“… every Defendant has told the Court they were innocent, while at the same time seeking to avoid giving a full account of their actions, distancing themselves from the affairs of NMC Plc, and blaming others, including other Defendants. Between them, the Objecting Defendants seek to challenge nearly every aspect of the relief sought on the Applications and to contest, even at this interlocutory stage, almost every issue arising on the merits of the claims advanced. The Defendants intend to advance defences that they were not aware of the fraud, much less actually involved in it. It is a classic instance of multiple Defendants running cut-throat defences in a commercial context.”
“The express terms of the Practice Direction set out only part of what a claimant relying upon the necessary or proper party gateway must show. It is common ground that, by reference to those terms and well-settled authority, the claimant must demonstrate as follows: (i) that the claims against the anchor defendant involve a real issue to be tried; (ii) if so, that it is reasonable for the court to try that issue; (iii) that the foreign defendant is a necessary or proper party to the claims against the anchor defendant; (iv) that the claims against the foreign defendant have a real prospect of success; (v) that, either, England is the proper place in which to bring the combined claims or that there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place, or the convenient or natural forum.”
“Where, as will often be the case where permission for service out of the jurisdiction is sought, there are particulars of claim, the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the cause of action asserted has a real prospect of success. Any particulars of claim or witness statement setting out details of the claim will be supported by a statement of truth. Save in cases where allegations of fact are demonstrably untrue or unsupportable, it is generally not appropriate for a defendant to dispute the facts alleged through evidence of its own. Doing so may well just show that there is a triable issue." Critically, as Lord Hamblen observed, a failure to focus on this relatively narrow issue will lead to a court being: “… drawn into an evaluation of the weight of the evidence and the exercise of a judgment based on that evidence. That is not its task at this interlocutory stage. The factual averments made in support of the claim should be accepted unless, exceptionally, they are demonstrably untrue or unsupportable.”
“… the following facts and matters: 48.1 [The first defendant’s] role as particularised in paragraph 5 above. 48.2 The relationship context between the NMC Group and ADCB as particularised in paragraphs 12 to 14 above. 48.3 The (i) Directors' Report and (ii) the Directors' Statements in NMC plc's Annual Report and Accounts for the financial year (a) 2015, dated13 March 2016 ; (b) 2016, dated7 March 2017 ; (c) 2017, dated6 March 2018 ; and (d) 2018, dated6 March 2019 , in circumstances where [the first defendant] knew and intended, for the reasons given in paragraph 14 above, that those statements would be read and relied on by ADCB.”
“52. ADCB's entry into each of the Core Facilities was the product of a number of factors that included: (i) satisfactory account conduct, including the provision of compliance certificates, satisfaction of financial covenants, and repayment of past obligation; (ii) the integrity and accuracy of NMC plc's audited financial statements; (iii) Ernst & Young LLP's position as auditor of NMC plc's financial statements; (iv) NMC plc status as a listed UK entity subject to a high degree of public disclosure and regulatory reporting requirements; and, in those premises, (v) the Defendants' Representations insofar as they had been made at the date of entry into the respective Core Facilities. 53. Especially in circumstances where financial statements were issued periodically, the Defendants' Representations above were intended to and did create a cumulative impression of honesty and reliability in respect of the NMC plc Accounts.”
“The nature of the tort claims that arise under English law and UAE law from the Defendants' conduct are similar. Schedule 2 hereto sets out the principles of UAE law on which ADCB relies in the alternative to English law. By the case pleaded herein, ADCB has met the requisite elements under either English law or UAE law, and ADCB is entitled to claim the loss and damage as pleaded herein.” [Emphasis supplied]
“Leroux v. Brown (1852) 12 C.B. 801, which decides that the statute [of Frauds] applies to contracts of whatever provenance sued upon in the English courts, has been much criticised, so far as the reasoning depended upon classifying the statute as a matter of procedure (and hence for the lex fori) rather than substance. I am bound to say, however, that it would take a good deal to persuade me that this court should now hold it to be wrongly decided. On the contrary, the reasoning on the interpretation of the statute seems to me (as it seemed to Saville J.) unassailable. The statute has twice been amended, since Leroux v. Brown was decided, at times when the criticisms of that decision were current. Yet the opportunity was not taken to confine it to domestic contracts.”
