“I note that Males J in his order of 11.12.18 (Judgments bundle tab 58] § 11) directed that in future Mr Haigh must provide independent medical evidence concerning any inability to attend any hearing in person if he wishes to attend by telephone, setting out the details of his medical condition(s) and why he needs to attend by telephone. Having reviewed Mr Haigh’s witness statement dated 6.2.20 and its exhibits, I am not persuaded that he has provided such evidence. However, given the history of this matter, I am willing to take the pragmatic view that (rather than risking Mr Haigh’s non-attendance) he should be permitted to attend by telephone subject to the following provisos: 1 Mr Haigh will be responsible for ensuring that he is available and equipped at 10.30am on Monday 10 February, the time listed for the hearing, to attend the hearing by telephone. 2 Mr Haigh must ensure he has telephone equipment sufficiently powered so as to able him to remain connected for whole duration of the hearing, which is listed for a full day. In practice that may is likely to require the use of a land line rather than relying on a mobile phone, and it is also likely to involve having a back-up phone to hand in case of any failure. 3 If, as it appears has occurred in past, the Court is unable to reach or remain in contact with Mr Haigh by telephone, the hearing will proceed nevertheless. In other words, if Mr Haigh wishes to seek to attend by telephone, he does so at his own risk.”
“CPR 3.4 (2) The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order. …CPR 24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order. …CPR 24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“The court may strike out a statement of case if, amongst other things, it appears that it discloses no reasonable grounds for bringing the claim:CPR 3.4 (2)(a). It may grant reverse summary judgment where it considers that there is no real prospect of the claimant succeeding on the claim or issue and there is no other compelling reason why the case should be disposed of at trial:CPR 24.2 (a)(i) and (b). In order to defeat an application for summary judgment it is only necessary to show that there is a real as opposed to a fanciful prospect of success. Although it is necessary to have a case which is better than merely arguable, a party is not required to show that they will probably succeed at trial. A case may have a real prospect of success even if it is improbable. Furthermore, an application for summary judgment is not appropriate to resolve a complex question of law and fact.”
“161 The characterisation of whether there has been a submission for the purposes of the enforcement of foreign judgments in England depends on English law. The court will not simply consider whether the steps taken abroad would have amounted to a submission in English proceedings. The international context requires a broader approach. Nor does it follow from the fact that a foreign court would have regarded steps taken in the foreign proceedings as a submission that the English court will so regard them. Conversely it does not necessarily follow that because the foreign court would not regard the steps as a submission that they will not be so regarded by an English court as a submission for the purposes of the enforcement of a judgment of the foreign court. The question whether there has been a submission is to be inferred from all the facts.”
“The question is whether there is a prima facie that the particular foreign court was defrauded in the particular case. According to Habib Bank Ltd v Ahmed[2001] EWCA Civ 1270 , [2002] 1 Lloyd’s Rep. 444, an allegation of fraud has eventually to be proved “to a high degree of probability”
“When the Defendant’s bank statements are examined what is shown is a series of interbank transfers made for no apparent reason other than to obfuscate and hide the source from which the original payments came.”
“multiple reports from PWC, forensic accounts Samuels LLP finding use of false invoices in payment of other Claimant staff and multi millions were due to me, and IT expert report of BR Consult and Robert Bradley [sc. Radley] forensics laboratories who I believe to be the leading handwriting expert in the country confirming my signature had been forged multiple times with attempts to cover up those forgeries on transfer forms none of these witness reports were referred to at all in the judgment of Justice Cooke. I cannot say if they were included as I was not served the hearing bundle and I was also in hospital.”
“In a celebrated passage in his judgment in Pemberton v Hughes (a case on the recognition of a foreign divorce decree), Lord Lindley observed: “If a judgment is pronounced by a foreign court over persons within its jurisdiction and in a matter with which it is competent to deal, English courts never investigate the propriety of the proceedings in the foreign court, unless they offend against English views of substantial justice.”
