17th December 2024
Samantha O’Brien O’Reilly details a recent example of the application of English and Welsh common law and precedent in a case in the Abu Dhabi Global Market courts concerning allegations of duress, misrepresentation and theft of the intellectual property of a sustainable cooking stove promising “CO2 free, zero emission cooking, anytime, anywhere”[1].
The ADGM Courts have handed down judgment in Campos and Others v Parish and Others [2024] ADGMCFI 0017. This is a case applying Abu Dhabi Global Market (ADGM) law, arising out of the termination of a joint venture agreement.
The case is an example of the application of English and Welsh common law and precedent in the ADGM, further to the Application of English Law Regulations 2015. These Regulations incorporated English common law “as it stands from time to time” into the law of the ADGM[2].
The case concerns allegations of theft of intellectual property, fraudulent misrepresentations and lawful act duress. It also addresses the importance of the independence of expert witnesses.
The decision followed a five-day trial in the ADGM Courts in Abu Dhabi, with factual, patent and technical expert witnesses, followed by a day of closing submissions. The trial investigated complex technology and patent issues, arising in a technology joint venture arrangement, against a background of allegations of fraud and duress. Quentin Tannock represented the successful Defendants and Counterclaimants.
The successful Defendants and Counterclaimants included Kinetic7. Kinetic7 is the company that produces the Kinetic7 Portable Stove, described on the company’s website as a “cutting-edge portable stove [contributing] to a greener and more sustainable future”. As the court explained at [103], the stove is said to promote clean and efficient cooking through burning hydrogen gas instead of carbon-dioxide releasing traditional fuels, using “a small amount of water and batteries charged by the sun”.
The First Claimant (unsuccessfully) sought injunctive relief against the First Defendant and Kinetic7 claiming that the Kinetic7 procedure and marketing of the Kinetic7 Portable Stove represented theft of his intellectual property. The First Claimant also (unsuccessfully) sought relief in equity for duress, claiming that his consent to share transfers and agreements to resign Directorships was vitiated by duress. The Defendants (successfully) defended these claims and counterclaimed on the ground that the joint venture agreement between the parties had been induced by the First Claimant’s fraudulent misrepresentations.
The First Claimant and First Defendant first met at a lunchtime presentation at which the First Claimant demonstrated a blue box named ‘HYDROGAS’. The First Claimant alleged that this box could, using technology he had developed, produce potable alkaline water with a pH of 9.5 (“Angel Water”). As explained by His Honour Mr Justice Stone SBS KC at [8], “water with a high pH level is regarded as beneficial to health as it is thought to neutralise acid in the bloodstream and to boost immunity levels”.
The First Claimant and the First Defendant subsequently entered into a joint venture agreement. The initial aim of this agreement was to market and commercialise ‘Angel Water’.
Relations subsequently broke down between the parties, resulting in litigation.
From [37] of the decision, the court considered the Defendants’ primary case in respect of fraudulent misrepresentation, referring to BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises Inc [2019] 2 All ER (Comm) 501. This case establishes at [43] that when there is a fraudulent misrepresentation, there is an evidential presumption that a representee would have been induced by the fraudulent representation intended to cause them to enter into the contract. This evidential presumption amounts to a presumption of fact that is “very difficult to rebut”. At [53] His Honour Mr Justice Stone SBS KC found that the Defendants’ case in fraudulent misrepresentation was established.
From [56], the court considered the Claimants’ case in respect of alleged duress, which consisted of alleged violent threats and verbal abuse that were claimed to have vitiated the First Claimant’s consent to share transfers (amongst other matters). The court went on to reject the First Claimant’s allegations of imminent physical violence as far-fetched however, at [78]. At [79] the Judge referred to the common law position that, in cases of lawful act duress, the appropriate focus is on the nature of the demand (in this case, the demand that the First Claimant resign his Directorships and return shares), rather than the threat, before rejecting that there was duress as a matter of fact at [80].
The case is also a useful reminder that, as noted by the court at [96] “…expert witnesses must not only be, but perceived to be, independent, and are called to educate the Court in or about an area the Court otherwise would know little about”.
The court considered the First Claimant’s claim for injunctive relief at [101] onwards. As His Honour Mr Justice Stone SBS KC accepted at [113] however, referring to Mr Tannock’s submissions for the Defendants, in terms of the First Claimant’s theft of technology argument, there was no technology to steal. The court further noted at [114] that there was no evidence the First Claimant had any formal recognition, such as a registered mark or applicable patent, of that which he claimed to be his intellectual property.
Quentin Tannock was instructed by HFW’s Dubai office on behalf of the successful Defendants and Counterclaimants, including Kinetic7.
View the full judgment on the ADGM Courts website here.
Samantha O’Brien O’Reilly regularly acts as counsel in a range of contractual and tortious disputes and is particularly well placed to undertake cases related to proprietary disputes, and sustainability (including sustainable building projects). Her experience in this field is supported by her previous work in international affairs, in particular in relation to the Sustainable Development Goals and Agenda 2030 at the UN.
[1] https://www.kinetic7.com
[2] Application of English Law Regulations 2015, art. 1(1) (“The common law of England (including the principles and rules of equity), as it stands from time to time, shall apply and have legal force in, and form part of the law of the Abu Dhabi Global Market…”
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