Claim No: CFI-020-2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) MOHAMMAD BIN HAMAD ABDUL-KARIM AL-MOJIL

(2) ADEL BIN MOHAMMAD BIN HAMAD AL-MOJIL

                                                                                          Claimants

and

PROTIVITI MEMBER FIRM (MIDDLE EAST) LIMITED

Defendant

CONSENT ORDER

UPON considering the Defendant’s Application Notice CFI-020-2015/4 dated 23 November 2016

AND UPON reviewing the letter from the Claimants’ lawyers dated 22 November 2016 consenting to the Defendant’s application

IT IS HEREBY ORDERED BY CONSENT THAT:

1.The deadline to file and serve the Defence shall be extended to 4pm on Monday 19 December 2016.

2.There be no order as to costs.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 24 November 2016

At: 3pm

The post CFI 020/2015 (1) Mohammad Bin Hamad Abdul-Karim Al-Mojil (2) Adel Bin Mohammad Bin Hamad Al-Mojil v Protiviti Member Firm (Middle East) Limited appeared first on DIFC Courts.

Claim No: CFI 022/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) HISHAM AKRAM MOHAMED SAYED AHMED

(2) MOHAMED AKRAM MOHAMED SAYED AHMED EID

(3) SAMIA SAAD ELSHAZLY

(4) TAREK MOHAMED MEDHAT ABDELHADY ABDELRAHMAN

                                                                                          Claimants

and

(1) ALADDIN HASSOUNA SABA

(2) MOHAMED HAZEM BARAKAT (ALSO KNOWN AS HAZEM BARAKAT)

(3) WAEL MOHAMED SAYED EL MAHGARY

Defendants

  CONSENT ORDER

UPON the hearing listed for 7 December 2016 to hear the First and Second Defendants’ Application Notice CFI-022-2015/5 filed on 25 September 2016 and amended on 28 September 2016 (the “Defendants’ Application”) seeking to strike out the Claimants’ Particulars of Claim in respect of the claims made against them

AND UPON the Claimants’ Application Notice CFI-022-2015/7 dated 30 November 2016 (the “Claimants’ Application”) seeking to reamend the Particulars of Claim and add further parties to the proceedings

IT IS HEREBY ORDERED BY CONSENT THAT:

1. The hearing listed for 7 December 2016 shall be adjourned to a later date for both the Defendants’ Application and Claimants’ application to be heard at the same time.
2. The Claimants shall bear any of the First and Second Defendants’ costs, which are wasted as a result of the adjournment, to be assessed if not agreed.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 5 December 2016

At: 3pm

The post CFI 022/2015 (1) Hisham Akram Mohamed Sayed Ahmed (2) Mohamed Akram Mohamed Sayed Ahmed Eid (3) Samia Saad Elshazly (4) Tarek Mohamed Medhat Abdelhady Abdelrahman v (1) Aladdin Hassouna Saba (2) Mohamed Hazem Barakat (also Known as Hazem Barakat) (3) Wael Mohamed Sayed El Mahgary appeared first on DIFC Courts.

Claim No. xxxx

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai 

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GRIET 

   Claimant

and

GUIDO LLC

                                     Defendant

Hearing:          27 November 2016

Judgment:       7 December 2016

JUDGMENT OF SCT JUDGE NATASHA BAKIRCI

UPON this Claim having been called on 8 November 2016 for a Consultation before SCT Officer Mahika Hart;

UPON the parties not having reached settlement;

UPON a Hearing having been held before me on 27 November 2016, with the Claimant and the Defendant’s representative attending;

AND UPON reading the documents submitted in the Court file and hearing the parties’ arguments at the Hearing;

IT IS HEREBY ORDERED THAT:

1.The Claimant’s claim as to unfair dismissal is dismissed.

2. The Claimant’s claim as to compensation for sick leave is dismissed.

3. The Claimant’s claim as to relief from the Non-Compete Clause is dismissed

4. The parties shall bear their own costs.

THE REASONS

Parties

5.The Claimant, Griet, is a Jordanian national who was employed as a “Senior Relationship Manager” by the Defendant company.

6.The Defendant, Guido LLC, operates a branch office in the DIFC, where the Claimant worked.

Background

7. The Claimant and Defendant entered into an Employment Contract on 5 March 2014 which states the Claimant’s employment as commencing on 1 June 2014. The Claimant began working as a Senior Relationship Manager for the Defendant with a basic salary of AED 85,000 per month. Although this contract was initially issued and signed in one format (attached to the Claimant’s supplemental submission) it was agreed between the parties at the Hearing that the correct version was submitted as attached to the Defendant’s initial defence. This version shall be referred to as the “Employment Contract” throughout this Judgment.

8. The Employment Contract states, in relevant part:

“4. Duration of Contract

4.1 The employment will be of unlimited duration, and may be terminated at any time by either Party giving to the other not less than 3-month prior notice in writing.

4.2 In the case of termination by the Company, the Company may exercise the option of making payment in lieu of notice, or putting the Employee on garden leave for all or part of the notice period, during which time the Employee will remain an employee of the Company but will not be required to attend work unless specifically requested by the Company to do so.. . .

13. Sick Leave

Sick leave shall be granted in accordance with the provisions of the DIFC Employment Law, subject to production of a medical certificate from a hospital, clinic or general practitioner approved by the Company where sick leave exceeds two consecutive working days.

. . .

18 Non-Competition/Solicitation

18.1 The Employee expressly undertakes that he will not for a period of twelve (12) months following the termination of this Employment Contract for whatever reason without first receiving permission from the Company:

18.2.1 take up employment with or be involved directly or indirectly in any other company or business within the DIFC or UAE which competes with the business of the Company; or

18.2.2 contract or solicit business from any person or entity (natural or juridical) who was a client or customer of the Company at any time during the period of the Employment Contract; or

18.2.3 take any action which is prejudicial to the name and/or trading of the Company which would or could cause damage to the Company or any employee of the Company.

. . .

22. Governing Law

This Employment Contract is governed by the DIFC Employment Law No. 4 of 2005 as amended.”

9. The Claimant asserts that he sustained a serious injury to his leg on 2 June 2016 which rendered him incapable of attending work. On 5 June 2016 he allegedly contacted his office regarding this injury and medical reports reflecting this injury were subsequently sent to the Defendant company.

10. It is agreed between the parties that the Claimant was terminated from his position at the Defendant company on 19 June 2016. He was provided with three months of notice period, as per the Employment Contract, and was placed on “garden leave” for that period of time, pursuant to Clause 4.2 of the Employment Contract. His effective termination date was 18 September 2016 and the parties agree that he was paid throughout the notice period and paid his other end of service entitlements. I do note that the Claimant contended during the Hearing that his pension has not yet been paid out but admitted this not to be relevant to his claims in this case.

11. On 23 October 2016, the Claimant filed a Claim Form in the DIFC Courts Small Claims Tribunal (SCT). The Defendant initially responded to the Claim Form on 3 November 2016 indicating its intent to defend against all of the claim. The parties attended a Consultation on 8 November 2016 but were unable to reach a settlement. On 27 November 2016, I heard the parties’ arguments at a Hearing.

The Claim

12. The Claim Form indicated that the Claimant was seeking compensation for unfair dismissal and compensation for sick leave amounting to AED 500,000. The Claimant also sought a waiver of the restrictions in Clause 18 of his Employment Contract (hereafter referred to as the “Non-Compete Clause”). The Claimant also made some reference to not receiving sufficient documentation of the reason for his dismissal, pursuant to Article 60 of DIFC Law No. 4 of 2005 as amended (the “DIFC Employment Law”), which requires that:

“Upon the request of an employee who has been continuously employed for a period of not less than (1) year on the date of termination of employment, an employer shall provide the employee with a written statement of the reasons for the employee’s dismissal.”

13. The Claimant elaborated on his claims, stating that “The termination of my employment was unfair, they informed me during my sick leave, I claim a 3 months [sic] unfair dismissal.” He further argues that “Due to the nature of my sudden termination, I further claims [sic] a three (3) months sick leave. I believe that given my performance has not been called into question nor have I been terminated for cause under Article 59A of the DIFC Employment Law, a severance package ought to be considered by the Bank, which is general market practice in such circumstances.”

14. As for the Non-Compete Clause, the Claimant states that Clause 18 of the Employment Contract is “completely prohibitive and should not be enforced by the Bank, as it will restrict me from seeking alternative employment for the next twelve (12) months in the UAE.” Finally, the Claimant argued that “the Bank has a duty to our [sic] me to ensure that my reputation is not tarnished in any way and more importantly that the Bank does not divulge any misleading or false information pertaining to my self [sic] and employment with the bank.”

15. The Claimant provided a Supplemental Submission in advance of the Hearing, submitted on 12 November 2016 including a statement and several annexures. He subsequently requested permission to withdraw Annex 2 of that submission, a request that I granted at the Hearing and therefore I have not taken Annex 2 into consideration.

16. The Claimant’s Supplemental Submission generally reiterates his previous arguments and highlights his contribution to the Defendant company during his time working there. The Claimant adds that he “was discriminated by the bank by terminating me while I am on sick leave.” He elaborated on the sequence of events surrounding his termination and his sick leave approval.

The Defence

17. The Defendant provided its initial Defence on 3 November 2016, indicating its intention to defend against all the claims made in the Claim Form. In the submission, the Defendant maintained that it has provided sufficient reason for termination, pursuant to Article 60 of the DIFC Employment Law both verbally at the meeting between the Claimant and the Defendant’s Head of Wealth Management, on 19 June 2016 and in writing by letter to the Claimant on 11 July 2016.

18. The Defendant argued that the Claimant was terminated in accordance with his Employment Contract and the DIFC Employment Law and thus, the Defendant is not liable to pay any damages for “unfair dismissal or otherwise.” The Defendant pointed to DIFC Courts precedent establishing that the DIFC Employment Law does not provide for claims of unfair dismissal.

19. The Defendant argued that there is no justification for the Claimant’s claim for compensation for three months of sick leave. Furthermore, there is nothing to prevent an employer from terminating an employee during his or her sick leave. The Defendant states that the Claimant was on “garden leave” during his notice period and that “he continued to receive his normal remuneration during that time. The Fact that Griet may have been on sick leave for all or part of the Garden Leave Period does not entitle him to claim additional sick leave pay.”

20. As regards the Non-Compete Clause, the Defendant argued that the Clause was agreed between the parties and is a reasonable provision. The Defendant cites some English Court precedent purportedly upholding 12-month non-compete clauses as “industry standard” in the financial services sector.

21. Finally, as regards the Claimant’s contention that the Defendant has a duty not to “divulge misleading or false information” about the Claimant, the Defendant stated that it has no intention to do so and has never done so.

22. The Defendant seeks a declaration that it has complied with the obligations of Article 60 of the DIFC Employment Law, a declaration that the non-compete clause in the Employment Contract is valid, a declaration requiring the Claimant to cancel his “UAE residence visa” and the dismissal of all other claims. However, the Defendant has not filed any formal counterclaim in the case.

23. The Defendant provided a further “Supplemental Statement of Defence” on 20 November 2016 generally reiterating its arguments.

Hearing

24. At the Hearing, the parties generally repeated their written arguments. The Claimant alleged conflict between the reasoning given for his termination in the letter addressed to him on 11 July 2016, which made reference to the Claimant’s “disappointing” commercial results, and a company-wide message sent to all staff at the Defendant’s DIFC branch office, which identified the Claimant as an employee leaving the company due to “internal re-organisation”. He believes that his claim for “unfair dismissal” is valid as no reason was given in his initial termination meeting. He made reference to his belief that he was discriminated against because he was on sick leave. This was the extent of the Claimant’s oral submissions regarding his claim for unfair dismissal. The Defendant, by contrast, claimed that verbal and written reasons for the Claimant’s termination were provided in a timely fashion.

25. As to the claim for sick leave, the Claimant contended that the Defendant should have waited until his sick leave was over to terminate him, then giving him his three-months’ notice period to seek alternative employment. He maintained that although he did not have a legal argument to support this contention as such, he believed it unfair to terminate an employee while they are already on sick leave as he was unable to seek alternative employment due to his injury.

26. There was some disagreement between the parties as to when the Claimant provided the Defendant with confirmation via a medical report that he would need to take three months of sick leave. The Claimant contended that both his local office in DIFC and the main office were aware of his extended sick leave due to the nature of his injury, but he did not provide medical reports as to the length of his recovery and required sick leave until 30 June 2016.

27. The Claimant argued that he had informed his local CEO of the nature of his injury on 5 June 2016 and that he did not know the exact length of his required sick leave at that time. He also claimed that he had requested his secretary to inform the main office of his need for an extended sick leave based on the nature of his injury. He contended that based on the nature of his injury, the Defendant must have known that he would need extended sick leave and thus, they were aware of his being on sick leave when they called him for a meeting on 19 June 2016 to terminate him.

28. The Defendant contended that the manager who had informed the Claimant of his termination on 19 June 2016 was not fully aware of the extent of the Claimant’s sick leave, although it does not dispute that the Claimant was injured as claimed. Instead, the Defendant contended that an official medical report for three months of sick leave had not yet been submitted by the Claimant and that, in any event, there is nothing in the Employment Contract or the DIFC Employment Law to prevent the Defendant from terminating the Claimant while on sick leave.

29. Finally, the Claimant made mention of his claim regarding the Non-Compete Clause stating that it is unfair and will prohibit his continued employment in his field and location. By the Claimant’s own admission, he has not found another job yet and if and when he does, it is open to him to seek the Defendant’s approval, as provided at part 18.1 of the Non-Compete Clause.

30. It is noted that there was a brief discussion regarding settlement at the end of the Hearing, with the Defendant making an offer as to the Non-Compete Clause. The parties did not reach an agreement and nothing in that discussion will serve to prejudice my judgment.

Discussion

31. The DIFC Courts and the Small Claims Tribunal have jurisdiction over this case as it concerns employment within the DIFC and the amount in question does not exceed AED 500,000.

32. This dispute is governed by the DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (the DIFC Employment Law) in conjunction with the relevant Employment Contract.

33. As the Claimant has not made any specific claims connected to his statements regarding the Defendant’s duty not to “divulge misleading or false information” about him, I will not address this argument individually. Thus, there are essentially three Claims to be considered in this dispute:

a. Is the Claimant entitled to compensation for “unfair dismissal”?

b. Is the Claimant entitled to reimbursement for his sick leave?

c. Is the Claimant entitled to relief from the Non-Compete Clause in his Employment Contract?

34. I will address each of these main issues responding to the Defendant’s arguments in turn.

A. Is the Claimant entitled to compensation for “unfair dismissal”?

35. The Claimant maintains that he was unfairly dismissed and should receive three months’ compensation for this unfair dismissal. He claims that unfair dismissal was evidenced by the Defendant’s failure to give him reasons for his termination in compliance with Article 60 of the DIFC Employment Law. At the Hearing the Claimant did not make much reference to his claim for unfair dismissal other than his general contention that termination during sick leave is unfair. The Claimant acknowledged that the Defendant provided reasons for termination in writing on 11 July 2016 but pointed out that such reasons conflicted with the reasons given in an internal company-wide memo.

36. While there is inconsistency between the 11 July 2016 letter citing disappointing performance as the reason for the Claimant’s termination and the company-wide memo indicating that a number of employees had been terminated due to restructuring, I do not find this relevant to the dispute at hand. There is nothing to suggest that either of these communications supports allegations of unfair dismissal as it is quite reasonable for a company to make terminations due to restructuring and to further chose the terminated employees based on any number of performance factors, pay scales or other relevant reasons. The Defendant has complied with the provisions of Article 60 of the DIFC Employment Law by providing the Claimant with specific reasons for termination on 11 July 2016, well before his effective termination date.

37. The Employment Contract between the parties, which is not in dispute, states at Clause 4.1 that the Employment Contract “may be terminated at any time by either Party giving to the other not less than 3-month prior notice in writing.” This Clause allows termination at any time for any reason, provided that the employee (the Claimant) is afforded all of his other entitlements under the contract.

38. The DIFC Employment Law does not provide for unfair dismissal, and as the Defendant has pointed out, DIFC Courts’ precedent has found that there is no available remedy for alleged unfair dismissal under the current DIFC Employment Law (See Marwan Lutfi v The Dubai International Financial Centre Authority [2013] DIFC CA 003; Hana Al Herz v The Dubai International Financial Centre Authority [2013] DIFC CA 004; Rasmala Investments Limited v Various Defendants [2009] DIFC CFI 001-006). While these precedents were decided under the original version of the DIFC Employment Law, which was subsequently amended in 2012, I find nothing in the amendments to change the findings in these previous cases. Rather, amendment of the DIFC Employment Law subsequent to these cases and the clear lack of unfair dismissal provisions show that the drafters intended not to create any additional rights as to unfair dismissal beyond the other entitlements reflected in that law.

