MedImpact International v. Dimensions Healthcare and others, Final Award, 24 July 2019

1.

This Award is supplemental to the Partial Final Award on Liability dated 16 April 2019 (the "Partial Award"),¹ the contents of which are incorporated into this Award.

2.

This Award determines the remaining issues in this arbitration, namely the relief to which the Parties are entitled.

3.

As stated in paragraph 62 of the Partial Award, the Parties agreed to bifurcate liability and quantum.

4.

The Tribunal made its Partial Award on 16 April 2019. Paragraph 203 of the Partial Award provided as follows:

"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.

On the same date the Tribunal also made Procedural Order No. 10,² which provided as follows:

"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."

9.

Thereafter, at the Tribunal’s request, the Parties conferred with a view to agreeing procedural directions.

10.

On 29 April 2019 the Claimants applied to the Tribunal for permission to adduce expert evidence from Patrick Kilbourne of Berkeley Research Group LLC ("BRG") and further evidence of fact. On 30 April 2019 the Tribunal refused permission on the ground that the application was made too late.

11.

On 30 April 2019, the Tribunal also gave directions for the hearing of the remaining issues in this arbitration on 14 and 15 May 2019 (the "Quantum Hearing"). In accordance with those directions:

(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

12.

The Claimants made a further application on 29 April 2019. It contended that the First Respondent had in certain respects failed to comply with the Partial Award and Procedural Order No. 10. It sought directions for immediate compliance. On the same date the First Respondent replied rejecting the Claimants’ contentions. It submitted that where possible it had complied with the Partial Award and Procedural Order No.10 immediately; in other respects it was in the course of complying. On 30 April 2019, the Tribunal directed that it would hear the Parties on this subject at the Quantum Hearing.

13.

On 2 May 2019, the Claimants applied again for immediate directions concerning the application of Procedural Order No. 10 to existing contracts with the customers of the First Respondent, its Affiliates and the maintenance of confidentiality over the Trade Secrets and Confidential Information. The First Respondent made submissions in response on 6 May 2019. On 7 May 2019, the Tribunal replied that it was unrealistic to deal with this further application before the Quantum Hearing.

14.

The Quantum Hearing took place at the IDRC in London on 14 and 15 May 2019, at which the Parties made oral submissions. They agreed that they did not wish to cross-examine Mr Cottle and Mr Gerardi. However the Tribunal put certain questions to each and counsel then asked some follow-up questions.⁶ At the conclusion of the Quantum Hearing, the Tribunal gave directions for submissions on costs.

15.

In accordance with those directions, on 31 May 2019, the Claimants submitted their claim for costs. The First Respondent responded by submissions dated 12 June 2019. The Claimants made reply submissions on 17 June 2019.

16.

After the Quantum Hearing the Parties sought to agree arrangements for the delivery up and destruction of files and documents containing Trade Secrets and Confidential Information. No agreement proved possible and on 12 July 2019 both sides made submissions as to the arrangements to be provided for in a Protocol.

17.

On 16 July 2019 the Tribunal declared the record closed.

18.

The issues for decision are as follows:

(1) The quantum of damages recoverable by the Claimants.

(2) The Claimants’ claim to interest.

(3) The form of injunctive relief.

(4) Arbitration Costs and Legal Costs.

19.

The Parties have advanced a number of arguments in their statements and submissions in this arbitration. They have also referred to extensive evidence and authorities in support. In the interests of clarity and brevity, this Award does not refer to all of these arguments, all this evidence and all of these authorities. However, they have all been taken into account in the course of preparing this Award.

20.

The reports prepared by the Quantum Experts before the Evidentiary Hearing considered a number of issues which fell away in the light of the conclusions reached in the Partial Award. The issues which remain for decision were addressed in Cottle Four and Gerardi Three.⁷

21.

They considered liability in respect of two categories of claim. The first arises out of the Tribunal’s findings in the Partial Award that Dimensions marketed AIMS, ICM and CDS in breach of various provisions of the JVA and the SLC. This is discussed in the Partial Award under the heading "Competition". Mr Cottle calls this the "JV Breaches Claim" and Mr Gerardi the "Competition Breach of Contract". The second arises out of the Tribunal’s finding that the development and sale of AIMS and ICM involved a breach of various provisions of the JVA which restrict the use of Confidential Information and Trade Secrets. This is called the "Contractual IP Claim" in the Partial Award. Mr Cottle calls it the "IP Claim" and Mr Gerardi the "Intellectual Property Breach of Contract."

