Claim No: CFI 029/2019
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
BASSAM KHALIFA
Claimant/Respondent
and
S.W.I.F.T (DUBAI) LIMITED
Defendant/Applicant
ORDER WITH REASONS OF H.E. JUSTICE OMAR AL MUHAIRI
UPON the Defendant’s extension of time application issued on 17 May 2020 (the “Application”)
AND UPON reviewing the parties’ submissions in relation to the Application
AND UPON hearing counsel for the Claimant and counsel for the Defendant at a telephone hearing on 6 June 2020
AND UPON reviewing all other relevant documents on the Court’s file
AND PURSUANT TO RDC 4.2(1), RDC 4.2(14), RDC 4.49, RDC 44.13 and any temporary measures which may be necessary during the Coronavirus pandemic in order to ensure that the administration of justice is carried out.
IT IS HEREBYE ORDERED THAT:
1. The Defendant’s Application is granted.
2. The time for filing the appeal is retrospectively extended to 7 May 2020.
3. Costs in the Case.
Issued by:
Nour Hineidi
Deputy Registrar
Date of Issue: 9 June 2020
At: 3pm
SCHEDULE OF REASONS
1. On 17 May 2020, the Defendant filed this Application for a retrospective extension to the deadline for filing its appeal.
2. The background of the Application is straightforward and is set out in the paragraphs 3 to 22 of the Sixth Witness Statement of Aisha Saddiqa Khokhar dated 17 May 2020. In short, on 29 April 2020, the Defendant filed an appellant’s notice on the DIFC Courts’ e-Registry, seeking permission to appeal a judgment dated 8 April 2020 pursuant to RDC 44.6(2) (the “Appellant’s Notice”).
3. Pursuant to Rule 44.10(2), prospective appellants are required to file their appellant’s notices within 21 days of the issue of the decision from which they wish to be appeal. As such, the Appellant’s Notice was submitted on the final day available to it for its application.
4. On 5 May 2020, that is, 6 days after it had submitted its Appellant’s Notice – and it should be noted that the events described occurred during the lockdown imposed in Dubai due to the Coronavirus pandemic – the Defendant payed the requisite filing fee, providing proof of payment to the Registry two days later.
5. On14 May 2020, the Assistant Registrar directed that the Appellant’s Notice could not be registered on the basis that it was out of time. This direction was made in light of the DIFC Courts’ Schedule of Fees, Overriding Objectives and the registry procedure in place: notices, applications or proceedings will not be registered, deemed filed or issued until proof of payment can be demonstrated.
RDC 4.2(1) provides that, except where the RDC provides otherwise, the Court may extend or shorten the time for compliance with any Rule, Practice Direction or Court order, even if an application for extension is made after the time for compliance has expired. As such, the Court has the power to extend or shorten, prospectively or retrospectively, time limits such as that imposed by Rule 44.10(2). Moreover, in Dr Lothar Ludwig Hardt and Hardt Trading F.Z.E. v DAMAC (DIFC) Company Limited et al [2009] DIFC CFI 036 (4 April 2010), the court concluded that in certain circumstances it could be unacceptably disproportionate not to extend time. In that case, the court ordered a retrospective extension of time.
7. In this case, on 29 April 2020, the Defendant submitted an appellant’s notice on the DIFC Courts e-Registry within time, but without paying the filing fee immediately, instead paying it on 5 May 2020 and providing proof of payment to the Court later yet on 7 May 2020. On the face of it, then, the Appellant’s Notice was filed late insofar as the filing fee was not payed within the 21-day period allocated by Rule 44.10(2).
8. With that said, the Defendant’s late payment was only as such by a matter of days and, moreover, it occurred within the context of the Coronavirus pandemic and a strict lockdown which was in force in Dubai. The Defendant’s lawyers have attributed the late payment to this context and I am persuaded by their account. In my judgment, it is clear that the Defendant and the Defendant’s representative were not only willing to pay the filing fee at the time of filing the Appellant’s Notice or immediately thereafter, but that they also took steps in attempt to do so. And it is clear, too, that the failure to do so was unintentional and due to circumstances beyond their control. This is all borne out in the evidence submitted by the Defendant.
9. Consideration of the Overriding Objectives and the duty of this Court to facilitate the proper administration of justice ask me, in my view, to take into account the impact of the Coronavirus pandemic when considering applications for the extension of time. Indeed, several other courts have formalised such a consideration. The Coronavirus pandemic has fundamentally changed the way we live, work and, crucially, do business. In my view, in such circumstances, and given the account given by the Defendant which, again, I am persuaded by, it would be unacceptably disproportionate for the Application for a retrospective extension of time not to be granted.
10. I, therefore, conclude that the Application should be granted and the time for filing the Appellant’s Notice be retrospectively extended to 7 May 2020.
11. Cost in the Case.