October 24, 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 ALUMINUM LLC
ORDER WITH REASONS OF JUSTICE LORD ANGUS GLENNIE
UPON reading the Order with Reasons of Justice Sir Richard Field dated 31 May 2021 (the “Order”)
AND UPON reading the Order of Justice Sir Richard Filed dated 22 August 2021 refusing the Claimant’s application for permission to appeal against the Order
AND UPON reviewing the Claimant’s second permission to appeal application dated 8 September 2021 filed against the Order (the “Second Permission Application”)
AND UPON reviewing the Claimants grounds of appeal and skeleton argument filed in support of the Second Permission Application dated 28 September 2021
AND UPON reviewing the Defendant’s written submissions in opposition the Second Permission Application dated 14 October 2021
IT IS HEREBY ORDERED THAT:
1. The Second Permission Application is dismissed.
2. The Claimant shall pay the Defendant’s costs of the Second Permission Application to be assessed by the Registrar on the standard basis, if not agreed.
Date of issue: 24 October 2021
SCHEDULE OF REASONS
1. This is an application by the Claimant for permission to appeal against the Order of Justice Sir Richard Field dated 31 May 2021 (the “Order Under Appeal”) refusing the Claimant’s application to strike out the Defendant’s counterclaim (the “Strike Out Application”). On 22 August 2021, Justice Field refused permission to appeal (the “Refusal Order”). This second permission application is made to the Court of Appeal under 44.9 of the Rules of the DIFC Courts (RDC).
2. Permission to appeal may only be given where the Court considers (a) that the appeal would have a real prospect of success or (b) that there is some other compelling reason why the appeal should be heard pursuant to 44.19 of the RDC.
Has the Claimant shown that the appeal would have a real prospect of success?
3. The Claimant sought permission to appeal from the Order of Justice Field only on the ground that the appeal would have a real prospect of success. In the Refusal Order of 22 August 2021 refusing permission to appeal, Justice Field considered the legal arguments put forward by the Claimant in some considerable detail. He rejected them all. I have read the documents carefully and see no basis for disagreeing with any part of Justice Field’s reasoning either in the Order under appeal or in the Refusal Order. The proposed appeal is unarguable. It has no prospect of success.
4. I would only add this, to emphasise a point made by Justice Field both in the Order under appeal (see paragraph 8) and in his Refusal Order (paragraph 8(i)). The Claimant’s application was to strike out the Defendant’s counterclaim. To succeed on that application, it would have had to show that the Defendant had no reasonable grounds for bringing the counterclaim (RDC 4.16), in other words, as applied to this case, that the counterclaim was bound to fail. That is a very high hurdle to clear. The Claimant might have sought to have a preliminary issue decided, at which the rival arguments might have been canvassed in full and decided by the Court, but it did not seek to take this course, preferring, for whatever reason, to persist with its strike out application. The refusal of the strike out application did not amount to a ruling that the Defendant’s counterclaim was bound to succeed, it was simply a ruling that it was not bound to fail. The arguments advanced by the Claimant in support of its strike out application remain available to it, for what they are worth, in its defence to the counterclaim. But for reasons given in detail by Justice Field in his two sets of Reasons (in the Order under appeal and in the Refusal Order), I adhere to the view that the proposed appeal has no real prospect of success.
Is there some other compelling reason why the appeal should be heard?
5. The application before this court, unlike that before Justice Field, was on the basis that the proposed appeal raises issues of public importance concerning the value of an engineer’s determinations issued under construction contracts, particularly in the DIFC and under International Federation Of Consulting Engineers (“FIDIC”) conditions. I do not accept this at all. The Order under appeal makes no substantive decision affecting the way in which an engineer’s determination issued under such contracts is to be regarded. The Order simply determines that the Defendant’s contentions as advanced in support of its counterclaim are not unarguable or, to put it another way, have a real (as opposed to fanciful) prospect of success. No point of principle concerning engineer’s certificates has been decided in the Order under appeal.
6. There is therefore no compelling reason why the appeal should be heard.
7. For the above reasons the Second Permission Application is dismissed.