“1. This litigation has a protracted procedural history, the details of which appear in Appendix 1 to this Judgment. The Defendant, who has throughout the proceedings failed to comply with orders of the Court and sought to adjourn hearings, did not appear at the trial, did not give disclosure of documents and did not put in any evidence. As had occurred on previous occasions with interlocutory hearings, he also requested an adjournment of the hearing at the last moment and made an application to do so on the second morning of the trial. He produced no contemporary medical evidence of unfitness to attend despite it being made plain in previous pronouncements of the Court in orders and directions that this would be required for any adjournment to be considered on such grounds. 2. On9 June 2018 the Defendant was, in accordance with the Court’s previously expressed statements, offered the option of appearing in court in person, or if that was not possible because of immigration or other issues, of appearing by video conference call, skype or telephone. He had appeared by telephone in the Court of Appeal hearing last year. He chose not to avail himself of any of these options. 3. Following various exchanges of emails in which the Defendant claimed, contrary to all the evidence, that he had not received various orders made by the Court nor documents from the Claimant and the failure of his last minute email request for an adjournment, the Court, at his request, attempted to contact the Defendant by telephone on the number given by him but received on three occasions, following two rings of the ordinary ringing tone a tone which ordinarily signals that the number is not an accessible number or is otherwise unobtainable. Further emails followed. This was followed by an application for an adjournment made on the proper form (but without paying fees) sent by email with supporting witness statements. That was refused for reasons given separately. The Court had made it plain and has continued to make it plain that the Defendant could participate in the trial by telephone or other means, should he wish to do so. The Court was not however prepared to adjourn the hearing on the basis of unsubstantiated assertions of illness and hospitalisation without proper medical evidence. In consequence the trial took place in his absence with Counsel for the Claimant accepting the responsibility owed to the Court of explaining the points which it would have been open for the Defendant properly to take by way of defence and drawing attention to the points he had previously taken in witness statements and affidavits filed in interlocutory proceedings and in the Defence and Amended Defence and Counterclaim. 4. The Court is entirely satisfied that the Defendant has had full and proper notice of these proceedings, has been served with the Court’s orders and all the trial documents. He has chosen not to appear by any of the means offered and has over the period since the decision of the Court of Appeal following the hearing last year, ignored Court orders and chosen not to produce any evidence which could properly support an application for, or justify, an adjournment of the trial. He has had every opportunity to present his case and has elected not to do so. 5. During the course of these proceedings and in particular in the first 6 months thereof following the grant of a freezing injunction on3 June 2014 , the Defendant was represented by no less than 4 firms of solicitors and two leading counsel, who acted for him in seeking variations of the freezing order. He has instructed accountants and received a report and advice from them. When the English proceedings are taken into account, the total number of lawyers and accountants instructed exceeds those figures. Whilst seeking to enunciate some form of defence in both jurisdictions, no-one has ever come forward with a coherent explanation for the fact that large sums of money found their way into the bank accounts of the Defendant and that false invoices were created with payment instructions which disguised the receipt of those sums by the Defendant. If there was any real defence to the claim, it would have been put long since and the Defendant would be able, with or without lawyers, to put it now. Instead he has embarked on a series of delaying tactics and made extravagant allegations against the Claimant. 6. Notwithstanding constant complaints about unavailability of documentation, the Defendant has, as the evidence shows and his current solicitors in February 2015 stated, access to a computer outside Dubai containing documents upon which he has been able to draw. He has not been slow to put forward documents which are said to support his position and drafts of supposedly agreed contracts. 7. The Court, bearing in mind the seriousness of the allegations made, is satisfied on the evidence that the Defendant is a fraudster who caused to be paid into his own bank accounts and that of his close friend, monies belonging to the Claimant in the sums of£2,039,793.70 , AED8,735,340 and US$50,000 . Moreover, his conduct throughout these proceedings has been entirely consistent with that finding, in seeking to delay matters, in failing to give disclosure and in seeking to manipulate or play fast and loose with the court’s procedures. This course of conduct is evident from previous judgments given by judges of this court and from the procedural history set out in Appendix 1. 8. The Court heard evidence from Mr Jinesh Patel, the former Senior Executive Officer of the Claimant appointed just over a month before the resignation of the Defendant from his position as Deputy Chief Executive Officer on March 14 2014. It also received in evidence affidavits and witness statements, as appears hereafter, and extensively examined the documents, invoices, bank statements and accounting information in the trial bundles. It has borne in mind the statements made by the Defendant and witness statements produced by him for the Court of Appeal hearing even though not put in evidence at the trial. It has taken account of every explanation the Defendant has offered in the course of these proceedings for the fact that so much of the Claimant’s money was transferred to his bank accounts.”
