November 28, 2022 COURT OF APPEAL - JUDGMENTS
Claim No: CA 007/2022
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 CHIEF JUSTICE ZAKI AZMI, H.E. JUSTICE SHAMLAN AL SAWALEHI AND JUSTICE SIR PETER GROSS
LARA BASEM MUSA KHOURY
MASHREQ BANK PSC
JUDGMENT OF THE COURT OF APPEAL
|Hearing :||20 October 2022|
|Counsel :||Mr PV Sheheen instructed by Bestwins Law Corporation for the Appellant
Mr Tom Montagu-Smith KC instructed by Al Tamimi and Company for the respondent
|Judgment :||28 November 2022|
UPON hearing Counsel for the Appellant and Respondent at the hearing on 20 October 2022
AND UPON reading the submissions and relevant documents on the Court file
IT IS HEREBY ORDERED THAT:
1. The Appeal be dismissed.
2. The Appellant must pay the Respondent’s costs of the appeal, to be assessed by the Registrar on the standard basis if not agreed.
Ayesha Bin Kalban
Date of Issue: 28 November 2022
1. The Appellant (“Ms Khoury”) appeals the Order with Reasons of Justice Lord Angus Glennie given in the DIFC Court of First Instance, dated 29 March 2022 (“the Judge” and “the Judgment”), whereby the Judge:
(1) Set aside service of the Claim Form on the ground that Ms Khoury had served it out of time (“the Service Issue”); and
(2) Dismissed the claim on the ground that the DIFC Court had no jurisdiction, holding that there was no “opt-in” agreement under Art. 5(A)(2) of the Judicial Authority Law (Law No. 12 of 2004) (“the JAL”) (“the Jurisdiction Issue”).
2. By his Order with Reasons dated 29 April 2022 (“the Permission Judgment”), the Judge refused permission to appeal. Subsequently, the Court of Appeal granted Ms Khoury permission to appeal.
3. Ms Khoury submits that this Court should set aside the Judgment and should instead order that her claim be heard on the merits before the DIFC Court. The Respondent (“the Bank”) invites this Court to dismiss the appeal. Each party seeks an order for costs.
4. We thank Mr Sheheen, who appeared for Ms Khoury, and Mr Montagu-Smith KC and Mr Watson, who appeared for the Bank, for their respective submissions.
5. We gratefully adopt the concise summary of the underlying facts set out in the Judgment:
“2. …[Ms Khoury]…is a customer of the Bank, which is based in onshore Dubai. In this action she advances claims against the Bank under a Master Investment Agreement dated 9 February 2015 (the ‘Agreement’). Her claim in this action is for damages in the sum of US$5,998,935.67. She alleges, in short, that the Bank negligently advised her to subscribe for loss-making investments and that she suffered loss and damage as a result. That claim is disputed by the Bank, which contends that the Claimant’s account with it was simply an execution-only account, under which the Bank did not offer advice but simply executed instructions from the Claimant. The merits of the dispute are not in issue at this stage and I need say no more about them.”
The merits are no more in issue on this Appeal than they were before the Judge, so that we too say no more of them.
6. As the Judge went on to note (Judgment, at  –  and ), Ms Khoury had previously proceeded against the Bank in the onshore Dubai Court. As was common ground, in substance that claim was identical to the claim now pursued in the DIFC Court. At some stage, Ms Khoury sought to withdraw her claim before the Dubai Court, but this was opposed by the Bank and the Court refused to allow her to do so. At all events, on 28 April 2021, the Dubai Court gave judgment dismissing her claim. As we understand it, Ms Khoury appealed to the onshore Dubai Court of Appeal from that judgment. The Dubai Court of Appeal granted a stay of proceedings in onshore Dubai and therefore of Ms Khoury’s appeal from the first instance Dubai judgment. Further, a reference was made to the Joint Judicial Committee (“the JJC”), a matter to which we return later, albeit only for completeness.
7. Also on 28 April 2021, the date of the first instance Dubai Court judgment, adverse to Ms Khoury’s claim, Ms Khoury issued this claim in the Court of First Instance (“CFI”) of the DIFC Courts. When determining whether the Claim Form was served on the Bank within the time permitted by the DIFC Courts’ Rules of Court (“RDC”), time starts running from 28 April 2021.
8. For completeness, in 2021, Ms Khoury obtained a default judgment from the DIFC Court of First Instance but that was set aside on the ground that the Claim Form had not been properly served. Nothing now turns on that and no more need be said of it.
9. Two principal Issues arise on this Appeal, namely:
(I) Was the Claim Form served within the time period allowed? (“the Service Issue”);
(II) Does the DIFC Court have jurisdiction in respect of Ms Khoury’s claim? (“the Jurisdiction Issue”).
It will be apparent that for Ms Khoury to succeed, she needs to succeed on both these Issues. Failure on either Issue is fatal to the Appeal.
(I) THE SERVICE ISSUE
10. The Service Issue may itself conveniently be considered under the following headings:
(1) What is the time period permitted for serving the Claim Form?
(2) When was the Claim Form served?
(3) What was the deemed date of service of the Claim Form?
