When people think of legal proceedings they may imagine drawn out cases, involving huge costs. Less awareness is often drawn to alternative dispute resolution (ADR) options. ADR denotes different methods of resolving disputes without going to litigation, the most notable being arbitration and mediation, both of which are usually faster and more cost-effective for all parties involved.

ADR and the ability to provide better access to justice through an increase in dispute resolution methods is one of the main topics that was discussed at the Global Pound Conference on March 14^th in Dubai.

At the conference, Judge Ali Shamis Al Madhani of the DIFC Courts moderated a panel discussion centred around promoting better access to justice. Joining him in this discussion was Faridah Sarah from Galadari Law firm, Mohmoud Mostafa of Pinsent Masons, and Dr. Sharif Mohamed Ghanam with the Dubai Police College Faculty. Panelists overwhelmingly agreed that alternative dispute resolution options provide better access to justice by creating choice, and focused the discussion on elements responsible for creating and promoting additional alternatives.

Panelists’ discussed the role of Governments and Ministries of Justice and how they can strengthen ADR by way of legislation and policy. In order for alternative dispute resolution options to be feasible, legislation and conventions promoting recognition and enforcement of settlements, including those reached in mediation, are crucial to providing justice. The demand for certainty and enforceability of outcomes has a significant impact on the viability of alternative options to litigation.

The DIFC Courts’ Small Claims Tribunal was discussed as an excellent example of an alternate to litigation as it provides the certainty and enforcement that the legal community seeks. Launched in 2007, the Small Claims Tribunal (SCT) allows for claims up to 500,000 AED. This threshold has allowed for 31 cases since 2015 to be referred to the SCT instead of the Court of First Instance. The Tribunal focuses on mediation between both parties without the need for a lawyer; if both parties cannot come to a resolution during the consultation phase, the case is heard by an SCT judge at a hearing. With the recently launched Skype for Business hearings and consultations, parties can attend remotely via their smartphone, computer or tablet, ensuring low-cost and easy accessibility.

The post Promoting alternative access to justice appeared first on DIFC Courts.

Claim No: CA 001/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

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

 IN THE COURT OF APPEAL

BEFORE JUSTICE SIR JEREMY COOKE, JUSTICE TUN ZAKI AZMI AND H.E. JUSTICE ALI AL MADHANI

BETWEEN

KING AND WOOD MALLESONS (MENA) LLP

                                                                  Appellant

and

MEYDAN GROUP LLC

Defendant / Respondent

and

BANYAN TREE CORPORATE PTE LIMITED

Claimant

Hearing: 8 March 2017

Counsel: Tom Montagu-Smith QC for the Appellant

Judgment: 8 March 2017

JUDGMENT

Transcribed from the oral judgment delivered on 8 March 2017, revised and approved by the Judge.

ORDER

UPON considering the Claimant’s application dated 18 August 2016 seeking an order varying and clarifying the Order of the Deputy Chief Justice Sir David Steel dated 10 August 2016

AND UPON considering the Orders of Deputy Chief Justice Sir David Steel dated 15 November 2016 and 21 November 2016

AND UPON considering the Appellant’s Grounds of Appeal and Skeleton Argument dated 30 November 2016 and 14 December 2016

AND UPON considering the Skeleton Argument of the Claimant dated 28 February 2017 seeking permission to intervene in the appeal

AND UPON considering the Skeleton Argument of the Appellant dated 5 March 2017 in relation to the Claimant’s request to intervene in the appeal

AND UPON hearing counsel for the Appellant on 8 March 2017

IT IS HEREBY ORDERED THAT:

1. The Claimant’s application to intervene in the appeal is refused for lack of standing.

2. The appeal is allowed.

3. The Orders of Deputy Chief Justice Sir David Steel dated 15 November 2016 and 21 November 2016 are set aside.

4. The Claimant shall pay the Appellant’s costs of the Claimant’s application dated 18 August 2016 and of the appeal, such costs to include the Claimant’s application to intervene in the appeal.

AND IT IS DECLARED THAT:

King & Wood Mallesons (MENA) LLP ceased to act for Meydan Group LLC in claim number ARB 003/2013 by 24 December 2014.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 20 March 2017

At: 1pm

JUSTICE SIR JEREMY COOKE:

1.This is an appeal by King & Wood Mallesons (MENA) LLP, to whom we shall refer hereafter as “KWM”, against two orders made by this court on 15 and 21 November 2016 which varied an earlier order made by this court on 10 August 2016.

2. The order of 10 August was phrased thus, so far as is material for current purposes:

“UPON reviewing Application Notice ARB 003-2015/5 filed by [KWM] dated 16 August 2015 seeking an order declaring that KWM has ceased to act for the Defendant, Meydan Group LLC, in these proceedings (the “Application”)

. . .

AND UPON the Registry’s request to KWM on 27 August 2015 to be provided with an alternative address for service for the Defendant, to which no response has been received

AND UPON the Registry’s direction on 24 February 2016 that the Claimant respond to the Application

AND UPON reviewing the Claimant’s response dated 1 March 2016

. . .

IT IS HEREBY ORDERED THAT:

1.The Application is granted.

2. KWM has ceased to act as the legal representative of the Defendant in the ARB-003-2013 proceedings. . . .”

3. Further orders were made involving service of the order in accordance with Rule 37.13(1) of the Rules of the DIFC Courts (hereafter the “RDC”) and requiring the Defendant within seven days from the date of the order to provide an alternative address for service on the Defendant pursuant to RDC 37.17.

4. It will be noted that the Claimant had been requested by the court to respond to the application and had done so. It will also be noted that the application was dated 16 August 2015 and was determined nearly one year later.

5. There is a substantial background history to the matter which we shall not recite save insofar as it is critical to the issues that we have to decide.

6. On 19 December 2013, the Claimant filed an arbitration claim form for recognition and enforcement of an arbitration award. We shall refer to the action as the Arbitration Claim Action.

7. An Acknowledgement of Service was filed following service of the arbitration claim form and that Acknowledgement of Service, in accordance RDC 11.8 gave the address for future service as that of KWM. That Acknowledgement of Service was filed on 7 January 2014 but the Acknowledgement of Service expressly stated that Meydan, the Defendant, was disputing jurisdiction and an application was then made to contest the jurisdiction of this court. That matter went through various stages for decision but ultimately, on 3 November 2014, the Court of Appeal dismissed the jurisdictional challenge.

8. It is important at this stage to note the effect of RDC 12 in the context of the arguments which have arisen. Under RDC 12.1, a defendant who wishes to dispute the court’s jurisdiction to try the claim or argue that the court should not exercise its jurisdiction can apply to the court for an order declaring that it has no jurisdiction or should not exercise any jurisdiction that it does have. The defendant who wishes to do that must file an acknowledgement of service and by doing so, under the express terms of the RDC does not lose any right he may have to dispute the court’s jurisdiction.

9. The court may, on dealing with the challenge, then make a number of different orders but under RDC 12.8, if on an application to contest jurisdiction the court does not accept that challenge, the rules provide that the acknowledgement of service shall cease to have effect. The defendant may then file a further acknowledgement of service within 14 days or such other period as the court may direct. If the defendant then files a further acknowledgement of service, under the terms of RDC 12.9 he is to be treated as having accepted that the court does have jurisdiction to try the claim.

10. In consequence of the dismissal of the jurisdictional challenge by the Court of Appeal, the terms of RDC 12.8 came into play. As we have already said, this provides that, where an application for an order declaring that the court has no jurisdiction over the claim, and where the court makes no such declaration and dismisses the challenge, the defendant may file a further acknowledgement of service within 14 days or such other period as the court may direct. Self-evidently, the defendant is not bound to do so. The whole point of the system is that, having made its jurisdictional challenge, the defendant can then decide whether or not to participate in the proceedings thereafter.

11. Within about a week after the Court of Appeal decision on November 3, both the Defendant itself and KWM informed the court of two matters. First, that the Defendant would take no further part in the proceedings before the court to recognise and enforce the award. Secondly, that KWM were no longer instructed by the Defendant in the matter and would not make any further submissions to the court and were not authorised to make any representations or act for and on behalf of the Defendant. These matters were made plain in emails and letters of 4th and 9th and 10th November of 2014, those communications going both to the court and to the Claimant’s solicitors.

12. The 14-day period to which the rules referred for the filing of a second Acknowledgment of Service therefore expired on 17 November 2014 but in fact, as is indicated by the RDC, the court then expressly made an order. On 17 December, the court directed that the Defendant should file a new acknowledgement of service, if any, by 4:00 pm on 23 December 2014 and that, if it failed to do so, a hearing would be listed for January in order that the Arbitration Claim Action should proceed towards judgment.

13. The Defendant filed no further acknowledgement of service. The consequence of that is clear: the Defendant did not submit to the jurisdiction of the court in respect of Arbitration Claim Action for the recognition and enforcement of the Award. The Defendant was self- evidently not obliged to do so, nor obliged to play any further part in the proceedings. If it had wished to do so, it would have had to file a fresh acknowledgement of service with an address for service.

14. The rules require a party who is participating to give an address for service within the DIFC or Dubai whether it be a physical or email address. That can be either the party’s own address or that of its legal representatives who act for it. But when a party objects to the jurisdiction of the court and its challenge to jurisdiction fails, if it chooses not to play any further part in those proceedings, ex hypothesi, its lawyers are not authorised to accept service on its behalf of anything in that action following the failure of the challenge to jurisdiction. There is therefore no obligation at that stage to provide an address for service of the substantive proceedings.

15. In its skeleton argument on the locus of the Claimant to participate in an application by a solicitor for a declaration that it is no longer a solicitor of record for a party, KWM says this:

“[t]here was no need for KWM to apply to come off the record after Meydan’s jurisdiction complaint was rejected. That occurred automatically in December 2014 when, pursuant to RDC 12.8(1), the acknowledgement of service ceased to have effect.  The only alternative is the impossible dilemma that either

(a) solicitors representing a party for the purposes of a jurisdiction dispute must remain on the record throughout the substantive proceedings or

(b) the defendant must provide an address for service within the jurisdiction (RDC 37.9) and so submit.

The unpalatable prospect of submission by disputing jurisdiction was precisely the reason the equivalent rules in the English CPR were introduced.”

16. That summary accurately reflects the position both in the DIFC and in England and Wales, where the rules are to the same effect and upon which the DIFC rules were based.

17. In fact both the Claimant and the courts appear to have proceeded on the basis that KWM remained on the record for the Defendant until an alternative address for service was provided. That was a mistaken basis on which to proceed. The provisions of RDC 37 deal with changes of legal representatives and have no application whatsoever to the position which arises under RDC 12.8. Neither KWM nor the Defendant was obliged to provide an address for service in the Arbitration Claim Action where there had been a challenge to jurisdiction which had failed and when the decision was then taken both that KWM should cease to act and that the Defendant should not participate.

18.It was in fact because of the stance adopted by the courts and by the Claimant that the application was made by KWM, specifically, in fact, in response to a direct request from the court on 25 June 2015. The application itself, made, as we have said, on 16 August 2015, reads insofar as material as follows:

“KWM ceased to act for Meydan Group LLC in these proceedings on 17 December 2014. All documents for service on the Meydan Group LLC must be served on Meydan Group LLC pursuant to Part 9 of the DIFC Court Rules or further order of the Court (if any).”

19. The application was to be heard on paper, as is ordinarily the case. The application set out in clear terms the history to which we have just referred, including the exchanges in November 2014 following the Court of Appeal rejection of the Defendant’s jurisdiction challenge. The application included a statement that a solicitor who has been disinstructed in the matter may not be used as a medium to continue to effect service on the litigant, referring to the decision in Re Creehouse Ltd [1983] 1 WLR 77.

20. The grounds of the application and evidence for it concluded that the acknowledgement of service which had been filed with its express challenge to jurisdiction had expired at the latest by 17 December 2014. Reference was then made to the decision in Re Creehouse Ltd (ibid). We need not recite that decision in any detail but it is plain from that decision that, first, a solicitor who has been disinstructed may not be used as a medium to continue to effect service on the litigant concerned, and, secondly, it is inappropriate for the solicitor for such a litigant and for the court to make any opposing litigant privy to matters that are internal to the question of continued representation by a solicitor of his client. A solicitor on the record is shown to the world to be in charge of the litigation. If he is in charge of the litigation, he is responsible for its proper conduct and it would be inconsistent with the position of a solicitor in relation to his duties that he should be shown as being in charge of litigation and responsible for it when in fact he was not or was nothing more than a convenient post box. As a matter of general principle, if he is not in charge of the litigation, he cannot be made to stay on the record in order to facilitate service on his client.

21. In the application, it was then said that it followed from those principles that, once an acknowledgement of service ceased to have effect so that a defendant was no longer participating, the solicitor who was formerly the agent for service equally ceased to be on the record.

22. The draft order that was attached to the application referred to a declaration that KWM ceased to act for the Respondent on 17 December 2014 in the proceedings. The form of order sought follows the classic form that has been adopted in common law countries and that set out in RDC 37.11:

“A legal representative may apply for an order declaring that he has ceased to be the legal representative acting for a party.”

23. The application is not generally for an order for a solicitor to come off the record, but for a declaration that the solicitor has ceased to be the legal representative acting for a party. As such, the declaration can refer to any date, including a past date when that event took place.

24. The terms of RDC 37.12 and 37.13 themselves follow the principles set out in Re Creehouse in providing that, first, notice of any application under RDC 37.11 must be given to the party for whom the legal representative was acting unless the court directs otherwise; secondly, where an order is made, a copy of the order must be served on the other parties to the proceedings after it has been made; and thirdly, the order takes effect when it is served. But as the order takes the form of a declaration, it can, and in our judgment often would, or perhaps ordinarily would, specify the date when the solicitor ceased to act, which may well be a past date and would have been so here had the principles of RDC 12 been followed.

25. Following delay for which KWM were not responsible, on 11 February 2016, in an email from KWM, the latter referred to its application of 16 August 2015, seeking an order declaring that it ceased to be on record, without prejudice to its position that such an application was otiose given the acknowledgement of service that had been originally made had lapsed. In the email, KWM said they were not aware of any order being made, that something ought now to be done, and therefore, though the application was to be dealt with on paper, if the Registry was not minded to a make an order in the terms sought, but rather order that the firm ceased to be on record from the date of such an order, they would request an oral hearing to be listed in front of a judge.

26. There was then further delay, that delay being in part attributable to the illegitimate involvement of the Claimant which should not have known of the application nor been permitted to make submissions thereon, as the decision in Re Creehouse makes plain. KWM raised the matter again with the Court and in due course the order was made on paper on 10 August 2016 as we have already said.

27. The order took the form that we have recited at the outset of this judgment and simply said that KWM had ceased to act as the legal representative of the Defendant in the Arbitration Claim Action for recognition and enforcement, without specifying any particular date. Once the order was made, applications were then made by the Claimant for amendment of that order.

28. The Claimant’s application sought that the order made should be “varied and clarified”. The requirement for clarification was said to be the need to specify that KWM ceased to act as the Defendant’s legal representatives with effect from the date of the order or the date on which notice was to be given to the Claimant of the new address for service on the Defendant.

29. The evidence that was put forward in support of the application included a reference to the slip rule, to RDC 36.4, to RDC 36.46 and especially to RDC 36.5, which was relied on as empowering the court to vary its orders to make the meaning and intention of the court clear. It was said that it would create uncertainty and potentially cause serious and unjust prejudice to the Claimant if the order were not varied and clarified to say that KWM ceased to act as at the date of the order. It was noted that, although the application had referred to ceasing to act with effect from 17 December 2014, that had not been included in the order made by the court.

30. On 14 September, KWM wrote to the court stating that the Claimant’s application was seeking to rewrite the order that had been made and that this was not permissible under the slip rule. KWM sought an opportunity to make submissions orally and in writing, in the event the court was minded to allow the Claimant’s application to proceed further. The Claimant denied that it was doing anything other than seeking amendment under the slip rule.

31. On 15 November 2016, the court issued a new order which provided that “KWM ceased to act as the legal representative of the Defendant . . . with effect from the date on which an alternative address for service was provided by the Defendant, being 10 August 2016 pursuant to RDC 37.13.” We should say that we have seen nothing at all that suggests that any alternative address for service has been provided on 10 August and the basis upon which this first amendment to the order was made is unknown to us.

32. On 20 November, the Registrar then wrote to the parties stating that:

“[T]he order requires amendment to make its meaning clear, and that power can be exercised by the Court pursuant to rule 36.5. Accordingly, it is directed that the order be reissued by the Registry such that numbered paragraph 2 of the Order reads: 2. KWM ceased to act as the legal representative of the Defendant . . . with effect from the date of service of the Order of the Deputy Chief Justice dated 10th August 2016 on the Defendant, being 17th August 2016, in accordance with RDC 37.13.”

The Locus of the Claimant

33. We deal first with the question of the locus of the Claimant before deciding the appeal. That issue is connected to the appeal, because, of course, it was the Claimant who had applied to the court for amendment of the original order and sought and obtained the order of 15 November directly and perhaps less directly the order of 20 November 2016. The same issue as to its locus arises for today and the appearance of the Claimant to argue the matter.

34. The Claimant in fact submitted a 35-page skeleton argument in which it contended that it had locus to appear at the hearing on essentially three grounds. Those grounds were maintained in a letter to the court of 7 March but in that letter the Claimant said that it would not appear to argue the case today for reasons of costs and proportionality. The Claimant said in its written submissions that it was directly interested in the application and therefore entitled to make submissions. There were three bases for that. First because it was the original Claimant and Judgment Creditor which had obtained judgment on the award in the Arbitration Claim Action. Secondly it was the Applicant who had sought correction of the order of 10 August 2016 and thirdly it was a party on whom the order had to be served pursuant to the rules of court.

