Global Advocacy And Legal Counsel v The Industrial Group [2019] DIFC CFI 037

Claim No. CFI 037/2019

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE ROGER GILES

BETWEEN

GLOBAL ADVOCACY AND LEGAL COUNSEL

Claimant/Cross Defendant

and

THE INDUSTRIAL GROUP

Defendant/Cross Claimant

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JUDGMENT OF JUSTICE ROGER GILES

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UPON the Claimant’s Part 7 claim form dated 30 July 2019

AND UPON the Order of Assistant Registrar Ayesha Bin Kalban dated 3 February 2020 granting permission to amend the Statement of Defence and Counterclaim dated 1 September 2019

AND UPON the Claimant’s Reply to the Defendant’s Defence and Counterclaim dated 2 March 2020

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the trial before Justice Roger Giles on 12 August 2020

AND UPON reading the submissions and evidence filed and recorded in the Court file

IT IS HEREBY ORDERED THAT:

1. Judgment for the Claimant against the Defendant for AED 1,171,916.87 plus interest calculated in accordance with these reasons.

2. Counterclaim is dismissed.

3. Defendant/Cross Claimant to pay the Claimant’s/Cross Defendant’s costs of the proceedings, as agreed or assessed.

4. Liberty to apply in relation to order 2 by letter to the Registry within 14 days.

Issued by:

Nour Hineidi
Deputy Registrar
Date of issue: 27 August 2020
At: 4pm

JUDGMENT

1. The Defendant (“TIG“) is a company incorporated in the DIFC, with business interests in the Middle East. Over a number of years it in engaged the Claimant (“Global“), a law firm practising in Dubai and elsewhere in the Middle East, for advice and for representation in litigation.

2. Global claims to recover legal fees and disbursements (“Fees“) from TIG for acting in a number of matters, in the total amount of AED 1,171, 916.87, together with interest. TIG counterclaims for damages for negligence and breach of fiduciary duty in relation to one of the matters, claiming the total amount of AED 1,682,619.18.

3. For the reasons which follow, Global is entitled to recover the amount claimed, and the counterclaim should be dismissed.

Background

4. Global generally invoiced TIG monthly for work done. The outstanding fees were invoiced over the period October 2017 – February 2019.

5. So far as the evidence shows, until the response to a letter before action in mid-2019 no dispute over the Fees was voiced by TIG. On 5 December 2018 Global sent to TIG a statement of account with a then outstanding balance of AED 1,109,360.82, requesting payment as soon as possible. At a meeting on 10 January 2019 between Mr Ali Al Hashimi, Global’s Managing Partner, and Mr Khalifa Jaberah, the Director of TIG, Mr Al Hashimi was told that there were cash flow issues due to adverse business conditions, and payment of AED 290,000 by the end of January and a schedule of payments were promised. Only approximately AED 92,000 was paid, and no schedule of payments was provided

6. Ms Sharon Lakhan, a partner of and Head of Dispute Resolution at Global, had also been told by Mr William Beckley, TIG’s General Counsel, that market conditions were affecting the processing of payments. On 29 January Ms Lakhan emailed Mr Beckley asking why the promised amount had not been paid and for the payment schedule; she foreshadowed ceasing to act in the then current Ramy Abouzeid matter if there was not a satisfactory response, although it was later decided to continue.

7. The evidence did include any reply. An email of 23 June 2019 refers to a meeting between Mr Al Hashimi and Mr Jaberah apparently about a settlement proposal from TIG, and sets out complaints more fully made in the response to the letter before action next mentioned.

8. On 30 June 2019 Global sent a letter before action to TIG, demanding payment of the amount claimed in these proceedings. The reply from Mr Jaberah on 7 July 2019 complained of overcharging in a number of invoices in three of the matters, with tables of the numbers of hours “removed” or “reduced” and figures for deductions from the invoices, and at some length of Global’s conduct of the Ramy Abouzeid case with further deductions for “Abandonment of Cases based on comments”. A substantial balance remained but was not paid. Mr Jaberah requested a meeting “to agree upon a reasonable amount with which to settle this matter”.

9. No agreement was reached, then or later. TIG’s complaints in these proceedings were broadly but by no means entirely in line with those in the reply of 7 July 2019.

The disputed fees

10. The matters in respect of which Global claims, and the Fees claimed, are (in date order of the last invoice):

11. The claims in (a) and (b) were admitted on the pleadings, the former “subject to verification” but nothing more was said of it. The claim in (c) was denied on the pleadings in part or perhaps in whole, but again nothing more was said of it, and in submissions TIG confirmed that the only dispute was over the remaining claims.

12. The pleading of the defences to those claims was unsatisfactory and did not well illuminate the extent of dispute or why some matters to which reference was made provided a defence. The difficulty remained in TIG’s presentation of its case and its submissions, which often failed to focus on or grapple with the issues thrown up by the complaints it made of Global’s performance and charging and what it said were some adverse consequences for it. I propose to consider each of the claims in (d), (e) and (f) as the complaints appeared to be taken up in the evidence and submissions, and similarly the claim in (f) but together with the counterclaim.

The Abdelazim El Fadil cases:

13. Mr Abdelazim El Fadil was employed by TIG as Director of Finance and Planning. In April 2018, TIG found accounting irregularities in its finances, and suspected his involvement. Global was instructed by TIG to bring proceedings to prevent Mr El Fadil leaving the UAE, and to file a criminal complaint with the Dubai Police and a substantive claim in the DIFC Courts. While there was no evidence of the work done, the claimed amounts for the two El Fadil cases must have been for the legal work on these instructions.

14. TIG’s defence to the claim did not challenge the extent of that work or the charges for doing it. It rested upon what TIG complained was incorrect legal advice given on 29 April 2018; and, it was said in the Amended Defence and Counterclaim (“the Defence”), Global was demanding payment of its Fees “without regard to the efficacy of its legal advice which the Defendant believes it is not fully entitled to considering its conduct”. It may be noted that no complaint about the Abdelazim El Fadil cases was made in the 7 July 2019 response to the letter before action.

15. Global denied giving the advice. It is necessary to go to what happened in a little detail.

16. On 23 April 2018 Global applied ex parte, on behalf of TIG, for a travel ban on Mr El Fadil. Through error (not of Global), Mr El Fadil became aware of the application. On 29 April 2018 he gave a 90-day notice of termination of his employment.

17. On 29 April 2018 Mr Beckley and Mr Hatem Zaghloul, then TIG’s Company Secretary, consulted Mr Al Hashimi, asking for his advice on whether TIG should pay Mr El Fadil his April 2018 salary and his end of service gratuity, having regard to the suspected wrongdoing which could found termination for cause. According to Mr Beckley, Mr Al Hashimi advised that if Mr El Fadil were to be properly terminated for cause, he would not be entitled to any payment. Mr Al Hashimi denied this, saying that he spoke of “ramifications regarding non-payment of employees’ salary“ and said that he would discuss the matter within Global and revert. According to Mr Al Hashimi, he then spoke to Ms Lakhan and asked her to respond by email to TIG’s inquiry.

