August 07, 2024 COURT OF FIRST INSTANCE - ORDERS
Claim No: CFI 004/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
ZUZANA KAPOVA
Claimant
and
(1) MILOSLAV MAKOVINI
(2) PHARM TRADE HOLDING LTD
Defendants
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON the Claimant’s Application Notice CFI-004-2023/9 dated 10 June 2024 seeking permission to amend the Particulars of Claim (the “Application for Permission to Amend”)
ND UPON Athe Defendants’ evidence in answer to the Application for Permission to Amend dated 25 June 2024
AND UPON the Claimant’s evidence in reply dated 5 July 2024
AND UPON reading the documents recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. Permission to amend the Particulars of Claim in the form presented to the Court is granted.
2. Service of the Amended Particulars of Claim is deemed to have been effected today.
3. The Defendants shall file, if so advised, any Amended Defence within 28 days of today and the Claimant shall, if so advised, file any Reply thereto within 21 days thereafter.
4. The Claimant shall pay the costs of and occasioned by the amendment.
5. The First Defendant shall pay the costs of the Application for Permission to Amend, to be the subject of assessment by the Registrar if not agreed.
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 7 August 2024
Time: 11am
SCHEDULE OF REASONS
1. The principles upon which permission to amend is granted are well known and there is no prejudice to the Defendants that cannot be compensated in costs.
(a) There is nothing incoherent about the amendments sought. The Claimant continues to plead that the First Defendant acted as a fiduciary because he was her advisor and that he breached such fiduciary duties. She is entitled to maintain such pleas, notwithstanding the deletion of paragraph 13 of the Particulars of Claim.
(b) The Claimant has deleted paragraph 13 of the Particulars of Claim and inserted a sentence at the end of paragraph 14 which clarifies the case made on much the same basis.
(c) The Claimant has abandoned a claim in paragraphs 63, 71 and 72 for an anti-suit injunction in respect of proceedings in Slovakia. There can be no possible objection to this amendment. There is no discontinuance of the action.
(d) The Claimant has added a claim in paragraph 72 for an order under Article 149 of the DIFC Companies Law declaring that the removal of the Claimant as director of the Second Defendant was unlawful and null and void which is a logical consequence of the facts and matters pleaded elsewhere (e.g. paragraphs 48, 59 and 63). The new prayers for relief reflect the pleas made as to her unlawful removal.
(e) The Claimant claims a total of USD 4,268,000 in paragraph 40 and in the prayer for relief. The Claim form included claims for damages of EUR 4 million or the USD equivalent and the existing Particulars of Claim include figures which appear to total claims amounting to the USD figure or a higher figure. If the First Defendant wishes to seek Further Information as to the make up of these claims, it is open to him to request it.
2. The First Defendant has unreasonably opposed the grant of permission to amend and would clearly have done so if asked for consent beforehand. The First Defendant should therefore pay the costs of the application to amend, whilst the ordinary rule that the Claimant should pay the cost of and occasioned by her amendment will otherwise apply.
