Claim No: CFI 007/2008
THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE
IN THE DIFC COURTS OF APPEAL
|andORION HOLDING OVERSEAS LIMITED
ORDER OF CHIEF JUSTICE MICHAEL HWANG SC
MADE ON 15 AUGUST 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 relevant procedural history of this matter was summarized by Chief Justice Anthony Evans in his Order dated 10 June 2010, as follows:
(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:
(1) Judgment for the Claimant for AED 200,000;
(2) The Defendants to pay that sum into Court;
(3) Leave to the Claimant to apply for payment out to her of AED 150,000; and
(4) As regards to 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 8 April down to and including 21 June 2009 (with one such exception); no order as to costs incurred by either party after 21 June 2009; and all such costs to be assessed on the standard basis.
(e) On 10 February 2010, H.E. Justice Omar Al Muhairi heard an appeal brought by the Claimant against the Registrar’s detailed assessment of the parties’ respective costs pursuant to the said Order. H.E. Justice Omar Al Muhairi’s Order of 10 February 2010, which is material for present purposes, is set out verbatim below:
(1) The Claimant may immediately apply to the Registrar of the DIFC Courts for payment of the AED 50,000 held in DIFC Courts’ escrow account pursuant to the Order of Justice Sir John Chadwick dated 20 August 2009.
(2) The Claimant’s costs of the proceedings in CFl 007/2008 pursuant to the Order of Justice Sir John Chadwick dated 20 August 2009 are assessed in the amount of AED 43,250.
(3) The Claimant’s costs of the Detailed Assessment proceedings of 28 October and 3 November 2009 are assessed on a summary basis in the amount of AED 26,865.
(4) The Defendant’s costs of proceedings in CFl 007/2008 pursuant to the Order of Justice Tan Sri Siti Norma Yaakob dated 23 April 2009 are assessed at AED 45,955.50.
(5) The Defendant’s costs of the Detailed Assessment proceedings of 23 November 2009 are assessed on a summary basis in the amount of AED 17,000.
(6) Pursuant to paragraph 6 of the Order of 20 August 2009, the amounts owing to each party are hereby set off, with the balance of AED 7,159.50 to be paid by the Defendant to the Claimant within 14 days of this Order.
(7) Each party to bear their own costs of Application No. 079/2009 and the Appeal heard on 10 February 2010.
(8) Pursuant to paragraph 1 of the Order of 20 August 2009 the Defendant is liable to pay to the Claimant interest at the rate of 2.9% (EIBOR +1%) on the sum of AED 200,000 for the period 5 July 2009 to 31 August 2009 as date of payment.
(9) There is no order in respect of the interest on costs.
(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 way of Application No. 17 of 2010 dated 25 February 2010, the Claimant had sought the following orders from the Court of Appeal:
(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 is extended, leave to appeal to the Court of Appeal against paragraphs 4, 5, 6 and 7(ii) of the said Order regarding Costs, as summarized 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 summarized 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 that Application, the Claimant relied upon grounds set out in her 21st Statement in these proceedings, dated 25 February 2010. The relief sought by the Claimant’s formal Application for Leave to Appeal read as follows:
“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.”
5. On 10 June 2010, Chief Justice Anthony Evans issued written grounds dismissing Application No. 17 of 2010 in its entirety.
The Present Applications
6. By way of Applications No. 44 and 45 of 2010 (“the Applications”), the Claimant now seeks from the Court of Appeal an extension of time and permission to appeal against paragraphs 2 to 9 of H.E. Justice Omar Al Muhairi’s Order dated 10 February 2010 (set out in paragraph 2(e) above).
7. Application No. 44 of 2010 prays for extension of time and permission to appeal against paragraphs 2, 3, 6, 7 and 9 of H.E. Justice Omar Al Muhairi’s Order dated 10 February 2010. The Claimant provided the grounds of this Application, which can be summarized as follows. H.E. Justice Omar Al Muhairi had exercised his discretion wrongly in assessing the quantum of the Claimant’s costs by failing to take into consideration all the relevant circumstances of the case, and had refused to allow the Claimant the right to make proper submissions in that regard. One way in which H.E. Justice Omar A! Muhairi had exercised his discretion wrongly, the Claimant contends, was in applying a blanket rate of AED 50 across all of the Claimant’s costs as a litigant in person.
