August 30, 2018 court of first instance - Orders
Claim No: CFI-018-2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
STANDARD CHARTERED BANK
Respondent / Claimant
(1) FAL OIL COMPANY LIMITED
(2) INVESTMENT GROUP PRIVATE LIMITED
Appellants / Defendants
ORDER WITH REASONS OF JUSTICE TUN ZAKI AZMI
UPON reviewing the Appellants’ Notice incorporating Application for Permission to Appeal and supporting documents dated 2 July 2018;
AND UPON reviewing the Respondent / Claimant’s Response and supporting documents dated 23 July 2018;
AND UPON reviewing the relevant documents in the case file;
IT IS HEREBY ORDERED THAT:
1. Permission to Appeal pursuant to Rule 44.6 of the Rules of the DIFC Courts against the Order of Justice Omar Al Muhairi dated 11 June 2018 is denied.
2. The Defendants shall pay the Claimant’s costs of the appeal on the standard basis, to be assessed by the Registrar if not agreed.
Ayesha Bin Kalban
Date of issue: 30 August 2018
SCHEDULE OF REASONS
1. This is an Application for Permission to Appeal against the Order of the learned Judge at first instance, His Excellency Justice Omar Al Muhairi dated 11 June 2018. That Order had the effect of:
a. Rejecting the Defendants’ application to set aside the alternative service order to serve the claim by email; and
b. rejecting the Applicant’s application to challenge the jurisdiction of the DIFC Courts;
2. The Appellant’s Application for Permission to Appeal was dated 2 July 2018 and made pursuant to RDC 44.6.
3. RDC 44.19 provides that permission to appeal may be given only where the lower court or the Court of Appeal, as the case may be, considers that:
a. the appeal would have a real prospect of success; or
b. there is some other compelling reason why the appeal should be heard.
4. These requirements have been interpreted to mean that an appellant must show that the decision of the learned Judge was either wrong or unjust because of procedure or other irregularity of the proceeding at the Court of the First Instance. The English Courts have in fact construed that the decision of the Court from which the appeal is sought must be shown to be ‘plainly wrong’ or ‘wholly wrong’ especially in respect of finding of fact or exercise of discretion. It is a well-established principle that appellate courts are reluctant to review the finding of facts by a trial Judge (see Aldi Stores Limited v WSP Group Plc & Ors  EWCA Civ 1260).
Alternative Service Order
5. According to the schedule of reasons of the learned Judge, the Respondent, Standard Chartered Bank sought payment of certain sums owing to the Respondent by the Appellants, Fal Oil Company Limited and Investment Group Private Limited, pursuant to five financial facilities agreements. Attempts to serve the claim on the Appellants pursuant to the procedures provided for in Sharjah by the Sharjah Court were unsuccessful. From the Sharjah Courts’ Bailiff statement, the Appellants’ secretary refused to receive the service documents. Hence, the Judge decided to allow service by email. According to the learned Judge, there was no dispute that the email was received by the Appellants, (per para 28 to the schedule of reasons) which the learned Judge accepted as a finding of fact. It was also shown that the Appellants had read email receipts from the Respondent not long before the application for the Alternative Service Order was made (per para 31 to the schedule of reasons).
6. The Appellants, on the other hand, submitted that certain procedures were not complied with and a copy of the relevant application notice was not served on them. The Judge ruled that these were merely procedural omissions which were not substantive and which could be remedied. The Judge had also set out his reasons on this issue in paragraphs 47,48, 49 and 50 of his schedule of reasons.
7. In my opinion, the Judge had considered the relevant facts and submissions by both parties on this issue and the appeal, were permission to be granted, would not have a real prospect of success. I also do not find any compelling reasons in respect of this issue for permission to appeal to be granted.
DIFC Courts’ Jurisdiction
8. The Appellant sought to challenge the jurisdiction of DIFC Courts over this case. This was resisted by the Respondent. The learned Judge considered the submissions of both parties on this issue and was persuaded by the Respondent’s arguments. The Respondent argued that the DIFC Courts have exclusive jurisdiction over this claim under Article 5(A)(1)(a) of the judicial authority law on the grounds that the Respondent is a DIFC Establishment, which in fact was not denied by the Appellants. The learned Judge relied on Corinth Pipeworks SA v Barclays Bank PLC  DIFC CA 002.
9. The Appellants, on the other hand, sought to distinguish Corinth Pipeworks SA v Barclays Bank PLC  DIFC CA 002 on the ground that it was decided under Dubai Law No. 12 of 2004, Judicial Authority Law (“JAL”) as unamended at that time, and that under the existing JAL, the DIFC Courts would not have jurisdiction over this claim. The Appellants submitted that the DIFC Courts lacked jurisdiction and applied pursuant to RDC 12.1 contesting jurisdiction as none of the provisions of JAL applied to this Claim. It was argued that as there was then no opt-out provision in the JAL as it stood, it was not possible to opt-out from the DIFC Courts jurisdiction. The Appellant further argued that the doctrine of forum non conveniens has been found not to apply between the Dubai Courts and DIFC Courts since there are other courts such as The Union Supreme Court as well as the Joint Judicial Committee which has been formed to adjudicate issues of forum non conveniens between the two courts. On these issues, the Judge decided that the DIFC Courts would indeed have jurisdiction to hear this case pursuant to the JAL as amended, and that the amendments to the JAL apply with retrospective effect.
10. It was further argued that there is jurisdiction pursuant to Article 5(A)(1)(b) of the JAL as the agreements between the parties were at least partially concluded, finalised or performed within the DIFC. Certain of the relevant agreements were signed by the Respondents in DIFC and certain agreements and guarantees were performed in DIFC. The Appellant argued otherwise. The learned Judge accepted as factual finding the claims by the Respondent and rejected the Appellants’ evidence.
11. Again, on this issue of the Appellants’ challenge on the jurisdiction of DIFC Courts, for reasons which the Judge had stated in his schedule of reasons, I am of the view there is no real prospect of success of the appeal, should permission be granted, nor is there any compelling reason that the appeal should be heard.
12. It follows therefore that I should make the following orders:
a. The Application for Permission to Appeal is denied with costs.
b. The Defendants shall pay the Claimant’s costs of the appeal on the standard basis, to be assessed by the Registrar if not agreed.