CFI 021/2020 (1) Tp Icap Group Services Limited (2) Tullett Prebon (Europe) Limited v (1) Gmg (Dubai) Limited (2) Opeyemi Olayanju
CFI 021/2020 (1) Tp Icap Group Services Limited (2) Tullett Prebon (Europe) Limited v (1) Gmg (Dubai) Limited (2) Opeyemi Olayanju
April 12, 2020  court of first instance - Orders
Claim No: CFI 021/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE
COURTS
IN THE
COURT
OF FIRST INSTANCE
BETWEEN
(1) TP ICAP GROUP SERVICES LIMITED
(2) TULLETT PREBON (EUROPE) LIMITED
Claimants/Applicants
and
(1) GMG (DUBAI) LIMITED
(2) OPEYEMI OLAYANJU
Defendants/Respondents
ORDER WITH REASONS OF H.E JUSTICE ALI AL MADHANI
PENAL NOTICE
IF YOU (1) GMG (DUBAI) LIMITED OR (2) OPEYEMI OLAYANJU DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED
ANY PERSON WHO KNOWS OF THIS ORDER AND DISOBEYS THIS ORDER OR DOES ANYTHING WHICH HELPS OR PERMITS ANY PERSON TO WHOM THIS ORDER APPLIES TO BREACH THE TERMS OF THIS ORDER MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED
This Order prohibits you from doing the acts set out in paragraphs 1 and 2 of this Order and obliges you to do acts. You should read it all carefully. You are advised to consult a solicitor as soon as possible. You have a right to ask the
Court
to vary or discharge this Order.
UPON
the Claimants’ claim issued on 24 February 2020
AND UPON
the Claimants’ Application Notice dated 25 February 2020
AND UPON
hearing Counsel for the Claimants and Counsel for the Defendants at the hearing on 3 March 2020
AND UPON
reviewing the witness statement of Mr. Andrew Berry on behalf of the Claimants and the evidence exposed so far in the matter
AND UPON
accepting the undertakings in Schedule A to this order
AND UPON
considering all the relevant documents recorded in the case file
IT IS HEREBY ORDERED THAT:
INJUNCTIONS
1. The First
Defendant
must not, until judgment at trial before this Court or further order discharging this Order in the meantime, whether directly or indirectly or through any other person acting on its behalf:
a. permit or allow the Second Defendant to carry out work for, or assist in any capacity (whether for reward or otherwise), the business of GMG, whether as an employee, consultant, agent or otherwise howsoever; or
b. induce or encourage the Second Defendant to breach his contract of employment with the First
Claimant
or to cease working for the First Claimant.
2. The Second Defendant must not, until judgment at trial or further order discharging this Order in the meantime, whether directly or indirectly or through any other person acting on his behalf be employed or engaged or concerned or interested in any capacity in the conduct of GMG’s business, or otherwise assist the business of GMG, whether by undertaking employment with or rendering services thereto, or in any manner taking part in or lending his name, counsel or assistance thereto, whether for reward or otherwise, or otherwise howsoever.
3. Nothing in this Order shall prevent the Second Defendant holding or being interested in listed or unlisted investments representing not more than 3% of any class of securities in any one company, with the prior written consent of the Claimants.
DEFINITIONS
4. For the purposes of the injunctions in this Order, the following definitions will apply:
a. “GMG” means the First Defendant, and/or the First Defendant’s corporate group (the “GMG group”), and/or any associated entity of the GMG group;
b. “Group Company” means the Claimants, their holding companies, any subsidiary of the Claimants or their holding companies, and any associated companies of any of those companies from time to time. For this purpose:
i. a company is a holding company of another if that other company is its direct or indirect subsidiary;
ii. a company is a subsidiary of another if that other company holds a majority of the voting rights in it (including pursuant to an agreement with other shareholders), or is a member of it and has the right to appoint or remove a majority of its board of directors, or if it is a subsidiary of a company which is itself a subsidiary of that other company, or is a subsidiary of a Group Company; and
iii. a company is an associated company of another company if that other company beneficially owns not less than 20% and not more than 50% of its ordinary share capital.
INTERPRETATION
5. Unless otherwise stated, references in this order to “the Defendant” or “the Respondent” mean any or all of them; and this Order is effective against any Defendant on whom it is served or who is given notice of it.
6. A Defendant who is an individual who is ordered not to do something shall not do it himself or in any other way. He shall not do it through others acting on his behalf or on his instructions or with his encouragement.
7. In this Order containing Undertakings the words “he”, “him” or “his” include “she” or “her” and “it” or “its”.
DIRECTIONS
8. There shall be liberty to apply.
PARTIES OTHER THAN THE APPLICANT AND RESPONDENTS
9. It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of the terms of this Order. Any person doing so may be imprisoned, fined or have their assets seized.
