Saif Saeed Sulaiman Mohammad Al Mazrouei v Bankmed (Sal) Trading In The Difc Under The Trade Name Bankmed (Dubai) [2019] DIFC CA 011

Claim No. CA-011-2019

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 CHIEF JUSTICE ZAKI AZMI, H.E. JUSTICE ALI AL MADHANI AND H.E. JUSTICE SHAMLAN AL SAWALEHI

BETWEEN

SAIF SAEED SULAIMAN MOHAMMAD AL MAZROUEI

Appellant

and

BANKMED (SAL) TRADING IN THE DIFC UNDER THE TRADE NAME BANKMED (DUBAI)

Respondent

JUDGMENT

ORDER

UPON reviewing the Appellant’s (the Fourth Defendant in CFI-033-2017) application for permission to appeal dated 4 August 2019

AND UPON Order of H.E Justice Omar Al Muhairi granting permission to appeal dated 12 September 2019

AND UPON hearing Counsel for the Appellant and Counsel for the Respondent on 11 November 2019

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

IT IS HEREBY ORDERED THAT:

1. The Appeal is dismissed.

2. The Appellant shall pay the Respondent’s costs, to be assessed by a Registrar if not agreed by the parties.

Issued by:
Ayesha Bin Kalban
Assistant Registrar
Date of issue: 29 December 2019
Time: 9am

JUDGMENT

CHIEF JUSTICE ZAKI AZMI

1. This is an appeal by the Fourth Defendant at First Instance (the “Appellant”) against the order of the Deputy Chief Justice, H.E. Justice Omar Al Muhairi, dated 16 July 2019 (the “Order”), granting immediate judgment to the Claimant, being the Respondent in this appeal (the “Respondent”). The crux of the Appellant’s appeal is that, he contends, a signature on a document purporting to be his and guaranteeing certain financial facilities granted to the First Defendant, Fast Telecom General Trading LCC – of which the Appellant is a shareholder – was not hisbut was forged. The Appellant also raised other grounds of appeal, but these were not seriously pursued.I have therefore decided to only go into depth on this issue, although I have not ignored the other issues.

2. This appeal is one of a series that have been filed at this Court by one or other of the defendants in this dispute relating to the aforementioned financial facilities granted to the First Defendant, the repayments of which are now being claimed by the Respondent. Needless to say, each appeal has been and will be decided on its own individual merits.

Background

3. On 22 December 2015, the Respondent and the First Defendant entered into a facility agreement pursuant to which the Respondent provided multi-facilities to the First Defendant to the amount of 15,000,000 United States Dollars (“USD”)(Fifteen Million USD) for the purpose of financing the import of mobile phones and handsets as part of its trade and wholesale business in the UAE (the “Facility Agreement”). The Facility Agreement was signed by the Second Defendant in his capacity as Managing Partner and Vice Chairman of the First Defendant and the Third Defendant in his capacity as Managing Partner and Chairman of the First Defendant.

4. At the time of entering into the Facility Agreement, the Second and Third Defendants also executed First Demand Limited Personal Guarantees in which they undertook and agreed to be bound to the Respondent in the same manner as the First Defendant with respect to the facilities and in particular to pay, in the event of non-payment or non-satisfaction of any and all monies or other liabilities owed by the First Defendant, and upon the Claimant’s first demand, such amounts as would be demanded from time to time by the Claimant, in addition to interest and other expenses, up to the amount of USD15,000,000 (Fifteen Million)only.

5. On 21 November 2016, three more substantially identical First Demand Limited Personal Guarantee letters were executed. Two of these were executed by the Fifth and Sixth Defendants. The third First Demand Limited Personal Guarantee was allegedly executed by the Fourth Defendant (the “Guarantee”), being, again the Appellant in this appeal. This third guarantee is the subject of this appeal.

6. Earlier, around April 2016, the First Defendant had started defaulting on the loan repayments. The Respondent met with the First Defendant several times to determine alternative payment schedules that would grant the latter more flexibility to settle the outstanding loan. A final settlement plan was issued by the Respondent on 6 March 2017, to which the First Defendant expressed its commitment on 9 March 2017. However, the First Defendant went on to repeatedly default on its repayment of the outstanding loan.