22.

The Quantum Experts consider two measures of damages. The first is said to be gain-based or a disgorgement basis, that is, an account of the profits earned by Dimensions. The second is compensatory, that is the profits lost by MedImpact.

23.

In its Quantum Submissions, MedImpact seeks damages in the amount calculated in Cottle Four in respect of the JV Breaches Claim.⁸ This calculation is, it says, of an extremely conservative nature.⁹

24.

Mr Cottle assesses MedImpact’s claim to damages under three headings:¹⁰

[REDACTED]

25.

Mr Cottle calculates quantum as follows:¹¹

	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]
IP Claim
Dimensions’ Account of Profits: AIMS and ICM (100% of revenues)	[REDACTED]	[REDACTED]

26.

[REDACTED]

27.

Mr Cottle’s approach may be summarized as follows:

[REDACTED]

28.

Dimensions advances a number of contentions in its Quantum Submissions:

[REDACTED]

29.

Dimensions invites the Tribunal to adopt the approach taken by Mr Gerardi.¹⁶:[REDACTED]

(2) [REDACTED]

30.

Mr Gerardi assesses damages arising from the Competition Breach as follows:

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]

31.

[REDACTED]

32.

Mr Gerardi assesses damages as follows: Quantum for Dimensions’ Intellectual Property Breach of Contract

	In AED	In USD
Accounting of Dimensions’ Profits (2015 -2023)
- Based on Direct Margin	[REDACTED]	[REDACTED]
- Based on Adjusted Operating Margin	[REDACTED]	[REDACTED]

33.

[REDACTED]

34.

Mr Gerardi’s approach is as follows:

[REDACTED]

35.

In the course of the Quantum Hearing, MedImpact’s case "evolved". It contended that damages should be calculated based on the profits Dimensions earned on its sales of AIMS, ICM and CDS between 2015 and 2023.¹⁸ It accepted, for this purpose, the revenue figures produced by Mr Gerardi in respect of the competition breach of contract.¹⁹ In addition it claimed its loss of profits in respect of retained clients.²⁰ Argument at the Quantum Hearing proceeded on that basis.²¹

36.

The Quantum Experts express their calculations in both AED and USD. The Parties had no preference as to the currency in which the Tribunal should make its Award.²² Article 15.3(c) of the JVA provides that the bookkeeping base currency of MIA is USD.²³ The Tribunal therefore makes its award in damages in USD.

Discussion

37.

Dimensions’ challenge to Mr Cottle’s hybrid approach was based on a decision of the English Court of Appeal in 2011.²⁴ This cited an earlier decision of the House of Lords²⁵ which contains this passage:

"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."

38.

On this basis, the Court of Appeal had held as follows:²⁶

"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."

39.

MedImpact did not challenge this authority.

40.

It will be apparent from the preceding narrative that MedImpact’s case on quantum was in a state of flux to the end. In response to Dimensions’ submission that it was required to elect, Dimensions contended that its claim based on an account of the profits earned by Dimensions was in respect of the IP Claim. The JV Breaches Claim was a different legal wrong. It was, it said, therefore free to claim on the basis of the profits lost by MedImpact for retained clients in respect of the JV Breaches Claim. However it accepted that Mr Cottle’s "Summary of total loss" was prepared on the basis of Mr Gerardi’s revenue figures for the competition claim. It submitted that as a matter of justice that did not exclude the loss of profits claim in respect of retained clients, since there was no double-counting.²⁷ MedImpact submitted that, if its claim in lost profits also precluded a claim based on disgorgement, it would abandon the former in favour of the latter.²⁸

41.

In support of its argument that the Tribunal should have regard to the justice of the position, MedImpact submitted that the Tribunal should reflect the approach of the Trade Secret Regulations.²⁹ Damages should "include any lost profits, which the trade secret holder has suffered, and any unfair profits made by the infringer."³⁰ The Tribunal rejects that submission. There is no claim in this arbitration under those Regulations.

42.