39. While the DIFC Employment Law does provide, at Article 58, that employers must not discriminate against employees on the basis of “physical disability” among other characteristics, and while the Claimant did make reference to discrimination on the basis of being on sick leave, I find that the Claimant has not met the burden of proof to show that the Defendant terminated him because of his sick leave. In fact, there is reference in the case file to a number of other individuals who were terminated around the same time period with the same given reason of restructuring the company.

40. The Claimant has not submitted any further evidence to show that he was terminated due to his being on sick leave or due to his being physically disabled at the time. He has alleged that the Defendant knew of his injury and his sick leave and still terminated him regardless, but has not supported any allegation that he was terminated due to his disability.

41. Therefore, I find that the Claimant is not entitled to any compensation for “unfair dismissal,” or any compensation for discrimination.

B. Is the Claimant entitled to reimbursement for his sick leave?

42. The Claimant alleges that fairness would dictate that the Defendant allow him to finish his sick leave and then terminate him and provide the required three-months of notice for him to find alternative employment. When asked for the legal grounds for claiming entitlement to reimbursement for his sick leave, he was unable to provide any reference.

43. While I am sympathetic to the Claimant’s concerns that he was at a disadvantage by being injured during his notice period and is now having difficulty finding other employment, there is nothing in the DIFC Employment Law or in the Claimant’s Employment Contract to imply that he could not be terminated while on sick leave, especially as the reason given for termination was not due to his sick leave but instead due to restructuring and performance.

44. The Claimant has not provided any proof that he was terminated due to his being on sick leave nor any proof that the Defendant was not entitled to terminate him. He was paid fully for his notice period and is not entitled to any further compensation for this time. If he were given additional compensation for sick leave, he would essentially be receiving his salary twice during the same period of time.

45. Therefore, I find that the Claimant is not entitled to any compensation for sick leave.

C. Is the Claimant entitled to relief from the Non-Compete Clause in his Employment Contract?

46. There appears to be no dispute that both parties agreed to the terms of the Employment Contract upon entering into it. The Claimant contends that the Non-Compete Clause is unfair and will prevent him from finding work in his field and location. However, the Claimant acknowledged that he has yet to find a job and has yet to seek the permission of the Defendant as open to him under the contested Non-Compete Clause, which provides that the Claimant must first seek “permission from the Company” before taking any job or any action which may violate the other provisions of the Clause.

47. Therefore, at this juncture when the Claimant has not been prevented from seeking alternative employment pursuant to the Non-Compete Clause and has presented no convincing legal argument as to why he should be blanketly excused from the Non-Compete Clause in the future, I find it inappropriate to grant any relief in this connection.

Findings

48. The Claimant’s claim as to unfair dismissal is dismissed.

49. The Claimant’s claim as to compensation for sick leave is dismissed.

50. The Claimant’s claim as to relief from the Non-Compete Clause is dismissed

51. The parties shall bear their own costs.

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 7 December 2016

At: 10 am

The post Griet v Guido LLC [2016] SCT 172 appeared first on DIFC Courts.

Claim No. SCT xxxx

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE MARIAM DEEN

BETWEEN

GENAGER 

Claimant

and

GREET LIMITED 

                                     Defendant

Hearing:          22 November 2016 

Judgment:       30 November 2016

JUDGMENT OF SCT JUDGE MARIAM DEEN

ORDER

UPON the Claim Form being filed on 4 October 2016

AND UPON the parties being called on 18 October 2016 for a Consultation with SCT Officer Mahika Hart and the parties not having reached settlement

AND UPON a Hearing having been held before SCT Judge Mariam Deen on 22 October 2016, with the Claimant and the Defendant’s representative in attendance

AND UPON reviewing the documents and evidence on the Court file

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant a final settlement of AED 18,410.84 with respect to unpaid salary from 1 June 2016 to 28 June 2016.

2. The Defendant shall pay the Claimant AED 92,711.73 as a penalty pursuant to Article 18(2) of DIFC Employment Law and an additional AED 657.53 per day from the date of this Judgment, until payment is made.

3. The Defendant shall pay the Claimant AED 890 as reimbursement of visa fines incurred by the Claimant.

4. The Defendant shall reimburse the Claimant’s Court fee in the amount of AED 1,685.32.

THE REASONS

Parties

5. The Claimant is Granger (the “Claimant”), an individual filing a claim against the Defendant regarding her alleged employment.

6. The Defendant is Greet Limited, trading as Greet Middle East (the “Defendant”), a DIFC registered company.

Background

7. The underlying dispute arises over the alleged employment of the Claimant by the Defendant and the subsequent termination of her employment.

8. On 4 October 2016, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) for payment of certain employment entitlements in the sum of AED 85,952.04 (equivalent to USD $23,388.31). On 19 October 2016, the Claimant amended her claim form to remove certain officers as defendants in their individual capacity, leaving Greet Limited as the sole Defendant in the case.

9. The Defendant responded to the claim on 12 October 2016 indicating its intention to defend the claim in full.

10. The parties met for a Consultation with SCT Officer Mahika Hart on 18 October 2016 but were unable to reach a settlement.

11. On 22 November 2016, I heard submissions from the Claimant and Ms Representative, the Defendant’s authorised representative, following which the case was reserved for judgment. The Claimant was provided additional time to submit further evidence relating to the value of the visa fines for which reimbursement was being sought; these were provided on 23 November 2016.

The Claim

12. The Claimant’s case is that the Defendant employed her as ‘Head of Compliance’ under the terms of an employment agreement dated 3 April 2016 (the “Greet Limited Employment Agreement”), with the Defendant’s CEO and Head of Middle East, Mr CEO and Mr SAM respectively, being present at the time of her job offer. She submits that both were also present at a meeting on 28 June 2016, in which she was told by Mr CEO that her employment was being terminated. At the Hearing the Claimant stated that she had worked with Mr CEO on several occasions but understood that she was to report to Mr SAM as her line manager and ‘Supervisor’ as he was referred to in the Greet Limited Employment Agreement, but that the Defendant company, run by Mr CEO, was her ultimate employer.

13. A second employment contract entered into evidence by the Defendant names General Trading LLC (“Gen Trade”) as the Claimant’s employer and is also dated 3 April 2016 (“Gen Trade Employment Contract”). The Gen Trade Employment Contract appoints the Claimant ‘Head of Compliance Middle East but under Greet LLC. In the Hearing the Claimant sought to clarify that the Gen Trade Employment Contract preceded the Greet Limited Employment Agreement and that she had queried the employer being named as Gen Trade with Mr SAM’s Personal Executive Assistant. The Claimant was informed that the wrong contract template had been used and was subsequently provided the Greet Limited Employment Agreement on 19 April 2016, which named the Defendant as her employer. The Claimant signed and post-dated the Greet Limited Employment Agreement to 3 April 2016, being the date her employment had commenced; she submitted that it superseded the original Gen Trade Employment Contract and she had always considered the Defendant to be her employer.

14. The Claimant claims that the Defendant paid her salary for April and May 2016 but the month of June 2016 is still outstanding. Furthermore, the Claimant seeks Article 18 of DIFC Employment Law be applied, which would impose a daily penalty upon the Defendant, to be paid to the Claimant in the amount of her daily wage until the arrears are satisfied.

15. In addition, the Claimant has applied to recover the cost of visa fines in the sum of AED 890 from the Defendant. It was submitted that the Defendant represented that it would secure a DIFC employment visa for the Claimant and was in possession of her passport for approximately 6 weeks for this purpose, before she was terminated. The Claimant, therefore, holds the Defendant responsible for the fines being incurred and seeks to be reimbursed.

The Defence

16. In summary, the Defendant denied employing the Claimant at any time, alleging that she was in fact employed by Gen Trade and seconded to the Defendant, working under the instruction of Mr SAM. It was submitted that the relationship between the Defendant and Gen Trade was governed by a Service Provider Agreement dated 1 February 2016 (“Service Provider Agreement”) and it was pursuant to this that Mr SAM provided his services to the Defendant. The Defendant denied knowledge of the Greet Limited Employment Agreement and submitted that the Gen Trade Employment Contract governed the Claimant’s employment relationship with Gen Trade and accordingly, Gen Trade should be liable for the Claimant’s unpaid wages.

17. The Defendant submitted that the salary payments claimed to have been received by the Claimant from the Defendant were in fact a loan arranged between Mr CEO and Mr SAM. The Defendant asserted that following a request made by Mr SAM, the Defendant had arranged to pay the salaries of Gen Trade staff members for the month of May 2016. The Defendant did not submit any documentation to evidence this loan agreement.

18. With respect to the Claimant’s submissions regarding her employment visa, it was asserted that it was Mr SAM who engaged with Visa Co LLC (“VISA CO”) on behalf of Gen Trade, to process a visa for the Claimant; a 3-month Service Contract between Gen Trade and Visa Co, commencing in March 2016 has been produced in support of this argument. The Defendant denied that it was in the process of arranging the Claimant’s employment visa and as it was Gen Trade that instructed Visa CO, the Defendant should not be liable for any visa fines incurred by the Claimant.

Discussion

19. This dispute is governed by DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (“DIFC Employment Law”) in conjunction with the Greet Limited Employment Agreement and/or Gen Trade Employment Contract, in so far as they are found to be valid.

20. The Claimant confirmed in the Hearing that she was seeking payment from the Defendant of unpaid salary for the 28 days she worked in June 2016. In order to determine whether the Defendant is liable to pay any unpaid salary to the Claimant, an employment relationship between the parties must first be established.

The Employer

21. The existence of two employment contracts in this case complicates the issue of who was employing the Claimant at the relevant time and I will consider the evidence before the Court to determine which, if any, is valid. The Claimant sought to support her arguments as to why the Greet Limited Employment Agreement was valid and superseded the Gen Trade Employment Contract using the following email correspondence:

(i) On 2 March 2016, the Claimant was sent an offer of employment from Ms Assistant using her title of ‘Executive Assistant, Greet Limited’ from an ‘@Greet Limited.ae’ email account stating –

“We are delighted to make you the following job offer. The position we are offering is that of Head of Compliance at a salary of 20,000 dirham’s…This position reports to Mr SAM…Benefits Information relevant to the position: Health care, Visa…”

(ii) On 18 April 2016, the Claimant was sent an email from Ms Assistant stating –

“A Greet Limited employment contract has now been created…Your commencement date should be noted as the first date you started working here at Greet… Also today I should have everyone’s passport and photos as your visas are being processed quickly and these are the final steps before your medical.”

(iii) On 19 April 2016, the Claimant was sent a further email from Ms Assistant with an attachment titled ‘Granger Contract – Greet Limited.docx’ and was instructed to “please see attached contract”. The Claimant stated that following her signing of the Gen Trade Employment Contract she had queried the employer being named as Gen Trade and was subsequently sent the correct Greet Limited Employment Agreement as an attachment to this email.

(iv) On 4 April 2016, Ms Assistant had sent an email with the title ‘Greet Introduction’ to 2 individuals and copied to the Claimant and Mr SAM stating –

“Ms Granger has just joined the Greet Limited team”

(v) On 21 April 2016, Mr Manager using the title ‘General Manager, Greet Limited’ sent an email to Mr CEO, copied to the Claimant containing a ‘staff list with job titles and roles of our staff here’ which included Mr SAM as Head of Middle East and the Claimant as Process Consultant. Mr CEO responded stating –

“I am comfortable with this”

(vi) On 6 April 2016, Ms Secretary using the title ‘Executive Assistant to Mr CEO (CEO)’ sent an email to the Claimant arranging her business trip to the United Kingdom, stating –

“I hope you are well and enjoying your time at Greet Limited”

22. The Claimant relied on the above emails as evidence of her being treated as an employee of the Defendant, as opposed to Gen Trade. She also submitted that she used an ‘@Greet Limited.ae’ email account and attended the registered offices of the Defendant throughout her employment.

23. The Defendant relied on the existence of the Gen Trade Employment Contract to establish an employment relationship between the Claimant and Gen Trade rather than the Claimant and Defendant. It was submitted that the Claimant worked for the Defendant but was ‘seconded’ to it by Gen Trade just as another employee, Mr Example, is alleged to have been. At the Hearing, the Defendant’s representative claimed that Mr Example had a Gen Trade employment contract and visa and was paid by Gen Trade while providing services to the Defendant pursuant to the Service Provider Agreement but reporting to Gen Trade at all times and the Claimant had been providing services to the Defendant in the same way.

24. However, the Claimant denied having any knowledge of the Service Provider Agreement. At the Hearing she asserted that Mr CEO was present in several of her meetings, at her interview and termination and had permitted Mr SAM to correspond with her using the title ‘Head of Greet Limited Middle East’, giving her the impression that the Defendant employed Mr SAM. The Claimant submitted that she could at no point have been expected to believe she was working pursuant to the terms of a Service Provider Agreement.

25. At the Hearing the Defendant’s representative stated that the Claimant had signed the Gen Trade Employment Contract before the Greet Limited Employment Agreement and, therefore, she had already entered an employment relationship with Gen Trade which would preclude her from entering a second with the Defendant. The Claimant’s representative also questioned why the Claimant would have signed the Gen Trade Employment Contract at all, as it was on Gen Trade letterhead and clearly named the employer as being Gen Trade. The Claimant responded that she hadn’t initially realised this when she signed it, she wasn’t familiar with Gen Trade and always understood the Defendant to be her employer which was the reason for her querying the Gen Trade Employment Contract with Ms Assistant and it being replaced by the Greet Limited Employment Agreement.

Finding

26. I am inclined to believe that the Claimant perceived the Greet Limited Employment Agreement to be a ‘corrected’ version of the original Gen Trade Employment Contract, rather than a second contract, as the Defendant suggests. Even in the Gen Trade Employment Contract itself, the Claimant’s position was specified as being ‘Head of Compliance Middle East but under Greet Limited Middle East’ so I do not find it unreasonable for the Claimant to have signed it initially; however, her questioning of the contract which lead to her being provided the Greet Limited Employment Agreement naming the Defendant as the employer is indicative of the Claimant’s understanding of who her employer was to be.

27. Furthermore, the clear difference between the circumstances of Mr Example’s and the Claimant’s employment is, as the Claimant’s representative acknowledged at the Hearing, that Mr Example did not have an equivalent of the Claimant’s Greet Limited Employment Agreement. The very fact that the Claimant sought clarification regarding her employer’s identity and was provided with the Greet Limited Employment Agreement supports her assertion that she intended to be entering an employment relationship with the Defendant. Instructions from Ms Assistant in her email of 18 April 2016 appear to request employees to date the contracts with the date they commenced employment. Therefore, I find the Claimant’s post-dating of the Greet Limited Employment Agreement to 3 April 2016 to be reasonable in the circumstances.

28. Mr SAM, Ms Assistant, Mr Manager, Ms Secretary and Mr Example all appear to have held themselves out as being Greet Limited staff in their correspondence with the Claimant by the use of their job titles, ‘@Greet Limited.ae’ email accounts and representations made regarding the procurement of an employment visa, Greet Limited abbreviations and attachments and references to the Claimant being part of the Defendant’s ‘team’. Irrespective of whether the Defendant employed these individuals in reality, the form and nature of their emails with and about the Claimant support why she reasonably understood herself to be working for the Defendant. The above-mentioned observations, together with the fact that the Claimant was using an ‘@Greet Limited.ae’ email address rather than a Gen Trade one, indicate that the Greet Limited Employment Agreement was intended to and should supersede the Gen Trade Employment Contract.

29. It is not untenable for the Defendant to have genuinely intended for the Claimant to have provided services to it under a secondment relationship from Gen Trade. However, the burden of proving this defence lays squarely with the Defendant and I am not satisfied that it has shown, on the balance of probabilities, that it had anything other than an employment relationship with the Claimant. It was claimed that Mr Example had been successfully seconded to the Defendant by Gen Trade and that the Claimant had a similar relationship, but in the absence of evidence proving this arrangement I must find there to be a valid employment relationship between the Claimant and Defendant. Particularly, I am satisfied that the Claimant’s salary for April and May 2016 had been paid by the Defendant on 3 and 31 May 2016 respectively, strengthening the proposition that it was the Claimant’s employer.

