Sobara Simon-Hart v Standard Chartered Bank

On an application for strike out and summary judgment involving DIFC employment law, the court may decide a foreign-law issue summarily only where one expert is plainly right and the opposing opinion is plainly wrong. A contractual termination power based on excessive sickness absence was not displaced by a separate contractual discretion concerning inability to perform duties because of ill health. DIFC Employment Law did not itself imply statutory standards into the employment contract. Claims depending on such implication, or on alleged contractual duties unsupported by the pleaded terms, had no real prospect of success. Statutory DIFC employment rights were, in any event, matters for the DIFC Court rather than the High Court.

The claimant was employed by the defendant in the Dubai International Financial Centre under a contract governed initially by the Employment Law Amendment Law DIFC No. 3 of 2012 and subsequently by DIFC Employment Law No. 2 of 2019. She alleged discrimination, victimisation, failures concerning her health, wrongful dismissal, unlawful deductions and breaches of contractual and implied terms.

The defendant applied under CPR 3.4(2)(a) and CPR 24.3 for strike out and/or summary judgment. The court considered the construction of the express contractual provisions, the proposed implication of DIFC statutory standards, the effect of expert evidence on DIFC law, and the proper forum for statutory employment claims.

1. Disposition. The pleaded causes of action were struck out, or summary judgment was entered, as appropriate. The claim for breach of fiduciary duty was agreed to be struck out.
2. Summary procedure. The court applied the established tests under CPR 3.4(2)(a) and CPR 24.3. It avoided a mini-trial. On disputed foreign law, summary determination was permissible only where the point was clear and one expert’s opinion was plainly right while the opposing opinion was plainly wrong.
3. Express terms. Clause 14.1, read with article 36 of the Employment Law Amendment Law DIFC No. 3 of 2012, and clause 14.5 supplied different discretionary powers. The former operated by reference to the number of sick-leave days; the latter concerned inability properly to perform duties because of ill health, accident or otherwise. Their potential overlap did not make clause 14.5 an exclusive or more generous contractual right which displaced clause 14.1. The policies relied upon were non-contractual, and clauses 17.3 and 18 imposed no obligation to provide medical treatment or refrain from termination. Clause 13.2 authorised deductions by the Bank without the alleged geographical or branch limitation.
4. Implied terms and jurisdiction. The DIFC Employment Law did not itself imply its provisions into employment contracts. Following the court’s reading of Hana Al Herz v The Dubai International Financial Centre Authority, there was no implied term of fairness, good faith, or mutual trust and confidence which fettered the employer’s contractual power to dismiss. That conclusion applied to wrongful termination as well as unfair dismissal. The claimant had not adequately pleaded any alternative basis for implying the discrimination and victimisation provisions into the contract.
5. Statutory rights. Articles 43, 44 and 67 of DIFC Employment Law did not provide a contractual remedy enforceable in these proceedings. The DIFC Court was the proper forum for contraventions of those provisions.
6. Other pleading. The paragraphs grouped under paragraphs 35(b) to (e) of the particulars of claim pleaded assertions of injury or loss rather than the basic elements of actionable causes of action and were struck out.