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Harbin Legal Consultancy Fze v Hanika Association Services [2017] SCT 189

Harbin Legal Consultancy Fze v Hanika Association Services [2017] SCT 189

December 17, 2017

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Claim No. SCT 189/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

 

IN THE SMALL CLAIMS TRIBUNAL

BEFORE SCT JUDGE MARIAM DEEN

 

BETWEEN

 

HARBIN LEGAL CONSULTANCY FZE

Claimant

and

 

HANIKA ASSOCIATION SERVICES

Defendant

 

Hearing: 26 October 2017 

Final Submissions: 7 December 2017 

Judgment: 17 December 2017


JUDGMENT OF SCT JUDGE MARIAM DEEN


UPON the Claim Form being filed on 24 July 2017

AND UPON the Defendant’s Part 20 Application for the addition or substitution of parties, dated 10 August 2017, being dismissed by Order of SCT Judge Mariam Deen on 13 September 2017

AND UPON the parties being called on 1 October 2017 for a Consultation with SCT Officer Lema Hatim and the parties not having reached settlement 

AND UPON a Hearing having been held before SCT Judge Mariam Deen on 26 October 2017, with both the Claimant’s and Defendant’s authorised representatives participating via telephone

AND UPON reviewing the documents and evidence submitted in the Court file

IT IS HEREBY ORDERED THAT:

1.The Defendant pay AED 337,422.29 to the Claimant with respect to unpaid invoices.

2. The Counterclaim be dismissed.

3. The Defendant shall reimburse the Claimant’s Court Fee in the sum of AED 24,462.75. 

 

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 17 December 2017

At: 3pm 

 

 

THE REASONS

Parties

1.The Claimant is Harbin Legal Consultancy FZE, a legal consultancy registered in the Ras Al Khaimah Free Trade Zone (hereafter the “Claimant”).

2. The Defendant is Hanika Association Services, a sole establishment registered in Dubai and providing management services to owners’ associations. Owned and represented by Haima (hereafter the “Defendant”).

Background

3. The Claimant filed its Claim Form on 24 July 2017, seeking payment from the Defendant of allegedly unpaid invoices in the amount of USD 114,341.16 / AED 419,632.06 and corresponding interest in the amount of USD 18,789.38 / AED 68,957.02 (the “Claim”). It is submitted that the invoices relate to legal services provided by the Defendant to the Claimant, comprising of advice on matters of a general nature, joint ventures and related disputes and in respect of a series of dispute and litigation matters.

4. On 10 August 207, the Defendant made a Part 20 Application for the addition or substitution of parties, on the basis that third parties had an underlying liability to indemnify and/or were the Claimant’s true client, with the Defendant acting as an agent. This Application was dismissed by Order of SCT Judge Mariam Deen on 13 September 2017.

5. The parties were called on 1 October 2017 for a Consultation with SCT Officer Lema Hatim but did not reach settlement. A Hearing was held before me on 26 October 2017, with both the Claimant’s and Defendant’s authorised representatives participating via telephone. Upon the parties’ request, the case was then adjourned for them to reconvene negotiations in an attempt to reach a settlement, however, no agreement was reached. The Claimant was given additional time to produce further evidence in support of each unpaid invoice and the Defendant was given time to respond. Thereafter, the case was reserved for judgment.

The Claim

6. In summary, the Claimant’s case is that the Defendant instructed the Claimant on various legal matters from mid to late 2014 onwards. The parties signed a letter of engagement on 16 June 2015 (the “Retainer”) pursuant to which the Defendant retained the Claimant on a monthly basis in respect of matters of a general day to day nature for a monthly fee of AED 18,000, with matters falling outside of the retainer to be charged in accordance with the Claimant’s standard rates subject to any separate agreement.

7. The Claimant submitted that numerous invoices remained unpaid by the Claimant, relating to work both inside and outside of the scope of the retainer. The invoices that the Claimant is seeking payment of are set out in a table produced by the Claimant as Exhibit A – 001 (“Claimant’s Exhibit A”) which amounts to a total of AED 488,589.08 / USD 133,30.54 including interest.

