Gama Aviation FZC v Bin Otaiba Investment Group [2026] EWHC 258 (Comm)

[2026] EWHC 258 (Comm)Case No LM-2024-000049
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 24/02/2026
Before
ROSALIND PHELPS KCSITTING AS A DEPUTY HIGH COURT JUDGE
Between
GAMA AVIATION FZCClaimantBIN OTAIBA INVESTMENT GROUPDefendant
George Woods (instructed by Stevens & Bolton LLP) for Claimant for The Defendant did not appear and was not representedHearing Hearing dates: 19 and 20 January 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 24 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

ROSALIND PHELPS KC SITTING AS A DEPUTY HIGH COURT JUDGE

[1]This is a claim for sums due under an aircraft management agreement dated 15 October 2020 (‘the Agreement’) between the Claimant, Gama Aviation FZC (‘GAF’) and the Defendant, Bin Otaiba Investment Group (‘BOIG’).[2]GAF was engaged by BOIG to provide aircraft management services in respect of a Bombardier Global 5000 Aircraft MSN 9156 (‘the Aircraft’). The services included arranging for a number of scheduled maintenance inspections which were carried out from early 2021 by GAF’s sister company Gama Aviation (Engineering) Limited (‘GAEL’) at Bournemouth Airport. There were disputes concerning the payment of invoices. By August 2022 work on the Aircraft had been suspended and it was placed into parking at Bournemouth Airport, where it remains. GAF claims a total of around US$3.9 million in unpaid fees, rechargeable costs, alternatively damages in equivalent amount, together with contractual interest of around US$1.7 million as at 15 December 2025. It also seeks declarations that it is entitled to, and has exercised, a contractual lien over the Aircraft including the right to sell it in the event that any sums due are not paid.[3]BOIG, which is a company registered in the United Arab Emirates, did not appear and was not represented at the trial. I decided to proceed in its absence for the reasons below.[4]The relevant principles are set out in CPR 39.3, which provide that the court may proceed with a trial in the absence of a party. The court’s discretion in this regard is guided by the principles set out by the Court of Appeal in R v Jones [2001] EWCA Crim. 168:(1) A defendant has, in general, a right to be present at his trial and a right to be legally represented.(2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.(3) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.(4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.(5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.(6) If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits…”[5]R v Jones was a criminal case but these principles have been applied in civil cases such as Banca Nazionale del Lavoro SpA v Catanzaro [2023] EWHC 3309 (Comm) (Cockerill J) and Dexia S.A. v Comune di Torino [2025] EWHC 1903 (Comm) (Butcher J).[6]I was also referred to the decision of Gross LJ in Williams v Hinton [2012] C.P. Rep 3, for whom the key issue was whether the non-attending party was aware of the hearing and had chosen, without any or proper explanation, not to attend.

B.1 Purported Termination of the Agreement

[7]In the present case the following history is relevant: i) The proceedings appear to have been validly served on BOIG on its agent for service within the jurisdiction. ii) Until around the autumn of 2025 BOIG fully participated in these proceedings. BOIG was legally represented by, first, Watson Farley & Williams LLP, who signed the Defence and appear to have acted until around the end of October 2024, including at the CCMC on 4 October 2024, when the case was set down for trial. From November 2024 onwards BOIG appears to have represented itself, with GAF’s solicitors corresponding with BOIG at a number of email addresses. iii) M&M Solicitors filed a notice of Acting at Court on 21 April 2025 and conducted the litigation until 15 August 2025 when GAF’s solicitors received an email from the Legal Department of BOIG (email address ac.legal@binotaiba.com) indicating that BOIG was now acting for itself again. iv) The inter partes correspondence in the trial bundle thereafter shows both GAF’s solicitors and the Court liaising with BOIG, and BOIG responding via that email address. For example, on 9 December 2025 BOIG rejected GAF’s proposal regarding transcribers for the trial (that proposal being contained in a letter of 5 December which expressly referred to the start date of the trial). GAF’s solicitors also by the same method sent (or provided access to) the relevant documents for trial, including the trial bundles and the GAF’s opening submissions. v) On 5 January 2026 GAF’s solicitors sent an application notice and attachments to the ac.legal email address. This prompted an unsigned response from that address to the effect that the email address would not be monitored from 5 January 2026 onwards and “please direct all of your future emails and correspondence to those who are in copy herein”. In the ‘cc’ field were six email addresses. Some of these were in the @binotaiba.com format, while the others appeared also on their face to be linked to BOIG. vi) By an email dated 12 January 2026 to the @ac.legal email address, the Court asked BOIG whether it intended to serve a written opening in accordance with the case management directions. That email was forwarded by GAF’s solicitors to the six BOIG email addresses indicated in the 5 January email. No response was received. vii) Since then, correspondence with the Court has been copied or forwarded to those email addresses. By an email dated 16 January 2026, GAF’s solicitors asked BOIG to confirm if it intended to appear at the hearing commencing on 19 January 2026. No response was received.[8]I am therefore confident that BOIG was fully aware of the fact that the trial was to commence on 19 January 2026 and has been kept abreast of all of the relevant developments including access to the trial bundle, and receiving GAF’s opening submissions.[9]I was not asked to strike out the Defence and/or the Counterclaim and therefore the only issue was whether to proceed in the Defendant’s absence. I bear in mind that it is only in rare and exceptional cases that a trial should take place in the absence of a defendant, especially where that party is unrepresented. However it is clear from the summary above that BOIG, which has in the past been legally represented by two different firms, has deliberately and voluntarily absented itself from the present hearing and has therefore waived its right to appear at the trial. No adjournment has been requested, despite the fact that BOIG corresponded with GAF’s solicitors as recently as 5 January 2026 and there is no reason to think that an adjournment would ultimately result in BOIG’s attendance. GAF prepared itself for trial and was ready to proceed and I also take account of the disruption and wasted effort and expense which would have been caused to it and the Court by a postponement. I was therefore satisfied that the right course was to proceed with the trial.[10]The trial was conducted in a similar manner to that described in ANMS Middle East FZE v LIQS PTE Ltd [2025] EWHC 150 (Comm) [34] – [36], namely: i) GAF was required to prove its case on the balance of probabilities and in the absence of BOIG, GAF had a duty of fair presentation in accordance with well-known principles. ii) GAF opened the case and called its witnesses who were asked a number of questions by its counsel and also by the court. However, it is relevant to note the observations of Foxton J in Nitron Group BV (In liquidation) v Barington Alliance LLP [2020] EWHC 1244 (Comm) at [13] that(i) if the Defendant chooses not to participate in the trial it is not for the Court to conduct a cross-examination of the Claimant’s witnesses by reference to the contemporaneous documents; and(ii) in the absence of manifest problems with the evidence, the court’s role is confined to deciding whether the evidence is sufficient to make out the Claimant’s case. iii) Although BOIG had served evidence from three witnesses of fact, those witnesses were not called to give oral evidence and no application was made to adduce their statements as hearsay. The operation of CPR 32.5(1) therefore precluded any reliance on their evidence, and I did not take it into account.[11]My factual findings below are therefore based on the documents in the trial bundle, and the evidence of the Claimant’s witnesses, namely: i) Mr Marwan Khalek, the founder of the Gama group of companies and CEO of Gama Aviation Plc, who testified to events surrounding the alleged termination of the Agreement in 2022, and the liability of GAF in respect of third party invoices in respect of the Aircraft; ii) Mr Matthew Birch, at the material time an account manager for GAF based in Sharjah. His primary responsibility was reporting to BOIG on management and maintenance activity. He gave evidence as to his communications with BOIG’s representatives, invoicing and reporting, and the alleged termination of the Agreement; and iii) Mr Daniel Colbourne, the engineering lead for GAEL in respect of the Aircraft, based at Bournemouth Airport. He gave evidence as to the maintenance work on the Aircraft, the emergent defects, the invoicing and reporting carried out by GAEL and GAF, and the current financial and physical position as regards the Aircraft.[12]Each side had permission for expert evidence in the field of aircraft maintenance and management, and served a report. GAF’s expert, Mr Mark Abbott was called to give evidence and answered questions from the court. BOIG’s expert (Mr Mark Winzar) was not called and his evidence was therefore not tested in cross-examination. His report was also unsatisfactory in that it did not properly set out the substance of all facts and instruction material to his opinions, or give details of any material relied on in making the report (as required by 35PD para 3.2(2) and (3)). In those circumstances I gave his report negligible weight. Factual Background July 2020 - May 2021

Factual Background

[13]The Aircraft was purchased by BOIG in the USA in around mid-2020. A company called Flyer Tech, part of the Gama Aviation group of companies, performed a visual inspection of the Aircraft and its records in Florida in July 2020. The Aircraft was found to be in good condition, although the Aircraft was not at that stage subject to a more detailed ‘pre-purchase inspection’ which would have been a more thorough assessment of its condition. The Flyer Tech report noted that the 15 month, 30 month and 60 month scheduled inspections were each due by either December 2020 or January 2021.[14]The Aircraft was flown to Sharjah airport, arriving on 9 September 2020. The Agreement was signed on 12 October 2020 by His Excellency Khalaf Ahmed Al Otaiba (‘Mr Khalaf’), the Chairman of BOIG, and by Ms Janine Tombs, a managing director of GAF.[15]Mr Matthew Birch of GAF was allocated as the Account Manager for BOIG. He dealt with a Mr Wilfred Suarez, an accountant with BOIG, whom Mr Birch described as being the only person from BOIG who was available to report to. Mr Suarez did not have any technical knowledge concerning aircraft maintenance and engineering. The documents in the trial bundle showed delays in obtaining approvals and decisions from BOIG from the very start of the relationship, including in obtaining activation of various subscriptions which were a necessary pre-requisite to the Aircraft being ready to fly (Mr Birch’s email of 27 October 2020).[16]On 16 November 2020, Mr Birch sent an email to Mr Suarez attaching the first of a series of invoices and statements of account together with a table of costs incurred in October 2020, a total of US$29,114.[17]At this stage, although GAF had been appointed to manage the Aircraft, arrangements had not yet been put in place to carry out the substantial scheduled maintenance due on the Aircraft. On 29 November 2020 Mr Birch sent an email to BOIG attaching a summary of proposals received from three authorised facilities to carry out that work. Of the three, Mr Birch recommended proceeding with GAEL in Bournemouth, whose quoted figure was the lowest by some margin. The covering email summarised the GAEL quotation which was for £98,222.75 or US$130,914, covering (principally) the labour involved in carrying out the three scheduled inspections and a small additional sum for parts. As appeared from its face, this quotation did not cover any parts cost arising from the 60 month check, any parts costs associated with ‘AD/SB’s (i.e. airworthiness directives or service bulletins), nor any ‘emergent work’. In relation to this last point the email also stated as follows: Due to the nature of this check, we are expecting to see a minimum of 600-800 hours of emergent work. As a goodwill gesture for a new aircraft in the group, we have further reduced our emergent labour rate by 7.5%, from 100 GBP per hour, to 92.5 GBP per hour. We expect this to reflect a saving of around GBP 4.5k. This labour rate is the most competitive of the three options and will offer substantial cost savings compared to the others.[18]The email also noted that no parking charges in Bournemouth would be applicable ‘for the duration’, i.e. of the maintenance.[19]BOIG accepted the proposal that GAEL carry out the maintenance by an email from Mr Suarez on 26 December 2020. GAEL were therefore appointed by GAF to carry out the maintenance work, in particular by a proposal (version 5) which was signed by a Mr Mark Durcan on behalf of GAEL and Ms Tombs on behalf of GAF and on 23 and 25 March 2021 respectively. This proposal quoted £129,345.44. This included an increase of around £30,000 from the original quotation referred to above which was accounted for principally by an increase in sums for ‘AD/SBs’, ‘additional tasks’ and out of phase items. The GAEL costs which GAF sought to recharge to BOIG form a major part of the unpaid invoices. By an email dated 18 March 2021, Mr Birch offered Mr Suarez a Teams call to go through GAF’s invoicing process, although it was not clear from the evidence whether that offer was taken up.[20]The Aircraft was subsequently re-registered in the Isle of Man and flown to Bournemouth Airport at round the end of March 2021. The first invoice for maintenance (GME13663) was sent by Mr Birch to Mr Suarez on 27 March 2021; this was for a sum of US$178,238 which was essentially the advance payment for the scheduled checks which had been quoted at £129,345.44 by GAEL in v5 of its proposal.[21]On 11 April 2021 Mr Birch sent Mr Suarez a project status report and ‘current status report of emergent work’ with the comment “note these are estimated costs and not actuals as this is not an invoice”. Mr Birch also said that he would keep Mr Suarez updated on the weekly progress and asked him to let Mr Birch know if he had any questions. The project status reports and current status reports were thereafter sent at regular weekly or fortnightly intervals while the maintenance was actively ongoing. I return to these documents below.[22]On 15 April 2021 Mr Birch sent Mr Suarez the first of a number of ‘Contract Change Orders’ or CCOs. The covering email stated as follows Please see attached maintenance CCO1 (change order) for your review: The first section 2.18 – 2.43 refers to Non-Airworthiness items (NON-AW), These items are optional and do not affect the airworthiness of the aircraft. Please advise if you would like to proceed with these? Points 2.17 – 2.87 are for part replacements – please advise your approval to proceed (The Client Notes sections shows some recommended options for the parts) Ref: 2.9 – Life Raft - Please advise if investigation cost are approved or we proceed with the replacement option? (we are currently sourcing for quotes for replacement Life Raft). {See CCO notes} In order to keep the maintenance progressing on schedule we will require your reply on the above as soon as possible in order to make the required arrangements