35. So far as concerns its locus to make submissions on the application of KWM in the first place, and to seek correction of the order of 10 August, the Claimant contended that, as original Claimant and Judgment Creditor who had obtained judgment on the award, it was a person directly affected by the order since it impacted on its entitlement to serve KWM with applications in the Arbitration Claim Action. The point can be put succinctly by referring to paragraph 63 and 64 of their skeleton, where it said this:

“63 At its most basic, the Claimant’s interest in the appeal arises from the fact that, if the Claimant did not know when KWM ceased formally (i.e. in accordance with the RDC) to appear on the record for Meydan . . . then the Claimant would not be aware of the representative to be served on behalf of Meydan in the proceedings. It is no doubt for this reason that RDC 37.13 requires that where the court makes an order that a legal representative has ceased to act, a copy of the order must be served on every party to the proceedings, and the order takes effect when it is served. It was pursuant to RDC 37.13 that the Claimant was served with the Original Order and the Corrected Orders. For the same reason, there is also a requirement under RDC 37.17 that the party for whom the legal representative was acting must give a new address for service, but this was not done.

64 Meydan has indeed sought to take advantage of any uncertainty as to when KWM came off the record for Meydan . . . by claiming that all documents served on KWM after the date it claimed to cease acting for Meydan (but before the Original Order or Corrected Orders were issued) are invalid. This argument by Meydan goes to the heart of why the Claimant is directly affected by the proceedings appealing the Corrected Orders. If the Corrected Orders are set aside and the Original Order is restored, notwithstanding the effect of RDC 37.13 and the lack of retrospective effect, the Claimant anticipates that Meydan will use/continue to use the Original Order in the proceedings between the parties in the Dubai Courts to suggest that the DIFC Recognition Judgment and Recognition Order are invalid.”

36. The Claimant went further in submitting that the Defendant and KWM were acting in a way that abused the process of the court.

37. On all these points, the arguments of the Claimant are in our judgment misguided, even though the court had invited submissions from it. For the reasons which we have already set out, first KWM ceased to act as solicitors for the Defendant in the Arbitration Claim Action by at latest 24 December 2014. Secondly, the Claimant was not a party directly affected by the application by KWM for a declaration that they had ceased to be the solicitors acting for the Defendant. Thirdly, its status as Claimant in an action where the Defendant had instructed KWM solely for the purpose of contesting jurisdiction did not give it any interest in the solicitor/client relationship between the Defendant and KWM which was a privileged relationship into which it was not entitled to enquire. Fourthly, the terms of RDC 37 did not give it any such interest; see by way of analogy the decision in Re Creehouse Ltd, where the principles are established, albeit in relation to a different rule. Fifth, it should not have been invited to make submissions on a matter between the Defendant and KWM.

38. We are clear, therefore, that the Claimant accordingly has no locus today and had none at any other earlier stage to make submissions on the orders sought and obtained by KWM.

The Appeal

39. We turn then to the orders in question against which the appeal is made. It is clear in our judgment that the First Instance Court had no power to change its order of 10 August 2016. The Claimant relied on RDC 36.41 to RDC 36.46 as justifying such amendment.

40. RDC 36.41 provides that:

“The Court may at any time correct an accident slip or omission in a judgment or order.”

41. RDC 36.45 provides that:

“The Court has an inherent power to vary its own orders to make the meaning and intention of the Court clear.”

42. The rules again follow those of the English court quite closely, where the notes and cases referred to in the White Book reveal the limits of the scope of the particular power to amend under the slip rule as it is commonly referred to.

43. It is often said that the slip rule is “there to do no more than correct typographical errors in a judgment or order”. In practice, the boundaries of the rule are not defined but there can be no doubt that the operation of the rule is limited to “accidental slips or omissions”, as numerous cases make plain. The court does have an inherent power to vary its own orders to make the meaning and intention of the court clear but it is a fundamental principle that this does not enable a court to have second or additional thoughts. There cannot be a change in the substance of an order that has been made. If it is subsequently thought that the substance is wrong, then this is a matter for correction by way of appeal to an appellate court and does not fall within the ambit of the slip rule. Here what was sought was not just clarification to make the meaning and intention of the court clear. The effect of the alteration sought and given was to change a declaration that KWM had ceased to act as the Defendant’s legal representative in the Arbitration Claim Action without a specified date to a declaration that:

a. By the order of 15 November, KWM had ceased to act from 10 August 2016, which was said to be a date on which an alternative address for service was provided by the Defendant. That, as we say, appears to be a fiction in itself.

b. By the order of 1 November, KWM had ceased to act from 17 August 2016, being the date of service of the order of 10 August.

44. There was also another amendment which simply put right the claim number of the form in the order which was indeed an amendment of the kind that the slip rule envisages, but both of the amendments to dates were not accidental slips or omissions and neither clarified the intention of the court which, as appears from the terms of the order which we have recited, was to grant KWM’s application. In our judgment, the intention of the original order was plain in granting that application for a declaration that it had ceased to act for the Defendant. Although no date was specified, KWM’s first draft had referred to 17 December 2014. Later a consent order had been submitted on 24 February signed by both KWM and Meydan which specified 24 December 2014. The intention of the court was to grant the application of KWM. The court could only have had in mind in so doing those dates which had been specified, 17 December or 24 December, or we suppose just conceivably no date at all, because it was unclear as to what was the relevant date.

45. The court could not, however, on any view have intended to include a date that had never been put forward as at the time of making the order, namely 10 August itself or 17 August, being the date of service, as it subsequently turned out to be, but which was not then known. KWM had made it plain that, if an order was to be granted in terms other than which it sought, it wished to be heard on the matter. The Court had not required it to be heard and “granted the application”.

46. There is no appeal against the original order, but we think it right to make it clear for the avoidance of further argument and debate that KWM did cease to act for the Defendant as solicitors on record by 24 December 2014. It had acted for the Defendant in the jurisdiction challenge and in the absence of the provision of another address for service and compliance with the terms of RDC 37, service could have been effected upon KWM in matters concerning the jurisdictional challenge up until the time that a fresh acknowledgement of service was required for participation in the substantive proceedings. The effect of RDC 37.1 to 37.10 appears to us to have that effect, whatever the Creehouse decision may say. Those provisions have, however, no impact on the position in relation to the Arbitration Claim Action once the jurisdictional challenge was over. The time for the new acknowledgement of service and acceptance of the court’s jurisdiction for the Arbitration Claim Action for recognition and enforcement expired at 4:00 pm on 23 December by virtue of the First Instance Court’s order. There was therefore no lawyer on the record for the Arbitration Claim Action at that stage. Moreover, on 9 and 10 November, both the Defendant and KWM had made it plain that the Defendant would not participate in that action and that KWM had no authority to act for the Defendant in it.

47. In our judgment therefore, KWM had no authority to accept service or act for the Defendant in any respect in relation to the Arbitration Claim Action where the substantive issue of recognition and enforcement was concerned. Once the jurisdiction challenge had failed, that was that.

48. In those circumstances, we are satisfied that there was no jurisdiction in the First Instance Court to amend the order that had been made on 10 August 2016 and the appeals must therefore succeed and the two succeeding orders must therefore be set aside. It may be that it would be sufficient simply to set aside the third order, that dated 21 November 2016, because that in itself subsumed the second order of 15 November 2016, but we set aside both orders, so that there can be no doubt. This appeal must be allowed.

JUSTICE TUN ZAKI AZMI:

1. I agree with the judgment and have nothing further to add.

H.E. JUSTICE ALI AL MADHANI:

1. I agree with the judgment and have nothing further to add.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 20 March 2017

At: 1pm

The post King and Wood Mallesons (Mena) LLP and Meydan Group LLC and Banyan Tree Corporate Pte Limited [2017] DIFC CA 001 appeared first on DIFC Courts.

Claim No: CA-006-2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

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

IN THE COURT OF APPEAL

BEFORE THE CHIEF JUSTICE MICHAEL HWANG, JUSTICE TUN ZAKI AZMI AND H.E. JUSTICE ALI AL MADHANI

BETWEEN              

FRONTLINE DEVELOPMENT PARTNERS LIMITED

                                                                   Defendant / Appellant

and

ASIF HAKIM ADIL 

Claimant / Respondent

Hearing: 18 October 2016

Counsel: Roger Kennell and Ravinder Thukral (Brown Rudnick LLP) for the Appellant

Bushra Ahmed and Natasja Pollemans (KBH Kaanuun) for the Respondent

Judgment: 20 March 2017

JUDGMENT

Summary of Judgment

 This summary is not part of the Judgment and should not be cited as such

ORDER

UPON hearing Counsel for the Appellant and Counsel for the Respondent on 18 October 2016

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1.The Appellant’s Appeal is dismissed.

2. The Appellant shall pay the Respondent’s costs on the standard basis, to be assessed if not agreed.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 20 March 2017

At: 2pm

JUSTICE TUN ZAKI AZMI:

1.This appeal deals with the interpretation of Article 18 of the DIFC Employment Law No. 3 of 2012. That article reads as follows:

“18. Payment where the employment is terminated

(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 the wages or 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.”

2. Prior to the current law there was a repealed law, the DIFC Employment Law No. 4 of 2005 which was worded as follows:

“If employment is terminated, an employer shall pay all wages owing to an employee within seven (7) days after the employer or employee terminates the employment.”

3. The learned judge of the first instance has already gone into the facts of the case in very great detail and made his findings of the facts. At appeal, the finding of these facts are not disputed by either party in spite of the acrimony at trial. At trial there were so many issues which were disputed. There were also allegations and counter allegations which again for the purpose of this appeal are not all relevant. So here it is not necessary for me to regurgitate them.I will just recite the facts, as found by the learned judge and which in my opinion are relevant to this appeal. In any case even the Appellant’s argument of the law was based on the facts as found by the learned judge.

4. Their real contention is the interpretation of Article 18 referred earlier.

Facts

5. The Respondent Mr Adil was employed by the Appellant as its Managing Director under a contract dated 20 August 2011. Based on the finding by the learned trial judge and which is also common ground at the appellate stage, the termination of employment was not for cause but pursuant to a contractual right to terminate without notice on payment in lieu of the notice entitlement.

6. The relevant clause of the agreement is worded:

“24. TERMINATON

Save for in circumstances where dismissal without notice is justified, your employment may be terminated at any time by you giving the Company 3 months written notice or by the Company giving you 6 months written notice or by paying you in an amount equal to your base salary in lieu of notice for that period.”

7. There was a disagreement as to the amount payable by the Appellant to the Respondent as a result of this termination but the judge found as a fact that the Respondent was not paid the monies due to him under Article 18. I quote from the judgement:

“5. For the reasons which follow, in my opinion –

(a)  the employment was terminated on 30 June 2013;

(b) the termination was not for cause, but pursuant to a contractual right to terminate without notice on payment in lieu of the notice entitlement;

(c)  Mr Adil is entitled to a total recovery of USD 359,411.12 in AED equivalent and a penalty amount calculated at USD 1,643.84 from and including 15 July 2013.

(d) the breaches of contract and of fiduciary duty are not made out;
and

(e) Frontline is not entitled to the other relief claimed in the counterclaim.”

8. For the purpose of this appeal the Appellant accepts the amount of wages due to the Respondent as found by the judge. The Appellant confined his arguments to that part of the order awarding the Respondent the penalty. The calculation of the penalty was based on the judge’s interpretation of the earlier mentioned Article 18. The Appellant contended that the interpretation by the judge was erroneous.Counsel for the Appellant centred his discussion particularly around this issue. He had other arguments which were not pursued with much vigour.

9. At the beginning of this hearing of this appeal there was an issue of whether the Appellant should be allowed withdraw a concessionthat was made by counsel at trial. It was conceded by the counsel on behalf of the Defendant at trial (now Appellant) that the “any other amount” in Article 18(1) includes “gratuity” and other sums payable to employee upon his termination. He contends that the sums under “any other amount” do not include gratuity or monies other than wages due the employee which are awarded after judgement because on the date of termination these monies are not due yet to the employee. Consequentially, the penalty is not imposable on these amounts. Only the wages attract the penalty.

10. For myself this appeal can be decided without going into that concession or its withdrawal. In other words even if the Appellant is allowed to withdraw the concession and put in his new arguments, my conclusion is not affected by them.

11. The clause “wages and any other amount owing” inthe Article is to be read in one breath, so to speak. In my opinion they cannot be broken into two parts. Gratuity and monies due to the employee on termination of his employment must necessarily become due and owing on the same date as his wages. Those amounts must paid together and not separately. The penalty commences upon the lapse of 14 days should the sums or any part of it remains unpaid. The words “any other amount” were absent in the earlier repealed provision. By the addition of those word into the current impugned Article 18 it can only be concluded that “any other amount” is to be treated like the wages. On the facts of this case, I do not agree that wages can be due on one date and the other amounts due on another date. The learned judge has concluded that all the sums were due to the employee on the date of termination of his employment i.e. 30 June 2013. This is a finding of fact which I am not prepared to disturb. In any case there was no argument why it should be disturbed. Like any other finding of facts, although the findings are made later, factually they are deemed to have occurred at the date of their occurrence i.e. 30 June 2013.

12. In my opinion this appeal can be resolved just by the interpretation of Article 18.

13. In summary, in addition to the Appellant’s arguments cited earlier, the Appellant argued as follows:

(a) The Appellant was not legally owing the Respondent the amount awarded by the judge on the date of his termination. There was a dispute as to the amount owing because there were also sums due from the Respondent to the Appellant under other contracts which were entered into between the Respondent and companies related to the Appellant by a common shareholder. These contracts were also between the Respondent and some other companies owned by the same person who owns the Appellant and who also was the main witness for the Appellant at trial. In the Appellant’s contention, the parties could not have known what was owing and until this amount has been determined, no amount could be said to be “owing” by the Appellant to the Respondent. According to him, where there was a disagreement on whether it was due to the Respondent and what was the amount due, since the matter has been brought to court, the amount is only determinable after the court has fixed it.

(b) The Appellant can be said to have “failed” to pay the amount due to the Respondent only if he does not have any excuse for not paying. In this case, as there was a dispute between the parties as to the amount due to the respondent, there was an excuse not to pay.

(c) If the payment of what is due to the employee is made immediately upon termination and subsequently decided by the court to be an overpayment, the employer may not be able to recover from the employee such overpayment. There are other possible situations that could be unfair to the employer, and the question is whether Article 18 should be read in the way the Respondent would like it to be read.

(d) On the facts of this case, the delay was not caused by the Appellant alone, but was also contributed by the Respondent as well as the Judge himself.

Interpretation

14. The responsibility of the draftsman is to draft the laws according to the intention of the legislators. The courts interpret the legislation according to the principles of interpretation which are quite well established. The intention of the legislators is to be understood from the way in which the legislation is worded.

15. Reading the provision on its own without referring to any other aids, is the provision to punish the employer or to compensate the employee? It seems to have both effects. Unlike a criminal sanction, where the employee does not benefit from the sanction, while the employer is punished and intended to be deterred, the way this Article is worded, it punishes the employer and, at the same time, the employee enjoys compensation.

16. When comparing the two enactments, the current and the repealed, it can be seen that the intended purpose of both enactments is to ensure that the employer does not delay paying the employee his full entitled wages on time.

17. The differences between the two are, however, obvious. While the earlier repealed provision merely required wages to be paid within the period specified, the current law goes on to provide a penalty if payment is not made within a specified (albeit longer) period. It also includes a requirement to make other payments due to the employee apart from wages.

18. What becomes an issue is when there is a long delay of non-payment by the employer. Perhaps if the delay is just one week or two or even a month it may not be an issue, whoever may have caused the delay, but when it drags on for a year or beyond as in this case, the liability on the employer becomes heavier and would (as in this case) render the provision as being unfair and disproportionate. But then if the penalty for a day is in order and acceptable, why should a longer delay have any other effect?

19. According to the Appellant, the employee can cause the delay. I do not agree with this submission. The party who determines when and the amount of the wages or any other amount to be paid to the employee is the employer. He has to calculate the amount due and the date payable and then make that payment to the employee.

20. It is not for the employee to refuse the payment. He may complain it is insufficient and that what is due to him is more or that he should be paid earlier. He can contest it. It is for the court to decide. If the court rules in favour of the employer it ends there, but if it rules in favour of the employee, the employer will have to pay the penalty. This is another bone of contention that, if the employer is short one dirham, he has to pay the full penalty. If this happens, it is no more a compensation to the employee. It would seem to become punitive on the employer.

21. Here the Appellant has failed to pay the respondent completely. It is not non-payment of one dirham. He failed to pay a sum in USD amounting to the equivalent of AED 359,411.12 as mentioned earlier. The situation I described above is therefore merely hypothetical and this court does not decide on hypotheticals.

22. During the oral arguments, the Appellant’s counsel also urged us to apply the strained construction rule to the Article, but he was not able to suggest how it should be applied. He gave examples from Bennion on Statutory Interpretation (LexisNexis, 5^th Ed, 2008) (“Bennion”) of instances where the law can create exceptions to the general rules of interpretation but none of his examples were similar to this case.

23. The English and Singapore cases cited by Bennion agreed with his views but even in those two cases cited the courts did not apply the strained construction rule.

24. According to Bennion 5^th Edition at page 546:

“Where, on the facts of the instant case and taken by itself, an enactment has a clear grammatical meaning, it is a strained construction to give it a different meaning.”

25. On the facts of this case, there is no reason to give the Article a strained construction by giving a different meaning since the enactment is clear grammatically.

