June 08, 2021 Technology and construction division - Orders
Claim No: TCD 009/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
FIVE REAL ESTATE DEVELOPMENT LLC
REEM EMIRATES ALUMINIUM LLC
ORDER WITH REASONS OF JUSTICE SIR RICHARD FIELD
UPON considering the Claimant’s Appeal Notice dated 23 May 2021 (the “Application”) for permission to appeal the Order with Reasons issued on 4 May 2021 (the “Strike Out Order”) and the direction from the Registry that the Claimant’s Application No. TCD-009-2020/3 dated 25 April 2021 (the “Amendment Application”) to amend its Particulars of Claim could not proceed by reason of the Strike Out Order
AND UPON considering the Claimant’s proposed Grounds of Appeal and its skeleton argument served on 23 May 2021 in support of the Application
AND UPON considering the Defendant’s submissions in opposition to the Application dated 27 May 2021
AND UPON considering r. 44.19 of the Rules of the DIFC (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Application is dismissed on the ground that the proposed appeal has no real prospect of success and there is no other compelling reason why the appeal should be heard.
2. The Claimant shall pay the Defendant’s costs of opposing the Application which costs shall be the subject of an immediate summary assessment on the indemnity basis conducted by the Registrar.
Date of issue: 8 June 2021
SCHEDULE OF REASONS
1. Following the issuance of the Defendant’s application to strike out the whole of the Claimant’s claim1 filed on 15 March 2021 (the “Strike Out Application”), the Claimant informed the Defendant and the Court that it would not be filing any submissions in opposition to the Defendant’s application. Some considerable time later, the Claimant issued its Amendment Application by adding claims for: (i) an indemnity against the Defendant in respect of a claim made by the owner of the Project and in respect of losses suffered by the delay in completing the Project; and (ii) defects.
2. The Strike Out Application having been issued long before the amendment application, the former application was decided first, as was entirely proper and to be expected by both parties. In the result, the strike out application succeeded and the whole of the Claimant’s claim was struck out by the Strike Out Order. As a result, it was inevitable that the Amendment Application was nullified. A claim that has been struck and therefore no longer exists cannot be subsequently amended. That this was the obvious consequence of the Strike Out Order ought to have been appreciated by the Claimant. If it was not, it certainly should have been and the Claimant had no business in light of the Strike Out Order to email the Registry on 9 May 2021 to seek the issuance of directions on the Amendment Application on the ground that the time for responding thereto had expired and the Defendant had indicated on 2 May 2021 that it would not be filing a Reply.
3. It must be accepted that the Registry’s reply of 10 May 2021 to the Claimant’s email of 9 May 2021 was not very happily worded but its essential meaning was discernible. It reads:
Pursuant to the recital section in page 2 of the Order of Justice Richard Field dated 4 May 2021 (the “Order“) wherein the judge has taken into account the Claimant’s Application dated to 5 April 2021 (the “Application“). By reasons the Order, the Application is now dismissed.
Should the Claimant wish to amend its Particulars of Claim it may be allowed to bring a further claim provided that the claim is not captured res judicata.
4. The Claimant replied the same day (10 May 2021) drawing the Court’s attention to two authorities concerned with the obligation of the court to give reasons and inviting the Court to issue a supplemental judgment dealing with the Claimant’s Application.
5. On 16 May 2021, the Registry sent the following email to the Claimant:
The Claimant may seek to appeal the order if it objects to the Order of Justice Sir Richard Field striking out the claim. The effect of the order is that there no longer exists a claim capable of being amended to plead the additional claims identified in the application to amend. If the Claimant does not seek to appeal the order it should therefore issue a fresh claim form. In the circumstances, Justice Sir Richard Field gives the Claimant 7 days to issue a new Claim or to seek permission to appeal. If neither step is taken in this period of 7 days, a CMC is to be fixed to deal with the Defendant's Counterclaim.
6. In my judgment, the interests of justice plainly did not require a reasoned decision of the Court declining to proceed with the Amendment Application. It was plain and obvious that that application was no longer maintainable in light of the Strike Out Order. Very shortly after the issuance of that order, the Claimant ought, therefore, to have sought to appeal the Strike Out Order in an effort to keep its claim on foot, or, more realistically, to have issued a new Claim Form, pleading the claims identified in the amendment application. Instead, notwithstanding the email sent by the Registry on 16 May 2021, which made it as plain as could be that the amendment application was nullified by the Strike Out Order, the Claimant issued its Notice of Appeal in which no challenge is made to the Strike Out Order itself but instead an extensive complaint is made, with lengthy citation from five authorities and the Arab Charter of Human Rights, that the amendment application has been dismissed without the issuance of any judgment giving reasons for the dismissal.
7. RDC r.44.19 provides:
Permission to appeal may only be given where the lower Court or the appeal Court considers that:
(1) the appeal would have a real prospect of success; or
(2) there is some other compelling reason why the appeal should be heard.
8. It was confirmed in Barclays Bank plc et al v Essar Global Fund Ltd  DIFC CFI 036 (11 July 2017) that for the purposes of this Rule a “real” prospect of success means a “realistic” rather than a “fanciful” prospect of success as held by Lord Woolf MR in Swain v Hillman  EWCA Civ 3053.
9. In my judgment, the Claimant’s proposed appeal is wholly without merit and would have no realistic prospect of success. Any competent practising litigant lawyer should have appreciated that it followed as night follows day that the Amendment Application was nullified and ceased to be maintainable by reason of the Strike Out Order without the need for an order or direction to this effect being issued by the Court. A fortiori where, as here, the Registry made absolutely clear why the Amendment Application was nullified when it issued the email of 16 May 2021.
10. By parity of reasoning, I am also of the view that there is no other compelling reason why the proposed appeal should be heard.
11. It follows that the Claimant’s Application for permission to appeal must be and is hereby dismissed.
12. The Defendant was entitled to serve the submissions it relied on in opposing the application and in my judgment the application is so hopelessly devoid of merit that the Claimant should pay the Defendant’s costs on the indemnity basis such costs to be the subject of an immediate summary assessment by the Registrar.