18. At 10:26 am on 30 April 2018, Mr Beckley emailed Miss Lakhan, “Further to our conversation this morning, the Chairman has requested in writing Global’s concurrence that the Group not pay a monthly April salary to Mr El Fadil“.

19. At 4:06 pm on the same day, Ms Lakhan replied by a detailed email to Mr Beckley. It did not contain the requested concurrence. On the contrary, it amounted to advice that the April salary should be paid. It was recognised that, if the salary was paid, TIG would lose the ability to set off if it had a monetary claim against Mr El Fadil. But it was said that, since TIG had not yet terminated Mr El Fadil’s employment, it was obliged to pay the salary, and in addition that if it failed to do so it could be exposed to payment of significant penalties under Article 18 of the then Employment Law, DIFC Law No 5 of 2005. It dealt also with gratuity, as to which it was said that on a valid termination for cause Mr El Fadil would not be entitled to claim his gratuity. The email concluded:

“It seems to us that the most important issue to focus on is to preclude Mr El Fadil from being entitled to claim a gratuity payment. To that end we need to make sure that our termination for cause is as strong as possible – in particular that we terminate for cause promptly. By paying his April salary we will also appear reasonable in front of the Court.”

20. Mr Beckley responded promptly at 4:32 pm. He said that his main concern was setting-off if TIG had a monetary claim against Mr El Fadil, and asked, “What is the possibility of making a payment into court to be held by the Court pending the disposition of a possible claim against him?“. He said he was concerned also that, for reasons he gave, it would not be reasonable to pay the April salary. The email ended, “What do you think? “.

21. There was no emailed reply. Miss Lakhan said that there was subsequent discussion with Mr Beckley in which the point was raised, but she could not remember what her response was. Mr Beckley did not recall subsequent discussion, but could not deny that it had occurred.

22. According to Mr Beckley in his fourth witness statement, when he did not receive a reply to his 4.32 pm email he was concerned “about the Claimant’s ability to handle this matter and the accuracy of the advice provided by it”, which resulted in Global being replaced by other legal representatives for the matter. This must mean for advice on what to do, since Global’s invoicesran from April to November 2018. The assertion that he did not receive a reply should be seen together with the evidence of subsequent discussion with Ms Lakhan, and there was no evidence showing what replacement was made when, but Mr Beckley accepted in cross-examination that before the time payment had to be made to Mr El Fadil he was in a position to take full advice from the replacement legal representatives.

23. In TIG’s Defence it was said that TIG “discharged“ Mr El Fadil without paying “his wages for the last month and his vacation leave“, and that as a result TIG “was exposed to Article 18 Employment Law claims in this ongoing dispute“. There was no evidence of these matters, whether of TIG terminating Mr El Fadil’s employment (presumably for cause) or of proceedings brought by Mr El Fadil (presumably being the ongoing dispute).

24. In submissions, TIG recognised Ms Lakhan’s advice of 4:06 pm on 30 April 2018, but submitted that Mr Beckley did not receive any response to his email of 4:32 pm and therefore acted on the prior advice of Mr Al Hashimi. It said in its skeleton argument, and did not meaningfully amplify:

“As of yet, it is unknown what the total exposure is for the Defendant with respect to the Abdelazim El Fadil claim, and therefore the Defendant is not in a position to claim damages due to the Article 18 Employment claim since the case is ongoing. However, in light of the potential damages based on acting on the advice of Mr Al Hashimi, the Defendant believes that the fees should be reduced substantially.”

25. TIG did not attempt to explain why, if there had been wrong advice from Mr Al Hashimi, it was thereby relieved of liability to pay for the legal work in the civil and criminal matters for which the claimed Fees were charged. The charge for the advice itself was not identified, but can have only been a minuscule part of the sums claimed; there was no evidence, beyond their dates and amounts not even the invoices, to show any detail of what the work was. The defence was more properly a counterclaim for damages for incorrect advice, to be set off against the Fees, the basis for the damages being the asserted potential liability to Mr El Fadil.

26. For a number of reasons, even so viewed a defence has not been made out.

27. First, I do not accept that Mr Al Hashimi gave the advice attributed to him by Mr Beckley. Mr Jaberah was called in TIG’s case but gave no evidence in support of Mr Beckley’s recollection of the consultation with Mr Al Hashimi. Mr Al Hashimi was not required for cross-examination: although Mr Samir Kanaan, appearing for TIG, said that this was not an admission that Mr Al Hashimi’s witness statement should be “taken at face value“, it remains that he was not challenged on his denial. His denial is supported by evidence from Ms Lakhan, on which she was not cross-examined, of him telling her that he had explained to Messrs Beckley and Jaberah that he would check with her and ask her to respond to their request.

28. I do not regard the 10:26 am email from Mr Beckley as asking for written confirmation of prior advice. Mr Beckley did not say that it was, it refers to conversations with Ms Lakhan and not to a consultation with Mr Hashimi, and it was not written (as might be expected) as a request for confirmation of prior advice. Nor, after Ms Lakhan gave the detailed response of 4.06pm, was there any suggestion by Mr Beckley that it was inconsistent with earlier advice from Mr Al Hashimi. I prefer the recollection of Mr Al Hashimi to that of Mr Beckley.

29. Secondly, even if Mr Al Hashimi did give the advice attributed to him by Mr Beckley, it was thoroughly overtaken by Ms Lakhan’s detailed advice of 4:06 pm. The submission that, having received no reply to his email of 4:36 pm, Mr Beckley acted on the prior advice of Mr Al Hashimi is fanciful. It was made without the benefit of evidence from Mr Beckley to that effect, or evidence of acting to terminate Mr El Fadil’s employment at all. It is contrary to the evidence insofar as I accept as likely that there was subsequent discussion between Miss Lakhan and Mr Beckley, albeit with neither being able to recall what was said. Nor would it make any sense for Mr Beckley to default to the advice of Mr Al Hashemi. He had taken on board Ms Lakhan’s advice, and his inquiry about payment into court was predicated upon him having accepted it: he was seeking to find a way around it. It is quite beyond reality that TIG’s General Counsel would act in such a manner.

30. To this may be added that, although the evidence did not go into it, it is also likely that whatever was done about payment of the April salary and other entitlements was done on the advice of the replacement legal representatives, not by default to the advice of Mr Al Hashimi. On his own evidence, Mr Beckley was concerned about Global’s advice, to the point that Global was replaced. It would not have been rational for him to cause TIG to act on advice which was distrusted; rather, advice would be taken from the replacement legal representative, which there was time to do, and he would have caused TIG to act on that advice.

31. Thirdly, and again even if Mr Al Hashimi did give the advice attributed to him by Mr Beckley and also if it was acted on by TIG, no basis has been provided for finding that TIG suffered loss in consequence of the advice. Let it be assumed that, as stated in the Defence, TIG terminated Mr El Fadil’s employment, presumably for cause, without paying the April salary or a leave entitlement. But the assumption must stop there. There is not a jot of detail of the claim said to have been brought by Mr El Fadil for penalties under the Employment Law. It is not known whether he relied on failure to pay both the April salary and the leave entitlement, and if he relied on the latter there is nothing on which it can be determined whether or not his termination for cause was valid. The outcome of the claim is unknowable, as is even a possible quantum. The unproved possibility of loss does not provide a defence to the claim to Fees.

