GFH Capital Ltd v Haigh & Ors

A foreign judgment may be enforced at common law where it is final and conclusive, concerns a definite sum, and was given by a court having jurisdiction under English conflict-of-laws principles. The enforcing court does not rehear the merits. The judgment may be impeached only on established grounds including fraud, public policy or denial of substantial justice. Submission may arise from a counterclaim or voluntary participation, assessed by reference to all the circumstances. Fraud requires a prima facie case that conscious and deliberate dishonesty was material and causative of the foreign judgment. A party cannot use enforcement proceedings to relitigate issues already determined abroad. Misappropriated funds may be traced into substitute assets, subject to the bona fide purchaser defence.

GFH sought summary judgment and strike-out to enforce at common law a judgment of the Dubai International Financial Centre Court against its former deputy chief executive, Mr Haigh. The DIFC judgment awarded specified sums for misappropriation and declared that they were held on constructive trust for GFH.

Mr Haigh resisted enforcement, alleging want of jurisdiction, fraud, public-policy and natural-justice defects, and pursued defences and counterclaims concerning his employment, arrest and treatment in Dubai. GFH also sought proprietary declarations against companies said to hold assets acquired with the misappropriated funds. The central issues were whether the DIFC judgment was enforceable and whether any defendant had a real prospect of defending the enforcement or tracing claims at trial.

1. Application allowed. GFH was entitled to judgment against Mr Haigh based on the DIFC judgment and to the proprietary declarations sought, subject to further argument on the precise scope and form of declarations concerning Mr Haigh’s interests in certain companies.
2. The DIFC judgment was final and conclusive and was for definite and ascertained sums. It was not a judgment for taxes, fines or penalties. Enforcement depended on English conflict-of-laws principles, not on whether the DIFC court had jurisdiction under UAE law.
3. Mr Haigh had submitted to the DIFC court’s jurisdiction by advancing positive counterclaims after returning to the United Kingdom, without pursuing his jurisdiction objection. The counterclaims went beyond purely defensive steps. In any event, his conduct gave him no realistic prospect of showing that participation on the merits was involuntary.
4. There was no realistic prospect of impeaching the judgment for fraud. The allegations had been raised and rejected in the DIFC proceedings and the proposed additional evidence was immaterial, late and unsupported. The applicable inquiry was whether there was a prima facie case that conscious and deliberate dishonesty had materially caused the foreign judgment.
5. There was no arguable public-policy or natural-justice objection. Mr Haigh had notice, opportunities to participate, permission to attend remotely and a fair opportunity to present his case. Differences between DIFC and English procedure, alleged judicial dependence, medical difficulties and alleged call-blocking did not establish a denial of substantial justice.
6. The remaining defences and counterclaims were barred by cause-of-action or issue estoppel, or constituted an abuse of process, because they had already been determined or struck out in the DIFC proceedings. The court would not permit a re-examination of the foreign judgment’s merits.
7. Breach of fiduciary duty supported equitable tracing. Mr Haigh held the misappropriated sums and their traceable proceeds, including property, on constructive trust for GFH. The Second, Third, Fifth and Sixth Defendants were corporate embodiments of Mr Haigh for issue-estoppel purposes and had no realistic prospect of establishing a bona fide purchase or other defence.

First-instance decision. The judgment refers to earlier proceedings in the DIFC Court, including the DIFC Court of Appeal’s orders setting aside an immediate judgment and remitting the claim for trial, followed by the DIFC judgment dated 4 July 2018.