26. I do not end there. I bear in mind what the judge in Pierre-Eric Daniel Bernard Lys v Elesco Limited [2014] DIFC CFI 012 said. H.E. Justice Ali Al Madhani summarised the situations which the counsel quoted in his submission as creating absurd situations which in the context of that case can occur as follows (paragraph 159):

“(a) An employee who is owned AED 1 on termination is entitled to a daily penalty that is equivalent to wages that would have been payable had the employee’s employment not been terminated;

(b) There is a six year limitation period for bringing an employment claim in the DIFC Courts.Consequently, a penalty award could easily exceed an amount equivalent to a year’s salary;

(c) In the Claimant’s penalty would be equivalent to: EUR 143,322.70 or USD 156,542.78 (which is 15 times greater than the admitted arears), this is absurd and grossly disproportionate:

(d) An employee will, therefore, be financially rewarded forfailing to bring a claim for wages promptly since they would receive a greater penalty with every day or delay, so prejudicing the expedient administration of justice;

(e) An employee will be financially rewarded for delay in litigating their claims since they would receive a greater penalty with every day delay so prejudicing the administration of justice;

(f) An employee will be financially rewarded for failing to settle their dispute before trial because they (sic) would receive a greater penalty by running the claim for wages to trial, so defeating proportionate and cost efficient dispute resolution in the DIFC;

(g) An employer who lawfully terminates for cause is financially penalised if any monies are withheld on termination.This is unjust.”

27. On the face of the arguments earlier mentioned by H.E. Justice Al Madhani, it may not seem fair. But then is it for this court to say it is not fair, if the legislature thinks that is what the law should be?

28. I analysed the situations individually and then I had a closer reconsideration of the wording of the provision. I recognise what Lord Griffiths said in Pepper (Inspector of Taxes) v Hart [1993] AC 593:

“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”

29. However, I ultimately still faced the problem of how to interpret it in the way the Appellant submits to be fair to an employer if any of the situations mentioned in Lys Unfortunately, I cannot replace the words impugned or read into the provision one or more words or delete from the provision a word or two. As Article 18 stands, it is grammatically correct, makes sense and clearly understandable. The only complaint if at all is that it can create situations which the employer considers to be unfair to him. But if that is what the legislator intended, by the use of those words, drafted in the manner it does, it is not for this court to give any other interpretation, no matter how sympathetic this court may be to the employer.

30. Irrespective of whether I apply any of the principles of interpretation cited below, I arrive at the same conclusion. The principles are as follows:

(a) Literal interpretation; or

(b) Purposive [i.e. one that will “promote the general legislative purpose underlying the provisions” (per Lord Denning MR in Notham v London Borough of Barnet (1978) 1 WLR 220)]. In my opinion the general purpose is to ensure the employee gets paid what is due to him on time; or

(c) The Mischief Rule, i.e. to overcome the mischief (Heydon’s case (1584) 3 Co Rep 7a); or

(d) The Golden Rule, Grey v Pearson (1857) 6 HL Cas 61 at 106 where Parke B (later Lord Wensleydale) said in a famous dictum that the plain meaning of an enactment must be followed “unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument”. (Grey v Pearson (1857) 6 HL Cas 61 at 106, cited with approval in Bennion (5th Edition, page 514).

31. Again, according to Bennion (5th Edition, page 969), quoting Lord Millett in R (on the application of Edison First Power Ltd) v Central Valuation Officer and another [2003] All ER 209 at [116], [117] an absurd situation can arise where there it leads to the following consequences i.e. unworkable or impractical result, and inconvenience result, and anomalous or illogical result, a futile or pointless result, and artificial result or a disproportionate counter-mischief. But he also concluded that, if it appears that Parliament really intended or the literal meaning is so strong, then the court will still apply that interpretation. Lord Mersey in Thompson v Goold & Co [1910] AC 409 said “It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do”.

32. Applying the purposive or mischief rule, I arrive at the conclusion referred above which is to prevent the possible situations of abuse by the employer by not paying his employee his entitled wages and/or on time. The same goes with the golden rule. The law is to protect the employee, and that is inescapable.

33. It is an established principle that the function of the court is to determine the intention of the legislature by interpreting it. The legislature enacts and the courts interpret it. Courts are not legislators. (See, e.g. Sussex Peerage Claim (1844) 11 Cl. & F. 85). “If the language is clear and explicit, the court must give effect to it”’ (Warburton v Loveland (1832) 2. D. & Cl. 480). The courts must bear in mind that its function is jus dicere, and not dare: the words of a statute must not be overruled by the judges, but reform of the law must be left in the hands of Parliament. See Cheney v Conn [1968] 1 W.L.R. 242 (quoted from Maxwell on the Interpretation of Statutes, 12th Edition, page 1).

34. To read the provision to overcome the situations listed in Lys case would be asking this court to redraft the statute to take care of the different situations. I cannot find a way to read the Article such that each of the situations can be overcome. The only way to read it as the Appellant wishes is by giving a full discretion to the court to apply the Article differently to different circumstances. And that is something this court cannot do. The court would then be legislating, and not merely interpreting. If His Royal Highness the Ruler considers that our interpretation is not what was intended, His Royal Highness will have to amend the law to take care of the situations cited. As was said by Lord Birkenhead LC in Sutters v Briggs [1922] 1AC 1 at pg 8,  the duty of the court is to expound the law as it stands, and to “leave the remedy (if one is to be resolved) to others”…from Maxwell on The Interpretation of Statutes.

35. I therefore dismiss with costs this appeal and reaffirm the order made by the Court of First Instance.

H.E. JUSTICE ALI AL MADHANI:

36. I agree with the judgment and have nothing further to add.

CHIEF JUSTICE MICHAEL HWANG:

37. I concur with the decision of the majority and the broad reasoning contained in their judgment. However, I am mindful that I am also sitting on a panel of this Court in the case of Elseco Limited v Pierre-Eric Daniel Bernard Lys [2016] DIFC CA 011 which involves a dispute largely based on the same statutory provisions as discussed in this case, and the counsel in that case have reserved their right to make further submissions after the release of this judgment. I will therefore reserve my right to make further observations on the meaning of the provisions in question at a later time.

Issued by:

                                                                                                Maha Al Mehairi

                                                                                                Judicial Officer

 Date of Issue: 20 March 2017

At: 2pm

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DIFC Courts have opened for 1 month’s Public Consultation the Draft New Part 56 of the Rules of the DIFC Courts (RDC) introducing the specialist Technology and Construction Division.

The public is invited to send their feedback to the consultation email address (consultation@difccourts.ae) before 5pm on Saturday 22 April 2017.

The Draft New Part 56 of the RDC introducing the Technology and Construction Division is available at the following link: Consultation Draft DIFC Courts Construction Rules

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Claim No: CFI-014-2015

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

ORIENT INSURANCE PJSC

Claimant

and

(1) ABN AMRO BANK N.V.

(2) BANK OF BARODA

(3) CITI BANK N.A.

(4) CREDIT SUISSE AG

(5) EMIRATES NBD BANK PJSC

(6) MASHREQ BANK PJSC

(7) NOOR ISLAMIC BANK PJSC

(8) GLINTS GLOBAL GENERAL TRADING LLC

Defendants

CONSENT ORDER

UPON the Claimant and the Sixth and Seventh Defendants having fully and finally settled the claim by Claimant against the Sixth and Seventh Defendants in Case Number CFI-014-2015 and in the International Chamber of Commerce (“ICC”) arbitration proceedings registered under ICC reference 21435/ZF

IT IS HEREBY ORDERED BY CONSENT:

1. The Consent Order, signed on behalf of the Claimant and the Sixth and Seventh Defendants, dated 27 January 2016 be set aside.

2. That the Case be discontinued pursuant to the Notice of Discontinuance filed by the Claimant dated 9 February 2017.

3.There be no order as to costs.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of issue 22 March 2017

At: 11am

The post CFI 014/2015 Orient Insurance Pjsc v (1) ABN Amro Bank N.V. (2) Bank of Baroda (3) CITI Bank N.A. (4) Credit Suisse AG (5) Emirates NBD Bank Pjsc (6) Mashreq Bank Pjsc (7) Noor Islamic Bank Pjsc (8) Glints Global General Trading LLC appeared first on DIFC Courts.

Claim No: CA 013/2016 

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

IN THE COURT OF APPEAL

BETWEEN

VEGIE BAR LLC

Appellant

and

EMIRATES NATIONAL BANK OF DUBAI PROPERTIES PJSC

Respondent

and

THE DIFC REGISTRAR OF COMPANIES

 First Non-Party Respondent

and

THE DIFC REGISTRAR OF REAL PROPERTY

Second Non-Party Respondent

 ORDER OF THE COURT OF APPEAL

UPON reviewing the Appellant’s Application Notice CA-013-2016/1 dated 6 February 2017 (the “Application”) seeking a witness summons for Bouchra Oudrhiri of Union Properties PJSC to attend the Appeal Hearing on 6 March 2017 and produce documents

AND UPON hearing Counsel for the Appellant and Counsel for the Respondent at the Appeal Hearing on 6 March 2017 

IT IS HEREBY ORDERED THAT:

1.The Application be granted in respect of the following documents:

a. The Excel Spreadsheet attached to the letter dated 18 December 2011 from Union Properties PJSC to the Respondent offering to sell units in Limestone House and Index Tower;

b.The Master Sales Agreement for the sale of the units in Limestone House and Index Tower from Union Properties PJSC to the Respondent;

2. The Appeal heard on 6 March 2017 in relation to Non-Party Document Production be allowed.

3. Pursuant to Rule 28.52 of the Rules of the DIFC Courts (“RDC”), the DIFC Registrar of Companies (the “First Non-Party Respondent”) shall provide to the Appellant and the Respondent the following documents within 14 days of the date of this Order:

a. The entire file relating to Vegie Bar LLC Registration No 0907

b. The correspondence file relating to Vegie Bar LLC

c. The file relating to the issue of the Trade License in March 2012

4. Pursuant to RDC 28.52, the DIFC Registrar of Real Property (the “Second Non-Party Respondent”) shall provide to the Appellant and the Respondent the following documents within 14 days of the date of this Order:

a.The file or that part of the folio relating to Units 17a and 17b in Limestone House, DIFC

b. The correspondence file relating to Units LP5 and LP6 or 17a and 17b in Limestone House, DIFC

c. Any Strata Plan lodges for Limestone House in DIFC which affects the aforementioned units.

5. The Non-Party Respondents shall list any documents in respect of which they claim confidentiality, such description to set out the date, author, intended recipient, purpose, description sufficient to identify the document and the basis of the claim for confidentiality.

6. The Non-Party Respondents must specify, in accordance with Part 28 of the RDC, any of the documents which the Court has ordered to be produced:

a. which are no longer in their control; or

b. in respect of which they claim a right or duty to withhold production; and

c. what has happened to any documents which are no longer in their possession.

7. The Order of H.E. Justice Omar Al Muhairi dated 3 January 2017 in CFI-009-2016 staying the proceedings be varied as per paragraph 7 of this Order.

8. The Respondent shall provide a verified list, pursuant to Part 28 of the RDC, of the following documents within 14 days of the date of this Order:

a. All communications between its staff and the Appellant, or the DIFC Registrar of Companies, concerning the renewal of the Trade Licence of Vegie Bar LLC, DIFC Co No 0907 which expired on 15 March 2012; and

b. All communications between its staff and the Appellant, or the DIFC Registrar of Real Property, concerning the Registration of the Lease attempted or effected by the Appellant on 28 May 2012 [AB 2/22/213].

9. The Appeal heard on 6 March 2017 in relation to Security for Costs be adjourned and each party be granted leave to apply for further directions.

10. Costs of the Appeal be reserved.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 23 March 2017

At: 3pm

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Claim No. CFI 039-2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

PASSPORT SPECIAL OPPORTUNITIES FUND, LP

Claimant

and

(1) ARY COMMUNICATIONS LTD

(2) HAJI MOHAMMAD IQBAL

(3) MOHAMMAD MEHBOOB

(4) MOHAMMAD SALMAN IQBAL

(5) HAJRA SHAFI

(6) HAJI JAN MOHAMMAD

Defendants

ORDER OF JUDICIAL OFFICER NASSIR AL NASSER

UPON reviewing the Claimant’s Application Notice CFI 039-2016/1 and supporting documents dated 14 March 2017 seeking a Court Order to serve the Claim Form on the Defendants by alternative methods (the “Application”)

AND UPON reading the relevant material in the case file

IT IS HEREBY ORDERED THAT:

1.The Application is refused.

2. The Claimant is to serve the Defendants that are located outside the UAE by way of diplomatic channels.

3. There shall be no order to costs.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of Issue: 27 March 2017

At: 11am

The post CFI 039/2016 Passport Special Opportunities Fund, LP v (1) ARY Communications Ltd (2) Haji Mohammad Iqbal (3) Mohammad Mehboob (4) Mohammad Salman Iqbal (5) Hajra Shafi (6) Haji Jan Mohammad appeared first on DIFC Courts.

Claim No: CFI 008/2015

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

IN THE COURT OF FIRST INSTANCE

BETWEEN

BOCIMAR INTERNATIONAL N.V. 

Claimant

and

EMIRATES TRADING AGENCY LLC

Defendant

  ORDER OF JUSTICE SIR JEREMY COOKE

UPON reviewing the Claimant’s Appeal Notice dated 21 March 2017 and supporting documents seeking permission to appeal the Order of Judicial Officer Maha Al Mehairi dated 6 March 2017

AND UPON reviewing the Order of Judicial Officer Maha Al Mehairi dated 6 March 2017 (the “Order”)

AND UPON reviewing the Rules of the DIFC Courts (“RDC”)

AND UPON reviewing the documents recorded on the case file

IT IS HEREBY ORDERED THAT:

1.The Claimant be granted leave to appeal against the Order, pursuant to RDC 44.8(1), on the basis that there is a compelling reason why the appeal should be heard and/or the appeal has a real prospect of success.

2. Costs shall be costs in the appeal.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 27 March 2017

At: 11am

REASONS:

1.The Order of 6 March 2017 for wasted costs was made without reference to RDC 38.84 which states that “the Court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why the Court should not make such an order” against that representative. RDC 38.84 is phrased in mandatory terms.

2. When the application for a wasted costs order was filed on 13 February 2017, with service apparently effective on 14 February, it is arguable that the Court should have directed the legal representative to state whether it was content for the matter to be determined without a hearing and set a time for a response. It is arguable that it could not properly proceed to determine the matter on paper without a hearing after 14 days had expired without a response from the legal representative, given the nature of the application and the terms of the Rule.

3. Practice Direction No. 4 of 2014 also sets out the need for the Court to make directions about the procedure to be followed where there is an application for a wasted costs order to ensure fairness as well as simplicity.

4. The Court ordinarily takes such an application in two stages as set out in paragraph 7 of the Practice Direction and considers whether there is material, which, if unanswered, would be likely to lead to a wasted costs order and whether such wasted costs proceedings are justified before giving the legal representative the opportunity to make representations in writing or at a hearing and only then proceeding to decide whether it is appropriate to make such an order. No directions or any such procedure appear to have been followed here.

5. A longer period than 14 days might well have been required for a response in any event, because of the serious nature of the order sought, since a wasted costs order should only be made where the legal representative has acted improperly, unreasonably and negligently, where its defaults have caused unnecessary costs and where it is just in all the circumstances to compensate the other party for some or all of the costs incurred or wasted. Although it seems that the legal representative misunderstood the effect of the RDC about the need for service and/or was unclear about the representation of the witnesses as opposed to the Defendant judgment debtor and/or should have appreciated the need for personal service on the witnesses in respect of contempt proceedings, the legal representative had to be given a clear and adequate opportunity to deal with the application. It is arguable that:

(a) There was no good evidence of wasted costs incurred in relation to the failure to serve the Suspended Committal order or notice of the hearing.

(b) Justice may not have required such an order to be made, in the context of the enforcement proceedings as a whole, particularly given the history of difficulty in serving Messrs Kamya and Baroudi in respect of the judgment debt of the Defendant enshrined in the consent order of 26 January 2016.

(c) No such order should have been considered until the end of the proceedings.

6. In the circumstances, there is a compelling reason why this appeal should be heard and a realistic prospect of success, even if the legal representative failed to act as it should.

7. The Applicant has sought permission to appeal rather than applied for a reconsideration by a CFI Judge of the decision of the Judicial Officer de novo under Practice Direction No. 3 of 2015 which required such an application to be made within 3 days of the decision made. That would have been a more appropriate procedure, rather than seeking permission to appeal and pursuing an appeal.

8. The other relief sought in paragraph 3 of the draft order is not properly the subject of an appeal and should be the subject of a separate application if it is to be pursued.

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Claim No: SCT 034/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

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

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE NASSIR AL NASSER

BETWEEN 

HACKETT

Claimant

 and 

HANIA

Defendant

Hearing: 26 March 2017

Judgment: 29 March 2017

JUDGMENT OF SCT JUDGE NASSIR AL NASSER

ORDER

UPON a Hearing, having been scheduled before SCT Judge Nassir Al Nasser on 26 March 2017, with the Claimant’s representative and the Defendant in attendance;

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1.The DIFC Courts have no jurisdiction to hear and determine this claim and the claim is therefore dismissed.

2. Each party shall bear their own costs.

 Issued by:

Nassir Al Nasser

SCT Judge

Date of Issue: 29 March 2017

At: 9am

REASONS

Parties

1.The Claimant is Hackett (the “Claimant”), the owner of the propertyunit 4JBRin Dubai (the “Property”) who is filing a claim against the Defendant regarding the alleged breach of an MOU dated 27 July 2016 (the “Agreement of Sale”).

2. The Defendant is Hania, (the “Defendant”) an individual who signed the Agreement of Sale to buy the above-mentioned Property from the Claimant.

Background and the Preceding History

3. The underlying dispute arises in relation to an Agreement of Sale for the purchase by the Defendant of the Claimant’s Property: unit 4, JBRDubai, UAE. The Agreement of Sale is identified as an “Addendum to Form F”.

4. On 15 February 2017, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) for damages relating to the Defendant’s alleged breach of the Agreement of Sale in the sum of USD $58,503.00, being the penalty fee amount provided for in the Agreement of Sale.

5. The Defendant responded to the claim on 22 February 2017 by filing defence submissions in relation to the claim.

6. On 5 March 2017 and 16 March 2017, the parties attended a First and Second Consultation before an SCT Officer but were unable to reach a settlement. The Claimant was represented by his real estate broker at the First Consultation and by his son at the Second Consultation.

