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CFI 001/2017 DIFC Investments LLC v Mohammad Akbar Mohammad Zia

CFI 001/2017 DIFC Investments LLC v Mohammad Akbar Mohammad Zia

April 11, 2017

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Claim No. CFI-001-2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

DIFC INVESTMENTS LLC 

Claimant

and

MOHAMMAD AKBAR MOHAMMAD ZIA 

Defendant


ORDER WITH REASONS OF H.E. JUSTICE OMAR AL MUHAIRI


UPON reading the Defendant’s Application No. CFI-001-2017/1 dated 14 March 2017 and the Claimant’s Application No. CFI-001-2017/2 dated 28 March 2017

AND UPON reviewing the submissions of the parties and the documents included in the court file

AND PURSUANT TO Rule 4.51(2) of the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1.The Claim Form shall be deemed validly served on 8 February 2017.

2. The Defendant’s Acknowledgment of Service, filed on 8 February 2017 and its subsequent submissions filed on 19 February 2017, shall be deemed to be filed within time and shall be accepted into the court record.

3. The Defendant shall not be prevented from participating in the Hearing scheduled for 17 April 2017.

4. Neither party shall be sanctioned for any failure to comply with RDC 9.29, RDC 8.13 or RDC 8.26 that has occurred to date.

5. The remaining issues addressed in the Defendant’s Application Notice CFI-001-2017/1 shall be addressed at the Hearing scheduled for 17 April 2017.

6. The Defendant shall be deemed to have accepted further service of documents relevant to the case via email to the Defendant’s legal representative, pursuant to RDC 9.3 and 4.2.

7. There shall be no order as to costs.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of Issue: 11 April 2017

At: 3pm

 

SCHEDULE OF REASONS

1.The two applications at issue stem from service of the Part 8 Claim Form on the Defendant. While the parties are in agreement that English-language copies of the relevant case documents were provided to the Defendant by 8 January 2017, the Defendant objects to the provided service for failure to comply with RDC 9.29. Based on this failure, the Defendant argues, he was unable to timely reply to the case and filed his Acknowledgment of Service and further submissions outside of the time provided for in the Rules, specifically on 8 February 2017 and 19 February 2017 respectively.

2. The Claimant pointed out this untimely filing via email to the Defendant and the DIFC Courts’ Registry but failed to file any application objecting to the untimely filing. However, perhaps in response to the possibility of such an application, the Defendant filed Application No. CFI-001-2017/1 on 14 March 2017 (“Application No. 1”). In Application No. 1, the Defendant seeks a order stating that:

(a) Service of the Claim Form by the Claimant was defective for failure to include a certified Arabic translation of the Claim Form and cover letter and failure to include adequate instructions regarding filing the Acknolwedgment of Service;

(b) The Defendant’s delay in filing the Acknowledgment of Service is therefore allowed and such Acknowledgment and related witness statements are accepted into the Court file;

(c) The Defendant shall be allowed to attend and participate in the Hearing taking palce on 17 April 2017;

(d) The Claimant’s Part 8 claim shall be dismissed as there is a substantial dispute regarding the facts of this case;

(e) The Claimant shall pay damages to the Defendant for withholding and concealing material facts from the Court and not making full and frank disclosure; and

(f) The Claimant shall pay the legal costs and other expenses incurred by the Defendant in defending this claim.

3. On 28 March 2017, the Claimant relatedly and presumably in response, filed Application No. CFI-001-2017/2 (“Application No. 2”) seeking an order stating:

(a) The requirement for the Defendant to be served with an Arabic translation of the Claim Form has been waived;

(b) The Defendant is estopped from relying on a failure to comply with RDC 9.29; and/or

(c) The Claim Form shall be deemed to have been validly served; alternatively

(d) The Claimant is granted relief from sanctions for failure to comply with RDC 9.29.

4. In light of the Hearing scheduled in this case for 17 April 2017, it is necessary and appropriate to address these two applications together.

The Defendant’s Arguments

5. In support of the Defendant’s requests regarding service and untimely filing, the Defendant states that the Claimant failed to comply with RDC 9.29 by failing to provide an Arabic translation of the Claim Form and the attached cover letter when serving the Defendant with the case documents. The Defendant claims that he was unable to understand the proceedings until he approached a DIFC lawyer on 7 February 2017 although he acknowledges that he was served with the English-language case documents on 3 January 2017 and 8 January 2017. The Defendant contends that he is only able to understand his native language and Arabic and is not familiar with English, of which the Claimant is allegedly aware, and further the Claimant is under an obligation to explain the required steps expected of the Defendant in a manner that he can understand.

