October 26, 2017 Court of Appeal - Orders
Claim No: CA 013/2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
BETWEEN
VEGIE BAR LLC
Appellant
and
EMIRATES NATIONAL BANK OF DUBAI PROPERTIES PJSC
Respondent
and
THE DIFC REGISTRAR OF REAL PROPERTY
Non-Party Respondent
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON considering the Respondent’s Application dated 16 October 2017, the parties’ skeleton arguments/written submissions and the exchanges of correspondence between the parties relating to the Respondent’s request for a stay of the Order of H.E Justice Omar Al Muhairi dated 20 September 2017 (the “Order’)
IT IS HEREBY ORDERED THAT:
1.Pursuant to Article 33 of DIFC Courts Law No. 10 of 2004, the Order of H.E Justice Omar Al Muhairi dated 20 September 2017 be stayed:
(a) pending review of the said Order by the full Court of Appeal under Amended RDC 44.126, should the Court decide to treat the Respondent’s Application as a request for such a review and to extend the time for the making of such a request and/or
(b) pending the decision of the Court of Appeal on the Respondent’s Application dated 10 October 2017 for permission to appeal against that Order and
(c) if permission is granted, pending the determination of the Appeal.
2. In the absence of any prior determination of any review and/or application for permission to appeal, the review and/or application for permission to appeal and, if permission is granted, the appeal itself, will be heard on 21 November 2017 at the same time as the Appellant’s adjourned appeal from the decision of H.E. Justice Shamlan Al Sawalehi dated 3 October 2016, following the hearing in the Court of Appeal on 6 March 2017.
3. Any application for review of the Order of 20 September 2017 and for an extension of time for the request shall be made within 7 days of the date of this order.
4. Any new or additional evidence in the form of witness statements or documents (which should be exhibited to a witness statement) which either party intends to put before the Court of Appeal on 21 November 2017 is to be served by 31 October 2017 with an application for permission to adduce the same, and any evidence in response is to be served by 7 November 2017, without prejudice to any arguments as to its admissibility at the hearing and whether any relevant test for admissibility is satisfied.
5. The Bundles of Documents for the Court shall be agreed and filed with the Court by 9 November 2017 and Skeleton arguments relating to new evidence and new points for the decision of the full Court of Appeal shall be served by 16 November 2017.
6. The Costs of the Application be reserved.
Issued by:
Natasha Bakirci
Assistant Registrar
Date of issue: 26 October 2017
At: 10am
SCHEDULE OF REASONS
1.It is unclear whether the Judge was acting in the capacity of Judge of the Court of Appeal or as Judge in the Court of First Instance. The case had been stayed subject to the order made by the Court of Appeal on 23 March 2017 with its specific directions for the Subpoena duces tecum and the production of specified documents by the Non -Party Respondents and the Respondents. The appeal against the order for security for costs was adjourned on that basis.
2. If the order was made by the Judge as a Judge of the Court of First Instance, the Respondent’s Application for permission to appeal has realistic prospects of success.
3. If the order was made by the Judge as a Judge of the Court of Appeal, then it is subject to review under RDC44.126 by the full Court of Appeal and it appears, prima facie, to be just that, in circumstances where it is unclear whether the Judge was acting in the capacity of Judge of the Court of Appeal or as Judge in the Court of First Instance, the Application for permission to appeal should be treated as a request for review, should the Respondent so request and seek an extension of time.
4. If the Appeal against the Order succeeds, or the Review of the Order results in a different order, unnecessary work and costs will have been incurred in complying with that Order.
5. Although it would be preferable for the Respondent’s Application for permission to appeal and any appeal from the Order and/ or any review to be determined before the Appellant’s adjourned appeal is heard on 21 November 2017, so that the Appellant’s appeal is heard in the light of the earlier decision on further disclosure of documents, that is not likely, for practical reasons, to be possible. The preparation for and the hearing of the review and/or application for permission is likely to take some time, particularly if either party wishes to adduce fresh evidence in the form of documents which have been produced since earlier hearings. Although there is thus the possibility of further delay if the Order for further disclosure of documents is upheld on 21 November 2017, as a matter of case management, justice and convenience, a stay of the Order which may avoid unnecessary work and costs until that date, when it is known that the Court of Appeal can consider the position, is the better course.
6. If either party wishes to put before the Court of Appeal additional evidence or documents which have been produced since the last hearing in the Court of Appeal, it must serve, on the other party, an application to do so with the said evidence and/or documents in the form of witness statement(s) and exhibits so as not to take the other party by surprise at the hearing, in accordance with the timetable set out in paragraph 4 of the this order and the bundles of documents before the Court must contain such materials in a separate file or files.
