Claim No. CFI 020/2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
GFH CAPITAL LIMITED
DAVID LAWRENCE HAIGH
ORDER OF CHIEF JUSTICE MICHAEL HWANG
UPON reviewing the Appellant’s Application for Permission to Appeal dated 17 January 2017
AND UPON reviewing the Respondent’s Notice dated 23 February 2017
IT IS HEREBY ORDERED THAT:
1.The Appellant’s application for an extension of time to appeal is granted.
2. The Appellant is granted leave to appeal against the Order with Reasons of Justice Roger Giles dated 10 November 2016, pursuant to Rule 44.8 of the Rules of the DIFC Courts, on the basis that the subject matter is of public importance given the special factual circumstances of the case subject to the condition that the Appellant files his skeleton argument and appeal bundle no later than 2pm on Thursday 16 March 2017.
Maha Al Mehairi
Date of Issue: 2 March 2017
1.Before I elaborate on my decision regarding the grant of permission to appeal, I note that the time for filing the Appellant’s application for permission to appeal (the “Application”) against the Order with Reasons of Justice Roger Giles dated 10 November 2016 (the “Immediate Judgment Order”) has expired.
2. Under Rule 44.36(1) of the Rules of the DIFC Courts (“RDC”), where the Court makes no direction, the appellant must file the appellant’s notice with the appeal Court within 14 days after the date of the decision of the lower Court that the appellant wishes to appeal. The deadline for the Appellant to file the Application was 24 November 2016. However, the Appellant did not file his notice with the appeal Court within the stipulated timeframe.
3. On 28 November 2016, the DIFC Courts Registry received a letter dated 27 November 2016 from the Appellant stating his “wish to appeal the judgment of Justice Roger Giles issued on 10 November 2016” (the “Appellant’s Letter dated 27 November 2016”). The letter contained two enclosures which confirmed that he was an inpatient at a Priory Hospital.
4. On 29 November 2016, Counsel for the Respondent replied, by way of letter, to the Appellant’s Letter dated 27 November 2016.
5. On 19 January 2017, the Appellant wrote to the DIFC Courts Registry with an application for permission to appeal dated 17 January 2017. The Appellant informed the DIFC Courts Registry that he was unable to obtain the relevant form as the form was on the Registry, which was not open to access by individuals. He stated that he had requested access to the DIFC Courts Registry to file a proper application.
6. On 8 February 2017, the DIFC Courts Registry received the formal Appeal Notice filed by the Appellant.
7. On 9 February 2017, the DIFC Courts Registry forwarded the Appellant’s Application to the Respondent.
8. On 23 February 2017, Counsel for the Respondent filed their submissions in response to the appeal notice. The Respondent submitted, among other arguments, that the Court should give directions for the oral hearing of the application for permission and an extension of time in “unless” form, with the sanction that if the Applicant fails to comply with those directions, the Application will be struck out or summarily dismissed.
9. I note that the Appellant is out of time in all his applications mentioned in paragraphs 3, 5 and 6 of this Order to appeal the Immediate Judgment Order. However, based on the reasons elaborated below, I grant the Appellant an extension of time to file his Application.
10. I also grant the Appellant permission to appeal against the Immediate Judgment Order. My reasons for granting the extension of time and permission to appeal are as follows.
11. First, I find that the present matter is of public importance given the unusual and special factual circumstances of the case.
12. Second, I have taken into account the fact that there is a large sum of approximately USD 5 million involved. In paragraph 2 of the Immediate Judgment Order, Justice Roger Giles ordered that “judgment be entered for the Claimant in the amounts of AED 8,735,340, USD 50,000 and GBP 2,039,793.70, plus simple interest from 28 May 2014, accruing at the rate of EIBOR (three month rate) + 1 per cent.”
13. Third, the Appellant had argued that he was unable to be present for the hearing of the Application for Immediate Judgment on 17 October 2016 due to his medical condition.