(4) In the event that the Claim Form was served outside the time period permitted for service, is there a freestanding test of reasonableness?
11. Before turning to each of these headings, the briefest focus on the chronological context may be helpful. The importance of 28 April 2021 has already been underlined; time started running from that date. On 26 August 2021, Ms Khoury’s lawyers passed the Claim Form to a courier, Aramex. That was shortly before the expiry, on 28 August of a period of 4 months from the date of the issue of the Claim Form. There is a disputed question of fact as to whether service (putting it neutrally, given the dispute as to whether there was valid service) took place on Saturday 28 August 2021 or whether the Claim Form was delivered to the Bank’s headquarters in onshore Dubai on Sunday 29 August 2021. If the relevant period for serving the Claim Form was 4 months, then, subject to the deeming provision (see below) service on 28 August would be in time but service on 29 August would be out of time. There is a further issue as to whether this question of fact matters in the light of the deeming provision contained in the RDC.
(B) What is the time period permitted for serving the Claim Form?
12. RDC 7.20 provides as follows:
“After a claim form has been issued, it must be served on the defendant by the claimant:
(a) within 4 months after the date of issue where the claim form is to be served within the DIFC or Dubai; and
(b) within 6 months after the date of issue where the claim form is to be served out of the DIFC or Dubai.”
(1) The decision of the Judge
13. The Judge expressed the view that the language of RDC 7.20 was not altogether free from ambiguity (at ). Surveying the RDC more widely, he produced this helpful summary:
“Nor is its [i.e., RDC 7.20] meaning clarified by definitions of the relevant terms in the Schedule to RDC Part 2. The definition of DIFC is straightforward: it means The Dubai International Financial Centre. There is a definition of ‘The Emirate’ as meaning the Emirate of Dubai, but no definition of ‘Dubai’, leaving open the possibility that it means ‘onshore’ Dubai…as opposed to the Emirate as a whole. It is of interest to note that the expressions ‘inside’/ ‘within’ or ‘outside’/ ‘out of’ ‘the DIFC or Dubai’ appear in other places in the RDC, specifically in Part 9 (Service) and Rules 9.46 – 9.59; while the expression ‘the DIFC and Dubai’ appears in Rules 9.63 – 9.65.”
14. That survey led the Judge to the following conclusion (ibid):
“The clear impression given by the use of these expressions in the particular context in which they appear is that the expression ‘the DIFC or Dubai’ is used to denote a single geopolitical entity, possibly co-extensive with ‘The Emirate’ as defined in the Schedule to RDC Part 2, so that service within ‘the DIFC or Dubai’ is contrasted with service outwith ‘the DIFC or Dubai’, and that service within the DIFC or Dubai is subject in places to different requirements from service elsewhere.”
15. The Judge noted (at ) the objection raised on behalf of Ms Khoury that this construction involved reading the word ‘or’ conjunctively – as though it was ‘and’ – whereas its natural meaning was disjunctive. He acknowledged there was some force in that argument but observed “…it is well recognised that the word ‘or’ can be read conjunctively (i.e., as meaning ‘and’) in cases where to read it disjunctively would lead to an ‘unintelligible or absurd result’…”. A disjunctive reading here would produce an absurd result because it would result in the application of two inconsistent time limits for service of a claim form in onshore Dubai (ibid):
“If the Claimant is correct, there are in fact two separate but overlapping time limits for serving the claim form on a Defendant in onshore Dubai in a case such as this. Service of the claim form in Dubai falls within sub-para (a) because it is service ‘within…Dubai’, albeit that it is service outwith the DIFC, with the result that the 4 month time limit for service applies. But service of the claim form in onshore Dubai also falls within sub-para (b) because it is service ‘out of the DIFC’, albeit within Dubai, with the result that the 6 month time limit applies.”
This absurdity was avoided (ibid) if the word “or” in RDC 7.20 was read conjunctively:
“Put another way, the clear intent of the Rule is to set two different time periods within which a claim form must be served depending on whether service is to be effected within DIFC/Dubai or outwith DIFC/ Dubai. In the present case the claim form was to be served on the Defendant in (onshore) Dubai. The case falls within Rule 7.20(a).”
16. For these reasons, the Judge concluded (at ) that the case fell within RDC 7.20(a) and that the Claim Form had to be served within 4 months after the date of issue, i.e., by 28 August 2021. The Judge had not been deflected from that conclusion by the authorities cited on behalf of Ms Khoury (at  – ).
(2) The rival cases
17. For Ms Khoury, Mr Sheheen submitted that the Bank’s case and the Judge’s Judgment rested on reading “or” in RDC 7.20 as “and”. The Judge had fallen into error. Such a construction amounted to impermissible amendment of the legislation. The Bank, with its headquarters in onshore Dubai was within the category of those “out of the DIFC or Dubai” so that Ms Khoury was allowed 6 months within which to serve the Claim Form.
18. In his skeleton argument Mr Sheheen further complained that the Claim Form had been struck out on “mere hyper-technicalities… without the actual facts and circumstances of the Claim being heard”. We return later to this contention.