7. Relatively soon thereafter, the guarantors under the guarantees were served with a notice of default and a demand latter dated 13 April 2017. They were asked to settle the full loan balance on 25 April 2017, in addition to accrued interest, as set out by the Facility Agreement. The Guarantors did not respond to the letters, however, and nor did they settle the requested loan balance. The outstanding balance was then USD 14,463,479.03(Fourteen Million Four Hundred and Sixty-Three Thousand Four Hundred and Seventy-Nine USD and Three Cents),in addition to the applicable interest rate.

Procedural History

8. On 23 July 2017, the Respondent filed formal proceedings against the now First, Second, Fourth, Fifth and Sixth Defendants. The now Third Defendant was added to the proceedings on 24 August 2017. An Acknowledgment of Service was filed on behalf of the Defendants on 5 September 2017, but this was not followed by the filing ofdefences within the required time. Accordingly, on 22 October 2017, the Respondent requested default judgment against the Defendants under Rule 13.5(1)of the Rules of the DIFC Courts (the “RDC”) which provides that judgment in default of defence may be obtained if “an acknowledgement of service has been filed but a defence has not been filed… [and] the relevant time limit for doing so has expired.”Default judgment was granted on 29 October 2017.

9. Thereafter, and independently of each other, most of the defendants began, amongst other things, making applications to the Court to set aside the default judgment on the basis that the claim form had not been served on them. It transpired that there was an issue regarding the validity of the Acknowledgment of Service filed on behalf of these defendants. Eventually, the default judgment was set aside as against each of these defendants.

10. As regards the Appellant in particular, his application to set aside the default judgment was granted on 19 November 2018. He was given fourteen days to file a Statement of Defence, but failed to file one within the time limit, filing it instead on 5 December 2018, one day late. Accordingly, the Respondent filed another application for default judgment against the Appellant on 5 December 2018. However, on 27 November 2018, the Appellant had filed an application for extension of the deadline for submission of his Statement of Defence. This was retrospectively granted on 17 December 2018. It was important as far as the Appellant’s application was concerned that there was a national holiday from 30 November until 4 December 2018, meaning the Appellant’s Statement of Defence was filed on the first working day following this holiday.

11. On 13 December 2018, after the Appellant had submitted its Statement of Defence, the Respondent filed a further application, rejecting its validity and seeking to obtain immediate judgment against the Appellant under RDC 20.1 on the basis that, it argued, the Appellant had “no reasonable grounds for defending the claim and… has no real prospect of succeeding in the Defence.” In brief, the Appellant’s defence can be summarised as follows: (1) the DIFC Courts should, under Article 13(1) of the Arbitration Law, DIFC Law No. 1 of 2008, dismiss or stay the action, in as much as the dispute is subject to an arbitration agreement contained in the Facility Agreement; (2) the Appellant is a very minor shareholder in the First Defendant, owning only 3% of its share capital and having no influence or power over it, while only being liable to the extent of his shares; and (3) under Clause 1092 of the Civil Procedures Law No. 5/1985 as amended by Law No. 1/1987, the claim is time barred as the Respondent failed to claim any amount due from the Appellant within the six months from the due date given to claimants in such circumstances. It should be noted here briefly that there was no inclusion of the term“forgery” in the Appellant’s Statement of Defence. This point will be returned to below.

12. The day before the hearing for the application for immediate judgment, however, the Appellant filed a skeleton argument which raised a fourth defence, namelythat the signature on the Guarantee was forged. Whether this allegation had in fact been made before, as the Appellant argues is the case, will be discussed below. For now, suffice it to say that, subsequent to the hearing of 2 July 2019, the Respondent’s application for immediate judgment was granted by the Deputy Chief Justice H.E. Justice Omar Al Muhairi in his aforementionedOrder and the Appellant was ordered to pay to the Respondent the amount of USD 14,463,479.03(Fourteen Million Four Hundred and Sixty-Three Thousand Four Hundred and Seventy-Nine USD and Three Cents)in satisfaction of the claim as well as pre-judgment interest on the sum, being until that date USD 3,866,100(ThreeMillion, EightHundred and Sixty-Six Thousand and One Hundred USD), and costs of the application and proceedings.

13. On 4 August 2019, the Appellant applied to the Court for permission to appeal the order granting immediate judgment against him, enumerating eight grounds of appeal in his application. Under RDC 44.8, permission to appeal may be given only where: (1)the Court considers that the appeal would have a real prospect of success; or(2) there is some other compelling reason why the appeal should be heard. In a brief order issued on 12 September 2019, the Deputy Chief Justice granted permission to appeal on the basis that, and in reference to RDC 44.8(2), there was some compelling reason why the appeal should be heard.

