"After consideration of all of the factual and legal submissions which have been presented to me and for the reasons set out in full above, I the Tribunal hereby award, declare and adjudge as follows:
(1) I declare that Dimensions has acted in breach of Articles 4, 12 and 13 of the JVA and paragraphs 7 and 8 of Schedule 2 of the SLC by selling or offering for sale AIMS, CDS and ICM.
(2) I further declare that Dimensions has acted in breach of Articles 10 and 11 of the JVA and Articles 9 and 10 of the SLC by using Confidential Information, including the Trade Secrets, as both terms are defined above, in the development of AIMS and ICM.
(3) I order Dimensions to pay the Claimants damages to be assessed.
(4) I dismiss the counterclaim by Dimensions.
(5) I reserve jurisdiction in respect of all other requests and claims."
"5. Dimensions shall and shall procure that any Affiliate (as defined in the JVA) shall immediately cease and desist from selling, offering for sale, using, disclosing or transferring, whether directly or indirectly, in whole or in part, AIMS, CDS and ICM and any products, howsoever named or branded, containing or using the same or substantially similar functionality.
6.Dimensions is prohibited, whether directly or indirectly, including through any Affiliate (as defined in the JVA) from selling, offering for sale, using, disclosing or transferring, in whole or in part, save as required for the time being for the continuing operation of MIA, the Trade Secrets and the Confidential Information.
7.The above prohibition shall include the front-end user interfaces, including the Transaction, Rule Engine, Administration, and Data Dictionary modules, all subparts under each module, file loads, benefit templates, data structures using said file loads, and back-end source code of these products (including all versions, iterations, and/or customizations to the code) and includes any modules, file loads, benefit templates and data structures by any other name in the First Respondent’s systems.
8.Dimensions shall maintain confidentiality over the Trade Secrets and Confidential Information and immediately procure to the best of its ability that its Affiliates (as defined in the JVA) deliver up to the Claimants, all files or documents (in whatever form) containing any of the Trade Secrets or Confidential Information."
(1) On 30 April 2019, the Claimants served a fourth report by Mr Cottle.3
(2) On 9 May 2019, the First Respondent served a third report of Mr Gerardi.4
(3) On 12 May 2019, the Parties exchanged pre-hearing written submissions.5
|Amount (AED)||Amount (USD)|
|JV Breaches Claim|
|Dimensions’ Account of Profits: AIMS, ICM and CDS (100 % of revenues)||[REDACTED]||[REDACTED]|
|MedImpact’s Loss of Profits||[REDACTED]||[REDACTED]|
|Total under JV Breaches Claim||[REDACTED]||[REDACTED]|
|Dimensions’ Account of Profits: AIMS and ICM (100% of revenues)||[REDACTED]||[REDACTED]|
Quantum for Dimensions’ Competition Breach of Contract
|In AED||In USD|
|Accounting of Dimensions’ profits (2015 -2023):|
|-Based on direct margin||[REDACTED]||[REDACTED]|
|-Based on adjusted operating margin basis||[REDACTED]||[REDACTED]|
|MedImpact's lost profits (2015 - 2023)||[REDACTED]||[REDACTED]|
"The law frequently affords an injured person more than one remedy for the wrong he has suffered. Sometimes the two remedies are alternative and inconsistent. The classic example, indeed, is (1) an account of the profits made by a defendant in breach of his fiduciary obligations and (2) damages for the loss suffered by the plaintiff by reason of the same breach. The former is measured by the wrongdoer's gain, the latter by the injured party's loss... Faced with alternative and inconsistent remedies a plaintiff must choose, or elect, between them. He cannot have both."
"The principle is that damages must be awarded on a consistent basis. Once the claimant has elected to receive compensatory damages for a particular wrong, he may not also claim an account of profits or vice-versa. If however there are for instance separate wrongs, the claimant may be able to make a different election for each wrong."
(1) The injunction should specify the term, which would vary according to the relevant provision of the JVA and SLC.
(2) The injunction relating to misuse of the Trade Secrets and Confidential Information should establish with clarity what Dimensions can and cannot do. Alternatively it should provide that it does not prevent Dimensions from using information which is in the public domain.
(3) Dimensions objects to the order for delivery up, since this would require it to deliver to MedImpact sensitive information belonging to Dimensions and third parties. The best course would be for the materials to be destroyed upon oath.