30. At the Hearing, the Defendant’s representative initially questioned the authenticity of the Claimant’s bank account screenshots which showed payments of AED 15,000 and AED 20,000 had been received from ‘by Greet Limited’. Upon the Claimant’s production of her original bank statement corroborating the payments and an email dated 4 September 2016 from Bank LLC confirming payments had been made by ‘Greet Limited’, it was accepted that the payments came from the Defendant’s United Kingdom office. However, it was submitted that this was in the form of a loan arrangement from the Defendant’s United Kingdom office to Mr SAM and not intended as a payment of wages. Again, in the absence of evidence corroborating the ‘loan’ arrangement or documenting what had been agreed between the Defendant/Mr CEO and Gen Trade /Mr SAM, these payments simply appear as wages paid directly from one of the Defendant’s offices to the Claimant, as would be expected from an employer to its employee.

31. The Defendant asserted that it had no knowledge of the Greet Limited Employment Agreement which was signed by Mr SAM using the title ‘Head of Middle East’ of the Defendant. The Defendant maintained that Mr SAM worked with it pursuant to the terms of a Service Provider Agreement which would not have entitled him to employ staff members on its behalf, hold himself out as having authority to bind the Defendant or incur any expenditure in the name of the Defendant. Therefore, the next question to address is whether Mr SAM had the requisite authority to sign the Greet Limited Employment Agreement on the Defendant’s behalf.

Doctrine of Apparent Authority

32. Following the approach taken by the Court of First Instance in Ginette PJSC v Geary Middle East FZE & Geary Limited [2015] DIFC ARB 012, although the Defendant claims that Mr SAM did not have express authority to enter into the Greet Limited Employment Agreement on its behalf, he can be found to have ‘apparent authority’ under DIFC law if the Court is satisfied that the conduct of the Defendant, reasonably interpreted, caused the Claimant to believe that the Defendant consented to having the Greet Limited Employment Agreement signed by Mr SAM, purporting to act for the Defendant.

33. The Doctrine of Apparent Authority (the “Doctrine”) is set out in Articles 130 and 131 of DIFC Contract Law, No. 6 of 2004:

“130. Apparent authority

Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s conduct towards such third persons.

131. Creation of apparent authority

Except for the conduct of transactions required by statute to be authorised in a particular way, apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.”

34. From the Claimant’s submissions, it would appear that Mr SAM clearly held himself out as having the requisite authority to sign the Greet Limited Employment Agreement as he signed using the title ‘Head of the Middle East’ of the Defendant. In addition to Mr SAM being present at the Claimant’s interview, he is also named at Clause 1.6 of the Greet Limited Employment Agreement as the Claimant’s “Supervisor”. Mr CEO’s alleged presence at the time of the Claimant’s interview and termination would have also supported the Claimant’s understanding that Mr SAM had authority to hire her and that she was ultimately working for the Defendant as Mr CEO, CEO of the Defendant company appeared to approve of Mr SAM’s dealings with the Claimant. Despite the job title being incorrect in Mr Manager’s email of 21 April 2016, Mr CEO’s response to the staff list looks to confirm that the Claimant was a member of his ‘staff’. I have also had sight of an email written by Defendant’s representative himself dated 26 June 2016, with his ‘thoughts on staffing’ in which he lists the reasons to retain or dismiss employees, including the Claimant, further indicating that he had influence over her employment.

35. As mentioned above, it would have been perfectly reasonable for the Claimant to have been seconded to the Defendant, but no corroborating evidence has been produced. If the Claimant had been seconded, as Mr Example allegedly was, this should have been clearly documented to avoid the current legal dispute. In the absence of clear or persuasive evidence to the contrary I do not believe it is far-fetched for the Claimant to have believed that she was employed by the Defendant and that Mr SAM had the requisite authority to sign the Employment Agreement on behalf of the Defendant.

36. I am satisfied that Mr SAM had ‘apparent authority’ under the Doctrine, even if actual authority was lacking. There may be no evidence of Mr SAM being expressly authorised to sign the Greet Limited Employment Agreement, however this is obviously distinct from any evidence being furnished proving he was not authorised to sign on behalf of the Defendant.

37. To summarise, the Claimant brings this case and the burden of proving it rests with her. It is my view that her explanation regarding the existence of two employment contracts is convincing. The Greet Limited Employment Agreement, taken in light of the multitude of emails produced by the Claimant and the apparent promise of an employment visa made at the time of her job offer and thereafter, as well as salary payments being made directly by the Defendant, all evidence a valid employment relationship between the parties. The Defendant has failed to substantiate its defence that the Claimant was not, in fact, employed by the Defendant company. It follows that, in the absence of evidence to the contrary, the Defendant is responsible for unpaid salary owing to the Claimant up to the date of termination, which I will consider below.

38. If the Defendant believes Mr SAM to have fraudulently misrepresented it and/or acted beyond his authorised scope under the Service Provider Agreement, this is a separate matter between the Defendant and Mr SAM and/or Gen Trade, for which it may be appropriate to take legal action. However, it would not be in the interests of justice to consider legal issues between the Defendant and third parties in the context of this dispute.

The Effective Date of Termination

39. The Claimant stated that she received oral and written notification of redundancy from Mr CEO and Mr SAM on 28 June 2016. The written notice is signed by Mr SAM and contains reference to ‘warnings’ given to the Claimant, however it is denied that these were given. The Claimant accepts that she was terminated on 28 June 2016.

40. Pursuant to Article 59(2)(b) of DIFC Employment Law the Claimant would have been entitled to a 30-day period of notice as she was continuously employed for more than three months but less than five years. However, Article 59(3) states:

“This Article will not prevent an employer and employee from agreeing to a longer or shorter period of notice nor shall it prevent either party from waiving notice or accepting a payment in lieu of notice.”

41. Therefore, as Clause 19.1.1 of the Employment Agreement states that there shall be zero days’ notice if the period of continuous employment is less than six months, the parties have agreed that the Claimant is not entitled to any notice and no objection to this has been raised.

42. Ordinarily it would be for the employer to prove that the employee’s entitlements have been paid, however, considering the Defendant’s denial of its employer status I rely on evidence produced by the Claimant in the form of her BANK LLC account statements confirming the following payments from ‘Greet Ltd’:

“3 April 2016 AED 15,000

31 May 2016 AED 20,000”

43. The Claimant confirmed in the hearing that she is satisfied she has been paid in full for her work up to and including 31 May, as she was given an additional AED 5,000 in cash to make up for the deficit in her first salary instalment. As I have found the date of termination to be 28 June 2016 she is entitled to a further 28 days of salary. The Claimant’s agreed monthly wages were AED 20,000; thus, the daily wage can be calculated as follows: (20,000 x 12) / 365 = AED 657.53. Accordingly, I find that the Claimant is owed AED 18,410.84 (657.53 x 28) for the 28 working days she was not paid.

Article 18 of the DIFC Employment Law

44. In her Claim Form and at the Hearing, the Claimant confirmed that she sought the penalty under Article 18 of DIFC Employment Law to be activated. It provides:

“(1) An employer shall pay all wages and any other amount owing to an employee within fourteen (14) days after the employer or employee terminates the employment.

(2) If an employer fails to pay wages or any other amount owing to an employee in accordance with Article 18(1), the employer shall pay the employee a penalty equivalent to the last daily wage for each day the employer is in arrears.”

45. The Defendant has not shown any attempts to pay the Claimant what she was owed within 14 days of her termination. Therefore, in accordance with the DIFC Courts precedent set by the judgment of Justice Roger Giles in Asif Hakim Adil v Frontline Development Partners Limited [2014] DIFC CFI 015 and the judgment of H.E. Justice Ali Al Madhani in Pierre-Eric Daniel Bernard Lys v Elesco Limited [2014] DIFC CFI 012, the Claimant is entitled to Article 18 penalties running from 14 days after her official date of termination until the date payment is made. The Claimant had been informed that she would be paid her final salary on 1 July 2016, however, for the purposes of Article 18, the relevant date to calculate the 14 days from is that of termination. Accordingly, the Defendant has been in arrears since 13 July 2016 (14 days following termination on 28 June 2016) and the penalty began to accrue at the daily rate of AED 657.53 from this date.

46. As of the date of this Judgment, the penalty is owed for 141 days from 13 July 2016 until 30 November 2016, totaling AED 92,711.73 (141 x 657.53), with the daily penalty of AED 657.53 continuing to accrue until the date of payment. The Claimant has made submissions to the effect that she had tried to recover her unpaid wages from the Defendant and instructed lawyers for this purpose but due to her employment being denied, was not successful in recovering the owed sums. Therefore, I am satisfied that there has been no unreasonable delay in the bringing of the Claim.

Visa fines

47. As the Defendant’s employer status has been established, it follows that it would be the Defendant’s responsibility to obtain an employment visa for the Claimant, as its employee. I am satisfied that the visa had been promised to the Claimant in several emails, including from Ms Assistant on 2 March 2016 and 18 April 2016. The contents of an email chain dated 17 May 2016 from Mr Example regarding ‘Visa Cancellation Paper’ further support that the process of arranging the Claimant’s employment visa had commenced and the Claimant submitted that she had physically handed her passport to Ms Assistant for this reason.

48. There is no conclusive evidence regarding why the visa was not obtained but an email dated 10 July 2016 from Visa Co points to the Defendant being its client. Moreover, although I’ve seen that the Service Contract between Visa Co and Gen Trade supports the Defendant’s assertion that it did not engage Visa Co’s services, invoices from Visa Co are addressed to the Defendant rather than Gen Trade. Regardless of who engaged Visa Co, it seems unlikely that the Defendant would be paying (or at least invoiced to pay) for visa procurement services that it was not aware of and responsible for. If this was not the reality, better business practices needed to be implemented to provide clarity and avoid this type of confusion and potential liability.

49. I am satisfied that the Claimant mitigated the fines by personally recovering her passport from Visa Co after approximately 6 weeks and should be entitled to recover the value of the fines as they were incurred as a direct result of the Defendant’s failure to procure the appropriate visa for the Claimant. The Claimant produced evidence of the value of the fines in the form of penalty notices 27543 and 27544 in the sums of AED 670 and AED 220, respectively; these corroborate that the sum of AED 890 is due and owing to her.

Conclusion

50. In light of the aforementioned, I find that the Defendant was the Claimant’s employer and the Greet Limited Employment Agreement to be valid. The Defendant is liable to pay the Claimant’s unpaid salary and a penalty for every day that it has been in arrears, pursuant to Article 18 of DIFC Employment Law. Furthermore, the Defendant is liable to reimburse the Claimant for visa fines incurred and with respect to the Court Fee.

Issued by:

Mariam Deen

SCT Judge

Date of issue: 30 November 2016

At: 4 pm

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Claim No. CFI 037/2015    

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

WILLIAM DANIEL MILLIGAN

            Claimant

and

AL MOJIL INVESTMENT LIMITED

                                                                        Defendant

CONSENT ORDER

UPON the parties having agreed terms between them for the settlement of this claim

IT IS HEREBY ORDERED BY CONSENT THAT:           

1.The trial listed to be held on 13 and 14 December 2016 is vacated.

2. The Claimant shall file a Notice of Discontinuance, upon which the case will be closed.

3. There be no order as to costs.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 12 December 2016

At: 11am

The post CFI 037/2015 William Daniel Milligan v Al Mojil Investment Limited appeared first on DIFC Courts.

Investor confidence boosted by Ras Al Khaimah partnership with DIFC Courts

Ras Al Khaimah and Dubai legal systems collaborate to increase business certainty in the UAE    

Ras Al Khaimah and DIFC agreements open up English-language legal system to Ras Al Khaimah investors, businesses and residents

The attraction of Ras Al Khaimah as one of the UAE’s top investment destinations has been boosted by new legal steps designed to promote economic growth, secure foreign investment, and protect assets of investors and residents.

The legal package, signed today at the Al Dhait Palace and witnessed by His Highness Sheikh Saud bin Saqr Al Qasimi, Member of the Supreme Council and Ruler of Ras Al Khaimah, allows for judgments issued by Dubai’s English-language DIFC Courts to be directly enforced by Ras Al Khaimah’s courts, provided that written contracts explicitly opt-in to the DIFC jurisdiction.

The new agreements pave the way for Ras Al Khaimah government bodies, as well as companies, investors and individuals, to choose the DIFC Courts and the DIFC-LCIA Arbitration Centre to resolve disputes.

In addition, the DIFC Academy of Law will provide customised, world-class legal training for Ras Al Khaimah students and young professionals, in line with His Highness the Ruler of Ras Al Khaimah’s vision for investing in his people.

His Highness Sheikh Saud bin Saqr Al Qasimi said: “For those who invest, work and live in Ras Al Khaimah, the additional choice of this proven English-language legal system offers more prospects for future progress. For investors, we speak the language of international commerce, and for businesses we offer greater certainty and confidence in a legal system recognisable around the world. Individual residents can have even greater trust that their property and assets will be secure here. Taken together, today’s changes are another great example of our vision of the Emirates working hand-in-hand to make the UAE a world-class place to do business.”

The collaboration between the Arabic civil law and English common law legal systems comes as Ras Al Khaimah seeks to further increase the thousands of foreign-owned companies already operating there. The changes will complement Ras Al Khaimah’s existing Arabic-language court system.

The DIFC Courts, established nearly a decade ago as part of the DIFC, have proven highly successful in earning investor trust through offering the protection of a familiar international legal system.

Dr. Michael Hwang, SC, Head of the Dispute Resolution Authority (DRA) and Chief Justice of the DIFC Courts, said: “Giving businesses and individuals choice as to how to resolve their disputes is an extremely effective tool to drive foreign direct investment and commerce in Dubai. Ras Al Khaimah’s economy has flourished in recent years. Now, through our cooperation, the emirate is able to offer a full suite of dispute resolution services. Today’s announcement is good news for all investors, businesses and property owners in Ras Al Khaimah, with parties free to choose the legal system to best suit their needs.”

Today’s agreements underline Ras Al Khaimah Government’s commitment to provide choice to help companies and individuals solve business problems. Through working together, Ras Al Khaimah and Dubai have reached a major milestone on the road to the UAE’s 2021 Vision of efficient and swift commercial justice.

The economy of Ras Al Khaimah is already widely diversified. A tourism hub, the emirate is home to some of the country’s largest manufacturers including RAK Ceramics, Julphar – Gulf Pharmaceutical Industries, Ashok Leyland and Gulf Cement Company. More than 500 manufacturers and thousands of SMEs are located in Ras Al Khaimah Investment Authority’s two industrial parks, while Ras Al Khaimah Free Trade Zone is the base for over 8,600 international companies.

The DIFC Courts administer an English-language common law system that complements the UAE’s Arabic-language civil law system. They have since become one of the world’s most connected courts, with enforcement agreements in places with many of the UAE’s key trading partners. The DIFC Courts’ world class bench of judges, exceptionally efficient processes and service-oriented culture have earned the confidence of the international business and legal community. In 2015, the main court handled cases valued at approximately AED 4.46 billion, with virtually all international in nature, while the Small Claims Tribunal’s workload nearly doubled to 216 cases.

Framework MOU Agreement to promote cooperation to support Ras Al Khaimah’s position as a preeminent hub for investment and establish cooperation between the Ras Al Khaimah Executive Council, the Judicial Council, the Ras Al Khaimah Courts and the DRA

The post Investor confidence boosted by Ras Al Khaimah partnership with DIFC Courts appeared first on DIFC Courts.

Claim No: CFI-009-2016 

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

VEGIE BAR LLC

Claimant

and

EMIRATES NATIONAL BANK OF DUBAI PROPERTIES PJSC

Defendant

ORDER OF THE CHIEF JUSTICE MICHAEL HWANG

UPON reviewing the Appeal Notice, the Grounds of Appeal filed on 17 October 2016 and the Skeleton Argument filed on 1 November 2016 by the Defendant for the purposes of obtaining permission to appeal the Judgment of H.E. Justice Shamlan Al Sawalehi dated 3 October 2016

AND UPON reviewing all relevant material in the case file

AND in accordance with Part 44 of the Rules of the DIFC Courts (“RDC”);

IT IS HEREBY ORDERED THAT permission to appeal be granted as the requirements of RDC 44.8 have been met on the grounds that the appeal would have a real prospect of success.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 14 December 2016

At: 3 pm

The post CFI 009/2016 Vegie Bar LLC v Emirates National Bank of Dubai Properties Pjsc appeared first on DIFC Courts.

The attraction of Ras Al Khaimah as one of the UAE’s top investment destinations has been boosted by new legal steps designed to promote economic growth, secure foreign investment, and protect assets of investors and residents.

The legal package, signed today at the Al Dhait Palace and witnessed by His Highness Sheikh Saud bin Saqr Al Qasimi, Member of the Supreme Council and Ruler of Ras Al Khaimah, allows for judgments issued by Dubai’s English-language DIFC Courts to be directly enforced by Ras Al Khaimah’s courts, provided that written contracts explicitly opt-in to the DIFC jurisdiction.

