose of being fraudulently misused by the agent, the agents never had the right to claim or to hold security, still less to dispose of it. Their disposal of the deposited shares amounted to nothing short of conversion, and the client on each occasion on which the shares were sold had vested in him a right to damages for conversion which would be measured by the value of the shares at the date of the conversion. How, then, is his position affected by the fact that, not knowing of the conversion, he received from the wrongdoer, and has retained, the very goods converted or their equivalent? It appears to their Lordships that the only effect is that he must give credit for the value of what he has received at the time he received it, and that the damages are reduced by this amount. … It does not require argument to show that the amount by which the damages are reduced must be the value of the goods when returned. In the result, therefore, the plaintiff appears to be entitled to retain the sum for which he recovered judgment under the order of Kerwin J. It is objected that this will be to put him in a better position than if he had not been defrauded at all, and this appears to have influenced the decision of the majority of the Court of Appeal in Ontario. All that this amounts to is to recognize that fraudulent brokers have often sounder judgment than their clients as to the future course of markets. If the shares had been converted and not returned, there can be no question that the client would have been entitled to receive the proceeds of the conversion though he himself had planned to hold and thought he had succeeded in holding the shares until a time when the value was nothing. Fortunately for the commercial community the law has many effective forms of relief against dishonest agents, and no injustice is done if the principal benefits, as he occasionally may, by the superior astuteness of an unjust steward in carrying out a fraud.”

Mr Cakebread submitted that this case demonstrates that it is possible to have a claim in conversion “under a contract”, so supporting his overarching submission, he suggested, that in the present case it would be appropriate to award Plantation damages assessed on a tortious (conversion) basis rather than a contractual basis to compensate for what he described as DIB’s wrongful conversion of the Lease in mid-July 2008.

[251]I was also referred to BBMB Finance (Hong Kong) Ltd v EDA Holdings Ltd

[1990] 1 WLR 409

, another decision of the Privy Council. In that case, a certificate being a bonus issue of a substantial number of shares in a particular company, together with certain executed blank transfers, were deposited with the defendant as security for an existing or prospective loan to the company by the defendant. The defendant irreversibly converted the certificate and shares by selling them to a third party in return for a post-dated cheque representing the market value of the shares at that time, although the defendant never presented the cheque for payment. The defendant, subsequently, at a lower price purchased shares in the company to replace those in the certificate. The plaintiffs brought an action against the defendant for damages for conversion, the judge at first instance awarding them the difference between the value of the shares at the date of conversion and the value of the replacement shares at the date of replacement. The defendant appealed but was unsuccessful in both the Court of Appeal and the Privy Council. Lord Templeman at page 412B cited the Solloway case as clear authority for the “general rule” being “that a plaintiff whose property is irreversibly converted has vested in him a right to damages for conversion measured by the value of the property at the date of conversion”. He went on to consider various authorities, before saying this at page 413D-F:

“Both the Brandeis case [1981] Q.B. 864 and the Peel River case (1886) 55 L.T. 689 were concerned with damages caused by temporary deprivation of possession and use of property. A different consideration will apply when the property is irreversibly converted and the plaintiff loses that property. The plaintiff loses the value of the property at the date of conversion and the general rule is that the measure of damages is the value thus lost. To depart from that rule in the present case would be inconsistent with Solloway v. McLaughlin [1938] A.C. 247. Mr. Evans-Lombe submitted that in that case Lord Atkin was only concerned to deprive the defendant of a profit. But Lord Atkin's judgment is inconsistent with this submission. Mr. Evans-Lombe also sought to argue that the effect of Solloway v. McLaughlin has in some way been modified by the Torts (Interference with Goods) Act 1977, joined with the decision in the Brandeis case [1981] Q.B. 864. Their Lordships do not consider that the decision in Solloway v. McLaughlin can be affected by the Brandeis case or by the Act of 1977 which only came into force after the Brandeis case had been decided.”

It was Mr Cakebread’s submission that this case provides further support for his argument that the right approach in the present case is to award Plantation damages on a conversion basis and not by reference to contractual principles.

[252]There are several fundamental problems with Mr Cakebread’s submissions in this connection. First, as Mr Anderson QC pointed out during the course of his closing submissions and as made clear in Clerk & Lindsell on Torts at paragraph 17-40, there can be no conversion of land albeit that, as observed earlier at paragraphs 17-01 and 17-02, there can be trespass both to land and to goods (or chattels). That a lease is land, and so not able to be converted, is apparent from the fact that, under the heading “Legal estates and equitable interests”, section 1(1) of the Law of Property Act 1925 is in the following terms:

“The only estates in land which are capable of subsisting or of being conveyed or created law are – (a) An estate in fee simple absolute in possession; (b) A term of years absolute.”