19. For the Bank, Mr Montagu-Smith KC submitted that the Judge’s analysis was correct and his decision should be upheld. RDC 7.20 provided a “binary regime”: four months to serve anyone within the DIFC or Dubai and six months to serve anyone outside the DIFC or Dubai (i.e., outside the Emirate).
(3) Discussion and conclusions:
20. We have no doubt that the Judge was right for the reasons he gave. As the Judge explained, if Ms Khoury’s construction of RDC 7.20 was correct, and if “or” in RDC 7.20 was read disjunctively throughout, a claim form to be served in Dubai would be subject to both a 4 months’ time limit, under RDC 7.20(a), and a 6 months’ time limit under RDC 7.20(b). That would be absurd. It follows that “or” in RDC 7.20 is to be read conjunctively, effectively meaning “and”, thereby avoiding the absurdity. Such a construction is permissible to avoid unintelligible or absurd results as would otherwise be the case here. In Federal Steam Navigation Co v Department of Trade and Industry  1 WLR 505, Lord Salmon said this, at p. 524 A-B:
“There is certainly no doubt that generally it is assumed that "or" is A intended to be used disjunctively and the word "and " conjunctively. Nevertheless, it is equally well settled that if so to construe those words leads to an unintelligible or absurd result, the courts will read the word "or " conjunctively and "and" disjunctively, as the case may be; or, to put it another way, substitute the one word for the other.”
21. The upshot is that this matter came within RDC 7.20(a), reflecting the “binary regime” (Mr Montagu-Smith’s wording): four months to serve anyone within the DIFC or Dubai under RDC 7.20(a) and six months to serve anyone outside the DIFC or Dubai (i.e., outside the Emirate) under RDC 7.20(b).
22. Such a division makes good practical – as well as linguistic – sense, contrasting the requirements for service within the “geopolitical entity” (Judgment, at ) or geographical area comprised of the DIFC and Dubai, with different requirements for service out of that entity or area. The drafters of the RDC decided to allow more time for service of a claim form if the service was going to be outside the two areas of Dubai and the DIFC. We keep in mind that the DIFC is enclosed and surrounded by the other areas of Dubai; the two are only separated jurisdictionally.
23. For completeness, Mr Sheheen referred to a number of DIFC authorities. With respect, we do not think they provide any assistance whatever and it is unnecessary to add anything to the Judge’s reasons (at  –  of the Judgment) for treating them in this way.
24. Accordingly, Ms Khoury had 4 months from 28 April 2021 to serve the Claim Form. We turn to the next question: did she succeed in doing so?
(C) When was the Claim Form served?
25. We address here the issue of fact, namely, whether the Claim Form was served on 28 August (within time, subject to the deeming provision in the RDC) or 29 August (out of time).
(1) The decision of the Judge:
26. As the Judge observed (Judgment, at ), the evidence of the factual dispute was in a short compass. He did not hear oral evidence but was asked to form a view based on the documentary evidence filed in Court. Before the Judge, there were only two documents relevant to this issue.
27. The first, was a “Shipment Summary” produced by the courier, Aramex. The heading suggests shipment of the Claim Form from Abu Dhabi on Thursday 26 August, arriving in Dubai on Saturday 28 August. In passing and as explained by the Judge (at ) that 28 August was a Saturday made no difference. The detailed history, “Where your shipment has been” showed:
“…collection of the shipment (presumably the Claim Form) from the shipper (the Claimant) in Abu Dhabi at 06:05 pm UAE time on 26 August, receipt of the shipment at the Aramex sorting facility at AUH Khalidiya OPS some 50 minutes later, arrival of the shipment at Aramex destination facility, Rashidiya Branch, early in the morning of 27 August, the shipment being ‘out for delivery’ at Aramex Umm Ramool by 08:01 am on 28 August, followed by an entry timed at 09:23 am on 28 August stating ‘Shipment delivered Michael’ also at Aramex Umm Rasool.”
The Judge observed that this last entry was difficult to understand but:
“…may show simply that the courier (possibly called Michael) collected the shipment at that time from the Aramex depot at Umm Rasool; it does not on its face suggest that that was the time of the delivery to the recipient (the Defendant) at its business address in Dubai.”
28. The Judge contrasted the Shipment Summary with the second document before him, an Aramex delivery slip or “Domestic Waybill”. On its face, the Domestic Waybill showed:
“…shipment by the Claimant’s lawyers (Bestwins Law Corporation) in Abu Dhabi on 26 August on 26 August 2021, addressed to the Defendant’s legal department at the Defendant’s address in Dubai with a signature apparently from someone at the Defendant’s office…[appearing to show]…that the document was received at the Defendant’s office at 3:30 on 29 August 2021 (’29 08 21’).”
29. The Judge found the signed Domestic Waybill “compelling” (at ). It bore the signature of the recipient and the date of receipt. Contrastingly, the Shipment Summary did not appear to record the time or date at which the document was actually delivered to the Bank’s business address in Dubai. The Judge held (ibid) that the Claim Form was in fact served on the Bank on 29 August 2021, one day later than the time permitted under RDC 7.20.
