Claim No: CFI 007/2008
THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
– v –
ORION HOLDING OVERSEAS LIMITED
Counsel: Ms Anna Dadic, PO Box 283120, Dubai, Claimant (in person)
Mr Adrian Chadwick (Hadef Legal Consultants & Advocates), Emaar Square, Building 3, Level 5, Downtown Burj Dubai for the Applicant Defendant.
Hearing Date: 16 February 2009
JUDGMENT OF JUSTICE TAN SRI DATO’ SITI NORMA YAAKOB
In these proceedings, to have a Judgment in Default set aside, both parties agree that arguments be confined to whether the Default Judgment dated 11 January 2009, had been prematurely obtained. If this issue is decided in favour of the Applicant Defendant, then the other issues raised by the Defendant that it has a number of arguable defences need not be inquired into, thereby saving time and costs.
Briefly the Claimant’s claim is for the liquidated sum of USD 365,777 being damages and costs for wrongful dismissal under an Employment Contract she had entered into with the Defendant on 22 June 2008. Under the terms of the contract, she was employed by the Defendant to be its Chief Legal Officer, a position she assumed on 22 June 2008. However, her tenure was short lived, for a month after her probationary period; she tendered her resignation by letter dated 22 October 2008, citing the breakdown of mutual trust and confidence that is expected in an employer and employee relationship. Instances of that breakdown are all documented by the Claimant but, for the purpose of the present application, I do not propose to dwell into any of them.
Service of the Claim Form and other relevant documents were effected in the following manner:
The Defendant failed to file an Acknowledgement of Service, an Admission or Defence to the Claim.
The next step taken by the Claimant was on 8 January 2009 when she filed a request to the Court that Judgment in Default be entered against the Defendant under RDC Rule 13.4. This was granted and the Court issued the Judgment in Default on 11 January 2009. The Defendant now questioned the date of entry of the Default Judgment on the grounds that the Judgment had been prematurely obtained as it falls short of the time frame of the 14 clear days as required under RDC Rule 11.5.
In calculating the 14 days period, the starting point is to determine the relevant date of service of the Claim. Although the Defendant denies that it had been served with the Claim, nonetheless for the purpose of this application, it was prepared to accept 17 December 2008 as the date of service.
In this respect the Claimant filed two Certificates of Service, one dated 21 December 2008 (before the Default Judgment) and the other dated 15 January, 2009 (after the Default Judgment).
The first Certificate relates to service by registered post and since that was relied upon by the Court for the entry of the Default Judgment, I rule that the Claim has been deemed to be served on the Defendant on the second day after it was mailed to it under RDC Rule 9.27.
Under RDC Rule 2.13, the 14 days period means 14 clear days which has been defined to mean
“(1) the day on which the period begins; and
(2) if the end of the period is defined by reference to an event, the date on which the event occurs are not included.”
By RDC Rule 2.12 “a day refers to a business day being a normal working day in the DIFC”. Accordingly Fridays and Saturdays being non business days, are excluded so, too, are the public holidays that fell on 29 December 2008 (a Monday) and on 1 and 4 January 2009 (a Thursday and a Sunday respectively) during the months of December 2008 and January 2009.
As the Claim was mailed to the Defendant on 17 December 2008, the second day under RDC 9.27 fell on 19 December 2008. Since that was a Friday and a non-business day in the DIFC, the deemed date of service must, therefore, fall on 21 December 2008, a Sunday and a business day in the DIFC. As such, the 14 days start to run from that date.
Taking into account the non-business days between 17 December 2008 (the date when the Claim was mailed) to 11 January 2009 (the date of the Default Judgment), the following dates are excluded when computing the 14 clear days.
So computing 14 clear days from 21 December 2008, the deemed date of service and excluding the non-business days and public holidays that fell between that date to the date of the Default Judgment, the 14th clear day fell on Monday 12 January 2009. Since the Default Judgment is dated 11 January 2009, clearly it has been entered prior to the expiry of the 14th day limitation period. On that finding, I had allowed the Defendant’s application, set aside the Default Judgment and ordered that the Defendant file its Defence within 14 days.
On the questions of costs, Mr. Adrian Chadwick, counsel for the Defendant submitted that costs should be awarded to the Defendant as the successful Applicant and submitted an itemised statement of such costs. I had exercised my discretion and refrained from making any Order as to costs and reserved that matter until after the end of the trial.
Justice Tan Sri Dato’ Seri Siti Norma Yaakob
Dated: 12 March 2009
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