8. The Claimant’s more detailed submissions and evidence produced shall be considered in my discussion below.

The Defence and Counterclaim

9. The Defendant submits that the Claimant was first instructed in or around October 2014 and that AED 1,101,277.48 has been paid by the Defendant to the Claimant in respect of those instructions to date. But for the Retainer, the Defendant asserts that no other terms were agreed upon and the Claimant should not be entitled to claim for matters of a “larger transactional nature or project type nature” where there was no signed letter of engagement for this type of work in place.

10. It is the Defendant’s position that the Claimant’s fees were excessive and without justification. It is also alleged that the Retainer required there be a review every two months to ensure the arrangements remained beneficial to both parties and in the event that the Claimant’s hours consistently exceed the monthly Retainer hours, however, no review was conducted.

11. The Defendant submits that objections to the invoices were raised and relies on an email in this regard, dated 10 January 2017, to which no response was received. It is also alleged that objections to the invoices were deterred as they would incur additional fees. Furthermore, the Defendant takes issue with a number of invoices which it is alleges have already been paid and argues that there is no basis for the Claimant to charge interest on work which was not done in accordance with the Retainer.

12. The Defendant essentially challenges each and every invoice, putting the Claimant to proof and mounts a Counterclaim based on the alleged negligence of the Defendant. The Counterclaim seeks to recover damages in relation to the Claimant’s advice regarding the jurisdiction clause in a Business Trust Agreement (“BTA”) which the Defendant suggests is an employment agreement between the Defendant and Hanrika Inc. The Defendant submits that the Defendant failed to advise or include a clause opting into the jurisdiction of the SCT which has resulted in disputes arising from the BTA being referred from the SCT to the Court of First Instance (“BTA case”) rather than being dealt with by the SCT. In the BTA Case, the Defendant is claiming for staff entitlements, including salaries. In its Counterclaim, the Defendant is seeking to be reimbursed the SCT filing fee (USD 15,442.56) and CFI filing fee (USD 23,163.40) in respect of the BTA case, in addition to seeking payment of anticipated legal fees (USD 48,060.14), which are argued to be significantly more than they would had the case been dealt with by the SCT.

13. The Claimant has denied the Counterclaim in full and rejects the Defendant’s assertion that the BTA was intended to be an employment agreement. The Claimant submits that it is not clear that the BTA case was referred from the SCT due to the lack of a SCT opt-in clause or for some other reason, such as the claimed amount exceeding the SCT limit. Furthermore, the Claimant argues that on the matter of quantum – the Defendant has yet to suffer any actual loss as the legal fees are ‘anticipated’ and that these together with the filing fees may well be recoverable from the Defendant in the BTA case if the Defendant is successful. In any event, the Claimant denies that it is responsible for any loss the Defendant has or shall incur.

Discussion

14. The Claimant’s Claim is for a multitude of invoices which it alleges are in respect of legal work carried out on behalf of the Defendant and which remain unpaid. I will address each invoice as it appears in the table contained within the Claimants further Particulars of Claim (“PoC”), which is also helpfully referenced in the Defendant’s own submissions and I will consider both parties’ submissions before reaching a determination for each PoC item.

1) Invoice PF20160202 – 2 February 2016

15. The Claimant claims AED 18,000 in respect of the Retainer for February 2016. The Defendant has submitted that this payment has already been made in full and produced a Remittance Advice dated 27 August 2016 (Defendant’s Exhibit A) showing Invoice PF20160202 to have been paid. When questioned about the Remittance Advice at the Hearing the Claimant couldn’t confirm or deny whether this payment had been received and stated that it can’t find evidence of the Remittance Advice. The Claimant was asked whether it could prove what payments had been received in the past, but no relevant submissions or evidence has been produced in this regard. The Claimant simply sought to rely on the statement of account as submitted in its initial Claim.