(2) The rival cases:
30. For Ms Khoury, Mr Sheheen maintained that service was effected on 28 August 2021, as confirmed by the Shipment Summary; “shipment delivered Michael” could only be construed as the shipment delivered to the addressee by Michael. Moreover, by reference to the Shipment Summary in respect of papers served for this Appeal, the wording as to Michael looked like standard form wording. As to the Domestic Waybill and the handwritten date of delivery, there was “every possibility of an error/mistake or even a manipulation being made in the date, while writing the same or afterwards”. A handwritten date of delivery was not as conclusive as an electronic document recording and tracking the movement of the shipment. Accordingly, the Judge had erred in preferring the Domestic Waybill to the Shipment Summary.
31. For the Bank, Mr Montagu-Smith submitted that there was no basis for disturbing the Judge’s conclusion. Ms Khoury had served no evidence from anyone involved in the delivery of the Claim Form. The suggestion of error in the written indorsement on the Domestic Waybill was pure speculation. As to the suggestion of possible manipulation, there had been no case of forgery in the Court below, so that any such contention amounted to an improper allegation of fraud by insinuation on appeal, unsupported by any evidence. The Domestic Waybill could not be explained if in fact service had taken place on 28 August. In any event, service on 29 August (Sunday then being a working day in the UAE) was more likely than service on (Saturday) 28 August – at the time a day of the week when the Bank’s headquarters could be expected to be closed.
(3) Discussion and conclusions:
32. In our judgment, there is no good reason to disturb the Judge’s conclusion on this topic. Our reasons are these.
33. First, the question is purely one of fact. Admittedly, the Judge reached his conclusion based on the documents before him, rather than on a consideration of oral evidence. Even so, however, it was for the Judge to evaluate the evidence and it would not be right for this Court to interfere unless we were persuaded that he was wrong to reach the conclusion he did. We are not persuaded.
34. Secondly, the Shipment Summary suffers from the obvious difficulties that it is “difficult to understand” (as the Judge observed at ) and, moreover, that it does not contain a statement saying that the documents had reached the Bank’s premises. By contrast, the Domestic Waybill is unequivocal as to the delivery date - and cannot be explained if the Judge was wrong. Against this background, the conclusion to which the Judge came was amply open to him and, for that matter, is one with which we agree. If Ms Khoury wished to go beyond the documents, it was open to her to call evidence as to the actual delivery, but she did not do so. The party who asserts has to prove.
35. Thirdly, there is no foundation for the efforts by Mr Sheheen to undermine the Domestic Waybill. The suggestion that the statement on the face of the Domestic Waybill as to the delivery date may have been mistaken amounts to no more than speculation. The submission that the statement as to the delivery date may have involved “manipulation” is no less than an insinuation of forgery or fraud, lacking any basis whatever. With respect, that submission should not have been made.
36. In agreement with the Judge and insofar as it matters in the light of the deeming provision to which we next turn, we conclude that the Claim Form was served on the Bank on 29 August 2021, thus out of time.
(D) What was the deemed date of service of the Claim Form?
(1) The provision made in the RDC:
37. RDC 9.27 provides, insofar as material:
“A document which is to be served in accordance with these Rules or any relevant Practice Direction shall be considered to be served on the day shown in the following table:
|Method of service||Considered day of service|
|Courier (or an alternative service which provides for delivery on the same or next working day)||The second business day after the date it was sent|
(2) The Judge’s decision:
38. The Judge held (at ) that the Claim Form was sent by courier on Thursday 26 August 2021. At the time, we interpose, neither Friday 27 August, nor Saturday 28 August was a business day. Accordingly, the first business day was Sunday 29 August, and the second business day was Monday 30 August. The Bank contended and the Judge held (at ) that the deemed date of service was Monday 30 August – thus out of time.
39. In coming to his conclusion, the Judge (at ) rejected Ms Khoury’s argument that the deemed (or "considered") day of service was only relevant when the actual date of service could not be ascertained. Instead, the Judge agreed with the Bank that the deemed service provision was designed to introduce a measure of certainty. As the Judge put it (ibid):
“…The deemed service provision can work both ways – it might give a date earlier or later than the actual date on which service was effected – but it would be of little practical benefit if, in cases where time for service is critical, it was open to parties to assert and attempt to prove that service had occurred before or after the deemed date…”
(3) The rival cases:
40. Before us, Mr Sheheen maintained his submission that the deemed service provision should only apply when there was no proof of service. In his words, “fiction does not trump reality”. He further questioned whether the deemed service provision was applicable to service (as here) in onshore Dubai rather than within the DIFC Authority area.
41. For the Bank, Mr Montagu-Smith submitted that the Judge correctly held that it was not open to Ms Khoury to adduce evidence to rebut the deemed day of service. In this regard, having submitted that RDC 9.27 was based on the English CPR 6.14 (and its predecessor, CPR 6.7), he relied on the White Book and English law authorities there cited (to which we return). Furthermore, there was nothing in Mr Sheheen’s “new point” that the deeming provision did not apply because service was to take place in onshore Dubai rather than the DIFC Area.
