Claim No: CFI 007/2008
THE JUDICIAL AUTHORITY OF THE DUBAI
INTERNATIONAL FINANCIAL CENTRE
IN THE DIFC COURT OF APPEAL
|– V –ORION HOLDING OVERSEAS LIMITED
ORDER OF CHIEF JUSTICE SIR ANTHONY EVANS DATED 10 JUNE 2010
1. These proceedings began in 2008 (Claim No.007/2008). The Claimant is a former employee of the Defendant. The Defendant is now in liquidation and subject to other proceedings before the Court.
2. The proceedings have a long history. The relevant dates for present purposes are these:
(a) On 10 March 2009 the Defendant made a Part 32 Offer to pay AED 200,000 in settlement of the claim;
(b) The time permitted by the RDC (Rules of Court) for acceptance of the offer expired on 8 April 2009;
(c) The Claimant accepted the offer after that date, on 21 June 2009;
(d) On 20 August 2009, Justice Sir John Chadwick heard various applications by both parties and made the following among other Orders:
(i) Judgment for the Claimant for AED 200,000;
(ii) The Defendants to pay that sum into Court;
(iii) Leave to the Claimant to apply for payment out to her of AED 150,000; and
(iv) as regards Costs, the Defendant to pay the Claimant’s costs down to and including 8 April 2009 (with two exceptions, not material for present purposes); the Claimant to pay the Defendant’s costs from that date until 21 June 2009 (with one such exception); no order as to costs incurred after that date; and all such costs to be assessed on the standard basis.
(e) On 10 February 2010, H.E. Justice Omar Al Muhairi assessed the parties’ respective costs pursuant to the said Order, and ordered (1) release to the Claimant of the balance (AED 50,000) of the sum paid into Court by the Defendant; (2) payment of a further net sum of AED 7,159.50 on account of costs by the Defendant to the Claimant; and (3) certain other matters not relevant for present purposes; and
(f) As part of the said assessment, H.E. Justice Omar Al Muhairi held that the Claimant, who is a solicitor, was entitled to recover AED 50 per hour for her time spent in connection with the case, the rate which he held was appropriate for a litigant in person.
3. By this Application made on 25 February 2010 the Claimant seeks:
(a) an extension of time within which to appeal to the Court of Appeal against paragraphs 4, 5, 6, 7(ii) and 8 of Justice Sir John Chadwick’s Order dated 20 August 2009;
(b) if time extended, leave to appeal to the Court of Appeal against paragraphs 4, 5, 6 and 7(ii) of the said Order regarding Costs, as summarised above, she contends that the Costs Order made against her by Justice Sir John Chadwick should be revoked and that all of the Defendant’s costs in these proceedings should be disallowed; and
(c) leave to appeal to the Court of Appeal against H.E. Justice Omar Al Muhairi’s Order dated 10 February 2010, as summarised above, she contends that she should be allowed the rate appropriate for a legal practitioner, which she submits is more than AED 2,500 per hour.
4. In support of the Application, the Claimant relies upon grounds set out in her 21st Statement in these proceedings, dated 25 February 2010. Because these grounds are extensive, as will appear below, it is important to quote the relief sought by the formal Application for Leave to Appeal:
“10. Please set out the order….you wish to appeal:
1. Vary Order made on 20 August 2009 by revoking order 4, 5, 6, 7(ii) and 8.
2. Make an Order to disallow all of the Defendant’s costs in these proceedings and pursuant to and arising from the Order made on 20 August 2009 and the hearing on 10 February 2010.
3. Make an Order to allow a rate of more than AED 2500 for all of the Claimant’s costs of these proceedings.”
Extension of time
5. The Claimant’s grounds for seeking an extension of time within which to appeal against the Order dated 20 August 2009 are set out in paragraph 3 of the Claimant’s 21st Statement. She alleges “there has been a delay to appeal arising from confusion and uncertainty generated by the Defendant” (para.3.1) and by failures on the part of the Courts’ Registry (para.3.2-3.3) and because “In each case an unjust and/or wrong decision was made by the learned Judge” who was concerned with various proceedings after August 2009 (para.3.4). She contends that she was “trying to deal with the issues raised in this Statement in another way so as to avoid the cost of an appeal to the Court of Appeal.” (para.3.4).
6. These grounds, in my view, are clearly inadequate to justify the extension of time for appealing which the Claimant now seeks. The extension required is more than four months (September 2009 to January 2010) during which a great deal of activity took place both in these proceedings and in connection with the pending liquidation of the Defendant. The Claimant’s explanation, quoted above, for her failure to apply for leave to appeal at the appropriate time, indicates that she chose to deal with the proceedings “in another way”, in other words that she considered that her interests would be better served by not seeking leave to appeal. Now she wishes to change that decision and, in effect, to put the clock back to the position as it was in September 2009 when the application ought to have been made. That would undermine all the proceedings which took place after the 20 August 2009 Judgment on the basis that the Judgment was not being appealed. Apart from the length of the extension required, it would be wrong in principle to extend the time, in my judgment, for that reason.
7. The application to extend time for leave to appeal against the Judgment dated 20 August 2009 therefore is refused.
Grounds of Appeal — Judgment dated 20 August 2009
8. The Claimant does not have valid grounds for appealing against the 20 August 2009 Order, in my view, in any event.
9. The grounds set out in the Claimant’s 21st Statement (paragraphs 4.1-4.2 and 7.1 — 7.7 in particular) may be summarised as follows. The Claimant contends that Justice Sir John Chadwick “acted outside the Courts powers by exercising his discretion wrongly by allowing costs pursuant to RDC 32.32
” (paras.4.1 and 7.7).