16. Based upon the Defendant’s production of the Remittance Advice in support of the argument that Invoice PF20160202 has been paid and in the absence of any evidence to the contrary I am inclined to accept that the Retainer payment was made and dismiss the Claimant’s claim for this particular invoice.

2) Invoice PF 201603202 – 2 March 2016

17. Pursuant to the Retainer, the Defendant retained the Claimant for AED 18,000 on a monthly basis in respect of matters of a general day to day nature with matters outside of the Retainer being charged in accordance with standard rates. The Retainer entitled the Defendant to 14 hours of the Claimant’s services with a carry over of +/- 4 hours.

18. At the Hearing I requested that the Claimant support each invoice in its Claim with evidence, however, the Claimant has failed to do so with respect to Invoice PF 201603202 on the basis that the Retainer was a contractual agreement which should not require any consideration of the work carried out. The Defendant has submitted that this invoice has not been justified and as there are other invoices relating to the same period of time, it was for the Claimant to show there has been no ‘double billing’ and to indicate whether there were any hours to be carried over.

19. I accept the Defendant’s submissions with respect to PF 201603202 and dismiss the Claimant’s claim for this particular invoice as it is not supported with evidence of work being completed within the scope of the Retainer.

3) Invoice 11362 – 4 April 2016

20. The Defendant has queried reference to a ‘Marwan’ in the Breakdown of Fees and Costs, to which the Claimant has clarified that ‘Marwan’ was entered in error and should have been ‘Maen’. The Claimant also responded to the Defendant’s objection to the increase in fee rates, which it explains is due to the work under invoice 11362 not being part of the retainer, therefore, standard hourly rates were applied. I note the Defendant has not challenged the work which the Claimant claims to have completed under the invoice but also queried a ‘note of advice’ which the Claimant includes in its description of the work completed. Although it is odd for the Claimant to include reference to a ‘note of advice’ in its PoC for this invoice and then fail to produce evidence of it, on the balance of probabilities, I am satisfied with the evidence produced in support of the general work undertaken and find that the Defendant shall pay the Claimant AED 8,400 with respect to Invoice 11362.

4) Invoice 11447 – 2 June 2016

21. The Claimant has produced an email chain in support of this invoice for general matters. I am satisfied with the evidence relied upon by the Claimant despite the Defendant’s submission that it does not relate to general matters, as I note that it includes reference to a teleconference between the parties, which the Defendant itself refers to as a “general summary telecom” in its email dated 31 May 2016. Accordingly, I find that the Defendant shall pay the Claimant AED 2,550 with respect to Invoice 11447.

5) Invoice 11494 – 5 July 2016

22. The Defendant challenges this invoice which the Claimant states is for ‘General Matters’ and submits that it relates to work already paid for in respect of Invoice 11493 for the appeal of CFI XXX -2015 (the “Appeal”). The Claimant rejects this argument and submits that in any event, the work was carried out and it should not be relevant what file name was used to record the time for billing purposes.

23. The emails relied upon by the Claimant in support of this invoice clearly refer to the Appeal and state they act as a ‘Follow up’, therefore, I am inclined to accept the Defendant’s submissions and dismiss the Claimant’s claim in respect of Invoice 11494. Although the Cliamant has contended that it is not relevant which file name was used to record this time/work, it has failed to satisfy the Court that the work does not relate to the Appeal and was not already billed and paid for by the Defendant under Invoice 11493, relating to the Appeal and for the same period of time.

6) Invoice 11597 – 1 September 2016

24. Invoice 11597 is described as relating to ‘General Matters’ and is challenged by the Defendant on a number of grounds. It is my view that the Claimant has supported this Invoice with sufficient evidence (Claimant’s submission pages A0018 to A0086) and I am also satisfied with the responses to the Defendant’s submissions which can be summarised as follows: the Claimant submits that there had been no duplication of work and refers to the narrations recording different times and dates; with respect to the Defendant’s argument that the preparation fee was excessive, the Claimant submits that it was the attendance at a meeting which was included as a bulk of this time; the Claimant rejects the Defendant’s argument that it charged for discussions related to invoices and claims that this argument is unsubstantiated; and finally, in relation to the Defendant’s assertion regarding ‘boilerplate documentation’ which suggested the Claimant had less work to do and ought to have charged less, the Claimant submits that it charged on a time spent basis.