(4) Discussion and conclusions:
42. At first blush, there is some attraction in Mr Sheheen’s submission that fiction should not trump reality, so that the deeming provision ought to be confined to circumstances in which the date of actual service cannot be ascertained. On reflection, however, we are persuaded that cannot be right. The object of the deeming provision – which, as the Judge observed (at ), can work either way producing an earlier or later date of service than the date of actual service – is to provide certainty. Such certainty would be undermined if the parties were free to adduce evidence contradicting the deemed date of service. Further, a presumption as to the deemed date of service, irrebuttable by evidence to the contrary, is fair to both parties, obviating the need to establish the actual date of delivery and protecting the parties from the risk of delay in delivery by the courier. Free of authority, therefore, we conclude that it is not open to either party to adduce evidence in order to rebut the deemed date of service.
43. This conclusion is, in the event, reinforced by English authority. We accept Mr Montagu-Smith’s submission that RDC 9.27 is based on the corresponding provision in the (English) CPR, so that English authority is relevant and persuasive. The summary in the White Book commentary to CPR 6.14.1 is compelling:
“In the interests of certainty, a deemed day is not rebuttable by evidence of actual receipt of the claim form by the defendant on a day before or after the deemed day (Godwin v Swindon BC  EWCA Civ 641;  1 WLR 997, CA; Anderton v Clwyd CC (No. 2)  EWCA Civ 933;  1 WLR 3174, CA).”
In Anderton v Clwyd (supra), Mummery LJ, at  expressed the matter succinctly:
“Is the deemed day of service of the claim form under rule 6.7 rebuttable by evidence of actual receipt of the claim form by the defendant? In our judgment, it is not.”
We respectfully agree.
44. It follows that the Claim Form is deemed to have been served on 30 August 2021, out of time, provided only that RDC 9.27 is applicable here.
45. Mr Sheheen sought to escape from any such conclusion by contending that the deemed service provision in RDC 9.27 was inapplicable because service was in onshore Dubai rather than in the DIFC Area. Even putting aside Mr Montagu-Smith’s objection that this was a new point, we are unable to accept Mr Sheheen’s argument. Whatever the position might be as to the applicability of the deemed service provision in RDC 9.27 in the case of service outwith both the DIFC and Dubai, we cannot agree that it is inapplicable in respect of service in either the DIFC or Dubai - which, as already discussed, constitutes a single geopolitical entity or geographical area – and is treated as such in the RDC.
46. Accordingly, whether regard is had to either the actual day of service or the deemed day of service under the RDC, the conclusion is that the Claim Form was served out of time.
(E) In the event that the Claim Form was served outside the time period permitted for service, is there a freestanding test of reasonableness?
(1) The provisions of the RDC:
47. At RDC 7.21 – 7.25, the Rules deal in terms with extending time for service of a claim form. RDC 7.22 provides the general rule that an application for such an extension is to be made within the period for serving the claim form specified by RDC 7.20. If, however, the application for an extension of time is made after the expiry of the period for serving the claim form, then the matter is governed by RDC 7.23. In these circumstances and insofar as here relevant, the Court may “only” extend time if:
(2) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and
(3) … the claimant has acted promptly in making the application.”
(2) The Judge’s decision:
48. At  of the Judgment, the Judge recorded the argument on behalf of Ms Khoury that a test of reasonableness should be applied; service had only been effected one day late and it would be unreasonable or disproportionate to rule that so short a delay prevented the action from proceeding. The Judge was unimpressed. He distinguished between taking account of reasonableness in the Court’s exercise of an open-ended discretion and the position prevailing in respect of RDC 7.21 – 7.25. Here (ibid):
“…in the present case the question of reasonableness is built into the RDC at Rules 7.21 – 7.25. These Rules contain detailed provisions allowing the Claimant to apply for an extension of time for serving the Claim Form. They are very stringent…. There is no further room for a separate consideration of reasonableness. No application for an extension of time has been made by the Claimant under tehe Rules, nor could any such application possibly succeed in this case.”
(3) The rival cases:
49. Mr Sheheen in large measure repeated the arguments which had not found favour before the Judge: the delay was no more than 1 or 2 days; it would be wrong or disproportionate to shut out the claim in those circumstances. Additionally, he asserted, without adducing any evidence, that the late service was attributable to a belief that the Claimant had 6 months (rather than 4 months) to serve the Claim Form.
50. Mr Montagu-Smith underlined that there was, even now, no application for a retrospective extension of time. Ms Khoury’s case on this point depended on some freestanding principle of reasonableness. The DIFC authorities to which Mr Sheheen had referred did not advance the matter (concerned as they were with open-ended discretions). By contrast, the English authorities lent no support whatever to any such freestanding principle. General provisions permitting extensions of time in the (English) CPR could not be relied upon to override specific limitation on applications for extensions of time; given the need to guard against excessive costs and delay, there was nothing unjust in the existence of strict time limits, especially where service of a claim form had been left to the last-minute: see, Vinos v Marks & Spencer plc  3 All ER 784, esp., at  and  – ; Ideal Shopping Direct Ltd v Mastercard Inc  EWCA Civ 14;  1 WLR 1541, esp., at  – .
(4) Discussion and conclusions:
51. We agree with Mr Montagu-Smith and are unable to accept Mr Sheheen’s submissions. In this context, we do not think there is room for any freestanding principle of reasonableness for which he contends. Our reasons are these.