The Appeal

14. At this appeal, the Appellant raised the four defences that he had raised at the time of the application for immediate judgment. However, as mentioned above, the Appellant only seriously pursued the forgery defence, which I will go into depth on. Before discussing this issue, however, I shall set out the Rules of the RDC relevant to this appeal.

15. The conditions for allowing an appeal such as the one before this Court are set out in RDC 44.117:

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

(1) wrong; or

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

There has been no claim that the decision of the Deputy Chief Justice to give immediate judgment was unjust for any reason. Accordingly, the only question before this Court presently is whether or not the decision was wrong.

16. To determine whether the Deputy Chief Justice’s decision was wrong, it is necessary to first revisit the basis upon which it would have been permissible for immediate judgment to be given. RDC 24.1 sets out the conditions for this:

“The Court may give immediate judgment against a claimant or a defendant on the whole of a claim, part of a claim or on a particular issue if:

(1) it considers that:

(a) that claimant has no real prospect of succeeding on the claim or issue; or

(b) that defendant has no real prospect of successfully defending the claim or issue; and,

(2) there is no other compelling reason why the case or issue should be disposed of at trial.”

17. RDC 24.1 is materially identical to CPR 24.2 from England & Wales, which provides:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

Caselaw from England & Wales provides us with guidance on how the immediate/summary (either the “immediate” or “summary”) judgment test should be understood and applied. Before reapplying the test to see whether, as the Appellant alleges, the Learned Judge was wrong in his decision, it will be useful to first isolate the issue of forgery in the Appellant’s application for appeal from the other defences he raises, as well as in the Deputy Chief Justice’s Order.

18. In his appeal notice, the Appellant stated,

“[H.E. Justice Omar Al Muhairi] erred in fact in concluding at paragraph 53 of the Discussion that the claim that the signature on the Guarantee is forged is not supported, he further failed in forwarding this matter to the relevant governmental laboratory to check and support this claim, and failed to mention as support and seriousness of this claim that the Appellant has already stated this claim in his previous submissions as evidence the first witness statement of the Fourth Defendant when stated that he has no relationship with the Claimant and that it is not his signature, means that the signature on the Guarantee is not for the Appellant… the learned Judge failed to take into account the First Witness Statement of the Appellant in which it is stated clearly that the Appellant has not sign the Guarantee.”[sic]

19. The crucial passage of the Learned Judge’s order for our appraisal now, paragraph 53, reads:

“At the hearing, the Fourth Defendant claimed that the signature on the Guarantee was forged and that he never signed the document. This argument was raised for the first time at the hearing and was wholly unsupported by any evidence. As the Guarantee was part of the proceedings since the very beginning, the Fourth Defendant could have included this allegation in his Statement of Defence and produce the necessary evidence to render his claim credible. Without such evidence, and considering the last-minute nature of the argument, I do not find this allegation to be credible. Consequently, I cannot accept it.”

20. To summarise, the Appellant contends that the Learned Judgewas wrong in as much as (1) the forgery claim was, contrary to his conclusion, supported by evidence; (2) he did not forward the matter to the relevant expert for verification; and (3) he did not give due recognition of the fact that the forgery claim had been made previously, notably in the Appellant’s first witness statement (the “First Witness Statement”). For clarity, the question I will now deal with is whether, under RDC 44.117, the Learned Judge was wrong to conclude that, under RDC 24.1, the Appellant had no real prospect of successfully defending the claim with his forgery defence and that there was no other compelling reason why the case or issue should be disposed of at trial, taking into consideration the Appellant’s above contentions.

21. To proceed, the England & Wales High Court case of Toprise Fashions Ltd v Nik Nak Clothing Co Ltd & Ors [2009] EWHC 1333 (Comm) (citing from Federal Republic of Nigeria v Santolina Investment Corp. [2007] EWHC 437 (CH)), succinctly enumerates the principles to be applied in deciding whether or not summary judgment should be given. At paragraph 16 of that judgment, it lists:

“i) The court must consider whether the defendant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii) A “realistic” defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman;

iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii) Although there is no longer an absolute bar on obtaining summary judgment when fraud is alleged, the fact that a claim is based on fraud is a relevant factor. The risk of a finding of dishonesty may itself provide a compelling reason for allowing a case to proceed to trial, even where the case looks strong on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [57].”