32. For completeness, I note TIG’s submission in the written closing submissions that:

“… the ill-advised application which was made to the DIFC Courts for the travel ban and passport surrendering of Abdelazim El Fadil, as well as the unsuccessful complaint filed before the Dubai Police, called into question the Claimant’s entitlement to their fees in this regard.“

33. The submission was not elaborated. The Defence said nothing of this. The submission did no more than take up words in the fourth witness statement of Mr Beckley, in his evidence also not elaborated. The Defence did not complain of Global’s attention to the application or the complaint, and this apparent afterthought does not even begin to establish a defence to the claim.

The Bradley Dexter case

34. The gravamen of the defence was that TIG had been told that Global’s Fees would not exceed AED 30,000, and that Global was not entitled to more than that amount when it did not inform TIG that further Fees would be incurred prior to incurring them.

35. Mr Bradley Dexter had been employed by TIG. It learnt that he had begun working for a direct competitor, WestRock. It believed that this was in contravention of a non-compete provision in his employment contract, and it suspected that Mr Dexter had taken confidential information to the benefit of WestRock.

36. By an email not in evidence, in February 2017 TIG sought advice from Global. In an email dated 12 February 2017, Ms Lakhan provided advice concerning proceedings against Mr Dexter. The advice included that, to obtain sufficient evidence of breach of confidentiality obligations, an application could be made for pre-action production of documents. The email included:

“For DIFC litigation cases we charge on an hourly basis. For this type of application, I would estimate that our fees would be approximately AED 20,000 to AED 30,000 (assuming that the application is made against only Mr Dexter and that he challenges production. If we add WestRock then I would expect them to challenge the application which would increase costs somewhat.) If there is no challenge to the application, then I would estimate costs to be between AED 10,000 and AED 15,000.”

37. TIG instructed Global to make the application, and to seek the appointment of an IT forensic expert to review and report on the information in Mr Dexter‘s devices. When the instructions were given and when the application was made are not clear from the evidence, but in unexplained circumstances appear to have been well after February 2017 because the hearing of the application was on 10 July 2018.

38. The application was successful, including that (in Ms Lakhan’s words) Mr Dexter “was ordered … to cooperate with a Court appointed IT expert“ for inspection of his devices.

39. There were then difficulties in obtaining compliance with the Court’s orders, with Global undertaking further work in that regard. In September 2018 Ms Lakhan discussed with Mr Beckley bringing a contempt of court application against Mr Dexter. The discussion included that fees (in general – not only for the Bradley Dexter matter) were outstanding to the point where Global “should put pens down“, and that Global would like “some clarity on fees“ before undertaking the application. In a later telephone call, Mr Beckley advised that TIG did not wish to pursue the matter any further.

40. Global invoiced TIG monthly for the Fees. The invoices were:

41. Only invoice 19736 was in evidence; the nature of the work to which the other invoices related cannot be seen. Invoice 19736 begins on 1 July 2018 with preparation for the hearing on 10 July 2018, referring to witness statements already in existence, and after the hearing continues to 29 July 2018 with work concerning engagement of an IT expert.

42. TIG’s defence appealed to the estimate in the email of 12 February 2017. It was not clear whether it was that the AED 30,000 was a binding cap, or that the Fees were otherwise excessive having regard to the estimate. The Defence said only that the Fees were excessive, without mention of the email or attributing the excess to a cap, and the response to the letter before action had done no more than deduct a number of hours and a corresponding amount; but the closing submission was that the email had quoted a maximum fee of AED 30,000 but more had been charged. I address the matter on both bases.

43. So far as TIG’s case was one of a binding cap, its submissions failed to engage with how that came about in the retainer under which Global acted in the Bradley Dexter case. The AED 30,000 was said to be an estimate. TIG introduced into evidence a 2015 Letter of Engagement in another matter which contained a cap on Fees, and as I understand it suggested that it supported its case: it shows that a cap could be agreed, but is in fact against TIG because Letters of Engagement were not always entered into (see the Arwa Al Banawi trademark case, below) and there was no evidence of one in the Bradley Dexter case, and so nothing to translate the estimate into a binding cap.

44. In my view, it is clear that the estimate did not have, and was not regarded by TIG as having, binding effect as a cap; certainly not when there was delay from February 2017 to the first legal work in October 2017 and the actual application appears to have been made even later, when for all that the evidence showed circumstances had changed.

45. The invoiced Fees had well exceeded AED 30,000 in March 2018, but Global had been permitted to continue on what Mr Beckley as General Counsel must have known would be a costly exercise of the hearing and then enforcement. There was no evidence from him, as might have been expected, that he expressed concern at the time that the estimate had already been exceeded in invoiced Fees. He continued to instruct Global on seeking to enforce the orders in August 2017 after the large invoice 19736 had been sent to TIG. Nor was there evidence that, in September 2018 when he must have known that the invoiced Fees were far in excess of the estimate and was being pressed for payment, he expressed any such concern – in particular, there was no evidence that he said to Ms Lakhan that Global should not put its pen down in the Bradley Dexter case because it was committed to a capped fee.

46. Moreover, when Global sent TIG the letter before action in June 2019, as noted above TIG‘s response in relation to the Bradley Dexter case was only that “we found excessive hours charged by Niamh Hoare“, with a proposed deduction from invoice 19736 of AED 30,000 after what was described as “a thorough review of the invoices from Global”. To repeat, the Defence made no mention of the email of 12 February 2017 or a cap on fees, asserting in general terms that the hours and costs were excessive, particularly those of Ms Hoare in August 2017 [sic], and saying that it was seeking to appoint legal cost consultants to assess the costs. The foreshadowed assessment would not have been in point had there been a fee cap. Only in the fourth witness statement of Mr Beckley dated 1 July 2020 is there a reference to the estimate in the email of 12 July 2017, and even then only with the equivocal comment that “contrary to the above statement“ invoices of AED 197,077 were sent “which the Defendant believes to be excessive in respect of what they have been informed by the Claimant”.

47. Regard may be had to the parties’ subsequent conduct in determining whether a contract has been made, and also (Contract Law, DIFC Law No 6 of 2004, Article 51(c)) in interpreting the contract; necessarily, in relation to whether an informal contract contains a particular term. It makes clear that the estimate was only that, not a binding cap, and was overtaken by events.

48. The Defence and TIG’s skeleton argument included that Global was obliged to inform TIG and obtain agreement before it charged fees beyond the estimate. It is not clear whether this was predicated on and a consequence of the estimate being a cap, or an independent contention. So far as it was an independent contention, I do not accept it.

49. The submission appeared to take up a provision in the Letter of Engagement in the 2015 matter earlier mentioned and a Letter of Engagement proffered but not signed in the Arwa Al Banawi trademark case. The Letters of Engagement described a scope of work, stated that fees would be based on time spent at particular rates, and included (from the last- mentioned letter: the other was almost identical):

“ We will not undertake work outside the Scope of Work set out in paragraph 2 unless we agree the scope of the additional work in advance with you. If we agree additional work over and above the Scope of Work, we shall charge you at a standard hourly rates, unless otherwise agreed with you in writing.“

50. The submission, as I understand it, was that although there was no letter of engagement for the Bradley Dexter case, these provisions in the Letters of Engagement showed that Global would normally not charge “any additional fees“ unless agreed with TIG.

