Claim No: CA-004-2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
UNITED INVESTMENT BANK LIMITED
ORDER OF JUSTICE ROGER GILES
UPON reviewing the Respondent’s Application Notice CA-004-2014/1 dated 4 September 2014 seeking permission to re-open the appeal (“the First Application”)
AND UPON reviewing the Respondent’s Application Notice CA-004-2014/2 dated 9 September 2014 seeking permission to adduce further evidence (“the Second Application”)
AND UPON considering the submissions and evidence filed and recorded on the case file
IT IS HEREBY ORDERED THAT the First Application and the Second Application both be dismissed.
REASONS FOR THE ORDER OF JUSTICE ROGER GILES:
1. Judgment in this appeal was given on 21 August 2014. The appeal was allowed, and it was ordered that the Claimant have judgment for a money sum on his claim and that the counterclaim be dismissed.
2. On 4 September 2014 the Defendant filed the First Application for permission to reopen the determination of the appeal. On 9 September 2014 it filed the Second Application to adduce further evidence. The Second Application may be premature unless and until the appeal is reopened, but regard can be had to the proposed further evidence and the prospects of its reception in deciding the First Application.
3. An application for permission to reopen the final determination of an appeal is considered on the papers by a single Judge, and will be allowed to proceed only if the Judge so directs (Rule 44.186 of the Rules of the DIFC Courts (“RDC”)). The Chief Justice has nominated me as the Judge to consider whether permission should be granted. I was a member of the Bench which decided the appeal.
4. RDC 44.179 provides that the Court of Appeal will not reopen the final determination of an appeal unless –
“(1) it is necessary to do so in order to avoid real injustice;
(2) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(3) there is no alternative effective remedy”.
5. RDC 44.179 is modelled on the English CPR 52.17, introduced in 2003 after the decision in Taylor v Lawrence  EWCA Civ 90; (2003) QB 528 that there was an inherent jurisdiction to reopen an appeal in order to avoid real injustice in exceptional circumstances. In In re Uddin (A Child)  EWCA Civ 52; (2005) 1 WLR 2398 it was said at  that it must generally be demonstrated “that the integrity of the earlier litigation process… has been critically undermined” and “the process itself has been corrupted”, and that –
“…it is the corruption of justice that as a matter of policy is most likely to validate an exceptional course; a course which relegates the high importance of finality in litigation to second place.”
6. An appeal is not to be reopened so that a party can re-agitate a matter already considered or present the matter more fully or better than it may have been previously presented, even if the application is based on mistakes by the party’s lawyers (R v Upper Tribunal (Administrative Appeal Chamber)  EWCA Civ 799). The jurisdiction must be exercised with caution, given the importance of the public interest in the finality of litigation. Generally it will not be exercised unless the applicant can show that by accident and without fault on his part he has not been heard or his appeal has not been fully considered, although there may be other circumstances in which, for example, misapprehension of the facts or the law has fundamentally afflicted the integrity of the judgment in question.
7. A major issue at trial was whether an occasion at the Copacabana Palace Hotel was a personal event or a corporate event. The Claimant brought about payment for the occasion by the Defendant as a corporate expense. If it was a personal event, there was dishonesty and a sound basis for the Defendant’s case that the Claimant’s employment was validly terminated.
8. Three reasons are given for reopening the determination of the appeal. In the order propounded, they are –
(a) that the Court of Appeal ignored the trial judge’s finding that the occasion was a personal event, and erroneously substituted its own finding to the contrary;
(b) that the Court of Appeal made a factual error as to payments by the Claimant out of his own pocket to the Copacabana Palace Hotel; what was said to be the correct position was said to support that the occasion was a personal event; and
(c) that the Court of Appeal misunderstood that the Defendant had accepted on appeal that the occasion was a corporate event.
9. At the centre of these reasons are the paragraphs in the judgment of the Court of Appeal –
“61. The trial judge did not clearly find whether the occasion was a personal event or a corporate event. His observation as to no evidence that the event occurred “in reality” is a little odd; there is no doubt that the booking was taken up and guests were entertained in the suite on New Year’s Eve. Although he set out matters “found not to be in support of the Claimant’s position”, he did not plainly reject that position, and from the reference in his paras 35 (a) and (b) to the Claimant failing to reveal “the details of the event” or disclose the advantage to his family, markedly short of the Claimant holding a personal event and dishonestly obtaining corporate reimbursement, it may be that the trial judge accepted that it was a corporate event.
62. However that may be, the Defendant accepted on appeal that there was a Copacabana Palace Hotel event, as I understand it meaning a corporate event. That acceptance was appropriate. Business opportunities in Brazil were being explored. EEP had been engaged to promote them and an investment fund was being established. Mr Marinho had proposed local guests with business significance, then substituted local guests, and whatever the position about inviting Middle East guests there was no challenge to the Claimant’s evidence that the later guests were regarded as contacts or sources of contacts for business opportunities and not previously known to him. It may not have been the corporate event originally envisaged, but that is another matter; it was not a personal junket.”
10. Reason (c) comes first. If the Defendant did accept on appeal that the occasion was a corporate event, reasons (a) and (b) fall away.
11. The Defendant submitted that, while it was accepted that an event had taken place, it was “unfair to assume that this was also intended as an acceptance that the event was a corporate event”. It had maintained at trial that the occasion was a personal event, and had said that it was not realistic that it had changed its position in the appeal hearing. It referred to an exchange in the transcript of the appeal hearing which it asserted showed that it was maintaining its trial position.