The Hearing

7. On 26 March 2017, both the Claimant’s representative and the Defendant attended a Hearing before me. At this time, I asked the parties to make submissions regarding the jurisdiction of the DIFC Courts and the SCT over the claim, especially with regard to real property located in mainland Dubai and not in the DIFC Free Zone.

8.The Defendant made oral submissions contesting the jurisdiction of the DIFC Courts and the SCT over the claim and mentioned that the SCT Officer highlighted the issue at the First Consultation and again at the Second Consultation, at his request, in order to make the potential issue clear to the Claimant’s son, who attended the Second Consultation on the Claimant’s behalf.

9. At the Hearing, the Claimant submitted that the parties had mutually agreed for the DIFC Courts and the SCT to have jurisdiction in the event of a dispute between them, pursuant to Article 3.1 of the Agreement of Sale which states:

“This Agreement shall be governed by and construed in accordance with the laws of the Dubai International Financial Centre. In the Emirate of Dubai, UAE.”

Finding

10. Based on the arguments put forward at the Hearing and based on consideration of the law applicable to the dispute, I consider this dispute to fall outside of the jurisdiction of the DIFC Courts. Although the Defendant did not formally apply to contest jurisdiction, I have taken into account his oral application to contest jurisdiction and I highlight that any judge of the DIFC Courts must take into account the jurisdiction of the court to adjudicate any claim before, regardless of the parties’ submissions on the issue.

11. Rule 53.2 of the Rules of the DIFC Courts (“RDC”) requires that the SCT only hear cases that fall “within the jurisdiction of the DIFC Courts.”

12. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended, which provides a number of limited gateways through which the DIFC Courts have jurisdiction over a claim, which are, as relevant:

“(a) Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;

(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;

(c) Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; …

(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations…

(2) … civil or commercial claims or actions where the parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”

13. There is no evidence of any of these gateways except Article 5(A)(2) having the potential to apply in the circumstances. I am satisfied that Clause 3.2 of the Agreement of Sale would ordinarily have the effect of the parties ‘opting in’ to the DIFC Courts Jurisdiction, as its provisions are specific, clear and express, as required by Article 5(A)(2) above. However, the implications of the subject matter of the Agreement of Sale being real property and the location of that Property must be considered.

14. Article 8 of DIFC Real Property Law provides:

“(1) From the date on which this Law comes into force, all real property from time to time within the jurisdiction of the DIFC is governed by this Law.

(2) Real property within the jurisdiction of the DIFC includes:

(a) the real property referred to in Article 4(1); and

(b) any real property later brought within the jurisdiction of the DIFC, by any method.”

Thus, it is clear and both parties accept that the Property, located in Jumeirah Beach Residence Dubai, would not be considered to be within the physical jurisdiction of DIFC.

15. Generally, the parties to a dispute may agree on the jurisdiction of a specific court pursuant to Article 31(5) of Federal Law No.11 of 1992 Concerning Civil Procedures (the “CPC”), which states:

“Save in the cases provided for in article 32 and articles 34-39 it shall be permissible to agree on the jurisdiction of a specified court to determine a dispute and in the event jurisdiction shall be vested in such court or in the court in whose area the defendant has his domicile or place of residence or place of business.”

16. Article 32 of the same law provides for the following exception to the above:

“(1) In actions in rem in respect of real property and actions for possession jurisdiction shall be vested in the court whose area the real property, or a part thereof if it located in the areas or more than one court is located.

(2) In actions in personam in respect of real property, jurisdiction shall be vested in the court whose area the real property is located or the defendant has his domicile.”

17. The Claimant’s claim concerns real property located within Dubai but outside of the DIFC. As the dispute relates to the Defendant’s alleged breach of the Agreement of Sale, I determine this claim to be an ‘action in personam’ in respect of real property and Article 32(2) would apply in the circumstances. Accordingly, ‘jurisdiction is vested in the court in whose area the real property is located or the defendant has his domicile’ would effectively exclude the DIFC Courts from having jurisdiction as neither the Property or the parties are located within the DIFC.

18. Furthermore, Part 5 of DIFC Law No. 10 of 2005 provides that the law governing rights in property, including the validity of transfer of property shall be that of the jurisdiction where the property is physically located. Thus, the DIFC Courts must apply UAE Federal and Dubai laws when determining issues relating to the rights and transfer of property within Dubai. Therefore, DIFC Law No. 10 of 2005 in conjunction with Article 32 of the CPC, mandate that the DIFC Courts cannot have jurisdiction over a claim relating to rights in property or transfer of property which is located outside of the DIFC. This position must be adhered to even where the parties have previously agreed for the DIFC Courts to have jurisdiction, as any attempt to ‘opt-in’ to the jurisdiction of the DIFC Courts would contradict DIFC and UAE law.

19. Accordingly, the Claimant’s claim must be dismissed as the DIFC Courts lack jurisdiction over the matter. The Defendants’ oral application to contest jurisdiction is therefore granted. I make no comment as to the merits of the dispute.

20. Each party shall bear their own costs.

Issued by:

Nassir Al Nasser

SCT Judge

Date of Issue: 29 March 2017

At: 9am

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• Practice Direction extends application of DIFC Wills & Probate Registry rules to Ras Al Khaimah for the first time

• DIFC Courts’ H.E. Justice Al Madhani to lead proposed knowledge transfer seminars with Ras Al Khaimah judiciary

Dubai, UAE; 29 March 2017: With the entry into force of amendments to DIFC Wills rules to encompass Ras Al Khaimah, and plans for seminars between Ras Al Khaimah Courts judges and DIFC Courts judiciaires, the RAK government and DIFC Dispute Resolution Authority have taken the first steps to deliver on the wide-ranging series of cooperation agreements signed in December last year.

Effective as of 5^th March, the new DIFC Wills & Probate Registry (WPR) Practice Direction extends the application of the WPR rules to Ras Al Khaimah, enabling all property in Ras Al Khaimah to be disposed of by an English language common law will, and permitting registration of a will at the Registry, for eligible persons.

In a related move the DIFC Dispute Resolution Authority Academy of Law (AOL) confirmed plans for professional development seminars for the judiciary, law practitioners and law students in Ras Al Khaimah. The first course, led by DIFC Courts’ H.E. Justice Al Madhani, is designed specifically to promote collaboration between the two judiciaries.

Mark Beer, Chief Executive and Registrar of the DIFC Courts said: “By opening up access to the DIFC Courts’ English-language legal system, Ras Al Khaimah has given its investors, businesses and residents a new level of choice about how to resolve their commercial disputes. In the months since signing the series of agreements, we have enjoyed working together closely on the practical implementation and are delighted with the progress made to date.” 

Chancellor Ahmed Mohammed Al Khatri, Chairman of Ras Al Khaimah Courts Department said: “The Government of Ras Al Khaimah is committed to providing the structures and institutions that will support the emirate’s investors, residents and commercial operations in their chosen endeavours. The agreements that have been established with the DIFC and its associated entities form part of that commitment. We believe that these innovations will further encourage investors in particular to look favourably on Ras Al Khaimah as a place in which to establish themselves, confident in the knowledge that a legal environment exists here which offers choice and is both transparent and secure. We look forward to continuing to work closely with the Dispute Resolution Authority in these matters.”

The latest steps in the collaboration were agreed during the inaugural Joint Committee meeting attended by representatives of Ras Al Khaimah Government and the DIFC Courts, including Chancellor Ahmed Mohammed Al Khatri, Chairman of Ras Al Khaimah Courts Department, and Dr. Michael Hwang, SC, Head of the DRA.

The post New DIFC Will rules and knowledge transfer for Ras Al Khaimah under DIFC Dispute Resolution Authority agreements appeared first on DIFC Courts.

Claim No: CFI-026-2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

STANDARD CHARTERED BANK

Claimant

and 

INVESTMENT GROUP PRIVATE LIMITED

Defendant

ORDER OF JUSTICE SIR JEREMY COOKE

UPON reviewing the Defendant’s Appeal Notice dated 13 March 2017 and supporting documents, seeking permission to appeal the decision of Deputy Chief Justice Sir David Steel made orally at the hearing on 6 March 2017 in relation to the Defendant’s Application Notice CFI-026-2014/6 dated 23 February 2017 for permission to submit counterclaims

AND UPON reviewing the Claimant’s response to the Appeal Notice dated 22 March 2017

AND UPON reviewing the Defendant’s comments on the Claimant’s response dated 23 March 2017

IT IS HEREBY ORDERED THAT:

1.The Defendant be denied permission to appeal.

2. No request for reconsideration of this order at an oral hearing be permitted as this appeal is totally without merit.

3. The Defendant’s application for a stay of the proceedings be denied.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of issue: 2 April 2017

At: 12pm

SCHEDULE OF REASONS

1.The Judge’s reasons appear from the transcript of the argument and the exchanges between the Judge and Counsel. There was no need for any additional reasons.

2. There is no point of law involved here. The decision was a procedural decision in the context of a case where the Defendant had been taking every opportunity to disrupt the progress of the proceedings in this Court.

3. The Court order did not purport to interfere with the jurisdiction of the Union Court, in imposing the condition it did. It imposed a condition on the Defendant for the pursuit of its potential counterclaims.

4. The Defendant applied to admit to file and serve unpleaded counterclaims in this action in the DIFC where the Claimant was seeking summary judgment against it. The counterclaims it wished to pursue were the same as, or based on the same or virtually identical grounds as its defence in this Court and the case which it had previously sought to pursue in other courts in the UAE, both in Sharjah and Dubai, whilst challenging the jurisdiction of the DIFC Courts. Its challenges to the jurisdiction of the DIFC Courts failed in the Court of First Instance and on appeal to the Court of Appeal and the decision of the Sharjah Courts were adverse to it (including the Court of Cassation). It applied to the Dubai Courts where the Claimant sought a stay. It sought to apply to the Union Supreme Court, but the Joint Judicial Committee, having initially stayed the DIFC proceedings, subsequently lifted that stay on or about 13 February 2017 approving this Court’s jurisdiction to hear and determine the claim.

5. The Defendant, in seeking admission of its counterclaims in the DIFC Courts was, self-evidently, then not only prepared to accept the DIFC Courts’ jurisdiction but wished to avail itself of it in order to pursue its counterclaims.

6. The Claimant submitted that the DIFC Courts should not admit the counterclaims unless the Defendant was prepared to give the undertaking set out in paragraph 12 of the Defendant’s Application for permission to appeal, namely:

“The Applicant [the Defendant] undertakes that it will take any and all necessary steps to withdraw its referrals to the Union Supreme Court in Case No. 5 of 2016 and Case No.6 of 2016 which have been rendered redundant by the Judicial Authority Order in so far as they relate to Dubai Court Case No. 724/2016 and further undertakes that it will not make any additional referrals to the Union Supreme Court seeking to contest the jurisdiction of the DIFC Court in these proceedings.”

7. The Judge was entitled to make the admission of the counterclaim conditional on the giving of such an undertaking in circumstances where the Defendant had pursued jurisdictional challenges, had delayed the substantive hearing of the Claimant’s claim under a Loan Agreement for many years and appeared to wish to be able to pursue the same claims elsewhere, in addition to relying on them in the DIFC Courts. That was a proper judicial exercise of procedural or case management powers and is beyond challenge.

8. No appeal would have any realistic prospects of success; nor is there any other compelling reason why is should be heard.

9. As this appeal is totally without merit, no request for reconsideration of this order at an oral hearing is to be permitted.

10. There is therefore no basis for a stay of the DIFC proceedings either.

The post CFI 026/2014 Standard Chartered Bank v Investment Group Private Limited appeared first on DIFC Courts.

DIFC Courts Rules of Court Order No. 2 of 2017 Amending Part 44 of the Rules of the DIFC Courts

I, Michael Hwang, Chief Justice of the DIFC Courts, make the following Order:

In exercise of the powers conferred on me by Article 8(3)(a) of Dubai Law No. 9 of 2004, as amended; and after having reviewed:

Dubai Law No. 9 of 2004 in respect of the DIFC, as amended;
Dubai Law No. 12 of 2004 in respect of the Judicial Authority at the DIFC, as amended;
DIFC Law No. 10 of 2004 in respect of the DIFC Court Law;
and

DIFC Order No. 1 of 2014 in respect of the Rules of the DIFC Courts

1.    This Order may be cited as the Rules of Court Order No. 2 of 2017.

2.    Part 44 of the Rules of the DIFC Courts (RDC) on Appeals shall be amended in accordance with Schedule 1 to this Order.  

3.    This shall first be reflected in the online version of the RDC, and subsequently in future hardcopy publications.

4.  The amended Rules will come into force on 4 April 2017.

Michael Hwang
Chief Justice of the DIFC Courts

3 April 2017

Schedule 1 to DIFC Courts Rules of Court Order No. 2 of 2017

PART 44 — Appeals

Scope of this part and interpretation

44.1

The Rules in this Part apply to appeals to:

(1) the Court of Appeal; and

(2) the Court of First Instance.

44.2

In this Part:

(1) ‘appeal Court’ means the Court^G to which an appeal is made;

(2) ‘lower Court’ means the Court^G , tribunal^G or other person or body from whose decision an appeal is brought;

(3) unless the use or context otherwise requires, ‘decision’ means an order or direction or, where a matter is to be disposed of otherwise than by order or direction, the pronouncement of the disposal;

(4) ‘appellant’ means a person who brings or seeks to bring an appeal;

(5) ‘respondent’ means:

(a) a person other than the appellant^G who was a party to the proceedings in the lower Court^G and who is affected by the appeal; and

(b) a person who is permitted by the appeal Court^G to be a party to the appeal; and

(6) ‘appeal notice’ means an appellant’s^G or respondent’s^G notice.

44.3

This Part is subject to any Rule, enactment or Practice Direction which sets out special provisions with regard to any particular category of appeal.

Stay

44.4

Unless the appeal Court^G or the lower Court^G orders otherwise, an appeal shall not operate as a stay^G of any decision of the lower Court^G .

Permission to appeal

44.5

An appellant^G or respondent^G requires permission to appeal:

(1) where the appeal is to the Court of Appeal, except where the appeal is against a committal order;

(2) where the appeal is to the Court of First Instance, except where the appeal is against:

(a) a refusal by the Registrar of Companies to grant authorisation to transfer incorporation under Article 122(1) of the Companies Law (Amended and Restated), DIFC Law 3 of 2006; or

(b) a refusal by the Registrar of Companies to grant authorisation to transfer a Limited Partnership under Article 63(1) of the Limited Partnership Law, DIFC Law 4 of 2006.

Appellant’s Application

44.6

An appellant’s application for permission to appeal must be made to the lower Court:

(1) orally at the hearing at which the decision to be appealed was made; or

(2) in an appellant’s notice.

44.7

Where an oral application as referred to in Rule 44.6(1) above has not been made, but a party requests further time to make such an application, the lower Court may adjourn the hearing to give that party the opportunity to do so.

44.8

The lower Court may refer an application for permission to appeal to the appeal Court for decision.

44.9

Where the lower Court refuses to give permission to appeal, a further application for permission to appeal may be made to the appeal Court in an appellant’s notice.

Time for appeal

44.10

The appellant must file the appellant’s notice as referred to in Rule 44.6(2):

(1) within such period as may be directed by the lower Court; or

(2) where the lower Court makes no such direction, within 21 days after the date of the decision.

44.11

The appellant must file the appellant’s notice as referred to in Rule 44.9:

(1) within such period as may be directed by the lower Court; or

(2) where the lower Court makes no such direction; within 21 days after receipt of the notification of the decision refusing permission to appeal

44.12

The parties may not agree to extend the time for appeal.

44.13

Where the time for appeal has expired the appellant must file the appellant’s notice and include therein –

(1) an application for an extension of time; and

(2) a statement of the reason for the delay and the steps taken prior to the application being made.

Respondent’s submissions

44.14

(1) A respondent may make written submissions in opposition to an application for permission to appeal.

(2) A respondent wishing to make submissions in opposition to permission to appeal must file and serve the submissions within 21 days of the service upon him of the appellant’s notice (see RDC 44.34).

Decision of the application

44.15

An application for permission to appeal referred to the appeal Court by the lower Court or made to the appeal Court in an appellant’s notice may not be decided by the Judge against whose decision permission to appeal is sought.

44.16

An application for permission to appeal not made orally to the lower Court at the hearing will ordinarily be decided without an oral hearing.

44.17

The appellant may request that the application for permission to appeal be considered at an oral hearing, supported by grounds as to why it would be in the interests of justice to do so.

44.18

The lower Court or the appeal Court may direct:

(1) the filing of further submissions by the appellant or any respondent;

(2) that the application for permission to appeal be considered at an oral hearing.

44.19

Permission to appeal may only be given where the lower Court or the appeal Court considers that:

(1) the appeal would have a real prospect of success; or

(2) there is some other compelling reason why the appeal should be heard.

44.20

If permission to appeal is granted without an oral hearing, the parties will be notified of that decision.

44.21

If permission to appeal is refused without an oral hearing, the parties will be notified of that decision and brief reasons for it.

Limited permission

44.22

An order giving permission to appeal may:

(1) limit the issues to be heard; and

(2) be made subject to conditions.

44.23

Where the lower Court^G or the appeal Court gives permission to appeal on some issues only, it will:

(1) refuse permission to appeal on any remaining issues; or

(2) reserve the question of permission to appeal on any remaining issues to the Court^G hearing the appeal.

44.24

If the lower Court^G reserves the question of permission to appeal under Rule 44.23(2),the appellant^G must, within 14 days after receipt of the notification of the decision, inform the appeal Court^G and the respondent^G in writing whether he intends to pursue the reserved issues. If the appellant^G does intend to pursue the reserved issues, the parties must include in any time estimate for the appeal hearing, their time estimate for the reserved issues.

Respondents’ costs of permission applications

44.25

The lower Court^G or the appeal Court will normally allow the respondent^G his costs of an application for permission to appeal if permission to appeal is refused.

