Claim No. CFI 011/2012
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
HANA AL HERZ
THE DUBAI INTERNATIONAL FINANCIAL CENTRE AUTHORITY
ORDER WITH REASONS OF JUSTICE SIR ANTHONY COLMAN
UPON reviewing the Judgment of Justice Sir Anthony Colman dated 4 August 2013 finding in favour of the Defendant
AND UPON reviewing the submissions on costs filed by the Claimant and the Defendant on 24 July 2013
IT IS HEREBY ORDERED THAT:
The Claimant shall pay the Defendant’s costs of these proceedings, up to the conclusion of the hearing in the CFI, on the standard basis to be assessed by the Registrar if not agreed.
Date: 3 November 2015
- The claim in these proceedings was heard by me at a trial in the CFI on 10-12 February 2013. The Claimant was employed by the Defendant in a highly paid management role until 31 January 2012 when the Defendant terminated that employment. The complicated chain of events leading up to the Defendant taking that course is set out in detail in my judgment. The Claimant commenced proceedings in which she claimed as follows:
“(a) Reinstatement of her employment by the Defendant together with payment of wages lost;
(b) Damages for breach of her contract of employment;
(c) Punitive damages;
(d) Compensation pursuant to Article 68(2)(d) of the DIFC Employment Law 2005;
(e) Any payments due and owing under Article 68(2)(e);
(f) Any other determination that the Director of Employment Standards sees fit to order pursuant to Article 68.
(g) Compensation for unauthorised deduction from wages pursuant to Article 17 of the DIFC Employment Law”
- By my judgment, issued on 10 July 2013, it was decided that the Claimant’s submissions must be rejected and that consequently the claim failed.
- There were no submissions in respect of the costs of the proceedings in the course of the hearing, at the end of which judgment was reserved. On 9 July 2013 the Registrar had directed the parties to make such submissions on costs as they might be advised. On 24 July 2013 both parties filed submissions in writing. This is the normal practice when judgment is reserved and is then handed down and issued by the Registrar without a further hearing. In such a case, it is open to the parties to make submissions as to costs after they have studied the judgment, provided that they do so within such time as the judge or the Registrar may direct. Where the judgment is given by the trial judge handing it down at hearing, submissions on costs must be made at that hearing unless the judge expressly permits that to be done at a later stage. If, in either the case where there is no hearing at which judgment is given or handed down and no time limit for costs applications is ordered or the case where there is such a hearing but no application for costs is made and in the course of it no order for such applications is specified, the general rule under RDC Rule 38.56 takes effect and neither party is entitled to its costs. In the present case the Registrar’s order of 9 July 2013 did call for costs and submissions.
- It is submitted on behalf of the Defendant that this is a case where the general rule as to costs should apply, that is under RDC Rule 38.7(1):
“If the Court decides to make an order about costs:
- The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.”
- It is argued that the Defendant has succeeded on all issues and there is no basis for alleviating the effect of the general rule.
- On behalf of the Claimant it is submitted that the Court should exercise its discretion as to the incidence of costs under RDC Rules 38.6 and 38.7 by making no order as to costs, thereby leaving each party to pay its own costs. That argument rests on the submission that this is entirely an employment claim and that, since the DIFC Employment Law is based on English Law, this Court should follow the practice of English Employment Tribunals where the general rule is said to be that each side bears its own costs whoever wins, the underlying rationale being that the employment tribunal system should be open to all however limited their means.
- Whereas it is accepted that there is a widespread practice for English Employment Appeal Tribunals to decline to make costs orders, this practice is generally confined to costs at first instance level in such tribunals. Such claims are made within the context of the English employment legislation and issues as to unfair dismissal and not infrequently involve relatively small amounts of damages or other compensation. If the claim goes on appeal to the Employment Appeals Tribunal there is no general practice not to award costs to the successful party. Indeed, those cases involving complex issues or very substantial damages claims are generally heard in the High Court and not in employment tribunals. Where the claim is heard in the High Court costs orders are usually made in accordance with the usual principle of costs following the event.
- Given the substantial amount of damages which would in this case be recovered by the Claimant if she were entirely successful as well as the complexity of the issues involved, there can be little doubt that, had this claim been brought in England, it would have been heard in the High Court and that the usual principle of costs following the event would apply.
- Further, Article 8 of the Law on the Application of Civil and Commercial Laws in the DIFC, Law No. 3 of 2004, which prescribes the Laws of England and Wales as the body of law to be applied in determining the rights of the parties in the case where none of those laws listed in priority in Paragraph 29(a) to (d) of Law No. 3 of 2004 is applicable, does not involve the incorporation of the practice of either the English courts or a fortiori the English employment tribunals in exercising their discretionary powers in determining the incidence of costs. The provision incorporates substantive law but not the manner in which discretionary powers are exercised.
- It follows that, in relation to a case such as this, for the judge in the DIFC Court to take into account, in exercising the discretion as to the incidence of costs, the practice of employment tribunals in England and Wales would be to have regard to a consideration irrelevant to the exercise of his discretion. But for that consideration he would have applied the usual rule as to costs.
- Accordingly, in the present case I have no doubt that the order should be that the Claimant must pay the costs of the Defendant up to and including judgment in the CFI together with the costs of this application, on the standard basis to be assessed if not agreed.
Date: 3 November 2015