“2. The Court has made every effort to contact you at every stage of this litigation to ensure that you are able to participate in the litigation in which you are a party, taking account of both the evidence about, and your own statements about, effective means of communication with you, in the interests of justice between the parties. 3. You were not locked out of the Registry system as has been made plain to you in protracted correspondence with you. 4. The demands and questions in your letter are misplaced … It is not for the Court to respond to such demands or questions. 5. The DIFC Court is an independent Court with statutory jurisdiction. It cannot secure your attendance at the trial fixed for 1 July and has no powers whether in relation to immigration matters or criminal matters in Dubai or the UAE. 6. You have been given the option of attending the trial in person at the DIFC Court or if you so wish (or if it is not possible/practicable for any reason) of attending by video, skype or telephone, as set out in the Registry email of9 June 2018 . You attended the Court of Appeal by telephone.” iii) A few hours later on28 June 2018 , Mr Haigh emailed GFH and the DIFC Court requesting an adjournment of at least two weeks on the ground that a close friend had just been killed in London in tragic circumstances and Mr Haigh was “certainly now in no emotional or mental state to take part in any trial, even if it were fair and I was allowed in the court room – which this is not. I will be travelling to London tomorrow to assist with required arrangements. Whilst I have every expectation your client and the court will carry on I want to give you the option”. iv) On 30 June/1 July 2018 , Mr Haigh sought an adjournment of 6 weeks, stating: “I have not received a response to my previous letter Further to my letter of last week seeking an adjournment following a deteriorating mental and physical state following tragic death of my fe if and harassment of me by the DUbai state, I am being hospitalised in an emergency basis. I have written notes and asked a friend to email this after putting it in a letter. Application. tomorrow I have also asked them to send a letter from the hospital once recived I will be in hospital for at least 1 to two weeks maybe 1 month. I will know more in Tuesday I will be allowed no access to emails or persons involved in the harassment and torture of me which includes the claimant and Dubai state as before. Full copies of previous medical this court has. I fully anticipate the court to continue whilst I am in hospitals which is a result of the Dubai state and claimants illegal acts. Not least due to my defending the brave Princess Latifa from her murdered of a father. In whose names your Cour and judges act. All this will be bought to English and European courts You are requested to adjourn for 6 weeks. Here is no presumed Prejudice in so doing A fuller letter will be sent by my friend tomorrow. I will have no email access”
“As my treatment does not commence until the new week I have been allowed to keep my phone today for a couple of hours given the distress the court sitting on my case in total violation of the concept of a fair and public hearing has caused I have tried to Call the court on my phone this morning but could not get through, I refer to my previous note that the Dubai state security has banned my number in Dubai and the DIFC courts comedy response stating that the DIFC court hadn’t banned it, implying they know state security has. I note no attempt was made to contact me on any number to dial me into the court…….. As pre the previous hearing. When every attempt is made to contact an involve the Claimant. I note I have been banned from coming to the Court as well unless I wish to risk torture and inhumane an degrading reatment 1. I have not received a response to my email of last night or to my email of June requested an adjournment following the tragic death of my gay friend 2. I am equally surprised (although really I’m not Dubai, the court and Cooke are corrupt) the court has sought to : a. Lock me out the online system so I cannot engage in the court b. Block and ban my phone numbers from calling Dubai c. Prevent me from coming to the court, whilst the court invites me, knowing I would be tortured and possibly murdered. 3. I understood from the latest order of Mr Cooke that GFH had to copy any emails from the Court to me and as such can only presume there has been no response as no emails have been received 4. I have spoken with my Dr and medical team and they have allowed me a short call today at 11 to 1 UK time. I may have up to one hour call in that time provided I am monitored, should I become visibly distressed the call will be terminated. I am on high doses of medication and unable to focus. The court has details of this medication. This is because my treatment will not commence until tomorrow. 5. I wish to understand why I have even prevented from enegeing in the process, including from discusloe 6. I have not been served the court bundles in accordance with last order of cooke. I have advised gfh of this. No response – so even if I were well I could not enege with court 7. As such please there call me without fail during those house. I would propose 12 GMT 8. I wish to cover a. Preventing me from enegeing in Court process b. Preventing me from attending court c. Refusal of court to contact me to dial me into repeated hearing d. Murder / Kidnap of Sheikh Latifa e. Illegal acts of Dubai state hacking my computer and records f. Conflict of Dubai Court g. Case i. I wish to cross examine all witnesses of GFH in court and to bring verbal evidence from myself and all my witnesses 1. Including [followed by a list of 15 named witnesses] There is no other option for the court given its gross impotence at best and at worse shear corruption to adjourn this farcical hearing until I am out of hospital The court is on notice that even engeing in this email is damaging my recory. My partner has an application to adjourn that they are working on, however it may be better that this is made verbally by me.” a. Lock me out the online system so I cannot engage in the court b. Block and ban my phone numbers from calling Dubai c. Prevent me from coming to the court, whilst the court invites me, knowing I would be tortured and possibly murdered. a. Preventing me from enegeing in Court process b. Preventing me from attending court c. Refusal of court to contact me to dial me into repeated hearing d. Murder / Kidnap of Sheikh Latifa e. Illegal