Appeals from case management decisions

44.26

Case management decisions include decisions made under Rule 4.2 and decisions about:

(1) disclosure;

(2) filing^G of witness statements or experts reports;

(3) directions about the timetable of the claim;

(4) adding a party to a claim; and

(5) security for costs.

44.27

Where the application is for permission to appeal from a case management decision, the lower Court^G or the appeal Court deciding the application may take into account whether:

(1) the issue is of sufficient significance to justify the costs of an appeal;

(2) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision; and

(3) it would be more convenient to determine the issue at or after trial.

Appellant’s notice

44.28

An appellant’s notice must be filed in all cases other than an application for permission to appeal made orally as referred to in Rule 44.6(1).

44.29

Subject to Rule 44.30, an appellant’s notice must:

(1) set out the grounds of appeal relied on and

(2) include or be accompanied by a skeleton argument.

44.30

Where it is impracticable to comply with Rule 44.29, a statement of the grounds of appeal and the skeleton argument must be filed within 21 days of filing the appellant’s notice.

44.31

The grounds of appeal must:

(1) set out clearly the reasons why it is said the decision of the lower Court^G was:

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower Court^G ;

(2) specify, in respect of each ground, whether the ground raises an appeal on a point of law or is an appeal against a finding of fact; and

(3) state the orders sought on appeal.

44.32

An appellant’s notice which includes a skeleton argument or a skeleton argument filed in compliance with Rule 44.30 must be accompanied by –

(1) where an application for permission to appeal is made in an appellant’s notice filed pursuant to Rule 44.6(2), any witness statement and affidavit in support of the application;

(2) where an application for permission to appeal is made in an appellant’s notice filed pursuant to Rule 44.9 –

(a) a copy of the order refusing permission to appeal, together with a copy of the Judge’s reasons for refusing permission to appeal;

(b) the claim form and statements of case (where relevant to the subject of the appeal);

(c) a suitable record of the judgment;

(d) a copy or record of the decision appealed from;

(e) those parts of the documentary evidence and any transcript of evidence reasonable considered necessary to enable the appeal Court to decide whether or not to grant permission to appeal; and

(f) any witness statement and affidavit in support of the application.

44.33

Where the lower Court refers an application for permission to appeal to the appeal Court for decision, the appellant must file the documents referred to in Rule 44.32(2) within 14 days of receipt of notification of the referral.

44.34

Unless the Court otherwise orders, the appellant must serve on each respondent –

(a) a sealed copy of the appellant’s notice;

(b) copies of any statement of the grounds of appeal and any skeleton argument; and

(c) copies of the documents accompanying the appellant’s notice or the skeleton argument as referred to in Rule 44.32 as soon as practicable and in any event within 7 days after they are filed.

44.35

The appellant must provide two additional copies of the documents referred to in Rule 44.32(2) or Rule 44.33 for the appeal Court.

44.36

The appellant^G must, as soon as practicable, file a certificate of service^G of the documents referred to in Rule 44.34.

44.37

The Court^G may dispense with the requirement for service^G of the appellant’s notice on a respondent^G . Any application notice^G seeking an order under Rule 9.32 to dispense with service^G should set out the reasons relied on and be verified by a statement of truth.

Applications

44.38

An application to be made to the appeal Court^G for a remedy incidental to the appeal may be included in the appellant’s notice^G or made in a Part 23 application notice^G .

44.39

Where an application for a remedy incidental to the appeal is included in the appellant’s notice, the rules relating to Part 23 application notices apply mutatis mutandis to the application.

Appeal Bundles

44.40

(1) Where permission to appeal is not required or has been given, the appellant must file an appeal bundle not less than 21 days before the appeal hearing and serve a copy of the appeal bundle on each respondent at the same time as he files it.

(2) The appellant must provide two additional copies of the appeal bundle for the appeal Court.

(3) The appeal bundle must include –

(a) a sealed copy of the appellant’s^G notice;

(b) a sealed copy of the decision appealed from;

(c) a copy of any order giving or refusing permission to appeal, together with a copy of the Judge’s^G reasons for allowing or refusing permission to appeal;

(d) any affidavit^G or witness statement filed in support of any application included in the appellant’s^G notice;

(e) a copy of his skeleton argument;

(f) the claim form and statements of case (where relevant to the subject of the appeal);

(g) a suitable record of the judgment, and those parts of any transcript of evidence which are directly relevant to any question at issue on the appeal;

(h) those parts of any documentary evidence and any transcript of evidence reasonably considered necessary to enable the appeal Court to decide the appeal;

(i) any application notice^G (or case management documentation) relevant to the subject of the appeal;

(j) in the case of judicial review or a statutory appeal, the original decision which was the subject of the application to the lower Court^G ;

(k) in cases where the appeal is from a tribunal^G , a copy of the tribunal’s^G reasons for the decision, a copy of the decision reviewed by the tribunal^G and the reasons for the original decision and any document filed with the tribunal^G setting out the grounds of appeal from that decision;

(l) any other documents which the appellant^G reasonably considers necessary to enable the appeal Court^G to decide the appeal and any application; and

(m) such other documents as the Court^G may direct.

44.41

All documents that are extraneous to the issues to be considered must be excluded. The appeal bundle may include affidavits^G , witness statements, summaries, experts’ reports and exhibits but only where these are directly relevant to the subject matter of the appeal.

44.42

The appeal bundle must contain a certificate signed by the appellant’s^G legal representatives^G to the effect that they have read and understood Rules 44.40 and 44.41 and that the composition of the appeal bundle complies with it.

44.43

Where it is not possible to file all the above documents, the appellant^G must indicate which documents have not yet been filed and the reasons why they are not currently available. The appellant^G must then provide a reasonable estimate of when the missing document or documents can be filed and file them as soon as reasonably practicable.

Core bundles

44.44

In cases where the appeal bundle comprises more than 500 pages, exclusive of transcripts, the appellant’s^G legal representatives^G must, after consultation with the respondent’s^G legal representatives^G , also prepare and file with the Court^G , in addition to copies of the appeal bundle (as amended in accordance with Rule 44.91) the requisite number of copies of a core bundle.

44.45

The core bundle must be filed within 28 days of receipt of the order giving permission to appeal or, where permission to appeal was granted by the lower Court^G or is not required, within 28 days of the date of service^G of the appellant’s^G notice on the respondent^G .

44.46

The core bundle:

(1) must contain the documents which are central to the appeal; and

(2) must not exceed 150 pages.

Preparation of bundles

44.47

Rules 44.48 to 44.59 apply to the preparation of appeal bundles, supplemental respondents’^G bundles where the parties are unable to agree amendments to the appeal bundle, and core bundles.

Rejection of bundles

44.48

Where documents are copied unnecessarily or bundled incompletely, costs may be disallowed. Where the provisions of this Part as to the preparation or delivery of bundles are not followed the bundle may be rejected by the Court^G or be made the subject of a special costs order.

Avoidance of duplication

44.49

No more than one copy of any document should be included unless there is a good reason for doing otherwise (such as the use of a separate core bundle in Rule 44.46).

Pagination

44.50

The following rules regarding pagination shall apply:

(1) Bundles must be paginated, each page being numbered individually and consecutively. The pagination used at trial must also be indicated. Letters and other documents should normally be included in chronological order. (An exception to consecutive page numbering arises in the case of core bundles where it may be preferable to retain the original numbering).

(2) Page numbers should be inserted in bold figures at the bottom of the page and in a form that can be clearly distinguished from any other pagination on the document.

Format and presentation

44.51

The following rules regarding format and presentation shall apply:

(1) Where possible the documents should be in A4 format and may be printed single or double sided (unless the Court directs a particular format). Where a document has to be read across rather than down the page, it should be so placed in the bundle as to ensure that the text starts nearest the spine.

(2) Where any marking or writing in colour on a document is important, the document must be copied in colour or marked up correctly in colour.

(3) Documents which are not easily legible should be transcribed and the transcription marked and placed adjacent to the document transcribed.

(4) Documents in a language other than English should be translated and the translation marked and placed adjacent to the document translated. The translation should be agreed or, if it cannot be agreed, each party’s proposed translation should be included.

(5) The size of any bundle should be tailored to its contents. A large lever arch file should not be used for just a few pages nor should files be overloaded.

(6) Where it will assist the Court^G , different sections of the file may be separated by cardboard or other tabbed dividers so long as these are clearly indexed. Where, for example, a document is awaited when the appeal bundle is filed, a single sheet of paper can be inserted after a divider, indicating the nature of the document awaited. For example, ‘Transcript of evidence of Mr J Smith (to follow)’.

Binding

44.52

The following rules regarding binding shall apply:

(1) All documents, with the exception of transcripts, must be bound together. This may be in a lever arch file, ring binder or plastic folder. Plastic sleeves containing loose documents must not be used. Binders and files must be strong enough to withstand heavy use.

(2) Large documents such as plans should be placed in an easily accessible file. Large documents which will need to be opened up frequently should be inserted in a file larger than A4 size.

Indices and labels

44.53

The following rules regarding indices and labels shall apply:

(1) An index must be included at the front of the bundle listing all the documents and providing the page references for each. In the case of documents such as letters, invoices or bank statements, they may be given a general description.

(2) Where the bundles consist of more than one file, an index to all the files should be included in the first file and an index included for each file. Indices should, if possible, be on a single sheet. The full name of the case should not be inserted on the index if this would waste space. Documents should be identified briefly but properly.

Identification

44.54

The following rules regarding identification shall apply:

(1) Every bundle must be clearly identified, on the spine and on the front cover, with the name of the case and the Court’s^G reference. Where the bundle consists of more than one file, each file must be numbered on the spine, the front cover and the inside of the front cover.

(2) Outer labels should use large lettering e.g. ‘Appeal Bundle A’ or ‘Core Bundle’. The full title of the appeal and legal representatives’^G names and addresses should be omitted. A label should be used on the front as well as on the spine.

Staples etc.

44.55

All staples, heavy metal clips, etc., must be removed.

Statement of case

44.56

The following rules regarding statements of case shall apply:

(1) Statements of case should be assembled in ‘chapter’ form — i.e. claim followed by particulars of claim, followed by further information, irrespective of date.

(2) Redundant documents, e.g. particulars of claim overtaken by amendments, requests for further information recited in the answers given, should generally be excluded.

New documents

44.57

The following rules regarding new documents shall apply:

(1) Before a new document is introduced into bundles which have already been delivered to the Court^G , steps should be taken to ensure that it carries an appropriate bundle/page number so that it can be added to the Court^G documents. It should not be stapled and it should be prepared with punch holes for immediate inclusion in the binders in use.

(2) If it is expected that a large number of miscellaneous new documents will from time to time be introduced, there should be a special tabbed empty loose-leaf file for that purpose. An index should be produced for this file, updated as necessary.

Correspondence between legal representatives

44.58

Since correspondence between legal representatives^G is unlikely to be required for the purposes of an appeal, only those letters which will need to be referred to should be copied.

Sanctions for non-compliance

44.59

If the appellant^G fails to comply with the requirements as to the provision of bundles of documents, the application or appeal will be referred for consideration to be given as to why it should not be dismissed for failure so to comply.

Content of skeleton arguments

44.60

A skeleton argument filed on behalf of the appellant^G should contain in paragraph 1 the legal representatives’^G time estimate for the hearing of the appeal.

44.61

A skeleton argument must contain a numbered list of the points which the party wishes to make. These should both define and confine the areas of controversy. Each point should be stated as concisely as the nature of the case allows.

44.62

Skeleton arguments submitted in the context of appeals and supplementary skeleton arguments for appeals are not to exceed 35 pages in length. Requests for permission to submit lengthier skeleton arguments should be made via letter application.

44.63

A numbered point must be followed by a reference to any document on which the party wishes to rely.

44.64

A skeleton argument must state, in respect of each authority cited:

(1) the proposition of law that the authority demonstrates; and

(2) the parts of the authority (identified by page or paragraph references) that support the proposition.

44.65

If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course.

44.66

The statement referred to in Rule 44.65 should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument:

(1) the relevance of the authority or authorities to that argument; and

(2) that the citation is necessary for a proper presentation of that argument.

44.67

The cost of preparing a skeleton argument which:

(1) does not comply with the requirements set out in Rules 44.60 to 44.65; or

(2) was not filed within the time limits provided by this Part (or any further time granted by the Court);

will not be allowed on assessment except to the extent that the Court^G otherwise directs.

44.68

The appellant^G should consider what other information the appeal Court^G will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals.

Suitable record of the judgment

44.69

A suitable record of the judgment is –

(1) where the Court has issued the judgment sealed by the Court, a copy of the judgment;

(2) In other cases of Court judgments –

(a) where the judgment has been officially recorded by the Court, a transcript of that record certified by the appellant’s legal representative as a correct record;

(b) subject to Rule 44.69(3), where the judgment has not been officially recorded by the Court, a note of the judgment agreed between the legal representatives of the appellant and the respondent approved by the Judge whose decision is being appealed.

(3) If the parties cannot agree on a single note of the judgment, both versions should be provided to the judge with an explanatory letter. For the purposes of an application for permission to appeal the note need not be agreed by the respondent or approved by the Judge.

(4) In tribunal cases, a sealed copy of the tribunal’s reasons for the decision.

44.70

An appellant^G may not be able to obtain a suitable record of the lower Court’s^G judgment within the time within which the appellant’s^G notice must be filed. In such cases the appellant’s^G notice must still be completed to the best of the appellant’s^G ability on the basis of the documentation available. However it may be amended subsequently with the permission of the appeal Court^G .

Transcripts or notes of evidence

44.71

When the evidence is relevant to the appeal an official transcript of the relevant evidence must be obtained. Transcripts or notes of evidence are generally not needed for the purpose of determining an application for permission to appeal.

44.72

If evidence relevant to the appeal was not officially recorded, a typed version of the Judge’s^G notes of evidence must be obtained.

Procedure after permission to appeal is given

44.73

Rules 44.74 to 44.75 set out the procedure where permission to appeal is given.

44.74

The appeal Court^G will send the parties

(1) notification of the date of the hearing;

(2) a copy of the order giving permission to appeal; and

(3) any other directions given by the Court^G .

Time estimates

44.75

The legal representatives^G who will argue the appeal must provide a time estimate within 14 days of the appellant^G receiving the order giving permission to appeal. It should exclude the time required by the Court^G to give judgment. If the respondent^G disagrees with the time estimate, the respondent^G must inform the Court^G within 7 days of receipt of the estimate. In the absence of such notification the respondent^G will be deemed to have accepted the estimate proposed on behalf of the appellant^G .

Respondent’s notice

44.76

A respondent^G may file and serve a respondent’s^G notice –

(1) applying for permission to appeal; or

(2) asking the appeal Court^G to uphold the decision of the lower Court^G for reasons different from or additional to those given by the lower Court^G .

44.77

(1) A respondent^G who wishes to ask the appeal Court^G to vary the decision of the lower Court^G in any way must appeal and permission will be required on the same basis as for an appellant^G .

(2) A respondent’s application for permission to appeal must be made to the appeal Court.

(3) The rules in relation to applying for permission to appeal in an appellant’s notice and decision of the application apply mutatis mutandis to an application for permission to appeal in a respondent’s notice.

44.78

A respondent^G who wishes only to request that the appeal Court^G upholds the decision of the lower Court^G for reasons different from or additional to those given by the lower Court^G does not appeal and does not require permission to appeal.

44.79

If the respondent^G does not file a respondent’s^G notice, he will not be entitled, except with the permission of the Court^G , to rely on any reason not relied on in the lower Court^G .

Time for respondent’s notice

44.80

A respondent’s^G notice must be filed within:

(1) such period as may be directed by the  Court^G ; or

(2) where the Court^G makes no such direction, 14 days after the date in Rule 44.81.

44.81

The date referred to in Rule 44.80 is –

(1) where permission to appeal is not required, the date the respondent is served with the appellant’s notice;

(2) in other cases –

(a) the date the respondent receives a copy of the order giving permission to appeal; or

(b) the date the respondent receives notification that the application for permission to appeal and the appeal itself are to be heard together.

44.82

Rule 44.13 (extension for time for appeal) applies mutatis mutandis to a respondent^G and a respondent’s^G notice.  Accordingly, where an extension of time is required the extension must be requested in the respondent’s^G notice and the reasons why the respondent^G failed to act within the specified time must be included.

44.83

The respondent^G must file a skeleton argument in all cases where he proposes to address arguments to the Court^G . The respondent’s^G skeleton argument may be included within a respondent’s^G notice.

44.84

Unless the Court^G orders otherwise a respondent’s^G notice must be served on the appellant^G and any other respondent^G :

(1) as soon as practicable; and

(2) in any event not later than 7 days;

after it is filed.

44.85

A respondent^G who:

(1) files a respondent’s^G notice; but

(2) does not include his skeleton argument within that notice;

may file a skeleton argument accompanying the notice but in any event must file his skeleton argument within 14 days of filing^G the notice.

44.86

A respondent^G who does not file a respondent’s^G notice but who files a skeleton argument must file that skeleton argument no later than 28 days after the appellant’s skeleton has been filed.

44.87

The respondent^G must:

(1) serve his skeleton argument on:

(a) the appellant^G ; and

(b) any other respondent^G ;

at the same time as he files it at the Court^G ; and

(2) file a certificate of service^G .

Content of respondent’s skeleton argument

44.88

A respondent’s^G skeleton argument must conform to the directions at Rules 44.60 to 44.68 with any necessary modifications. It should, where appropriate, answer the arguments set out in the appellant’s^G skeleton argument.

Applications within respondent’s notice

44.89

A respondent^G may include an application within a respondent’s^G notice in accordance with Rule 44.38 above.

Respondent’s Documents

44.90

The respondent^G provide two additional copies of the respondent’s^G notice for the appeal Court^G.

44.91

If the respondent^G wishes to rely on any documents which he reasonably considers necessary to enable the appeal Court^G to decide the appeal and any application in addition to those filed by the appellant^G , he must make every effort to agree amendments to the appeal bundle with the appellant^G .