Please see attached maintenance CCO1 (change order) for your review:

[23]The attached CCO1 contained a table setting out the details of the emergent defects which had been discovered to date during the inspections and proposals for rectification of each defect, including in some instances with differently-priced options for the client to choose. There was also a column for the customer to indicate approval (‘Y/N’).[24]CCO1 was signed by Mr Tarik El Masaoudi on 24 April 2021 (various options for parts having been selected) although BOIG claimed in its Defence and Counterclaim that he was not authorised to do so. Tarik El Masaoudi was a purchasing manager from a company called Air Ocean Maroc who was apparently retained by BOIG to assist in relation to overseeing the maintenance work in relation to the Aircraft.[25]CCO2 (together with a project status report and current status report) was sent to Mr Suarez on 27 April 2021. CCO3 followed on 29 April 2021, Mr Birch seeking approval ‘as soon as possible’ because of certain items’ long lead times. By this time, problems with the slats on the both the left hand and right hand wings (one of the Aircraft’s most expensive defects) had been identified. However approval was not forthcoming and on 3 May 2021 Mr Birch chased for a response: Is there any update to the approvals for CCO2 and CCO3 sent last week? We require the approvals so we can order the required parts and continue with the work. (the release of the aircraft will be affected based on this) Please let me know if you have any queries on the below and we can assist?[26]No response was received and on 5 May 2021 Mr Darryl Jackson, who was the Aircraft’s continued airworthiness manager or ‘CAMO’, emailed Tarik El Masaoudi to ask about CCO2 and CCO3, pointing out that there was a ‘real urgency’ in relation to items 2.51 and 2.52, the wing slat edge wedges. The email offered Tarik El Masaoudi three options for dealing with that defect, with varying costs and lead times and said “[p]lease advise which option you require so we can urgently place the required purchase orders to minimize the downtime of the aircraft.” Mr Jackson also asked for urgent approval for the paint because of the long lead time.[27]On 18 May 2021 Mr Birch emailed Mr Suarez with updated information regarding the replacement options for the wing slats. The customer could choose between replacement slats from a ‘teardown’ aircraft, or a repair option with a 14-week lead time from ordering and associated parking charges pending those 14 weeks. The email also quoted the parking charges that would be applicable, namely ‘hangarage’ of £957 per day, a monthly rate of £10,168.98 or ramp parking outside at £574.20 per day or £6,101.39 per month, the monthly rates being subject to one month termination notice.[28]On 2 May 2021 the first maintenance invoice (GME13663) was paid. In the meantime, CCO4 and CCO5 were supplied to BOIG. However there was no engagement from BOIG as to the outstanding items for approval. An internal email from Ms Tombs on 24 May 2021 recorded that GAF had contacted BOIG the previous week to ask for a meeting with the ‘owner’ and ‘owner rep’ but they were not available, and that “although a managed client given the value of the work we cannot take the risk of proceeding further”. On the same day, 24 May 2021, Mr Birch therefore emailed Mr Suarez attaching a number of emails containing CCO2, CCO3, CCO4 and CCO5. His covering email contained a summary of the current significant maintenance items pending approval (one from CCO1, and all of CCO2-CCO5) and noted that the option of replacement slats from a tear down aircraft was no longer available. He went on to say: Kindly be advised that maintenance work on the aircraft will be suspended from today based on the above pending approvals required. Parking charges at Bournemouth Airport will therefore be applicable to accommodate other aircraft that requires the space until the work resumes. (email attached reference SLATS includes the information regarding parking charges)[29]That message attached the email dated 18 May 2021 which set out the parking charges. No response was apparently received.[30]By 29 May 2021 the maintenance work had officially stopped and the Aircraft was stored in the hangar.

July 2021 – March 2022

[31]On 12 July 2021 Mr Jackson emailed Tarik El Masaoudi asking for an update regarding the approvals. Mr El Masaoudi replied indicating that a ‘Mr Guillaume’ would be visiting the aircraft in the UK to check the maintenance. It appears that this proposal did not proceed. On 27 July 2027 Ms Tombs emailed Ahmed Hussain Abdalla Bukalla who appears to have been representing BOIG in some capacity. Ms Tombs attached a copy of the latest statement of account and summarised the sums outstanding (then totalling US$651,333.35). She pointed out that the scheduled maintenance should have been completed in four weeks, with a few weeks extra envisaged for emergent work and added The maintenance has picked up a number of issues for which we need client approved, we have been communicating this with Wilfred, Mr Khalaf’s accountant and our point of contact. We have had very little feedback from Wilfred and then in May we got to the point where we have to stop work on the aircraft[32]Ms Tombs also summarised the principal issues that had arisen during the maintenance and said that to move forward the client needed to settle the outstanding invoices, review the emergent work and give approval to proceed. She offered a call with Mr Khalaf in order to move this forward as soon as possible.[33]On 5 August 2021 Mr Suarez asked Mr Birch for a full report of the aircraft regarding maintenance, parts, subscriptions, parking fees and management fees. Bonny D’Souza responded to this message on 11 August 2021 attaching(i) CCO9, which combined all previous CCOs into one document containing all of the approvals necessary to proceed;(ii) the current maintenance status report which set out all of the tasks that had been completed and still pending; and(iii) the latest statement of account showing all fees and costs then outstanding. The covering email included details of all relevant subscriptions in which the Aircraft was enrolled and reiterated that the parking fees for hangarage were £957 per day. It ended by inviting any requests for further information and asking for an update on the status of approvals and payments due.[34]Tarik El Masaoudi visited the Aircraft in Bournemouth at around the end of August 2021 to discuss the pending work. An email from Mr Jackson to Mr Birch on 2 September 2021 recorded a conversation he had had with Tarik El Masaoudi to the effect that the latter was “happy with the work done so far” and was preparing a report which he would send the following day “approving most things”. No such report appeared in the disclosure and it does not appear to have been sent.[35]Mr Birch told Mr Suarez in an email dated 22 September 2021 that the current statement of account was US$790,000 and the estimate to complete the outstanding work was US$1,763,000. Once payment had been made, plans could be made to recommence the works which was expected to take approximately 13 weeks. Further copies of the invoices were sent to Tarik El Masaoudi towards the end of September 2021. On 6 October 2021 Mr Jackson was informed that Tarik had spoken to the ‘accountant’ (presumably Mr Suarez) regarding the invoices, that Tarik was planning a meeting with ‘the owner’ to discuss everything face to face and would get back to GAF when he had an update.[36]At around this time, Tarik El Masaoudi’s role representing BOIG was taken over by his brother, Mohammed El Masaoudi, who met with Mr Birch at Sharjah on 17 November 2018 and was provided with a complete set of the management reports and invoices. There also appears (from an email sent by Ms Tombs on 21 November 2021) to have been a meeting between Mr Khalaf’s son, his representatives and Ms Tombs on 20 November 2021 at which Mr Khalaf’s son agreed that they needed to progress the maintenance and asked GAF to take them through the scheduled maintenance and the defects, summarising the main issues and the estimate of the final costs.[37]On 5 December 2021 Ms Tombs sent Mr Suarez and Mohammed El Masaoudi an updated maintenance invoice and statement of account. These reflected an agreement or understanding which had been discussed that BOIG should pay for 100% of the parts to complete the work and total labour to date, and 50% of the remaining labour, together with a credit for hangarage fees. A subsequent email from Mr Van den Berg of GAF on 15 December 2025 recorded that Mohammed and Tarik El Masaoudi had been through all of the items in the CCO and had challenged GAF in some key areas, but ultimately: Your representatives concluded that the CCO programme of works was essential to allow the aircraft to return to service, and instructed us to commence work on receipt of $1.24M payment from BIN OTAIBA Investment Group[38]However no payment was made and it seems that Mohammed Al Masaoudi then dropped out of the picture, to be replaced by a Stuart Forster of Jet Support Services Inc (‘JSSI’). Mr Forster emailed Ms Tombs on 15 December 2021 to say that he had been tasked with carrying out an on-site appraisal of the aircraft and workscope in Bournemouth.[39]On 16 December 2021 Mr Van den Berg again emailed Mr Suarez to record that Mr Forster’s visit had gone ahead as planned that day. He added: I wish to emphasise that we have continued to support your requests for further information at every stage of this protracted process. We have hosted 2 in-depth representative site visits to view the aircraft and all associated technical paperwork; we have conducted formal and informal meetings to clarify our respective positions and concerns. In addition, we were instructed by your representative – Mohammed Elmasaoudi – to start work on aircraft rectification but without the agreed associated prepayment of $1.24M to initiate that work[40]Mr Forster produced his report in January 2022. He concluded that all but 5% of the scheduled maintenance was complete but the defects and findings from the inspections were only 55% completed, with an estimate of around 600-700 man hours required. After discussions held with GAMA on-site, it would appear that the aircraft has not had a technician from the Owner to oversee the day to day management of this event. This has led to a significant time delay in gaining approvals. During the last meeting, November 2021, a verbal approval was given for the outstanding defects, however no further communications have been made to the MRO from the Owner. The current CCO (9 – exerts below) shows all the workscope parts which are currently awaiting approval from the Owner to continue this event.[41]The report then summarised the principal parts for which GAF was awaiting approval. It highlighted two line items which JSSI might be able to supply at a reduced cost but there was no criticism of the scope of the works, or other comment on the cost of the works carried out or proposed. The report concluded as follows The aircraft arrived after purchase without a PPI (Pre-Purchase Inspection); which has led to some defects which were most likely present at purchase. The aircraft is now in storage, since circa June 2021, and I would strongly suggest that engagement with the MRO is made as soon as practical by the Owner. This engagement should continue with by means of an on-site oversight by the Owners Technician. This will allow approval/payment of the minor defects being worked/orders placed. This will also allow work to continue to meet the Owners flying schedule in the shortest timeframe possible.[42]An Addendum to the report set out an overview of the costs to date, including both current and estimate costs to complete the project. It noted that two invoices remained unpaid: invoice number GME13739, a progress payment of US$94,508 for emergent work on CCO1 and life raft, and invoice number GME13943 (for US$1,238,514.55, covering all labour and parts to date, the cost of the parts indicated on CCO11 and 50% of the estimated labour to complete) dated 30 November 2021. This made a total outstanding amount of US$1,315,743.34.[43]Mr Mark Winzar of JSSI (who was later engaged as BOIG’s expert for the purposes of these proceedings) emailed Mr Suarez on 28 January 2022 seeking approval for GAF and JSSI to move forward with the maintenance on the Aircraft. That email contained no criticism of the planned workscope or costs.[44]At around the end of February 2022 another individual, Mr Husham Osman, was representing BOIG in relation to the proposed restart of the works. Another agreement in principle regarding the payment needed to recommence works was reached on around 3 March 2022 whereby GAF were to restart the works on payment of £700,000, with a further £200,000 to be invoiced while the maintenance work was ongoing. This was recorded in an email dated 3 March 2022 from Mr Van den Berg of GAF to Mr Osman and Mr Winzar. That email attached the most recent statement of account (showing all sums then due) and made it clear that these sums would have to be paid in full before the aircraft was released. Mr Osman indicated in an email of 4 March 2022 that this weas agreed in principle and “we can move forward with this approach”. He asked for the ‘necessary invoice’ to be send to Mr Suarez for payment.[45]Invoice number GME13943 (for a total sum of US$1,238,514.55 including the estimated works described above) dated 30 November 2021 was therefore resent to Mr Suarez by Mr Van den Berg on 10 March 2022 with a suggestion that BOIG make a payment on account (i.e. for the agreed sum of £700,000) against this invoice. In an email exchange on 19 March 2022, Mr Osman told Mr Van den Berg that ‘Hamad’ (i.e. Mr Khalaf’s son) had told him that the ‘700K’ is transferred and confirmed that our plan ‘is as is’. Mr Van den Berg replied that they would proceed as planned.