14. For the avoidance of doubt, I do not accept that the factual grounds asserted by the Appellant of the circumstances of his detention in Dubai are established. I do not make any findings in this Order as to whether the Appellant was unfairly treated when he was detained. The Appellant has not proved his full mental state and inability to attend trial. Nevertheless, I take into account the fact that these are special circumstances of the Appellant.
15. The Appellant claims that he did not have adequate funds to find counsel to act for him in defending a considerable sum of money. He also claims to have had difficulties in securing legal representation due to his lack of funding.
16. Fourth, I am aware that there has been considerable media interest in the Appellant’s matter. The Appellant has repeatedly raised complaints in the media alleging that he was unable to defend himself at the material time of the hearing on 17 October 2016. This led to questions about the fairness of the DIFC judicial system.
17. Accordingly, in the interest of transparency and the desirability of affording him the opportunity of making an appearance either in person or through counsel to defend himself against the Respondent’s claim, I find that the appropriate decision is to grant the Appellant leave to appeal. However, the Appellant has to comply with all the applicable DIFC Courts Rules including the requirement to file a skeleton argument and serve on the Respondent the appeal bundle.
18. Under RDC 44.74, the Appellant’s notice must be accompanied by a skeleton argument. Under RDC 44.75, where it is impracticable for the skeleton argument to accompany the Appellant’s notice, it must be filed and served on the Respondent within 14 days of filing the notice. I note that the skeleton argument has not been filed by the Appellant within 14 days of filing the notice (i.e. by 22 February 2017).
19. Under RDC 44.93, where the appeal Court gives permission to appeal, the appeal bundle must be served on the Respondent within 7 days of receiving the order giving permission to appeal.
20. However, in light of the Appellant’s special circumstances, I shall allow the Appellant to file his skeleton argument and serve the appeal bundle on the Respondent within 14 days of receiving this order giving permission to appeal. Accordingly, the Appellant must file his skeleton argument and appeal bundle no later than 2pm on Thursday 16 March 2017. The Appellant should refer to RDC 44.76 to 44.83 for guidelines on the content of his skeleton argument.
21. The extended deadline of 14 days from receiving the order giving permission to appeal gives the Appellant more than enough time to file the necessary documents.
22. The Appellant should recall that his previous appeals were eventually struck out due to his failure to comply with the timelines set by the Court.
23. It seems clear from the recent correspondence emanating from the Appellant that, while the letters from the Appellant purported to be written by himself personally, they were clearly drafted by professional practising attorneys who had been able to dedicate time to research into the Appellant’s matter. Accordingly, there is no reason why the Appellant should not be able to adhere to the timelines as he now has access to funds from the Pro Bono Account.
24. In paragraph 2 of the Order of the Chief Justice dated 10 August 2016, it was stated that amounts of up to AED 130,000 in the aggregate would be released from the Pro Bono Account to a legal representative appointed by the Appellant. This was repeated in paragraph 81 of the Order with Reasons of the Court of Appeal dated 28 February 2017. The Appellant is also at liberty to make an application for further legal funding out of the frozen funds subject to any arguments that may be raised by Counsel for the Respondent. In the latter case, that application would have to be decided on its merits.
25. I am only inclined to extend time for the Appellant to file his skeleton argument and appeal bundle on the basis that the Appellant applies for funding to be released from the Pro Bono Account. The sums of up to AED 130,000 should be more than sufficient to fund the Appellant’s skeleton argument and appeal bundle in support of his appeal. I should also highlight that the funds from the Pro Bono Account would only be released to the Appellant’s legal representatives upon receipt of the invoice for work done. Accordingly, there is no reason for any delay in filing his skeleton argument and appeal bundle as his legal advisers will have to complete their work on the skeleton argument before they can submit a claim for release of the Pro Bono Account funds.
26. I reserve the question of whether the application fees for permission to appeal are payable and will make the decision at a later date.
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