The Tribunal also rejects the submission that the claim to an account of the profits earned by Dimensions can be said to be brought in respect of the IP Claim. Mr Cottle’s calculations, which are based on Mr Gerardi’s figures, relate to the competition claim.³¹ MedImpact must be held to its election to claim in respect of the competition claim on the basis of an account of the profits earned by Dimensions. It follows that MedImpact cannot also claim on the basis of lost profits in respect of retained clients (or for that matter new clients). The Tribunal sees no injustice in requiring a claimant to elect for either gain-based or compensatory damages. Here MedImpact has no doubt chosen the course which it believes will maximize its recovery. There is therefore no separate claim in respect of the IP Claim.

43.

[REDACTED]

44.

The differences between the two experts will be considered under the following headings:

(1) the appropriate profit margin;

(2) the discount factor; and

(3) interest.

45.

[REDACTED]

46.

The Tribunal heard oral evidence from both Mr Cottle and Mr Gerardi. The Tribunal accepts that both experts were doing their best to assist the Tribunal. The calculation of a profit margin inevitably involves a degree of judgment and it was clear that neither expert had available to him accounting records which enabled him to calculate with precision the incremental costs which were linked to turnover.³⁵ Mr Gerardi had however had the advantage of detailed discussions with management within Dimensions. Generally the Tribunal found that his assessment was better informed and prefers his calculation of direct margin to that of Mr Cottle.

47.

The Tribunal also considers that it is in principle relevant to take account of the indirect costs which were attributable to the products in question, so as to arrive at an adjusted operating margin. [REDACTED]

48.

[REDACTED]

49.

So far as interest is concerned, Mr Cottle favoured the judgment rate of 9%. Mr Gerardi preferred a borrower’s rate of EIBOR plus 2%. The Tribunal favours the latter. It seems inappropriate to take the higher rate before the date of the award.

50.

The next question is whether interest should be simple or compound. The Tribunal favours the latter. It better reflects the proposition that Dimensions should not retain the benefit of its own breach of contract.

51.

[REDACTED]

52.

The Parties agree that any award of damages would carry simple interest at 9% per annum from the date of this Award to the date of payment.⁴¹

53.

MedImpact seeks, by way of Final Award, a final injunction to take the place of Procedural Order No. 10.

54.

MedImpact produced a draft on 9 May 2019.⁴² It attached to its Quantum Submissions a further draft.⁴³ This orders Dimensions to cease and desist from any further breach of the restrictions on competition. It prohibits Dimensions from any misuse of the Trade Secrets and Confidential Information. It also prohibits Dimensions from maintaining any contract with its customers for the supply of AIMS and ICM and any other misuse of Trade Secrets and Confidential information. It includes ancillary relief requiring Dimensions to recover the Trade Secrets and Confidential Information from any recipients and deliver up the same to MedImpact.

55.

MedImpact also sought permission to apply to the DIFC Court (or any other court of competent jurisdiction) to enforce the injunction and ensure compliance.

56.

Dimensions did not challenge MedImpact’s entitlement to injunctive relief but its Quantum Submissions advanced a number of objections to the form of the injunction sought by MedImpact:⁴⁴

(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.

57.

In the course of the Quantum Hearing Dimensions produced its own rival draft of the injunction which it considered to be appropriate.

58.

In light of the findings in the Partial Award, it is clearly appropriate for the Tribunal to grant permanent relief. In the course of the Quantum Hearing the Parties made submissions on the issues summarized above. The Tribunal has arrived at the following conclusions.

59.

The Tribunal considers that perpetual relief is appropriate in respect of AIMS and ICM, which involved misuse of MedImpact’s Confidential Information and Trade Secrets. However the sale of CDS was in breach of Article 13 of the JVA and should be time-limited.

60.

The Tribunal is persuaded that, in the interests of clarity, the injunction should state that Dimensions is not prevented from developing products using information which is not proprietary to MedImpact. Dimensions also seeks clarification that the injunction does not bite on the products other than AIMS, ICM and CDS which are listed in Annex 1 to the Claimants’ CS,⁴⁵ having regard to the Tribunal’s rejection of MedImpact’s claims in the Partial Award.⁴⁶ The Tribunal considers this to be unnecessary, since the Partial Award speaks for itself; it is also undesirable that the question should be determined solely by the name attached to a product.