It is confirmed also by certain extracts from Megarry & Wade, The Law of Real Property (8th Ed., 2012). Specifically, in paragraph 17-001 the authors confirm in effect, that a lease is, indeed, a “term of years” when they state:

“A lease is a bilateral contract which, as a general rule, confers an estate in the land capable of binding third parties. The contract is one ‘for the exclusive possession and profit of land for some determinate period’. The estate so created, whatever its duration, may be referred to as a leasehold, a tenancy or a term of years. …”

. That a lease is an interest in land is further confirmed by this statement at the start of paragraph 17-003:

“Leases therefore came into common use long before they obtained full protection as interests in land; they appear frequently from the early 13th century onwards. …”

. This follows an earlier chapter 1, in which, under the heading “Meaning of ‘Real Property’”, this is stated:

“…Originally leases were treated as personal business arrangements under which one party allowed the other the use of his land for a rent. Such personal contracts did not create rights in the land itself which could attract feudal status. Leases helped to supply a useful form of investment at a time when there was little other. … Leaseholds are still, therefore, personalty in law. However, having been recognised so long as interests in land and not only contractual rights, they have been classed under the paradoxical heading of ‘chattels real’. ‘Chattels’ indicates their personal nature, ‘real’ shows their connection with the land.”

This, in turn, is followed by chapter 3 and paragraph 3-009 where the authors describe the nature of leases in this way:

“At first, the three estates of freehold were the sole estates recognised by law. The only other lawful right to the possession of land was known as a tenancy at will, under which the tenant could be ejected at any time, and which therefore gave him no estate at all. Terms of years grew up outside this system of estates. Originally they were regarded not as property (as object of ownership) but as personal contracts binding only on the parties. The leaseholder was not fully protected against other persons until the end of the 15th century, and the nature of the remedy (the action of ejectment) marked off leaseholds from the other estates. When they became fully protected by the law of property they became estates, but it was too late for them to be classified with the others.”

It is clear, in the circumstances, that this first objection by Mr Anderson QC to Mr Cakebread’s conversion-based damages case is valid. The consequence is that Mr Cakebread’s reliance on the conversion authorities to which he took me during the course of his closing submissions in an effort to avoid the application of the approach described in The ‘Golden Victory’ goes nowhere.

[253]Secondly, although this point follows from the last, the cases relied upon by Mr Cakebread in support of his submission that in an appropriate case, where there is concurrent liability both in contract and in tort, damages can be recovered on the tortious basis if this better compensates the innocent party (the proposition described in McGregor at the beginning of paragraph 22-010) are cases where there is concurrent liability. Without concurrent liability the proposition is inapposite. In the present case, therefore, since there can be no liability in the tort of conversion, notwithstanding Mr Cakebread’s submission that there can be, it necessarily follows that Mr Cakebread can derive no assistance either from McGregor or from the authorities to which he took me.

[254]Thirdly, in any event and even assuming that there were not these difficulties in Plantation’s way, it is not open to Plantation to advance a case which entails reliance on conversion, even if it is only in support of a submission that damages for breach of contract in the present case should be assessed on a conversion basis. This is because, as Mr Anderson QC explained during the course of his closing submissions, an order has previously been made by Flaux J which limited the scope of the permission to serve proceedings out of the jurisdiction to Plantation’s “claims under the Restructuring Agreement” (see paragraph 1 of the order which was made on 28 February 2014). This order was made in relation to draft Particulars of Claim which included, in paragraph 21(b), “Wrongful Acts” which were described including “usurpation (ghasb) of the land and other property comprising the Plantation Development”. The prayer also included this at paragraph 7:

“Damages, including aggravated and/or exemplary damages, for: a. Breach of contract b. Usurpation (ghasb) and/or trespass c. Breach of the Defendant’s obligations as purported enforcer of its security”

. I was informed by Mr Anderson QC, without demur from Mr Cakebread, that the references to “usurpation (ghasb)” are references to a Dubai law concept akin to trespass but, in any event, involving something which is non-contractual. It was not in dispute between Mr Anderson QC and Mr Cakebread that, as such, Dubai law was the applicable law. That, indeed, is how Flaux J appears to have approached matters since in his ex tempore judgment which resulted in the order he had this to say at [3] (when dealing with claims sought to be made which were under or incidental to the Conditional Assignment) and at [4] (when dealing with other tort-type claims):

“So far as a claim is formulated in the particulars of claim as depending upon obligations arising as a matter of Dubai law, either under or incidental to the conditional assignment, it seems to me those relate to a contract governed by Dubai law which is the subject of the exclusive jurisdiction of the Dubai Courts and there is therefore no proper basis for or no gateway under the Practice Direction through which those claims can come before this court. Insofar as the claims are framed are some species of trespass committed in Dubai, again that is a claim … where the loss and damages [sic] is not suffered here nor does it result from an act committed within the jurisdiction. Therefore that does not fall within the tort gateway in Practice Direction 6B para 3.1(9).”