The alleged notice of termination of the Agreement in March 2022

[46]On 24 March 2022, Mr Suarez sent an emailto Ms Tombs and Mr Birch of GAF (‘24 March Email’). It read as follows: Dear Ms. Janine, This is to inform you that as of 24 March 2022 we will no longer use your company to manage the aircraft Global 5000 with the registration M-KWOW. May this serve as an official notification to terminate our contract.[47]GAF (Mr Van den Berg) replied to this email on 30 May 2022, pointing out that since receiving the email of 24 March GAF had not received any formal instruction concerning the transfer of the Aircraft. He asked for confirmation of whether BOIG “still intend to terminate the contract and if so, which company we need to work with”. Under ‘Next Steps’ the email sought payment of the outstanding balance of US$1,747,563.27, determination of whether BOIG still wished to proceed with the termination of the contract, and if so, the details and suitable point of contract of the new aircraft management company to allow transfer to take place by 22 September 2021.[48]It seems that no response was received to that email. In the meantime, following receipt of US$700,000, the maintenance work had recommenced. Further CCOs (CCO12 – CCO15) were issued between April and August 2022. There was again a failure by BOIG to response to CCOs. Invoices continued to be sent and were not paid.[49]On 19 July 2022 Mr Van den Berg emailed BOIG following up on his email of 30 May and seeking a conference call to discuss the aircraft. He stressed that “we are keen to return the aircraft back to you, to enable you and your family to enjoy its capabilities”. He went onto say: You will be aware that we received a termination notification for the aircraft. We have some 8-weeks before the contract formally closes; therefore, we need to commence the Offboarding process. To do so, we need your instruction of what you want to do with the aircraft once it Returns To Service.• Do you have a new management company that you want us to engage with in order to transfer the aircraft? Or;• Do you wish Gama Aviation to still manage the aircraft going forwards?• Please review once more the Next Steps laid out in the email trail below [i.e. the 30May email]• Either way, we need you to instruct us to what you wish us to do Be advised that we will not release the aircraft until you have funded the outstanding balance of the statement of accounts, which includes the management fees and maintenance work. I trust that we can speak to ensure that we can create a co-ordinated plan that works for both parties.[50]On 16 August 2022 Mr Van den Berg again emailed Mr Suarez to say that due to the lack of response to GAF’s communications, work had again stopped on the Aircraft and it had been transferred into parking. He forwarded a communication from GAEL which noted that “the cost for parking will be the same as last year at £957.00 per day in the hangar. We will however reserve the right to move to apron parking should the hangar space become required for other inputs”. This email appears to have prompted approval of CCOs 14 and 15 by Mr Suarez on 16 August 2022 and by an email of 18 August Mr Van den Berg asked for a payment of US$923,844.80 or £708,468.69 in order to restart the works. That email attached the various invoices and summarised the amount outstanding.[51]A further email from Ms Tombs to Mr Suarez on 13 September 2022 set out in tabular form details of each invoice raised, the amount thereof, and a cross reference to the relevant status reports (which were attached). It pointed out that since the November 2021 invoice there had been further emergent work and some continued airworthiness tasks that had fallen due, and provided a revised estimate for total costs at £1,531,650, of which £1,408,469 had been invoiced. Ms Tombs offered to assist if Mr Suarez wished to review any of these elements. She followed up with a further email on 20 September 2022 attaching the most recent statement of account and asking have all the questions you have around the maintenance input now been resolved? We are happy to arrange a call if needed with the Maintenance team/JSSI/Darryl if further clarification is required[52]No response was apparently received. On 12 October 2022 Ms Tombs sent a formal letter to Mr Suarez referring to the email of 24 March 2022, noting that six months had elapsed but that no formal service of notice was ever received by GAF. She also pointed out that in the intervening period BOIG had not given instructions for the off-boarding of the aircraft to an alternative operator, and explained what that process would ordinarily involve. She also stated that in the absence of any instructions regarding the termination of the AMA since March or the notification of an alternative operator, we consider and acknowledge that the AMA remains valid and operational pending further instructions and action from yourselves in accordance with the terms of the AMA including the settling of the significant outstanding debt on your account[53]GAF continued after this date to act as maintenance manager, and to send invoices for the continued management fees. On 16 December 2022 an email from Ms Tombs summarised the outstanding amounts as just over US$3 million. There was a Teams meeting on 21 December 2022 between Mr Osman, Mr Suarez and Ms Tombs, after which Ms Tombs sent another detailed statement of account.

Alleged agreement to settle in February 2023

[54]On 6 February 2023 Mr Khalaf of BOIG sent a letter to Ms Tombs stating that BOIG “would like to pay” US$711,408.25, and setting out a table of how that sum was calculated (principally by reference to management fees, ‘publications’, insurance and parking in Sharjah). The letter went on to say that BOIG would commit to pay additional maintenance costs over and above the US$1,368,706.19 already paid, which should be within the agreed amounts previously on the email between them (it is not clear what the reference to ‘agreed amounts’ meant). The letter also stated that BOIG would not pay the parking and maintenance charges during its ‘layover’ in the UK, and asked for an invoice for the maintenance related remaining amounts.[55]Ms Tombs of GAF responded on 23 March 2023. In this letter she: i) Acknowledged the offer to pay US$711,408.25 in respect of the stated items. ii) Set out what she said was the correct calculation of the costs for the stated items (which was US$200,758.14 more). iii) Indicated that the full amount due for maintenance was set out in Appendix 1 (which referred to a total of US$961,255.85). She stated that GAF would only produce a plan for the return to service of the Aircraft when the amounts due were paid in full (and in the meantime would simply perform those tasks necessary to preserve its condition). iv) Indicated that parking/hangarage charges would be discounted by a third but were due and payable (a total of US$395,958). v) Referred to the contractual interest also due on late payments in the sum of US$236,845.46.[56]The letter concluded by setting out the total of items (i)-(v) US$2,506,225.70, being the amount due and payable under the Agreement up to 31 December 2022, and sought payment of that sum by 31 March 2023.[57]BOIG responded with a document headed “Subject: Notice” dated 25 April 2023 which, essentially complained about the “excessive and arbitrary” costs, and demanded the return of the Aircraft to Sharjah.[58]The Aircraft thereafter remained at Bournemouth Airport, with GAF continuing to send monthly management reports, invoices and statements of account. The evidence of Mr Colbourne was that GAEL continued (and continues) to take appropriate steps to preserve the Aircraft in long-term parking in line with the maintenance manual. Mr Colbourne estimates that the Aircraft has spent at least 75% of its time in the hangar, with the remaining time on the apron when it was necessary to make space in the hangar for larger aircraft.[59]On 6 February 2024 GAF sent a ‘Notice of Lien’ to BOIG, referring to the Agreement and stating that as of 31 January a sum of $3,440,232.27 was due to GAF. The Notice gave ‘formal notification’ of the lien, and invited BOIG to pay the outstanding sum immediately.