61.

MedImpact complained that Dimensions’ contracts with its customers relating to AIMS and ICM involved the misuse of its Confidential Information and Trade Secrets. They should therefore be terminated forthwith. It was, it said, inappropriate and potentially prejudicial for them to continue to have access to and the use of these products. The Tribunal is sympathetic to this approach, but there are a number of difficulties. First, it was not suggested that Dimensions had the right to terminate the contracts forthwith. Second, the customers concerned use the products for purposes of patient care. Immediate termination may be prejudicial to their business and to the interests of patients; in the case of the health authorities it might also be prejudicial to their discharge of their public responsibilities. Third, the Tribunal has very little information which enables it to assess these matters. Fourth, the customers are of course not party to this arbitration and not subject to the jurisdiction of the Tribunal. In the circumstances, the Tribunal considers that it must confine MedImpact to its remedy in damages.

62.

In the course of argument, MedImpact indicated that it was considering taking steps to prevent any continued use of the offending products. The Tribunal accepts that this injunction should not ratify the contracts in question or otherwise affect whatever rights MedImpact may have in this respect in the jurisdiction and under the law in question.

63.

MedImpact seeks an order for delivery up of the Trade Secrets and Confidential Information so that it can police compliance. However, the Tribunal accepted at the Quantum Hearing that the material in question would contain information which is proprietary to Dimensions and/or its customers. The Tribunal informed the Parties that it proposed instead to make an order for its destruction. Following the Quantum Hearing, the Tribunal informed the Parties of his provisional view that Dimensions should deliver up the offending material to FTI Consulting; FTI would allow BRG to inspect the material in question; and FTI would then destroy it, certifying compliance to MedImpact. The Tribunal asked the Parties to confer with a view to agreeing arrangements. As stated above, no agreement proved possible and on 12 July 2019, the Parties made submissions as to the form of a Protocol dealing with these arrangements. There were three principal issues between the Parties.

64.

First, the Parties could not agree on the extent of the oversight role of BRG. MedImpact contends that they need to be involved in assessing the nature of FTI’s search and reviewing the complete set of materials returned from that search, but Dimensions objects that this will add to the time and cost of the exercise. The Tribunal accepts the proposal by Dimensions that BRG should have a more limited role. Dimensions has a legitimate interest in keeping the enquiry within reasonable bounds and the Tribunal has no reason to doubt that FTI will discharge the responsibilities provided for in the Protocol.

65.

The second issue is whether MedImpact’s counsel should have access to FTI’s Final Report. Dimensions objects that the exercise is a technical one and there is no need to involve counsel, who should not be allowed to disrupt the exercise. The Tribunal disagrees. The purpose of involving BRG is to ensure proper compliance with the Tribunal’s orders. BRG must be free to report back to Dentons & Co ("Dentons") for this purpose and Dentons and BRG must be free to advise MedImpact on the conclusions they reach. Dimensions’ interests are adequately protected by a provision that Dentons and BRG can use the Final Report solely for the purpose of advising MedImpact on Dimensions’ compliance with Procedural Order No. 10 and this Final Award and not for any ulterior or collateral purpose.

66.

The last issue is that, because the Tribunal will be functus, MedImpact wishes to have access to the DIFC Court to police compliance. The Tribunal considers that the language proposed by Dimensions is suitable for this purpose.

67.

The Protocol which is annexed to the Final Injunction reflects these conclusions.

68.

MedImpact’s original draft of the injunction provided for liberty to apply to the DIFC Court. In argument, the Parties debated whether the injunction should provide that it may be varied by a court of competent jurisdiction.⁴⁷ The Tribunal considers that the provision to be included in the Protocol makes it unnecessary to provide any for any wider liberty to apply.

69.

The Tribunal will make an order in terms of the Final Injunction set out in the Appendix to this Award which reflects the conclusions set out above. The Protocol referred to above forms the Annex to the Final Injunction.

70.

[REDACTED]

71.

It is convenient to set out the relevant contractual provisions.

72.