NAME AND ADDRESS OF
CLAIMANT
’S SOLICITORS
10. The Claimants’ Legal Representatives in the
DIFC Courts
proceedings are
Eversheds Sutherland (International) LLP Emaar Square – Building 6
Level 8, Unit 803 Burj Khalifa
PO Box 74980
Dubai
United Arab Emirates Tel:  +971 4 389 7000
Fax: +971 4 389 7001
Email:RebeccaCopley@eversheds-sutherland.com and SarahAnderson@eversheds-sutherland.com
COMMUNICATION WITH THE COURT
11. All communications with the
DIFC
Courts in respect of this Order should be electronically sent to:
registry@difccourts.ae
quoting case number CFI-021-2020.
COSTS
12. Costs reserved to the Trial
Judge
.
SCHEDULE OF REASONS
Introduction
1. By all accounts, Mr. Opeyemi Olayanju appears to be a very bright young man with a promising future ahead of him. In October 2016 after completing his studies, Mr. Olayanju commenced employment in London with Tullett Prebon (Europe) Limited (“
Tullet Prebon
”), one of the world’s leading inter-dealer broking businesses and a subsidiary of the global firm, TP ICAP Group Services Limited (“
TP Group
”). Just over a year later, on 27 November 2017, Mr. Olayanju was promoted within Tullet Prebon to the rank of Trainee Broker and only a year-and-a-half after that, on 20 May 2019, he was promoted again, this time to the rank of Broker. As a Broker, Mr. Olayanju worked on Tullet Prebon’s Emerging Markets Africa Desk where he specialised in certain African products and currencies and was paid a handsome basic wage of GBP 50,000 per annuum.
2. Then in December 2019, Mr. Olayanju began a new job here in the DIFC, now working for GMG (Dubai) Limited (“
GMG
”), another inter-dealer broking business.
3. But on 24 February 2020 events took a turn for the worse for Mr. Olayanju. TP Group and Tullet Prebon (the “
Claimants
”) issued proceedings in the DIFC Courts against Mr. Olayanju and his new employer (the “
Defendants
”), asking the Court to restrain the former from continuing to work for the latter and to restrain the latter from continuing to engage the former, by way of final injunctive relief (the “
Claim
”). In brief, the alleged basis of Claimants’ claim was that Mr. Olayanju was a current employee of theirs, that he was in flagrant breach of his employment contract – principally for commencing work with a competitor – and that GMG had induced or procured the breaches in question.
4. The Claimants sought voluntary undertakings from the Defendants that Mr. Olayanju would not continue to work for GMG until the matter was determined at trial, but the Defendants refused to do so. In the circumstances, on 25 February 2020, the Claimants made an application to the Court for interim injunctions to the same effect as those they sought in a final form, and on an urgent basis (the “
Application
”). The matter was deemed by the Court’s
Registry
to be urgent and it was accordingly expedited and heard before myself on 3 March 2020. A difficult decision to make, I initially reserved judgment before finally, on 10 March 2020, granting the Claimants the injunctions they sought with reasons to follow (the “
Order
”). Herein are my reasons.
Background
5. As mentioned above, Mr. Olayanju began his employment with Tullet Prebon in October 2016. His initial contract of employment has been varied twice since then upon each of his promotions, most recently by letter dated 30 April 2019 (the “
Contract
”). The governing law of the Contract is English law and the Contract provides, amongst other things:
Your employment under this Employment Agreement, subject to the provisions of clause 11.1 of the attached Schedule of Standard Terms, shall be for a further minimum term of 24 months (“the Term”) starting from the Start Date [being 1 May 2019] and shall continue thereafter unless terminated by either party giving to the other not less than 12 months written notice such notice not to be given before the end of the initial minimum term 30 April 2021.
In other words, Mr. Olayanju agreed to work for Tullet Prebon for a minimum term from 1 May 2019 to 30 April 2021, and only at the end of that minimum term would he be entitled under the Contract to give notice to terminate his employment, with the notice period required to be twelve months. So long as the Contract remained binding, then, the earliest Mr. Olayanju could cease working for Tullet Prebon was on 30 April 2022.
6. The Contract also provided that Mr. Olayanju owed ongoing obligations of loyalty to Tullet Prebon for the duration of his employment:
10.3 You must devote the whole of your working time and attention to the service of the Group.
Unless you have obtained the prior written consent of the Company you may not, during the Term, be directly or indirectly engaged or concerned in the conduct of any other business
save through your holding or being interested in listed or unlisted investments representing not more than 3% of any class of securities in any one company. You may not undertake any paid work in your spare time.