In short, it is not permissible for Mr Cakebread now to seek to side-step the consequences of The ‘Golden Victory’ approach by relying upon a conversion case which Flaux J expressly disallowed Plantation from bringing forward.

[255]Fourthly, even leaving aside these various points, Mr Cakebread is, in any event, quite wrong to suggest that the position when assessing conversion-based damages always entails the award of damages assessed by reference to value as at the time of conversion. This is because, as Mr Anderson QC explained, the assessment of tort-based damages entails, like the assessment of contractual damages, the application of the compensatory principle. Thus, to take an example of some antiquity, in Livingstone v The Rawyards Coal Company

(1880) 5 App Cas 25

, a trespass case involving the owner of a small feu, Lord Blackburn stated as follows at page 39:

“The point may be reduced to a small compass when you come to look at it. I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. That must be qualified by a great many things which may arise—such, for instance, as by the consideration whether the damage has been maliciously done, or whether it has been done with full knowledge that the person doing it was doing wrong. There could be no doubt that there you would say that everything would be taken into view that would go most against the wilful wrongdoer—many things which you would properly allow in favour of an innocent mistaken trespasser would be disallowed as against a wilful and intentional trespasser on the ground that he must not qualify his own wrong, and various things of that sort. But in such a case as the present, where it is agreed that the Defenders, without any fault whatever on their part, have innocently, and, being ignorant, with as little negligence or carelessness as possible, taken this coal, believing it to be their own, when in fact it belonged to the Pursuer, then comes the question, - how are we to get at the sum of money which will compensate them?”

Mr Anderson QC placed particular reliance on the last sentence and the formulation of the question as being “how are we to get at the sum of money which will compensate them?”. This, he submitted, demonstrates that the compensatory principle applies just as much to tortious claims as it does to contractual claims.

[256]The same point is illustrated by IBL Ltd v Coussens

[1991] 2 All ER 133

, a conversion case concerning two luxury cars which the plaintiff company provided to its Chairman and Managing Director but which were not returned after he had been dismissed from those roles. In that case, Neill LJ stated at page 139c-e as follows:

“In considering any award of damages in an action in tort it is necessary to bear in mind the general principle which was re-stated by Brandon LJ in Brandeis Goldschmidt & Co. v. Western Transport [l9811 QB 864 at page 870: ‘Damages in tort are awarded by way of monetary compensation for loss or losses which a plaintiff has actually sustained, and the measure of damages awarded on this basis may vary infinitely according to the individual circumstances of any particular case.’ In Brandeis the Court of Appeal substituted an award of £5 nominal damages in an action in detinue where the goods had been recovered and the plaintiffs had failed to show that they had suffered any quantifiable loss by reason of an adverse interference with their business operations. At the same time it is necessary to bear in mind that where the goods are irreversibly converted and are not recovered the general rule is that the measure of damages is the value of the goods at the time of conversion. This general rule has been recently reaffirmed by the Privy Council in BBMB Ltd. v EDA Holdings Ltd. [l9901 1 WLR 409.”

Having so summarised the common law position, Neill LJ then went on to consider the position under the Torts (Interference with Goods) Act 1977 under which the plaintiff company brought its came. So, too, did Nicholls LJ (as he then was) after, first, analysing the common law position, including certain observations made by Diplock LJ (as he then was) in General and Finance Facilities Ltd. v Cooks Cars (Romford) Ltd [l963] 1 WLR 644. He explained, in particular, at page 141j that:

“In my view the key lies in appreciating that when the Act was passed in 1977 there was no absolute rule governing the date as at which damages were to be assessed in conversion or the value of goods were to be assessed in detinue.”

He went on to refer to the following passage in the judgment of Evershed J (as he then was) when giving the judgment of the Court of Appeal in Rosenthal v Alderton and Sons Ltd [l946] KB 374 at page 377:

“In an action of detinue the value of the goods claimed but not returned ought, in our judgment, to be assessed as at the date of the judgment or verdict. A successful plaintiff in an action of detinue was, under the old practice, entitled to judgment for the re-delivery of the goods or, in case they were not returned, to their value together with damages and costs; and such value was either assessed by the jury at the trial or by the sheriff upon an inquest … Unless the alternative methods of assessing value were liable to produce substantially different results, the time at which the value was in each case to be determined, must have been the date of the verdict.”