44.92

If the legal representatives^G of the parties are unable to reach agreement, the respondent^G may prepare a supplemental bundle.

44.93

If the respondent^G prepares a supplemental bundle he must file it within 14 days after he is served with the appeal bundle, and must provide two additional copies for the appeal Court.

44.94

The respondent must serve any supplemental bundle on the appellant and any other respondent at the same time as he files it.

Amendment of appeal notice

44.95

An appeal notice^G may not be amended without the permission of the appeal Court^G. An application to amend and any application in opposition will normally be dealt with at the appeal hearing unless that course would cause unnecessary expense or delay in which case a request should be made for the application to amend to be heard in advance.

Striking out appeal notices and setting aside or imposing conditions on permission to appeal

44.96

The appeal Court^G may:

(1) strike out^G the whole or part of an appeal notice^G ;

(2) set aside^G permission to appeal in whole or in part;

(3) impose or vary conditions upon which an appeal may be brought.

44.97

The Court^G will only exercise its powers under Rule 44.96 where there is a compelling reason for doing so.

44.98

Where a party was present at an oral hearing at which permission to appeal was given he may not subsequently apply for an order that the Court^G exercise its powers under Rule 44.96(2) or 44.96(3).

Bundles of authorities

44.99

Once the parties have been notified of the date fixed for the hearing, the appellant’s^G legal representative^G must, after consultation with his opponent, file a bundle containing photocopies of the authorities upon which each side will rely at the hearing.

44.100

The bundle of authorities should, in general:

(1) have the relevant passages of the authorities marked;

(2) not include authorities for propositions not in dispute; and

(3) not contain more than 10 authorities unless the scale of the appeal warrants more extensive citation.

44.101

The bundle of authorities must be filed:

(1) at least 7 days before the hearing; or

(2) where the period of notice of the hearing is less than 7 days, immediately.

44.102

If, through some oversight, a party intends, during the hearing, to refer to other authorities the parties may agree a second agreed bundle. The appellant’s^G legal representatives^G must file this bundle at least 48 hours before the hearing commences.

44.103

A bundle of authorities must bear a certification by the legal representatives^G responsible for arguing the case that the requirements of Rule 44.64 to 44.66 have been complied with in respect of each authority included.

Supplementary skeleton arguments

44.104

A supplementary skeleton argument on which the appellant^G wishes to rely must be filed no later than 14 days after the respondent’s skeleton has been filed.

44.105

A supplementary skeleton argument on which the respondent^G wishes to rely must be filed 14 days after the appellant’s supplementary skeleton and at least 14 days before the hearing.

44.106

All supplementary skeleton arguments must comply with the requirements set out in Rules 44.60 to 44.68.

44.107

At the hearing the Court^G may refuse to hear argument from a party not contained in a skeleton argument filed within the relevant time limit set out in this paragraph.

Papers for the appeal hearing

44.108

All the documents which are needed for the appeal hearing must be filed at least 7 days before the hearing.

44.109

Any party who fails to comply with the provisions of Rule 44.108 may be required to attend before the Chief Justice^G to seek permission to proceed with, or to oppose, the appeal.

Appeals to the Court of Appeal

44.110

On hearing an appeal from a decision of the Court of First Instance, the Court of Appeal may:

(1) make or give any order that could have been made or given by the Court of First Instance;

(2) attach terms or conditions to an order it makes;

(3) annul or set aside^G a decision;

(4) require or prohibit the taking of a specific action or of action of a specified class;

(5) make a declaration of facts; or

(6) make any other order that the Court of Appeal considers appropriate or just.

Appeals to the Court of First Instance

44.111

Unless another Rule, Practice Direction or enactment provides otherwise, on hearing an appeal, the Court of First Instance may:

(1) affirm, reverse or vary the decision appealed;

(2) set aside^G the decision appealed, in whole or in part;

(3) make any other order it considers appropriate;

(4) remit proceedings to the tribunal^G from which the appeal was brought, subject to any directions the Court of First Instance considers appropriate; or

(5) make any order or direction that is in the interests of justice.

Hearings of appeals

44.112

Every appeal will be limited to a review of the decision of the lower Court^G unless:

(1) the Court^G considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing;

(2) Rule 44.113 applies; or

(3) any other Rule or enactment requires a re-hearing.

44.113

The hearing of an appeal will be a re-hearing (as opposed to a review of the decision of the lower Court^G ) if the appeal is from the decision of a person or other body and the person or other body:

(1) did not hold a hearing to come to that decision; or

(2) held a hearing to come to that decision, but the procedure adopted did not provide for the consideration of evidence.

44.114

The appeal Court^G may exercise its powers in relation to the whole or part of an order of the lower Court^G .

44.115

At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice^G unless the appeal Court^G gives permission.

Evidence on appeal

44.116

Unless it orders otherwise, the appeal Court^G will not receive:

(1) oral evidence; or

(2) evidence which was not before the lower Court^G .

44.117

Subject to Rule 44.116, the Court^G may receive further evidence, including:

(1) oral testimony;

(2) unsworn and sworn written evidence;

(3) evidence by video link, telephone or other means in accordance with what is appropriate in the circumstances; or

(4) evidence given in accordance with Part 29.

44.118

The appeal Court^G may draw any inference of fact which it considers justified on the evidence.

Conditions for allowing an appeal

44.119

The Court of Appeal will allow an appeal from a decision of the Court of First Instance where the decision of the lower Court^G was:

(1) wrong; or

(2) unjust because of a serious procedural or other irregularity in the proceedings in the lower Court^G .

44.120

The Court of First Instance will allow an appeal from a decision of a tribunal^G provided for in the Law^G , DIFC Law or Rules of Court^G where the decision was:

(1) wrong in relation to a question of law;

(2) unjust because of procedural unfairness or a miscarriage of justice; and/or

(3) wrong in relation to any other matter provided for in or under DIFC Law.

44.121

The Court of First Instance will allow an appeal not referred to in Rule 44.120 where the decision was:

(1) wrong; or

(2) unjust because of a serious procedural or other irregularity in the proceedings.

Non-disclosure of Part 32 offers

44.122

The fact that a Part 32 offer or payment into Court^G has been made must not be disclosed to any Judge^G of the appeal Court^G who is to hear or determine:

(1) an application for permission to appeal; or

(2) an appeal;

until all questions (other than costs) have been determined.

44.123

Rule 44.122 does not apply if the Part 32 offer or payment into Court^G is relevant to the substance of the appeal.

44.124

Rule 44.122 does not prevent disclosure in any application in the appeal proceedings if disclosure of the fact that a Part 32 offer or payment into Court^G has been made is properly relevant to the matter to be decided.

Who may exercise the powers of the Court of Appeal

44.125

The Registrar^G may exercise the jurisdiction^G of the Court of Appeal with the consent of the Chief Justice^G to do all things necessary or convenient for the purpose of assisting the Judges^G of the Court of Appeal in the exercise of their powers or duties.

44.126

A single Judge^G may exercise the appellate jurisdiction^G of the Court of Appeal relating to an application:

(1) for permission to appeal to the Court of Appeal (and to grant such permission subject to such conditions as may be ordered by the single judge);

(2) for an extension or reduction of time for any document to be filed in an appeal to the Court of Appeal (including a general power to amend the times fixed by the rules or by order of the court, as may be the case);

(3) for leave to amend the grounds of an appeal to the Court of Appeal;

(4) for a stay^G;

(5) to strike out an appeal in the event that:

(a)  the appellant does not file a document within the time ordered and notice has been given by the Court in the order for filing that the appeal will be struck out if filing is not made strictly on time; or

(b) the appellant does not attend the hearing of the appeal in person or by his Counsel on the date fixed for hearing; or

(6) to strike out an appeal in the event that a skeleton is not submitted.

(7) The single judge shall also have the power to decide any matter of case management relating to the appeal on behalf of the full bench of the Court of Appeal.

44.127

Decisions of the Registrar^G or a single Judge^G and under Rules 44.125 or 44.126 may be made without an oral hearing.

44.128

A party may request any decision of the Registrar^G or the single Judge^G under Rules 44.125 or 44.126(3) or (4) made without a hearing to be reviewed by the Court of Appeal at an oral hearing.

44.129

A request under Rule 44.128 must be filed within 7 days after the party is served with notice of the decision.

44.130

A single Judge^G may refer any matter for a decision by a Court consisting of two or more judges^G .

Dismissal of applications or appeals by consent

44.131

Where an appellant^G does not wish to pursue an application or an appeal, he may request the appeal Court^G for an order that his application or appeal be dismissed. If such a request is granted it will usually be on the basis that the appellant^G pays the costs of the application or appeal.

44.132

If the appellant^G wishes to have the application or appeal dismissed without costs, his request must be accompanied by a consent signed by the respondent^G or his legal representative^G stating that the respondent^G consents to the dismissal of the application or appeal without costs.

44.133

Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the Court^G asking that the application or appeal be dismissed by consent. If the request is granted the application or appeal will be dismissed.

Allowing unopposed appeals or applications without a hearing

44.134

The appeal Court^G will not normally make an order allowing an appeal unless satisfied that the decision of the lower Court^G was wrong, but the appeal Court^G may set aside^G or vary the order of the lower Court^G with consent and without determining the merits of the appeal, if it is satisfied that there are good and sufficient reasons for doing so. Where the appeal Court^G is requested by all parties to allow an application or an appeal the Court^G may consider the request without a hearing. The request should set out the relevant history of the proceedings and the matters relied on as justifying the proposed order and be accompanied by a copy of the proposed order.

Availability of reserved judgments before hand down

44.135

Rules 44.136 and 44.137 apply where the presiding Judge^G is satisfied that the result of the appeal will attract no special degree of confidentiality or sensitivity.

44.136

A copy of the written judgment may be made available to the parties’ legal representatives^G by 4 p.m. on the second working day before judgment is due to be pronounced or such other period as the Court^G may direct. This can be shown, in confidence, to the parties but only for the purpose of obtaining instructions and on the strict understanding that the judgment, or its effect, is not to be disclosed to any other person. A working day is any day on which the Court Office is open for business.

44.137

The appeal will be listed for judgment and the judgment handed down at the appropriate time.

Attendance of legal representatives on the handing down of a reserved judgment

44.138

Where any consequential orders are agreed, the parties’ legal representatives need not attend on the handing down of a reserved judgment. Where a legal representative does attend the Court^G may, if it considers such attendance unnecessary, disallow the costs of the attendance. If the parties do not indicate that they intend to attend, where the appeal was heard by more than one Judge^G , the judgment may be handed down by a single member of the Court^G .

Agreed orders following judgment

44.139

The parties must, in respect of any draft agreed orders file 4 copies in the Court Office, no later than 12 noon on the working day before the judgment is handed down.

44.140

A copy of a draft order must bear the case reference, the date the judgment is to be handed down and the name of the presiding Judge^G .

Corrections to the draft judgment

44.141

Any proposed correction to the draft judgment should be sent to the Judge^G who prepared the draft with a copy to any other party.

Immediate assessment of costs

44.142

Costs are likely to be assessed by way of immediate assessment at the following hearings:

(1) contested directions hearings;

(2) applications for permission to appeal at which the respondent^G is present;

(3) dismissal list hearings in the Court of Appeal at which the respondent^G is present;

(4) appeals from case management decisions; and

(5) appeals listed for one day or less.

44.143

Parties attending any of the hearings referred to in Rule 44.142 should be prepared to deal with the immediate assessment.

Appeals to the Court of First Instance from the Director of Employment Standards

44.144

Rules 44.145 to 44.154 apply to appeals to the Court of First Instance from a determination, decision, or fine of the Director of Employment Standards pursuant to Article 83(1) of the Employment Law, DIFC Law 4 of 2005.

44.145

An appeal referred to in Rule 44.144 shall be filed within 30 days of receipt of the determination, decision, or fine appealed and in accordance with the requirements of this Part.

44.146

The Director of Employment Standards must be named as a party to an appeal referred to in Rule 44.144.

44.147

The Court^G may grant a stay^G of the decision appealed from until the disposition of the appeal.

44.148

The Court^G may attach conditions to the stay^G , including requiring a party to deposit as security part or all of a monetary order.

44.149

The Director of Employment Standards shall provide the Court^G with the record that was before him at the time the determination, order or fine was made, including any witness statement and documents considered by him.

44.150

The Court^G may consider any other relevant evidence, in addition to the record.

44.151

Before considering the appeal, the Court of First Instance may:

(1) refer the matter back to the Director of Employment Standards for further investigation; or

(2) recommend that an attempt be made to settle the matter.

44.152

The Court^G may dismiss the appeal without a hearing if satisfied that:

(1) the appeal is not within the Court’s^G jurisdiction^G ;

(2) the appeal is frivolous or trivial or is not brought in good faith.

44.153

On hearing the appeal the Court^G may:

(1) decide all questions of fact or law arising in the course of an appeal;

(2) refer the matter back to the Director of Employment Standards; or

(3) confirm, vary or cancel the determination, decision or fine under appeal, or make another decision that it considers proper.

44.154

The Director of Employment Standards shall comply with any directions the Court^G gives to him.

No second appeals

44.155

No appeal lies from a decision of the Court of First Instance or the Court of Appeal on an appeal.

Reopening of final appeals

44.156

The Court of Appeal or the Court of First Instance will not reopen a final determination of any appeal unless:

(1) it is necessary to do so in order to avoid real injustice;

(2) the circumstances are exceptional and make it appropriate to reopen the appeal; and

(3) there is no alternative effective remedy.

44.157

In Rules 44.156, 44.158, 44.161 and 44.165, “appeal” includes an application for permission to appeal.

44.158

Permission is needed to make an application under Rule 44.156 to reopen a final determination of an appeal even in cases where permission was not needed for the original appeal.

44.159

Permission must be sought from the Court^G whose decision the applicant wishes to reopen.

44.160

The application for permission must be made by application notice^G and supported by written evidence, verified by a statement of truth.

44.161

A copy of the application for permission must not be served on any other party to the original appeal unless the Court^G so directs.

44.162

Where the Court^G directs that the application for permission is to be served on another party, that party may within 14 days of the service^G on him of the copy of the application file and serve a written statement either supporting or opposing the application.

44.163

The application for permission, and any written statements supporting or opposing it, will be considered on paper by a single Judge.^G

44.164

There is no right to an oral hearing of an application for permission unless, exceptionally, the Judge^G so directs.

44.165

The Judge^G will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.

44.166

There is no right of appeal or review from the decision of the Judge^G on the application for permission, which is final.

The post DIFC Courts Rules of Court Order No. 2 of 2017 Amending Part 44 of the Rules of the DIFC Courts appeared first on DIFC Courts.

Summary of Changes to Part 44 of the Rules of the DIFC Courts (RDC) on Appeals following Public Consultation in January 2017

The main changes are as follows:

Procedure

• Appellants are now required to first make their application for permission to appeal to the lower Court: either (i) orally at the hearing at which the decision to be appealed was made; or (ii) in an appellant’s notice [see new RDC 44.6].
• The lower Court may refer an application for permission to appeal to the appeal Court for a decision. [see new RDC 44.8].
• Where the lower Court refuses to give permission to appeal, a further (second) application for permission to appeal may be made to the appeal Court in an appellant’s notice [see new RDC 44.9].
• The appellant now has 21 days after the date of the decision appealed against in which to file the appellant’s notice, where the lower Court has made no other direction [see new RDC 44.10]
• The Respondent has now been given an opportunity to make submissions in opposition to permission to appeal within 21 days of the service upon him of the appellant’s notice (see new RDC 44.14]. The lower Court or the appeal Court will normally allow the respondent his costs of an application for permission to appeal if permission to appeal is refused [see new RDC 44.25]
• An application for permission to appeal not made orally to the lower Court at the hearing will ordinarily be decided without an oral hearing [see new RDC 44.16], although the appellant may request that the application for permission to appeal be considered at an oral hearing, supported by grounds as to why it would be in the interests of justice to do so [new RDC 44.17].
• No possibility anymore for a party to request any decision of the Registrar or single Judge refusing permission to appeal without a hearing to be reviewed by the Court of Appeal at an oral hearing [previous RDC 44.150].

Documents to be filed

• The appellant’s notice must include or be accompanied by grounds of appeal and a skeleton argument (see new RDC 44.29 and 44.30), with the option of filing the grounds of appeal and skeleton argument 21 days later, where to do so earlier would be impractical.
• Where the application for permission to appeal is to the lower Court, only any witness statement and affidavit in support must be filed, on the basis that the lower Court has necessary familiarity (new RDC 44.32(1)).
• Where the application is referred to the appeal Court or is a second appellant’s notice to the appeal Court, limited documents are to be filed – with the key being what is necessary to enable the appeal Court to decide whether or not to grant permission (as the appeal Court will not have the lower Court’s familiarity but not everything necessary to decide the appeal needs to be filed (see new RDC 44.32(2) and 44.33);
• Where permission is not necessary or has been granted, full documents necessary to decide the appeal must be filed. The appeal bundle is now only needed for the appeal itself [see new RDC 44.40, note the reference to necessary to decide the appeal as distinct from necessary to decide permission to appeal.]

• The single judge’s powers under RDC 44.126 have also been extended.

The post DIFC Courts – Amended Part 44 of the Rules of the DIFC Courts on Appeals – Summary of Main Changes appeared first on DIFC Courts.

Claim No: CA-003-2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

BOCIMAR INTERNATIONAL N.V. 

                                                                                          Claimant

and

EMIRATES TRADING AGENCY LLC

Defendant

  ORDER OF JUDICIAL OFFICER NASSIR AL NASSER

UPON considering the Claimant’s Application Notice CA-003-2017/1 dated 3 April 2017 and the Witness Statement of Fareya Azfar in support of the application

AND UPON reviewing the documents on the Court file

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Application is granted.

2. The Claimant shall file and serve its skeleton argument and the appeal bundle in accordance with the Rules of DIFC Courts by no later than 2pm on Monday 24 April 2017.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 3 April 2017

At: 4pm

The post CA 003/2017 Bocimar International N.V. v Emirates Trading Agency LLC appeared first on DIFC Courts.