52. First, in the absence of evidence, counsel’s assertion that service was delayed because of a mistaken belief that Ms Khoury had 6 months to serve the Claim Form is not entitled to any weight. If a point of this nature was to be made, it should have been supported by evidence. It follows that service of the Claim Form was left to the last-minute without any explanation before the Court as to why this was so.
53. Secondly, the obvious course for Ms Khoury to have taken if something had gone wrong in serving the Claim Form, was to seek an extension of time under RDC 7.22 (if sought during the currency of the period for service) or 7.23 (if sought once the period for service had expired). However, for any such application to stand a prospect of success it would need to have satisfied the conditions in those Rules. Notably, the requisite conditions in RDC 7.23 (set out above) are strict. In the absence of any explanation or prompt application, any application by Ms Khoury under RDC 7.23 was doomed to fail.
54. Thirdly, if unable to meet the specific conditions applicable in this context for an extension of time, there is no room for recourse to any freestanding principle of reasonableness. Were such a course open to a party who had failed to comply with the applicable time limit, the time limit provision would be gravely undermined. The DIFC authorities to which Mr Sheheen referred, noted by the Judge, do not therefore assist his argument.
55. Fourthly, as observed in the English authorities to which Mr Montagu-Smith drew our attention, there is nothing unjust in the application of a strict time limit in a case such as this where, wholly unexplained, service of the Claim Form had been left to the last-minute. The policy objective of such limits is to guard against cost and delay in a failure (without good reason) to comply with the time periods for service of the Claim Form and making progress with the claim. Necessarily, if a time limit does bring a claim to a halt, it will not have been decided on the merits; it does not at all follow that there has been any injustice, nor that the claim has failed for “hyper-technicality” (to use Mr Sheheen’s expression). The safety valve is found in the RDC providing for applications to extend time but, as already discussed, those could not have availed Ms Khoury here. On the facts of this case, Ms Khoury has no one to blame but herself or her lawyers (it matters not whom for present purposes) for not getting on with service of the Claim Form.
Overall Conclusion on the Service Issue
56. For the reasons given, the Claim Form was not served within the time allowed under the RDC. There is no application to extend time nor any basis for doing so. It follows that Ms Khoury’s appeal on this Issue must be dismissed and the Claim Form set aside, a conclusion fatal to the outcome of this Appeal as a whole. However, because an adverse conclusion on the Service Issue alone would not (necessarily) preclude Ms Khoury commencing fresh proceedings, we, like the Judge, consider it necessary to go on to decide the Jurisdiction Issue.
II. THE JURISDICTION ISSUE
57. This Issue goes to the DIFC Court’s jurisdiction to entertain Ms Khoury’s claim and is to be considered wholly separately from the Service Issue. Essentially, the relevant jurisdictional gateway is Art. 5(A)(2) of the Judicial Authority Law, Law No. 12 of 2004 (“the JAL”) and the principal question which arises is whether, on its true construction, Cl. 22 of the Master Investment Agreement dated 9 February 2015 (“the Agreement”) amounts to an “opt-in” agreement bringing Ms Khoury’s claim within the jurisdiction of the DIFC Court.
58. Art. 5(A)(2) of the JAL is in these terms:
“The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”
59. Cl. 22 of the Agreement addresses the applicable law and jurisdiction and provides as follows:
“22.1 This Agreement shall be governed by, and be construed in accordance with, the laws of the Dubai International Financial Centre (‘DIFC’). The Client agrees, for the benefit of the Bank, that any legal action or proceedings arising out of or in connection with this Agreement against it or any of its assets may be brought in the relevant courts of the DIFC.
22.2 The Client irrevocably and unconditionally submits to the jurisdiction of the relevant courts of the DIFC. The submission to such Jurisdiction shall not (and shall not be construed so as to) limit the right of the Bank to take proceedings against the Client in the courts of any other competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.”
(B) The decision of the Judge:
60. The Judge (at ) underlined the “asymmetric” nature of cll. 22.1 and 22.2 of the Agreement. Ms Khoury had agreed that claims against her may be brought in the DIFC Courts; the Bank, however, had made no reciprocal agreement that claims by Ms Khoury against the Bank could be brought in the DIFC Courts. It followed that:
“…Article 5(A)(2) of the JAL does not provide a solid basis for conferring jurisdiction on the courts of the DIFC, for the simple reason that the parties have not agreed that claims by Ms Khoury against the Bank can be brought within those courts.”
The Judge, for this and other (more peripheral) reasons, accepted (at ) the Bank’s argument that the DIFC Courts did not have jurisdiction over Mr Khoury’s claims against the Bank in this action.