“Action not maintainable on representation of character etc., unless they be in writing signed by the party chargeable No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other persons may obtain money or goods upon credit unless such representation or assurance be made in writing, signed by the party to be charged therewith. ”
“The mischief which that section was designed to address was that, at the time the Act was passed, potential claimants were seeking to bring actions for misrepresentation against defendants who had made casual statements about other people’s financial standing or probity in conversation or otherwise orally, whether in City coffee houses or elsewhere.”
“the section remains the law, so that where it is applicable, it must be applied, even if that might seem an injustice in a modern context.”
“The unlawful means pursuant to the combination or agreement above included (1) the Defendants' breaches of fiduciary duty in Section E below; and (2) the Defendants' deceits in Sections F to N below.”
“TORTS/DELICTS Article 4 General rule 1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“… there are reasons to suppose that the Defendants were all habitually resident in the UAE (as was the Bank) at the date of the wrongdoing”
“As far as I am aware, until early 2020, all of the six Defendants were based in, and worked from Abu Dhabi in the UAE. I understand that the two Defendants of Emirati nationality, namely Khaleefa Butti and Saeed Butti, are ordinarily resident in the UAE. However, as I explained above, ADCB's inquiries have revealed that Khaleefa Butti and Saeed Butti each departed the UAE for India in early 2020 and we do not know if they have returned. 229. I have explained that the Indian Defendants left the UAE for India in January and February 2020. I believe that BR Shetty is still located in India, I am unaware of the current whereabouts of the other three Defendants who travelled to India.”
“ … relevant matters include: where the alleged wrongdoing “was planned, orchestrated and implemented” which, as Flaux J put it in Fortress Value at [74], may involve focusing on the country in which “the ‘puppet masters’ pulling the strings” carried out the relevant alleged acts, even if other entities carried out other alleged acts in one or more other countries; the places of domicile of the parties …; the location of the “damage arising from the tort, whether direct or indirect” … ; the location of assets which are “at the heart of” the alleged wrongdoing, even if this is not the place where the direct damage occurred for the purposes of Article 4(1) …; and, as expressly stated in Article 4(3) itself the “pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question”, in contradistinction to “mechanisms by which the allegedly dishonest scheme was implemented” ….”
“The rationale for applying English law by default … depends upon neither party choosing to advance a case that foreign law is applicable. If either party pleads that under the relevant rules of English private international law foreign law is applicable to an obligation, and that case is well founded, it is the duty of the court to apply foreign law. To apply English domestic law in that situation would ex hypothesi be unlawful. In accordance with general principle, the burden is on the party who is making or defending a claim, as the case may be, to prove that it has a legally valid claim or defence. Where the law applicable to the claim or defence is a foreign system of law, this will require the party to show that it has a good claim or defence under that law … I cannot accept that it is consistent with legal principle, however, to apply English law by default if the party who has the burden of proving that it has a good claim or defence under foreign law fails to do so. An English judge does not in that event still have to adjudicate - if by that is meant decide the case by applying a system of law (English law) which has been shown not to be applicable. Rather, the ordinary consequence must follow that, if a party fails to prove its claim or defence, the claim is dismissed or the defence rejected. Where it is asserted and established that the applicable law is a foreign system of law, there is simply no scope for applying English law in its own right.” [Emphasis supplied]
“… where the harm is caused by a consequential act, one of two conditions must be satisfied being that: (a) There has been an infringement or a deliberate act; or (b) The act leads to the damage or harm. 14. The application of these principles was considered in numerous rulings of the Courts of Cassation (or equivalent) of all Emirates in a similar manner. I will be relying on authorities issued by the Dubai Court of Cassation as these are more conveniently accessible through the Dubai Courts’ online portal. The meaning of what constitutes an infringement or deliberate act was considered by the Dubai Court of Cassation in Cassation Appeal No. 302/2003 Rights (Exhibit 3). The court explained that: (a) An infringement is where the perpetrator carries out an act that he/she is not entitled to carry out; (b) Being deliberate is about deliberately wanting to cause the harm not being deliberate in the act itself; (c) The act leading to harm means that the nature of the act is one that normally causes harm. These acts are those which inherently or by their nature cause harm such as starting a fire or firing a gun towards a person. 15. The cited Court of Cassation ruling indicates that the meaning of infringement can encompass any matter that a person is not entitled to carry out. These would include for example breaches of laws, company policies, or in some circumstances what is customary. This will certainly include breaches of UAE Law. There is no clear answer as to whether a breach of a foreign law would also qualify as an infringement.”
