Claim No: CFI-034-2012
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
BEFORE JUSTICE ROGER GILES
(1) MR AMIT DATTANI
(2) MR NITIN JOBANPUTRA
(3) MR MASOOD UR RAHMAN
(4) MR SHEMHON IFTAKHAR
DAMAC PARK TOWERS COMPANY LIMITED
(Previously trading as DAMAC REAL ESTATE ASSET MANAGEMENT COMPANY LIMITED)
ORDER OF JUSTICE ROGER GILES
UPON reviewing the Defendant’s Appeal Notice dated 7 September 2014, seeking permission to appeal against the Judgment of the Chief Justice Michael Hwang dated 20 July 2014;
AND UPON reading the relevant material in the case file;
IT IS HEREBY ORDERED THAT:
- Permission to appeal is granted on grounds 3, 5 and 6 as identified in paragraphs 4 and 5 of the reasons below.
- Permission to appeal is refused on all other grounds.
REASONS FOR THE ORDER:
- The Defendant applies for permission to appeal against the decision of Chief Justice Michael Hwang issued on 20 July 2014. I have considered the application without a hearing (Rule 44.12 of the Rules of the DIFC Courts (“RDC”)) and without requesting submissions from the Four Claimants (RDC 44.27). Permission to appeal on three issues will be granted, but not on the remaining issues (RDC 44.22, 44.23 (1)). These are the reasons for the refusal of permission to appeal (RDC 44.14).
- The appeal notice was filed on 7 September 2014, accompanied by a skeleton argument. This was beyond the required time (RDC 44.36). It is said that the time for filing was extended to that date by the agreement of the parties “and the primary judge’s consent”. The agreement alone could not extend time (RDC 44.50), and I take the consent to have been effective as an order extending time.
- An appeal notice “must set out the grounds of appeal relied on” (RDC 44.34), and the grounds of appeal must set out the reasons why the decision was wrong or unjust because of serious irregularity (RDC 44.35 (1)). While there may be intersecting content, grounds of appeal and a skeleton argument are not the same thing; the former should be a formulation in as concise terms as possible of the error or injustice in the decision of the lower Court and the reasons therefor, which may then be supported by the latter. The Defendant’s appeal notice does not well identify the grounds of appeal. It and the skeleton argument are an amalgam; grounds of appeal are not formulated, and must be distilled from the narrative in the skeleton argument.
- In the Dattani case the Defendant wishes to appeal on the grounds that the trial judge was wrong –
1. in holding that the ACD was not extended from 20 June 2009 (skeleton argument paras 1-12);
2. in finding that ingress and egress to the Apartment was unsafe (paras 13-33); and
3. in holding that because of the finding in 2 the Apartment was not ready for occupation (paras 13-33).
- In the Rahman case the Defendant wishes to appeal on the grounds that the trial judge was wrong –
4. in finding that the cargo lift was not operational and in finding that the Rahman Claimants (Claimants (3) and (4)) could not obtain insurance for the fit-out works (paras 34-40);
5. in holding that because of the finding in 1 the Retail Unit was not ready for occupation (paras 34-40);
6. and was procedurally unfair in holding that Article 81 entitled the Rahman Claimants to terminate when that Article had not been relied on at the time, or pleaded or relied on at the trial.
- Permission to appeal may be given only when the Court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard (RDC 44.8). A real prospect of success does not mean probability, but more than mere arguability and a realistic, as opposed to fanciful, prospect of success: Swain v Hillman (2001) 1 All ER 91; Tanfern Ltd v Cameron-McDonald (2000) 1 WLR 1311; ED&F Man Liquid Products Limited v Patel  EWCA Civ 472.
- Permission to appeal is refused on ground 1 because, as the trial judge pointed out at para 123 of his judgment, if the ACD was extended from 20 June 2009 the Dattani Claimants (Claimants (1) and (2)) would still have been entitled to issue their notice. Even if the ground were upheld, it would make no difference to the result.
- Permission to appeal on ground 2 is refused because an appeal on that issue does not have a real prospect of success. As to particular matters in the skeleton argument, I do not regard the exhibits to which the Defendant refers as materially supporting the evidence of Mr El Chaar, nor do I regard the evidence to which the Defendant refers as undermining the trial judge’s acceptance of and reliance on the evidence of Mr Pickering; nor do the authorities’ certificates provide conclusive evidence that the building was safe and fit for occupation. I do not think that there is a real prospect of overturning the trial judge’s factual findings.
- Permission to appeal on ground 4 is refused because, again, an appeal on that issue does not have a real prospect of success. As to particular matters in the skeleton argument, there was evidence, albeit hearsay, that the cargo lift was not available for use, which the trial judge was entitled to regard as reliable and act upon; and the trial judge’s statement that the evidence was not challenged is not inconsistent with the Defendant’s submission that it should not be accepted, the statement meaning that there was no evidence to the contrary. There was clear evidence as to inability to obtain insurance, similarly not challenged. Again, I do not think that there is a real prospect of overturning the trial judge’s findings.
- There is no other compelling reason for granting permission to appeal on these issues.
- Permission to appeal will be granted on the issues in grounds 3 and 5, which are questions of construction of the SPAs, and in ground 6, which concerns questions of law and procedural fairness. They will be determined on the facts found by the trial judge plus, in the case of ground 6, any necessary material going to reliance on Article 81.
- The Defendant’s skeleton argument concludes with the submission that the trial judge’s judgment should be set aside. I draw attention to the need to take account of the Defendant’s counterclaims, brought on the basis that the Defendant lawfully terminated the SPAs and is entitled to damages from the Claimants. If one or more of the grounds of appeal brings down the decision in favour of the Dattani Claimants, the Rahman Claimants or both, it will be necessary to address the counterclaims.
- I make the following orders –
1. Grant permission to appeal on grounds 3, 5 and 6 as identified in these reasons;
2. Otherwise refuse permission to appeal.
Date of issue: 1 December 2014