51. The submission is without substance. There were other forms of Letter of Engagement in evidence, without such a provision, and there is otherwise no basis for a provision to the effect above coming into all engagements of Global by TIG. (Ironically, TIG’s submissions in relation to the Arwa Al Banawi trademark case included that the Letter of Engagement was not binding because it was not signed). In any event, the provision has nothing to do with fees beyond an estimate; it is concerned with fees for work beyond the stated scope of work. That is not TIG’s complaint.

52. I turn to whether the Fees charged were otherwise excessive. Although foreshadowed in the Defence, there was no evidence from legal cost consultants. Other than by mention of the costs incurred by Ms Hoare for August 2018 (in fact, the deductions were for July 2018), the Defence gave no particularity. In TIG’s response to the letter before action, however, a “current analysis of the billings” after “a thorough review” included a table by which AED 30,000 was deducted from invoice 19736 for the reason “Niamh Hoare Hrs reduced“. In the absence of any greater clarity, this must be seen as the excess complained of.

53. Mr Beckley carried out, or at least was part of, the analysis of billings, but in his evidence in chief said no more than that the invoices in the Bradley Dexter case were believed by TIG to be excessive, and in particular Ms Hoare’s costs were excessive. He was asked about this in cross-examination. He was unable to say how the AED 30,000 was arrived at or how it was made up. He said that he did not have his analysis “but we did an analysis and came up with that number“. He agreed, indeed volunteered, that all the work done by Global was required, and it is evident from his answers that the asserted excess was largely by comparison with the estimate: for example, he said that “all you have to do is look at the numbers, especially in relationship to the email … and you will be able easily to come to the conclusion that there was excessive over billing”, and that “ if you look at the email in which there was a fee quote of between 20 and AED 30,000, it becomes really evident that this billing is excessive“.

54. That is false reasoning: the reasonableness of the charges is by regard to the work done. The work was accepted as all required, and there was no attempt in TIG’s case to present a qualified analysis of the hours spent, informed by evidence of the tasks required of Global and the time that should have been spent, or of the rates charged, in order to demonstrate excess. The Fees invoiced were undoubtedly considerably more than the estimate. But the burden rested on TIG to uphold its complaint that they were more than reasonable and proper fees for the work done, and in the absence of evidence providing such a demonstration, it can not be concluded that they were excessive.

The Arwa Al Banawi trademark case

55. In late October 2017, TIG retained Global to reply to an objection to registration of a trademark. Over the following year it was invoiced at the end of each month, from October 2017 to October 2018, for fees totalling AED 83,390.56. The defence to the claim for this amount was twofold:

56. I go first to the cap. In the Defence the cap was at one point an “agreed limitation of ten hours only”, and at another point “that the overall costs would be between AED 15,000 and AED 20,000”. In the evidence, it was an oral agreement on charging for 10 to 15 hours of work. As with the Bradley Dexter case, TIG’s submissions did not engage with whether what was alleged to have been said was binding in the retainer under which Global acted; but it was disputed that anything was said, and it is again necessary to go to what happened in a little detail.

57. The initial meeting was on 24 October 2017, between Mr Beckley and Mr Rabih El Fakhry and Ms Graziella Gerges of Global. Mr El Fakhry was a Senior Legal Counsel with responsibility for IP matters; Ms Gerges was a paralegal.

58. According to Mr Beckley in his third witness statement, at the meeting he asked about Global’s fees and was told that they “would be between 10 and 15 hours of work at the agreed hourly rates“. He did not identify the rates.

59. Mr El Fakhry did not give evidence, and there was no explanation for his absence. In her witness statement Ms Gerges denied “that Mr El Fakhry said that the overall cost would be between AED 15,000 and AED 20,000 as has been alleged”, saying that if that had been said she would have included in the email to which I next refer. In cross-examination it was put to her that “there was a confirmation… that the time to be consumed on this would not exceed 10 to 15 hours with a rate of AED 1,700 per hour“, which she denied; she was not further challenged on her denial. Rather typically in these proceedings, there was some imprecision, but in substance Ms Gerges firmly denied reference to a cap.

60. On 25 October 2017, Miss Gerges sent an email to Mr Beckley, referring to the meeting and setting out a scope of work and a fees basis. As to the latter, it was said :

61. Mr Beckley replied on 26 October 2017. His email read:

62. In cross-examination, although he had said nothing of it in his four witness statements, Mr Beckley said that he had a further conversation with Mr El Fakhry. He said he could not be certain of the time, but that it was because Ms Gerges did not provide a fee cap in her email of 25 October 2017 and that he then contacted Mr El Fakhry. According to Mr Beckley, in the conversation he rejected the AED 30,000 deposit and they agreed that the cap be 10 to 15 hours.

63. The response to Mr Beckley’s email of 26 October 2017 was from Mr El Fakhry, by an email of 30 October 2017. It dealt also with the objection to registration, but as to fees read:

64. There was no evidence of an approval in accordance with the last sentence in this extract before, on 2 November 2017, Ms Gerges sent a Letter of Engagement to Mr Beckley (it was dated 25 November 2017, but it was common ground that this was an error). The Letter of Engagement set out a scope of work, said that the work would be carried out by Mr El Fakhry assisted by Ms Gerges and others as maybe required, and as to calculation of fees repeated with a minor change the sentences on that subject in the email of 30 October 2017.

65. The exchange of emails relevantly concluded with a response from Mr Beckley on 6 November 2017, as to fees reading:

“With reference to Graziella Gerges’ email of November 2, 2017, we agree with the terms of the letter of engagement, however, there is no need for the LoE because this matter should be billed to our Group, which has a long-standing relationship with Ali Al Hashimi and Global. I believe Global normally bills our Group under the name ‘Al Banawi Trading & Industrial Group Co Ltd UAE’”.

66. For reasons which will appear, I do not think it matters whether or not there was reference to an agreed cap, on hours or otherwise, on 17 October 2017 or at the later time of which Mr Beckley spoke. However, and notwithstanding the absence of Mr El Fakhry, I do not accept that there was.

67. The chain of emails is quite inconsistent with that having happened. If a cap had been mentioned on 17 October 2017, it is likely that Ms Gerges would have included reference to it in her email of 25 October 2017. When Mr Beckley replied to that email, he asked for a fee cap: he did not say that he had already been given one. The appearance only in cross-examination of Mr Beckley’s account of later agreement on a cap with Mr El Fakhry is remarkable, and casts doubt on its occurrence. There may have been a conversation about a deposit, but that the conversation included a cap also does not sit with Mr El Fakhry’s email of 30 October 2017: if there had been agreement that there be a cap as well as that there should not be a deposit, it is likely that that would have been included in the email. And when Mr Beckley received the Letter of Engagement on 2 November 2017, still with fees on an hourly basis without a cap, he said that TIG agreed with its terms. He was TIG’s General Counsel; the Letter of Engagement set out a formal and detailed basis for Global’s retainer; it is not credible that as General Counsel Mr Beckley would have failed to record additional agreement on a cap when agreeing with the terms of the Letter of Engagement.