acts of Dubai state hacking my computer and records f. Conflict of Dubai Court g. Case vii) At 10.59 on1 July 2018 Mr Haigh sent an email stating inter alia “I have access to my phone for another hour and am waiting the courts call”. viii) At 11.23 on1 July 2018 the court registry emailed Mr Haigh stating that the court had attempted to telephone him three times on the number he had provided, but had been unable to get through, adding: “The phone has rung twice on each occasion, before the Court then heard a tone indicating that the number is unobtainable. Should you wish to participate in this trial, please call the Court on [number stated]. Should you wish to make an application to adjourn the trial, please file this at once, supported by evidence.” ix) Mr Haigh replied that his phone was working perfectly well and he had tested it three times. He added “It is noted that you waited until the end of my period to say this and only after I had reminded you. I will ask the dr for a further period later today or tomorrow morning before treatment commences.” x) The court registry at 12.29 on1 July 2018 indicated that the court was continuing with the hearing and repeated the number Mr Haigh should call. The email added “Should you wish to make an application to adjourn the trial, please file this at once, supported by evidence. The Court will not be ringing you again.” xi) At 1.05am on2 July 2018 four emails were sent on Mr Haigh’s behalf, which included the following message: “This email is sent on behalf of David Haigh by way of service on the Claimant and the Court. Please acknowledge safe receipt I understand that David indicated this would come today. Please find attached: 1. Application notice 2. Witness statement David Haigh and DH 20 3. Witness statement Herve Jaubert 4. Draft Order David will be allowed to speak with the court from 11 GMT till 12 GMT tomorrow Monday and only that time by his medical team. David has asked me to inform the court that all of his numbers are working. We have video of these numbers working. We have equally videoed Davids number calling the court and been unable to connect. This was set out by David on various occasions and it is noted that the DIF Court has not confirmed the the Dubai site has not blocked such numbers. The same is the case for the published number of Radha Stirling. Both David and Radha are working against the UAE and the Dubai Ruler for their torture and kidnap of HRH Sheikh Latifa - who has publicly accused Sheikh Mohamed of murder. The UAE and Dubai state have commenced a campaign of intimidation against Radha and David. Further David has indicated that even if he could connect to the court, he does not have the funds to pay for an intentional call of any length and it is unreasonable and unjust to expect him to do so given the lack of fund is the actions of the court and the Claimant. David will have no access to email or his phone at any other time. David reiterates that he wishes to attend court in person when he is released from hospital and renege fully in the court process David has sent these in hard copy as he has previously been locked out of the online system and despite reputed rests and email for the registry saying they have done so he has not removed a new password.”
“1.This Court has received overnight and early this morning about 4 emails coming from Mr. Haigh’s email address at dhaighlegal@gmail.com. Those emails all have the sender as a Mr. L Lopez. The first of such email timed at 5:25am this morning, the beginning of words “this message bounced back so sending in four emails“. The email was said to be sent on behalf of Mr Haigh quote by way of service on the Claimant and the Court, and attached the application notice and a draft order. It also says that Mr. Haigh would be allowed to speak to the Court on 11 GMT until 12 GMT on Monday, that is today. 2.A second email said to be two of four came in exactly the same terms as the first other than that numbering, also sent at 5:28 am containing Mr. Haigh’s witness statement and an exhibit to it which is a redacted letter dated the 4 of April 2018 of a Dr Muller- Pollard. The Witness statement was dated the 30 of June 2018 and throughout to some 49 pages and is apparently signed by Mr. Haigh. 3.The third email of 5:29am in identical terms save it was said to be 3/3 was accompanied by a witness statement of a Mr. Herve Jaubert also dated 30th of June 2018 signed by him. 4.A fourth email timed at 5:52am refers to an early email sent to the Registry in relation to the application to adjourn and asserted that DIFC Courts had been by calling Mr Haigh’s number and vice versa. 5.All of this has to be seen in the context of the prior history of this matter. In particular, following the production of a draft amended defence of the counterclaim which is the subject of this Court’s consideration in some time ago, the Defendant, Mr. Haigh, has failed to engage with the Court in any way until the 28 of June, the last business for a date fixed for trial of which Mr Haigh was well aware, and Mr. Haigh had chosen to claim no task In the proceedings in terms of providing disclosure, in terms of providing any witness statements, of submitting hearsay notices or doing anything to indicate that he would participate in the trial process. 6.The reality of the matter is, as submitted by Mr Bodnar, is that Mr Haigh only engages with proceedings when he wishes to do so and as the matter of almost invariable practice seeks adjournments of hearings rather interlocutory hearing or other hearings at the last moment. 7.There is only one conceivable basis on which this Court could consider and grant an adjournment of the hearing which has now been proceeding for a day in this Court and that would be on the basis of genuine medical unfitness to attend the hearing. 8.The Court has gone out of its way in the past to seek to pursue the attendance of Mr. Haigh at this hearing whether in any way which he chose, he could come personally to this Court if he were able to do so, though this Court has no control of the immigration processes of Dubai or the UAE. 9.Bearing that in mind, the Court was willing to facilitate attendance by Mr. Haigh by Video Conference, by Skype or by telephone. It is noteworthy that Mr. Haigh did attend the Court of Appeal hearing last year by telephone and was able to participate in the hearing in that way and to make such submissions as he wished to make, despite protestations to the country in the latest witness statement that had just been received from him.”