Nicholls LJ explained at page 142c-f as follows:

“However, I do not think that either Diplock LJ or Evershed J were intending to do more than state a general rule. Neither of them is to be taken as envisaging that in detinue the value of the goods was always to be assessed, whatever the circumstances, at the date of judgment. Such a rigid, inflexible approach would accord ill with the compensatory objective underlying awards of damages. Whatever may or may not have the been the practice in past centuries, I cannot think by the mid-twentieth century the old forms of action, in ruling us from their graves, still retained sufficient vigour to compel an award of damages in a sum assessed as at the date of judgment if, in the particular circumstances and applying ordinary principles of causation and mitigation, the loss to the plaintiff fairly to be attributed to the non-return of his goods was a lesser sum. Indeed, in the Rosenthal case itself Evershed J envisaged (at page 379) that although a bailee who has parted with the goods is estopped from so asserting in answer to a claim in detinue for delivery up, yet if the bailor knew of the conversion at the time he might not be able to rely on a claim in detinue for the current value of the goods. That flexible approach was adopted by the Court of Appeal in Sachs v Miklos [l948] KB 23. Lord Goddard CJ (at page 39) stated that, in assessing damages for detinue or for conversion, the damages are not necessarily and in all cases the value of the goods at the date of judgment: ‘The question is what is the plaintiff’s loss, what damages he has suffered, by the wrongful act of the defendants.’ There the court held that if the plaintiff, who had a cause of action against the defendant bailee in detinue as well as in conversion, knew or ought to have known that the furniture was going to be sold by the bailee, he could not recover the rise in price of the furniture after the date when it was sold.”

Then, after referring both to the Brandeis case and to the BBMB Finance case, as well as to the 18th Report (Conversion and Detinue) of the Law Reform Committee published in 1971 which resulted in the 1977 Act, and noting that Lord Diplock was a member of that committee, Nicholls LJ again made it clear at page 143h-j “that there is no absolute rule regarding the date as at which the goods are to be valued” and that the damages payable should be “by reference to the value” of the relevant goods (in that case, the two cars) “at such date as will fairly compensate the plaintiff for its loss”. Nicholls LJ explained at page 142c-f as follows:

[257]These are all reasons why Mr Cakebread’s reliance on conversion-based authorities does not assist him. It follows that I agree with Mr Anderson QC that the correct approach is to apply contractual principles to the assessment of Plantation’s damages and, in particular, that The ‘Golden Victory’ is applicable in this case. The simple fact is that, in assessing the level of damages which are payable to any claimant, it is necessary to consider what level of damages will fairly compensate the claimant. The claimant should not be short-changed. Equally, however, the claimant ought not to be allowed to recover a windfall.

[258]The consequence in the present case is clear: Plantation cannot make anything like the level of recovery which has been suggested on its behalf since it is perfectly plain and obvious (Mr Anderson QC described it during the course of his oral closing submissions as an “inconvenient truth”) that, even if DIB had not done what it did in mid-July 2008 when it sought to perfect the assignment of the Lease notwithstanding that, as I have decided, there had not been a Plantation Enforcement Event, there would, in any event, have been the occurrence of a Plantation Enforcement Event on 1 October 2008, when just under US$60 million fell to be repaid in accordance with Schedule 2 to the RSA to bring the cumulative amount of the Rescheduling Amount up to the US$120 million which it was agreed would be repaid within 365 days of the RSA’s Effective Date.

[259]I agree with Mr Anderson QC that it is, indeed, as he submitted, plain beyond doubt that Plantation would not have been in any position to meet its obligations under clause 6 of the RSA, and that there would, therefore, have been a very large default on 1 October 2008 since, again as he submitted in his written closing submissions:

“no more was going to come in, and no more came in, from the various receivables; no more came in from any other source; and there was no prospect of Plantation/Mr Fitzwilliam raising further monies”