10.4
For the duration of this Employment Agreement you shall not, directly or indirectly, undertake employment with or render services to, or enter into or in any manner take part in or lend your name, counsel or assistance to any person doing business
whether as proprietor, principal, investor, partner, director, officer, employee, consultant, advisor, agent, independent contractor or in any other capacity whatsoever
for any purpose which would or could reasonably be expected to be competitive with any business of the Company or any other Group company
. (emphasis added)
7. Furthermore, under clause 10.5 of the Contract, Mr. Olayanju expressly acknowledged that his employer was relying on his services for the full term of his contract:
The services to be rendered by you under this Employment Agreement are special, unique and have extraordinary character, and you acknowledge that the Company is relying upon such services from you for the full Term. You further acknowledge the vital interest of the Company in retaining its employees and that the level of your benefits, including salary and bonuses, constitutes adequate consideration for your obligations and commitments under this Employment Agreement.
8. The foregoing is uncontroversial. Mr. Olayanju has not disputed that he entered into the Contract with Tullet Prebon and nor has he contested its terms. Neither is it denied that Mr. Olayanju went on to enter into a new employment contract with GMG – a competitor of the Claimants – in December 2019. Disagreement between the parties, instead, pertains to events which occurred between the dates these two employment contracts were concluded.
9. On 19 December 2019, Mr. Olayanju purported to resign without notice from Tullet Prebon. He considered himself to have been constructively unfairly dismissed because of an alleged repudiatory breach of contract by his employer and he considered himself to be, therefore, discharged from any duties under the Contract. The purported resignation was sent by Mr. Olayanju after a grievance hearing organised by Tullet Prebon to discuss his grievances and in the main the purported resignation reiterated those grievances he had previously conveyed to the company. It seems that at the time of Mr. Olayanju’s purported resignation, Tullet Prebon personnel had suspicion or perhaps confirmation that Mr. Olayanju was already in negotiations with GMG. In an email sent immediately after Tullet Prebon’s receipt of Mr. Olayanju’s purported resignation, a Senior Managing Director of TP Group, Mr. Andrew Berry, wrote to the Head of Employee Relations, Ms. Anna King, and HR Business Partner, Ms. Jasmine Joshi, saying:
He has been in negotiations with GMG to start there. They have his contract and have been finalising the deal last week. So he is far from telling the whole truth hete [sic].
Ms. King, who had chaired the hearing, wrote back saying:
Graham and I held the grievance hearing with [Mr. Olayanju] this morning. His resignation was sent within 5 mins of that meeting ending. We need to respond to the points he’s raised and I’ll liaise with Jasmine about sending a response to him.
It should be noted, however, that the Defendants deny that they had been in negotiations with each other prior to Mr. Olayanju’s purported resignation from Tullet Prebon.
10. Later the same month, Mr. Olayanju began working for GMG. The Claimants conducted their own investigations and by early February they were convinced that Mr. Olayanju had commenced working for GMG. Accordingly, the Claimants’ legal representatives wrote to each of the Defendants on 10 February 2020, setting out their concerns about the Defendants’ conduct and seeking voluntary undertakings that Mr. Olayanju would not continue to work for GMG. Both letters stated, amongst other things:
If you fail to comply with these requirements by 5.00pm on Thursday, 13 February 2020, we will advise our client to commence proceedings and to apply to the court for injunctive relief without further notice to you…
11. No undertakings were given by either of the Defendants. Instead, in a somewhat vague response to the Claimants dated 13 February 2020, GMG suggested to them that their position was unsubstantiated:
You allege
“your client has recently become aware that Mr Olayanju is working for [GMG] in [GMG’s] Dubai office in clear breach of his continuing obligations to our client.”
In the same letter you proceed to state Mr Olayanju’s purported obligations to TP ICAP Group Services Limited (TP ICAP) and that he may be in breach of those obligations. This is denied.
We deny the unsubstantiated allegation made by you in circumstances where you have failed to provide any proof, particularity or specificity as to the basis upon which
“your client has…become aware.”
GMG strongly objects to such statements being made based on conjecture especially as it gives rise to a defamatory statement, in the United Arab Emirates were [sic] GMG is situated. A matter which we will address later in this letter.
For his part, Mr. Olayanju did not respond to the letter and nor to subsequent emails or phone calls and messages to his WhatsApp mobile-phone application.