6. While the Defendant acknowledges that his Acknolwedgment of Service was due to be filed by 26 January 2017, he cites the Claimant’s failure to comply with RDC 9.29 in support of this requirement being retroactively waived considering that he did file his Acknowledgment of Service on 8 February 2017 and was only delayed due to the Claimant’s failure to follow the Rules of the DIFC Courts. Furthermore, he seeks relief from the potential application of RDC 8.16 and RDC 4.49 as against him for untimely filing.

7. The Defendant acknowledges that the Claimant has not objected to its filing of the Acknowledgment of Service but instead objected to its filing of later evidence along with the Second Witness Statement on 19 February 2017; the Claimant objected via email on 7 March 2017 but has not since filed a Part 23 application formalising its objections to the Defendant’s filings. In any event, the Defendant contends that any delay in its filings has not prejudiced the Claimant and should be allowed as rejection of these submissions would cause the Defendant irreparable harm.

8. The Defendant implores the Court to use its case management powers under RDC Part 4, with a view to the Overriding Objectives listed in RDC Part 1, to admit all of the filings submitted by the Defendant thus far and to give permission for the Defendant to participate in the Hearing of 17 April 2017 pursuant to RDC 8.16.

9. It is of import to note that in the Defendant’s submissions connected to its Application No. 1, the Defendant’s legal representative is identified including an address, multiple telephone numbers and an email address.

10. Additionally, the Defendant argues that the proceedings filed under Part 8 of the Rules of the DIFC Courts are inappropriately filed and should therefore be dismissed. These arguments are essentially repeated from the Defendant’s Acknowledgement of Service and shall not be further detailed at this time.

The Claimant’s Arguments

11.It support of its Application No. 2, the Claimant argues that the Defendant’s action in filing an Acknowledgment of Service and subsequent evidence as well as participating actively in the case proceedings amount to a waiver of any objection to the form of service. Thus, the Defendant should be estopped from relying on the Claimant’s alleged failure to comply with RDC 9.29. The Claimant cites relevant UK authority in support of its argument.

12. Furthermore, the Claimant argues that there is no specific sanction for failure to comply with RDC 9.29 nor should any sanction be imposed. Any potentially imposed sanction should be waived pursuant to RDC 4.49 and 4.50 as there has been no prejudice to the Defendant.

13. Finally, the Claimant argues that the Court should make an order to remedy a procedural error pursuant to RDC 4.51.

14. It is notable that the Claimant has not included in its Application No. 2 any objection to the Defendant’s filings and presumably therefore does not object to any alleged untimely filings. However, the Claimant does make reference to the application of RDC 8.16 as against the Defendant’s participation at the 17 April 2017 Hearing.

Discussion

15. As a preliminary issue, the Defendant’s arguments as to the inappropriate nature of the Part 8 claim shall not be addressed herein as they are more appropriately dealt with at the Hearing on 17 April 2017.

16. It is important to note at the outset that the Court enjoys significant power to remedy procedural errors, pursuant to RDC 4.51(2).

17. RDC 9.29 states “Where the claim form is to be served in the United Arab Emirates outside the DIFC, it must be accompanied by a certified Arabic translation of the claim form.” It is undisputed that the Defendant was served in two locations outside of the DIFC but within Dubai and that there was no accompanying certified Arabic translation of the claim form included with service. RDC 9.29 is written as a mandatory rule, although there is nothing to suggest that the Defendant is not able to waive this requirement by accepting service and responding to the claim.

18. It seems clear that the Claimant failed to comply with RDC 9.29 and did not provide the required Arabic translation along with the case documents when attempting to serve the Defendant. The Claimant makes no significant objection to this fact but instead argues that the Defendant’s conduct has precluded him from objecting to the form of service. However, this conduct that may amount to a waiver of objection began on 8 February 2017 with the filing of the Defendant’s Acknolwedgement of Service. It being the case that service did not comply with Part 9, I shall deem service to be valid as of 8 February 2017, when the Defendant confirmed receipt of the case documents and essentially waived his objections to service by replying to the claim.

19. That being the case, the documents filed by the Defendant on 19 February 2017 were not outside of the 14-day window for the Defendant’s submissions, pursuant to RDC 8.26, and therefore shall be admitted.

20. This shall also effect any potential application of RDC 8.16. Seeing as the Defendant’s submissions shall not be deemed out of time, there is no question that the Defendant shall be able to participate in the Hearing scheduled for 17 April 2017.

21. This result comports with the Overriding Objectives outlined in RDC 1.6 as it is clear from the submissions of both parties that neither has been prejudiced in the proceedings thus far. Furthermore, no additional delay should be allowed due to the simple procedural defects addressed in these applications. Therefore, it is appropriate to remedy these procedural errors in the above-mentioned manner, pursuant to the power granted to me by RDC 4.51(2).

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