. I have previously analysed Plantation’s financial position as at June/July 2008 in considerable detail, concluding that it was precarious to say the least since its sources of income were insufficient to meet its expenditure commitments. I have rejected the evidence given by Mr Bacon and Mr Fitzwilliam concerning the alleged Chescor deal. I have decided that there was no Chescor deal, and that the evidence given by Mr Bacon and Mr Fitzwilliam was essentially made up in order to support a case that, notwithstanding the apparent precariousness of Plantation’s financial position, Plantation would have had access to a substantial source of funding were it not for Mr Fitzwilliam’s arrest. I have also considered the evidence given by Mr Bacon concerning other third party interest in Plantation, specifically his evidence concerning Arbah Capital and Noor Capital. I have concluded that there is nothing in the suggestion that during the course of 2008 there was substantial interest by potential investors in Plantation, still less that there would have been any deal in place in time to enable Plantation to meet the obligation which arose on 1 October 2008. It is fanciful to suppose, in the circumstances, that proviso (i) to sub-paragraph would have come to Plantation’s rescue since application of that proviso would still have required 90%, and so a very substantial sum of money, to have been repaid. Plantation was, quite simply, in no position to pay anything like the amount of money which it would have had to pay on 1 October 2008.

[260]It follows that the occurrence of a Plantation Enforcement Event was inevitable. That DIB would, accordingly, have been entitled to perfect the assignment of the Lease in October 2008 is obvious. In these circumstances, Mr Anderson QC must be right when he submitted that Plantation has no entitlement to damages which take no account of what would, in any event, have happened even if DIB had not taken the action which it did in July 2008. The most that it is open to Plantation to seek by way of damages is a sum representing the loss suffered by reason of DIB having given itself what Mr Anderson QC described as a ‘paper title’ between mid-July and 1 October 2008, yet Plantation has put forward no such case as I shall explain when dealing with the damages issue.

[261]This conclusion makes it unnecessary for me to found my conclusion on the causation issue on two further points which were made by Mr Anderson QC. The first of these was Mr Anderson QC’s submission, at least in opening, that, even if it were the case that there was not an Event of Default for the purposes of clauses 18.1(e), (f) or (g) of the RSA by June/July 2008, it was, as he put it, “only a matter of time” that there soon would be since Plantation’s ability to sell villa plots would, he suggested, have ended entirely with the collapse in the Dubai property market after the collapse of Lehman Brothers later in 2008, with the result that Plantation “would simply have run out of cash”. I strongly suspect that Mr Anderson QC is right about this, but I do not need to make such a finding. Indeed, I should note that Mr Anderson QC did not himself in closing apparently feel the need to press the point as a freestanding submission.

[262]The second point, which was put forward both in opening and in closing by Mr Anderson QC, is a little more involved. It is that, assuming that Plantation had done as required under the RSA and paid villa plot sales proceeds into an escrow account set up pursuant to Law No. 8 of 2007, such an account having been set up with DIB in May 2008 in the name of “Plantation Arthur Fitzwilliam” (albeit that, through no fault of its own, Plantation had problems using it which manifested themselves during the course of July and August 2008), then, the source of funding for all the polo facilities and Plantation’s other overhead costs would have abruptly ended, which would have meant that there was an immediate drying up of Plantation’s cash flow and an inevitable default for the purposes of clauses 18.1(e), (f) or (g) of the RSA. Specifically, Mr Anderson QC pointed out that Regulation 6.3 of the Trust Account Regulations which were issued by RERA in relation to Law No. 8 of 2007 imposed limits on what could be spent on management expenses (5% of approved construction costs) and marketing expenses (5% of “sold value”). Mr Anderson QC went on to highlight how in the Project Cost & Revenue Certificate produced for RERA by Plantation’s auditors, Horwath Mak, as at 31 December 2007, marketing costs were shown as being estimated at AED 105,924,426, which equates to 5% of the estimated construction cost (AED 2,118,488,512) rather than, as required by Regulation 6.3, as 5% of “sold value”. In circumstances where the same document gave a figure of just AED 52,310,402 as the “Cash Received from Customer AED”, Mr Anderson QC submitted, in my view with justification, that this would have been a more appropriate base figure to have used. Had that been done, then, the 5% marketing costs would have been a very much more modest AED 2,615,520. However, even leaving this curiosity to one side, the Certificate gave a “Paid Cost AED” figure for marketing costs which exceeded the estimated costs by approximately AED 8 million (AED 113,918,184 as compared with AED 105,924,425). This means that Plantation would not have been permitted to spend more on marketing out of the escrow account. Since the evidence was that Plantation treated its expenditure on polo and equestrian activities as marketing expenditure, the rationale being that this would attract people to purchase villa plots, and since these activities were themselves loss-making, it was Mr Anderson QC’s submission that, absent external finance, Plantation would for this reason also have become unable to pay debts relating to the polo and equestrian activities which would have meant, in turn, that Plantation would have become insolvent in short order. Again, this may well be right, but I do not find it necessary to reach a concluded view on the matter.

