Claim No: CFI 026/2009
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
(1) MR RAFED ABDEL MOHSEN BADER AL KHORAFI
(2) MRS AMRAH ALI ABDEL LATIF AL HAMAD
(3) MRS ALIA MOHAMED SULAIMAN AL RIFAI
(1) BANK SARASIN-ALPEN (ME) LIMITED (BSA)
(2) BANK SARASIN & CO LIMITED (BSC)
ORDER OF JUSTICE SIR JOHN CHADWICK
UPON the Application Notice of the Claimants dated 14 March 2013 (Reference CFI/O26/2009/14) for permission pursuant to Rule 18.2(2) to amend their Re-amended Claim Form and Re-Amended Particulars of Claim in the manner shown in the drafts attached thereto
AND UPON READING the Witness Statement of Kaashif Basit dated 14 March 2012, and the exhibits thereto, the Respondents’ Skeleton Argument in opposition to the application, the Claimants’ Skeleton Argument in response thereto and the documents respectively referred to in that Witness Statement and those Skeleton Arguments
AND UPON the parties agreeing that the application be determined on the papers and without an oral hearing
AND FOR the Reasons set out in the Schedule hereto
IT IS HEREBY ORDERED THAT:
1. The Claimants have permission (if so advised) to amend (or re-amend) the Claim Form:
(i) by adding, as a new penultimate sentence under the heading “Brief details of Claim”, the words “The claims also include a claim against the Second Defendant for breach of the Law.”
(ii) by adding, after the words “Further or other relief” in the existing paragraph (4) under the heading “Remedy Sought”, the words “including an order against the Second Defendant under Article 65(1) of the Law for the recovery of money paid and compensation”.
2. The Claimants have permission (if so advised) to amend the Re-Amended Statement of Claim:
(i) by adding, immediately after paragraph 138, the following:
“BREACH OF THE LAW BY SARASIN SWITZERLAND
138A.The Claimants repeat the assertion, pleaded at paragraph 4 above, that Sarasin Switzerland was not licensed by DFSA to carry out financial services in the DIFC. Further, Sarasin Switzerland was not an authorised person within the meaning of Article 42(3) of the Law.
138B.The Claimants contend on the basis of the facts and matters already alleged in this pleading that, in entering the transactions with the Claimants (and the associated loan agreements between the Claimants and Sarasin Switzerland) which are described, Sarasin Switzerland was dealing in investments within the meaning of rule 2.7 of GEN and/or arranging credit or deals in investments within the meaning of rule 2.9 of GEN and/or arranging custody within the meaning of rule 2.14 of GEN. In so doing, Sarasin Switzerland was advising on financial products and credit within the meaning of rule 2.11 of GEN; and was carrying on a Financial Service activity by way of business pursuant to Rule 2.2 of GEN in breach of the Financial Services Prohibition contrary to Article 41 of the Law.
138C.In the premises the agreements entered between Sarasin Switzerland and the Claimants were entered in the course of carrying on a Financial Service in breach of the Financial Services Prohibition. Accordingly, Sarasin Switzerland was not entitled to enforce those agreements against the Claimants under Article 65 of the Law.
138D.In the alternative to the other claims pleaded in this Re-re-amended Particulars of Claim, the Claimants seek an order under Article 65(1) of the Law to recover the money paid under the agreements and compensation for the losses sustained by the Claimants as a direct result of such payments. The compensation sought includes the sums set out in Appendix B attached and any other sums that the Claimants have had to pay to ABK in settlement of their liabilities in respect of the credit facilities that they entered with ABK referred to in paragraph 31 above.”
(ii) by adding, immediately after paragraph (3) in the Prayer for Relief, the following:
“(3A) An order against the Second Defendant under Article 65(1) of the Law for the recovery of money paid and compensation”.
3. Save as provided in paragraphs 1 and 2 of this Order the Claimants’ application for permission to amend or re-amend the Claim From and to further re-amend the Re-amended Particulars of Claim is refused.
4. If the Claimants wish to make the amendments for which permission is given under this Order (or any of them) they shall file and serve the amended (or re-amended) Claim Form and the Re-Re- Amended Particulars of Claim by 4pm on Thursday 18 April 2013.
5. The Second Defendant may make such amendments to its Defence which are consequential to the amendments (if any) to the amended (or re-amended) Claim Form and the Re-Re-Amended Particulars of Claim served on them pursuant to paragraph 4 of this Order as it may be advised; and, if it wishes to do so, shall file and serve an amended Defence incorporating such amendments within 14 days of service upon it of the amended (or re-amended) Claim Form and the Re-Re-Amended Particulars of Claim.
6. The costs of and incidental to making the amendments to the Claim Form and the Re-Re-Amended Particulars of Claim shall be paid by the Claimants in any event.
7. The Claimants shall pay to the Defendants the costs of this application and the costs of and incidental to amendments to the Second Defendant’s Defence which are consequential to the amendments (if any) to the amended (or re-amended) Claim From and the Re-Re Amended Particulars of Claim.
8. All parties may apply at the hearing of the Pre-Trial Review for this Order to be varied; notice in writing of the variations sought (if any) shall be given by the party seeking the variation to the other party and to the Court on or before 4pm on Thursday 2 May 2013.
Date of Issue: 15 April 2013