67. The chain of emails is quite inconsistent with that having happened. If a cap had been mentioned on 17 October 2017, it is likely that Ms Gerges would have included reference to it in her email of 25 October 2017. When Mr Beckley replied to that email, he asked for a fee cap: he did not say that he had already been given one. The appearance only in cross-examination of Mr Beckley’s account of later agreement on a cap with Mr El Fakhry is remarkable, and casts doubt on its occurrence. There may have been a conversation about a deposit, but that the conversation included a cap also does not sit with Mr El Fakhry’s email of 30 October 2017: if there had been agreement that there be a cap as well as that there should not be a deposit, it is likely that that would have been included in the email. And when Mr Beckley received the Letter of Engagement on 2 November 2017, still with fees on an hourly basis without a cap, he said that TIG agreed with its terms. He was TIG’s General Counsel; the Letter of Engagement set out a formal and detailed basis for Global’s retainer; it is not credible that as General Counsel Mr Beckley would have failed to record additional agreement on a cap when agreeing with the terms of the Letter of Engagement.

69. In any event, the terms of Global’s retainer were definitively agreed in the exchange of emails. They culminated in Mr Beckley’s agreement to the terms of the Letter of Engagement, which provided for fees on an hourly basis without any reference to a cap. TIG is bound by that agreement. Mr Beckley’s answer to his agreement was that the cap was agreed as well; but a side agreement cannot be inconsistent with the main agreement, and a cap on hours is in substance inconsistent with agreement that Global would charge for “ the time spent by the team working on your file” – the actual time required to fulfil the scope of work.

70. As for the Bradley Dexter case, TIG’s submissions included that Global was obliged to inform TIG and obtain its agreement before it charged fees beyond those in accordance with the hours agreed with Mr El Fakhry. The submission goes nowhere when I have not accepted Mr Beckley’s evidence in that respect, but in any event it is again without substance. The Letter of Engagement of 2 November 2017 included the paragraph earlier set out, but as I have said that paragraph is not concerned with fees beyond a cap, but with fees for work beyond the scope of work. Again, that is not TIG’s complaint.

71. I turn to the AED 24,505.70. TIG’s defence rested on the sentence in Mr Beckley’s email of 26 October 2017, “We do not expect to be billed time for mundane clerical tasks or routine emails and phone calls “. It submitted that items in the invoices totalling AED 24,505.70 were routine, and so should not have been charged.

72. It is difficult to see that the sentence on which TIG relied came to be part of the retainer. The Letter of Engagement was expressed to state the terms on which Global acted for TIG, and and the Fees were not qualified in that way. The criterion in the Letter of Engagement was “the time spent by the team working on your file“, with a description which included attending on telephone calls, correspondence, and travelling and waiting time. However, it is better to look at the items of which TIG complained.

73. That is not so easy, when TIG did not properly identify them. Mr Beckley’s third witness statement included a table with a figure for “Over Billings“ for each of the twelve invoices sent in the matter, the same table as in the response to the letter before action but without ascribing the deductions to Ms Gerges’ hours. But the items in the invoices for her hours were not identified.

74. Mr Beckley said that the over-billing was Ms Gerges “repeatedly and continuously contacting the Trademarks Department on either a daily or weekly basis to ascertain the status of the objection”, which Global had not been instructed to do; the defence to the AED 24,505.70 must be considered accordingly. Even on a casual glance, however, not all the items which can be seen to be said to be over-billing are within that description. For example, the AED 330 in the 31 October 2017 invoice is for Ms Gerges’ attendance at the meeting of 24 October 2017 (there dated 23 October 2017) ; only a small part of Ms Gerges’ work for which AED 6916.67 is said to have been over-billed in the 30 November 2017 invoice is evidently of that kind; and the AED 750 said to have been over-billed in the 31 December 2017 invoice must include an item of preparing and sending a detailed memorandum to the Ministry of Economy with a power of attorney and TIG’s reply to the objection, on any view not a routine enquiry.

75. Ms Gerges said that the Ministry of Economy did not notify parties of the date set for hearing a trademark objection, and that it was notoriously necessary for a party to make regular contact to ensure that it was aware of the date. Mr Beckley agreed that this was so. Ms Gerges said also that the Ministry did not advise parties of the decision, and it was necessary to make regular contact to ascertain the decision having regard to a 15 day period within which it could be challenged. Mr Beckley readily agreed that it was essential that regular contact be made with the Ministry. But he regarded it as routine, within the qualification sought to be made in the email of 26 October 2017.

76. At least in this context, routine is not to be equated with regular. I do not think that contacting the Ministry was routine within the qualification. It was a necessary and important part of fulfilling the retainer, necessary even if Global had not been specifically instructed to do it – if it had not been done, and the hearing had been missed, TIG would surely and justifiably have complained. As such, it was within the description of the time spent working on the file in the Letter of Engagement, and not excluded from charging even if regard be had to the qualification.

The Ramy Abouzeid case

77. The defence in the Defence was essentially complaint over Global’s conduct in representing TIG in proceedings brought by Mr Ramy Abouzeid, the same complaint being the basis of the counterclaim, with also the Delphic statement that “[a]fter reviewing a number of invoices, it appeared that the rates charged were excessive for certain matters”. I first address the counterclaim.

78. The counterclaim was pleaded as negligence and breach of fiduciary duty. The relevant fiduciary duty is the exercise of reasonable care, skill and diligence in para 5 of Schedule 3 of the Law of Obligations, DIFC Law No 5 of 2005, effectively again negligence. There was reference in the pleading also to the fiduciary duty of loyalty, which was inapt because TIG’s case was not that Global had preferred its interests over those of TIG, and to the Mandatory Code of Conduct for an attorney’s duty to advance the client’s interests without regard to the consequences to themselves or others: I do not think this creates an actionable duty, although it can inform a duty otherwise owed, but for like reason that also does not add to negligence.

79. Where the negligence lay, on TIG’s case, in Global’s representation of TIG was rather unclear. To explore it, what happened must again be described in a little detail.

80. Mr Abouzeid was employed by TIG as Director, Sales and Marketing – Specialty Chemicals. He was issued with a residency visa under TIG’s sponsorship. His terms of employment included provision of medical insurance by TIG.

81. Mr Abouzeid gave notice of resignation on 4 August 2015. TIG accepted the resignation by a letter dated 5 August 2015. The last day of employment was 30 September 2015.

82. Under Article 18 of the Employment Law if TIG did not pay Mr Abouzeid all wages and other amounts owing to him within 14 days of the termination of his employment, it was obliged to pay him as a penalty an amount equal to his last daily wage for each day of arrears. He was not paid his end of service benefits until early November 2016, and they were paid after deduction of approximately AED 14,000 as the cost of medical insurance kept in force for a period following his resignation. Mr Abouzeid sued to recover a penalty amount pursuant to Article 18, and TIG retained Global to defend his claim.

