September 23, 2022 COURT OF FIRST INSTANCE - ORDERS
Claim No: CFI 033/2017
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
BANKMED (SAL) TRADING IN THE DIFC UNDER THE TRADE NAME BANKMED (DUBAI)
Claimant
and
(1) FAST TELECOM GENERAL TRADING LLC
(2) ALI MOHAMMED SALEM ABU ADAS
(3) MOHAMMED JAWDAT AYESH MUSTAFA AL BARGOUTHI
(4) SAIF SEED SULAIMAN MOHAMED AL MAZROUEI
(5) IBRAHIM SAIF HORMODI
(6) AHMED ABDEL KADER HAMDAN ZAHRAN
Defendants
ORDER WITH REASONS OF THE REGISTRAR NOUR HINEIDI
UPON the Directions of the Registrar Nour Hineidi sent by email on 11 February 2022 (the “Directions Order”)
AND UPON reviewing the Third Defendant’s permission to appeal application dated 4 March 2022 filed against the Directions Order (the “Permission Application”)
IT IS HEREBY ORDERED THAT:
1. The Permission Application is dismissed.
2. There be no order as to costs.
Issued by:
Ayesha Bin Kalban
Deputy Registrar
Date of issue: 23 September 2022
At: 12pm
SCHEDULE OF REASONS
1. The Directions Order of 11 February 2022 is a case management decision of the Court. Pursuant to RDC r.44.27 (Part 44 Amended Appeals), when considering appeals from a case management decision, consideration may be given to the following:
(a) the issue is of sufficient significance to justify the costs of an appeal;
(b) the procedural consequences of an appeal (i.e. loss of trial date) outweigh the significance of the case management decision; and
(c) it would be more convenient to determine the issue at or after trial.
2. Granting the Permission Application would only serve to delay the case further, which would defeat the Third Defendant’s application for immediate judgment filed on 29 June 2021 (the “Immediate Judgment Application”) and would be contrary to the Overriding Objective, in particular, RDC r.1.6(3), r.1.6(4) and r.1.6(5).
3. Even if the broader test for appealing from a decision of the court is applied as set out in RDC r.44.19 (Part 44 Amended Appeals), I do not consider the Permission Application to have any real prospect of success and would therefore reject it.
4. The individual grounds of appeal are dealt with separately below.
First Ground of Appeal
5. For his first ground of appeal against the Directions Order dated 11 February 2022, the Third Defendant submits that the Registrar breached RDC Part 24 by:
(a) “fail[ing] to comply with the Court’s own expediated [sic] timeline, having indicated that the Third Defendant would have seven days to respond to the Claimant’s application”;
(b) “issu[ing] the Directions Order without allowing the Third Defendant to substantively respond to the Claimant’s application”.
6. The Third Defendant has failed to articulate which specific provisions of RDC Part 24 it believes have been breached; in any event, it is plain that the reasons cited by the Third Defendant do not breach any of the provisions of RDC Part 24.
7. The Court did not indicate that the Third Defendant would have seven days to respond to the Claimant’s application. The Court merely enquired whether seven days would be sufficient time for the Third Defendant to respond if the Court had been minded to allow the Third Defendant to do so. The Third Defendant failed to provide an answer to the Court’s enquiry.
8. Further and pursuant to RDC r.4.12, the Court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations. Pursuant to RDC r.4.13 and r.4.14(2), the Third Defendant had the opportunity to apply within 7 days of the Directions Order being made to have it set aside, varied or stayed. The Directions Order was issued on 11 February 2022 but the Third Defendant only filed the Application Notice on 4 March 2022, 21 days after the Directions Order was issued.
Second Ground of Appeal
9. The Third Defendant’s submissions on his second ground of appeal are rejected. Given the highly technical nature of determining the validity of the signatures in question, and the central importance of this factual issue to the trial, the Court is of the view that expert examination of the originals is a necessary and important step, and would be of significant assistance to the Court’s determination.
10. The Third Defendant’s application for immediate judgment on 29 June 2021 and the Third Defendant’s submissions on his second ground of appeal are incongruent with his Permission Application and Application, both dated 4 March 2022, which would only cause further delays to the trial process.
Third Ground of Appeal
11. The Third Defendant argues that an extension of time “until such time the Court hears back from the Public Prosecutor” is unjustified as it acts as a permanent stay of the Third Defendant’s application. The Third Defendant requests that “a deadline be set so as to ensure the Claimant remains subject to the obligation to continue to justify it.” The Third Defendant makes no suggestion of what he believes an appropriate deadline would be.
12. It is plain that the extension of time is necessary due to a delay which is beyond the Claimant’s control. It would therefore be disproportionate to require the Claimant to incur additional costs in submitting repeated applications, which would also occupy the Court’s resources to process and determine. This is consistent with the Overriding Objecting, and in particular RDC 1.6(2), 1.6(3) and 1.6(5).
13. The Third Defendant’s suggestion that the Claimant should “remain subject to the obligation to continue to justify it” is also unnecessary since the justification would likely remain the same each time the Claimant is required to “justify it”. It would therefore simply be a repetitive exercise which would not be justifiable (in itself).
Fourth Ground of Appeal
14. The Third Defendant objects to the Directions Order on the basis that it “was inconsistent with previous orders of the Court”. However, the Directions Order was made “in consultation with the Judge” pursuant to RDC r.4.8(1). The Court has wide discretion to exercise its case management powers under RDC Part 4, including extending time for compliance with any court order, even if the application for an extension is made after the time for compliance has expired (RDC r.4.2(1)), and it may exercise such powers on an application of its own initiative (RDC r.4.9). The Directions Order was therefore not inconsistent with previous orders of the Court.
Costs
15. Given that the Claimant has not filed any response to the Appeal Notice, my decision with respect to costs is that no order be made.