(C) The rival cases:
61. Mr Sheheen submitted that, as was common ground and expressly set out in cl. 22, the Agreement was governed by DIFC law. Although he accepted that the governing law provision alone did not suffice to confer jurisdiction on the DIFC Courts, it served to guide the interpretation of cl. 22, which was to be “harmoniously” interpreted. Although the provisions in cl. 22 as to worldwide jurisdiction were asymmetric, the remainder of the clause was applicable to both parties. As to the wording and grammar of cl. 22.1, Mr Sheheen’s key contention was that the word “it” meant “the Bank”, not Ms Khoury; the pronoun connected to the noun immediately preceding it. Cl. 22.2 could not be read as providing for one way traffic. Unless his construction was well-founded, cl. 22 would mean that “…while the Respondent is free to approach any court, including DIFC Court, to initiate proceedings against the Appellant or her assets, the Agreement is completely silent on the Appellant’s rights and the Appellant is left without any legal remedy.” Accordingly, cl. 22 was to be interpreted as an “opt-in” clause, so that the DIFC Courts had jurisdiction pursuant to Art. 5(A)(2) of the JAL.
62. Mr Montagu-Smith maintained that cl. 22.1 of the Agreement did not constitute an opt-in agreement. It was to be underlined that Art. 5(A)(2) of the JAL required an agreement by both parties to bring the particular claim in the DIFC Courts; specific, clear and express provisions to this effect were required but were absent here. There had been no agreement between the parties that claims brought by Ms Khoury could be brought in the DIFC Courts. The governing law of the Agreement was not determinative of the choice of jurisdiction: Goel v Credit Suisse (Switzerland) Ltd  DIFC CA 002 (26 Apr 2021), at . Unlike the English Courts, the DIFC Courts do not have jurisdiction simply by reason of the choice of law. Furthermore, as cl. 22 contemplated a variety of fora, no guidance as to its interpretation was available from the governing law. Mr Montagu-Smith averred that cl. 22 was indeed an asymmetric clause, common in the finance industry for several decades. It would be “disappointing” if the DIFC did not recognise and support such clauses, where justified, as here, by the language of the agreement. The purpose of cl. 22 was to give the Bank certainty; it could sue Ms Khoury in whichever court would take jurisdiction but would always be able to sue her in the DIFC if it so chose (and Ms Khoury could not object to being sued in the DIFC Court). Ms Khoury was not submitting to being sued in any court anywhere; her submission related only to the DIFC Court. Nor was Ms Khoury left without a jurisdiction in which to sue the Bank – she could sue the Bank in its home court of onshore Dubai, which she had done. Cl. 22.1 was, in terms, a clause for the benefit of the Bank and, as a matter of construction and the structure of the language used, the word “it” referred to Ms Khoury, not the Bank. Mr Montagu-Smith accepted that there was a degree of “belt and braces” in cll. 22.1 and 22.2 on his construction; that was not, however, unusual in commercial contracts.
(D) Discussion and conclusions:
63. Cl. 22 of the Agreement admittedly makes for a degree of disquiet, serving to reflect the imbalance between the comparative market power of banks as contrasted with their customers. It is undoubtedly asymmetric. All that said, such clauses are familiar as a matter of international banking practice and, in part at least, serve a legitimate commercial purpose; it is to be remembered that a bank’s debtors may well be mobile and not tied to any particular jurisdiction. As observed by Cranston J in Commerzbank AG v Pauline Shipping Ltd  EWHC 161 (Comm);  1 WLR 3497, at :
“Asymmetric jurisdiction agreements are a long-established and practical feature of international financial documentation…”
In Etihad Airways PJSC v Flother  EWCA 1707;  QB 303, at , Henderson LJ said this:
“…it is common ground that they [i.e., asymmetric jurisdiction clauses] serve a legitimate commercial purpose…Their aim is to ‘ensure that creditors can always litigate in a debtor's home court, or where its assets are located’, and they ‘also seek to reassure the creditor that it can only be sued in its preferred jurisdiction’…".
In our judgment there is no reason not to uphold a clause of this nature in accordance with its true construction.
64. For Ms Khoury to succeed on the Jurisdiction Issue she needs to bring her claim within Art. 5(A)(2) of the JAL. To do that, she needs to demonstrate an agreement in writing to the DIFC jurisdiction in respect of “such claim or action” (i.e., her claim against the Bank) pursuant to “specific, clear and express” provisions.
65. As is common ground, cl. 22.1 provides that DIFC law is to govern the Agreement. Unfortunately for Ms Khoury and as is also common ground, an agreement to DIFC governing law does not of itself amount to an agreement to the DIFC Courts having jurisdiction in respect of the particular claim in question. Moreover, as cl. 22 must be read as a whole and given that cl. 22.2 contemplates proceedings in a variety of jurisdictions, we are unable to accept that the agreement as to governing law furnishes any guidance to the true construction of cl. 22 regarding the question of jurisdiction. The agreement to which reference is made in the second sentence of cl. 22.1 is expressly stated to be “for the benefit of the Bank”. There plainly is such benefit if and insofar as Ms Khoury agrees that a claim by the Bank against her or her assets arising out of or in connection with the Agreement may be brought in the DIFC Courts. We cannot, however, discern any benefit to the Bank if the agreement goes to claims by Ms Khoury against the Bank or its assets. We conclude without any real hesitation that the word “it” refers to Ms Khoury not the Bank. We are not persuaded that such a construction does any violence to the language or grammar and, in any event, we have no doubt that it best meets the commercial purpose of the clause. Cl. 22.1 accordingly amounts to a one-sided jurisdiction agreement regarding claims by the Bank against Ms Khoury but not vice versa. We are quite unable to spell out of cl. 22.1 any agreement to the DIFC Courts having jurisdiction with regard to Ms Khoury’s claims against the Bank, still less any “specific, clear and express provisions” to such effect. Furthermore, if “it” had been intended to refer to the Bank, it is curious that the wording provides that claims “may” be brought before the DIFC Courts; the word “must” would have been expected. By contrast, if “it” refers to claims against Ms Khoury, then cl. 22.1 is consistent with the scheme of cl. 22.2, to which we next turn.