22. In arriving at a conclusion in this appeal, I bear in mind this guidance set out in Toprise. I note in particular that the standard of proof relevant to immediate judgment is not that of‘the balance of probabilities.’ Instead, a court is required to look at the facts of the case to determine whether the defendant has a real as opposed to a merely fanciful prospect of success if the case goes to trial. I note, also, that I am not supposed to conduct a mini-trial.

23. Now, in his skeleton argument for the immediate judgment hearing, the Appellant did allege that his signature had been forged. The relevant paragraph of that submission states:

“FORGED SIGNATURE
The Fourth Defendant has not sign the Guarantee and any signature on its 3rd page only (no signature on the main pages 1 and 2 of the Guarantee) is not the signature of the Fourth Defendant and it had been made without the knowledge of the Fourth Defendant and forged and accordingly we do challenge the same and request your honoured tribunal to send this document to the relevant Dubai Governmental laboratory to check this signature and prove that it is not for the Fourth Defendant.”[sic]

Taken alone, this statement, if provable, may indeed have been enough to prevent an immediate judgment being given in accordance with the guidelines enumerated in Toprise. However, in the present case I am unable to simply look at this statement in isolation. As the Deputy Chief Justice highlighted in his judgment, there were issues as to the pleading itself on the one hand and as to whether the pleading had been sufficiently supported by evidence on the other. As such, I will now look at the forgery defence in the wider context of the Appellant’s case and, in particular, through the following two lenses: (1) that of the pleading itself and (2) that of the question of whether the Appellant has taken adequate steps to substantiate the pleading.

The Forgery Pleading

24. The first time it was suggested by the Appellant that there was an issue regarding his purported signature on the Guarantee was admittedly early on in his engagement with these proceedings, namely in his First Witness Statement. Even then, however, there was no unequivocal statement that his signature had been forged. Instead, we find a somewhat ambivalent statement from which an allegation of forgery can certainly be inferred, but which is also open to being interpreted as a statement that, for example, the Appellant had willingly signed the Guarantee but without properly knowing or understanding what it was. Other possible interpretations can be imagined too. The crucial statementfrom the First Witness Statement – and it should be noted that this statement took up only a single sentence in the roughly three page witness statement – reads: “Prior to receipt of the Default Judgment, I had been unaware that a guarantee in favour of the Claimant purporting to bear my signature existed” (the “Signature Statement”). The rest of the First Witness Statement, it should also be noted, concerned itself with – and indeed seemed to be more concerned with – the fact that the Respondent’s claim form and any other documents had not been served on the Appellant.

25. As I stated above, the SignatureStatement from the First Witness Statement is open to several interpretations. If I take the Signature Statement apart for a moment, it can be said to be comprised of two parts. The first part relates to awareness of the existence of the Guarantee in favour of the Respondent: “I had been unaware that a guarantee in favour of the Claimant… existed.” This statement, in so far as it is true, does not necessitate that forgery had taken place. As I said above, such a statement could be made where somebody had signed a document without knowing or understanding the nature of the document. As such, this part of this crucial statement does not itself amount to a pleading of forgery.

26. The second part of theSignature Statement relates to the signature itself and so it is of central importance to the discussion at hand. The Appellant stated the Guarantee “purported” to bear his signature. To me, this does not amount to a pleading of forgery. Instead, the Appellant can be said to have merely queried by his use of the word “purported” whether the signature appearing on the Guarantee was his. Alternatively, the Appellant could also be said to have merely pleaded ignorance, a position that can be more easily resiled from later in proceedings than a positive statement that forgery had certainly taken place.

27. To be clear, I do not deny that the Appellant’s Signature Statement in his First Witness Statement is open to being interpreted as a nascentexpression that forgery had taken place. Instead, I say that the Signature Statement is not unambiguous and that, alone, it does not amount to a pleading of forgery. More evidence would be required to, as it were, tip the balancetowards the Signature Statement being interpreted as a pleading of forgery, or indeed as being otherwise. At this point, then, I can say that, contrary to the Appellant’s assertion, the Learned Judge did not fail to recognise that the forgery claim had been made previously in his First Witness Statement.It is not for this Court to imagine what a party wanted to say or what it should have said. Forgery was not pleaded, and the Learned Judge was not wrong to say the same.