The Agreement

[60]This dispute turns principally on the construction of the Agreement. It is relevant to note that this is a management agreement whereby BOIG appointed GAF to manage the operation and maintenance of the Aircraft on an ongoing basis. It was not a simply a contract for completion of specified maintenance tasks between an owner and maintenance facility. That is important context for the proper construction of certain key clauses.[61]Clause 2 was entitled “Basic Provisions”, and clause 2.1 said: Subject to the terms of this Agreement, the Manager agrees to provide the Services to assist BOIG in connection with the entry into service and subsequent management and operation of the Aircraft, with all due care and(1) in accordance with the standards and guidelines set down by the FAA or other applicable aviation authority and this Agreement,(2) in compliance with all laws and regulations relating to the use and operation of the Aircraft and(3) in accordance with best industry practice from time to time and BOIG agrees to entrust possession of the Aircraft to the Manager for such purposes.[62]Clause 2.2 provided that the Aircraft was to be delivered to GAF at Sharjah Airport. Clause 2.4 said that BOIG was to retain exclusive control over the use of the Aircraft and was to have the commercial management of the Aircraft and for such purposes the personnel provided by GAF were to be under the exclusive direction and control of BOIG while on board the Aircraft (subject to the commander’s authority under applicable law). Clause 2.5 provided that: Subject to Clauses 7.1 and 7.2, the Manager agrees throughout the term of this Agreement not to do anything affecting the title of Aircraft Guaranty Corporation to the Aircraft or BOIG’s interest in or quiet enjoyment of the Aircraft, and to permit BOIG to have access to the Aircraft at any time upon reasonable notice which shall not be less than twenty four (24) hours.[63]Clause 4.2 provided that GAF was to use its best efforts to arrange operations in accordance with BOIG’s flight requests, having regard to a number of matters including “unavailability of the Aircraft due to maintenance”.[64]Clause 5 of the Agreement was entitled “Maintenance procedures” and provided as follows: 5.1: [GAF] shall from time to time and as necessary or as reasonably required by BOIG consult with and advise BOIG in connection with and make recommendations regarding and shall arrange all routine and/or scheduled maintenance of the Aircraft and all necessary repairs thereto so as at all times to maintain the Aircraft in a fully airworthy condition. …” 5.2: [GAF] shall have authority to expend or commit funds on BOIG’s behalf for unscheduled maintenance or repair of the Aircraft up to $50,000 (or such greater amount as BOIG may from time to time agree in writing) per occurrence without obtaining BOIG’s prior approval, provided such expenditures and commitments are reasonable and necessary for the operation, maintenance or repair of the Aircraft. For expenditures or commitments above this figure BOIG’s prior written consent shall be required, provided that if there is an unscheduled maintenance or repair problem requiring immediate attention and BOIG or BOIG’s Authorised Representative is not available, then [GAF] shall act in a reasonably businesslike fashion to resolve the problem and shall notify BOIG as soon as practicable thereafter.”[65]Clause 6 dealt with fees and payments:6.1 BOIG shall pay to the Manager, or as the Manager may direct, the Fees in accordance with the terms of this Agreement (including in particular as set out in Schedule 2) or as BOIG and the Manager may otherwise agree in writing.6.2 BOIG shall reimburse the Manager for all costs and expenses incurred and paid by the Manager in connection with the Aircraft in the provision of the Services, including (without limitation) costs of fuel and oil, airport charges, air traffic control and air navigation charges, flight planning and charts, hangarage, handling, catering, maintenance, insurance, the costs of transport, accommodation and subsistence for crew when away from base (such costs to be reasonable and incurred in accordance with industry practice) the costs of type training and revalidation training of the crew provided for in Schedule 2 in order to enable them to perform their particular functions under this Agreement and to continue to do so, and any taxes, duties or other charges payable on or in connection with such costs and expenses or with the Aircraft, but excluding other costs and expenses in connection with the crew. […] 6.4 Interest at the rate of one per cent (3%) per month compounded monthly shall be payable on any money outstanding and due under this Agreement, before as well as after any judgment. […] […] […][66]Clause 7 dealt with the contractual lien:7.1 The Manager shall have a contractual lien, both general and particular, over the Aircraft and the Engines and their respective parts and accessories and any equipment for all fees, charges, costs and any other liabilities of whatever nature and howsoever incurred which shall be or are properly due and payable by BOIG to the Manager (whether incurred in respect of the Aircraft or in respect of any other aircraft managed by the Manager on behalf of BOIG or any member of BOIG's group of companies or otherwise). Any such lien shall not be lost by reason of the Aircraft, an Engine or any such parts, accessories or equipment not being in the possession of the Manager. In exercise of its rights in respect of any such lien, the Manager shall be entitled to sell the Aircraft, the Engines and their respective parts and accessories and any equipment.7.2 Notwithstanding Clause 10.6, in the event of the sale of the Aircraft by Aircraft Guaranty Corporation as the owner trustee, this Agreement shall terminate and all fees, costs and expenses payable up to the date of termination shall be paid by BOIG prior to such sale taking place, but this Clause 7.2 shall not affect the rights of the Manager under Clause 7.1.7.3 BOIG hereby assigns to the Manager, in the event of a sale of the Aircraft by the Owner Trustee, its right to any surplus of the sales proceeds as security for any outstanding fees, charges and costs properly due by BOIG to the Manager and hereby agrees to remit to the Manager on demand the amount of such surplus necessary to settle such outstanding amounts to the extent of any such surplus existing.[67]Under the heading ‘Charter of the Aircraft’ at clause 8 the Agreement contained no text other than “deleted intentionally”.[68]Clause 10 was headed ‘Term and Termination’ and clause 10.1 provided as follows This Agreement shall commence on the date hereof and last for a minimum initial period of six (6) months from the date on which the Aircraft enters into service and the Manager starts providing the Services (the “Start Date”), after which any party may, without prejudice to the remaining provisions of this clause and with or without fault, at any time terminate the Agreement by giving at least six (6) months written notice to the other party, to expire on a date (the Expiry Date”) at the earliest twelve (12) months after the Start Date.[69]There were other sub-clauses of clause 10 which dealt with termination for cause such as breach or insolvency. Clauses 10.7 and 10.8 dealt with the practical arrangements following termination as follows: 10.7 In the event of termination, the responsibilities of the Manager under this Agreement shall cease and upon payment in full by BOIG of all amounts due to the Manager pursuant to this Agreement, the Manager shall immediately give up possession of and redeliver to BOIG the Aircraft and all related records, log books and manuals. 10.8 The Manager agrees that, upon termination in accordance with this Clause 10, at the request of BOIG and at BOIG’s expense, the Manager will co-operate in good faith with BOIG and provide to BOIG or its nominee such reasonable assistance as is required to ensure an orderly transition from the Manager to another supplier of services.[70]Clause 11.1 was an entire agreement clause which also required that any variation of the Agreement was required to be in writing signed by person duly authorised by each of the parties.[71]Clause 11.8 dealt with giving notice under the Agreement: All notices and other communications under this Agreement (unless otherwise expressly contemplated herein) shall be in writing and in English and either delivered by hand or registered mail or sent by e-mail or by facsimile to the party in question provided, in the case of fax or email transmission, that a confirmatory copy of such fax or email, as the case may be, is received by the addressee by regular mail within forty eight (48) hours of such transmission: 11.8.1 in the case of the Manager to Gama Aviation FZC Sharjah International Airport Ground Floor, DCA Building PO BOX 122553 Sharjah United Arab Emirates Attention Janine Tombs, e-mail: janine.tombs@gamaaviation.com Telephone: +971 56 1717414 Gama Aviation FZC Sharjah International Airport Ground Floor, DCA Building PO BOX 122553 Sharjah United Arab Emirates

Attention Janine Tombs, e-mail: janine.tombs@gamaaviation.com Telephone: +971 56 1717414

[72]Clause 11 provided that the governing law of the Agreement was English and contained an exclusive jurisdiction clause in favour of the courts of England.[73]Schedule 1 to the Agreement set out the Services to be provided. Section 3 listed the ‘Management Services’ which included ‘Maintenance Management’ and in particular:3.2.1 Arranging (at the cost of Owner) for maintenance, overhaul and repair work necessary to maintain the Aircraft in an airworthy condition to be carried out by an appropriate and approved maintenance organisation in an economic and expeditious manner and pursuant to Clause 5 of this Agreement.3.2.2 Providing line maintenance as required from time to time and suitably qualified engineers to perform it.3.2.3 Arranging for all necessary maintenance records and related log books and manuals to be kept in accordance with the requirements of the state of registry of the Aircraft.[74]Another type of service in Schedule 1 was ‘Accounting and Administration’, which included (at clause 3.4.4) “Paying all costs and expenses in connection with the operation of the Aircraft, subject to reimbursement as provided in Clause 6 of this Agreement”. Paragraph 3.4.3 required GAF to present budgets on a quarterly basis showing the estimated cost of the services to be provided under the Agreement and of the anticipated operation of the Aircraft.[75]Schedule 2 set out payment and fees information, and in particular the general management fees of US$7,500 per month and the continued airworthiness management (CAMO) fees of US$2,500 per month. As regards the timing of payment, the fixed management and personnel fees were to be paid monthly in advance, while reimbursement of costs and expenses was to be made within seven (7) days of invoice detailing such costs and expenses and backed up with supporting documentation.

The Issues

[76]There was a list of Common Ground and Issues approved by the Court at the Case Management Conference as follows: B.1 Purported Termination of the Agreement 7. On 24 March 2022, BOIG informed GAF by email that it wished to terminate the Agreement with immediate effect (the “24 March Email”). The 24 March Email stated: “This is to inform you that as of 24 March 2002 we will no longer use your company to manage the aircraft Global 5000 with the registration M-KWOW. May this serve as an official notification to terminate our contract”.[8]In relation to the purported termination of the Agreement:(a) Did the 24 March Email constitute proper notification of termination of the Agreement in compliance with clause 10 (or otherwise)?(b) Did the 24 March Email comply with the notification requirements in clause 11.8?(c) Did the parties agree that the 24 March Email constituted termination for convenience pursuant to clause 10.1? In particular, did GAF accept the purported termination and list the anticipated termination date as “September 2022” in its email dated 19 July 2022?(d) If there was an “acceptance” of the purported termination, does the requirement in clause 11.1 for a variation of the Agreement to be in writing mean that it has no effect?(e) If the Agreement was terminated, what was the date of termination?(f) Did BOIG affirm the continued existence of the Agreement and/or is it estopped by convention from denying the continued existence of the Agreement?

B.2 Maintenance Procedures and Invoicing

[9]In respect of clause 5:(a) When routine and/or scheduled maintenance of the Aircraft was undertaken following GAF’s advice to and/or consultation with BOIG, and it became apparent as a result of that work that certain other repairs also needed to be undertaken to the Aircraft, was there any further obligation on GAF to consult with or obtain prior approval from BOIG in relation to those emergent necessary repairs?(b) If GAF should have consulted with and/or obtained approval from BOIG before carrying out certain works but did not do so: (i) Did GAF’s alleged omission to consult with and/or obtain prior approval from BOIG result in GAF being unable to recover the costs of those works? (ii) If such works had reasonably or necessarily been incurred by GAF in fulfilment of its duties under the Agreement, is GAF entitled to claim the costs thereof? Is it barred from doing so by any omission to consult with and/or obtain prior approval from BOIG?(c) Did GAF comply with its alleged obligation(s) under clause5.1 and/or clause5.2 concerning the works relating to such payments?[10]In respect of Schedule 2:(a) For all costs and expenses invoices, were the invoices issued to GAF required to detail such costs and expenses and back them up with supporting documentation?(b) Did GAF comply with its alleged obligation(s) under schedule 2 concerning the invoices and supporting documentation relating to such payments?(c) If GAF did not do so, is it precluded from obtaining payment for such costs and expenses under the Agreement?[11]In respect of budget plans:(a) Was GAF required to provide BOIG with a comprehensive budget plan in writing and a detailed estimation of proposed costs, most notably in respect of labour costs?(b) Was GAF required to advise BOIG that allegedly substantially higher costs would be incurred in the lead up to the Aircraft’s five-year inspection?(c) If so, did GAF fail to do so?(d) If GAF failed to do so, is it precluded from obtaining payment for such costs and expenses under the Agreement?

B.3 Parking of the Aircraft

[12]In respect of the parking of the Aircraft:(a) Did GAF act in accordance with the Agreement by parking the Aircraft in a hangar at Bournemouth Airport?(b) Were the sums charged in respect of parking ‘reasonable and in accordance with industry practice’?

B.4 Sums due from BOIG to GAF under the Agreement

[13]In respect of the alleged offer contained in BOIG’s email dated 6 February 2023:(a) Did the parties agree that the amount of US$ 711,408.25, proposed by BOIG to GAF on 6 February 2023, was to be in settlement of all maintenance, operational and parking charges incurred and to be incurred to bring the Aircraft into service?(b) If so, was the payment of that amount conditional on all remaining maintenance on the Aircraft to be completed “within 10 days” and for the Aircraft to be repositioned to Sharjah International Airport?(c) If there was an agreement, is GAF precluded from obtaining payment for the work, costs and expenses incurred in respect of the Aircraft under the Agreement?[14]Which of the sums set out in Annex A to the PoC are due by BOIG to GAF?[15]Is GAF entitled to claim interest at a rate of 1% per month compounded monthly pursuant to clause 6.4 (or otherwise)?

B.5 Lien over the Aircraft

[16]Was GAF entitled to exercise its right to a lien over the Aircraft (including all parts thereof as defined in the Agreement)?[17]Is GAF entitled to a declaration that it has validly exercised such a lien? 18 In the event that BOIG fails to pay all the sums which it may be ordered by the court to pay GAF within the time ordered for payment, is GAF entitled to take steps to sell the Aircraft?

B.6 BOIG’s Counterclaim

[19]Did GAF detain the Aircraft in breach of the Agreement?[20]If so, is GAF liable to pay BOIG:(a) Expenses BOIG allegedly incurred in chartering alternative aircraft during the time it was prevented from using its own Aircraft;(b) The purported loss of profit and income BOIG allegedly suffered due to it being deprived from chartering the Aircraft;(c) The purported expenses BOIG will be forced to incur in recommissioning the Aircraft; and(d) The purported loss it allegedly suffered as a consequence of the depreciation in the market value of the Aircraft (if any)?