The new agreements pave the way for Ras Al Khaimah government bodies, as well as companies, investors and individuals, to choose the DIFC Courts and the DIFC-LCIA Arbitration Centre to resolve disputes.

In addition, the DIFC Academy of Law will provide customised, world-class legal training for Ras Al Khaimah students and young professionals, in line with His Highness the Ruler of Ras Al Khaimah’s vision for investing in his people.

His Highness Sheikh Saud bin Saqr Al Qasimi said: “For those who invest, work and live in Ras Al Khaimah, the additional choice of this proven English-language legal system offers more prospects for future progress. For investors, we speak the language of international commerce, and for businesses we offer greater certainty and confidence in a legal system recognisable around the world. Individual residents can have even greater trust that their property and assets will be secure here. Taken together, today’s changes are another great example of our vision of the Emirates working hand-in-hand to make the UAE a world-class place to do business.”

The collaboration between the Arabic civil law and English common law legal systems comes as Ras Al Khaimah seeks to further increase the thousands of foreign-owned companies already operating there. The changes will complement Ras Al Khaimah’s existing Arabic-language court system.

The DIFC Courts, established nearly a decade ago as part of the DIFC, have proven highly successful in earning investor trust through offering the protection of a familiar international legal system.

Dr. Michael Hwang, SC, Head of the Dispute Resolution Authority (DRA) and Chief Justice of the DIFC Courts, said: “Giving businesses and individuals choice as to how to resolve their disputes is an extremely effective tool to drive foreign direct investment and commerce in Dubai. Ras Al Khaimah’s economy has flourished in recent years. Now, through our cooperation, the emirate is able to offer a full suite of dispute resolution services. Today’s announcement is good news for all investors, businesses and property owners in Ras Al Khaimah, with parties free to choose the legal system to best suit their needs.”

Today’s agreements underline Ras Al Khaimah Government’s commitment to provide choice to help companies and individuals solve business problems. Through working together, Ras Al Khaimah and Dubai have reached a major milestone on the road to the UAE’s 2021 Vision of efficient and swift commercial justice.

The economy of Ras Al Khaimah is already widely diversified. A tourism hub, the emirate is home to some of the country’s largest manufacturers including RAK Ceramics, Julphar – Gulf Pharmaceutical Industries, Ashok Leyland and Gulf Cement Company. More than 500 manufacturers and thousands of SMEs are located in Ras Al Khaimah Investment Authority’s two industrial parks, while Ras Al Khaimah Free Trade Zone is the base for over 8,600 international companies.

The DIFC Courts administer an English-language common law system that complements the UAE’s Arabic-language civil law system. They have since become one of the world’s most connected courts, with enforcement agreements in places with many of the UAE’s key trading partners. The DIFC Courts’ world class bench of judges, exceptionally efficient processes and service-oriented culture have earned the confidence of the international business and legal community. In 2015, the main court handled cases valued at approximately AED 4.46 billion, with virtually all international in nature, while the Small Claims Tribunal’s workload nearly doubled to 216 cases.

The post Investor confidence boosted by Ras Al Khaimah partnership with DIFC Courts appeared first on DIFC Courts.

The Amended Part 44 Rules of the DIFC Courts on Leave to Appeal are now open for public consultation.

The proposed amendments are available at the following link: rdcpart44appeals-consultationdocx

The public is invited to send their feedback to the consultation email address (consultation@difccourts.ae) before 5pm on Thursday, 19 January 2017.

The post Amended Part 44 of the Rules of the DIFC Courts on Leave to Appeal – open for Public Consultation appeared first on DIFC Courts.

Claim No. CFI 032/2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE 

IN THE MATTER OF THE REGULATORY LAW (NO. 1 OF 2004) 

IN THE MATTER OF THE DIFC INSOLVENCY LAW (NO. 3 OF 2009)

BETWEEN 

THE DUBAI FINANCIAL SERVICES AUTHORITY

Claimant

and 

ES BANKERS (DUBAI) LIMITED

Defendant

ORDER OF DEPUTY CHIEF JUSTICE SIR DAVID STEEL

UPON reviewing Application Notice CFI-032-2016/24 dated 28 November 2016 of the Joint Liquidators of ES Bankers (Dubai) Limited (in liquidation) (“ESBD“)

AND UPON reading the evidence

AND UPON hearing Counsel for the Joint Liquidators of ESBD on 14 December 2016

IT IS HEREBY ORDERED THAT:

1.Pursuant to Article 71 of the DIFC Insolvency Law (DIFC Law No. 3 of 2009)(the “Law“), the Joint Liquidators shall be permitted to declare and distribute a further interim dividend (the “Further Interim Dividend“) in the percentage and to the class of creditors further described in the seventh witness statement of Phil Bowers dated 28 November 2016, specifically to creditors whose admitted claims enjoy the ranking assigned pursuant to Rule A5.13.2(c) of the Client Money Distribution Rules appended to the Conduct of Business Rules (“COB“) enacted by the Dubai Financial Services Authority (“DFSA“) pursuant to its rule making power under the Regulatory Law (DIFC Law No. 1 of 2004). Such Claims are referred to in the liquidation of ESBD as “Subordinated Client Money Claims“.

2. Pursuant to Article 64 of the Law, that by 4pm UAE time on 20 January 2017 (the “Bar Date“) the creditors of ESBD are to prove their debts or claims in accordance with the DIFC Insolvency Regulations 2009 (together the “Regulations” and, each individually, a “Regulation“), in particular Regulations 5.16 and 5.17, failing which any creditors who do not prove their debts or claims are to be excluded (in respect of the debt(s) or claim(s) for which they failed to prove) from the Further Interim Dividend. For the avoidance of doubt:

(a) Nothing in this order shall prevent a creditor proving a debt or claim after the Bar Date or, in respect of a debt or claim so proved, from participating in any interim or final dividend declared and paid after the Further Interim Dividend or, to the extent that funds permit, any dividend paid by way of catch-up.

(b) No creditor who proves a debt or claim after the Bar Date shall be entitled to disturb the Further Interim Dividend or any previous distribution made by the Joint Liquidators, specifically any dividend paid by way of catch-up, pursuant to Regulation 5.46.5, in respect of the first interim dividend declared by the Joint Liquidators on 30 October 2015.

(c) All creditors who have proved a debt or claim as at the date of this order shall be deemed to have proved before the Bar Date.

(d) For the purpose of this order, the proof of a debt or claim on or before the Bar Date (including by the deeming provision in paragraph (c) above) shall be without prejudice to the power of the Joint Liquidators to admit or reject that debt or claim in whole or in part. The Bar Date shall operate by reference to the date of proof, not of the admission of the proof, whether in whole or in part, including after an appeal against a rejection in whole or in part by the Joint Liquidators.

3. Further or other directions as the court considers appropriate.

4. Further or other relief with liberty to apply.

5. The costs of and occasioned by this application be costs in the liquidation.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of Issue: 15 December 2016

At: 4pm

The post CFI 032/2014 The Dubai Financial Services Authority v ES Bankers (Dubai) Limited appeared first on DIFC Courts.

Claim No: CFI 022/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) HISHAM AKRAM MOHAMED SAYED AHMED

(2) MOHAMED AKRAM MOHAMED SAYED AHMED EID

(3) SAMIA SAAD ELSHAZLY

(4) TAREK MOHAMED MEDHAT ABDELHADY ABDELRAHMAN

                                                                                          Claimants

and

(1) ALADDIN HASSOUNA SABA

(2) MOHAMED HAZEM BARAKAT (ALSO KNOWN AS HAZEM BARAKAT)

(3) WAEL MOHAMED SAYED EL MAHGARY

Defendants

  ORDER OF JUDICIAL OFFICER MAHA AL MEHAIRI

UPON reviewing the Claimants’ Application Notice CFI-022-2015/8 dated 18 December 2016 seeking permission to extend the deadline by which the Amended Claim Form must be served

AND UPON reviewing the Third Witness Statement of Mark O’Flynn dated 15 December 2016

AND UPON reviewing the Order of Registrar Mark Beer dated 22 June 2016 granting a 6 month extension to serve the Amended Claim Form on the Defendants

IT IS HEREBY ORDERED THAT:

1. The Claimants be granted a further 6 month extension of time to serve the Amended Claim Form issued on 8 July 2015 on the Third Defendant in Egypt or elsewhere.
2. The Amended Claim Form shall be served by no later than Sunday 9 July 2017, unless extended by a further order.
3. There be no order as to costs.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of issue: 18 December 2016

At: 2pm

The post CFI 022/2015 (1) Hisham Akram Mohamed Sayed Ahmed (2) Mohamed Akram Mohamed Sayed Ahmed Eid (3) Samia Saad Elshazly (4) Tarek Mohamed Medhat Abdelhady Abdelrahman v (1) Aladdin Hassouna Saba (2) Mohamed Hazem Barakat (also known as Hazem Barakat) (3) Wael Mohamed Sayed El Mahgary appeared first on DIFC Courts.

Claim No. SCT 162/2016 

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai 

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GERONIMA 

   Claimant

and

GERTIE RESTAURANT

                                     Defendant

Hearing:          8 November 2016

Judgment:       13 December 2016

JUDGMENT OF SCT JUDGE NATASHA BAKIRCI

UPON this Claim having been called on 20 October 2016 for a Consultation before SCT Officer Mahika Hart

AND UPON the parties not having reached settlement

AND UPON a Hearing having been held before me on 8 November 2016, with the Claimant in attendance and the Defendant failing to attend

AND PURSUANT to RDC 53.61 which provides that if a defendant does not attend the hearing, the SCT may decide the claim on the basis of the evidence of the claimant alone

AND UPON the Defendant having been given the opportunity to provide additional written submissions after listening to a recording of the Hearing

AND UPON reading the documents submitted in the Court file and hearing the Claimant’s arguments at the Hearing

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant AED 31,800 pursuant to the Sale and Transfer Agreement executed between the parties.

2. The Claimant’s claims for salary, notice period and gratuity are dismissed.

3. The Defendant shall reimburse the Claimant for a portion of the Court Fee in the amount of AED 636.

THE REASONS

Parties

4. The Claimant, Geronima, is an Armenian national who owned and worked at Company LLC. He transferred his trade license in the aforementioned establishment to the Defendant company.

5. The Defendant, Gertie Restaurant is a DIFC registered establishment owned by Shareholder 1 and Shareholder 2 (together referred to as the “Current Shareholders”).

Background

6. The Claimant owned, operated and worked at Company LLC, a restaurant in the DIFC which operated in a retail unit in Retail Towers (hereafter referred to as the “Premises”). He was allegedly subject to an Employment Agreement entered into between himself and Company LLC, on 23 April 2014, with his position of “General Manager” to begin on 20 May 2014.

7. In January 2016, the Claimant and the Current Shareholders came to an alleged informal agreement that the Current Shareholders would take over the business and the Claimant would stay on as General Manager. There is dispute between the parties as to the substance of the agreement reached in January 2016, but the parties agree that the Current Shareholders took over the lease agreement for the Premises and began to pay the rent in January 2016. No transfer of the shares in the Company LLC occurred at this time.

8. While the Claimant contends that the restaurant was fully operational in January 2016, the parties agree that the Current Shareholders sought to spend some time re-branding and making changes in the restaurant concept such that required a break in operation. The Claimant expected that the restaurant would open again in May 2016, when he would resume work as the General Manager, but it did not, allegedly due to issues with the alcohol license.

9. On 25 July 2016 the parties entered into a Share Sale and Purchase Agreement (hereafter referred to as the “SSP Agreement”) in order to transfer the shares of Gertie Restaurant & Coffee Shop, formerly known as Company LLC, to the Current Shareholders and formalise their informal agreement from January 2016. It is unclear from the case file when Company LLC was formally renamed Gertie Restaurant & Coffee Shop, but the parties are in agreement that this occurred before execution of the SSP Agreement. The SSP Agreement, in relevant part, states:

“2. SALSE [sic] AND PURCHASE OF SHARES

. . .

2.2 The sale shall include the 100% Of the Company’s shares along with its trade license with all its existing building structures, movable and immovable assets, licensing, fittings, leasehold and manpower. All revenues, income, earnings and cash balance, debtors, creditors, liabilities or obligations occurred before the execution of the Share Sale and Purchase Agreement shall be deemed property of the First Party and the Second Party.

2.3 In consideration of the sale of 100% of the ownership and interest in the shares, Third Party and the Fourth Party agree to pay to the First Part and the Second Party, and the First Party and Second party agree to receive from the Third Party and the Fourth Party the Sum of AED 331,800 (three hundred thirty one thousand eight hundred dirham). Out of this AED 300,000 (three hundred thousand dirham) was paid to the First Party and the Second Party before the execution of this Agreement, and the balance of AED 31,800 (thirty one thousand eight hundred dirham), will be paid to the First Party and the Second Party after the completing the transfer of the shares under the name of the Third Party and the Fourth Party.

2.4 The First Party and the Second Party’ signature on the last page of the Agreement shall stand as an evidence of their receipt of the sum AED 300,000 (three hundred thousand dirham).

2.5 The First Party and the Second Party declare that they received all their benefits in the Company including the profits for years of their partnership in the company. No one of them can refer to the Company or to the Third Party or the Fourth Party in any right in this regard, and the First and the Second Party fully discharge the Company, the Third Party and the Fourth Party from any kind of liability.”

10. Furthermore, the SSP Agreement defines the parties as follows:

a. The “First Party” is defined as Partner, who was in partnership with the Claimant regarding Company LLC.

b. The “Second Party” is defined as Geronima, the Claimant in the case at hand.

c. The “Third Party” is defined as Shareholder 1, one of the Current Shareholders of the Defendant company.

d. The “Fourth Party” is defined as Shareholder 2, the other Current Shareholder of the Defendant company.

11. On 9 October 2016, the Claimant filed a Claim Form in the DIFC Courts Small Claims Tribunal (SCT). The Defendant initially responded to the Claim Form on 16 October 2016 indicating its intent to defend against all of the claim. The parties attended a Consultation on 20 October 2016 but were unable to reach a settlement.

12. On 8 November 2016, I heard only the Claimant’s arguments at a Hearing, pursuant to Rule 53.61 of the Rules of the DIFC Courts (RDC), as the Defendant failed to attend. I allowed the Defendant additional time to listen to a recording of the Hearing and provide written submissions in response, which the Defendant provided via email on 13 November 2016. Although the Defendant requested to have an additional Hearing or meeting with the Judge, I determined that the Defendant has been given sufficient opportunity to hear and respond to the arguments made at the Hearing.

The Claim

13. The Claim Form of 9 October 2016 indicated that the Claimant was seeking USD $ 66,481.56 (equivalent to AED 244,319.73) as compensation for 5 months’ salary, 1 month’s notice period, gratuity and the balance payment of AED 31,800 due pursuant to the SSP Agreement. The Claimant did not elaborate on his claims, provide a breakdown of the amounts allegedly owing, or provide any supporting documentation with his initial Claim Form.

14. The Claimant elaborated on his claim on 2 November 2016. He argued that he was originally employed by Fukurou House as General Manager. He also was a shareholder of that company. He maintained that when the Defendant took ownership of Company LLC, it also took responsibility for his employment, pursuant to UAE Labour Law Article 126, and thus he is owed salary for the months of May until September. He asserted that he resigned from his position in September and is thus owed a 1 month notice period and his gratuity for 2 years and 4 months of employment.

15. The Claimant further argued that when the parties transferred the lease agreement, there was no connecting termination of his employment. Furthermore, when the SSP Agreement was executed on 25 July 2016, Clause 2.2 indicated that the Defendant would take over the trade license along with existing “manpower.” The Claimant contended that this phrase “manpower” includes his employment arrangement.

16. Furthermore, the Claimant contended that although the Defendant claimed that it had already paid him the AED 31,800 owed pursuant to the SSP Agreement, there is no evidence of such payment.

17. At the Hearing, the Claimant addressed certain issues pertaining to some paintings left in the Premises and the expectations of the Defendant that the Premises were covered by an existing alcohol license but as neither of these issues have been included in the Claim Form I cannot take them into consideration.

The Defence

18. The Defendant indicated its intent to defend against the claim on 16 October 2016 when filing an Acknowledgment of Service, but provided no supporting documentation. After the Consultation, the Defendant provided a submission and supporting evidence on 29 October 2016.

19. The Defendant first argued that the Claimant was never a salaried staff member of Gertie Restaurant, although it acknowledged that Gertie Restaurant was formerly known as Company LLC. The Defendant admitted to purchasing Company LLC from the Claimant and changing the name to Gertie Restaurant LLC.

