October 01, 2017 Registrar Directions
SCT REGISTRAR’S DIRECTION NO. 1 of 2017
After having reviewed the applicable provisions of the Rules of the DIFC Courts (RDCs), in particular:
RDC 53.13, which provides that “The SCT will serve the claim form on the defendant, unless otherwise directed by the Registry.” and also allows for service to be effected by the claimant, if directed by the Registry.
RDC 9.31provides for the Court to make an order authorising service by a method not permitted by these Rules (defined as ‘alternative method of service’), where it appears to the Court that there is a good reason to authorise service by alternative methods (such as unsuccessful service through other initially used methods described in RDC 9.2).
In light of recent technological developments, the SCT wishes to clarify which alternative methods of service may be used by the parties to a claim, and to describe the verification standards which the SCT Registry shall rely on, when deciding whether to allow service by alternative methods.
(1) The service process under Rule 53.13 initially involves notification by the SCT on the defendant via email. In addition, the SCT Registry may also, at its discretion or on application by the claimant, direct a claim form or document to be served by the claimant on the defendant and may rely on the RDC Part 9, Rules 9.2, 9.3, 9.6 and 9.31 which provide for a number of methods of service, except to the extent that the SCT judge orders otherwise.
(2) The SCT furthermore relies on Rule 9.31, which allows the Court to authorise alternative methods of service, such as eService, provided there is a good reason, pursuant to which the SCT may make an order, upon application by the Claimant, permitting service by an alternative method. In the context of SCT proceedings, the SCT will apply the provision contained in Rule 9.31 and may direct that a claim form or document be served by the claimant on the defendant by means of eService, as an alternative method of service or in addition to the notification sent by email by the SCT. To this end, the SCT will issue a written direction or order to the claimant allowing them to serve the documents via the chosen method of eService means, provided that the following criteria are met:
(i) Only those methods of eService which allow for means to ascertain successful service, and which on the face of it, do not infringe on the privacy of the individual or legal entity to be served will be permitted.
(ii) The SCT Registry reserves the right to determine which methods of eService are suitable and acceptable for each case, but may only order service by eService upon the request of the claimant, and only in relation to any specific method requested.
(iii) Where the SCT directs that a claim form or document is to be served by the claimant by means of eService, the claimant must fill out the ‘Rule 53.13 E-Service Form’ and provide evidence to the SCT, inter alia, that this method of service meets the following criteria:
a. the chosen method is an acceptable method of service, by providing sufficient proof to the SCT that the electronic address for service or electronic identification of the defendant via social media or instant messaging applications is valid;
b. the defendant or his legal representative has previously used this means of electronic communication;
c. the defendant is using this specific means of electronic communication on a regular basis and has been using it in the recent past;
d. the claimant provides a statement of truth in relation to the proof it provides to the SCT under provisions a) to c) above.
e. the SCT Registry is satisfied that sufficiently reasonable means have been initially used by the claimant to ascertain the physical whereabouts of the defendant; and
f. the SCT Registry is satisfied that that there is no other reason preventing the claimant from serving the claim form on the defendant via eService, nor any reasonable doubt in regards to the suitability of the electronic identity it provided in relation to service on the defendant.
(3) The claimant serving a document by eService need not in addition send a hard copy by mail. Notwithstanding this provision, the SCT encourages service by more than one method.
(4) In reference to RDC Part 9, specifically Rules 9.53 and 9.54, where a claim form is to be served out of the DIFC or Dubai, it may be served by any method permitted by the law of the place in which it is to be served. If service needs to be undertaken by means of eService to a defendant located outside of the UAE, the claimants should acquaint themselves with the relevant procedural rules applicable in the jurisdiction in which they wish to serve, as referenced in Part 9, Rule 9.53. Failure to do so could cause the claim to fail, to make any order or judgment unenforceable and, in some circumstances, to make the claimant criminally liable for incorrect servce.
(5) The terms ‘claimant’ and ‘defendant’ may be used interchangeably in this Direction, with regard to all further service, notifications, objections and document filings between the parties to an SCT claim, to allow for reciprocity in respect of service methods.
Nassir Al Nasser
Dated: 1 October 2017