Purported Termination of the Agreement (Issues 7-8)

[77]BOIG’s case, in paragraph 4.2 of its Defence and Counterclaim, was that the 24 March Email (paragraph 46 above) was effective to terminate the Agreement pursuant to clause 10. That termination was said to take effect from 23 September 2022, such that any claim for invoices after that date was ‘flawed’. Alternatively, BOIG argued that it was agreed between the parties that the email constituted termination for convenience and by its email of 19 July 2022, GAF accepted the termination.[78]GAF’s case was that this email did not constitute proper notification of termination of the Agreement because(i) it did not comply with the requirements of clause 10.1; and(ii) it did not comply with notification requirements in clause 11.8 by which an email notification had to be confirmed by a copy of the communication by regular mail within 48 hours of the email transmission.[79]As to the commercial purpose of this clause, the evidence of Mr Khalek also emphasised the importance of ensuring that an aircraft is at all times kept within a controlled maintenance environment and to have clarity as to who has responsibility for its airworthiness at any given time. That is because allowing the aircraft to fall outside a traceable and controlled maintenance environment has serious implications for its future regulatory compliance and in particular makes it difficult and expensive to obtain approval to return the aircraft to service. Mr Khalek also gave evidence as to the importance of an orderly transfer of an aircraft to a new operator; ordinarily GAF would complete an ‘off-boarding process’ of removing the aircraft from its insurance policies, communicating with the relevant registration authority, and cancelling any relevant subscriptions and then would complete a detailed handover with the new entity taking operational responsibility. This had all been explained in Ms Tombs’ letter to BOIG of 12 October 2022. The same principle underlined the requirements of clause 10.8 of the agreement which obliged GAF to co-operate in good faith with BOIG and provide such reasonable assistance required to ensure an orderly transition.[80]As regards the strictness of the notice requirements in clause 10.1, Chitty on Contracts (36th ed) at paragraph 26-99 notes that: When interpreting a clause in a contract which lays down a procedure for termination of the contract, the court will have regard to the commercial purpose which is served by the termination clause and interpret it in the light of that purpose. Strict or precise compliance with the termination clause may no longer be a necessary pre-requisite to a valid termination. However, any notice must be sufficiently clear and unambiguous in its terms to constitute a valid notice; but it is a question of construction in each case whether the notice must actually be communicated to the other party and whether it takes effect at the time of dispatch or of receipt. The terms of the contract may further provide that notice can be given only after the occurrence of a specified event; or that a specified period of notice be given; or that the notice is to be in a certain form (e.g. in writing); or that it should contain certain specified information; or that it should be given within a certain period of time. Prima facie the validity of the notice depends upon observance of the specified conditions. However, a consideration of the relationship of the notice requirements to the contract as a whole and regard to general considerations of law, may show that a stipulated requirement, for example, that notice be given “without delay”, was not intended to be a condition precedent to the exercise of the right to terminate so that a failure to comply with its terms would not invalidate the notice (unless the other party was seriously prejudiced thereby), but would give rise to a claim for damages only.[81]Clause 10.1 of the Agreement requires any notice of termination to be in writing; to give at least six months’ written notice of the date of termination; and to give an expiry date (i.e. termination date) which is at least six months after the date of the notice and at least twelve months after the Start Date.[82]In my view, given the commercial purpose of the Agreement and the termination provisions, those requirements are, on the proper construction of Clause 10.1, conditions precedent to the validity of the notice. That is not least because of the need for clarity and precision as to the exact date at which GAF’s duties and obligations vis-vis the Aircraft cease but also because of the importance of the (at least) six-month period for both parties to make other arrangements for those obligations to be taken over by a third party.[83]It follows that the 24 March Email was not an effective notice of termination pursuant to clause 10.1 since it purported to terminate the Agreement with immediate effect and did not specify a notice period or expiry date, contrary to the requirements of that clause. The purported notice also failed to comply with the formal notification provisions in clause 11.8 and failed to take effect for that reason too.[84]BOIG’s alternative case that the parties agreed that the 24 March Email was a valid termination notice also fails: i) The 24 March Email was not an ‘offer’ but purported to be a final termination notice. ii) BOIG’s case relies on the email of 19 July 2022 but ignores the 30 May 2022 email which preceded it, by which GAF made clear both that BOIG needed to clarify its intention as to whether it still intended to terminate and also that the parties needed to make proper arrangements for the off-boarding and transfer of the Aircraft. iii) The 19 July 2022 email forwarded (and referred back to) the 30 May 2022 email and is wholly inconsistent with any acceptance of an offer of termination or of any other ‘agreement’ to terminate, particularly given the commercial context set out above. iv) Over this period, BOIG not only failed to put in place the necessary steps to hand over the Aircraft (as set out in GAF’s communications above), it continued to rely on GAF to maintain the Aircraft (for example by Mr Suarez approving CCO14 and CCO15 on 16 August 2022 (paragraph 50 above)). That behaviour runs entirely contrary to the case it subsequently advanced about the alleged agreement to terminate. v) The letter of 12 October 2022, albeit sent after the date when the Agreement is alleged to have terminated, is also consistent with GAF’s position that the Agreement had not been terminated by agreement.[85]Accordingly, the Agreement was not terminated with effect from 22 September 2022 as alleged by BOIG. It is therefore not strictly necessary for me to address GAF’s alternative case (in issue 8(f)) that even if the termination did take effect, BOIG affirmed the continued existence of the Agreement and/or was estopped by convention from denying its continued existence. As to these arguments, briefly: i) GAF’s counsel, Mr Woods clarified in the course of submissions that GAF did not advance a formal affirmation case (as where an innocent party may elect to affirm a contract following a repudiatory breach) but relied on the fact that BOIG treated the contract as continuing as ‘primarily evidential’ as supporting GAF’s case on the alleged agreement. ii) As to estoppel by convention, the evidence showed that the parties did, after 22 September 2022, act on the assumption (expressly shared between them) that the Agreement had not been terminated and continued in existence (see paragraphs 53-57 above). GAF clearly relied on that common assumption by continuing to act as the Aircraft’s maintenance manager, by complying with its obligations in the Agreement, and by incurring fees to GAEL. In those circumstances, had it been necessary, I would have found that BOIG was estopped by convention from denying the continued existence of the Agreement and/or alleging that it had been validly terminated.[86]Accordingly the answers to Issue 8 are:(a) Did the 24 March Email constitute proper notification of termination of the Agreement in compliance with clause 10 (or otherwise)? No.(b) Did the 24 March Email comply with the notification requirements in clause 11.8? No.(c) Did the parties agree that the 24 March Email constituted termination for convenience pursuant to clause 10.1? In particular, did GAF accept the purported termination and list the anticipated termination date as “September 2022” in its email dated 19 July 2022? No.(d) If there was an “acceptance” of the purported termination, does the requirement in clause 11.1 for a variation of the Agreement to be in writing mean that it has no effect? N/a.(e) If the Agreement was terminated, what was the date of termination? N/a.(f) Did BOIG affirm the continued existence of the Agreement and/or is it estopped by convention from denying the continued existence of the Agreement? N/a but BOIG would have been estopped by convention. Maintenance Procedures and Invoicing (Issues 9-11) Change control orders, reporting and invoicing

Maintenance Procedures and Invoicing (Issues 9-11)

[87]The Aircraft was due to have three scheduled checks as part of the planned maintenance to be carried out by GAEL on behalf of GAF. As set out in the email to BOIG on 29 November 2020 containing the details of the GAEL quotation (paragraph 17 above), it was anticipated that these checks would lead to a substantial quantity of ‘emergent work’, i.e. repairs and other work which was not known about in advance. The overall work required to bring the Aircraft was therefore an evolving picture as the checks progressed.[88]It was apparent from the documents in the bundle, a selection of which I was taken to by GAF’s counsel during the trial, that a very large quantity of information flowed from GAF to BOIG as to(i) the status of the aircraft;(ii) the proposed maintenance and repairs and their cost;(iii) the total sums expended, due and proposed to be spent in future and what these covered; and(iv) the progress of the maintenance.[89]These were covered in detail in Mr Birch’s evidence. At the start of each month during the life of the contract, he would send an email to Mr Suarez with the following information/attachments: i) A management report which gave a summary of the key information and data relating to the Aircraft for the previous month; ii) An invoice for the management and CAMO fees for the upcoming month; iii) An invoice for estimated costs and expenses incurred in the previous month; iv) A reconciling invoice or credit note to reflect the actual costs and expenses incurred as compared to the invoiced estimated costs and expenses incurred, in each case for the previous 3 months; v) A spreadsheet setting out the costs and expenses referred to above, plus supporting documents. Mr Birch’s evidence explained how the actual cost recharge invoices were processed by GAF’s accounts team and summarised in a spreadsheet which was used to provide what he described as the ‘client P&L’, provided in the management report. After September 2021 BOIG were also supplied with copies of the supporting documents for these recharges and prior to this date BOIG had access to such materials on a Sharepoint site; vi) An invoice for late payment fees, being contractual interest charges applied to the outstanding amount from time to time; and vii) An updated statement of account.[90]As the work progressed, GAF also regularly sent onto BOIG the project status reports supplied to it by GAEL (14 such reports were sent to BOIG between 8 April 2021 and 6 September 2022 when the maintenance work was suspended). These provided an overall view of the status of the maintenance work on the Aircraft, including a ‘progress summary’, an estimate of the percentage of the project completed, and key milestones and a summary of the key defects which had emerged. Each project status report stated as follows: Airworthiness defects shall be automatically rectified on a time and material basis. The ongoing costs associated with rectification of these airworthiness defects shall be regularly and formally reported to the Customer during the maintenance input. Gama Aviation shall request authorisation from the customer prior to rectifying any non-airworthiness defect.[91]In addition to the project status reports, BOIG were also regularly supplied with current status report, which was a more detailed ‘snapshot’ of the engineering database (13 such reports were sent between April 2021 and September 2022). These were the key source of detailed information about the costs of the ‘emergent’ work and contained dozens of pages of itemised expenditure, both incurred and estimated. Each report had the following text: Non-airworthiness defects will be prefixed with NON-AW. These defects do not affect aircraft RTS. Gama Aviation shall request authorisation from the customer prior to rectifying any non-airworthiness defect. By regulation, airworthiness defects discovered during any maintenance event are required to be rectified before a Certificate of Release to Service can be issued. Airworthiness defects shall be automatically rectified on a time and material basis. The ongoing costs associated with rectification of these airworthiness defects shall be regularly and formally reported to the Customer during the maintenance input.[92]Where defects and issues were discovered as the checks progressed, GAEL would produce CCOs which listed each issue or additional work requirement in a table with a prefix such as ‘NON AW’ for defects which did not affect the airworthiness of the Aircraft. Each row of the table then contained the proposed action, and the estimated cost. In many cases, these also included different options for the customer to select depending on preference as to the type of rectification or part selected. There was therefore a column for the customer to complete depending on their preference and whether the work was approved.