20. The Defendant argued that as the Claimant was a shareholder of Company LLC, his claim for salary is untenable. No offer letter or separate employment agreement was entered into between the Claimant and Defendant.

21. The Defendant argued that it took over the lease agreement for Company LLC in January 2016 and paid all pending rent.

22. Further, the Defendant argued that the Claimant had already received AED 31,000 of the AED 31,800 owed to him under the SSP Agreement and was to be given the additional AED 800 upon his providing a receipt for the initial amount. The Defendant contended that the Claimant never returned for the remaining amount. The Defendant asserted that it has witnesses who saw the Claimant receive the payment of AED 31,000 in cash but offered no witness statements, testimony or other evidence to prove this.

23. Finally, the Defendant argued that the Claimant had misrepresented the status of an alcohol license for the Premises, stating that the Claimant indicated that there was already a “No-Objection” letter for selling alcohol on the Premises, which turned out to be untrue. Therefore the Defendant expressed an intent to claim AED 200,000 against the Claimant for “selling his restaurant with false information.” The Defendant did not file a formal counterclaim and thus this claim will not be addressed further.

The Hearing

24. At the Hearing, the Claimant generally reiterated his arguments and the Defendant’s representatives failed to attend allegedly due to traffic.

25. The Claimant contended that he owned Company LLC restaurant, which was not doing well, and thus he decided to sell the business. In January 2016, the Current Shareholders took over the lease agreement for the restaurant Premises and the Claimant believed that operation of the restaurant would resume in a few weeks with him staying on as the General Manager. The parties did not enter into a written agreement at this time for transfer of the trade license and shares, but the Claimant alleged that the understanding was that the Current Shareholders would purchase the trade license at a later time.

26. The Current Shareholders allegedly sought time to adjust the theme of the restaurant, and therefore closed the Premises in January 2016 and told the Claimant that the restaurant would re-open in May 2016. The Claimant contended that business did not resume in May 2016 as the Current Shareholders were for an alcohol license. However, the Claimant argued that as the business was supposed to re-open in May, he is making an employment claim for unpaid salary starting in May 2016. From May 2016, the Current Shareholders had made excuses as to why the restaurant remained unopen. The Claimant contended that he could claim from January for salary, but he said he was being reasonable and claiming from May instead.

27. The Claimant maintained that after May 2016, the Current Shareholders did not return his attempts at communication. He admitted that he had initiated an absconding case against one of the owners of the Defendant company, because he could not get in touch with any of the owners. The Claimant then informed the landlord of the Premises that the Current Shareholders were not responding and thus should not be allowed to do anything under his trade license, at which time the Current Shareholders came for a meeting.

28. This meeting occurred in July 2016, during which the Current Shareholders allegedly made some excuses as to their silence. The parties agreed at this time to sign the Share Sale and Purchase Agreement, which allowed the Claimant and his partner to transfer the shares to the Current Shareholders for the price of AED 331,800. The SSP Agreement includes existing “manpower.” Thus, the Claimant contended that pursuant to the SSP Agreement, he is still employed by the Defendant company. The Claimant argued that after the parties signed this agreement on 25 July 2016, the Defendant again stopped responding to the Claimant.

29. The Claimant asserted that he had made numerous calls and sent messages and got no response. Therefore, he decided to bring a claim in the DIFC Courts. The Claimant argued that, although the Defendant claimed that it had already paid him, there is no evidence of such payment. The Defendant has not provided any evidence of its payment of AED 31,800 to him.

30. The Claimant alleged that he resigned from his job on 28 September 2016 via email. From 6 September 2016, the Claimant had been emailing the Defendant’s lawyer to organise his final payments. On 25 September 2016, the Claimant received a response from the Defendant’s lawyer stating that they could not give him any advice.

31. The Claimant clarified his claim to be for AED 31,800 pursuant to the SSP Agreement, six months of salary from May until September 2016, 1 month’s notice, and gratuity pursuant to the DIFC Employment Law. The Claimant said that the Defendant had chosen not to open the restaurant, which was fully operational, and thus they should still pay him his salary pursuant to his Employment Agreement as required by the SSP Agreement.

32. The Claimant provided an unsigned copy of his Employment Agreement at the Hearing. He claimed that the signed copy of the Employment Agreement was not available to him as it remained at the restaurant Premises or with the DIFC Government Services Office.

The Defendant’s Post Hearing Submission

33. As the Defendant was not present at the Hearing, I gave it the opportunity to listen to the Hearing recording and make further written submissions. The Defendant provided such submissions via email on 13 November 2016. The Defendant argued that although the Claimant contended to be the General Manager of the restaurant, he had not been present at the Premises during work time since early 2016. Furthermore, the Claimant has no offer letter or salary certificate from the Defendant and was not an employee there.

34. The Defendant acknowledged that it had kept the Claimant’s employment visa valid in good faith to enable him to find another job after selling the business to the Current Shareholders. Finally, the Defendant argued that the Claimant was not an employee of the previous establishment, Company LLC, as he was instead a shareholder. Thus, his resignation had no effect. Otherwise, the Defendant reiterated its previous claims.

Discussion

35. The DIFC Courts and the Small Claims Tribunal have jurisdiction over this case as it concerns alleged employment within the DIFC and transfer of commercial property in the DIFC. The SSP Agreement states at Clause 8, “Governing Law and Jurisdiction” that “This Agreement shall be governed and construed by the laws of the Dubai International Financial Centre. . . Any disputes or differences arising out of, or in connection with, this Agreement, including any question regarding its existence, validity or termination, shall be subject to the jurisdiction of the courts of the Dubai International Financial Centre.” Furthermore, the amount in question does not exceed AED 500,000.

36. The Claimant has effectively made two claims, one for his alleged benefits and entitlements due as an employee of Company LLC and subsequently Gertie Restaurant LLC and a second for payment owed under the SSP Agreement entered into between the parties. I will address each of these claims in turn.

A. The Employment Claim

37. The Claimant claims salary from May until September 2016, 1 month’s notice period and end of service gratuity as his employment entitlements from the Defendant. He has not quantified the exact amounts of these individual claims. His argument as to his entitlement to these amounts from the Defendant hinges upon two documents.

38. First, the Claimant submits an Employment Agreement between himself and “Company House” dated 23 April 2014. This version of the agreement is not signed or executed. He argues that he was the General Manager of Company LLC restaurant and was meant to stay on as an employee for the Defendant.

39. Second, the Claimant submits the SSP Agreement executed between the parties on 25 July 2016. Clause 2.2 of that Agreement reads:

“The sale shall include 100% Of the Company’s shares along with its trade license with all its existing building structures, movable and immovable assets, licensing, fittings, leasehold and manpower. All revenues, income, earnings and cash balance, debtors, creditors, liabilities or obligations occurred before the execution of the Share Sale and Purchase Agreement shall be deemed property of the First Party and the Second Party.”

The “Second Party” is defined on the first page of the Agreement as the Claimant, “Geronima.”

40. It is for the Claimant to meet the initial burden of proof in support of his employment claim. As regards an employment claim, the alleged employee must generally prove that he or she was employed and did work for the employer with various types of evidence admissible as proof of the matter.

41. In this case, the Claimant has submitted an Employment Agreement, drafted as between himself and “Company House” that is not signed or otherwise executed. He has also submitted his resignation letter, addressed to “HR Manager” without any proof that it was sent to or received by the Defendant. He argues that when the Defendant purchased his trade license, pursuant to the SSP Agreement of 25 July 2016, Clause 2.2 included “manpower” and thus the Defendant was his employer, bound to provide any employment entitlements owed to him.

42. The Defendant, in response, has maintained that the Claimant was never its employee. It has not addressed the Claimant’s specific argument regarding Clause 2.2 of the SSP Agreement but has consistently claimed that no salary or other employment benefits are owed to the Claimant as he was not an employee of the Defendant company.

43. I find that the Claimant has not met his burden of proof to show he was an employee of the Defendant company entitled to any salary or employment benefits. The Employment Agreement upon which he relies is not signed or executed and seems to contain contradictions and errors which suggest that it is not in final form.

44. While the Claimant claimed that the signed version was available at the Defendant’s Premises or at the DIFC Government Services Office, he did not provide any evidence of his attempts to obtain this document nor did he seek the Courts’ assistance in accessing this alleged document. Furthermore, while the Claimant has shown that he was likely on the Defendant’s visa, this fact alone does not help to support his claim that he was a bona fide employee of the Defendant company as he would be expected to have previously been on an employment visa of Company House when he was the owner.

45. As the Claimant has not met his initial burden of proof to show that he was an employee of the Defendant, only submitting an unsigned and incomplete Employment Agreement, I find no need to further assess his arguments regarding Clause 2.2 of the SSP Agreement. Thus, the Claimant’s claims for payment of salary, notice period and gratuity from the Defendant are dismissed.

B. Claim for Payment under the SSP Agreement

46. The Claimant also claims AED 31,800 due to him pursuant to Clause 2.3 of the SSP Agreement. He essentially claims that he has proven that this sum is due to him by producing the signed and executed SSP Agreement and the Defendant has failed to prove that it has paid him this amount.

47. The Claimant’s argument is convincing on this point. Clause 2.3 of the SSP Agreement clearly states that “AED 31,800 (thirty one thousand eight hundred dirham), will be paid to the First Party and the Second Party after the [sic] completing the transfer of the shares under the name of the Third Party and the Fourth Party.” This sum is due pursuant to the SSP Agreement, which the Claimant has produced. Thus, the Claimant has met his burden of proof to show that AED 31,800 is owed to him, as he is the Second Party to the SSP Agreement as well as the First Party’s representative. Once the Claimant has met his burden of proof on this claim, it is for the Defendant to prove its defence.

48. The Defendant’s defence against this claim is that it already paid the Claimant AED 31,000 in cash but failed to keep a receipt or record of this transaction. Instead, the Defendant claims that there are witnesses to the exchange of cash but has not provided witness testimony in written or oral form. In this regard, the Defendant has failed to prove its defence. It is unreasonable for a business entity to be unable to prove that a payment of AED 31,000 was made. Thus, as I have seen no evidence to suggest that the Claimant has received the AED 31,800 clearly owed to him pursuant to the SSP Agreement, I find it appropriate to grant the Claimant’s claim for AED 31,800.

C. Costs

49. Usually, in the Small Claims Tribunal, when the Claimant succeeds in the claim, it is appropriate to grant him or her reimbursement of the Court Fee pursuant to RDC 53.70(1). In this case, as the bulk of the Claimant’s claim was for salary, notice period and gratuity and he was only successful on his contract claim for AED 31,800, I find it inappropriate to shift the burden of the Court Fee in its entirety.

50. Instead, it is appropriate to shift the portion of the fee applicable to the AED 31,800 awarded to the Claimant. This amounts to AED 636, calculated as 2% of AED 31,800.

Findings

51. The Defendant shall pay the Claimant AED 31,800 pursuant to the Sale and Transfer Agreement executed between the parties.

52. The Claimant’s claims for salary, notice period and gratuity are dismissed.

53. The Defendant shall reimburse the Claimant for a portion of the Court Fee in the amount of AED 636.

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 13 December 2016

At: 2 pm

The post Geronima v Gertie Restaurant [2016] SCT 162 appeared first on DIFC Courts.

Claim No. SCT 184/2016 

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GINNY 

   Claimant

and

GRAEME CONSULTING SERVICE DIFC

                                     Defendant

Hearing:          5 December 2016

Judgment:       15 December 2016

JUDGMENT OF SCT JUDGE NATASHA BAKIRCI

UPON this Claim having been called on 14 November 2016 for a Consultation before SCT Officer Mahika Hart;

UPON the parties not having reached settlement;

UPON a Hearing having been held before me on 5 December 2016, with the Claimant attending via phone and the Defendant’s representative attending in person;

AND UPON reading the documents submitted in the Court file and hearing the parties’ arguments at the Hearing;

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant AED 37,500 as salary for the months of April, May and half of June 2016.

2. The Claimant’s claim as to damages related to the delay and inability to process his employment visa is dismissed.

3. The Defendant shall submit to the DIFC Courts the remaining portion of the DIFC Courts’ Fee in the amount of AED 911.51.

THE REASONS

Parties

4. The Claimant, Ginny, is an Egyptian national allegedly employed by the Defendant company.

5. The Defendant, Graeme Consulting Service DIFC, is a consulting firm operating in the DIFC.

Background

6. The Claimant and Defendant entered into an Initial Employment Contract on 1 March 2016 which listed the Claimant’s employment as commencing on that same day. The Claimant’s Initial Employment Contract listed him in the position of “Business Consultant” and provided for a three-month probation period.

7. Once it became clear that the Claimant’s visa application was being delayed due to his failure to provide a valid Education Certificate, the parties entered into an Amended Employment Contract. The Amended Employment Contract also commenced on 1 March 2016 but lists the Claimant’s position as “Admin Assistant” and provides a six-month probation period. This Amended Employment Contract will be considered the valid contract between the parties, as both signed it and neither objected that it was the latest applicable contract governing the relationship between them.

8. The parties are in agreement that the Claimant’s employment with the Defendant company was in relation to a specific project that he was meant to pursue for the company and that thus, he was not treated the same as other general employees of the company.

9. The Amended Employment Contract states, in relevant part:

“2-5 The Employee shall be subject to six-month probation period and both parties are entitled, during such probation period, to forthwith terminate this Contract without prior notice and without any compensation or end of service gratuity. Upon the completion of this probationary period and unless the Company has used the right to terminate the Contract, the Employee shall be deemed to be employed with the Company for a definite period as from the Employment Date.

. . .

4-1 In consideration of the work of the Employee with the Employer, the Employee shall be paid a monthly total salary of AED 15,000 (Fifteen Thousand AED) to be paid at the end of each calendar month. The salary is calculated as Basic Salary of 10,000 AED (Ten thousand) and Housing allowance of 5000 AEED (Five thousands).

. . .

9.1 This Employment Contract shall be governed by the applicable laws in the DIFC.

9.2 Both of the Company and the Employee shall be subject to the exclusive jurisdiction of the DIFC courts in respect of any disputes arising out of or/and related to the work.”

10. The Claimant allegedly resigned from his position on 27 June 2016 due to failure to receive his salary and employment visa in a timely fashion. The Claimant did not make reference to a notice period and thus seems to have terminated the Amended Employment Contract pursuant to Clause 2-5.

11. On 31 October 2016, the Claimant filed a Claim Form in the DIFC Courts Small Claims Tribunal (SCT). The Defendant initially responded to the Claim Form on 8 November 2016 indicating its intent to defend against all of the claim. The parties attended a Consultation on 14 November 2016 but were unable to reach a settlement. On 5 December 2016, I heard the parties’ arguments at a Hearing.

The Claim

12. The Claim Form indicated that the Claimant was seeking compensation for three items. First, he claimed unpaid salary from 1 April 2016 until 27 June 2016. Second, he claimed “Compensation against breach of contract and not processing my visa application” in the amount of three months’ salary. Third, the Claimant claimed his DIFC Courts’ fees against the Defendant, saying that he has been attempting to collect his final salary since the end of June, thus he was forced to file a claim in the DIFC Courts.

13. The Claimant submitted a salary certificate issued by the Defendant on 21 April 2016 stating that he was a “Business Consultant” who “joined Graeme Consulting Services LLC on 1^st March 2016.” The Claimant also submitted some email correspondence in Arabic and some other documentation regarding the visa application process.

14. After the Hearing on 5 December 2016, the Claimant submitted an additional narrative and supporting documents regarding his alleged work for the Defendant company specifically in June 2016. The Claimant contended that the requirements needed to process his visa application had not been clearly communicated to him by the Defendant. The Claimant alleged that the failure to obtain his employment visa for four months was evidence of bad intent on the part of the Defendant.

15. Further, the Claimant contended that his required job responsibilities did not necessitate him being in the office each day. In fact, he alleged that he was supposed to seek out new clients and attend meetings outside of the office in order to meet his job responsibilities. Additionally, the Claimant contended that the attendance machine did not work properly and the attendance sheet submitted by the Defendant does not reflect his full work.

16. Finally, the Claimant submitted emails reflecting his efforts and work for the Defendant company during the month of June.

The Defence

17. The Defendant provided its initial Defence on 8 November 2016, indicating its intention to defend against all the claims made in the Claim Form. In the submission, the Defendant generally alleged that the Claimant was on a unique contract which was meant to be a partnership and thus he was not treated like any other employee. He was only tasked “to ensure signing the contract” with a specific client and no other work was assigned to him.

18. However, the Defendant admits that the Claimant was due a monthly payment of AED 15,000 pursuant to the agreement between the Claimant and the Defendant company and that the Defendant company did endeavour to transfer the Claimant’s visa to their sponsorship.