Damages

[263]This brings me, lastly, to the topic of damages. In view of my conclusion in relation to causation, this is not a subject which I propose to spend too much time addressing. The position is straightforward.

[264]As I have already explained, since DIB would, in any event, have been entitled to perfect the assignment of the Lease, and so enforce the Plantation Security, after 1 October 2008, any damages ought only to be to compensate Plantation for loss suffered between mid-July 2008 and 1 October 2008. Since, as I have explained, the Project was loss-making in this period, it is very difficult indeed (if not impossible) to see how Plantation can really have suffered any loss which would merit an award of anything more than nominal damages. Plantation has, however, made no attempt at quantifying its loss by reference to that period, even in the alternative. Given this, it would have been open to me to take the view that no damages should be awarded at all. I am, however, persuaded that it would be appropriate, in the circumstances, to make an award of damages, albeit only in a nominal amount.

[265]In any event, even if I had considered it appropriate to approach the question of damages in the way which Mr Cakebread suggested, and so by reference to Plantation’s value as at July 2008 without regard to subsequent events, contrary to the approach to causation which I have described, there is a fundamental difficulty which lies in Plantation’s way to the very sizeable damages claim which it puts forward. This is that, although the respective valuation experts (Mr Donald Bradley for Plantation and Mr Simon Townsend for DIB) were essentially agreed on the appropriate valuation for Plantation as at June 2008 (and, as I understand it, also July 2008), Mr Townsend in fact taking the view that the appropriate valuation was AED 2,934,491,309 and so higher than Mr Bradley’s valuation of AED 2,870,000,000, those valuations assumed the existence of a market and there was none at that time.

[266]Specifically, in their Joint Statement Mr Bradley and Mr Townsend agreed as follows in paragraph 4.2:

“Both experts agreed that the most appropriate approaches to undertaking valuations of development lands of the residual and comparable approach and it was agreed that in many instances (especially in a market lacking transparency such as Dubai) due to the lack of appropriate comparable is the residual approach is often the most widely adopted.”

Mr Townsend explained in his first report, uncontroversially, in paragraph 7.6.3 that the residual approach “relies upon a combination of comparison (largely to derive the gross development value) and an estimate of costs (to make deductions from the gross development figure, and so arrive at the residual figure), and requires the valuer to make a number of assumptions”. As Mr Townsend explained in paragraph 7.6.5, and as Mr Bradley himself acknowledged during the course of cross-examination, one of those assumptions is “the existence of both a willing seller and a willing buyer”. The same point was made in paragraph 4.10 of the Joint Statement in which Mr Bradley and Mr Townsend said this:

“Both experts agreed that the opinion of market value provided does make an assumption that there is a potential purchaser at that date who is willing and able to acquire the land.”

As Mr Townsend went on to make clear in the paragraph 7.6.5, and as Mr Bradley also recognised in cross-examination:

“… the fact that a valuer can produce an assessment of ‘market value’ for a particular property is a particular time does not mean that there was, or is, in fact a market whether at that price (or at some other price) for the property in question.”

[267]It was Mr Townsend’s view, as recorded in the Joint Statement at paragraph 5.1, that:

“… based on the current master-plan and the ground lease that this market would be very limited and any disposal would require a considerable period of marketing …”

. This reflected what Mr Townsend had stated in his report in paragraphs 9.10, 9.11, 9.12, 9.17 and 9.19, as follows:

“9.10 I do not believe (based on the proposed use, the proposed master-plan, or the location of the Plantation project) that any special purchase of the entire project existed at the 2008 dates, or that one exists today. I should explain that a ‘special purchaser’ is an investor who has a reason to acquire the assets that are normal willing buyer does not have. For example, a special purchaser may be an adjoining landowner or investor with a specific requirement for the proposed sector. Based on my knowledge of the Dubai market, I do not believe that such a purchaser existed or exists in the case of the Plantation Project. 9.11 In my opinion, identifying even a potential purchaser for the whole of the Plantation project (with a view to that purchaser developing it in line with the existing Master Plan) at any of the four days requested would have been/is exceedingly difficult. I had discussed the matter with my agency colleagues at CBRE who have specialised in the disposal of land and buildings in Dubai since 2006. Their assessment is in line with my own opinion that, at these dates, there was and is very limited demand, not just for the Plantation project but for large developments within Dubai and Dubai Land generally. 9.12 At all the four valuation days there was a very limited group of investors who would have the financial resources to acquire land in the range of the Market Value, noting that any investor that acquired such a project would then have to spend the infrastructure monies to service the land to facilitate the plot sales. Investors with resources of this scale can secure large land parcels and potentially more attractive locations to develop assets more in line with market demand - one such example is Damac which acquired the now Akoya schemes. Not only was this land parcel acquired by Damac at a discount, the payment terms were very advantageous by being spread over a period of several years as opposed to a single initial capital payment on sale date. I simply do not believe that the Plantation project was always attractive to the very limited number of investors willing to purchase at this level. In addition to the issue of financial resources, there was also the question of the availability of investors with a willingness to take on a large scale projects [sic] and I would, again, can it in this respect, there would have been and remain a very limited demand across all the four dates. … 9.17 In short, based on my market knowledge and experience, I have difficulty in identifying any likely purchasers either of the three dates in 2008 or now. Other than the Damac purchase mentioned above paragraph 9.12, there is no evidence of such purchases. … 9.19 Putting to one side the apparent lack of potential purchaser, any attempt to dispose of the Plantation project would both back in 2008, and now, require a significant period of highly bespoke and aggressive marketing. This would (of course) need to be considered with a suitable budgeted in my view the potential marketing periods to attempt to generate interest would be in the region of the following: June/July 2008 9-15 months marketing …”