As stated in paragraph 22 of the Partial Award,⁴⁸ clause 20.1(c) of the JVA provides as follows:⁴⁹

"The expenses of the arbitration, including reasonable attorney’s fees, will be paid for by the Party against whom the award of the arbitrator is rendered."

73.

Clause 30.4 of the SLC is in the same terms.⁵⁰

74.

Paragraph 14.2 of the Terms of Reference provides as follows:⁵¹

"The fees and expenses of the Sole Arbitrator shall be determined by the DIFC-LCIA in accordance with the DIFC-LCIA Rules."

75.

Article 28 of the DIFC-LCIA Rules, provides so far as relevant as follows:

"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."

[REDACTED]

Medlmpact’s claim for Legal Costs

80.

As stated above, MedImpact claims Legal Costs totalling [REDACTED] Its submissions set out a detailed breakdown of this amount, identifying the fee earners involved, their charging rates and the work done, the time charged and the disbursements incurred on a quarter by quarter basis.

81.

MedImpact’s primary submission is that the Partial Award was rendered against Dimensions. Therefore Dimensions should in accordance with clause 20.1(c) of the JVA and clause 30.4 of the SLC pay all of MedImpact’s costs and expenses in the arbitration.

82.

Alternatively, MedImpact advances the following submissions as to the proper application of Article 28.4 of the DIFC-LCIA Rules. First it relies on the findings made by the Tribunal in the Partial Award which are adverse to Dimensions. It submits that the Tribunal should award costs on what is described in English court proceedings as the "indemnity basis". That is, any doubt as to whether costs were reasonably incurred or reasonable in amount should be resolved in MedImpact’s favour.

83.

It makes specific submissions as to the conduct of Dimensions by reference to each quarter (described as a "Part"):

(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.

84.

MedImpact submits that its costs are proportionate:

(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

85.

Dimensions contends that MedImpact’s costs are wholly disproportionate and unreasonable. It relies on a breakdown of its own costs. These total [REDACTED] The total is broken down by time and issue.

86.

Dimensions rejects MedImpact’s submission that it is contractually entitled to the whole of the costs of the arbitration, pursuant to clause 20.1(c) of the JVA and clause 30.4 of the SLC.

87.

Dimensions argues that, applying Article 28.4 of the DIFC-LCIA Rules, the Tribunal should award MedImpact no more than 30-35% of its total claim:

(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.

(4) [REDACTED]

(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.

88.

Dimensions contends that MedImpact’s costs are unreasonable and disproportionate:

(1) [REDACTED]

(2) [REDACTED]

(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.

89.

Dimensions concludes that MedImpact should not be awarded more than USD 1,500,000.

MedImpact’s reply

90.

MedImpact joins issue with Dimensions and contends as follows:

(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.

(4) [REDACTED]

(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.

Discussion

91.

The Tribunal must first decide on its approach to the quantification of MedImpact’s recoverable Legal Costs. There are three preliminary points.

92.

First, as stated above, Dimensions relies on the fact that MedImpact initially advanced an exaggerated quantification of its claim.⁵² While true, this does not alter the fact that MedImpact’s claim has succeeded and Dimensions’ defence⁵³ has failed. The Tribunal’s approach to costs is unaffected. In any event, as MedImpact says, this case was never all about damages. At least as important to MedImpact was the need to deny Dimensions the continued use of its proprietary technology and to protect its business interests in the region. MedImpact has been successful in that respect.

93.

Second, the Tribunal rejects MedImpact’s submission that it has a contractual entitlement to all of its costs and expenses pursuant to clause 20.1(c) of the JVA and clause 30.4 of the SLC. These provisions do no more than require the Tribunal to adopt a "loser pays" approach and to introduce the concept of reasonableness. They do not operate to exclude the usual process for the assessment of recoverable costs. As Dimensions points out, that would have absurd consequences.⁵⁴

94.

Third, the Tribunal also rejects MedImpact’s submission that it should quantify costs on the so-called indemnity basis. That is a domestic concept which does not, of course, apply in this arbitration, as Article 28.4 of the DIFC-LCIA Rules makes clear. The Tribunal accepts that it has made findings against Dimensions of a serious nature. It acted in deliberate breach of the JVA and the SLC and its conduct of this arbitration has been in breach of the DIFC-LCIA Rules and the directions of the Tribunal. On the other hand, as stated above, the JVA and the SLC provide for the recovery of "reasonable" attorney’s fees; and the Tribunal is of the view that the conduct of Dimensions does not justify MedImpact recovering costs which were unreasonably incurred.