19. The Defendant contended that the Claimant’s representations as to the specific project he was engaged to complete were “not genuine or at least not realistic” and thus, no further payments were made to the Claimant as the project was called off. The Defendant alleged that they may have been “deceived [by the Claimant] and there was no such project at all.”

20. As regards the Claimant’s employment visa, the Defendant alleged that the application is still pending with the DIFC Government Services Office (GSO) because the Claimant has failed to provide an Education Certificate as required by GSO to transfer and fully process his employment visa. The Defendant acknowledged that it tried, with the consent of the Claimant, to change the Claimant’s job title in order to avoid this requirement but as the Claimant is an Egyptian national, the Education Certificate is required for all job positions.

21. Finally, the Defendant alleged that after the Claimant resigned, the Defendant’s CEO was surprised as to his requests for salary and other compensation. The Defendant’s CEO claimed that he asked for meetings with the Claimant to settle the matter but the Claimant did not respond or attend such meetings. Ultimately, the Defendant asks the SCT to dismiss the entirety of the Claimant’s claims.

22. At the Hearing on 6 December 2016, the Defendant provided a copy of the Claimant’s Initial Employment Contract and some other documentation regarding the visa application. The Defendant also submitted a submission after the Hearing, in which it argued that the Claimant did not work for the Defendant company in June 2016 and should not be paid for such time. Further, the Defendant submitted a copy of the Amended Employment Contract and a copy of its office attendance log for the month of June as regards the Claimant’s attendance.

The Hearing

23. At the Hearing, the Claimant contended that he needed to receive his salary for March to June 2016 but had only received one month’s salary of AED 15,000. He also requested compensation for the Defendant’s failure to complete his visa process in the amount of three months’ salary as well as reimbursement of the DIFC Courts’ Fee. The Claimant clarified that he had to leave the country quickly due to his previous visa being cancelled but made no specific claim as to his evaluation of damages connected to his visa claim. In sum, the Claimant mainly reiterated the points in his Claim Form.

24. The Defendant’s representative contended that the Defendant company submitted the Claimant’s visa application promptly and the application was held up due to a missing Education Certificate, which the Claimant never provided.

25. The Claimant responded that the Defendant had advised him that there was a problem only two or three months after starting work. Then, the parties had tried to change the Claimant’s job title to apply again as to avoid the requirement for the Education Certificate. The Claimant alleged that this was only meant to be a visa transfer from another free zone to the DIFC and thus, it should have taken only 1 week to complete. The Claimant said the original Education Certificate, as required, was in Egypt and therefore it would take some time to obtain it.

26. The Defendant admitted that the Claimant had been paid for one month only. The Defendant contended that it had asked for multiple meetings with the Claimant to come to a final settlement but the Claimant did not attend. The Defendant felt that the Claimant did not deserve the full salary for April 2016 until June 2016. The Defendant pointed out that the Amended Employment Contract included a probation period for immediate termination.

27. In response to the question of whether the Claimant did, in fact, work for the Defendant company from April 2016 until June 2016, the Defendant stated that the Claimant’s work arrangement did not provide for active reporting and supervision. The Defendant acknowledged that the Claimant did work in April and May 2016 but alleged that he did not do any work for the Defendant company in June 2016. The Defendant thus conceded that the Claimant was owed two months’ salary and was willing to pay for work from March until May 2016 (for which the Claimant had already been paid one month), but the Defendant contested any payment owed for the month of June 2016.

28. The Claimant argued that he was making efforts every day in furtherance of the intended project. He asked how he could be expected to work without a salary or visa and reiterated that he had worked until the end of June. The Claimant asserted that he had evidence that he was working in June, including communications via email and the fingerprint records of access to the office.

29. The Defendant stated that there was nothing to be done regarding the visa as it was waiting for the Claimant to provide the necessary Education Certificate and thus, the matter was out of its hands. The Claimant did not elaborate on his claim for an additional three months of salary as damages for failure to obtain his visa.

30. It is noted that there was a brief discussion regarding settlement at the end of the Hearing, with the Defendant making an offer of two months of salary. The parties did not reach an agreement and nothing in that discussion will serve to prejudice my judgment.

31. The Defendant did not object to the Claimant’s late submission, made one day before the Hearing, and submitted additional documentation at the Hearing. Due to the late nature of these submissions, I decided to give the parties additional time to make further submissions after the Hearing, especially as regards the Claimant’s contested work in the month of June 2016.

Discussion

32. The DIFC Courts and the Small Claims Tribunal have jurisdiction over this case as it concerns employment within the DIFC and the amount in question does not exceed AED 500,000. Further, Clause 9.2 of the Amended Employment Contract states that any disputes shall be subject to the exclusive jurisdiction of the DIFC Courts.

33. This dispute is governed by the DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (the DIFC Employment Law) in conjunction with the relevant Amended Employment Contract.

34. The Claimant has made three claims related to this dispute:

a. He claims for three months of pending and unpaid salary in the amount of AED 45,000.

b. He claims for three months of additional salary as damages for the Defendant’s failure to provide him with an employment visa, in the amount of AED 45,000.

c. He also claims that the Defendant should be required to pay his DIFC Courts’ Fees in the amount of AED 1,823.02, of which he has already paid half to the DIFC Courts and is required to pay the remaining half upon completion of the case.

35. I will address each of these main issues, responding to the Defendant’s arguments in turn.

A. Pending and Unpaid Salary

36. While the Defendant initially contended that the Claimant was not a traditional employee of the Defendant company, the Defendant’s representative acknowledged at the Hearing that the Claimant is entitled to two months’ salary for April 2016 and May 2016. The Defendant’s representative reiterated the argument that the Claimant did not work for the Defendant company during June 2016 and therefore should not be paid for that time. Thus, it remains contested as to whether the Claimant is due his salary for the month of June 2016.

37. The Claimant maintains that he was working for the Defendant company up until his resignation on 27 June 2016 and has submitted email evidence of his correspondence and work done in the month of June. The Defendant has submitted a log of the Claimant’s attendance at the office in the month of June, showing his attendance for varying amounts of time on 8 days in June 2015. Further, both parties acknowledge that the Claimant was doing work unlike a typical employee and thus, he was required to hold off-site meetings and might not have been attending the office each day.

38. I find that the Claimant has met his burden of proof to show that he was working during the month of June by submitting a number of emails to this effect. The latest submitted email was sent on 14 June 2016. Further, the Defendant’s own submission regarding the Claimant’s attendance at work shows him coming to work on at least 8 days in June, with the last day of attendance being 15 June 2016. These submissions, combined with both parties’ acknowledgment that the Claimant may do off-site work, show that the Claimant was working for the Defendant company well into the month of June.

39. However, it is for the Claimant to prove that he was working beyond 15 June 2016. He has not met this burden of proof. While there is one message reflecting a potential meeting that the Claimant may have set up on 28 June 2016, his own submission is that he stopped working and resigned on 27 June 2016. There is nothing in the court file to suggest that the Claimant was working beyond 15 June 2016.

40. Therefore, I find that the Claimant is entitled to 2.5 months of payment for time worked from 1 April 2016 until 15 June 2016. This amounts to AED 37,500 owed by the Defendant to the Claimant.

B. Damages for Delayed Visa

41. The Claimant alleged that he should receive an additional three months’ salary for “Compensation against breach of contract and not processing my visa application.” The Claimant mentioned this claim at the Hearing but did not provide details of what these damages would cover. In his 10 December 2016 submission, the Claimant elaborated that he should receive “3 month salary against the damage that happened to me because of defendant actions and ignorance. As a legal consequences I had to cancel my visa and my dependent’s visas [sic].” The Claimant has provided no submissions to quantify his alleged damages.

42. It is the Claimant’s responsibility to prove his claim. As he is essentially claiming breach of contract for failure to obtain his employment visa in a timely fashion, he must show that the Defendant had a duty to obtain the visa, that the Defendant breached that duty and that such breach resulted in specific damages incurred by the Claimant.

43. While the Defendant essentially acknowledged its requirement and duty to obtain employment visas for its employees, it asserted that the inability to obtain the Claimant’s employment visa was due to the Claimant’s own failure to submit a valid Education Certificate. While the Claimant alleged in his submissions that a four-month delay reflects bad intent and that he did not receive notice of the requirement for the Education Certificate, he seemed quite aware of the requirement at the Hearing and contended that he could not obtain the Certificate as it was located in Egypt. Therefore, there is no proof of breach of the Defendant’s duty; in fact it seems that the Defendant behaved reasonably regarding its attempts to obtain the Claimant’s employment visa.

44. Furthermore, the Claimant has made no submission to quantify his damages and show the alleged loss caused by the Defendant’s failure to obtain his employment visa. Therefore, the Claimant has failed to meet his burden of proof to clearly articulate and prove his claims regarding damages for breach of contract due to the Defendant’s failure to obtain his employment visa. Thus, I find that the Claimant is not entitled to any damages for the Defendant’s failure to obtain his employment visa.

C. Court Fee

45. The Claimant contends that he had no choice but to come to the DIFC Courts to make his claim against the Defendant as it failed to pay him for a number of months. The Defendant countered that it made several attempts to have a meeting with the Claimant to provide for final settlement.

46. As the Defendant contended throughout that it did not owe the Claimant any salary for the month of June 2016 and as I have found above that it did in fact owe the Claimant AED 7,500 as salary for June 2016, I find it appropriate to reimburse the Claimant for at least part of his DIFC Courts’ Fees.

47. The Claimant claimed well beyond the AED 37,500 awarded to him and thus, his DIFC Courts’ Fee, which is calculated as 2% of the amount he claimed, was AED 1,823.02 (2% of the AED 91,151.02 initially claimed by the Claimant). As the Claimant was only awarded AED 37,500 instead of his full amount claimed, I find it appropriate to award him half of his DIFC Courts’ fee.

48. As the Claimant has only paid half of the DIFC Courts’ Fee at this time, due to a suspension granted to him by the SCT Registrar, the Defendant shall pay the remaining half of the DIFC Courts Fee, amounting to AED 911.51, into the DIFC Courts. The Claimant shall not be reimbursed for the portion of the Court Fee that he has already paid.

Findings

49. The Defendant shall pay the Claimant AED 37,500 as salary for the months of April, May and half of June 2016.

50. The Claimant’s claim as to damages related to the delay and inability to process his employment visa is dismissed.

51. The Defendant shall submit to the DIFC Courts the remaining portion of the DIFC Courts’ Fee in the amount of AED 911.51.

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 15 December 2016

At: 4 pm

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Claim No. xxxx

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai 

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GRIET 

   Claimant

and

GUIDO LLC

                                     Defendant

Hearing:          27 November 2016

Judgment:       7 December 2016

JUDGMENT OF SCT JUDGE NATASHA BAKIRCI

UPON this Claim having been called on 8 November 2016 for a Consultation before SCT Officer Mahika Hart;

UPON the parties not having reached settlement;

UPON a Hearing having been held before me on 27 November 2016, with the Claimant and the Defendant’s representative attending;

AND UPON reading the documents submitted in the Court file and hearing the parties’ arguments at the Hearing;

IT IS HEREBY ORDERED THAT:

1.The Claimant’s claim as to unfair dismissal is dismissed.

2. The Claimant’s claim as to compensation for sick leave is dismissed.

3. The Claimant’s claim as to relief from the Non-Compete Clause is dismissed

4. The parties shall bear their own costs.

THE REASONS

Parties

5.The Claimant, Griet, is a Jordanian national who was employed as a “Senior Relationship Manager” by the Defendant company.

6.The Defendant, Guido LLC, operates a branch office in the DIFC, where the Claimant worked.

Background

7. The Claimant and Defendant entered into an Employment Contract on 5 March 2014 which states the Claimant’s employment as commencing on 1 June 2014. The Claimant began working as a Senior Relationship Manager for the Defendant with a basic salary of AED 85,000 per month. Although this contract was initially issued and signed in one format (attached to the Claimant’s supplemental submission) it was agreed between the parties at the Hearing that the correct version was submitted as attached to the Defendant’s initial defence. This version shall be referred to as the “Employment Contract” throughout this Judgment.

8. The Employment Contract states, in relevant part:

“4. Duration of Contract

4.1 The employment will be of unlimited duration, and may be terminated at any time by either Party giving to the other not less than 3-month prior notice in writing.

4.2 In the case of termination by the Company, the Company may exercise the option of making payment in lieu of notice, or putting the Employee on garden leave for all or part of the notice period, during which time the Employee will remain an employee of the Company but will not be required to attend work unless specifically requested by the Company to do so.. . .

13. Sick Leave

Sick leave shall be granted in accordance with the provisions of the DIFC Employment Law, subject to production of a medical certificate from a hospital, clinic or general practitioner approved by the Company where sick leave exceeds two consecutive working days.

. . .

18 Non-Competition/Solicitation

18.1 The Employee expressly undertakes that he will not for a period of twelve (12) months following the termination of this Employment Contract for whatever reason without first receiving permission from the Company:

18.2.1 take up employment with or be involved directly or indirectly in any other company or business within the DIFC or UAE which competes with the business of the Company; or

18.2.2 contract or solicit business from any person or entity (natural or juridical) who was a client or customer of the Company at any time during the period of the Employment Contract; or

18.2.3 take any action which is prejudicial to the name and/or trading of the Company which would or could cause damage to the Company or any employee of the Company.

. . .

22. Governing Law

This Employment Contract is governed by the DIFC Employment Law No. 4 of 2005 as amended.”

9. The Claimant asserts that he sustained a serious injury to his leg on 2 June 2016 which rendered him incapable of attending work. On 5 June 2016 he allegedly contacted his office regarding this injury and medical reports reflecting this injury were subsequently sent to the Defendant company.

10. It is agreed between the parties that the Claimant was terminated from his position at the Defendant company on 19 June 2016. He was provided with three months of notice period, as per the Employment Contract, and was placed on “garden leave” for that period of time, pursuant to Clause 4.2 of the Employment Contract. His effective termination date was 18 September 2016 and the parties agree that he was paid throughout the notice period and paid his other end of service entitlements. I do note that the Claimant contended during the Hearing that his pension has not yet been paid out but admitted this not to be relevant to his claims in this case.

11. On 23 October 2016, the Claimant filed a Claim Form in the DIFC Courts Small Claims Tribunal (SCT). The Defendant initially responded to the Claim Form on 3 November 2016 indicating its intent to defend against all of the claim. The parties attended a Consultation on 8 November 2016 but were unable to reach a settlement. On 27 November 2016, I heard the parties’ arguments at a Hearing.

The Claim

12. The Claim Form indicated that the Claimant was seeking compensation for unfair dismissal and compensation for sick leave amounting to AED 500,000. The Claimant also sought a waiver of the restrictions in Clause 18 of his Employment Contract (hereafter referred to as the “Non-Compete Clause”). The Claimant also made some reference to not receiving sufficient documentation of the reason for his dismissal, pursuant to Article 60 of DIFC Law No. 4 of 2005 as amended (the “DIFC Employment Law”), which requires that:

“Upon the request of an employee who has been continuously employed for a period of not less than (1) year on the date of termination of employment, an employer shall provide the employee with a written statement of the reasons for the employee’s dismissal.”

13. The Claimant elaborated on his claims, stating that “The termination of my employment was unfair, they informed me during my sick leave, I claim a 3 months [sic] unfair dismissal.” He further argues that “Due to the nature of my sudden termination, I further claims [sic] a three (3) months sick leave. I believe that given my performance has not been called into question nor have I been terminated for cause under Article 59A of the DIFC Employment Law, a severance package ought to be considered by the Bank, which is general market practice in such circumstances.”

14. As for the Non-Compete Clause, the Claimant states that Clause 18 of the Employment Contract is “completely prohibitive and should not be enforced by the Bank, as it will restrict me from seeking alternative employment for the next twelve (12) months in the UAE.” Finally, the Claimant argued that “the Bank has a duty to our [sic] me to ensure that my reputation is not tarnished in any way and more importantly that the Bank does not divulge any misleading or false information pertaining to my self [sic] and employment with the bank.”

15. The Claimant provided a Supplemental Submission in advance of the Hearing, submitted on 12 November 2016 including a statement and several annexures. He subsequently requested permission to withdraw Annex 2 of that submission, a request that I granted at the Hearing and therefore I have not taken Annex 2 into consideration.

16. The Claimant’s Supplemental Submission generally reiterates his previous arguments and highlights his contribution to the Defendant company during his time working there. The Claimant adds that he “was discriminated by the bank by terminating me while I am on sick leave.” He elaborated on the sequence of events surrounding his termination and his sick leave approval.