“I agree that the stolen moneys are traceable in equity. But the proprietary interest which equity is enforcing in such circumstances arises under a constructive, not a resulting, trust. Although it is difficult to find clear authority for the proposition, when property is obtained by fraud equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity. Thus, an infant who has obtained property by fraud is bound in equity to restore it: Stocks v. Wilson [1913] 2 K.B. 235, 244; R. Leslie Ltd. v. Sheill [1914] 3 K.B. 607. Moneys stolen from a bank account can be traced in equity: Bankers D Trust Co. v. Shapiro [1980] 1 W.L.R. 1274, 1282CE: see also McCormick v. Grogan (1869) L.R. 4 H.L. 82, 97.”
“… a plaintiff who brings an action like the present must show that the defendant is in receipt of property which belongs beneficially to him or its traceable proceeds, but he need not show that the defendant has been enriched by its receipt. He may, for example, have paid full value for the property, but he is still required to disgorge it if he received it with notice of the plaintiff's interest. … An action like the present is subject to the bona fide purchaser for value defence, which operates to clear the defendant's title.” 148. Foskett was: “… a straightforward case of a trustee who wrongfully misappropriated trust money, mixed it with his own, and used it to pay for an asset for the benefit of his children. Even on the traditional approach, the equitable tracing rules are available to the plaintiffs.”
“29. It can be seen that Sir Robert Megarry's test: “having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two” embraces two concepts. The first is concerned with the interest which the subsequent litigant …has in the subject matter of the first action. In Gleeson, Wippell was very interested, in one sense, in the subject matter of the action against Denne, as its design of shirt was impugned in that action. But that was not a sufficient interest in circumstances where there was what Sir Robert Megarry described as “a trade relationship between the two, in the course of which Denne, at Wippell's request, copied a Wippell shirt: but that is all”
“A party against whom a previous decision was pronounced may employ a servant or engage a third party to do something which infringes the right established in the earlier litigation and so raise the whole matter again in his interest. Then, if the other party to the earlier litigation brings an action against the servant or agent, the real defendant could be said to be the employer, who alone has the real interest, and it might well be thought unjust if he could vex his opponent by relitigating the original question by means of the device of putting forward his servant.” 30. In this example the new party has no interest in the previous litigation, but would be estopped because, in effect, he represents the party in the first action. That party has the identical interest in the previous action. In Gleeson, there was no identity of parties in this sense. 31. It is not necessary for the purposes of this appeal to seek to define precisely what interest in the subject matter of the previous litigation is required. The sort of interest dismissed by Sir Robert Megarry in Gleeson in his first principle is clearly inadequate. ... At one level Arrow and Resolution had the same legal interest in the revocation of the Patent, but that was a legal interest which they shared with all the world. If Resolution is to be bound, it must I think be possible to identify some more concrete consequence for its business which revocation of the Patent would have achieved. Unless that is so, although it can be said that Resolution could have joined the 2005 proceedings, there is no reason to hold that they should. 32. Drawing this together, in my judgment a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation.” “A party against whom a previous decision was pronounced may employ a servant or engage a third party to do something which infringes the right established in the earlier litigation and so raise the whole matter again in his interest. Then, if the other party to the earlier litigation brings an action against the servant or agent, the real defendant could be said to be the employer, who alone has the real interest, and it might well be thought unjust if he could vex his opponent by relitigating the original question by means of the device of putting forward his servant.”
“… WWH was the corporate embodiment of Mr Johnson. He made decisions and gave instructions on its behalf. If he had wished to include his personal claim in the company's action, or to issue proceedings in tandem with those of the company, he had power to do so....”
“… the First Defendant denies that the Second to Sixth Defendants are vehicle interposed to conceal the fact that he was “the true actor in the purchase of the various properties within The Cove Cornwall”