“The Defendants used NMC plc's financial statements and associated representations to deceive ADCB into providing credit facilities.”
“The Bank relied upon the relevant false representations and was induced by them to enter into, and/or renew the Core Facilities extended to NMC Healthcare. Had the true position been known, the Bank would not have entered into or continued those Core Facilities, on the same terms or at all.”
“ADCB’s lending decisions were therefore reliant on the provision of accurate financial and business operations material from the customer because we relied on this data in preparing the memorandum that is ultimately passed up the chain and on which lending decisions are made. The above steps were generally applied in relation to the decisions to lend monies under the Core Facilities to the NMC Group.”
“… is a single paragraph in a witness statement, or any document, which establishes that one or more relevant employees/agents of ADCB were aware that the Representations had been made or had them in mind at the time that the various Core Facilities were entered into or renewed. Indeed, ADCB has not even pleaded a case to that effect, nor does it seek to do so as part of its proposed amendments.”
“I am instructed to address the question of whether UAE Law recognises conspiracy as a cause of action. The answer is that in the context of civil liability this concept does not exist in UAE Law. When faced with a claim that involves allegations of a conspiracy by a number of persons the UAE Courts will assess the individual/joint acts of each of the defendants under the general principles explained above with a view to reaching a conclusion as to whether all or some of the defendants should be held liable and in which proportions. 53. Therefore whilst there is no legal principle classifying concerted action as a conspiracy, UAE law has another principle under which such acts would be subject to legal scrutiny and an assessment of liability for each defendant.”
“(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.” (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
“52.1 NMC Health plc was incorporated on20 July 2011 . For every year from 2012 until 2018 (the last full year for which accounts are available), NMC Health plc’s annual reports and accounts appear to have been published on the group website at www.nmc.ae . This website has a UAE domain. Whilst at present, only the 2016 annual report appears on the website, all of the annual reports state on their face that they can be viewed on the group website. For the years 2012 and 2013, this is referred to as www.nmc.ae. For the years 2014 to 2018, the annual reports give the web address www.nmchealth.com. When this latter address is typed into a browser, it redirects to www.nmc.ae, and so appears to be the same website, hosted on a UAE domain. 52.2. NMC Health plc’s annual reports and accounts are also available on Companies House. However, it appears that the annual reports for the years relevant to ADCB’s claim (i.e. 2015, 2016, 2017 and 2018) were only published on the website of Companies House some time after their original publication … 54. The publication of NMC Health plc’s annual reports on its website in the UAE is consistent with the fact that there appears to be no English website for the company. The only NMC website identified by my colleague from a Google search was www.nmc.ae, which states that “NMC Healthcare is the largest private healthcare company in the UAE”
“The gateways alone do not confer jurisdiction and the discretionary test must be satisfied before permission to serve out of the jurisdiction will be given. (SeeCPR r 6.37 (3) set out at para 30 above.) Provided that the discretionary test correctly applied, there should, therefore, be no danger that the wider reading of damage … would permit foreign defendants to be brought before the English courts in cases where there is no substantial connection between the wrongdoing and the jurisdiction. In this regard the domestic system is markedly different from the Brussels regime which does not possess such a safety valve. As a result, there is no need to adopt an unnaturally restrictive reading of the domestic gateways.”
