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Claim No: CA 011/2020

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE COURT OF APPEAL

BEFORE CHIEF JUSTICE ZAKI AZMI, JUSTICE ROGER GILES AND JUSTICE ROBERT FRENCH

BETWEEN

HANA HABIB MANSOOR HABIB AL HERZ

Defendant/Applicant

and

(1) SUNSET HOSPITALITY HOLDINGS LIMITED
(2) PEATURA FZ LLC

Claimants/Respondents

JUDGMENT

ORDER

UPON the Judgment issued on 21 February 2021

AND UPON the Order of Court of Appeal issued on 7 March 2021

AND UPON reviewing the Claimants’ application no. CA-011-2020/1 dated 21 March 2021 (the “Application”) to reopen the appeal

AND UPON reviewing the Defendant’s response to the Application dated 4 April 2021

AND UPON reviewing the Claimants’ reply to the Defendant’s response to the Application dated 11 April 2021

IT IS HEREBY ORDRED THAT:

1. The Application is dismissed with costs.

2. Other costs are to be assessed by a Registrar if not agreed; although the Defendant provided a Statement of Costs in relation to the Application, we leave the costs of the Application also to be assessed if not agreed.

Issued by:
Nour Hineidi
Registrar
Date of issue: 13 June 2021
At: 9am

JUDGMENT

1. The Defendant appealed from the dismissal of her applications for transfer of Part 8 proceedings to the Part 7 procedure, for permission to file a counterclaim, and for permission to file and serve additional evidence. We heard the appeal on 18 January 2021, and reserved our decision. In a judgment issued on 21 February 2021, the appeal was allowed, the orders at first instance were set aside, and orders to the effect applied for were made. It was further ordered that the Claimants pay the Defendant’s costs of the applications and of the appeal, to be assessed by a Registrar if not agreed.

2. The Claimants applied for permission to reopen the appeal in respect of the question of costs. Since the basis of the Application was that they had not been heard in relation to costs, the Application has been considered by the Court as constituted for the appeal. At the Court’s request, the parties’ submissions included their submissions on the substantive question of costs.

3. By RDC 44.154, the Court will not reopen a final determination of any appeal unless it is necessary to do so in order to avoid real injustice, the circumstances are exceptional and make it appropriate to reopen the appeal, and there is no alternative effective remedy. The circumstances in which reopening may be permitted have been considered in cases such as Silva v United Investment Bank Ltd [2014] DIFC CA 004 (Giles J), Roberto’s Club LLC v Rella CFI 019/2013 (Steel DCJ) and GFH Capital v Haigh [2016] DIFC CA 002 (CA), and we do not repeat them. At their heart is that it will not be permitted unless the applicant can show that by accident and without fault on its part it has not been heard or its appeal has not been fully considered.

4. In the Claimants’ submission, they were not heard in relation to costs because “the appeal hearing was cut short without any mention of costs or of any anticipated opportunity for dealing with costs“. Through the witness statement of Mr Jonathan Brooks, they said that the Court rose on 18 January 2021 on the basis that the hearing of the appeal would resume after an interval, but the Court decided not to resume the hearing; and at that time neither party had addressed the Court as to costs and in the circumstances there was no opportunity for them to do so.

5. It was not our understanding that the Court rose on the basis that the hearing of the appeal would resume after an interval; rather, the Court rose to consider whether its decision would be then communicated or reserved. It may be accepted, however, that the Claimants’ counsel had a different understanding, and it is correct that neither party had addressed the Court as to costs. But it does not follow that the basis for the Application to reopen the appeal has been made out.

6. That is because the Claimants intended to and had the opportunity to make their submissions as to costs, but did not take the opportunity. At the commencement of the hearing the Court raised for the parties’ consideration a matter which was not prominent in the Defendant’s skeleton argument. On 19 January 2021, the day after the hearing, counsel for the Claimants emailed the Registry asking that the Court have regard to a further submission, there set out, in relation to that matter; the email was duly placed before the Court and taken into consideration. According to Mr Brooks, counsel had been instructed and intended to raise the question of costs when the Court resumed; yet the email did not do so in addition to the substantive submission. When the professed intention was not carried through together with taking the opportunity otherwise to advance the Claimants’ position, we do not think there are the exceptional circumstances calling for a reopening.

7. We go on, in any event, to consider the question of costs. The Claimants submitted that, in lieu of the order that they pay the Defendant’s costs of the applications and the appeal, the first instance order that the costs of the applications be paid by the Defendant should not be disturbed, and as to the appeal costs (including of this present Application) they should be costs in the proceedings or alternatively that there should be no order as to costs.

8. In some respects the grounds put forward for this outcome amounted to complaint of the result of the appeal, and do not bear upon the disposition of costs: for example, that the first instance Judge remained free at any time to direct the Part 7 procedure. The grounds otherwise came down to the submissions first, that the appeal was decided substantially on the matter raised by the Court, so that the Defendant’s submissions below were not upheld and her submissions on appeal which the Claimants had had to answer were largely otiose; and secondly, that the Defendant’s deficiencies remarked in the judgment at [35] and “the derailing of the Part 8 hearing“ in justice required a different order as to costs. There was also an apparent complaint that the Court had decided the applications as well as ruling on the appeal against the first instance decision, which we do not think bears scrutiny – the appeal, if upheld, necessarily lead to pronouncement of an alternative outcome.

9. We are not persuaded that there is substance in the Claimants’ submissions. It is not uncommon for submissions to extend beyond the matter held to be dispositive, or for the Court to raise with the parties a matter ultimately held to be dispositive, and we do not think this case was undue in these respects. In our view, for the reasons given in re-exercising the discretion this was a case in which the applications commanded assent; the Claimant saw fit to oppose them, and to oppose the appeal, and failed in that endeavour, and even with the Defendant’s deficiencies above mentioned we do not think the usual outcome of costs following the event has been displaced.

10. The Application for permission to reopen the appeal is dismissed with costs. Other costs are to be assessed by a Registrar if not agreed; although the Defendant provided a Statement of Costs in relation to the Application, we leave the costs of the Application also to be assessed if not agreed.