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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nigel v Nasri [2024] DIFC CFI 010 (15 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DCFI_010.html Cite as: [2024] DIFC CFI 010, [2024] DIFC CFI 10 |
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CFI 010/2024 Nigel v Nasri
July 15, 2024 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 010/2024
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE
IN THE COURT OF FIRST INSTANCE
BETWEEN
NIGEL
Claimant
and
NASRI
Defendant
ORDER WITH REASONS OF H.E. JUSTICE NASSIR AL NASSER
UPON the Claimant’s Application No. CFI-010-2024/3 dated 24 April 2024 seeking a Court order to amend the claim form and particulars of claim by adding an additional Defendant, namely, Nadim to the Claim (the “Application”)
AND UPON hearing the parties at the hearing held on 12 June 2024
AND UPON reviewing the case file
IT IS HEREBY ORDERED THAT:
1. The Application is rejected.
2. The Claimant shall pay the cost of this Application, to be assessed by the Registrar if not agreed.
Issued by:
Hayley Norton
Assistant Registrar
Date: 15 July 2024
At: 2pmSCHEDULE OF REASONS
1. The Claimant is Nigel (the “Claimant”), a company located and registered in the United Arab Emirates.
2. The Defendant is Nasri (the “Defendant”), a company located and registered in the United Arab Emirates.
3. The Claimant seeks to add a Second Defendant, Nadim (“Nadim”), either in its own capacity or as an agent for the Defendant.
4. The Claimant submits that this claim is in relation to a breach of contract against the Defendant, however, the engagement letter, which is central to this dispute, is addressed to Nadim. The Claimant further submits that the engagement letter, reads as follows
“Dear Sirs, Nigel would be pleased to act as the non-exclusive financial adviser to Nasri”.
5. The Claimant submits that at the very end of the engagement letter it states, "Accepted and agreed on behalf of Nadim". Therefore, the Claimant contends that the purpose of this application is to join Nadim as a party to these proceedings.
6. The Claimant submits that there is a claim on the contract which is entered into by Nadim arguing that they are a party to the contract and they also signed the contract. Therefore, the Claimant’s position is that Nadim can also assist as to the matters in dispute.
7. In support of its Application, the Claimant has drawn the Court’s attention to an email sent by Newman, with the email address ofNewman@Nadim.ae, wherein Mr. Newman refers to the response letter to the Settlement Agreement. Mr. Newman is described as a Senior Financial Analyst of Nadim.
8. The Claimant submits that it corresponded with individuals who had email addresses of Nadim and therefore Nadim was involved in the operation of the contract and not merely the CEO but various employees of Nadim.
9. The Claimant also adds that Nadim entered into the contract on its behalf and this is the reason why they wanted to plead Nadim as an agent of the Defendant.
10. The Claimant submits that they can rely on agency to say that Nadim is bound by the Contract that it entered into on behalf of it because it does not disclose that it is acting as an agent for the Defendant.
11. Therefore, the Claimant submits that in the circumstances, if the Defendant does not pay, the damages for breach of contract would be found against Nadim because Nasri has not performed the element that Nadim has promised under the Agreement.
12. The Claimant argues that the Court might reach four conclusions as to the parties to the engagement letter. The Defendant submits that the Claimant says the following: firstly, the engagement letter might be between Nadim and the Claimant and the Claimant agreed to provide services to the Defendant; secondly, the engagement letter might be between Nadim as an agent for the Defendant and the Claimant; thirdly, that the engagement letter is simply between the Claimant and the Defendant and finally, the engagement letter was between the Claimant and both the Defendant and Nadim.
13. The Defendant submits that there are two hypotheses that the Claimant puts forward which are either the Claimant entered into a Contract with Nadim or the Claimant entered into a Contract with Nadim as an agent for the Defendant.
14. The Defendant submits that on the hypothesis that Nadim has signed the engagement letter as agent for the Defendant. The engagement letter makes it clear that any and all rights and obligations under the engagement letter befall the Defendant as appears in the engagement letter “Nigel would be pleased to act as the non-exclusive financial adviser to Nasri”. In addition, it defines the Defendant as the “Client”. The Defendant refers to clause 2 of the engagement letter which sets out the terms of the fees and subparagraph 2 in particular provides “The success fee shall be payable to the adviser [i.e. Nigel ] immediately by the client [Nasri] on signing the restructuring facility”.
15. Therefore, the Defendant submits that there is no mention of Nadim and if Nadim was executing the engagement letter as agent of the Defendant, it was doing as an agent.
16. Article 180(3) of the DIFC Contract Law provides the following: “a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the Contract”. In addition, "An agent, by making a contract only on behalf of a competent disclosed or partially disclosed principal whom he has power so to bind, does not thereby become liable for its non-performance."
17. Therefore, the Court is satisfied that even if Nadim acted as an agent of the Defendant it shall not be liable for its non-performance in accordance with Article 180(3) of the DIFC Contract Law.
18. The Defendant now argues on the point that Nadim executed the engagement letter on its own account. The Defendant submits that there are no rights afforded to or obligations imposed on Nadim. Nadim receives nothing under the engagement letter and Nadim nor is it required to do anything under the engagement letter. In particular, Nadim is not obliged to pay any fees to the Claimant under the engagement letter. The only obligation to pay any fee, if any fee at all is due, is upon the Defendant.
19. The Defendant also submits that clause 6 of the engagement letter provides the following: "Unless otherwise agreed by the parties in writing, this LOM - this engagement letter - will automatically terminate upon the occurrence of the financial close of the transaction or the six-month date of this engagement letter without any cause or need for providing any legal notice or acquiring a court order, whichever is earlier."
20. The engagement letter itself is dated 8 June 2022, so, all things being equal, without any extension, the engagement letter would have expired on 8 December 2022. Therefore, the Claimant and the Defendant signed mandates extension letters, in which Nadim was not involved or mentioned on any of the extensions.
21. Upon reviewing the engagement letter and the evidence in the case file, I find that Nadim is not a party to the engagement letter, the mandate extension letters were signed and stamped by the Claimant and the Defendant. In addition, the obligations under the engagement letter are between the Claimant and the Defendant and there is no mention of Nadim as a party to the engagement letter.
22. Therefore, I dismiss the Claimant’s Application to add Nadim as a Second Defendant.
23. In relation to costs, the Claimant shall pay the Defendant the cost of this Application to be assessed by the Registrar if not agreed.