Claim No. CFI 039-2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

PASSPORT SPECIAL OPPORTUNITIES FUND, LP

Claimant

and

(1) ARY COMMUNICATIONS LTD

(2) HAJI MOHAMMAD IQBAL

(3) MOHAMMAD MEHBOOB

(4) MOHAMMAD SALMAN IQBAL

(5) HAJRA SHAFI

(6) HAJI JAN MOHAMMAD

Defendants

ORDER OF JUDICIAL OFFICER NASSIR AL NASSER

UPON reviewing the Claimant’s Application Notice CFI-039-2016/2 dated 5 April 2017 seeking an extension to the time for service of the Claim Form and supporting documents (the “Application”)

AND UPON reading those documents recorded on the Court file as having been read

IT IS HEREBY ORDERED THAT:

1. The Application is granted.
2. The time for service of the Claim Form is extended by six months, until Sunday 22 October 2017.
3. Costs of the application be costs in the case.

 Issued by:

Nassir Al Nasser

Judicial Officer

Date of Issue: 9 April 2017

At: 11am

The post CFI 039/2016 Passport Special Opportunities Fund, LP v (1) ARY Communications Ltd (2) Haji Mohammad Iqbal (3) Mohammad Mehboob (4) Mohammad Salman Iqbal (5) Hajra Shafi (6) Haji Jan Mohammad appeared first on DIFC Courts.

Claim No: CFI-002-2017

          THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

IN THE COURT OF FIRST INSTANCE

BETWEEN 

KBC ALDINI CAPITAL LIMITED 

Claimant

and

(1) DAVID BAAZOV

(2) CANACCORD GENUITY CORP.

(3) CANACCORD GENUITY (DUBAI) LIMITED 

Defendants

ORDER OF JUDICIAL OFFICER NASSIR AL NASSER

UPON reviewing the Part 23 Application Notice CFI-002-2017/3 dated 6 April 2017 made on behalf of the Claimant

AND UPON reviewing the Rules of the DIFC Courts (“RDC”)

IT IS HEREBY ORDERED THAT the Claimant’s legal representative, LPA Middle East LLC, be removed from the record of this matter as counsel to the Claimant and replaced by the Claimant in person pending the appointment of new counsel to the Claimant.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 9 April 2017

At: 11am

The post CFI 002/2017 KBC Aldini Capital Limited v (1) David Baazov (2) Canaccord Genuity Corp. (3) Canaccord Genuity (Dubai) Limited appeared first on DIFC Courts.

Claim No. CFI-024-2016

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) EBI SA, FRANCE

(2) ECOBANK NIGERIA LIMITED

(3) ECOBANK SENEGAL 

Claimants

and

(1) LAL MAHAL DMCC

(2) LITTLE ROSE GENERAL TRADING LLC

(3) PREM CHAND GANG 

Defendants

ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON reading the Third Defendant’s Application Notice CFI-024-2016/6 dated 13 December 2016 seeking dismissal of the claim as against the Third Defendant for lack of jurisdiction

AND UPON reviewing the Default Judgment of the Registrar dated 16 August 2016

AND UPON reviewing the Judgment of Justice Roger Giles handed down on 20 October 2016

AND UPON reviewing the submissions of the parties and the documents included in the court file

IT IS HEREBY ORDERED THAT:

1. The Third Defendant’s Application is granted and the claim against the Third Defendant is therefore dismissed for lack of jurisdiction.
2. There shall be no order as to costs.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 10 April 2017

At: 2pm

SCHEDULE OF REASONS

1. The Third Defendant’s Application to dismiss the claim against him for lack of jurisdiction results from a series of events that have occurred in this case. The claim was filed by the Claimants on 22 June 2016 and served on 23 June 2016. Upon failure to receive a response from the Defendants, the Claimants applied for Default Judgment on 19 July 2016. Such Default Judgment was granted by the Order of Registrar Mark Beer dated 16 August 2016.
2. All three Defendants applied shortly thereafter to have the Default Judgment set aside for a number of reasons. By a Judgment issued on 20 October 2016, Justice Roger Giles disallowed the set aside application as to the First and Second Defendants. However, Justice Giles allowed the Default Judgment to be set aside as it applied to the Third Defendant, granting the Third Defendant the ability to contest jurisdiction only and denying the Third Defendant the possibility of filing a defence.
3. The First and Second Defendants subsequently sought to appeal the Judgment of Justice Roger Giles as it applied to them; such request for permission to appeal was denied by the Order of Justice Sir Jeremy Cooke dated 23 November 2016. However, the Third Defendant was still free to apply to have the claim against him dismissed for lack of jurisdiction, pursuant to the 20 October 2016 Judgment of Justice Roger Giles.
4. As mentioned in the Judgement of Justice Roger Giles dated 20 October 2016:

“16. …There is, however, a difficulty in the guarantee and indemnity executed by [the Third Defendant].

17. That guarantee and indemnity provided in cl[ause] 21 that it was governed by French law and for submission to the jurisdiction and competence of the French courts and tribunals. It added, ‘But with full liberty for you to resort to the courts of any other country where jurisdiction may exist or be established’. That left it necessary that the jurisdiction of this Court exist or be established; that is, that the claim against [the Third Defendant] fall within Article 5 (A) (1) or (2) of the Judicial Authority Law, DIFC Law No 12 of 2004.
18. [Counsel for the Claimants] submitted that it fell within sub-Article (2), which provides that the Court may hear and determine a claim ‘where the parties agree in writing to file such claim or action with it. . .provided that such agreement is made pursuant to specific, clear and express provisions’. It was submitted that cl[ause] 21 of the guarantee and indemnity was such an agreement in writing, and it was said in support of that submission that there was a nexus with Duabi in a number of respects.
19. I am unable to see that the matters said to provide a nexus assist. It does not seem to me that cl[ause] 21 is an agreement to file a claim or action with this Court, certainly not a specific, clear and express provision to that end. In my view there is a real doubt whether this Court had jurisdiction in relation to the claim against [the Third Defendant], and that is not something which can be overlooked because the Court should not allow a judgment to stand if it did not have jurisdiction to order the judgment. I consider that [the Third Defendant] should be able to mount a challenge to jurisdiction.”
20. Having had the opportunity to review the Judgment of Justice Giles, the Third Defendnat then applied to dismiss the claim against him for lack of jurisdiction on 13 December 2016. The Third Defendant’s submission essentially reiterated the arguments suggested by Justice Giles in the Judgment of 20 October 2016.
21. The Claimants provided a submission in response to the Third Defendant’s Application. However, their submission was not clear as to their position on the Application. The Claimants argue that the Default Judgment “against the Third Defendant was set aside on jurisdictional basis and Counsel for the Third Defendant was given a right to challenge this on jurisdictional basis only in any future proceedings and may not otherwise file a defense to the claim against the Third Defendant.” Furthermore, the Claimants stated that they do not “move for any further hearing before the DIFC Court[s]” as the matter has now become “Res Judicata.” Finally, the Claimants state that “If the Third Defendant has any cause of action, they have to file a new Claim before the DIFC Court and it has to be served to us as the Defendants” and that the Claimants “prays to the Honorable Court to dismiss the case.”
22. The Claimants seem to misunderstand the effect of Justice Giles’ Judgment of 20 October 2016 and the subsequent denial of the First and Second Defendants’ request for permission to appeal. Justice Giles did comment that the Third Defendant may be successful on an application to contest jurisdiction, however he made no finding as to jurisdiction.
23. In any event, the Claimants seem not to contest the Third Defendant’s application and in fact they request that I dismiss the case. However, given the misunderstanding apparent on the face of the Claimants submissions, I was reluctant to take their aquiesance into account without offering the opportunity for the Claimants to clarify their position. Having been given an additional opportunity to respond to the Application and claify their position, the Claimants declined to make any further submissions and thus I shall rely on their initial submission alone.
24. Therefore, based on the submissions of the parties and a reiview of the case file, I find that the claim against the Third Defendant must be dismissed for lack of jurisdiction. I agree with the reasoning suggested by Justice Giles that:
    • The relevant agreement between the Third Defendant and the Claimants is the Personal Guarantee and Indemnity agreement dated 7 April 2015;
    • Clause 21 of that agreement governs dispute resolution and it states that such disputes should be filed in French courts or in any other country “where jurisdiction may exist or be established”;
    • The wording “may exist or be established” requires that the jurisdiction of the DIFC Courts must be otherwise established pursuant to Article 5(A)(1) or (2) of the Judicial Authority Law;
    • Clause 21 itself cannot be said to be a valid opt-in clause under Article 5(A)(2) of the Judicial Authority Law as it is not spefic, clear and expressed as to its intent to subject the parties to the jurisdiction of the DIFC Courts; and
    • There is otherwise no apparent nexus to the DIFC upon which jurisdiction can be based pursuant to Article 5(A)(1) of the Judicial Authority Law.
25. Therefore, the DIFC Courts do not have jurisdiction over the claim against the Third Defendant.
26. The Claimants have not made any argument to justify swaying from the Justice Giles’s intitial assessment. In fact, even upon being given additional time and a request to clarify their position, the Claimants provided no arguments to contest the Application and seem instead to ask that the Court dimiss the case.
27. The Third Defendant has made his Application with the request for “the cost of this defendant” which I take to mean a costs award to the Third Defendant as against the Claimants. The Claimants, who seem to be of the view that the Third Defendant’s Application is uncessary, asks that the “Defendants shall pay the costs.” Considering that the Third Defendant failed to timely respond to the claim when filed and considering that the Claimants seem to have misfiled their case as regards the Third Defendant, I find it appropriate to use the power granted to me pursuant to Rules 38.6 and 38.7 of the Rules of the DIFC Courts to order that the costs shall lie where they fall.

The post CFI 024/2016 (1) EBI SA, France (2) Ecobank Nigeria Limited (3) Ecobank Senegal v (1) Lal Mahal DMCC (2) Little Rose General Trading LLC (3) Prem Chand Gang appeared first on DIFC Courts.

Claim No. CFI 010/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

IN THE MATTER OF ABN AMRO BANK N.V.

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

ORDER OF JUSTICE SIR RICHARD FIELD

UPON the application of ABN AMRO BANK N.V. (the “Applicant“), further to the Directions Order of Justice Sir Richard Field dated 8 March 2017 (the “Directions Order“), under Article 108(1) of the DIFC Regulatory Law, DIFC Law No. 1 of 2004 (as amended) (the “Regulatory Law“) for an order sanctioning the transfer of part of the business carried out by the Applicant’s DIFC branch to LGT Bank (Singapore) Ltd (the “Transferee“)

AND UPON HEARING Counsel for the Applicant in the presence of Counsel for the Dubai Financial Services Authority and the Transferee

AND UPON READING the evidence

AND UPON the Applicant and the Transferee consenting to Orders being made in the following terms and, by their Counsel, undertaking to be bound by the scheme hereinafter referred to

THE COURT HEREBY SANCTIONS the scheme set forth in the Annex hereto (the “Scheme“) pursuant to Article 110 of the Regulatory Law

AND IT IS HEREBY ORDERED that the Scheme shall have effect on and with effect from the Effective Time, being 0:00 Dubai time on 30 April 2017 

AND IT IS HEREBY ORDERED THAT:

1.Words and phrases defined in the Scheme bear the same meanings in this Order.

2. For the purposes of Article 110 of the Regulatory Law:

(a) The Transferring Business and all its liabilities shall be transferred to the Transferee on the terms set out in the Scheme; and

(b) the Transferee shall acquire the Transferring Business from the Transferor, such that by this Order, and without further act or instrument, legal and beneficial title in respect of the Transferring Business shall vest in the Transferee, subject to all liens affecting such Transferring Business on the terms set out in the Scheme; and

(c) the Transferor and the Transferee shall each take all such reasonable steps and do all such reasonable things (including the execution and delivery of any documents) as may be necessary or desirable to give effect to this Order including without limitation to effect the transfer to the Transferee of the Transferring Business (including its assets and the liabilities) in accordance with this paragraph 2 on the terms set out in the Scheme, save to the extent that the Transferee notifies the Transferor that it shall not require such steps to be taken.

(3) The transfer and vesting of the Transferring Business (or any part of it) shall not:

(a) invalidate or discharge any contract, security or other thing; or

(b) require further registration in respect of any security or other instrument (including instruments creating or acknowledging indebtedness) registered in the DIFC; or

(c) constitute a breach of, or default under, or require compliance with any notice or consent provision or require any obligation to be performed sooner or later than would have otherwise been the case under, any contract or instrument to which the Transferor is a party or is bound; or

(d) allow any party to a contract to which the Transferor is a party to terminate that contract when that party would not otherwise have been able to terminate it; or

(e) entitle any party to any contract to which the Transferor is a party to vary the terms of that contact when that party would not otherwise have been able to vary those terms or confer a right or benefit on it which it would not otherwise have had; or

(f) save as otherwise provided herein, confer any greater or lesser rights or benefits, or impose any greater or lesser obligations, on any party to any contract to which the Transferor is a party when that greater or lesser obligation would not otherwise have been imposed.

4. On and with effect from the Effective Time (or a subsequent transfer date, as the case may be) in respect of each relevant contract which is Transferring Business property:

(a) each of the Transferee and the relevant person who is either (i) the contractual counterparty (a “Counterparty“) or (ii) has third party rights or other rights (each, a “Third Party“) in respect of a relevant contract shall become entitled to the same rights under or pursuant to such contract as were available to, or against, each of the Transferor, the Counterparty or any Third Party, immediately prior to the Effective Time (or a subsequent transfer date, as the case may be), and accordingly such rights that were available to, or against, each of the Counterparty and any Third Party as against the Transferor prior to the Effective Time (or any subsequent transfer date as applicable), shall no longer be available and shall have been transferred to the Transferee; and

(b) each reference in such contract to an account of the Transferor with another person, or to an account of another person with the Transferor, whether it is a trust account, an account subject to a security interest or for any other purposes, shall be read as being or including a reference to an account of the Transferee with such other person, or of such other person with the Transferee, which is subject to the same conditions and incidents as applied thereto immediately prior to the Effective Time and such account (including the account number, if applicable) shall be deemed for all purposes to be a single continuing account, provided that nothing herein shall affect any right of any person to such contract pursuant to its terms to vary the conditions or incidents subject to which any such account is kept; and

(c) this paragraph 4 shall be without prejudice to the general application of the provisions of this Order to the transferred assets that are not contracts.

5. If on or after the Effective Time (or a subsequent transfer date, as the case may be) there are judicial, quasi-judicial, regulatory, administrative or arbitration proceedings (whether implemented, pending, threatened or otherwise) by or against the Transferor in connection with the Transferring Business, the transferred property or the transferred liabilities as applicable, the same shall be continued by or against the Transferee and the Transferee shall be entitled to all defences, counterclaims and rights of set-off that would have been available to the Transferor in relation to the Transferring Business, the transferred property and the transferred liabilities.

6. On and with effect from the Effective Time, any reference in any contract or other document or instrument relating to or referring to the Transferring Business which refers to:

(a) the Transferor, shall be construed as and to take effect as a reference to the Transferee in respect of the Transferring Business and references to the Transferor’s contact details shall be read as being references to the Transferee’s contact details; and

(b) directors, officers, representatives or employees of the Transferor or to any director, officer, representative or employee employed or engaged by the Transferor, shall be construed as and take effect as a reference to the directors, officers, representatives or employees of the Transferee or to such director, officer, representative or employee of the Transferee as the Transferee may nominate for that purpose; and

(c) a rate, charge, tariff or scale of fees or to terms or conditions published, determined, ascertained, varied or amended from time to time by the Transferor shall afford to the Transferee the same right under such contract, other document or instrument as the Transferor had to publish, determine, ascertain, vary or amend such rates, charges, tariffs, scales of fees, terms or conditions published, determined, or ascertained.

7. All books and other documents that would, before this Order, have been evidence in respect of any matter for or against the Transferor at the Effective Time, shall be admissible in evidence in respect of the same matter for or against the Transferee after the Effective Time.

8. Without prejudice to the generality of the foregoing provisions, the following provisions shall have effect in relation to the Transferring Business, or any part thereof and for these purposes the “Relevant Date” means the Effective Time or any subsequent transfer date as applicable:

(a) any existing instruction, order, direction, mandate, power of attorney, authority, undertaking or consent given to or by the Transferor in respect of the Transferring Business (whether in writing or not and whether or not in relation to an account) shall have effect, on and from the Relevant Date, as if given to or, as the case may be, by the Transferee; and

(b) in respect of the Transferring Business, any negotiable instrument or order for payment of money drawn on or by, or given to, or accepted or endorsed by, the Transferor, or payable at any place of business of the Transferor, whether so drawn, given, accepted, endorsed or payable before, on or after the Relevant Date, shall have the same effect on and from the Relevant Date, as if it had been drawn on or by, or given to, or accepted or endorsed by the Transferee, or (as the case may be) as if the place of business at which it is payable were a place of business of the Transferee.

9. In this paragraph, terms shall be construed in accordance with the definitions in the DIFC Data Protection Law, DIFC Law No.1 of 2007 (as amended). With effect from the Effective Time or any subsequent transfer date, as applicable:

(a) in respect of all personal data comprised in the Transferring Business in respect of which the Transferor was the data controller immediately before the Effective Time or any subsequent transfer date, as applicable (the “Transferred Personal Data“), the Transferee shall become the data controller; and

(b) any information made available to, or consent obtained or request or other notice received from, any data subject by or on behalf of the Transferor in respect of the Transferred Personal Data will be deemed to have been made available, obtained or received by the Transferee; and

(c) any reference to the Transferor in any such information, consent, request or other notice will be deemed to include a reference to the Transferee.