The Defence

17. The Defendant provided its initial Defence on 3 November 2016, indicating its intention to defend against all the claims made in the Claim Form. In the submission, the Defendant maintained that it has provided sufficient reason for termination, pursuant to Article 60 of the DIFC Employment Law both verbally at the meeting between the Claimant and the Defendant’s Head of Wealth Management, on 19 June 2016 and in writing by letter to the Claimant on 11 July 2016.

18. The Defendant argued that the Claimant was terminated in accordance with his Employment Contract and the DIFC Employment Law and thus, the Defendant is not liable to pay any damages for “unfair dismissal or otherwise.” The Defendant pointed to DIFC Courts precedent establishing that the DIFC Employment Law does not provide for claims of unfair dismissal.

19. The Defendant argued that there is no justification for the Claimant’s claim for compensation for three months of sick leave. Furthermore, there is nothing to prevent an employer from terminating an employee during his or her sick leave. The Defendant states that the Claimant was on “garden leave” during his notice period and that “he continued to receive his normal remuneration during that time. The Fact that Griet may have been on sick leave for all or part of the Garden Leave Period does not entitle him to claim additional sick leave pay.”

20. As regards the Non-Compete Clause, the Defendant argued that the Clause was agreed between the parties and is a reasonable provision. The Defendant cites some English Court precedent purportedly upholding 12-month non-compete clauses as “industry standard” in the financial services sector.

21. Finally, as regards the Claimant’s contention that the Defendant has a duty not to “divulge misleading or false information” about the Claimant, the Defendant stated that it has no intention to do so and has never done so.

22. The Defendant seeks a declaration that it has complied with the obligations of Article 60 of the DIFC Employment Law, a declaration that the non-compete clause in the Employment Contract is valid, a declaration requiring the Claimant to cancel his “UAE residence visa” and the dismissal of all other claims. However, the Defendant has not filed any formal counterclaim in the case.

23. The Defendant provided a further “Supplemental Statement of Defence” on 20 November 2016 generally reiterating its arguments.

Hearing

24. At the Hearing, the parties generally repeated their written arguments. The Claimant alleged conflict between the reasoning given for his termination in the letter addressed to him on 11 July 2016, which made reference to the Claimant’s “disappointing” commercial results, and a company-wide message sent to all staff at the Defendant’s DIFC branch office, which identified the Claimant as an employee leaving the company due to “internal re-organisation”. He believes that his claim for “unfair dismissal” is valid as no reason was given in his initial termination meeting. He made reference to his belief that he was discriminated against because he was on sick leave. This was the extent of the Claimant’s oral submissions regarding his claim for unfair dismissal. The Defendant, by contrast, claimed that verbal and written reasons for the Claimant’s termination were provided in a timely fashion.

25. As to the claim for sick leave, the Claimant contended that the Defendant should have waited until his sick leave was over to terminate him, then giving him his three-months’ notice period to seek alternative employment. He maintained that although he did not have a legal argument to support this contention as such, he believed it unfair to terminate an employee while they are already on sick leave as he was unable to seek alternative employment due to his injury.

26. There was some disagreement between the parties as to when the Claimant provided the Defendant with confirmation via a medical report that he would need to take three months of sick leave. The Claimant contended that both his local office in DIFC and the main office were aware of his extended sick leave due to the nature of his injury, but he did not provide medical reports as to the length of his recovery and required sick leave until 30 June 2016.

27. The Claimant argued that he had informed his local CEO of the nature of his injury on 5 June 2016 and that he did not know the exact length of his required sick leave at that time. He also claimed that he had requested his secretary to inform the main office of his need for an extended sick leave based on the nature of his injury. He contended that based on the nature of his injury, the Defendant must have known that he would need extended sick leave and thus, they were aware of his being on sick leave when they called him for a meeting on 19 June 2016 to terminate him.

28. The Defendant contended that the manager who had informed the Claimant of his termination on 19 June 2016 was not fully aware of the extent of the Claimant’s sick leave, although it does not dispute that the Claimant was injured as claimed. Instead, the Defendant contended that an official medical report for three months of sick leave had not yet been submitted by the Claimant and that, in any event, there is nothing in the Employment Contract or the DIFC Employment Law to prevent the Defendant from terminating the Claimant while on sick leave.

29. Finally, the Claimant made mention of his claim regarding the Non-Compete Clause stating that it is unfair and will prohibit his continued employment in his field and location. By the Claimant’s own admission, he has not found another job yet and if and when he does, it is open to him to seek the Defendant’s approval, as provided at part 18.1 of the Non-Compete Clause.

30. It is noted that there was a brief discussion regarding settlement at the end of the Hearing, with the Defendant making an offer as to the Non-Compete Clause. The parties did not reach an agreement and nothing in that discussion will serve to prejudice my judgment.

Discussion

31. The DIFC Courts and the Small Claims Tribunal have jurisdiction over this case as it concerns employment within the DIFC and the amount in question does not exceed AED 500,000.

32. This dispute is governed by the DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (the DIFC Employment Law) in conjunction with the relevant Employment Contract.

33. As the Claimant has not made any specific claims connected to his statements regarding the Defendant’s duty not to “divulge misleading or false information” about him, I will not address this argument individually. Thus, there are essentially three Claims to be considered in this dispute:

a. Is the Claimant entitled to compensation for “unfair dismissal”?

b. Is the Claimant entitled to reimbursement for his sick leave?

c. Is the Claimant entitled to relief from the Non-Compete Clause in his Employment Contract?

34. I will address each of these main issues responding to the Defendant’s arguments in turn.

A. Is the Claimant entitled to compensation for “unfair dismissal”?

35. The Claimant maintains that he was unfairly dismissed and should receive three months’ compensation for this unfair dismissal. He claims that unfair dismissal was evidenced by the Defendant’s failure to give him reasons for his termination in compliance with Article 60 of the DIFC Employment Law. At the Hearing the Claimant did not make much reference to his claim for unfair dismissal other than his general contention that termination during sick leave is unfair. The Claimant acknowledged that the Defendant provided reasons for termination in writing on 11 July 2016 but pointed out that such reasons conflicted with the reasons given in an internal company-wide memo.

36. While there is inconsistency between the 11 July 2016 letter citing disappointing performance as the reason for the Claimant’s termination and the company-wide memo indicating that a number of employees had been terminated due to restructuring, I do not find this relevant to the dispute at hand. There is nothing to suggest that either of these communications supports allegations of unfair dismissal as it is quite reasonable for a company to make terminations due to restructuring and to further chose the terminated employees based on any number of performance factors, pay scales or other relevant reasons. The Defendant has complied with the provisions of Article 60 of the DIFC Employment Law by providing the Claimant with specific reasons for termination on 11 July 2016, well before his effective termination date.

37. The Employment Contract between the parties, which is not in dispute, states at Clause 4.1 that the Employment Contract “may be terminated at any time by either Party giving to the other not less than 3-month prior notice in writing.” This Clause allows termination at any time for any reason, provided that the employee (the Claimant) is afforded all of his other entitlements under the contract.

38. The DIFC Employment Law does not provide for unfair dismissal, and as the Defendant has pointed out, DIFC Courts’ precedent has found that there is no available remedy for alleged unfair dismissal under the current DIFC Employment Law (See Marwan Lutfi v The Dubai International Financial Centre Authority [2013] DIFC CA 003; Hana Al Herz v The Dubai International Financial Centre Authority [2013] DIFC CA 004; Rasmala Investments Limited v Various Defendants [2009] DIFC CFI 001-006). While these precedents were decided under the original version of the DIFC Employment Law, which was subsequently amended in 2012, I find nothing in the amendments to change the findings in these previous cases. Rather, amendment of the DIFC Employment Law subsequent to these cases and the clear lack of unfair dismissal provisions show that the drafters intended not to create any additional rights as to unfair dismissal beyond the other entitlements reflected in that law.

39. While the DIFC Employment Law does provide, at Article 58, that employers must not discriminate against employees on the basis of “physical disability” among other characteristics, and while the Claimant did make reference to discrimination on the basis of being on sick leave, I find that the Claimant has not met the burden of proof to show that the Defendant terminated him because of his sick leave. In fact, there is reference in the case file to a number of other individuals who were terminated around the same time period with the same given reason of restructuring the company.

40. The Claimant has not submitted any further evidence to show that he was terminated due to his being on sick leave or due to his being physically disabled at the time. He has alleged that the Defendant knew of his injury and his sick leave and still terminated him regardless, but has not supported any allegation that he was terminated due to his disability.

41. Therefore, I find that the Claimant is not entitled to any compensation for “unfair dismissal,” or any compensation for discrimination.

B. Is the Claimant entitled to reimbursement for his sick leave?

42. The Claimant alleges that fairness would dictate that the Defendant allow him to finish his sick leave and then terminate him and provide the required three-months of notice for him to find alternative employment. When asked for the legal grounds for claiming entitlement to reimbursement for his sick leave, he was unable to provide any reference.

43. While I am sympathetic to the Claimant’s concerns that he was at a disadvantage by being injured during his notice period and is now having difficulty finding other employment, there is nothing in the DIFC Employment Law or in the Claimant’s Employment Contract to imply that he could not be terminated while on sick leave, especially as the reason given for termination was not due to his sick leave but instead due to restructuring and performance.

44. The Claimant has not provided any proof that he was terminated due to his being on sick leave nor any proof that the Defendant was not entitled to terminate him. He was paid fully for his notice period and is not entitled to any further compensation for this time. If he were given additional compensation for sick leave, he would essentially be receiving his salary twice during the same period of time.

45. Therefore, I find that the Claimant is not entitled to any compensation for sick leave.

C. Is the Claimant entitled to relief from the Non-Compete Clause in his Employment Contract?

46. There appears to be no dispute that both parties agreed to the terms of the Employment Contract upon entering into it. The Claimant contends that the Non-Compete Clause is unfair and will prevent him from finding work in his field and location. However, the Claimant acknowledged that he has yet to find a job and has yet to seek the permission of the Defendant as open to him under the contested Non-Compete Clause, which provides that the Claimant must first seek “permission from the Company” before taking any job or any action which may violate the other provisions of the Clause.

47. Therefore, at this juncture when the Claimant has not been prevented from seeking alternative employment pursuant to the Non-Compete Clause and has presented no convincing legal argument as to why he should be blanketly excused from the Non-Compete Clause in the future, I find it inappropriate to grant any relief in this connection.

Findings

48. The Claimant’s claim as to unfair dismissal is dismissed.

49. The Claimant’s claim as to compensation for sick leave is dismissed.

50. The Claimant’s claim as to relief from the Non-Compete Clause is dismissed

51. The parties shall bear their own costs.

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 7 December 2016

At: 10 am

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Claim No: CFI 005/2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BEFORE H.E.  JUSTICE OMAR AL MUHAIRI

BETWEEN

(1) MR RAFED ABDEL MOHSEN BADER AL KHORAFI

(2) MRS AMRAH ALI ABDEL LATIF AL HAMAD

(3) MRS ALIA MOHAMED SULAIMAN AL RIFAI

Petitioners

and

BANK SARASIN-ALPEN (ME) LIMITED

Respondent

ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reviewing the Order of H.E. Justice Omar Al Muhairi dated 2 May 2016 ordering that the Defendant be wound up under the DIFC Insolvency Law No 3 of 2009, appointing Mr Shahab Haider of Sajjad Haider Chartered Accountants LLP as the liquidator (the “Liquidator”), and granting permission to the Liquidator to apply to the Court for the fixing of the Liquidator’s remuneration

AND UPON reviewing the Defendant’s application dated 30 June 2016

IT IS HEREBY ORDERED THAT:

1.The Liquidator’s remuneration be fixed by reference to the time properly given by the Liquidator and his staff in attending to matters arising out of the liquidation.

2. The exact amount of remuneration be set by the Court upon application by the Liquidators within 2 months of each six month anniversary of this Order.

3. Further or other relief with liberty to apply.

4. The costs of and occasioned by this application be costs in the liquidation.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 28 December 2016

At: 3pm

The post CFI 005/2016 (1) Mr Rafed Abdel Mohsen Bader Al Khorafi (2) Mrs Amrah Ali Abdel Latif Al Hamad (3) Mrs Alia Mohamed Sulaiman Al Rifai v Bank Sarasin-Alpen (ME) Limited appeared first on DIFC Courts.

Claim No. CFI-011-2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) SHEIKH SULTAN KHALIFA SULTAN AL NEHAYAN

(2) SHEIKH MALEK MAHMOUD FAISAL MALEK AL SABAH

(3) ANDRE GAUTHIER

Claimants

and

(1) ABU AL HAJ HOLDING LTD.

(2) MARTIN WERNER BUCHER

(3) MOHAMMED ABDEL-KHALIQ MOHAMMAD

(4) HUSSEIN ABDEL-KHALIQ MOHAMMAD

(5) RANIA SARAYJI

(6) AHMED AL DISI

(7) MUKTAR HAMMAD

(8) MOHAMMED EBDA

(9) MOHAMMED YOUNIS

Defendants

ORDER OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the Case Management Conference being held between the Claimants and the Ninth Defendant on 22 December 2016

AND UPON hearing Counsel for the Claimant and the Ninth Defendant at the hearing

IT IS HEREBY ORDERED THAT:

1. The Case Management Conference shall be adjourned until all Defendants are served.
2. The Claimants are to serve the Defendants that are located outside the UAE by way of diplomatic channels.
3. The Claimants are granted permission to amend the Claim Form for the removal of Defendants as necessary.
4. A Case Management bundle is to be filed with the Registry and served upon all Defendants.
5. Failure to comply with the above within 6 months will result in the Claim being struck out.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 29 December 2016

At: 10am

The post CFI 011/2016 (1) Sheikh Sultan Khalifa Sultan Al Nehayan (2) Sheikh Malek Mahmoud Faisal Malek Al Sabah (3) Andre Gauthier v (1) Abu Al Haj Holding Ltd. (2) Martin Werner Bucher (3) Mohammed Abdel-Khaliq Mohammad (4) Hussein Abdel-Khaliq Mohammad (5) Rania Sarayji (6) Ahmed Al Disi (7) Muktar Hammad (8) Mohammed EBDA (9) Mohammed Younis appeared first on DIFC Courts.

Claim No. CFI 036/2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) BARCLAYS BANK PLC

(2) CREDIT SUISSE LOAN FUNDING L.L.C.

(3) MIDTOWN ACQUISITIONS L.P.

(4) SPECIAL SITUATIONS INVESTING GROUP INC

     Claimants

and 

ESSAR GLOBAL FUND LIMITED

                                                                Defendant

ORDER OF JUSTICE SIR RICHARD FIELD

UPON considering the Claimants’ Application Notice CFI-036-2016/1 dated 6 November 2016 for immediate judgment (the “immediate judgment application”)

AND UPON considering the Defendant’s Application Notice CFI-036-2016/2 dated 14 November 2016 disputing the jurisdiction of the Court to decide the Claimants’ claim (the “jurisdiction application”)

AND UPON considering the Defendant’s Application Notice CFI-036-2016/3 dated 24 November 2016 for an order dismissing or staying the immediate judgment application (the “stay application”)

AND UPON considering whether the jurisdiction application and the immediate judgment application should be heard in one hearing or the jurisdiction application should be heard separately from and before the immediate judgment application

AND UPON considering the preliminary skeleton arguments served by the 3^rd Claimant and the Defendant

IT IS HEREBY ORDERED THAT:

1.The stay application is dismissed.

2. The jurisdiction application and the immediate judgment application will be heard together on a date to be fixed.

3. The Claimants should forthwith proceed with their immediate judgment application and the Defendant should respond thereto in accordance with the Rules of the DIFC Courts (“RDC”).

4. The Defendant should forthwith proceed with its jurisdiction application and the Claimants should respond thereto in accordance with the RDC.

Issued by:

Amna Al Owais

Deputy Registrar

Date of Issue: 2 January 2017

At: 10am

REASONS

The background to the proceedings

1.The Claimants’ claim is for recognition and enforcement by the DIFC Courts of the judgment of the Supreme Court of New York issued on 25 August 2016 for US$ 171,769169.00 (“the New York Judgment”) obtained by the Claimants against the Defendant.

2. The claim leading to the New York Judgment was to enforce a guarantee up to US$200 million given by the Defendant in respect of a loan made by the Claimants to Essar Steel Minnesota LLC. On 23 February 2016 a Notice of Acceleration declaring that USD 412,132, 810.00 was immediately due under the agreement for the loan was issued and on 18 March 2016 the Defendant issued a Notice of Confession in respect of the sum of USD 201,575,000.00 plus interest. On 24 August 2016, the Claimants filed a request for judgment based on the Notice of Confession and the New York Judgment for USD 171,769,169 was issued the next day on 25 August 2016.