95.

Turning to the substance, the DIFC-LCIA Rules allow the Tribunal to decide on such reasonable basis as it thinks appropriate. The Tribunal considers that MedImpact should recover all costs which were reasonably incurred.

96.

The Legal Costs were always going to be substantial. This case justified a substantial investment. MedImpact was the victim of serious wrongdoing on the part of Dimensions and faced an existential threat to its business in the region. Furthermore MedImpact faced a number of challenges. The factual and legal issues were complex. There were numerous, hotly contested applications. Document production was extensive and time-consuming. The Technical Experts were required to inspect and analyse complex systems. The case also necessitated the deployment of a multi-jurisdictional team, to cover activities in the UAE, the United Kingdom and the United States.

97.

On the other hand, the question of what costs were reasonable is to be answered objectively and the test of reasonableness requires a party’s legal spend to be proportionate. The Tribunal has found that MedImpact’s claim for damages was modest compared to its original amount. The Tribunal was not called upon to make findings on Dimensions’ counterclaim, but it proceeds on the assumption that, although large in amount, it was lacking in merit. It may have made business sense in the circumstances for MedImpact to leave no stone unturned in defence of its position, but it does not follow that the costs involved were reasonable costs which Dimensions should be required to pay. The Tribunal considers that the question is what costs were reasonably attributable to the wrongdoing of Dimensions. These may be, and are here, different from the costs which are attributable to MedImpact’s choice about how best to advance its interests.⁵⁵

98.

As Article 28.4 of the DIFC-LCIA Rules requires, the Tribunal will have regard to the conduct of the Parties in deciding on the costs which were and were not reasonably incurred.

99.

In a number of respects, the conduct of Dimensions made MedImpact’s task more time consuming and therefore expensive. The factors in play include the pursuit of an unmeritorious counterclaim, the steps Dimensions took to conceal its activities [REDACTED] In some respects, Dimensions adopted a scatter-gun approach.⁵⁶ Dimensions highlights the fact that MedImpact’s counsel charged 44% more time than its counsel. This is to some extent explained by its own conduct. It is understandable that MedImpact considered that it should meet fire with fire.

100.

On the other hand, the Tribunal accepts Dimensions’ submission that MedImpact’s conduct of these proceedings was in certain respects unreasonable and disproportionate:

(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.

101.

Dimensions contends that MedImpact should pay the costs of Dimensions in respect of these specific issues, by way of a deduction from the costs that MedImpact would otherwise recover. The Tribunal rejects this submission. Dimensions must bear the risk of this level of response by MedImpact. The appropriate course is a reduction in the amount that MedImpact should recover from Dimensions.

102.

[REDACTED]

103.

In addition, Dimensions makes two specific challenges to MedImpact’s claim:

(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.

104.

Against this background the Tribunal has to assess the costs which were reasonably incurred. This is not a matter of scientific analysis. Ultimately the Tribunal has to make a judgment based on its experience of the way the proceedings unfolded.⁶² [REDACTED]

105.

This is subject to one adjustment. Pursuant to Procedural Order No. 8 dated 7 November 2018 the Tribunal directed that MedImpact should pay [REDACTED]. MedImpact’s claim to costs is therefore reduced by that amount, resulting in an award of USD [REDACTED]

106.

As stated above, MedImpact claims interest on its costs from the date of this Award at such rate as the Tribunal thinks fit. The Tribunal has power to award such interest pursuant to Article 26.4 of the DIFC-LCIA Rules and considers that it meets the justice of the case to award interest on Legal Costs and Arbitration Costs at the same rate and on the same basis as its award of interest on damages.

107.

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 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.

MedImpact International v. Dimensions Healthcare and others

Documents of the case

Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

A. INTRODUCTION

B. PROCEDURAL BACKGROUND

C. THE MERITS

(1) The issues for decision

(2) Damages

The Claimants’ case

The First Respondent’s case

(3) Interest

(4) Injunctive relief

The submissions of the Parties

Discussion

(5) Costs

Introduction

D. AWARD

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