12. I have re-read the transcript of the appeal hearing. It must be read as a whole, and I do not accept that the Court of Appeal misunderstood the Defendant’s position on appeal. The exchange to which the Defendant referred does not represent an evolving stance as the dialogue with the Bench progressed. As I read the transcript, the stance became that the event was not in the best interests of the Defendant, that it should have been fully disclosed to the Board, and that the dishonesty lay in the undisclosed advantage to the Claimant and his family in staying at the Hotel in conjunction with the event.
13. I regard this as so clear that there is no warrant for allowing the application to proceed. However, I will assume in the Defendant’s favour that it did not mean to convey acceptance on appeal that the occasion was a corporate event and that it did not so accept. Whether there are exceptional circumstances and a real injustice to be avoided takes one to reasons (a) and (b).
14. Reason (a) amounts to the contention that the Court of Appeal was wrong in its view of the trial judge’s findings, and that the trial judge had found that the occasion was a personal event; and further, that the Court of Appeal was wrong in its view that acceptance that the occasion was a corporate event was appropriate (which was said to be substitution of the Court of Appeal’s own finding). The Defendant submitted that a number of matters in the trial judge’s reasons showed that he had found that the occasion was a personal event, and that there was no occasion to interfere with that finding (referring to Yuill v Yuill (1945) P 15 at 19 and In re B (A Child)  UKSC 33; (2013) 3 All ER 929 at ). It submitted also that if the trial judge had not made a satisfactory finding, the Court of Appeal should have ordered a new trial of its own motion notwithstanding that neither party had sought a new trial.
15. What findings had been made by the trial judge was a live issue and was the subject of submissions at the hearing of the appeal. The Defendant had the opportunity to say all it wished to say. This reason was no more than a re-agitation of that matter, with further submissions which do not make out some misapprehension in the view taken by the Court of Appeal. When the trial judge had not made a clear finding, it was open to the Court of Appeal to identify grounds for a finding that the occasion was a corporate event, supporting the perceived acceptance. They are sound grounds. I do not think that the conditions of exceptional circumstances and real injustice in RDC 44.179 are met.
16. I go to reason (c). In the reasons of the Court of Appeal it is said that in June or July 2011 the Claimant pre-booked a suite at the Copacabana Palace Hotel but no payment was made at that time, and that in October 2011 the Claimant was invoiced for the booked package and paid the invoice. The proposed further evidence was presented through the witness statement of Mr Antonio Perini, and so far as taken up in submissions would show that the booking was made on or shortly before 18 June 2011 and that the hotel asked for payment of a 20 per cent deposit by 24 June.
17. The Defendant submitted that payment of 20 per cent of the booking fee in June 2011 pointed to the Claimant organising an event of a personal nature. Contrary to its submission, the further evidence would not show that the Claimant paid a deposit at that time, but the point appeared to be that the booking and the asserted payment were prior to the signed agreement with Edgware Partcipacoes Ltda (“EEP”) in July 2011 and so were not connected with marketing of the Defendant in Brazil.
18. Mr Perini said that it was only on his personal review of the Claimant’s email folders, after the judgment of the Court of Appeal, that further documents “became available”; and that earlier review of all the Claimant’s documents, or at least all that were in Portuguese and required translation, would have been “disproportionate”.
19. The Court of Appeal may receive evidence which was not before the lower Court, but only if it so orders (RDC 44.139, 44.140). There is discretion, but the Rules do not guide its exercise. The well-established principles under the equivalent English rule (CPR 52.11) are appropriate as a guide. They are encapsulated in Ladd v Marshall (1954) 1 WLR 1489, said in Hertfordshire Investments Ltd v Bubb (2000) 1WLR 2318 to be relevant to the general discretion. They include that the evidence could not have been obtained with reasonable diligence for use at the trial and that it would probably have had an important, though not necessarily decisive, influence on the result of the case.
20. However, satisfaction of those principles will generally be insufficient for reopening an appeal to receive the further evidence; see In re Uddin at  – , pointing out that a fresh evidence case may disclose nothing to suggest that the process of justice has been corrupted and that will not be met where it is shown only that a wrong result may have been arrived at. For the fresh (or here, further) evidence to justify reopening the appeal, more is required: as a necessary but by no means sufficient condition, the evidence must demonstrate a powerful probability that a wrong result was earlier arrived at.
21. No case has been made out for reception of the further evidence, let alone for reopening the appeal by reason of the further evidence. I do not accept that the further evidence was not available prior to trial: a number of the Claimants’ other documents, translated from Portuguese, were in evidence. The support given to the occasion being a personal event is tenuous at best, and the further evidence does not approach probability of an important influence on the result in the case. A signed agreement with EEP does not mark the beginning of marketing the Defendant in Brazil and steps to that end such as early arrangements for a New Year’s Eve function, and no doubt the signature were preceded by discussions with EEP.
22. The witness statement of Mr Perini contains a number of observations by way of other submissions. They were not adopted in the Defendant’s submissions in support of its application. If regard be had to them, they do not change the outcome of the application to reopen the determination of the appeal. In my opinion, there is no substance in this reason whereby the application should be allowed to proceed.
23. I decline to direct that the application to reopen the determination of the appeal be allowed to proceed, and order that it and the application to adduce further evidence be dismissed.
Date of issue: 13 November 2014
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