(4) Dimensions also objects to the order requiring it to stop maintaining its existing contracts with its customers. That is disproportionate and prejudicial to Dimensions and the third parties who have contracted to use AIMS and ICM. MedImpact should be confined to an award of the profits associated with such contracts.
"28.1 The costs of the arbitration other than the legal or other expenses incurred by the parties themselves (the "Arbitration Costs") shall be determined by the LCIA Court in accordance with the Schedule of Costs. The parties shall be jointly and severally liable to the DIFC-LCIA Arbitration Centre and the Arbitral tribunal for such Arbitration Costs.
28.2 The Arbitral Tribunal shall specify by an award the amount of the Arbitration Costs determined by the LCIA Court. The Arbitral Tribunal shall decide the proportions in which the parties shall bear such Arbitration Costs (in the absence of a final settlement of the parties’ dispute regarding liability for such costs). If the Arbitral Tribunal has decided that all or any part of the Arbitration Costs shall be borne by a party other than a party which has already covered such costs by way of a payment to the DIFC-LCIA Arbitration Centre under Article 24, the latter party shall have the right to recover the appropriate amount of Arbitration Costs from the former party.
28.3 The Arbitral Tribunal shall also have the power to decide by an award that all or part of the legal or other expenses incurred by a party (the "Legal Costs") be paid by another party. The Arbitral Tribunal shall decide the amount of such Legal Costs on such reasonable basis as it thinks appropriate. The Arbitral Tribunal shall not be required to apply the rates or procedures for assessing such costs practised by any state court or other legal authority.
28.4 The Arbitral Tribunal shall make its decisions on both Arbitration Costs and Legal Costs on the general principle that costs should reflect the parties’ relative success and failure in the award or arbitration or under different issues, except where it appears to the Arbitral Tribunal that in the circumstances the application of such a general principle would be inappropriate under the Arbitration Agreement or otherwise. The Arbitral Tribunal may also take into account the parties’ conduct in the arbitration, including any co-operation in facilitating the proceedings as to time and cost and any non-co-operation resulting in undue delay and unnecessary expense. Any decision on costs by the Arbitral Tribunal shall be made with reasons in the award containing such decision.
28.5 In the event that the parties have howsoever agreed before their dispute that one or more parties shall pay the whole or any part of the Arbitration Costs or Legal Costs whatever the result of any dispute, arbitration or award, such agreement (in order to be effective) shall be confirmed by the parties in writing after the Commencement Date."
Medlmpact’s claim for Legal Costs
(1) In Part 2, Dimensions acted unreasonably in resisting the expedited formation of the Tribunal and MedImpact’s various applications for interim relief.
(2) In Part 4, Dimensions resisted disclosure and inspection and then resorted to various tactics to delay the process.
(3) Dimensions also pursued a fanciful counterclaim to divert attention from its own wrongdoing.
(4) In Part 5, Dimensions’ approach to document production was a fishing expedition, which required the collation, on a third-party e-discovery platform, of 1.7 million documents. Dimensions’ own document production was small and incomplete.
(5) Dimensions also engaged in delaying tactics with an unsuccessful application to bifurcate liability and quantum.
(6) In Part 6, Dimensions sought to prevent and delay access to the MIA Server Documents. Eventually over 400,000 documents were produced only two weeks before the Evidentiary Hearing.
(1) Having regard to the need to defend the very substantial counterclaim.
(2) In response to the conduct of Dimensions, which is referred to above.
(3) Only 46% of the costs incurred by MedImpact are in respect of the profit costs of Dentons. The hourly rates of the fee earners involved compare favourably to those charged by Baker McKenzie Habib Al Mulla. The number of fee earners is large, but justified by the need to deploy teams in both the UAE and the USA and the fact that workstreams like document production, witness statements and quantum were most economically managed in the UK.
(4) The charges of the experts, Mr Bor and MedImpact’s in-house counsel were reasonable.
Dimensions' submissions in response
(1) [REDACTED] injunctive relief and an account of profits. In the event, it will recover a small fraction of the damages it claimed. A claimant which exaggerates its claim should not necessarily be regarded as having succeeded.
(2) MedImpact was unsuccessful on a number of issues. Dimensions highlights (a) the issue concerning the definition of the "Business" and its successful plea of estoppel; (b) the statutory claims, which added nothing except for the unrealistic possibility of claiming damages on an unjust enrichment basis; and (c) the unfair prejudice claim under Cayman law.
