Claim No: CA-002-2017
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF APPEAL
BEFORE THE CHIEF JUSTICE MICHAEL HWANG, JUSTICE JUDITH PRAKASH AND H.E. JUSTICE OMAR AL MUHAIRI
DAVID LAWRENCE HAIGH
Defendant / Appellant
GFH CAPITAL LIMITED
Claimant / Respondent
Hearing: 13 and 14 September 2017
Counsel: David Lawrence Haigh as a litigant in person for the Appellant
Andrew Bodnar assisted by Robert Dougans (Bryan Cave) for the Respondent
Judgment: 22 November 2017
UPON hearing the Appellant by telephone and Counsel for the Respondent in person on 13 and 14 September 2017
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
- The Appellant’s appeal is allowed.
- The Immediate Judgment of Justice Roger Giles dated 10 November 2017 be set aside.
- The costs of this appeal shall be reserved.
Date of Issue: 22 November 2017
- This is an appeal against the Order of Justice Roger Giles made on 10 November 2016 granting the Plaintiff Immediate Judgment for various claims made by the Respondent/Claimant against the Appellant/Defendant.
- The appeal was heard on 13 and 14 September 2017, after which the Court of Appeal (the “Court”) delivered an oral Judgment (among other things) allowing the appeal against the Order for Immediate Judgment and directing that the case be fixed for an early trial. The Court now gives its reasons for its decision.
- The procedural history of this case is long and complex and, at this stage, does not warrant a detailed narration. However, in the highly unusual circumstances of this case where the Appellant has, for a long time, been representing himself in person, he has in correspondence with the Court made a number of accusations against the DIFC Courts, both against the institution as well as against certain of its judicial officers.
- The Court of Appeal has already commented on certain aspects of the position taken by the Appellant in its previous orders in this appeal delivered on 2 March 2017, 14 March 2017, 16 May 2017 and 24 September 2017, as well as in various letters to the parties in these proceedings between February 2017 and September 2017, along with letters in the other matters between these parties of earlier dates, which provide the background for further correspondence between the Appellant and the Court leading up to the hearing of this Appeal.
- In that recent correspondence, the Appellant has raised many allegations about the competence of the Court which do not seem necessary or appropriate for the Court to rebut in this Judgment/Order. However, the Appellant has also seen fit to accuse the Court of corruption, and it is therefore necessary for the Court firmly to reject his unwarranted, unsubstantiated and totally baseless allegations. For the moment, the Court will stop short of commencement of contempt proceedings against the Appellant. However, the Appellant does his cause no good by such allegations, especially in the light of many efforts by the Court to give him such assistance in the conduct of his case as an unrepresented litigant as is possible in a jurisdiction that does not have a structured system of legal aid.
- We turn now to the merits of the appeal. We are conscious that serious allegations of fraud and dishonesty have been made against the Appellant, and a court giving Immediate Judgment against the Appellant in such a case must be satisfied by clear and cogent evidence of such evidence without hearing oral evidence. Although the Respondent has filed detailed evidence of the alleged fraudulent transactions, the Appellant has raised various factual contentions relating to the allegations of fraud and dishonesty, supported to some degree by external evidence. We therefore feel a certain element of doubt in granting Immediate Judgment against that background. Added to that are the other financial and physical difficulties allegedly befalling the Appellant which he contends have prevented him from filing a full defence to the charges against him.
- We emphasize that the financial and physical inability of the Defendant to comprehensively answer the charges raised against him (even if they exist) are not, at the end of the day, an adequate reason for the Court to delay or deny final judgment on the evidence that is presented to the Court. However, we consider that these factors are special circumstances which warrant at least a further and final opportunity to the Appellant to adduce oral evidence in his defence before final judgment is rendered by a trial judge.
- We also considered the possibility of making an Order for a conditional order under RDC 24.12-13. However, the authorities are clear that such an Order should not be made where it is reasonably clear that the Defendant would not have sufficient means to provide the security which would be a pre-requisite for a conditional permission. In the circumstances, this option is not available to us in view of the prima facie indications that the Appellant is seriously short of funds.
- Accordingly, we have concluded that the appropriate order in the special circumstances of this case is to deny Immediate Judgment. However, the normal and appropriate consequences of a case where a defendant escapes Immediate Judgment on the basis of special circumstances (rather than on the strength of his defence) is an early trial, and we therefore ordered such an early trial in order that efficient justice might be meted out.
- For the record, we set out below the history of the hearing on 13 and 14 September 2017.
- Prior to the hearing, the Appellant filed an Application to Adjourn the Hearing of the Appeal (the “Original Adjournment Application”) on the grounds that he was not in a position to argue the Appeal given that his lawyers on record, Keystone Law, had gone off the record owing to lack of funds. At the hearing itself, the Appellant made a further Application to adjourn his Application for an Adjournment of the Hearing of his main Appeal, as he was physically not well enough to argue his case, which would take him a relatively long period of time and effort, which would in turn adversely affect his health. In the circumstances, we gave an early indication to the Parties of our preliminary view on what would be an appropriate order to grant in the circumstances of this case, but the Respondent asked to be allowed to resist the substantive Appeal if the Court were minded to hear the hearing of the Appeal proper notwithstanding the two Applications for Adjournment.
- After deliberation, the Court then proceeded to hear all the outstanding Applications as follows.
- We denied the Preliminary Adjournment Application and directed that the Appellant present his argument on the Original Adjournment Application, which he did followed by with a response from the Respondent.
- We then denied the Original Adjournment Application, and asked the Appellant to proceed with his arguments on the Appeal itself. He duly did so, followed by a response from the Respondent. At the end of the oral hearing, we retired for deliberations and returned shortly to deliver an oral judgment as follows.
- (i) We allowed the Appeal for the reasons given at the beginning of this Judgment / Order, and set aside the Order granting Immediate Judgment.
- (ii) After discussion with the Parties, we directed that the Appellant file his Amended Defence to the Claimant’s Amended Particulars of its Statement of Clam within 2 weeks.
- (iii) We directed an early Case Management Conference to be held as soon as possible after the filing of the Amended Defence.
- (iv) We further directed that, after the trial date had been fixed, any application by the Appellant to adjourn the trial date would need to be supported by medical evidence, with the certifying doctor being made available for questioning on his medical certificate by videoconferencing.
- (v) Finally, we ordered that the costs of this Hearing be reserved.
Date of Issue: 22 November 2017