Claim No. SCT 475/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

ONNI

Claimant/Defendant in Counterclaim/Respondent

and

ORLAN

Defendant/Claimant in Counterclaim/Applicant

ORDER WITH REASONS OF H.E. JUSTICE ANDREW MORAN KC

UPON reviewing the Judgment of the Small Claims Tribunal Judge Maitha AlShehhi (the “Judge”) dated 20 January 2024 (the “Judgment”)

AND UPON reviewing the Applicant’s Appeal Notice dated 4 February 2025 and its updated Appeal Notice dated 5 February 2024 and grounds for seeking permission to appeal the Judgment (the “Application”) and an extension of time for filing the Application, respectively

AND UPON considering the documents and submissions filed by both parties and recorded on the case file

AND PURSUANT TO the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The Application for an extension of time within which to file the Application for Permission to Appeal is granted.

2. The Application for Permission to Appeal is refused.

3. Each party shall bear their own costs of the Application.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 2 April 2025
At: 10am

1. By an Appeal Notice issued out of time on 4 February 2025 and re-issued with an application for an extension of time for filing the Appeal Notice, on 5 February 2025, with grounds for the extension added in manuscript, the Applicant seeks permission to appeal the Judgement. Having considered those grounds for an extension of time and having regard to the personal difficulties encountered by the Applicant’s representative and the short delay in filing, the Court is satisfied that it is just and appropriate to extend time to the time of filing and proceed to consider the Application.

2. The Applicant seeks permission to appeal the Judgment on four grounds.

3. These grounds are as follows:

4. Apart from the last of these grounds, all of the others depend on evidence, materials and submissions that the Applicant failed to place before the Judge at the hearing below, which it now seeks to rely on in support of the Application and the Appeal (if permission were granted). This failure occurred notwithstanding that the Respondent had claimed for all of these “end of service dues” that he was awarded by the Judge.

5. In order for an intending Appellant to be allowed to rely on fresh evidence, not placed before a trial judge at first instance, a stringent test must be satisfied before that fresh evidence will be admitted and considered on appeal. This rule and requirement is particularly important in the Small Claims Tribunal, which was established to dispense justice in small claims, swiftly and fairly, with minimal procedural formality, so as to bring about speedy, economical and final determination of disputes within its jurisdiction.

6. That test for the admission of fresh or new evidence on appeal requires the Applicant to show: (i) the fresh or new evidence could not have been obtained with reasonable diligence for use in the SCT; and (ii) if the evidence had been introduced in the SCT, it would probably have had an important, though not necessarily a decisive influence on the outcome of the case. In this Court’s judgment, the Applicant has manifestly failed to demonstrate that the first of those requirements is satisfied (indeed the documents it seeks belatedly to rely upon, demonstrate by their dates and provenance to the contrary). These materials not only could have been obtained by reasonable diligence but were in the custody and control of the Applicant all along.

7. The Judge’s acceptance of the Respondent’s evidence on his vacation leave entitlement, and her calculation of what was due to him under this head of claim cannot be faulted, where she was not provided with any of the claimed and allegedly “verified company records” the Applicant now seeks to rely on. Moreover, the Judge expressly recorded at paragraph 72 of the Judgment her finding that the Claimant Respondent had 25 days of leave pending (sic) or due “and the Defendant did not object to this”. She also recorded at paragraph 73 that the Defendant failed to provide the Court with any record of the dates of leave taken by the Claimant, which it was its duty to record under Article 16 (g) of the Employment Law of the DIFC. There is accordingly no prospect that these so-called “verified company records” would be admitted into evidence upon an appeal if permission to appeal were granted. I am wholly unpersuaded that there is any prospect, still less a realistic prospect, of an appeal court finding that the Judge was wrong in the conclusions she reached on this head of claim on the evidence placed before her.

8. As for the ground contending for improper computation of the notice period payment, The Applicant did not place any evidence or submission before the Judge of the contention now advanced that the Respondent had already been paid for five of the 30 days’ notice or payment in lieu of working therefor, that he was entitled to. The Judge interpreted Clause 12.1 of the employment contract in the Offer Letter as entitling the Claimant to a month’s salary of AED 35,000.00 in lieu of notice, in the absence of evidence or submission that any lesser amount was due. I am wholly unpersuaded that there is any prospect, still less a realistic prospect, of an appeal court admitting any fresh evidence on this issue, or of it finding that the Judge was wrong in the conclusions she reached on this claim, on the evidence placed before her.

9. As for ground of alleged judicial overreach, this is a completely hopeless ground of appeal, in circumstances where the Applicant failed to provide the Judge with the so-called or claimed “verified company records” it now complains she failed to consider.

10. Finally, with regard to the fourth ground of appeal, being of a typographical error in the Judgment concerning the identification of the obligor under the loan agreement. This appears to be a reference to paragraph 80 of the Judgment, where the Judge has committed a misnomer of the party obliged to repay the loan. It should have stated “The Defendant in the Counterclaim shall pay the Claimant in the Counterclaim the remaining amount of AED 145,000 through monthly instalments of AED 5,000”. However, that is precisely what is correctly stated in paragraph 6 of the Judge’s order. That paragraph of the order records the effective disposition of that part of the counterclaim, and is what is binding on Mr Onni, the Defendant to the Counterclaim. This error of nomenclature in the body of the reasons for the judgment and order, does not give rise to a valid ground of appeal. It is an accidental slip in a judgment that may be corrected at any time (and no doubt will be by the Judge now it has been drawn to her attention) under RDC 36.41, which is applied in small claims proceedings before the SCT, by virtue of RDC 53.7 (9).

11. For all of the foregoing reasons, the Application for permission to appeal is refused.