83. Article 18 had been given a strict application in the decision of the Court of Appeal in Frontline Development Partners Ltd v Adil [2016] DIFC CA 006. Global considered, and advised TIG, that there was a reasonable chance of defending the claim in relation to the deduction of the cost of medical insurance, but that on the Frontline application of Article 18 it would be difficult to defend the claim in relation to the end of service benefits. It undertook a “strategy“ of seeking to distinguish TIG’s position from that of the employer in Frontline and emphasising “the intent of the parties“.

84. The defence came to include that it had been agreed between TIG and Mr Abouzeid that Mr Abouzeid’s visa would not be cancelled upon termination of his employment but kept in force for a time, the medical insurance would similarly be kept in force at Mr Abouzeid’s cost, and payment of the end of service benefits would be deferred until the visa was cancelled. Witness statements were taken from Mr Hatem Zaghloul, the Regional Vice-President of TIG and at the time of Mr Abouzeid’s resignation in temporary charge of the Human Resources Department, to establish the making of the agreement.

85. In the first witness statement, Mr Zaghloul said that at a meeting in early October 2015 Mr Abouzeid asked that his visa be kept in place and the medical insurance to be kept on foot at his cost, so that he would have time to find another job and have the benefit of the medical insurance for his wife’s then pregnancy with complications. Mr Zaghloul relevantly said that he told Mr Abouzeid that TIG would help out and :

“18. It was my understanding that end of service benefits are not payable to an employee until the cancellation of their visa and that was certainly the policy that TIG adopted. 19. Accordingly, TIG accepted Mr Abouzeid’s request to leave his visa open so that he could continue to benefit from the medical insurance taken out on his behalf and for his spouse and to find alternative employment. Mr Abouzeid was to pay for the medical insurance for the period that it remained available to him after he left his his employment with the company. It was understood that by extending the duration of the visa, that Mr Abouzeid would not be entitled to receive his end of service until the cancellation of his visa”.

86. In the second witness statement, responding to a witness statement from Mr Abouzeid in which he said that it had not been agreed that TIG could withhold his entitlements until the visa was cancelled, the nub of what Mr Zaghloul said was that at the meeting “[i]t was also clearly understood that by keeping his visa active, the Claimant would not in accordance with company policy receive his end of service payment until his visa was cancelled.”

87. It will be noted that Mr Zaghloul’s evidence was not of overt agreement linking payment of end of service benefits to visa cancellation. It was of an understanding, which at least on Mr Zaghloul’s side was because of what he said was his understanding that, according to TIG’s policy, end of service benefits were not payable until the cancellation of the employee’s visa.

88. The agreement to defer payment of the end of service benefits was central to the defence to Mr Abouzeid’s claim. But shortly before the hearing of the case, Global advised TIG that it could not be put forward.

89. The hearing was fixed for 20 February 2019. Mr Zaghloul attended Global’s offices on 18 February 2019 for trial familiarisation and to go through his witness statements. He and Mr Beckley saw Ms Lakhan and Ms Wilkie ((the former Ms Hoare, now married), the latter of whom was to be trial counsel. Mr Beckley left almost immediately. What happened then, according to Ms Lakhan, was recorded in an email prepared by her and Ms Wilkie and sent by her to Mr Beckley at 8 pm on 18 February 2019:

90. The email went on to say that “the impact of what we now know is fatal to the defence“, and that it also meant that in accordance with Global’s obligations to the Court under the Mandatory Code of Conduct it could not present a defence that there was an agreement that Mr Abouzeid would only receive his end of service benefits once he cancelled his visa. It was said that Global was “now limited to only defending the point about the medical insurance“, but that even if successful in that respect “the value of that aspect of the claim is insignificant in contrast to the claim for penalties for delay in payment of the end of service benefit”. It was further said that TIG had two options. One was to continue the trial with “a very limited defence which only relates to the medical insurance defence and that Ramy was not not cooperative in cancelling the visa“, which would fail, so that the best case scenario was that TIG would not have to return the AED 14,000 to Mr Abouzeid. The other was to settle, which Global emphatically recommended. The email concluded, “Please confirm your instructions as a matter of urgency in relation to the above. I am available to discuss this tonight or tomorrow morning at your convenience.”

91. There was contest over what happened at the meeting on 18 February 2019, which I should address before returning to the narrative.

92. In his witness statement in these proceedings, Mr Zaghloul said that he spent not more than 15 minutes with Ms Lakhan and Ms Wilkie, and :

93. Mr Zaghloul went on to say that two events corroborated his understanding, prior to the meeting on 18 February 2019, of TIG’s policy. They were :

“9. In December 2015, I had a phone call with Mr Ramy Abouzeid. At the time of the call, I ascertained that it was the Defendant’s policy to pay the end of service entitlements upon cancellation of the visa, and confirmed the Defendant’s policy to Mr Ramy Abouzeid in the same call. 10. Then subsequently, on October 9, 2016, Ramy Abouzeid sent me a message on WhatsApp whereby he stated: ‘I am referring to our conversation with Wael regarding my EOS, as I was told that I will receive my EOS as soon as I cancel my visa with TIG. I received the same confirmation from Adelya by email before few days before [sic] I cancelled my visa’.”

94. In my view, the contest is resolved in favour of the email of 18 February 2019, which I accept as an accurate record of what Mr Zaghloul said at the time.

95. That email is a contemporaneous record, commanding respect when it was a matter of great importance to the defence of Mr Abouzeid’s claim and Global’s fulfilment of its retainer. No reason appears, or was suggested to Ms Lakhan in cross-examination, why it should have been erroneous as a record of the meeting. Indeed, no cross-examination at all was addressed to Ms Lakhan suggesting that it was erroneous: the cross-examination as to the meeting was essentially limited to enquiring whether she had asked whether there were special circumstances by which Mr Zaghloul received his end of service entitlements without cancellation of his visa, thus accepting that he had done so.

96. In his cross examination, Mr Zaghloul agreed that he had twice been paid end of service benefits (in context, by TIG) without cancellation of his visa, but with an unclear explanation to the effect that it was because of his particular circumstances. His evidence included a number of answers indicating that the email of 18 February 2018 was a correct record in its other respects. He agreed that he did not know (again in context, at the time he met with Mr Abouzeid) that end of service benefit was linked to visa cancellation, and that from his personal experience it was not, and he also agreed that he was relying on his personal experience when he met with Mr Abouzeid. He agreed that he ascertained “what [TIG’s] policy really was” only in December 2015. And he said of his second witness statement taken by Global that it was accurate:

“[w]ith the explanation of that I made during the court hearing that there was some ambiguity of my witness statement that at the time that I signed or agreed with Ramy Abouzeid of the resignation, I was not aware that the end of service benefits is related to the visa cancellation but I was made aware after that when I had a call with the CFO, when Ramy Abouzeid called me on the line and sent me a name saying that he cannot get his end of service benefits. I have already talked to Ramy Abouzeid and by that time me myself and Ramy Abouzeid were aware that the end of service benefits are related to the visa cancellation.”