66. The scheme of cl. 22.2 is clear and does nothing to assist Ms Khoury’s case. The clause contains a submission by Ms Khoury to the DIFC Courts’ jurisdiction but does not limit the Bank’s entitlement to bring proceedings in any other court (worldwide) where it can establish jurisdiction in respect of proceedings against Ms Khoury. In short, Ms Khoury could not challenge the jurisdiction if the Bank proceeded against her in the DIFC Court and the Bank is left free to pursue claims against Ms Khoury in any other court where jurisdiction can be established. The Bank thus “may” bring proceedings against Ms Khoury in the DIFC Courts but is not obliged to do so – a consideration consistent with the view taken (above) as to the true construction of cl. 22.1. Although the provision for Ms Khoury’s submission to the DIFC Courts may be thought cumbersome in the light of her agreement to the DIFC Courts’ jurisdiction in cl. 22.1 (if we are right in our construction of cl. 22.1), we accept Mr Montagu-Smith’s submission that such superfluity is not uncommon in commercial contracts and constitutes no more than a belt and braces approach to drafting.
67. Not without some regret, we conclude that cl. 22, considered as a whole, does not disclose a jurisdiction agreement permitting Ms Khoury to bring her claim against the Bank in the DIFC Courts. Our conclusion is unchanged even assuming (without deciding) that the contra proferentem principle is here applicable and is sought to be applied “against” the Bank; on the wording of the clause, this principle does not advance matters. While understanding the unease that a clause such as cl.22 should be one-sided and that its application to jurisdiction refers only to claims by the Bank against Ms Khoury, what is singularly lacking is an agreement by the Bank that Ms Khoury could bring proceedings against the Bank in the DIFC Court.
68. Before parting from this Issue, in fairness to the Bank we add this. Having faced proceedings in the onshore Dubai Courts brought by Ms Khoury and, on the face of it, having succeeded there in obtaining a judgment in its favour dealing with the merits (regardless of whether or not it is “final”, see below), it is understandable that the Bank has opposed Ms Khoury pursuing a substantively identical claim for a second time in this Court.
69. It must follow that cl.22 of the Agreement does not disclose any opt-in agreement coming within Art. 5(A)(2) of the JAL and that Ms Khoury cannot establish the jurisdiction of the DIFC Court by way of Art. 5(A)(2) route.
70. (E) Remaining matters: For completeness: first, there is, rightly, no suggestion that Art. 5(A)(1) of the JAL is relevant to this Appeal.
71. Secondly, if and insofar as any question arises concerning Art. 5(A)(3) of the JAL, we agree with the Judge (Judgment, at ) that the conclusion reached by him and us as to Art. 5(A)(2) of the JAL is, on any view, fatal to this gateway to jurisdiction whatever the position prevailing with regard to the onshore Dubai court. Art. 5(A)(3) of the JAL is premised on the claim in question “falling within” the jurisdiction of the DIFC Court – the very proposition rejected earlier in respect of Art. 5(A)(2).
72. Thirdly, Art. 5(A)(4) of the JAL provides as follows:
“Notwithstanding Clause (2) of Paragraph (A) of this Article, the Court of First Instance may not hear or determine any civil or commercial claim or action in respect of which a final judgment is rendered by another court.”
Before the Judge, the Bank submitted, on the basis of the onshore Dubai Court’s judgment adverse to Ms Khoury, that Art. 5(A)(4) provided an additional ground for the DIFC Court to decline jurisdiction in respect of Ms Khoury’s claim. In the light of his conclusion on Art. 5(A)(2), it was unnecessary for the Judge to rule on this argument, and he did not do so (Judgment, at  – ). If and insofar as any issue on Art. 5(A)(4) arises before us, we likewise see no need to decide it. Were it otherwise, it would be necessary to form a view on the status of the (onshore) Dubai Court judgment and whether it was “final” or not. It is further unnecessary for us to express any view on the reference to the JJC, whose role it would be to determine any issue of jurisdiction between the courts of the DIFC and those of onshore Dubai. No application was advanced to us by Ms Khoury seeking a stay because of the reference to the JJC. In any event, as is indisputable, if we dismiss the Appeal there will be no conflict between this Court and the Courts of onshore Dubai.
(F) Conclusion on the Jurisdiction Issue:
73. For the reasons given, we dismiss the appeal against the Judge’s Judgment on this Issue as well and conclude that the DIFC Courts do not have jurisdiction to entertain Ms Khoury’s claim.
74. The Appeal is dismissed.
75. Ms Khoury must pay the Bank’s costs of the appeal, to be assessed by the Registrar on the standard basis if not agreed.