3. The Defendant had 30 days to appeal the New York Judgment but did not do so.

4. On 4 October 2016, the Claimants served a Part 7 Claim Form on the Defendant at its Cayman Islands address. On 31 October 2016, the Defendant filed an Acknowledgment of Service pursuant to RDC 11.2(3) indicating an intention to contest the jurisdiction of the DIFC Courts to hear and determine the proceedings.

5. On 6 November 2016, the Claimants issued the immediate judgment application and on 11 November 2016, the Defendant filed a motion to vacate the New York Judgment on the grounds of “fraud, misrepresentation and/or other misconduct of the Third Claimant”. The Defendant has also stated that it intends to challenge the New York Judgment on the grounds that no notice of its entry was given pursuant to the New York Procedural Rules and that it violates the due process required by New York Procedural Rule 3218 in that it has been entered without there being a default.

6. On 14 November 2016, the Defendant issued the jurisdiction application and on 24 November 2016 it issued the stay application.

7. The Defendant contends that the New York Judgment is not a “final and conclusive judgment on the merits” as required by Rule 42 propounded in Dicey, Morris and Collins, The Conflict of Laws, that Rule being concerned with the enforceability of foreign judgments under the common law. The Defendants argue that: (i) the New York Judgment is not a judgment, but “an administrative act”; (ii) it was not “on the merits”; and (iii) it is not final and conclusive given the application to vacate the New York Judgment in the New York Courts.

8. The Defendant also contends that the enforcement of judgments is a matter of foreign affairs and that Article 24(a)(1) of Law No. 10 of 2004 (the DIFC Court Law) and Articles 5A(1)(e) and 7(6) of Law No.12 of 2004 (the Judicial Authority Law) which the DIFC Court of Appeal held in DNB Bank ASA v Gulf Eyadh Corporation et al [2016] CA 007/2015 authorise the DIFC Courts to enforce foreign judgments, conflict with Article 120 of the UAE Constitution which reserves to the UAE Federation “matters of foreign affairs”. It follows (argues the Defendant) that an individual Emirate (in this case Dubai) cannot legislate independently of the Federation to allow a court of that Emirate to recognise and enforce judgments of foreign courts; and since the Federation has not entered into a treaty for the enforcement of judgments given in the New York Courts, the aforementioned Articles 5A(1)(e) and 7(6) are unconstitutional and any doubt about this contention should be determined by the Union Supreme Court.

9. The Defendant further argues that the DNB Bank case was wrongfully decided both with respect to the interpretation placed on Article 7(6) of the Judicial Authority Law and Article 24(1)(a) of the Court Law and with respect to the conclusion that the absence of assets in the DIFC was no obstacle to recognising the foreign judgment.

10. The Claimants contend that the enforcement of foreign judgments is not a matter of foreign affairs and is not reserved to the Union. On the contrary, UAE civil and constitutional law has been disapplied in the DIFC in a manner expressly authorised by the UAE Constitution. Further, even if enforcement of foreign judgments was somehow a matter of foreign affairs, the issue would be not one of jurisdiction but the substantive test to be applied in deciding whether to order enforcement.

11. The Claimants further contend that the New York Judgment is final and conclusive unless and until it is set aside and that the underlying assertions made in the Defendant’s Motion to Vacate the New York Judgment are demonstrably wrong.

Is the Defendant entitled to insist that its jurisdiction application should be heard  and determined before any further steps can be taken by the Claimants to enforce the New York Judgment?

12. The Defendant’s central submission is that the Court should adopt and follow the decision of Lewison J (as he then was) in Speed Investments Limited et al v Formula One Holdings Limited [2004] EWHC 1772 (Ch). The question for decision there was whether an application for summary judgment could procced against foreign Defendants who had been served outside the jurisdiction but who contested the jurisdiction of the court. The applicable rules of the CPR are the same today as they were on 19 July 2004 when the case was decided.  A defendant who wishes to contest the jurisdiction of the court may file an acknowledgement of service and must do so if he challenges the jurisdiction under Part 11, see Rule 10.1(3) and Rule 11(2). However, by Rule 11(3) a defendant who files of an acknowledgement of service in compliance with Rule 11(2) does not lose any right that he had to dispute the court’s jurisdiction. If the court does not accede to a defendant’s jurisdiction challenge his acknowledgement of service ceases to have effect and he may file a further acknowledgement of service within 14 days or such other period as the court may direct, see Rule 11 (7)(a) & (b). If he does file a further acknowledgment of service he is treated as having accepted that the the court has jurisdiction to try the claim (Rule 11(8)). Under Rule 24.4, a claimant may not apply for summary judgment until the defendant has filed an acknowledgment of service or a defence unless the court gives permission or a practice direction provides otherwise (Rule 24.4(1)).

13. Lewison J followed the approach of Rix J (as he then was) in European Capital Trade Finance Limited v Antenna Hungria RT (unreported, 27 March 1995) where the claimant sued a foreign defendant for money due and applied for summary judgment after the defendant challenged the court’s jurisdiction. In that case Rix said:

“Under the current Order 12, however, that previous procedure has been changed, and one of the purposes of the change was to give a foreign defendant who wished to challenge the jurisdiction a real opportunity to decide whether or not to submit to the jurisdiction of the English court after his challenge to the jurisdiction had been heard and decided.

When, therefore, a challenge to jurisdiction fails, if it does, the defendant has another 14 days to decide whether it wishes to submit to the jurisdiction by lodging a further acknowledgment of service. At that point, the defendant may prefer (as the Philadelphia Chewing Gum Corporation had sought to do) to allow the action to proceed against it by default on the basis that it has no assets within the jurisdiction and no intention of bringing assets within the jurisdiction and that without its submission to the jurisdiction a default judgment rendered against it in England cannot be enforced against it in its home jurisdiction. …

For these reasons, the philosophy and the language of the new post-1979 Order 12 are at one. Judgment cannot be obtained against a defendant who has unsuccessfully challenged jurisdiction under Order 12, Rule 8 until that defendant has been given a further opportunity to decide whether he wishes to submit to the jurisdiction by lodging a further acknowledgment of service, and that is equally so of summary judgment as of default judgment. Indeed, if it were otherwise, the defendant who was challenging the jurisdiction of the court would be compelled to prepare not only submissions but also evidence to meet a claim for summary judgment at a time when he was saying that the court had no jurisdiction over him. That might not be unacceptable where the challenge to jurisdiction fails, but it is plainly contrary to principle where the challenge is a valid one and, at the time when preparations would have to be put in hand, it would not be known whether the challenge would succeed or fail. It may seem unfortunate to a plaintiff with an unanswerable claim that a foreign defendant may hold up summary judgment first by a challenge to the jurisdiction and then by insisting on a further period to lodge his second acknowledgment of service. That, however, is the price such a plaintiff must pay out of regard for all those foreign defendants who, for reasons of comity, are to be allowed to challenge the jurisdiction of these courts without prejudicing or pre-empting their defence on the merits or their decision as to whether, if their jurisdictional challenge fails, they wish nevertheless to submit to the jurisdiction of the English courts.”

14. As Longmore LJ explained in Moloobhoy & Anor v Kanani [2013] EWCA Civ 600 (paras 15 & 16) the former Order 12 Rule 8 referred to by Rix J permitted a defendant to lodge a second acknowledgment of service in the event that his challenge to the court’s jurisdiction was rejected. Before this new procedure, a defendant lodged a conditional appearance but, if the challenge to the jurisdiction was rejected, that appearance became an unconditional appearance and was treated as a submission to the jurisdiction. Longmore LJ also pointed out that Rix J’s judgment was given against the background of the old RSC Order 14, which only allowed an application for summary judgment to be made after a defendant had given notice of intention to defend, which he would not do in his acknowledgment of service challenging the jurisdiction but would do, if he wished, in the second acknowledgment of service filed once the jurisdiction challenge had failed.

15. Lewison J also cited the following passage in para 5.31 of Briggs and Rees on Civil Jurisdiction 3^rd edition (2002) dealing with the question whether a claimant may seek summary judgment in the face of a jurisdiction challenge:

“The answer ought to be, in general at least, that is not open to him. Although it is obvious that if the defendant feels compelled to put in evidence in answer to the application for summary judgment this cannot be seen as submission on his part, it is contrary to principle that a defendant who contends that the court has no jurisdiction over him should be drawn into an investigation of, or a contest in relation to, the merits of the claim. There is nothing clear in the rules to prevent an application from being made on these grounds. Although as the acknowledgment of service — the filing of which is a precondition of seeking summary judgment under Part 24 — will certainly lapse at the determination of the application to dispute the jurisdiction, and it would be a welcome step for a court to rule that an acknowledgment of service which has been followed by an application under CPR Part 12 is not to be seen as an acknowledgment of service for the purposes of an application for summary judgment, at the very least the court will presumably be obliged to hear the jurisdictional challenge before the application for summary judgment, even if the claimant has contrived to have his application listed earlier or at the same time.”

16. In paragraph 16 of his judgment, Lewison J noted that the filing of an acknowledgment of service was not a pre-condition of seeking summary judgment since the court can under CPR Part 24 can give permission for a summary judgment application to be made where no acknowledgement of service has been filed.

17. In paragraph 18, Lewison J said:

“Although, therefore, I accept that the court does have the power to permit an application for summary judgment to be made before an outstanding challenge to the jurisdiction has been determined, it seems to me that it will be a very rare case in which the court exercises that power. In general terms, as Mr Justice Rix says, the price that a claimant must pay for being able to bring foreign defendants before the court is that they have a real opportunity to decide whether or not to submit to its jurisdiction”.

18. Lewison J’s approach that it will only be in a rare case that an English court will exercise the power it has under CPR Rule 24.4(1) to permit an application for summary judgment against a foreign defendant who is challenging the jurisdiction of the court was approved by the Court of Appeal of England & Wales in Moloobhoy & Anor v Kanani (cited in paragraph 15 above.) In that case, however, it was held that an application for summary judgment could be made in the same hearing of a jurisdiction challenge since the defendant had clearly shown that he was going to contest the claim against him if his jurisdiction challenge failed and therefore he did not need 14 days in which to decide whether to submit to the jurisdiction or allow judgment to be entered in default.

19. The provisions in the CPR relevant to Lewison J’s decision that are recited in paragraph 13 above are replicated respectively in the RDC rules as follows: 11.2(3); 12.2; 12.3; 12.8; 12.9; and 24.4.

20. It is submitted on behalf of the Defendant that: (1) given the similarity between the relevant provisions of the CPR and the RDC, the approach formulated by Lewison J in Speed Investments should be applied by the DIFC court; and (2) pursuant to that approach the jurisdiction application should be heard and determined before the immediate judgment application because the instant proceedings have no exceptional features that justify a departure from the usual rule.

21. I decline to accept this submission. In my judgment, Lewison J’s approach in Speed Investments has no application to this case. There, foreign defendants faced being sued to judgment in a contest on the merits in advance of the determination of their challenges to the jurisdiction of the English court, which judgments would likely be more readily enforceable in multiple jurisdictions outside England and Wales than if the defendant had simply allowed judgment to be entered in default. They would be more readily enforceable because the defendants would be held in those foreign jurisdictions to have submitted to the jurisdiction of the English courts. In the instant case, however, the claim is for the enforcement of a foreign judgment in the DIFC, possibly with a view, pursuant to the decision of the Court of Appeal in DNB Bank, to seeking a further order that the DIFC Courts enforcement judgment be referred to the Dubai Courts for execution in mainland Dubai. Submission to the jurisdiction of the Dubai Courts, however, is irrelevant to whether a foreign judgment should be enforced in the DIFC and I am aware of no authority (certainly none has been cited by the Defendant) that submission to the jurisdiction of the DIFC courts would have any bearing on whether a “foreign judgment’ referred to the Dubai courts for enforcement would be enforced by those courts in mainland Dubai.

22. Enforcement of the New York Judgment via enforcement of an enforcement judgment of the DIFC Courts elsewhere than in Dubai and the DIFC is extremely unlikely, if not inconceivable. Instead, separate enforcement judgments founded on the New York Judgment would be sought in those of other jurisdictions.

23. In addition, the Defendant’s defence to the immediate judgment application strongly appears to overlap entirely with what it claims to be part of its jurisdiction challenge, namely, its grounds for vacating the New York Judgment which will be advanced in the New York courts. Thus, it seems highly likely that if the jurisdiction and the immediate judgment applications were heard together, the Defendant’s defence to the latter application would in any event be disclosed in its jurisdiction challenge.

24. In short, I am satisfied on the material before me that, for the reasons given in paragraphs 22 -24 above, if the immediate judgment application and the jurisdiction application are heard together, the Defendant will not suffer the adverse consequences sought to be avoided by the Speedway Investments

Conclusion

25. On the face of it, unless and until the New York Supreme Court vacates the New York Judgment, the Defendant owes the Claimants the very large sum of USD 171,769,169.00 and in these circumstances, given my conclusion that the Speedway Investments approach is inapplicable, I have no hesitation in ordering that the jurisdiction application and the immediate judgment application should be heard together, this being an arrangement which, depending on the outcome on the jurisdiction application, could lead to speedier justice and is one which equiperates both to that adopted in the DNB Bank case at first instance and to the normal practice in the DIFC Courts where applications to enforce arbitration awards are resisted by a cross-applications for setting aside the award.

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Claim No:  CFI 027/2016

          THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) NEST INVESTMENTS HOLDING LEBANON S.A.L.

(2) JORDANIAN EXPATRIATES INVESTMENT HOLDING COMPANY

(3) QATAR GENERAL INSURANCE AND REINSURANCE COMPANY P.J.S.C.

(4) GHAZI KAMEL ABDUL RAHMAN ABU NAHL

(5) JAMAL KAMEL ABDUL RAHMAN ABU NAHL

(6) TRUST INTERNATIONAL INSURANCE COMPANY (CYPRUS) LIMITED

(7) HIS EXCELLENCY SHEIKH NASSER BIN ALI BIN SAUD AL THANI

(8) FADI GHAZI ABU NAHL

(9) HAMAD GHAZI ABU NAHL

(10) KAMEL GHAZI ABU NAHL

                                                                                                               Claimants

and

(1) DELOITTE & TOUCHE (M.E.)

(2) JOSEPH EL FADL

Defendants

CONSENT ORDER

UPON the agreement of the Claimants and the Defendants

IT IS HEREBY ORDERED BY CONSENT THAT:

1. The deadline for the Claimants to file evidence in answer to the Second Defendant’s Application Notice CFI-027-2016/1 dated 12 December 2016 contesting the jurisdiction of the DIFC Courts be extended to 4pm on Monday 20 February 2016.
2. There be no order as to costs.

Issued by:

Amna Al Owais

Registrar

Date of issue: 3 January 2017

At: 3pm

The post CFI 027/2016 (1) Nest Investment Holding Lebanon S.A.L. (2) Jordanian Expatriates Investment Holding Company (3) Qatar General Insurance and ReInsurance Company P.J.S.C. (4) Ghazi Kamel Abdul Rahman Abu Nahl (5) Jamal Kamel Abdul Rahman Abu Nahl(6) Trust International Insurance Company (Cyprus) Limited(7) His Excellency Sheikh Nasser Bin Ali Bin Saud Al Thani (8) Fadi Ghazi Abu Nahl (9) Hamad Ghazi Abu Nahl (10) Kamel Ghazi Abu Nahl v (1) Deloitte & Touche (M.E.) (2) Joseph El Fadl appeared first on DIFC Courts.

Claim No: CFI-009-2016 

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

VEGIE BAR LLC

Claimant

and

EMIRATES NATIONAL BANK OF DUBAI PROPERTIES PJSC

Defendant

 ORDER OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reviewing the Claimant’s Application No. CFI-009-2016/3 dated 3 November 2016 seeking permission to adduce additional evidence at the appeal hearing

AND UPON reviewing the Defendant’s Application No. CFI-009-2016/4 dated 3 November 2016 seeking a stay of proceedings pursuant to the Order of H.E. Justice Shamlan Al Sawalehi dated 3 October 2016

AND UPON the Order of H.E. Justice Shamlan Al Sawalehi dated 3 October 2016 (the “Order”)

AND UPON the Order of the Chief Justice Michael Hwang dated 14 December 2016 granting the Claimant permission to appeal against the Order

AND UPON reviewing all relevant material in the case file

IT IS HEREBY ORDERED THAT:

1. The Claimant’s application is granted.

2. The Defendant’s application is granted.

3. There be no order as to costs.

Issued by:

Amna Al Owais

Registrar

Date of issue: 3 January 2017

At: 3pm

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