28. Some of the ambiguity of the Signature Statementfrom the Appellant’s First Witness Statement is, I think, resolved by his second important contribution to these proceedings, namely his Statement of Defence of 4 December 2018. Extraordinarily given the Appellant’s present case, in that statement there is no mention at all – not even a suggestion – of anything related to forgery. Instead, there, the Appellant focused on the fact that he was not party to the Facility Agreement itself, without making mention of the Guarantee.

29. For example, the Appellant stated, “The Claim is based on Facility Agreement, in which the Fourth Defendant’s name or signature does not exist and the Fourth defendant has not been aware of such Facility.” [sic] Towards the end of the statement, the Appellant stated, “the Claimant has no contractual relationship with the Fourth Defendant… the Fourth Defendant has never signed the Facility.” These statements are as close as the Appellant gets to the topic at hand, and, needless to say, theydo not amount to pleadings ofthat forgery had taken place.Accordingly,not only are we are left with no clear allegation of forgery as late as in the Appellant’s Statement of Defence, but the Appellant even seems to have resiled from any suggestion of forgery by that time. It can only be concluded from this that either the Appellant had had second thoughts about the status of the signature on the Guarantee or, alternatively, that the Signature Statement in the First Witness Statement was never intended to suggest an allegation of forgery.

30. Above I mentioned that something more would be needed to tip the balance in terms of the Signature Statement’s interpretation as being an allegation of forgery or not. To me, the absence of an allegation of forgery in the Appellant’s subsequent statement, hisStatement of Defence, constitutes such a thing: the Appellant did not mention anything about forgery in this important statement when that was, apparently, his most important defence. Moreover, considering the Statement of Defence was filed well after the First Witness Statement, one would have expected that that important defence should be clearly pleaded within it. With this in mind, the balance of the meaning of the Signature Statement from the First Witness Statement tips towards it not being an allegation that forgery had taken place, for why would such an important defence not have been repeated in the Statement of Defence if it was?

31. In my view, as the Respondent expressly alleged that the Appellant had executed the guarantee in its claim form, it was for the Appellant to expressly deny that allegation, for otherwise there is a suggestion that the allegation is correct. As we have seen, initially at least, the Appellant took no such steps. Instead, what appears to have happened is that the Appellant initially queried the signature beforeassuming a new position and not querying the signature at all. In my opinion, as the Respondent had alleged that the Appellant had executed the Guarantee, in so far ashe had not, common sense dictates thathe would have immediately sought to have sight of the impugned document at the very least. I will return to this point below.

32. As mentioned above, on 13 December 2018, the Respondent applied to the Court for immediate judgment and on 1 July 2019, ahead of the hearing for the application on 2 July, the Applicant submitted a skeleton argument in which, for the first time, he unambiguously alleged forgery. The relevant passage, in its entirety, reads:

“FORGED SIGNATURE
The Fourth Defendant has not sign the Guarantee and any signature on its 3rd page only (no signature on the main pages 1 and 2 of the Guarantee) is not the signature of the Fourth Defendant and it had been made without the knowledge of the Fourth Defendant and forged and accordingly we do challenge the same and request your honoured tribunal to send this document to the relevant Dubai Governmental laboratory to check this signature and prove that it is not for the Fourth Defendant.” [sic]

33. This skeleton argument was submitted with a second witness statement of the Appellant (the “Second Witness Statement”). The Second Witness Statement, though shorter than the First Witness Statement, appears to be mostly identical to it in so far as it discusses a matter already discussed within the latter. The Second Witness Statement, for example,contains a statement which is substantially identical to the Signature Statement from the First Witness Statement, adding only the word ‘relevant’: “Prior to receipt of the Relevant Default Judgment, I had been unaware that a guarantee in favour of the Claimant purporting to bear my signature existed.” The most important difference between thetwo witness statements, however, is an addition in the Second Witness Statement of a clear assertion forgery had occurred within a paragraph reproduced from the First Witness Statement. The paragraph from the First Witness Statement reads:

“I had no expectation that the Claimant would assert any claims against me. I had never even received any demand letters from the Claimant, which could have led me to suspect that the Claimant considered that it had a claim against me in relation to the Facility Agreement.”