Issue 9: approval/consent

[93]Issue 9 essentially relates to whether GAF can charge BOIG for maintenance work or other repairs which were not specifically approved by BOIG. It arises because, although the practice of GAF was to seek approval for particular repairs or emerging issues via CCOs, BOIG only expressly approved CCO 1, CCO 16, CCO 14 and CCO 15.[94]GAF’s case was that on the proper construction of clause 5.1, it was to advise BOIG and make recommendations as to routine and/or scheduled maintenance and GAF was to arrange and pay for all routine and/or scheduled maintenance and necessary repairs with the express purpose of maintaining the aircraft in a fully airworthy condition. The Agreement did not require further approval for necessary repairs, i.e. those necessary to maintain the Aircraft in a ‘fully airworthy condition’. GAF argued in this regard the Aircraft is a complex machine with formal maintenance and airworthiness requirements on which GAF was employed as an expert, and in relation to which BOIG agreed to pay significant monthly management and other fees, and to pay all costs necessarily incurred.[95]GAF also relied on clause 6.2 which provided in summary that BOIG shall reimburse GAF for all costs and expenses incurred and paid by it in connection with the Aircraft in the provision of the Services, including (without limitation), maintenance and insurance.[96]BOIG’s argument in its Defence and Counterclaim was that i) GAF was obliged to consult with BOIG before incurring substantial maintenance and repair costs, and GAF’s position conflicts with the clear wording of clause 5.2 (para 13.1); ii) GAF had wrongly failed to obtain BOIG’s express written approval to carry out work which approval was required pursuant to clause 5.2 of the Agreement (para 7.1); iii) GAF invoiced BOIG for unapproved unscheduled, and non-urgent maintenance for a total amount of US$1,787,046.28 as follows: a) Invoice GME13943: US$1,238,514.55 (on the basis of alleged verbal approval from unauthorised individuals); b) Invoice GME14149:US$ 209,813.11; c) Invoice GME14163: US$ 198,844.12; and d) Invoice GME14233: US$ 139,874.50.[97]In my judgment, GAF have proved their case that they were entitled to recharge the sums claimed.[98]BOIG were wrong to focus on clause 5.2, which gave GAF authority to spend up to US$50,000 “for unscheduled maintenance or repair” of the Aircraft without approval but required prior written consent for sums above that figure. That is because what was being arranged by GAF was scheduled maintenance (i.e. the 15/30/60 month checks). Clause 5.2 was intended to cover unexpected issues which arose in the course of the ordinary operation of the aircraft which required urgent attention. That is not what happened here.[99]Accordingly the starting point was clause 5.1 (paragraph 64 above) which required GAF to consult, advise and make recommendations but also ultimately gave it the power to “arrange all routine and/or scheduled maintenance of the Aircraft and all necessary repairs thereto so as at all times to maintain the Aircraft in a fully airworthy condition”, clause 3.2.1 of Schedule 1 being to similar effect.[100]At the very least therefore, GAF had the express power to arrange (and therefore, without doubt, to recharge) all those repairs to the Aircraft which were necessary to put it in a ‘fully airworthy condition’, as per clause 5.1. That is also in accordance with the express notifications on the project status and current status reports that airworthiness defects would be automatically rectified.[101]As to the nature of the defects which were repaired, the evidence of Mr Mark Abbott, GAF’s expert, is relevant. Mr Abbott is CAA-licensed Aircraft Engineer with considerable experience of the maintenance and management of Bombardier aircraft. His evidence was that he has carried out the type of inspection carried out by GAEL on this type of aircraft (Bombardier Global) more than 10 times. He reviewed the current status reports with a view to assessing the type of defects there listed, and concluded that, as far as he could tell, a very large number (listed in his report) were ‘unequivocally’ of an airworthiness nature which required repair before release to service.[102]The question remains as to GAF’s entitlement to recharge defects to BOIG which did not affect airworthiness and were not approved. In his written closing submissions GAF’s counsel listed out those defects which Mr Abbott had not been able to categorise as unequivocally of an airworthiness nature. This list supported his submission that the overall costs of these were relatively modest. It is also possible that some of the line items had been expressly approved as part of the approval of particular CCOs; certainly BOIG has never enumerated those repairs which it claims were not approved as part of that process.[103]In any event I am satisfied that GAF was permitted to recover the costs of rectifying all these ‘non-airworthiness’ defects, including those which were not specifically approved by BOIG: i) The overall purpose of the Agreement was for GAF to manage the operation and maintenance of the Aircraft for BOIG, to keep the Aircraft airworthy and available and for BOIG to pay the costs incurred in doing so. ii) Paragraph 3.4.4 of Schedule 1 requires GAF to pay all costs and expenses in connection with operation of the Aircraft, subject to reimbursement as provided in clause 6. iii) Clause 6.2 obliged BOIG to reimburse GAF for all costs and expenses incurred and paid by it in connection with the Aircraft in the provision of the Services, including (without limitation) hangarage and maintenance. iv) There was an issue as to whether in clause 6.2 the qualifying words “(such costs to be reasonable and incurred in accordance with industry practice)” applied to all types of costs listed in that clause or only the costs of accommodation and subsistence for crew. I am inclined to resolve that issue in BOIG’s favour, such that the qualifier applies to all types of costs. In any event, under clause 2.1 of the Agreement GAF was separately under an obligation to provide the Services with all due care and “in accordance with best industry practice from time to time”. v) GAF was therefore entitled in the first instance to recharge to BOIG all costs and expenses provided they fell within clause 6.2. That would cover all maintenance costs, incurred and paid by it in connection with the Aircraft, provided that the costs were reasonable and incurred in accordance with industry practice. If indeed BOIG wished to argue that particular costs were incurred without its approval where approval was required (because the repairs in question were not necessary to maintain the Aircraft in a fully airworthy condition) then it would have been for BOIG to explain which repairs were wrongly pursued and why, and to seek damages for breach of contract. It has never articulated such a complaint. vi) BOIG has also not advanced any case that particular items of work which were not approved by it were unreasonable or not incurred in accordance with industry practice. By contrast, Mr Abbot’s overall conclusion was that the work on the Aircraft was necessary to address airworthiness and appropriate. He also opined that it would be poor practice not to rectify defects while an aircraft is already in a maintenance facility (i.e. out of service and with easy access to the relevant areas of the Aircraft and its engines). Mr Colbourne’s evidence was that all the works which were not expressly approved by BOIG or paid for were either necessary to maintain the Aircraft’s airworthiness or were reasonable, including because not to do that work would increase unavoidable costs in the future. Finally, the consultant appointed by BOIG itself, Mr Forster of JSSI who reported in January 2022, made no criticism of the scope or cost of the works carried out or proposed (at a point when 95% of the scheduled maintenance was complete). vii) Mr Khalek’s evidence confirmed that all of the third party charges which were passed onto BOIG via the invoices represented actual liabilities incurred by GAF (including those incurred in the first instance by sister companies such as GAEL).[104]As to the four particular invoices which BOIG complained of in its Defence and Counterclaim: i) The first of these, Invoice GME13943 for US$1,238,514.55 was for work said by GAF to have been verbally approved by Mohammed El Masaoudi in November 2021. BOIG described this in its Defence and Counterclaim as “alleged verbal approval from unauthorised individuals”. However, it is quite clear from the correspondence that Mohammed El Masaoudi had at least apparent authority to approve maintenance work on the aircraft. As set out in paragraphs 36-37 above, he met with GAF’s representatives to discuss the aircraft and was provided with a complete set of the management reports and invoices; Mr Suarez, who was essentially GAF’s only point of contact at BOIG, was copied in on many of the communications evidencing Mohammed El Masaoudi’s meetings with GAF and his review of the maintenance reports and invoices. On 16 December 2019 (paragraph 39 above) Mr Van den Berg expressly told Mr Suarez that Mohammed El Masaoudi had instructed them to start work on aircraft rectification. Mr Suarez clearly was aware of and approved Mohammed El Masoudi’s role. In any event, invoice GME13943 was partially paid (as to US$957,710.25 was paid on 18 March 2022). ii) The second invoice GME14149 for US$ 209,813.11 related to a particular emergent defect in relation to the brakes and was an airworthiness issue which on any view did not require approval. iii) Invoice GME14163 for US$ 198,844.12 related to emergent work which had arisen during the course of the scheduled maintenance. The invoice was dated 6 June 2022 and the work to which it related was separately set out in detail in the current status report as of 10 June 2022. This document, which was sent to BOIG as part of the regular updates described above, set out in detail over about 90 pages each line item of part and labour. Mr Birch’s evidence was that none of the status reports he sent was ever queried by BOIG. iv) Invoice GME14233: This was a ‘progress invoice’ for £115,000 issued on 18 August 2022 (converted into dollars: US$139,874.50). Once again, this could be connected to an (unchallenged) current status report as at 6 September 2022 which itemised all of the relevant parts and labour covered by that invoice.[105]It may be that Invoice GME14163 and/or GME14233 contained some items of expenditure which were not strictly airworthiness items and technically therefore did require approval. If so, it is likely that such items were relatively few and did not amount to a material proportion of the overall expenditure.[106]GAF did not rely in its pleaded case on any argument as to implicit approval or that BOIG were estopped from complaining that its approval was not obtained. However, given my conclusion that GAF was entitled to recharge these costs to BOIG (i.e. via the invoices), it fell to BOIG in its defence or elsewhere to have properly particularised those line items within the invoices which were challenged, and why. It undoubtedly had ample opportunity to do so given the detailed information provided to it about the works which were proposed, and carried out. Nevertheless it has never done so. In those circumstances, GAF is entitled to recover the sums due pursuant to the Invoices in full.[107]The answers to issue 9 are therefore 9 In respect of clause 5:(a) When routine and/or scheduled maintenance of the Aircraft was undertaken following GAF’s advice to and/or consultation with BOIG, and it became apparent as a result of that work that certain other repairs also needed to be undertaken to the Aircraft, was there any further obligation on GAF to consult with or obtain prior approval from BOIG in relation to those emergent necessary repairs? Not in relation to those repairs necessary to maintain the Aircraft in a fully airworthy condition.(b) If GAF should have consulted with and/or obtained approval from BOIG before carrying out certain works but did not do so: (i) Did GAF’s alleged omission to consult with and/or obtain prior approval from BOIG result in GAF being unable to recover the costs of those works? No, provided they are costs falling within clause 6.2. (ii) If such works had reasonably or necessarily been incurred by GAF in fulfilment of its duties under the Agreement, is GAF entitled to claim the costs thereof? Yes,provided they are costs falling within clause 6.2. Is it barred from doing so by any omission to consult with and/or obtain prior approval from BOIG? No.(c) Did GAF comply with its alleged obligation(s) under clause5.1 and/or clause5.2 concerning the works relating to such payments? Clause 5.2 does not apply. BOIG have not established any non-compliance in relation to clause 5.1, and GAF is entitled to recover all of the relevant costs pursuant to clause 6.2.

Issue 10: invoices

[108]BOIG asserts that the maintenance invoices failed to comply with the required “invoicing mechanism” i.e. that the invoices should detail the costs and expenses and back them up with supporting documentation. BOIG alleges that the basis for this obligation arises in Schedule 2 and that it is industry standard and in line with best practice adopted by aircraft managers.[109]This argument clearly fails: i) The requirement in Schedule 2 for invoices to detail the relevant costs and expenses and back them up with supporting documentation only applies to ‘Fees’. The maintenance costs on the invoices complained of are not ‘Fees’. Reimbursement of such costs and expenses is governed by clause 6.2, which is not subject to Schedule 2. ii) There was no expert evidence as to industry standards in invoicing. iii) In any event, I am satisfied that the invoices did indeed contain detailed information and were backed up by supporting documentation. Each maintenance invoice from GAF to BOIG referred to an equivalent invoice from GAEL to GAF which set out the relevant work, which BOIG could cross refer to the status reports and CCOs (see paragraphs 90-92 above). iv) In any event, it is not clear how BOIG’s complaint could provide a defence to the sums invoiced and now claimed in these proceedings. If it had a genuine complaint about particularisation then it could and should ask for the further information to which it claims to be contractually entitled, but it has never done so.[110]Accordingly, I answer Issue 10 as follows: 10 In respect of Schedule 2:(a) For all costs and expenses invoices, were the invoices issued to GAF required to detail such costs and expenses and back them up with supporting documentation? No.(b) Did GAF comply with its alleged obligation(s) under schedule 2 concerning the invoices and supporting documentation relating to such payments? Yes.(c) If GAF did not do so, is it precluded from obtaining payment for such costs and expenses under the Agreement? No.