12. In the circumstances, on 24 February 2020, the Claimants issued the Claim for final injunctive relief to restrain the Mr. Olayanju from working for GMG and to restrain GMG from engaging Mr. Olayanju, and they reserved their rights to pursue a claim for damages and other reliefs. The Claimants submit in their Claim that Mr. Olayanju’s assertion that he had been constructively unfairly dismissed was wholly artificial and that it was designed to help him join GMG, while they have not accepted Mr. Olayanju’s purported resignation. Therefore, they submit, Mr. Olayanju is in flagrant breach of his Contract, including of the express terms set out above and implied terms under English law such as those pertaining to the duties of fidelity and trust and confidence. Furthermore, the Claimants submit in their Claim that in continuing to employ Mr. Olayanju while knowing that he is a serving Tullet Prebon employee and that he cannot lawfully leave Tullet Prebon until April 2022, GMG is unlawfully inducing or procuring a breach of a legal right and unlawfully interfering with a contract, in breach of Articles 32 and 34 of DIFC Law No. 5 of 2005, being the Law of Obligations, respectively.
13. On the same day, and in light of the fact that they had been unable to establish contact with Mr. Olayanju, the Claimants made an application to the Court seeking the Court’s order that alternative service on Mr. Olayanju by way of either a personal email address or via his WhatsApp mobile-phone application would be deemed good, valid and sufficient service. The application was heard on the same day before me and was granted, but with Mr. Olayanju’s English home address added as a third channel for service and with each of the three channels stipulated as compulsory – “and” instead of “or” – for service on Mr. Olayanju to be deemed good.
14. On 25 February, the Claimants issued this Application, serving the Defendants with it later that same day. The Claimants again invited the Defendants to give undertakings in correspondences on 26 February 2020. The Defendants, again, refused to do so, however, and so the hearing which had been listed for 2 March 2020 went ahead.
Discussion
15. By this Application, the Claimants seek to restrain alleged wrongdoing by the Defendants on an interim basis; they seek orders from the Court stopping alleged damage being wrought by the Defendants to its business pending trial. At the interim stage, the principles from the case of
American Cyanamid v Ethicon
[1975] AC 396 apply. Accordingly, in this Application, the Court must consider, firstly, whether there is a serious issue to be tried; secondly, whether damages would be an adequate remedy for the Claimants if injunctive relief was not granted, and, if not, whether the Defendants would be adequately compensated by cross-undertaking in damages if they succeeded at trial; and thirdly, the Court must consider the balance of convenience. The Defendants “strongly” resist the Application on the bases, they contend, that the DIFC Courts are not the correct forum for bringing this Application, principally because of a lack of jurisdiction, and that the Application is in any event without merit.
Jurisdiction
16. The first issue that must be discussed is jurisdiction, without which even the most serious of issues cannot be tried and with which the doors of this Court are unlocked. The Defendants say that the Application should be struck out on the ground that this Court does not have jurisdiction to determine it. The Claimants submits that this is incorrect and that, in any event, the Defendants have submitted to the Court’s jurisdiction, thereby establishing jurisdiction in circumstances where it might even have been lacking initially.
17. There are three important points of discussion in relation to DIFC Courts jurisdiction or the lack thereof in the instant matter, namely an exclusive jurisdiction clause in the Contract, the Defendants’ alleged submission to this Court’s jurisdiction and conventional jurisdiction by way of the “jurisdictional gateways” of Article 5(A)(1) of Dubai Law No. 12 of 2004, being the
judicial authority law
(the “
JAL
”). I will discuss each point now in turn.
Clause 20 of the Contract
18. In disputing the DIFC Courts’ jurisdiction over the instant matter, the Defendants principally rely on Mr. Olayanju’s Contract with the Claimants and in particular its governing law and dispute resolution provision, clause 20, which provides:
This Employment Agreement is governed by and shall be construed in accordance with the laws of England and
the parties to this Employment Agreement submit to the exclusive jurisdiction of the English courts to settle any dispute, which may arise in connection with your employment
. (emphasis added)
The Defendants submits that this term is unequivocal and that, pursuant to it, the instant claim should have been issued in the English courts and not those of the DIFC.
19. Moreover, the Defendants have informed the Court that Mr. Olaynaju is intending to bring in the English courts an employment tribunal claim for unfair dismissal contrary to section 98 of the Employment Rights Act 1996 (UK) and race discrimination claims contrary to sections 13 and 26 of the Equality Act 2010 (UK). These are not claims that the DIFC Courts have jurisdiction over, the Defendants submit. In written submissions, the Defendants have given the following cautions:
…the serious risk of inconsistent findings of fact by two different Courts on a central issue in both these proceedings and the unfair dismissal proceedings: namely, whether there was a repudiatory breach of contract. This would be a highly undesirable position.
....
Especially given the exclusive jurisdiction of the English Courts in the employment contract…, and the specialist expertise of employment tribunals dealing with constructive unfair dismissal matters, in all the circumstances it is not appropriate for the Courts of the DIFC to have jurisdiction over this dispute.