April 06, 2022 court of first instance - Orders
Claim No. CFI 065/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
(1) EMIRATES NBD BANK PJSC
(2) AL KHALIJI FRANCE S.A.
(3) HSBC BANK MIDDLE EAST LIMITED
(4) UNITED ARAB BANK PJSC
(5) UNITED BANK LIMITED
(6) NATIONAL BANK OF FUJAIRAH PJSC
(7) COMMERCIAL BANK OF DUBAI PJSC
(8) NOOR BANK PJSC
(1) ADVANCED FACILITIES MANAGEMENT LLC
(2) NASER BUTTI OMAIR YOUSEF ALMHEIRI (PERSONALLY AND TRADING AS NBB GROUP ESTABLISHMENT)
(3) ADVANCED INTERNATIONAL EMPLOYMENT SERVICES LLC
(4) ADVANCED LAUNDRY LLC
(5) ADVANCED ENVIRONMENTAL SERVICES LLC
(6) AL ETIHAD INTERNATIONAL TYPING & TRANSACTION FOLLOWING CENTRE LLC
(7) ADVANCED NATIONAL CONTRACTING LLC
(8) CRUISE EXPRESS RENT A CAR LLC
(9) BIN BUTTI INTERNATIONAL HOLDINGS LLC
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON the Defendants’ letter sent by email to the Registry on 30 March 2022
AND UPON reviewing the Claimants’ Application No. CFI-065-2020/5 dated 14 January 2022 applying for a joinder of Dubai Islamic Bank PJSC as a claimant, permission to amend the Claim form and Particulars of claim and immediate judgment against the claim and counterclaim (“Claimants’ Application”)
AND UPON reviewing the Defendants’ Application No. CFI-065-2020/6 dated 31 March 2022 seeking to adjourn the hearing listed for the Claimants Application on 20 April and 21 April 2022 (the “Adjournment Application”)
AND UPON reviewing the Claimants’ evidence in answer to the Adjournment Application dated 4 April 2022
AND UPON reviewing the Claimants’ and Defendants’ response in respect of the issue of joinder of an additional Claimant and the amendment of the Particulars of Claimant dated 4 April 2022
IT IS HEREBY ORDERED THAT:
1. The Adjournment Application is refused, for the reasons given below. If there are disputed issues of fact which it is necessary for the Court to resolve on the application for immediate judgement and they cannot be resolved on affidavits or witness statements alone, then the application will fail. If the issues are issues of law and issues which are capable of resolution on the documents, then the time allocated for the hearing should be sufficient. The Defendants have had ample time to serve evidence in opposition and if they have failed to do so by reason of a failure to fund their lawyers, they must bear the consequences. The Defendants must file and serve any evidence in opposition to the application by 4pm on Tuesday, 12 April 2022 or risk being disallowed from relying on such evidence.
2. The Claimants’ Application to amend the Claim Form and Particulars of Claim is granted. Defendants must serve any consequential amended pleadings with any evidence in opposition to the application for immediate judgement by 4pm on Tuesday, 12 April 2022. This is not the discontinuance of a claim but an amendment which constitutes an admission that one ground for seeking relief is not valid.
3. The Claimant’s Application for joinder is granted. Any consequential amendment to the Defence must be filed and served by 4pm on Tuesday, 12 April 2022. This application is unchallenged.
4. All costs of the Claimants’ Application and Adjournment Application are reserved.
5. Full skeletons, ahead of the hearing in question, to be served by 12pm on Tuesday, 19 April 2022.
Date of issue: 6 April 2022
SCHEDULE OF REASONS
1. It is the Defendant's case that there are issues of fact and complex questions of law which mean that the immediate judgement procedure is inappropriate in any event and protracted oral argument is unlikely to advance either side's case in that context. If the Claimants wish to go ahead on the basis that it is all sufficiently straightforward for immediate judgement to be ordered, then they do so at their risk.
2. As previously stated, it is hard to avoid the conclusion that the Defendants are doing all they can to delay matters. It is true that the Claimants did nothing between service of the reply on 22 June 2021 and the application for immediate judgement on 14 January 2022 with service of accompanying evidence. The position is however that the Defendants ignored the requirement to put in responsive evidence within twenty-eight days and a further seven weeks have passed since then. Whilst the witness evidence served in support of the application to adjourn lays the blame for that on the defendant's failure to fund their lawyers, that is something for which the defendants are responsible and no suggestion is made that any attempt has been made to prepare the evidence that is necessary for a hearing which was listed on 11 March 2022 for 20-21 April 2022, some six weeks ahead.
3. The Claimants appear to be saying in Brooks 4 that:
(a) Most of the allegations made by the Defendants are capable of being determined as issues of law on the pleadings.
(b) There is no basis pleaded for the alleged torts.
(c) Any questions of fact as to what was said on 16 December 2018 or agreed by other means, even if supported by witness evidence, can be shown to be demonstrably incredible by reference to the surrounding documents and therefore incapable of belief.
(d) Issues of duress, negligent misrepresentation, termination, rescission and avoidance are all capable of rebuttal either as points of law on the facts as pleaded, or are answered by allegedly uncontroversial facts said to constitute affirmation of the loan agreements.
(e) Points of Sharia law, as raised in the pleadings, are capable of resolution by reference to the terms of the loan documentation alone.
4. If those are the points which the Claimants wish to argue in the context of an application for immediate judgement, they should be at liberty to do so with whatever risks that entails.
5. The only issue which therefore arises, if there is no adjournment, is whether or not the Defendants should be permitted to adduce evidence, having failed to do so thus far. It seems to me that justice requires that they should be given such an opportunity but within a limited timeframe so as not to jeopardise the hearing dates of 20-21 April 2022. Because Taylor Wessing have been in communication with the court and the Claimant for some time, as set out above, and no steps have apparently been taken so far, the Defendant should be ordered to file and serve any evidence upon which they wish to rely by close of business Dubai time on Tuesday night 12 April 2022, failing which they would be debarred from doing so. That would allow the Claimants effectively a week, prior to the hearing, allowing for the Easter break, to consider the position, decide whether to seek an adjournment because of the late production of that evidence or put in additional evidence themselves and risk an application to adjourn by the Defendants on that basis.
6. Written submissions in the form of skeleton arguments should be delivered by midday Dubai time on Tuesday, 19 April 2022.
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