10. The identities of the Applicant’s counterparties to the Third Party Agreements listed in Schedule 4 of the Annex shall be treated as Confidential Information (as defined in paragraph 3 of the Directions Order) pursuant to paragraph 3(b) of the Directions Order and a list identifying the counterparties shall be held under seal by the Court Registry (the “List“). The List shall not be provided to any person without the permission of the Court, which may only be sought by application on notice to the Applicant and the Transferee pursuant to paragraph 4(b) of the Directions Order. Publication of the List is forbidden and restricted under Article 53 of the DIFC Court Law, DIFC Law No. 10 of 2004, pursuant to paragraph 4(d) of the Directions Order.

11. Liberty for the Applicant or Transferee to apply.

12. There be no order as to costs.

13. Further or other relief.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 10 April 2017

At: 3pm

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Claim No. CFI 010/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

IN THE COURT OF FIRST INSTANCE

IN THE MATTER OF ABN AMRO BANK N.V.

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

RULING OF JUSTICE SIR RICHARD FIELD HANDED DOWN ON 10 APRIL 2017

1.In these proceedings, ABN Amro Bank N.V. applies to the Court for approval of the transfer of part of its global private banking business under a Sale and Purchase Agreement dated 6 December 2016 to LGT Bank (Singapore) Ltd. I shall call the Applicant the “Transferor” and LGT Bank (Singapore) Ltd the “Transferee”.

2. The Transferor’s application is made under Articles 106 and 108 of the DIFC Regulatory Law which require an order of the Court sanctioning a scheme of transfer before the transfer can be effective. By Article 108(3) the Court may sanction the transfer scheme if it considers that in all the circumstances of the case it is appropriate to do so.

3. Under Article 111 of the Regulatory Law, an application for an order sanctioning a transfer scheme must be accompanied by a report on the scheme’s terms and the report must be made by a person who appears to the DFSA to have the skills necessary to make a proper report and who is nominated or approved for the purpose by the DFSA. The scheme report put before the Court is a report made by Clifford Chance LLP (“Clifford Chance”). Clifford Chance acted for the Transferor on the sale of the business to be transferred to the Transferee. At an earlier Directions Hearing, the Court ruled that so long as the report was produced by individuals who had not been involved in the Sale and Purchase Agreement, the fact that Clifford Chance had acted on that agreement did not disbar the firm from authoring the scheme report and the DFSA have approved Clifford Chance for the purpose of making the report.

4. By Article 111(5) of the Regulatory Law, the firm reporting on the scheme must give written notice of the proposed transfer to all interested parties and must advise of the proposed transfer by way of a notice published in an appointed newspaper. As to this requirement, Mr Grant McIntyre, Country Head of Legal for the DIFC branch of the Transferor, has confirmed in a witness statement that notices of the scheme of transfer were given to the Transferor’s clients and to the clients to be transferred under the scheme and to “interested parties”. In addition, notices in English and Arabic of the transfer were published in the Khaleej Times and the Gulf News newspapers and notices in English were published in the American, English, European and Asian editions of the Financial Times.

5. In response to the notice in the Financial Times, a Mr Lechner sent an email to the Transferor requesting the name and contact information of the manager in charge of the transfer. The requested details were provided by the Transferor but Mr Lechner responded saying that in light of the “refusal to answer properly” he wanted to object to the transfer. In reply, the Transferor informed Mr Lechner that if he wanted to object he could inform Clifford Chance and he was given the date and time of this sanction hearing. In the event, Mr Lechner has not taken any further steps to object nor has he appeared before the Court this morning, and given that there is no mention of Mr Lechner in the Transferor’s books and records, I see no reason why Mr Lechner’s intervention should afford any reason for not sanctioning the scheme.

6. The Court had been provided with a very detailed scheme of transfer, together with witness statements made by Ms Lee Teck Hoon, who is the Chief Financial Officer of the Transferee, and Mr Dominique Joye, the Transferor’s Chief Executive Officer. Article 112 of the Regulatory Law provides that before making an order for the transfer of a financial services business, the Court must be satisfied that the Transferee will have the authorization required to enable the business to be transferred to be carried on in the place in which it is to be transferred and the Transferee will possess adequate financial resources to carry on the business concerned in accordance with the legislation applicable in the place where the business will be transferred.

7. Ms Lee testifies that the transferee is approved by the Monetary Authority of Singapore (“MAS”) to operate as a merchant bank and states that the MAS imposes a minimum financial requirement on regulated financial services providers. She exhibits a report by PwC on the Transferee’s computation of the projected minimum additional share capital required by the Transferee to ensure that after the transfer it would be able to meet the related applicable capital requirement under Singapore’s financial resources requirement. The computation was done on the basis of an unaudited balance sheet of the Transferee as at 31 December 2016 together with the Transferor’s Funding Gap Statements representing the transferring clients’ assets and liabilities.

8. The balance sheet assumed that the proposed transfer had proceeded and the transferring business had been acquired. The resulting additional capital requirement to ensure meeting the financial resources requirement was computed to be approximately SGD 643 million. The drawing up of the balance sheet and the computation of the additional share capital requirement to meet the financial resources requirement was undertaken by Ms Lee who testifies that the procedures adopted to compute the additional capital required were in accordance with the Singapore Standard on Related Services 4400 – Engagement to Perform Agreed-Upon Services Regarding Financial Information.

9. On 10 March 2017, the direct shareholder of the Transferee contributed SGD 750 million capital into the company. The review carried out by PwC did not amount to an audit or a review made in accordance with Singapore Standards and PwC does not express any assurance on the computation of the minimum additional capital and the actual injected capital. However, I am fully satisfied that the Transferee has adopted an appropriate methodology in computing the minimum additional capital and that the risk that the unaudited balance sheet as of 31 December 2016 and the Funding Gap Statements provided by the Transferor are materially inaccurate is vanishingly small.

10. I am therefore satisfied that the Transferee will have adequate financial resources to carry on the transferred business in accordance with the Singapore regulatory legislation.

11. Mr Joye sets out in detail in his witness statement the licensing and regulatory status of the Transferee and the extensive registrations filed on its behalf and the exemptions to which it is entitled. In addition, he exhibits a detailed legal opinion from Baker & McKenzie that concludes that the Transferee has authorisation under Singapore laws and regulations to conduct the transfer of the business, save that the Transferee is restricted from accepting SGD deposits or offering SGD overdraft facilities, although it may accept deposits in accordance with Asian Currency Unit guidelines. The Court has been informed this morning that none of the client accounts to be transferred involve deposits or overdrafts stated in SGD.

12. On the basis of Mr Joye’s witness statement and the information provided to the Court this morning, I am satisfied that the Transferee has the authorisation required to enable the business to be transferred to be carried on in Singapore.

13. Part of the business to be transferred will not be carried on in Singapore, but will be carried on in the DIFC. Most of the relationship mangers will be moved over to the Transferee and that business will be conducted in accordance with DIFC regulations. The scheme report authored by Clifford Chance concludes after a careful and detailed analysis that there are no material adverse implications for clients arising out of the transfer. Mr Abbott has also emphasised the fact that the only alternative to the transfer of this business would be its winding up in the DIFC, which as he pointed out would not be in the interest of the Transferor’s clients.

14. Under the order the Court is asked to make, the business to be transferred (“the Transferring Business”) is transferred to the Transferee on the terms of the scheme. The order also lists six matters that shall not result from the transfer, including the invalidation or discharge of any contract or security or allowing any party to a contract to which the Transferor is a party to terminate the contract or vary its terms when that party would not otherwise be able to terminate or vary it. The scheme is to have effect on or with effect from the “Effective Time”, namely 00 hours, 30 April 2017.

15. The proposed order also provides that counterparty and third party rights available against the Transferor shall be exercisable against the Transferee and for the continuation of judicial, quasi-judicial, regulatory, administrative or arbitration proceedings with the Transferee substituted for the Transferor.

16. Under paragraph 7, books and other documents that would before the order have been evidence in respect of any matter for or against the Transferor at the Effective Time becomes admissible evidence against the Transferee after the Effective Time.

17. Under paragraph 9, personal data comprised in the Transferring Business of which the Transferor was the data controller immediately before the Effective Time becomes after the Effective Time data of which the Transferee shall be the controller.

18. Finally, paragraph 10 orders that the identities of the Transferor’s counterparties to the Third Party Agreements listed in Schedule 4 shall be treated as confidential and a list identifying the counterparties shall held under seal by the Court Registry. The final list of clients subject to the transfer cannot be settled until just before the Effective Time of 30 April 2017. However, the order provides for liberty to apply, thereby allowing the Transferor to apply for any necessary adjustment before the Effective Time.

19. The DFSA, as it was entitled to, has attended the hearing this morning. It has not advanced any submissions but on the other hand it has made it clear that it has no objection to the court sanctioning the transfer. Its comments on the scheme, the scheme report and the proposed order have been accommodated in those documents by the parties to the transfer. The Court was reassured to hear Mr Lake declare that there has been very close cooperation between the parties to the transfer and the DFSA.

20. Having reviewed the scheme, the scheme report, the witness statements and the proposed order, and upon being satisfied as previously stated as to the matters specified in Article 112 of the Regulatory Law, the Court will sanction the proposed transfer of the Transferring Business and will issue an order in the terms of the draft order before the Court.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 10 April 2017

At: 4pm

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Claim No. CFI-001-2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

DIFC INVESTMENTS LLC 

Claimant

and

MOHAMMAD AKBAR MOHAMMAD ZIA 

Defendant

ORDER WITH REASONS OF H.E. JUSTICE OMAR AL MUHAIRI

UPON reading the Defendant’s Application No. CFI-001-2017/1 dated 14 March 2017 and the Claimant’s Application No. CFI-001-2017/2 dated 28 March 2017

AND UPON reviewing the submissions of the parties and the documents included in the court file

AND PURSUANT TO Rule 4.51(2) of the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1.The Claim Form shall be deemed validly served on 8 February 2017.

2. The Defendant’s Acknowledgment of Service, filed on 8 February 2017 and its subsequent submissions filed on 19 February 2017, shall be deemed to be filed within time and shall be accepted into the court record.

3. The Defendant shall not be prevented from participating in the Hearing scheduled for 17 April 2017.

4. Neither party shall be sanctioned for any failure to comply with RDC 9.29, RDC 8.13 or RDC 8.26 that has occurred to date.

5. The remaining issues addressed in the Defendant’s Application Notice CFI-001-2017/1 shall be addressed at the Hearing scheduled for 17 April 2017.

6. The Defendant shall be deemed to have accepted further service of documents relevant to the case via email to the Defendant’s legal representative, pursuant to RDC 9.3 and 4.2.

7. There shall be no order as to costs.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of Issue: 11 April 2017

At: 3pm

SCHEDULE OF REASONS

1.The two applications at issue stem from service of the Part 8 Claim Form on the Defendant. While the parties are in agreement that English-language copies of the relevant case documents were provided to the Defendant by 8 January 2017, the Defendant objects to the provided service for failure to comply with RDC 9.29. Based on this failure, the Defendant argues, he was unable to timely reply to the case and filed his Acknowledgment of Service and further submissions outside of the time provided for in the Rules, specifically on 8 February 2017 and 19 February 2017 respectively.

2. The Claimant pointed out this untimely filing via email to the Defendant and the DIFC Courts’ Registry but failed to file any application objecting to the untimely filing. However, perhaps in response to the possibility of such an application, the Defendant filed Application No. CFI-001-2017/1 on 14 March 2017 (“Application No. 1”). In Application No. 1, the Defendant seeks a order stating that:

(a) Service of the Claim Form by the Claimant was defective for failure to include a certified Arabic translation of the Claim Form and cover letter and failure to include adequate instructions regarding filing the Acknolwedgment of Service;

(b) The Defendant’s delay in filing the Acknowledgment of Service is therefore allowed and such Acknowledgment and related witness statements are accepted into the Court file;

(c) The Defendant shall be allowed to attend and participate in the Hearing taking palce on 17 April 2017;

(d) The Claimant’s Part 8 claim shall be dismissed as there is a substantial dispute regarding the facts of this case;

(e) The Claimant shall pay damages to the Defendant for withholding and concealing material facts from the Court and not making full and frank disclosure; and

(f) The Claimant shall pay the legal costs and other expenses incurred by the Defendant in defending this claim.

3. On 28 March 2017, the Claimant relatedly and presumably in response, filed Application No. CFI-001-2017/2 (“Application No. 2”) seeking an order stating:

(a) The requirement for the Defendant to be served with an Arabic translation of the Claim Form has been waived;

(b) The Defendant is estopped from relying on a failure to comply with RDC 9.29; and/or

(c) The Claim Form shall be deemed to have been validly served; alternatively

(d) The Claimant is granted relief from sanctions for failure to comply with RDC 9.29.

4. In light of the Hearing scheduled in this case for 17 April 2017, it is necessary and appropriate to address these two applications together.

The Defendant’s Arguments

5. In support of the Defendant’s requests regarding service and untimely filing, the Defendant states that the Claimant failed to comply with RDC 9.29 by failing to provide an Arabic translation of the Claim Form and the attached cover letter when serving the Defendant with the case documents. The Defendant claims that he was unable to understand the proceedings until he approached a DIFC lawyer on 7 February 2017 although he acknowledges that he was served with the English-language case documents on 3 January 2017 and 8 January 2017. The Defendant contends that he is only able to understand his native language and Arabic and is not familiar with English, of which the Claimant is allegedly aware, and further the Claimant is under an obligation to explain the required steps expected of the Defendant in a manner that he can understand.

6. While the Defendant acknowledges that his Acknolwedgment of Service was due to be filed by 26 January 2017, he cites the Claimant’s failure to comply with RDC 9.29 in support of this requirement being retroactively waived considering that he did file his Acknowledgment of Service on 8 February 2017 and was only delayed due to the Claimant’s failure to follow the Rules of the DIFC Courts. Furthermore, he seeks relief from the potential application of RDC 8.16 and RDC 4.49 as against him for untimely filing.

7. The Defendant acknowledges that the Claimant has not objected to its filing of the Acknowledgment of Service but instead objected to its filing of later evidence along with the Second Witness Statement on 19 February 2017; the Claimant objected via email on 7 March 2017 but has not since filed a Part 23 application formalising its objections to the Defendant’s filings. In any event, the Defendant contends that any delay in its filings has not prejudiced the Claimant and should be allowed as rejection of these submissions would cause the Defendant irreparable harm.

8. The Defendant implores the Court to use its case management powers under RDC Part 4, with a view to the Overriding Objectives listed in RDC Part 1, to admit all of the filings submitted by the Defendant thus far and to give permission for the Defendant to participate in the Hearing of 17 April 2017 pursuant to RDC 8.16.

9. It is of import to note that in the Defendant’s submissions connected to its Application No. 1, the Defendant’s legal representative is identified including an address, multiple telephone numbers and an email address.

10. Additionally, the Defendant argues that the proceedings filed under Part 8 of the Rules of the DIFC Courts are inappropriately filed and should therefore be dismissed. These arguments are essentially repeated from the Defendant’s Acknowledgement of Service and shall not be further detailed at this time.

The Claimant’s Arguments

11.It support of its Application No. 2, the Claimant argues that the Defendant’s action in filing an Acknowledgment of Service and subsequent evidence as well as participating actively in the case proceedings amount to a waiver of any objection to the form of service. Thus, the Defendant should be estopped from relying on the Claimant’s alleged failure to comply with RDC 9.29. The Claimant cites relevant UK authority in support of its argument.

12. Furthermore, the Claimant argues that there is no specific sanction for failure to comply with RDC 9.29 nor should any sanction be imposed. Any potentially imposed sanction should be waived pursuant to RDC 4.49 and 4.50 as there has been no prejudice to the Defendant.

13. Finally, the Claimant argues that the Court should make an order to remedy a procedural error pursuant to RDC 4.51.

14. It is notable that the Claimant has not included in its Application No. 2 any objection to the Defendant’s filings and presumably therefore does not object to any alleged untimely filings. However, the Claimant does make reference to the application of RDC 8.16 as against the Defendant’s participation at the 17 April 2017 Hearing.

Discussion

15. As a preliminary issue, the Defendant’s arguments as to the inappropriate nature of the Part 8 claim shall not be addressed herein as they are more appropriately dealt with at the Hearing on 17 April 2017.

16. It is important to note at the outset that the Court enjoys significant power to remedy procedural errors, pursuant to RDC 4.51(2).

17. RDC 9.29 states “Where the claim form is to be served in the United Arab Emirates outside the DIFC, it must be accompanied by a certified Arabic translation of the claim form.” It is undisputed that the Defendant was served in two locations outside of the DIFC but within Dubai and that there was no accompanying certified Arabic translation of the claim form included with service. RDC 9.29 is written as a mandatory rule, although there is nothing to suggest that the Defendant is not able to waive this requirement by accepting service and responding to the claim.

18. It seems clear that the Claimant failed to comply with RDC 9.29 and did not provide the required Arabic translation along with the case documents when attempting to serve the Defendant. The Claimant makes no significant objection to this fact but instead argues that the Defendant’s conduct has precluded him from objecting to the form of service. However, this conduct that may amount to a waiver of objection began on 8 February 2017 with the filing of the Defendant’s Acknolwedgement of Service. It being the case that service did not comply with Part 9, I shall deem service to be valid as of 8 February 2017, when the Defendant confirmed receipt of the case documents and essentially waived his objections to service by replying to the claim.

19. That being the case, the documents filed by the Defendant on 19 February 2017 were not outside of the 14-day window for the Defendant’s submissions, pursuant to RDC 8.26, and therefore shall be admitted.

20. This shall also effect any potential application of RDC 8.16. Seeing as the Defendant’s submissions shall not be deemed out of time, there is no question that the Defendant shall be able to participate in the Hearing scheduled for 17 April 2017.

21. This result comports with the Overriding Objectives outlined in RDC 1.6 as it is clear from the submissions of both parties that neither has been prejudiced in the proceedings thus far. Furthermore, no additional delay should be allowed due to the simple procedural defects addressed in these applications. Therefore, it is appropriate to remedy these procedural errors in the above-mentioned manner, pursuant to the power granted to me by RDC 4.51(2).

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