Issue 11: budget plans

[111]BOIG’s pleaded case was that GAF failed to adhere to the ‘industry standard’ approach of providing BOIG with a comprehensive budget plan in writing and a detailed estimation of proposed costs.[112]GAF denies that any such obligation, express or implied, arises from the Agreement. This is not strictly correct as regards the ‘budget plan’, since by paragraph 3.4.3 of Schedule 1, GAF agreed to present on a quarterly basis budgets showing the estimated cost of the services to be provided under this Agreement. However: i) GAF did indeed provide some estimated costs as part of the detailed information provided on a regular basis (paragraphs 91-92 above). ii) To the extent that a ‘budget plan’ required GAF to look forward to the very end of the project and seek to estimate the overall costs, it did do this on occasion (for example in Mr Birch’s email of 22 September 2021).[113]BOIG also complains of a failure to advise it that ‘substantially higher’ costs would be incurred in the lead up to the Aircraft’s five-year inspection, considering the age of the Aircraft. In this regard: i) It is unclear when GAF were supposed to have given this advice, but it is clear from the factual summary above that detailed ongoing information was given throughout the project, including as to estimated costs. ii) It is also not clear what is meant by ‘substantially higher’ in this regard. To the extent this is intended to refer to costs being higher than those in the original quotation, that made it clear on its face that it did not cover the cost of parts or any emergent work (see paragraph 17 above). The extent of the emergent work was obviously unknown at the time. iii) Part of the reason for that was BOIG’s failure to instruct a ‘pre-purchase inspection’ or ‘PPI’. As Mr Abbott put it (Day 2/p 59/l.9) ‘the scheduled maintenance uncovered a vast amount of defects, more than we would have expected. The aircraft never had any PPI inspection. So, you know, the status of the aircraft was unknown when it arrived’. His view was that it was unusual for someone to purchase an aircraft without a PPI. iv) The unexpected defects that did emerge included some which were very costly to fix. Two items alone, the slats and the brakes, amounted to over £500,000 of the final total. Other work involved the repair of corrosion which was heavy on labour and parts. v) The factual chronology above also shows repeated failure on the part of BOIG to give approval promptly for particular items, including time-sensitive options which would have reduced cost. This delay in approving work was a problem particularly noted by Mr Forster of JSSI in his January 2022 report. The resulting length of time the Aircraft was in maintenance also undoubtedly increased the overall cost of the project. None of this was GAF’s fault.[114]In any event, even if (contrary to the above) GAF were in breach of an obligation regarding budgets, it does not follow that it is not entitled to recover monies properly invoiced pursuant to clause 6.2. Provision of a budget is not alleged to be a condition precedent to the entitlement to reimbursement and it would be for BOIG to explain how and in what amount GAF’s breach had caused it loss capable of being set off. None of that is pleaded, let alone proved.[115]The answers to issue 11 are therefore: 11 In respect of budget plans:(a) Was GAF required to provide BOIG with a comprehensive budget plan in writing and a detailed estimation of proposed costs, most notably in respect of labour costs? Partly: GAF was required to present on a quarterly basis budgets showing the estimated cost of the services.(b) Was GAF required to advise BOIG that allegedly substantially higher costs would be incurred in the lead up to the Aircraft’s five-year inspection? No.(c) If so, did GAF fail to do so? No.(d) If GAF failed to do so, is it precluded from obtaining payment for such costs and expenses under the Agreement? No.

Parking (Issue 12)

[116]GAF’s pleaded claim is for USD $1,597,164.67 by way of recharge of parking charges (hangarage) incurred at Bournemouth.[117]BOIG contends that GAF did not advise it on parking options but unilaterally and without approval parked the Aircraft in a hangar imposing charges of US$957 per day, as opposed to an outdoor charge of only around US$100-$200 per day. It also complained that there was ‘no evidence’ that the Aircraft had in fact been parked in a hangar.[118]The contractual position is that GAF’s costs in arranging parking are recoverable under clause 6.2, the arrangement of hangarage being one of the services which GAF had expressly agreed to provide under paragraph 3.1.5 of Schedule 1. I did not understand BOIG to dispute that parking charges could apply when the Aircraft was not being worked on (i.e. as per the email of 29 November attaching the original proposal referred to in paragraph 17 above).[119]The allegation that the charges were imposed ‘unilaterally and without approval’ is in any event not a fair complaint. The evidence shows that BOIG were repeatedly warned of parking charges and did nothing to query or object to them: i) Mr Birch’s email of 18 May 2021 (paragraph 27 above) made it clear that parking charges would be imposed while the Aircraft was awaiting replacement parts, and set out what the charges would be. ii) Mr Birch’s email of 24 May 2021 stated that maintenance work was to be suspended and parking charges applied thereafter (paragraphs 28-29 above), attaching the earlier email with the charges set out. iii) Bonny D’Souza’s email of 5 August 2021 set out the latest statement of account showing all fees and costs then outstanding with a reminder that the parking fees for hangarage were £957 per day (paragraph 33 above). iv) When work on the Aircraft stopped a second time, in August 2022, Mr Van den Berg’s email of 22 August 2022 stated that the cost for parking would be the same as the previous year, but GAF expressly reserved the right to move to apron parking.[120]As to the complaint that the Aircraft should have been parked more cheaply outside, Mr Abbott’s evidence was that in a coastal environment such as that in Bournemouth, industry best practice is to place an aircraft in a hangar. The Aircraft continued to be in the care of GAF (via GAEL) and GAF was obliged to cause it to be stored and maintained appropriately. Mr Colbourne’s evidence was also that given the conditions in Bournemouth it was better for the Aircraft to be in the hangar. GAEL had therefore kept it in the hangar except when the indoor space was needed, in which case it was moved out to the apron temporarily. Mr Colbourne estimated that the Aircraft had been in the hangar for around 75% of the time covered by the parking charges. GAF’s counsel indicated that an adjustment would therefore need to be made to the pleaded claim to allow for 75% of daily rate for hangarage charges with the remaining 25% being charged at the outdoor parking rate.[121]The answers to Issue 12 are, therefore: 12 In respect of the parking of the Aircraft:(a) Did GAF act in accordance with the Agreement by parking the Aircraft in a hangar at Bournemouth Airport? Yes(b) Were the sums charged in respect of parking ‘reasonable and in accordance with industry practice’? Yes, subject to the financial adjustment referred to above.

Sums due from BOIG to GAF under the Agreement (Issues 13-15)

[122]BOIG argues that the parties agreed a sum of US$ 711,408.25 (proposed by BOIG on 6 February 2023) as a settlement of all incurred and future maintenance, operational and parking charges. This argument is hopeless: i) It is not even clear that BOIG was proposing a deal on those terms in its email of 6 February 2023 (see paragraph 54 above). ii) In any event it is plain that GAF did not accept any such offer. Ms Tombs’ response on 23 March 2023 said that GAF expected to be paid (as a minimum) US$2,506,225.70 being the amount due and payable under the Agreement up to 31 December 2022, with further sums falling due in 2023 (see paragraphs 55-6 above).[123]The total sums claimed are set out in the Annexes of the Amended Particulars of Claim which provided the updated sums to around the end of 2025.[124]Annex A sets out the amounts and types of all invoices presented by GAF to BOIG between 16 November 2020 and 15 December 2025, less all payments made (a net total of US$3,892,154.73). These were made up of, essentially(i) the monthly management and CAMO fees, which were only disputed by BOIG for the period after the alleged termination in September 2022;(ii) the recharged maintenance costs, which are dealt with in paragraphs 93-107 above; and(iii) recharged non-maintenance costs, as to which the only articulated complaint was as to the parking fees, which are dealt with in paragraphs 116-121 above.[125]At trial it became clear that, as well as the adjustment for parking to which I referred above, a further adjustment needed to be made to reflect the evidence of Mr Colbourne that, on a final reconciliation, the overall billed amount was around £17,000 more than the total amount shown on GAF’s systems for labour, parts, services and other charges. This need for a reconciliation followed from the fact that estimated bills were issued and subsequently reconciled when the actual costs were known (see paragraph 89 above). A credit for that sum therefore needed to be applied to the Annex A total.[126]The sums claimed in the invoices have been confirmed by GAF’s witnesses and I have rejected BOIG’s challenges to GAF’s entitlement to claim those sums. GAF’s claim to the sums due, whether as debt or damages for breach of contract, therefore succeeds subject to the two adjustments referred to above.[127]Annex B set out the amounts of contractual interest claimed. Clause 6.4 allowed GAF to claim “interest at the rate of one per cent (3%) per month compounded monthly” on any money outstanding and due under this Agreement. Given the uncertainty as to which of the two rates applied, GAF restricted itself to 1%. The total interest claimed as at 15 December 2025 was US$1,776,414.64 and it continues to accrue.[128]BOIG’s defence did not dispute the principle of such contractual interest, while making it clear that the costs and invoices on which interest was calculated were challenged. However I have rejected that argument and it follows that GAF are in principle entitled to the sums claimed in Annex B, subject to appropriate reductions to take account of the two financial adjustments referred to above.[129]As to Issues 13-15 I therefore conclude as follows: 13 In respect of the alleged offer contained in BOIG’s email dated 6 February 2023:(a) Did the parties agree that the amount of US$ 711,408.25, proposed by BOIG to GAF on 6 February 2023, was to be in settlement of all maintenance, operational and parking charges incurred and to be incurred to bring the Aircraft into service? No.(b) If so, was the payment of that amount conditional on all remaining maintenance on the Aircraft to be completed “within 10 days” and for the Aircraft to be repositioned to Sharjah International Airport? N/a.(c) If there was an agreement, is GAF precluded from obtaining payment for the work, costs and expenses incurred in respect of the Aircraft under the Agreement? No. 14 Which of the sums set out in Annex A to the PoC are due by BOIG to GAF? All of them, subject to the two adjustments referred to above. 15 Is GAF entitled to claim interest at a rate of 1% per month compounded monthly pursuant to clause 6.4 (or otherwise)? Yes.