The relevant passage in the Second Witness Statement reads:

“I had no expectation that the Claimant would assert any claims against me. I had never even received any demand letters from the Claimant, which could have led me to suspect that the Claimant considered that it had a claim against me in relation to the Facility Agreement which my signature on it is not mine and forged.” (italics added)

34. In my opinion, theaddition in the Second Witness Statement of this allegation that forgery had taken place proves with sufficient surety that the Appellant did not intend the Signature Statement from the First Witness Statement to be an allegation of forgery and nor did not consider it to be one; otherwise, why would a second statement alleging forgery have been added to the Second Witness Statement, moreover, without removing the first or at least explaining the need to repeat the assertion? The inclusion in the Second Witness Statement – which, it must be emphasised, retained the Signature Statement and much of the First Witness Statement– of an allegation of forgery indicates that there had not been an allegation before then.

35. In my view,the Learned Judge was therefore correct to declare that the forgery allegation was raised for the first time during the application for proceedings since the very beginning, as he was to note that the Fourth Defendant could have included the allegation in his Statement of Defence.

35. In my view,the Learned Judge was therefore correct to declare that the forgery allegation was raised for the first time during the application for proceedings since the very beginning, as he was to note that the Fourth Defendant could have included the allegation in his Statement of Defence.

36. In the same paragraph of his order, the Deputy Chief Justice also discussed the fact that the Appellant had not provided any evidence to support its allegation, a topic which I will now discuss.

The Absence of Evidence

37. By way of reminder, in his appeal notice, the Appellant stated, “[H.E. Justice Omar Al Muhairi] erred in fact in concluding at paragraph 53 of the [Order] that the claim that the signature on the Guarantee is forged is not supported, [and] he further failed in forwarding this matter to the relevant governmental laboratory to check and support this claim.” [sic]

38. It is true that at this stage, the Appellant is not obliged to produce evidence that the Guarantee is in fact forged, but he must at least adduce something – some ground, basis or fact that can enable the Court to conclude that there is sufficient basis to the claim that forgery had taken place. The best, and easiest, method the Appellant could have adopted, of course, would have been for him to get a handwriting expert to confirm the inauthenticity of the signature, a standard and rather straightforward procedure. At the very least, I would have expected the Appellant to produce some evidence to substantiate the possibility that his signature was forged or, even, some demonstration of his conviction in the forgery allegation. A strong statement to that effect with sufficient explanation may have sufficed. Such steps would not have been very difficult. If the Appellant’s solicitor failed to advise him to take such steps, it is up to him to take whatever action he deems fit against his solicitor.

39. Now, it goes without saying that the burden is on the applicant in an application for immediate judgement to show that the other party has no real prospect of success at trial and that there is no other compelling reason why the case or issue should be disposed of at a trial. However, this does not mean that the respondent can be complacent. Korea National Insurance Corp v Allianz Global Corporate and Speciality AG [2007] 2 C.L.C. 748 is authority for the proposition that a respondent’s reliance on the contents of his defence may not always be sufficient. At paragraph 14 of the judgment of that case, Moore-Bick LJ said, “It is incumbent on a party responding to an application for summary judgment to put forward sufficient evidence to satisfy the court that it has a real prospect of succeeding at trial.” It goes without saying that what amounts to sufficient evidence will be different from case to case and that sometimes clear pleadings alone will suffice. In Korea National Insurance Corp, the party against whom summary judgment was entered was expected to at least describe in general terms the nature of certain evidence that it suggested would be available at trial that would support its case, as well as its source and relevance to the issues before the court (see paragraph 14).

40. While, again, usually a strong statement claiming the signature was forged may have sufficed, in the present case, I would have expected the Appellant to go further and produce evidence that his signature had been forged or demonstrate in some way hisconvictionin the forgery allegation. This is my position because of the incoherent and inconsistent way that the forgery allegation was apparently pleaded. The allegation was not pleaded in the Appellant’s First Witness Statement, though there was a suggestion that there might be an issue regarding the signature. Subsequently, in the Defence Statement, the suggestion was that there was no issue at all regarding the signature. Finally, in the Second Witness Statement, forgery was clearly pleaded. In such circumstances, the Court is not required to take the Appellant’s (third and final) position at face value. In my opinion, in such circumstances, the Appellant is required to take step further steps to demonstrate that it is not merely delaying and frustrating the inevitable, that is, a justifiedjudgment against him.

41. Royal Brompton Hospital NHS Trust, cited above, is authority for the proposition that a court must, when reaching its conclusion on summary judgment, take into account evidence that can reasonably be expected to be available at trial. This raises the question, then, of whether immediate judgment should not have been given by the Learned Judge in as much as the Appellant says that evidence of forgery will be available at trial. This question requires a discussion of the Appellant’s general approach to evidence as far as the forgery allegation is concerned.