(3) MedImpact made a number of applications which were rejected: (a) it applied to DIFC-LCIA for the expedited formation of the Tribunal; (b) it sought interim measures, although Dimensions had volunteered equivalent undertakings; and (c) it sought directions for document production and inspection prior to service of its Statement of Case.
(5) MedImpact’s changing case on quantum resulted in an unnecessary increase in costs.
(6) Dimensions resists MedImpact’s claim to indemnity costs on the basis that it has not acted unreasonably. It accepts that it should pay MedImpact’s costs of its counterclaim, but its withdrawal was a pragmatic decision reflecting its difficulty in proving loss and did not involve any recognition that it lacked merit.
(3) MedImpact’s experts charged USD [REDACTED] for Dimensions.
(4) It objects to the claim in respect of MedImpact’s in-house lawyer. She was in effect the client.
(5) There is, it says, no basis for the claim for USD 120,000 for estimated future costs to ensure compliance with the injunction.
(1) Clause 20.1 (c) of the JVA and clause 30.4 of the SLC are clear and binding on the parties. MedImpact is undeniably the successful party. Article 28.5 of the DIFC-LCIA Rules has no application.
(2) This is not a case in which justifies an issue-by-issue approach. But in any event it disputes Dimensions’ claim to have succeeded on the issues in question. First, Dimensions’ case on the term "Business" was not accepted. Second, the Statutory IP Claim overlapped with the contractual claim. In any event Ms Bennett spent most of her time on Dimensions’ counterclaim. Third, the unfair prejudice claim served an important purpose in securing findings on which MedImpact will rely in proceedings in the Cayman Islands.
(3) Furthermore, apart from the termination point, MedImpact effectively succeeded on all its interim applications.
(5) Dimensions mischaracterises MedImpact’s case on quantum. The process of estimating loss and damage is often an iterative process.
(6) The findings in the Partial Award justify an award of indemnity costs.
(7) MedImpact’s costs are reasonable. This was a complex and high value claim. Dimensions’ counterclaim was for [REDACTED] The difference between its costs and those of Dimensions is easily explained because Dimensions had no credible defence and counterclaim; [REDACTED] Moreover this case is not defined by the damages claims. MedImpact’s successful claim to an injunction alone justifies the efforts it made.
(1) There was significant over-engineering.57 There were numerous procedural disputes and the approach to the merits was disproportionate. For its part MedImpact adduced thirteen statements from seven witnesses of fact. As is apparent from the Partial Award, the Tribunal did not find all of this evidence helpful or persuasive. It also adduced ten reports from Ms Bates and Mr Cottle. The Tribunal would expect Ms Bates to have spent more time than Mr Gibson. She had to make the case in difficult circumstances. [REDACTED]
(2) The Tribunal considers that MedImpact acted unreasonably in pursuing a number of issues on the merits.58 Its opposition to Dimensions’ estoppel case concerning the "Business" was unreasonable having regard to its conduct over so many years. The Statutory IP Claims under US and UAE law added nothing, but the requirement to deploy (in particular) US law capability was significant in costs terms.59 It was also a mistake to seek unfair prejudice relief under Cayman law. That was always a matter which should have been left to the Cayman courts. The bulk of the time spent by Mourant Ozannes was unnecessary.
(1) MedImpact claims USD 120,000 for ensuring compliance with the collection and destruction of offending material. The Tribunal sees no basis for this claim. It assumes that Dimensions will comply with its obligations.
(2) Dimensions objects to the claim for the time spent by MedImpact’s in-house counsel. The Tribunal considers her time to be recoverable in principle. The Tribunal sees no reason to doubt that she was deploying her legal skills in the conduct of the case. There is no reason to suppose that she was acting as the client.
(1) I order that the Final Injunction in the Appendix has effect.
(2) I order the First Respondent to pay the Claimants [REDACTED] by way of damages.
(3) I order the First Respondent to pay the Claimants [REDACTED] by way of Legal Costs and [REDACTED] by way of Arbitration Costs.
(4) I order the First Respondent to pay the Claimants simple interest on the total amount due under this Award at 9% per annum from the date of this Award until payment.
(5) I dismiss all other requests and claims.
The seat of this arbitration is Dubai International Financial Centre, Dubai, United Arab Emirates. This award is made on 24 July 2019.
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