Claim No: CFI-018-2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE ROGER GILES
KISHANCHAND GANGARAM BHATIA
ICICI BANK LIMITED
ORDER OF JUSTICE ROGER GILES
UPON reviewing the Order dated 17 December 2014 granting permission to amend the particulars of claim
AND UPON hearing Counsel for the Claimant and Counsel for the Defendant on 5 March 2015
IT IS HEREBY ORDERED THAT:
Date of issue: 31 March 2015
SCHEDULE OF REASONS
1. In December last year I ruled on the application of the then sole Claimant, who I will refer to simply as the Claimant, to amend the particulars of claim. The application was opposed by the Defendant. I gave permission save in one respect, and in another respect on terms. I concluded my reasons:
“21. The Claimant submitted that he should have the costs of the application. The defendant made no submission as to costs. Rule 18.27 is relevant, but there are other considerations and the appropriate costs order is not straightforward. The parties should file further brief submissions as to costs.”
2. Rule 18.27 of the Rules of the DIFC Courts (“RDC”) provides that a party applying for an amendment will usually be responsible for the costs of and arising from the amendment, but the Court will have regard to any failure of a party to consent to an amendment in accordance with an earlier Rule. That earlier Rule includes that a party should consent to a proposed amendment unless he has substantial grounds for objecting to it.
3. Directions were given for filing submissions. The Claimant filed a submission in accordance with the directions. The Defendant did not. It is fair to say that an apology was offered today, but the explanation also offered, namely that there was confusion at the time, is not satisfactory. A direction was given. It should have been complied with.
4. The case having been listed for other purposes, I caused notice to be given to the Defendant that it would have the opportunity to make brief submissions, which it has done today.
5. The Claimant submits that Rule 18.27 should not be given effect and that the Defendant should be ordered to pay his costs of the application. He says that he succeeded for the most part and that the Defendant’s refusal to consent to the amendments was unreasonable. He says also that a costs order against him, presumably meaning under Rule 18.27, should not be made because he is an individual pitted against a large corporation and such an order “may have a long term impact on his ability to pursue the court proceedings and may therefore imperil the proceedings“.
6. The Defendant submits that there should be an order in its favour in accordance with Rule 18.27 and its primary position is that the Claimant should also pay its costs of the application with a fall back that there should be no order as to the costs of the application.
7. It submits that relevant matters are that the reason given for the application, namely that the Claimant did not have copies of documents at the time the original particulars of claim were prepared, is not a sound one and, although it was not put in these terms, to the effect that the need for the amendment was brought about by insufficient consideration of the Claimant’s case at the time the original particulars of claim were prepared. It says, as is correct, that the application was not entirely successful, although he omits to disclose (as is apparent from the reasons I gave at the time), that the lack of success was not due to any submissions made on the Defendant’s behalf but was because I saw obvious matters which required attention and considered that I could deal with them in a just way.
8. It also said that there had been no request for consent prior to bringing the application, and suggested that that meant that at the least the Claimant could not have the costs of issuing the application.
9. I put aside the consideration that the Claimant is an individual. Apart from the fact that I have no evidence of his wealth, individuals (including less wealthy individuals) do not receive special treatment as to costs. The same principles apply to all and they are exposed to costs orders like any other litigant.
10. However, I do not think this is a situation for an order in accordance with Rule 18.27. No defence had been filed, so the Defendant did not waste any costs in that respect. The Defendant would have had to give consideration to the original particulars of claim, but it brought a reasonably prompt application contesting jurisdiction and the consideration would have been necessary for that and will be caught up in the costs order made in respect of that application, whether for or against the Defendant. It was properly acknowledged by Mr Mithani on the Defendant’s behalf that the costs thrown away were likely to be minimal. I do not think that there is a sufficient prospect of wasted costs to warrant an order under the Rule and as well, the reasons I next give appear to me to call for such residual claim to an order under the Rule as there may be to be denied.
11. As to the costs of the application itself, it has to be said that there is not conspicuous merit on either side. The amendments were said to have been sparked by becoming aware of documents in the course of the jurisdiction application, but they went beyond anything so sparked, as indeed I observed in my earlier reasons. The lack of earlier awareness causing such effect as those documents may have had on preparing the particulars of claim seems to me to stem from poor initial attention to preparation of the claim. The application was not wholly successful, and the reasons for the lack of success should have been appreciated by the Claimant. On the other hand, the Defendant opposed amendment on grounds which were without substance and failed to take note of the matters which brought the exception to and terms upon the grant of permission.
12. Absence of a prior request for consent is unfortunate, as proper professional practice should have been followed, but the Defendant nonetheless opposed the application and I do not think it has any causative effect on what should be done in relation to costs.
13. In the circumstances I have described, I cannot see any reason for an order that the Claimant pay the Defendant’s costs, nor do I think that the Claimant should be entitled to have his costs paid by the Defendant. It has been an unfortunate exercise, and I trust one of a nature which will not be repeated.
14. The order that I make on the amendment application is that there be no order as to the costs of the application and, to ensure there is no misunderstanding, that there be no order for the costs of and arising from the amendment.
Date of Issue: 31 March 2015
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