. When asked about this in cross-examination, Mr Townsend explained that “in my opinion I would find it very difficult to support the premise that there was a purchaser at that time”.

[268]As for Mr Bradley, the parts of the Joint Statement which are relevant are these:

“4.13 Both experts agreed, notwithstanding, the market conditions that out with Dubai there were examples of large prominent families, developers (public and private) and quasi-sovereigns that have been and continue to acquire large land parcels for development both with or without master-plan in-situ. [Mr Bradley] cited a number of examples in Qatar, predominantly in Lusail, in KSA and also in Egypt. [Mr Townsend] agreed having also been involved in a number of these projects there was continuing involvement in these alternative geographies.” 5.1 As stated in 4.13, both experts agreed that there was still market activity in the large development side of the market and both agreed that there has been continuing transactional evidence in Qatar, Egypt and KSA. [Mr Bradley] opines that this activity potentially means that there would be a market (albeit on the right terms) to consider a potential acquisition of the land in Dubai.”

In his report, however, Mr Bradley did not address the question of whether a purchaser (and so a market) existed as at June/July 2008, although when he was asked about this in cross-examination by Mr Anderson QC he was somewhat reluctant, at least at first, to acknowledge that this was the case. He then went on to pick up on a part of Mr Townsend’s report where he listed certain benchmark-type transactions in Dubai over the relevant period. Mr Bradley explained that he knew about one of those transactions “extremely well” and that it was a “dual transaction, which occurred at that time between a private party in Dubai and Dubailand, and was a cash purchase for the freehold interest of the property”. He went on to suggest that, although he had not dealt with such matters in his report, he had information available to him which suggested that there was a market in June/July 2008. Mr Anderson QC then put to him the various efforts which Mr Bacon made, including with Arbah Capital later in 2008, making the point that no purchaser could be found. Mr Bradley’s response to this was to suggest that the marketing efforts made by Mr Bacon seemed to be “highly limited”.

[269]I found Mr Bradley’s evidence not to be altogether satisfactory. It was argumentative and unnecessarily defensive. In addition and more substantively, whilst I make no criticism of the exercise performed by Mr Bradley, which involved him reviewing and commenting upon a valuation undertaken by Jones Lang LaSalle in August 2008 which resulted in an AED 4 billion valuation of the Plantation site, rather than performing his own valuation, Mr Townsend having agreed in the Joint Statement that “this was an appropriate approach”, the simple fact is that, unlike Mr Townsend, Mr Bradley did not in his report deal with the existence of a market issue in any depth. He plainly did do so to some extent in his discussions with Mr Townsend, as reflected in the Joint Statement which followed those discussions. Even then, however, Mr Bradley did not provide the information which he suggested to Mr Anderson QC during the course of cross-examination he had available to him. I have no hesitation, in the circumstances, in preferring the evidence given on this issue by Mr Townsend. Not only did Mr Townsend address the existence of a market issue head-on in his report, but I bear in mind also that he has very considerable experience of the Dubai property market which dates back to 2001 when he became Resident Partner & Head of Valuation at Cluttons in Dubai and which takes in his subsequent experience, in the period from 2004 to 2008, as Director/Head Valuation & Advisory at CBRE in Dubai (as well as other Dubai-based roles up to the present day). Mr Bradley, on the other hand, as Mr Anderson QC demonstrated during the course of cross-examination, had rather less Dubai-specific experience since his career (including in 2008 when, as he explained in his report, he was “CEO of Knight Frank Middle East, supervising all teams in 18 MENA countries”, as well as at the present time in his role as “CEO at Savills Northern Gulf”) has involved, as he acknowledged, “a very wide ambit”. I consider that, in the circumstances, there is substance in the submission made by Mr Anderson QC that Mr Bradley’s experience lay at something of a remove from the realities of the Dubai market in 2008. Furthermore, it should, in any event, be noted that in the Joint Statement Mr Bradley is recorded as merely saying that, in his opinion, the activity described in paragraph 4.13 “potentially means that there would be a market”. This, in fairness to Mr Bradley, is not entirely unequivocal.

