October 12, 2023 court of first instance - Orders
Claim No. CFI 005/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) ANOOP KUMAR LAL
(2) PAUL PATRICK HENNESSY
Claimants
and
DONNA BENTON
Defendant
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON the Part 8 Claim Form dated 14 January 2021
AND UPON the Judgment of Justice Lord Angus Glennie dated 22 September 2023 (the “Judgment”)
AND UPON the Claimants’ Application No. CFI-005-2021/11 dated 6 October 2023 (the “Claimants’ Application” or “Application”)
AND UPON considering the Eighth and Ninth Witness Statement of Mr. Hari Gopala Krishna dated 5 and 11 October 2023 respectively and the Second Witness Statement of Mr. Amir-Saeed Mahdavi dated 10 October 2023
AND UPON reviewing all relevant material added on to the Court file
AND UPON reviewing the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. The Claimants’ Application for extension of time to pay the sums ordered by the Court on 22 September 2023 is refused.
2. The Claimants’ Application for a stay of execution of the Judgement pending the determination of any application for permission to appeal is refused
3. The Claimants shall pay the costs of this Application, to be the subject of assessment by the Registrar if not agreed.
Issued By:
Delvin Sumo
Assistant Registrar
Date of issue: 12 October 2023
At: 8pm
SCHEDULE OF REASONS
1. The Claimants seek:
(a) an extension of the time for payment pursuant to the Judgment to a future date to be determined upon the determination of the Claimants’ application for permission to appeal to be filed on or before 13 October 2023 (the “Permission Application”); and
(b) a stay of execution of the Judgment against them pending the determination of the Permission Application.
2. This Application is made following a trial at which they were found to have acted in breach of their duties as employees and put themselves in a position of conflict of interest, whilst failing to disclose their involvement in a management buy out to the Defendant. The essential findings of fact appear at paras 56-57 of the Judgment. The Judge was unimpressed by the evidence of the Claimants as compared with that of the Defendant.
3. The sole basis put forward for the Application is the argument that allowing execution of the Judgment would stifle an appeal but although this is said in two witness statements from their lawyer, no evidence is produced of their finances nor any particulars given as to why this might be the case. No suggestion is made of inability to pay the Judgment sum, nor details of any income or assets of either Claimant in accordance with RDC 48.54. In the absence of any such evidence the assertion of stifling by their lawyer carries no weight.
4. No suggestion is made that if the Judgment sum were to be paid there would be any difficulty in recovering it if an appeal were successful.
5. No grounds have been put forward in support of any suggestion that an appeal would have real prospects of success and on the findings of fact of the Judge, although of course the application for permission is yet to be made and it would not be right to pre-empt any decision on that application, there must be real doubts as to whether there are such prospects.
6. At all events, if the Claimants seek permission to appeal and make, as part of that application, an application for a stay of execution of the Judgment, they will need to satisfy the Court in relation to the criteria set out in RDC 44.4. No proper attempt has been made to do so on this Application and it will be a matter for the judge considering any application for permission to appeal to determine whether, if permission is given, any stay should be granted.
7. The current Application must therefore be refused and the Claimants must pay the costs, to be the subject of assessment by the Registrar if not agreed.