10. RDC 32.32
in conjunction with RDC 32.31
(2) provides for the situation where the Defendant makes a Part 32 Offer which the Claimant accepts after the relevant period has expired — the situation which arose here. The Claimant does not contend that Order made was not a proper exercise of the discretion, if RDC 32.32
applied, and she could not possibly do so. Rather, she submits that the circumstances were such that RDC 32.32
did not apply. That was because the Defendant failed to pay the amount of the offer into Court within 14 days from the date when she accepted the Part 32 Offer and, she submits, the Defendant thereby repudiated the contract which had been established by her acceptance of the Offer, and the Court should have ignored the Part 32 Offer altogether, including the provisions of RDC 32.32
. On that basis, she claims that she was entitled to judgment for AED 200,000, with costs throughout.
11. The Claimant relies upon basic principles of contract law and reminds the Court that when one party commits a wrongful repudiation or renunciation of its obligations under a contract, the other party may terminate the contract forthwith by a so-called acceptance of the breach. She submits that the Order dated 20 August 2009 ignored this altogether.
12. In my judgment, the provisions of the RDC relating to Part 32 Offers clearly did apply when the Court considered the question of costs on 20 August 2009 and the Judge was correct to exercise the discretion given to the Court by RDC 32.32
. The Claimant is wrong to suggest that the provisions of the RDC were somehow displaced by the contractual principles to which she refers. The facts she relies upon were relevant to be taken into account by the Court in the exercise of the discretion, and there is no suggestion that Justice Sir John Chadwick exercised the discretion wrongly, if he was entitled to exercise it at all.
13. Furthermore, the Judge addressed the contractual issues in the passage from his Judgment quoted in paragraph 7.6 of the 21st Statement. He pointed out that “far from asserting an unwillingness to go on with the contract”, the Defendant had sought the assistance of the Court as to how the contract (I would add, if there was one) should be performed. For this reason alone, the Claimant’s analysis of the contractual situation is clearly wrong.
14. For these reasons, in my judgment, the Claimant does not show grounds which would justify an appeal against the Order dated 20 August 2009.
Appeal against Costs Order made on 10 February 2010
15. The Claimant appeals against the Judge’s decision to allow the rate of AED 50 per hour for her time spent in relation to the proceedings, claiming that the rate should be more than AED 2500 per hour. She relies upon the following facts:
(i) she is and was at all material times a competent and qualified Australian lawyer with substantial legal experience in excess of eight years;
(ii) she was at all times qualified to be registered on the DIFC Courts’ Register of Practitioners, and she was in fact registered soon after the 20 August 2009 hearing, at which Justice Sir John Chadwick noted that although qualified she was not so registered at that date;
(iii) she conducted the proceedings on her own behalf competently and in full compliance with the RDC and the requirements of the Court;
(iv) an appropriate rate for the work done by the Claimant if assessed as for a competent practitioner could be as much as AED 4,783 per hour: she claims “more than AED 2500 per hour” as a reasonable rate; and
(v) H.E. Justice Omar Al Muhairi was wrong to refer to the CPR for England and Wales in fixing the rate of AED 50 per hour for the Claimant, even as a litigant in person, and that figure is unreasonably low, in any event.
16. This appeal in my view raises two issues. First, was H.E. Justice Omar Al Muhairi wrong to assess the hourly rate which was appropriate for a litigant in person, when “in the Claimant’s view the Court has allowed the Claimant to issue, conduct and appear in these proceedings as a legal practitioner” (21st Statement para.11.4)? Secondly, was the rate of AED 50 per hour unreasonably low, in any event?
17. In my judgment, the Claimant conducted these proceedings as a litigant in person, throughout. Her registration by the DIFC Courts as a qualified legal practitioner did not alter that fact. There is no evidence that she was practising as a lawyer at any relevant time, whether as sole practitioner or in partnership with others. Had she been in practice, records would have been available of professional fees charged by and to her or her partnership in connection with the proceedings, and it might have been possible for her to contend that such fees should be assessed as part of her costs. As it was, she incurred no liability for professional fees, even as a book transaction for her own services. She was simply a litigant in person conducting her own case.
18. As for the reasonableness of AED 50 per hour, H.E. Justice Omar Al Muhairi was clearly entitled to take account as he thought fit of all the circumstances including the rate allowed under the CPR, and to fix AED 50 per hour as an hourly rate appropriate for the Claimant as a litigant in person.
19. For these reasons, leave to appeal under this head is refused.
Other issues — paragraphs 12 and 13 of the 21st Statement
20. In these paragraphs, the Claimant refers in some detail to the history of these proceedings and of the liquidation proceedings, apparently in support of her contentions that “the Defendant should be ordered to pay all the Claimant’s costs in these proceedings” (para.12.1) and that all the Defendant’s costs should be disallowed (para.13( c )).
21. I referred in paragraphs 3 and 4 (above) to the scope of this Application for leave to appeal. Any application relating to other issues must be refused, for that reason.
22. The Applications made in relation to the Orders made by Justice Sir John Chadwick on 20 August 2009 and by H.E. Justice Omar Al Muhairi on 10 February 2010 are refused.
23. I further direct pursuant to RDC Part 44.16
that the Claimant shall not be permitted to renew these applications at an oral hearing before the Court.
Issued by: Mark Beer, Registrar
Date of Issue: 10 June 2010