“The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England. Where a claim passes through a qualifying gateway, there remains a burden on the claimant to persuade the court that England and Wales is the proper place in which to bring the claim. Unless that is established, permission to serve out of the jurisdiction will be refused (CPR r 6.37 (3)). In addition and this is a point to which I attach particular importance - the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.”
“The courts will be astute in ascertaining whether the dispute has its closest connection with this jurisdiction and the principle of forum non conveniens will provide a robust and effective mechanism for ensuring that claims which do not have their closest connection with this jurisdiction will not be accepted here.”
“The necessary or proper party head of jurisdiction is anomalous, in that, by contrast with the other heads, it is not founded upon any territorial connection between the claim, the subject matter of the relevant action and the jurisdiction of the English court …”
“… to submit to the jurisdiction of the onshore civil courts of Abu Dhabi for the purpose of determining ADCB’s claim as presently advanced in these proceedings against me. For the avoidance of doubt, I do so without prejudice to my right to raise any defence that may be available to such claim, without any admission of any wrongdoing and without prejudice to my right to defend fully any civil claim as well as any criminal or regulatory allegations advanced in Abu Dhabi or elsewhere.” ii) the second and third defendants have offered undertakings: “ … voluntarily and irrevocably to submit to the jurisdiction of the onshore civil courts in Abu Dhabi in respect of the Claimant’s claim as presently advanced in these proceedings (in the event that such claim is commenced in the said courts), but for the avoidance of doubt without prejudice to their right to raise any defence that may be available to such claim, without any admission of any wrongdoing and without prejudice to their right to defend fully any civil claim as well as any criminal or regulatory allegations advanced in Abu Dhabi or elsewhere.” and iii) the fourth defendant has offered an undertaking: “… not to challenge the jurisdiction of the onshore civil courts of Abu Dhabi or the offshore Abu Dhabi Global Markets courts for the purpose of determining ADCB’s claim as presently advanced in these proceedings against me in the event that (i) these proceedings are stayed or dismissed following judgment on my application heard by the Commercial Court between 29 November and2 December 2021 and (ii) consequently ADCB commences that claim in either of those Courts. I give this undertaking without any admission of any allegations made, without prejudice to my right to raise any defence that may be available to that claim, and without prejudice to my right to defend fully any civil, criminal or regulatory allegations advanced in Abu Dhabi or elsewhere.”
“We know that there is a spectrum of systems of discovery applicable in various jurisdictions, ranging from the limited discovery available in civil law countries on the continent of Europe to the very generous pre-trial oral discovery procedure applicable in the United States of America. Our procedure lies somewhere in the middle of this spectrum. No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas.”
“The Syndicated and the Club Facility Agreements (i) were each governed by English law and provided for English dispute resolution; (ii) involved a syndicate of banks from England and the UAE; (iii) came into effect in England at Linklaters’ offices; (iv) made NMC plc a party to the lending documentation as well as a guarantor; (v) stipulated financial covenants (concerning NMC plc’s ratio of EBITDA to its interest expense and to its total debt) which applied to NMC plc not the borrower NMC Healthcare; and (vi) imposed ongoing “Information Undertakings” on NMC Healthcare to provide the consolidated financial statements and management accounts from time to time of “the Company” (NMC plc) along with quarterly Compliance Certificates signed by two authorised signatories of NMC plc confirming ongoing compliance with the facility’s financial covenants. The Sukuk was issued on the LSE, and its Offering Circular is based on NMC plc’s audited and interim financial information and statements. The nature and quantum of these financing transactions depended on NMC Plc's presence in London as a stock market darling.”
“All judicial systems are more or less imperfect, because they represent a compromise between competing objectives. It is certainly not possible to say that the absence of extensive facilities for disclosure of documents and discovery makes substantial justice unobtainable, even in cases which are evidentially complex or arise out of commercial fraud”