8. Application No. 45 of 2010 prays for extension of time and permission to appeal against paragraphs 4, 5, 7, 8 and 9 of H.E. Justice Omar Al Muhairi’s Order dated 10 February 2010. Paragraphs 7 and 9 are also the subject of appeal in Application No. 44 of 2010. The Claimant provided the grounds of this Application, which can be summarized as follows. In so far as paragraphs 4, 5 and 7 are concerned, H.E. Justice Omar Al Muhairi had exceeded his jurisdiction by failing to have proper regard to the Defendant’s breach or contempt of court when exercising his discretion, and failed to take into account the financial position of the Claimant. In so far as paragraphs 8 and 9 are concerned, the Claimant alleges that she has not been heard.
9. It is immediately apparent that, by way of Application No. 17 of 2010 dated 25 February 2010, the appellant had already sought leave to appeal against H.E. Justice Omar Al Muhairi’s Order of 10 February 2010. That Application was dismissed in its entirety. At first blush, it may not be proper to entertain another Application for leave to appeal against that same Order, albeit on different grounds, because that would be tantamount to a second bite of the proverbial cherry for the Applicant.
10. It may therefore be said that the Applicant ought to have canvassed all grounds of appeal against H.E. Justice Omar Al Muhairi’s Order of 10 February 2010 in Application No. 17 of 2010. It is critical that no reason was furnished as to why that could not have been done. It may be inimical to the finality of litigation if an Applicant first identified specific directions in an Order to appeal against, and when proven unsuccessful, file a fresh application to appeal against other directions in that same Order. This is an adage recognized since Henderson v Henderson 3 Hare 100.
11. Sir James Wigram VC in Henderson v Henderson 3 Hare 100 stated the rule in its original form at 114-115:
“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
12. The policy behind this rule was explained by the English Court of Appeal in Barrow v Bankside Agency Ltd  1 WLR 257 at 260:
“The rule in Henderson v Henderson 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.”
13. The contemporary version of the rule in Henderson v Henderson has been re-cast as a form of abuse of process by the House of Lords in Johnson v Gore Wood & Co  2 AC 1 (“Johnson“). Lord Bingham opined as follows (at 31):
“… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. … Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.” [Emphasis added]
14. I also pause to observe that whilst these authorities are not binding upon this Court, they have persuasive value. Be that as it may, whilst I observe that Henderson v Henderson abuse of process (as recast by Johnson) may be triggered on the present facts, I need not go so far as to reach a conclusive finding on that ground.
15. Both Applications are dismissed in their entirety because I do not find any legitimate reason to permit an extension of time to appeal sought under both Applications. The reasons which the Appellant gave for not meeting the requisite deadline was as follows:
(a) delay in the issuance of H.E. Justice Omar Al Muhairi’s Order;
(b) delay in the issuance of the transcript by the transcript provider; and
(c) She was sick for an extended period of time.
16. The Applications were made on 15 June 2010. The hearing before H.E. Justice Omar Al Muhairi took place on 10 February 2010. His Order was issued on 4 April 2010. Even after taking into account the delay in the issuance of the said Order, more than two months had elapsed before the Applications were made. The Applicant must have already known some, if not all, of the directions made after that hearing, since she had sought leave by way of Application No. 17 of 2010 of 25 February 2010 to appeal against one of those directions made at that hearing.
17. There is no reason why the delay in the issuance of the transcript would prevent the Applicant from filing a protective Application within the prescribed time limits. Nor was any medical certificate furnished by anyone to explain why the Applicant was unable to meet the prescribed time limits. More critically, this is not the first time an extension of time to appeal has been sought by the Applicant in this matter. In Application No. 17 of 2010, the Applicant was out of time by more than four months, and her application for an extension of time was refused. One would have thought that the Applicant would have been more prudent in filing further applications. Allowing the time extension sought in the present Applications would make a mockery of the time lines prescribed by the Rules of Court.
18. In view of these circumstances which I have carefully considered, I dismiss the application for an extension of time to appeal in both Applications. It is therefore unnecessary for me to deal with the remaining prayers of the Applications. Applications No. 44 and 45 of 2010 are therefore dismissed in its entirety.
Date of Issue: 15 August 2010