97. From the cross examination, the call with the CFO was the occasion to which Mr Zaghloul was referring when he said in para 9 of his witness statement in these proceedings, see [93] above, that he ascertained that it was TIG’s policy to pay end of service entitlements upon visa cancellation. That was in December 2015, and Mr Zaghloul said that he ascertained the policy at that time: that is ,well after his meeting with Mr Abouzeid. Rather than corroborating knowledge of the policy at the time of the meeting, para 9 stands against it. Nor does para 10 of that witness statement provide corroboration. The WhatsApp message was sent after the visa had been cancelled – it was no more than Mr Abouzeid saying that now he had cancelled the visa, where was the promised EOS.

98. Whatever the company policy in fact was, in my view at the time of his meeting with Mr Abouzeid, Mr Zaghloul was not aware that end of service benefit was only paid upon visa cancellation. It is entirely likely that he told Ms Lakhan and Ms Wilkie of his personal experience and that he was not so aware. That removed the basis for the understanding which was asserted in his witness statements, an understanding dependant on knowledge of the company policy, and so it is also credible that Mr Zaghloul said at the meeting that the extension of the visa was not linked to the end of service payment. Indeed, it appears that when he came to give evidence in Mr Abouzeid’s case he did not maintain that it was, see the explanation in [96] above, especially “by that time [ie December 2015] me myself and Ramy Abouzeid were aware that the end of service benefits are related to the visa cancellation”, and the Judge’s remark at [105] below.

99. To return to the narrative, Mr Beckley ask Mr Zaghloul what had happened at the meeting. Mr Zaghloul said that he told Mr Beckley what had happened and left to him what to do next. Mr Beckley said that Mr Zaghloul told him that he had said nothing at the meeting that deviated from any of his witness statements. If that be so, it is rather surprising that Mr Beckley did not go back to Global, taking up the invitation to discuss in the email, to clarify what appeared to be a misunderstanding. He did not.

100. Mr Beckley said on a number of occasions in his evidence that he considered that Global was “throwing in the towel “. He therefore terminated Global’s retainer and engaged other legal representatives, BSA Ahmad Bin Hazeem & Associates LLP (“BSA”).

101. Global passed the papers over to BSA. The hearing of Mr Abouzeid’s case was delayed for a day, until 21 February 2019. TIG was represented by Mr David Russell QC, instructed by BSA. Justice Sir Jeremy Cooke (the “Judge”) gave judgment on 28 February 2019 (the “Judgment”).

102. The Judge recorded that it was conceded at the outset of the hearing that any agreement that was reached as to deferment of payment of end of service entitlements could not operate to prevent the application of Article 18 of the Employment Law. His Honour said that he considered the concession was rightly made. After some discussion of why that was so, he said that TIG was therefore liable for the penalty to 6 November 2016, being an amount of AED 1,210,560, even if there was an agreement relating to cancellation of the visa.

103. The Judge then turned to whether there had been agreement to the continuation of medical insurance and for reimbursement by Mr Abouzeid of the premium, explaining that that had impact both in relation to the deduction of the AED 14,000 from the payment made on 6 November 2016 and in relation to a further penalty from 6 November 2016 to the date of payment of any judgment which decided that the sum had been wrongly withheld. After an extensive consideration of the evidence, he held that there had been agreement (although it was found that the meeting between Mr Zaghloul and Mr Abouzeid had been at the end of August, not in early October) and that TIG was not liable for any further penalty. In the course of the discussion, and consistently with Mr Zaghloul’s failing to support it, his Honour said (at [25]) that “ [t]o the extent that it matters, I find that there was no agreement to defer the payment of the EOS until cancellation of the visa, although it was company policy that the two should go together”.

104. TIG was ordered to pay costs subject to a reduction in relation to the issue over medical insurance.

105. TIG applied for permission to appeal. On 8 May 2019, the Judge dismissed the application as having no reasonable prospects of success. His reasons included that it :

“… seeks to reargue a point already decided in the DIFC Court of Appeal and affirmed by it subsequently and to argue against a factual findings as to the absence of an agreement in circumstances where the Applicant/Defendant’s own witness never testified that there was such an agreement.”

106. TIG applied to the Court of Appeal for permission to appeal. The application was dismissed by the Chief Justice on 11 July 2019.

107. Although there was no evidence of it, TIG said in the Defence that costs payable by it were agreed at AED 277,682. It said that it incurred fees payable to BSA in the amount of AED 194,377.18, although the invoices in evidence (including Mr Russell’s account) totalled AED 166,562. From the invoices, the greater part of these fees related to the applications for permission to appeal.

108. I turn to whether there was negligence on the part of Global.

109. In the Defence, the complaints of TIG were that Global had been unwilling to proceed to trial with a defence in accordance with its obligations, and had failed “to provide proper opportunity in trial to plead the circumstances which gave rise to the postponement of the payment of the End- of-Service Gratuity in the Ramy Abouzeid case”. It was not easy to ascertain whether and how these complaints were carried forward and supported in TIG’s case, or how otherwise it was contended Global had been negligent.

110. Global did decline to put forward the defence that it had been agreed that payment of end of service benefits was deferred until cancellation of the visa. But it must be asked why it did so, and whether it was for that reason negligent.

111. The why was stated in the email of 18 February. When pressed on negligence in oral closing submissions, Mr Kanaan’s response was and was only that Ms Lakhan and Ms Wilkie should have interrogated Mr Zaghloul as why he had received end of service benefits without cancellation of his visa, to which may possibly be added from the written closing submissions that they should have checked with other witnesses for the policy. If Mr Zaghloul told them that there was no agreement on the matter, there was no reason for them to do so; nor did the policy in fact matter, since the importance to Mr Zaghloul’s testimony was what his experience had been and his knowledge of the policy, not why his experience had been as it was or what the policy in fact was. There was no negligence in this respect.

112. I do not leave it there but have sought to discern other elements in TIG’s case.

113. So far as that case included that Mr Zaghloul had not told Ms Lakhan and Ms Wilkie that there was no agreement, I have not accepted it. On what he told them, it was unsurprising that they thought it was not TIG’s policy that visa cancellation was required before end of service was paid, but the critical consequence was that it could not be maintained that agreement had been reached with Mr Abouzeid for deferral of payment of end of service benefits until visa cancellation. So far as, from references to loyalty and failure to advance TIG’s interests in the Defence and elsewhere, TIG’s case included that Global was nonetheless negligent or otherwise in breach of duty in failing to advance the argument that agreement had been reached, Mr Beckley agreed that if Mr Zaghloul said there was no agreement there was an “ethical dilemma”, and even without his agreement I accept that, on what it had been told, Global was correct to decline to put forward that defence. There was no negligence in either of these respects.