Lien (Issues 16-18)

[130]Clause 7 grants GAF a contractual lien, both general and particular, over the Aircraft in respect of all fees and other liabilities which are ‘properly due and payable’ by BOIG to GAF, as well as a right to sell the Aircraft (see paragraph 66 above).[131]As to the relevant legal principles in this regard: i) A lien is a right to retain possession of tangible property until indebtedness is paid to the possessor. It generally arises though operation of law but it is possible for similar rights to be created by contract, in which case its act nature will depend on the proper interpretation of the contract: The Law of Personal Property Security, Beale et al paragraph 3.49. ii) At common law a lien (unlike a pledge) does not usually carry a power of sale but it is possible to provide such a right by contract (as here): Beale paragraph 3.54. iii) The holder of a contractual lien, just as with a lien arising at law, must have actual or constructive possession of the goods over which the lien is claimed: Beale paragraph 3.52. iv) The relevant possessory rights may be created by the contract, even if they are not exercisable until a later time when the goods come into the possession of the claimant. Actual or constructive possession suffices: George Barker (Transport) Ltd v Eynon [1974] 1 WLR at 469-471.[132]BOIG denies that GAF is entitled to the lien because(i) no lien may arise following termination of the Agreement;(ii) the alleged debt or the costs that GAF claims are not properly incurred and/or were not incurred by GAF itself;(iii) GAF must claim the lien for a definitive amount;(iv) GAF does not have possession of the Aircraft but rather the Aircraft is in the possession of GAEL. BOIG also in its defence purported to require GAF to return the Aircraft to Abu Dhabi, but there was no counterclaim to this effect.[133]None of these arguments defeats GAF’s right to a lien: i) I have rejected the argument that the Agreement was terminated, but even if it had been, pursuant to the terms of the contract the right to the lien would continue until all sums due and owing were discharged. Clause 10.7 expressly provides that, on termination of the Agreement, GAF is required to give up possession of, and to redeliver the Aircraft only on payment of all amounts due (also see (by analogy) Oyster Marine Ltd v Lomas, Re Gosport Realisations Ltd [2003] All ER (D) 276 (Feb), CA at [58] – [61], per Mance L.J). ii) I have also rejected BOIG’s challenge to whether the sums were ‘properly incurred’ or whether GAF was entitled to charge for them. In any event, at least some of the debt was not and could be disputed by BOIG (for example the management and CAMO fees accrued prior to the alleged termination). iii) There is no requirement that GAF needs to ‘claim the lien for a particular amount’. The lien is a possessory right which - according to the express terms of the Agreement - arises for (and for as long as) all fees, charges costs and liabilities are properly due and payable. The total amount of such liabilities fluctuates from time to time but that does not impact the lien, or require GAF continually to serve updated claim amounts, and no such requirement appears in the Agreement. Mr Woods also pointed me to paragraph 3.70 of Beale for the principle that (at common law) the lien holder does not waive the lien merely be demanding a sum which is greater than what turns out to be properly due. iv) As for possession, the Aircraft is still in the physical possession of GAEL in Bournemouth. GAF has constructive possession of the Aircraft as GAEL holds it to its order (paragraph 23 of Mr Khalek’s witness statement). Paragraph 7.1 of the Agreement expressly dispenses with the requirement for GAF to have physical possession of the Aircraft.[134]I am satisfied that it would be appropriate to grant the declaration sought: there is a real and present dispute between the parties as to GAF’s entitlement to the lien, and a declaration serves a useful purpose (especially given the potential value of the Aircraft) in providing public clarity to GAF as to its rights.[135]Accordingly, the answers to issues 16-18 are as follows: 16 Was GAF entitled to exercise its right to a lien over the Aircraft (including all parts thereof as defined in the Agreement)? Yes. 17 Is GAF entitled to a declaration that it has validly exercised such a lien? Yes. 18 In the event that BOIG fails to pay all the sums which it may be ordered by the court to pay GAF within the time ordered for payment, is GAF entitled to take steps to sell the Aircraft? Yes.

BOIG’s Counterclaim (Issues 19-20)

[136]BOIG claims that GAF was contractually obliged to make the Aircraft available for use by BOIG at Sharjah but has “illegitimately detained the Aircraft without proper cause and in deliberate breach of the Agreement”. The claimed heads of loss are: i) The cost of BOIG chartering alternative aircraft; ii) Lost income BOIG says it would have earned from chartering the Aircraft to third parties had GAF redelivered the Aircraft in Q1 2021; iii) Future expenses in bringing the Aircraft back to airworthiness; and iv) Losses caused by the “depreciation in value” of the Aircraft because of the shifting of market trends.[137]However, GAF has not detained the Aircraft in breach of the Agreement: i) The Aircraft was flown to Bournemouth, with BOIG’s consent, for maintenance. The history of the events set out above in paragraphs 13-59 shows that the reason for the delay in completing the maintenance and returning the Aircraft was BOIG’s non-engagement with the requests by GAF for approval and payment, and its refusal to pay the sums properly due. ii) Clause 4.2 of the Agreement expressly provided that GAF might not be able to comply with BOIG’s requests as a result of the unavailability of the Aircraft due to maintenance; and iii) In any event I have already found that GAF was and remains entitled to exercise its contractual lien, i.e. its possessory right.[138]The claimed losses are, in any event, unparticularised as to amount. Further: i) as regards the claim for lost charter revenue the parties’ expectation was that the Aircraft would not be so chartered, since clause 8 of the Agreement was intentionally deleted (see paragraph 67 above); and ii) as regards the protean claim for ‘depreciation in value’, any depreciation caused by ‘market trends’ was not caused by GAF’s actions and would have been suffered in any event.[139]It follows that the answers to issues 19-20 are: 19 Did GAF detain the Aircraft in breach of the Agreement? No. 20 If so, is GAF liable to pay BOIG:(a) Expenses BOIG allegedly incurred in chartering alternative aircraft during the time it was prevented from using its own Aircraft; No.(b) The purported loss of profit and income BOIG allegedly suffered due to it being deprived from chartering the Aircraft; No.(c) The purported expenses BOIG will be forced to incur in recommissioning the Aircraft No.(d) The purported loss it allegedly suffered as a consequence of the depreciation in the market value of the Aircraft (if any)? No.

Conclusion

[140]GAF are therefore entitled to judgment in the adjusted sums based on Annex A and Annex B, as well as the declaration sought. The counterclaim is dismissed.[141]I will hear further submissions on the precise form of order, including the adjusted sums under Annexes A and B, and the final form of the declaration.

Postscript

[142]This judgment was issued in draft to the parties on 10 February 2026. It was emailed by the Court to the six BOIG email addresses which had been provided in the email of 5 January 2026 (paragraph 7(v) above). The draft indicated that judgment would be handed down at 10.30 AM on 17 February 2026 and sought suggested corrections in the usual way.[143]On 11 February 2026, the Court received an email sent from the address legal@binotaiba.com. This was said to come from an Auran Khattak, described as “Group Legal Adviser, Bin Otaiba Hotels” and gave a postal address in the United Arab Emirates but with a UK mobile telephone number.[144]That email (which was not copied to GAF) stated that “we” were not present or represented at the hearing and had no knowledge of the hearing date. It claimed that the first time they were aware of the outcome was a telephone call to GAF’s solicitors to establish what was happening with the case, going on to allege that they “have been significantly let down by the professionals previously entrusted with conduct of the matter”. The email ended with this:
“we wish to place the Court on notice that we are taking urgent steps to apply to have the judgment set aside. In the circumstances, we respectfully request that the Court refrains from approving or sealing the judgment pending our application, so that we may be afforded a proper opportunity to be heard.”
[145]The hand down was therefore delayed for 7 days and I directed BOIG to provide any further submissions and evidence relied on in support of the argument that the judgment should not be handed down, with provision for GAF to reply and a final response from BOIG in advance of the revised hand down date.[146]On 13 February 2026 the Court received a further email from Mr Khattak, who described himself as a barrister employed by BOIG dealing with company secretarial duties and legal advice for BOIG in the UK. The email said that Mr Khattak was not previously engaged in this matter but was asked to look into the matter on Friday 23 January 2026 when he rang GAF’s solicitors and was told the matter had been heard and judgment was awaited. The email said both that “BOIG did not have any paper work for the proceedings” and, a little later that “BOIG only had limited paperwork for these proceedings”, and that GAF’s solicitors had been asked for a copy of the papers. It was also said that this request was necessary because emails and telephone calls to M&M Solicitors had been unanswered.[147]The email went on to argue as follows: We respectfully submit that the judgment should not be handed down at this stage, as the Defendant had no knowledge of the hearing and was not present or represented. BOIG were not notified of the hearing date and therefore had no opportunity to attend the court. It is noted that the previous solicitors withdrew from the proceedings but no notification to was given to BOIG to instruct representation, or present their evidence and submissions to the Court. E mails are mentioned to which it is suggested correspondence was sent about the hearing. No notification of the hearing were presented to the chairman or anybody in authority. One of the e mails with the address of ac.legal@Binoitab belonged to a lawyer working for the last firm of solicitors who acted on behalf of BOIG namely M& M Solicitors. This has resulted in a position of significant procedural and substantive unfairness. The matters determined are of considerable financial and commercial importance to the Defendant, and the absence of any participation was not a matter of choice but arose from a lack of awareness of the hearing itself. It is incumbent on me to mention that there should have been some supervision of the proceedings by BOIG. But had BOIG been aware of the listed hearing, they would have attended and fully engaged with the proceedings. In the circumstances, handing down judgment following a hearing of which one party had no notice would give rise to substantial injustice.[148]The email submitted that the draft judgment should not be handed down, and that “the Defendant intends to make a formal application for the judgment to be set aside, on the basis that there was no knowledge of the hearing and consequently no opportunity to be heard.” It also asked the Court to provide directions as to the “appropriate procedural steps” to enable BOIG’s position to be addressed properly.[149]In response GAF relied on the following (in summary): i) The matters described in paragraph 7 of the draft judgment. ii) Various communications from Mr Khattak which it was said showed he had been kept abreast by BOIG of communications from the court. iii) The fact that it was allegedly inconceivable that the two law firms who previously acted for BOIG did not notify BOIG of the trial date. iv) GAF had applied for an unless order in respect of BOIG’s compliance with its disclosure obligations. The hearing of that application was attended in person by BOIG’s owner and his assistant. The trial date was an important consideration on that application and was referred to in submissions and the judge’s ruling.[150]By an email dated 18 February 2026 I indicated that I would hand down judgment on the postponed date for reasons which would be included in that judgment. I also directed GAF’s solicitors to make available to Mr Khattak by 19 February 2026 a complete set of the materials which had been before the Court at trial.[151]The reasons why I did not accede to the request to delay hand down further, or make any further directions are as follows: i) In theory it is possible for a judgment to be altered at any time before it is entered and perfected (ReBarrell Enterprises [1973] 1 W.L.R, 19, CA). That includes the situation where the parties have been sent a draft judgment: “if a judgment has not been handed down or delivered, it has not been given. Until it is given, it is of no effect. Granted that there are obvious reasons why it would be unfortunate, as it has been in this case, for a judge to alter a draft judgment which has been handed to the parties, it remains a draft judgment which, in my view, the judge is at liberty to alter. The jurisdiction to do so is not in doubt” (Robinson v Fernsby [2003] EWCA Civ 1820, per May LJ at [91]). ii) Where an application is made to re-open a final judgment or order before the order is sealed, judicial discretion in this regard does not start from a position of neutrality but with appropriate weight attaching to the principle of finality: AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16; [2022] 1 WLR 3223. Furthermore, “finality is likely to be at its highest importance in relation to orders made at the end of a full trial” and any application to re-open is “heavily loaded” against the applicant: AIC Ltd v FAAN, at [35] and [46], per Lord Briggs and Lord Sales JJSC. iii) It is in any event far from clear that the jurisdiction to re-consider a draft judgment could or should be used in the circumstances in this case. The decision has already been made to proceed in BOIG’s absence and the trial has taken place. Although BOIG was not clear about what order it was asking the court to make, it seems that it may ultimately seek a substantive re-hearing of some kind. I was not shown any decision in which a draft judgment has been withdrawn and/or reconsidered for those purposes, and I am doubtful as to whether it ever could be. iv) Most importantly, where judgment is given in the absence of a party, that party can apply under CPR 39.3 for the judgment or order to be set aside and the court will apply the criteria in CPR 39.3(5). Indeed, that is what BOIG have indicated (twice) that they intend to do, and both parties to date appear to have directed their submissions to at least some of those criteria. v) In those circumstances, the correct course was to hand down the judgment and to leave BOIG to any application it might make under CPR 39.3. The question of whether BOIG was provided with appropriate notice of the hearing would be central to such an application but I express no view on that at this stage.