25. For the reasons mentioned above, I find that the Defendant shall pay the Claimant AED 39,507.50 with respect to Invoice 11597.

7) Invoice 11656 – 1 October 2016

26. At the Hearing I requested that the Claimant support each invoice in its Claim with evidence, however, the Claimant has failed to do so with respect to Invoice 11656. Accordingly, the Claimant’s Claim with respect to this particular invoice is dismissed.

8) Invoice 11691 – 1 November 2016

27. At the Hearing I requested that the Claimant support each invoice in its Claim with evidence, however, the Claimant has failed to do so with respect to Invoice 11691. Accordingly, the Claimant’s Claim with respect to this particular invoice is dismissed.

9) Invoice 11225 – 2 February 2016

28. The Claimant claims AED 10,484.78 in respect of Invoice 11225. The Defendant has submitted that this payment has already been made and produced a Remittance Advice dated 12 October 2016 (Defendant’s Exhibit B) showing the amount paid for Invoice 11225 to be AED 7,445.

29. Based upon my reasons above in paragraphs 15 and 16 and in the absence of any evidence to the contrary, I accept the evidence shown in the Remittance Advice in support of the argument that AED 7,445 of Invoice 11225 has been paid. Therefore, AED 3,039.78 remains outstanding (AED 10,484.78 – AED 7,445). The Claimant has supported this invoice with sufficient evidence (Claimant’s submission pages A0090 to A00105), therefore, I find that the Defendant shall pay the Claimant AED 3,039.78 which is outstanding with respect to Invoice 11225.

10) Invoice 11302 – 2 March 2016

30. The Defendant has not corroborated its assertion that the work carried out under this invoice related to another matter. The Claimant has supported the invoice with sufficient evidence (Claimant’s submission pages A00106 to A00114) and I find that the Defendant shall pay the Claimant AED 1,932.50 with respect to Invoice 11302.

11) Invoice 11400 – 4 May 2016

31. The Claimant claims AED 2,345 in respect of Invoice 11400. The Defendant has produced a Remittance Advice dated 28 June 2016 (Defendant’s Exhibit B) showing the amount paid for Invoice 11400 to be AED 2,249.34.

32. Based upon my reasons above in paragraphs 15 and 16 and in the absence of any evidence to the contrary, I accept the evidence shown in the Remittance Advice in support of the argument that AED 2,249.34 of Invoice 11400 has been paid. Therefore, AED 95.66 remains outstanding (AED 2,345 – AED 2,249.34). The Claimant has supported this invoice with sufficient evidence (Claimant’s submission pages A00115 to A00118), therefore, I find that the Defendant shall pay the Claimant AED 95.66 which is outstanding with respect to Invoice 11400.

12) Invoice 11496 – 5 July 2016

33. I have considered the parties’ submissions and am satisfied that the Claimant has supported the invoice with sufficient evidence (Claimant’s submission pages A00119 to A00134) and find that the Defendant shall pay the Claimant AED 6,042.50 with respect to Invoice 11496.

13) & 14) Invoice 11213 – 2 February 2016

34. Based upon my reasons above in paragraphs 15 and 16 and in the absence of any evidence to the contrary, I accept the evidence shown in the Remittance Advice dated 12 October 2016 (Defendant’s Exhibit B) in support of the Defendant’s argument that Invoice 11213 has been paid in full. Accordingly, the Claimant’s Claim with respect to this particular invoice is dismissed.