42. In the above cited passage from the Appellant’s appeal notice, it can be seen that he believed that it was the responsibility of the Learned Judge to adduce evidence himself from the relevant government laboratory as to the veracity of the signature. Indeed, in the Appellant’s skeleton argument for the hearing for immediate judgement in which he first clearly expressed the allegation of forgery, the Appellant did request the Court to adduce the said evidence. However, this is a common law court and so, and in accordance with the practice of the common law system, a party appearing before the court is responsible for adducing evidence in support of his or its case or against the case of his opponent. The system is adversarial: the court provides a forum for the disputing parties to present their differing versions of events. It is not for the common law judge to enter the arena and begin digging for evidence on behalf of either party. In this case there is an allegation of forgery and it is up to the party making the allegation to produce evidence to support it. The Court cannot move to obtain such evidence.

43. So, with the adversarial nature of the common law system in mind, the Appellant was incorrect when he stated in his appeal notice that the Learned Judge should have ordered to forward the matter to the relevant expert for verification of the authenticity of the signature. It is not the duty of this Court to do so. Indeed, counsel for the Appellant conceded this point at the hearing.

44. It is worth noting here that I have noticed such lapses in a few cases before me in the DIFC Courts because, presumably, the solicitors acting in the particular cases were trained in civil law. Some argue that a party should not be penalised by the oversight of his solicitor. But it is also the court’s duty to deliver justice to both parties, not only to one side.

45. Apart from the fact that the Appellant’s request to the Court was accordingly misconceived, also, it demonstrates that until eight months after the Appellant first had notice of the claim against him, still, no evidence had been adduced by the Appellant to support his most important defence, forgery. It is worth noting that at the hearing for immediate judgment, the Deputy Chief Justice responded to the Appellant’s above request for the Court to adduce expert evidence. His Excellency informed the Appellant’s legal representative’s that it was their responsibility to file evidence in support of their defence. It is in my view that, in doing so, the Deputy Chief Justice had gone out of his way to assist the Appellant.A further four months has passed since that hearing and that pointer given by the Deputy Chief Justice, andstill, by the time of the hearing of this appeal on 11 November, when asked whether any evidence had been adduced to support the defence of forgery, it emerged that not a single step had been taken.

46. To me, an individual who is said to have executed a guarantee guaranteeing up to a maximum amount of USD 15,000,000(Fifteen Million USD) and who knows their signature has been forged on the said guarantee is not going to remain silent on this crucial issue, except for making a single, equivocal statement that may suggest forgery had occurred, followed by, by the time of the Defence Statement, a further statement in which nothing at all was said. I would have expected him to take more serious steps to challenge such a claim. Such an individual could have at least demanded to have sight of the document which purportedly bore his signature; such an individual might have at least lodged a police report, forgery being a crime; such an individual must at least have returned a strong objection against the claim. In cases where a defendant alleges forgery of his signature, the defendant would normally vehemently deny the validity of the signature and require the party alleging its authenticity to prove that the signature was his. In these proceedings, the Appellant did not take any of these steps. This Court has not striven to uphold the immediate judgment against the Appellant. But, like the court below, it has been given nothing by the Appellant apart from adelayed assertation by himthat his signature has been forged. This is not enough.

47. Finally, then, it can be said that the Appellant is incorrect in his remaining assertion in his appeal notice regarding the forgery allegation: the forgery claim was not supported by any form of evidence.

Conclusion

48. I agree with the Learned Judge when he said, “I do not find this allegation to be credible. Consequently, I cannot accept it.”For the reasons given above, I find that theDefendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the case should be disposed of at trial.

49. Above, I said that as the other grounds of appeal were not seriously pursued and that I would only go into depth on the forgery allegation. Needless to say, the other grounds were considered. They were also, like the forgery allegation, dismissed. Accordingly, I would dismiss the appeal.

H.E. JUSTICE ALI AL MADHANI
50. I agree with the abovementioned judgment and I have nothing further to add.

H.E. JUSTICE SHAMLAN AL SAWALEHI
51. I agree with the above and I have nothing further to add.

Issued by:
Ayesha Bin Kalban
Assistant Registrar
Date of issue: 29 December 2019
Time: 9am