[270]In conclusion on this topic, therefore, even approaching the question of damages by reference to Plantation’s value as at July 2008 without regard to subsequent events, I am not persuaded that Plantation has established an entitlement to damages at the level which has been sought. As Mr Townsend explained and as confirmed by my own review of Plantation’s (and Mr Bacon’s) efforts to secure funding, since there was no market in existence at the relevant time, the valuations prepared by Mr Bradley and Mr Townsend are nothing more than notional. As such, those valuations provide no meaningful support for Plantation’s case.

[271]Nor, for reasons which I have explained at some considerable length, does the alleged Chescor deal provide support for Plantation’s alternative case (at least in opening when it was really Plantation’s primary case) that, since Chescor was willing to pay US$600 million for a 30% stake in Plantation, this indicates that Plantation had a value of approximately US$2 billion. I have rejected the evidence which was given by Mr Bacon (and, indeed, Mr Fitzwilliam) concerning the Chescor deal. It follows that this is not a matter on which Plantation can place any reliance in this or any other context.

Conclusion

[272]It follows, for the reasons which I have explained, that Plantation’s claim succeeds only to the extent that DIB is liable to pay nominal damages to Plantation, and not the very substantial damages which were sought at trial by Plantation.

[273]I will hear submissions after this judgment has been formally handed down as to the actual amount of damages which it is appropriate to award, as well as in relation to costs and consequential matters.

[274]I end by expressing my gratitude to all counsel for their considerable assistance during the course of trial. This was a substantial case which was completed two days ahead of the trial estimate, despite a number of challenges brought about by late disclosure and certain witness availability difficulties. The manner in which counsel and the solicitors who instructed them engaged with each other constructively is to be applauded.

Plantation Holdings (FZ) LLC v Dubai Islamic Bank PJSC [2017] EWHC 520 (Comm)

Introduction

The factual witnesses

Plantation’s witnesses

Arthur Fitzwilliam

Suzanne Sutherland

Nicholas Bacon

Ian Kelly

DIB’s witnesses

Ayman Kamal

Habib Bitar

Mohamed Al Sharif

Ehsan Ilahi

Jody Waugh

Hugh Lyons

The Plantation Project

The RSA

(D) as follows:

Plantation Security that security granted by the Bank by Plantation pursuant to clause 8.2 (Security)

Advances due and payable

on the last Business Day of each calendar month:

Clause 18.3 states:

The Conditional Assignment

Post-RSA investigations by DIB and the FAD: October 2007 to April 2008

Clause 3 itself then is in the following terms:

Financial position of the Project, specifically but not limited to June/July 2008

Roads & Intrastructure Phase 1

Roads & Intrastructure Phase 1

Chescor

Plantation’s case on deliberate breach and the arrests in particular

Flaux J went on:

At the end of the letter, Mr Amiri says this:

Flaux J went on to add this in relation to the certificate:

Accordingly, we now ask you to carry out the following:

The notice which was served on 9 June 2008 and what followed

The letter then went on to say this:

The present proceedings

DIB’s entitlement under clause 18.2 of the RSA

Construction issues

(a) ”

On this basis, Flaux J’s conclusion in paragraph [154] was this:

(h) which is in the following terms:

(c) which is in the following terms:

Law No. 8 of 2007

Applicability to the Project

The word “Unit” is given this meaning:

As he put it a little later, summarising the position:

The position in the period from 28 June 2007 to 28 December 2007

Article 18

The position after 28 December 2007

Breaches 1 to 5

(d) ”

Messrs/ ARTHUR FITZWILLIAM (PLANTATION)

Escrow A/c-Plantations-Arthur Fitzwilliam

Q. Exactly –

Q. But would you think that was a reasonable point of view?

Breach 5 (the insolvency/payment breaches)

(e) of the Insolvency Act 1986, which provides that:

Repudiatory breach

Moore-Bick LJ went on at [23] to say this:

Causation

Lord Scott went on at [37] and [38] to address Lord Bingham’s dissenting view:

Damages

Conclusion

Cited in 5 later judgments