15) Invoice 11304 – 2 March 2016

25. Having considered the parties’ submissions and in the absence of evidence in support of the Defendant’s allegation that the Claimant had breached its obligations to the Defendant (by allegedly applying excessive pressure to settle its case), I am inclined to accept the Claimant’s submissions that it advised the Defendant appropriately and in the context of an impending court hearing. I am satisfied with the evidence produced in support of the invoice (Claimant’s submission pages A00157 to A00177) and accordingly, the Defendant shall pay the Claimant AED 64,655 with respect to Invoice 11304.

16) Invoice 11397 – 4 May 2016

36. Based upon my reasons above in paragraphs 15 and 16 and in the absence of any evidence to the contrary, I accept the evidence shown in the Remittance Advice dated 28 June 2016 (Defendant’s Exhibit B) in support of the argument that Invoice 11397 has been paid in full. Accordingly, the Claimant’s Claim with respect to this particular invoice is dismissed.

17) Invoice 11493 – 5 July 2016

37. Based upon my reasons above in paragraphs 15 and 16 and in the absence of any evidence to the contrary, I accept the evidence shown in the Remittance Advice dated 28 June 2016 (Defendant’s Exhibit B) in support of the argument that Invoice 11493 has been paid in full. Although the Remittance Advice shows the reference for the payment as ‘1149302’, the invoice date (5 July 2016) and invoiced amount (AED 26,400) correspond with the details shown in Invoice 11493, therefore, I am satisfied that the reference 1149302 refers to Invoice 11493. Accordingly, the Claimant’s Claim with respect to this particular invoice is dismissed.

18) – 21) Invoices 11535,11657, 11683,11713 – 2 August 2016, 1 October 2016, 19 0ctober 2016 and 1 November 2016 respectively

38. The Claimant groups these invoices together in its Claim. Although I agree with the Defendant’s submission that it is difficult to match the invoices with their respective supporting evidence invoice narrations, after careful perusal of the documents I am satisfied that the Claimant has adequately supported the type of work carried out in CFI-XXX-2015 under these invoices.

39. The Defendant makes various challenges to the invoices, the most significant of which is that some of the work invoiced for has already been paid under Invoices 11712 and/or 11534 and/or 11398. However, this argument has not been supported by any evidence of duplication of work/billing.

40. The Claimant has addressed other allegations made by the Defendant. In summary, the Claimant submits that invoices covering longer periods of time related to small amounts of fees being incurred in an ongoing matter; with respect to why a written judgment was not received, the Claimant explains that no judgment was issued; correspondence with Haskell was argued to be appropriate as he was Haima’s husband and senior member of the Defendant; it was clarified that Hebron was the Barrister instructed for the Defendant’s case; the allegation that the Claimant harassed or pressurised the Defendant to settle the case was completely rejected; and the Claimant submitted that the Defendant was not invoiced for internal invoice discussions, however, the Defendant would have been invoiced for advice on strategy which includes appeal costs and management of them.

41. I am of the view that the Claimant has proven that these invoices are owed to it and the Defendant has failed to forward a substantiated defence. Accordingly, the Defendant shall pay the Claimant AED 103,991.85 (AED 1,597.50 + AED 23,630 + AED 72,936.85 + AED 5,827.50) for Invoices 11535,11657, 11683,11713 respectively.

22) – 27) Invoices 11495, 11631, 11692, 11818, 11867, 11945 – 5 July 2016, 1 October 2016, 1 November 2016, 31 December 2016, 2 Feb 2017 and 6 March 2017 respectively

42. At the Hearing the Defendant claimed it had not received Invoice 11867 and this has been reiterated in its submissions. I requested that the Claimant support each invoice in its Claim with evidence, however, no substantiating material has been provided for this particular invoice, with the Claimant seeking only to rely upon the invoice narration. Therefore, the Claimant’s claim for payment of Invoice 11867 is dismissed.

43. The Claimant submits that Invoices 11495, 11631, 11692, 11818 and 11945 all relate to work carried out in relation to a dispute with ‘Heikki US’. I am of the view that the Claimant has adequately supported these invoices (Claimant’s submission pages B001 – B00104 and Claimant’s Final Reply submission pages 0090 – 0097) and am satisfied that these invoices are owed by the Defendant.