114. In TIG’s written closing submissions, it was said that Global should have identified the parts of Mr Zaghloul’s witness statements which would have to be withdrawn. It was not necessary to parse the witness statements for the purposes of the email of 18 February 2019. A thrust of the written submissions, in line with Mr Kanaan’s response above-mentioned, was that the policy in fact was that end of service benefits were paid only after visa cancellation, and Global should have “properly investigated” (as it was put at one point). For the reasons I have given, that was not in point. It is also said that it was found in the Judgment that Mr Abouzeid had signed a letter of resignation acceptance stating that payment of benefits would be “in accordance with Group policies and practices”, with the suggestion that this provided a reasonable basis for agreement to receive the end of service benefit upon cancellation of his visa and implicitly that Global had failed to appreciate that argument. That was not raised with Ms Lakhan, from the Judgment it was not an argument Mr Russell considered could be mounted – the only agreement considered, but rejected, was through Mr Zaghloul’s evidence – and as the evidence was left it cannot be concluded that Global failed in this respect.

115. The complaint of failure to provide a proper opportunity at trial seems more correctly to have been a matter of causation, on the reasoning that Global’s negligence caused TIG to terminate its retainer and the replacement legal representatives were left with insufficient time to properly prepare and present TIG’s defence. From a degree of amplification in the Defence and from the skeleton argument and written closing submissions, the contention was that the replacement legal representatives did not have the opportunity, as it was put in the skeleton, “to particularise clearly to the courts the legal implications of the existence of an agreement for the deferment of the payment of the end of service” by reason of the letter of resignation acceptance, the agreement made with Mr Zaghloul, and failure of Mr Abouzeid to cooperate in the cancellation of his visa.

116. So far as it was meant that an insufficiency of time was itself negligence by Global, the timing was not Global’s fault, and the operative act was TIG’s decision to terminate the retainer. The contention otherwise leads nowhere without negligence on the part of Global, and in any event there was no evidence, from Mr Russell or anyone else, that the exigencies hampered presentation of a proper defence. The bald assertion in Mr Beckley’s fourth witness statement that “if [the replacement legal representatives] had adequate time, they would undoubtedly have been able to prepare a proper defence to the balance of the claim” is manifestly inadequate. There is insufficient reason to conclude that more time would have improved the defence of the claim.

117. Negligence on the part of Global has not been established.

118. In so stating, I should mention a curiosity in the email of 18 February 2019. It was there said that, while the deduction of the medical insurance could be defended, the value of that aspect of the claim was insignificant; but, as appears from the Judgment, it was not insignificant, because deduction of the premium for the medical insurance, if unauthorised, meant that an amount owing was not paid and so the daily penalty continued beyond early November 2016 and could amount to a large sum. Did Global misapprehended that part of the claim and the defence to it, and as a result advise that the defence to the penalties claim would fail in whole?

119. However, that was not part of the proceedings; I mention it to make that point. TIG said in various ways in the Defence and the skeleton argument that the Judge had found in its favour on penalty amounts for the period beyond early November 2016 although Global had said it could not defend that part of the claim. But it did not take the further step of asserting and relying on negligence in that respect. In the amplification in the Defence of its complaint of Global’s unwillingness to proceed to trial in accordance with its obligations, it dealt only with what happened about Mr Zaghloul’s testimony, and said of the email of 18 February that Global “stated that it refused to represent the Defendant for the substantial amount of the claim, largely on the basis that they believed that the testimony of Mr Zaghloul was in relevant part incorrect”. A basis that they had negligently misapprehended Mr Abouzeid’s claim and the defence to it was not suggested. TIG did not ask Ms Lakhan anything about the matter, as it should have if that were part of its case, and no opportunity was given to her to explain the curiosity. Nor, after in closing submissions I raised the curiosity wth Mr Patchett-Joyce, appearing for Global, did Mr Kanaan take up the ball and run with it; as I have said, the negligence he identified was failure to interrogate Mr Zaghloul as to why he had received end of service benefits without cancellation of his visa.

120. The counterclaim fails for the further reason that, even if negligence be assumed leading to TIG terminating Global’s retainer, it has not been established that TIG thereby suffered loss.

121. The loss claimed by TIG had three components: the AED 1,210,560 for which it was held liable in the Judgment; the AED 277,682 said to have been paid as the costs ordered in the Judgment; and the AED 194,377.18 said to have been charged by BSA. For present purposes, I assume the latter two amounts are correct.

122. The AED 1,120,560 was not a consequence of any negligence on the part of Global. Global advised that TIG would be held liable for that penalty period, and it was so found. TIG’s submissions did not explain causation, but I do not accept that the defence would have had greater success had Global continued to represent TIG or should have had greater success in the hands of BSA and Mr Russell but for time exigencies. The AED 277,682 is in the same position.

123. As to the AED 194,377.18, Global would have charged fees in the continued representation of TIG, and the charges of BSA were in substitution for Global’s fees. At best for TIG, it could show that BSA’s charges were increased and greater than the costs which Global would have charged by the need to get up to speed on the matter when taking over from Global, or perhaps by the engagement of Mr Russell in place of representation by Ms Wilkie, but that was not attempted. As well, the costs related to the applications for permission to appeal could not be held against Global.

124. It remains to address the defence that TIG was not liable for part of the Fees claimed. It had two limbs.

125. One limb was related to the complaints over the defence of Mr Abouzeid’s claim. In the written closing submissions it was confined to an amount for preparation of a skeleton argument (prior to 18 February 2019) for the trial; an amount for other unspecified work leading up to the trial; an amount charged for the 18 February meeting with Mr Zaghloul; and an amount for the application to come off the record after the retainer was terminated.

126. On the findings I have made, in the absence of negligence there is no basis for TIG being relieved of liability for these amounts. Even if there were negligence leading to termination of Global’s retainer, that would not relieve TIG from payment of the first two amounts: the skeleton argument was used in the trial, and there is nothing to show that the other unspecified work was not proper preparation which was taken over by BSA. Arguably the third amount would fall if there were negligence, and the fourth would. But that does not arise.

127. The other limb was independent of any negligence. In the written closing submissions it was said that TIG was not liable for fees set out in another table in the response to the letter before action. The Fees deducted totalled AED 121,795, with the reason “N Esfandnia Hrs Reduced”. The submissions said that Mr Beckley “believed that there was clear evidence of overcharging prior to any discussion with respect to an agreement“. The matter was not otherwise explained.

128. However, there was no evidence to the effect asserted from Mr Beckley; rather, in his fourth witness statement he said that the issue with the billings for the Ramy Abouzeid case was “the excessive hours charged by Ms Hoare”. Perhaps that should be seen as a slip for Ms Esfandnia, but even if so there was no evidence from Mr Beckley or anyone else saying why the hours were excessive. The invoices were in evidence, and it appears that the charges for all hours for Ms Esfandnia were deducted. Wholesale exclusion of her time does not seem credible. As this was left, no basis has been shown for concluding that there was excessive charging.

Interest and costs

129. Global is entitled to pre-judgment interest from 30 days after the dates of the various invoices, at the average short term lending rate to prime borrowers prevailing in Dubai. It will be necessary for the interest to be calculated. Having succeeded in full, in the ordinary course it is also entitled to the costs of the proceedings: I will so order, but will reserve liberty to apply as to costs in case either party considers that there are grounds for a different order.

Orders

130. I make the orders –:

Issued by:

Nour Hineidi
Deputy Registrar
Date of issue: 27 August 2020
At: 4pm