44. The Defendant made numerous challenges to the invoices, including but not limited to: the fact that they related to longer time periods than usual; account calculations needed to be redrafted by the Claimant; and they were inadequately substantiated. However, I do not consider the Defendant to have substantiated its own defence to these invoices which, as mentioned above, I consider to be adequately proven. The Claimant submitted that invoices covering longer periods of time related to small amounts of fees being incurred in an ongoing matter, that redrafting of account calculations was necessary in terms of the legal work carried out on behalf of the Defendant and not an internal accounts matter, and produced additional evidence in support of its claim for payment of Invoice 11945 relating to the delivery of court documents to the Claimant.

45. Pursuant to my findings above, the Defendant shall pay the Claimant AED 101,847.50 (AED 29,690 + AED 20,240 + AED 20,242.50 + AED 25,352.50 + 6,322.50) for Invoices 11495, 11631, 11692, 11818 and 11945 respectively.

28) Invoice 11709 – 1 November 2016

46. At the Hearing I requested that the Claimant support each invoice in its Claim with evidence, however, the Claimant has failed to do so with respect to Invoice 11709. Accordingly, the Claimant’s claim with respect to this particular invoice is dismissed.

29) Invoice 12013 – 5 April 2017

47. The majority of this invoice is for the Claimant’s attendance at the Deira Notary, which the Defendant does not challenge. Though, it is argued that significant delays were caused by the Claimant’s failure to have the correct identification for the Notary, which the Defendant should not have been charged for. The Claimant responded that the major delay was caused by the Defendant’s failure to have the properly attested legal translation of a document and that only ‘minimal delay’ was caused by the lack of identification, this delay has not been quantified by either party and I do not feel it appropriate to adjust the invoice in light of it.

48. However, I feel that it is reasonable in the circumstances to remove the second item from the Invoice which is charged a AED 502.50 and has the following description: “3/5/2017 Correspondence with Harmon re location of POA for execution and consent requirement from Haima”. The Defendant has produced an email chain between the parties, dated 19 October 2016 (Attachment 2 of its submissions dated 26 November 2016) which clearly indicates that the Claimant would or should have been aware of the location of the POA, and therefore, I accept the Defendant’s submission that item 2 of Invoice 12013 is not properly justified. Accordingly, Invoice 12013 for AED 5,862.50 shall be reduced by AED 502.50 and the Defendant shall pay the Claimant AED 5,360 (AED 5,862.50 – AED 502.50).

Interest

49. The Claimant seeks Interest on all unpaid invoices pursuant to the Terms of Business (Claimant’s Exhibit C – 0034) which states: “If an invoice is not paid within 14 days of the due date, we reserve the right to charge interest from the date of the invoice at the greater of 17.5% per annum or the prevailing personal loan rate in the United Kingdom of Barclays Bank PLC, along with a monthly debt recovery administration fee of AED 500”.

50. The Defendant has made submissions to the effect that the interest should only attract to late payment of invoices related to work carried out under the Retainer. The Claimant also alleges that the Claimant had failed to provide fee estimates for work carried out outside of the Retainer and did not meet to review the Retainer every 2 months as it had agreed to do so on page 2 of the Retainer (Claimant’s Exhibit C – 0033). Essentially it is argued that the Claimant cannot rely on some terms of the Retainer and Terms of Business, when it has failed to uphold others.

51. The Retainer clearly indicates that it covers day to day work on general legal matters, however, fees for work of a larger transactional or project type nature shall “be agreed under a separate fee estimate, or at our standard firm rates.” It also clearly states that the “parties will meet to review the retainer arrangement every 2 months from the date of commencement to ensure that the arrangements remain beneficial to both parties and in the event that the hours being required of Banks Group are consistently exceeding the Monthly Retainer Hours, the parties shall discuss with a view to increasing the monthly retainer payment as appropriate.”

52. In light of these express terms within the Retainer agreement itself, it is reasonable for the Defendant to have expected for the Claimant to have agreed separate fee estimates or to have renegotiated the Retainer as part of its review every 2 months. However, there is no evidence of the Claimant attempting to review the Retainer or providing fee estimates or separate agreements for the large number of hours falling outside of the Retainer and being the subject of numerous invoices over a significant period of time.

53. Pursuant to my observations above, I take the view that in the absence of separate fee arrangements being agreed, the Retainer’s provisions regarding interest apply only to work carried out under the Retainer. However, as I have dismissed the Claimant’s Claim for payment of Retainer Invoices PF20160202 and PF20160302 (see paragraphs 15 – 19 above), there is no interest to be awarded under them.

54.The Claimant should not benefit from its failure to review the agreement regularly or agree separate fee arrangements as it undertook to do so in the Retainer and which may have avoided aspects of this dispute arising at all. Therefore, invoices relating to work falling outside of the scope of the Retainer shall be charged at the standard firm rates but shall not accrue interest.

Counterclaim

55. The Defendant’s Counterclaim is based on the alleged negligence of the Defendant. The Counterclaim seeks to recover damages in relation to the Claimant’s advice regarding the jurisdiction clause in the BTA which the Defendant suggests is an employment agreement between the Defendant and Hanrika Inc. The Defendant submits that the Defendant failed to advise or include a clause opting into the jurisdiction of the SCT which has resulted in the BTA case for payment of staff entitlements, including salaries, being referred from the SCT to the CFI rather than being dealt with by the SCT.

56. The Defendant is seeking:

(i) Reimbursement of the SCT filing fee (USD 15,442.56) in respect of the BTA case;

(ii) Reimbursement of the CFI filing fee (USD 23,163.40) in respect of the BTA case; and

(iii) Anticipated legal fees (USD 48,060.14), which are argued to be significantly more than they would had the case been dealt with by the SCT.

57. In order to prove its Counterclaim, the Defendant must show that the Claimant has been negligent in breaching a duty of care owed by it to the Defendant, which has resulted in damage to the Defendant.

58. Although I understand the arguments made by the Defendant in pursuit of its Counterclaim, I am inclined to dismiss it summarily for the following reason. Even if the Defendant was able to prove that the Claimant had been negligent in breaching a duty of care owed to it, I am not satisfied that it has demonstrated that it has suffered any loss as a consequence. The BTA case has not been concluded and therefore, it remains to be seen whether or not the Defendant is successful in its case and there is a distinct possibility that if it is, the SCT and CFI filing fees together with all legal fees incurred by the Defendant shall be recoverable from the losing party.

59. As I have found there to be no actual damage suffered at this time, the Counterclaim shall be dismissed. However, I make no determination regarding the alleged negligence of the Claimant.

Conclusion

60. The Defendant shall pay the Claimant AED 337,422.29 with respect to the following unpaid invoices:

Invoice Date Value (AED)
11225 2 Feb 2016 3,039.78
11302 2 March 2016 1,932.50
11304 2 March 2016 64,655.00
11362 4 April 2016 8,400.00
11400 4 May 2016 95.66
11447 2 June 2016 2,550.00
11495 5 July 2016 29,690.00
11496 5 July 2016 6,042.50
11535 2 August 2016 1,597.50
11597 1 September 2016 39,507.50
11631 1 October 2016 20,240.00
11657 1 October 2016 23,630.00
11683 19 October 2016 72,936.85
11692 1 November 2016 20,242.50
11713 1 November 2016 5,827.50
11818 31 December 2016 25,352.50
11945 6 March 2017 6,322.50
12013 5 April 2017 5,360.00
TOTAL 337,422.29

61. The Counterclaim is dismissed.

62. The Defendant shall reimburse the Claimant’s Court Fee.

 

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 17 December 2017

At: 3pm

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