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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/Appellants

and

DONNA BENTON

Defendant/Respondent

ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE

UPON the Part 8 Claim Form dated 14 January 2021 (the “Claim”)

AND UPON the Judgment of Justice Lord Angus Glennie dated 22 September 2023 (the “Judgment”)

AND UPON the Claimants’ Application No. CFI-005-2021/13 dated 25 October 2023 seeking a de novo review of the Registry’s decision of 18 October 2023 (the “Claimants’ Application” or “Application”)

AND UPON the Defendant’s evidence in answer including the Third Witness Statement of Mr.Amir-Saeed Mahdavi dated 30 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 is dismissed.

2. The Claimants shall pay the costs of this Application within 21 days from the date of this Order, assessed in the sum of AED 25,000.

Issued By:
Delvin Sumo
Assistant Registrar
Date of issue: 2 November 2023
At: 1pm

SCHEDULE OF REASONS

1. The Court, in reconsidering de novo a decision by the Registrar or another member of the Court staff, makes its own decision on the basis of all the information and evidence available to it, regardless of what was available to the prior decision-maker.

2. The Claimants/Appellants seek an order quashing the decision of the Registry of 18 October 2023 which is said to have truncated the time provided by RDC 44.30 from 21 days to 6 days for filing a skeleton argument in support of their application for permission to appeal and which imposed a late filing fee of USD 200 per day for filing after 13 October 2023, the expiry date for filing under RDC 44.29.

3. The central issue is whether or not it was impracticable for the Claimant to file its skeleton argument along with its Notice of Appeal and Grounds of Appeal within the 21 days provided by RDC 44.10 and RDC 44.6 (2). RDC 44.29 requires the Notice of Appeal to be accompanied by the Grounds of Appeal and the Skeleton Argument. The impracticability of doing so is the basis for the application of RDC 44.30, to which RDC 44.29 is expressly subject. RDC 44.30 provides: “Where it is impracticable to comply with Rule 44.29, a statement of the grounds of appeal and the skeleton arguments must be filed within 21 days of filing the appellant’s notice”. Here the Appellants’ Notice and Grounds of Appeal were filed on the last of the permitted 21 days, namely on 13 October 2023. Self-evidently, having filed the Grounds of Appeal, the only real issue is whether it was impracticable to file the Skeleton argument at the same time.

4. The Claimants/Appellants made no attempt to inform the Registry of any impracticability or to persuade it that it was impracticable to file a skeleton argument at the same time as filing their Notice of Appeal and Grounds of Appeal on 13 October 2023. I gain no real assistance from the decision of the Court of Appeal in Horizon Energy LLC v Al Buhaira National Insurance Company [2022] DIFC CA 015 at paragraphs 87-98, where the Court was concerned with an application to strike out an appeal notice on the basis that there had been a failure to comply with the 21 day requirement for filing the Skeleton Argument along with the Notice of Appeal and Grounds of Appeal. The Court of Appeal simply decided that there were no adequate grounds for such a strike out. The Court did not decide that it was unnecessary for the Appellant to satisfy it that it was impracticable to comply with RDC 44.29, whether at the time of filing the Appellant’s Notice or when filing the Skeleton Argument, in order to take advantage of RDC 44.30. The Court did set out the grounds of impracticability relied on without coming to a view as to their adequacy. It is, to my mind, self-evident that the Appellant must so satisfy the Court for the latter rule to apply, since otherwise the effect would be to give the Appellant 42 days to comply with the requirement to file all the documents required for the appeal and application for permission to appeal and the earlier 21 day rule in RDC 44.29 and the rule in RDC 44.30 would otherwise be rendered nugatory or futile.

5. Whilst the RDC does not specify when the issue of impracticability has to be determined, the point obviously arises when the Notice of Appeal is filed and either no Grounds of Appeal or no Skeleton is filed at the same time, or neither are filed. If a putative appellant wishes to take advantage of the terms of RDC 44.30, he must be in a position to show the impracticability of complying with RDC 44.29 on the expiry of the 21 day period following judgment to which RDC 44.10 applies. If the RDC 44.29 rule is not to be observed, an application should be made to the Court when filing the non- compliant Notice of Appeal, setting out the reasons which are said to constitute the impracticability in order to take advantage of RDC 44.30.

6. This the Claimants/Appellants did not do in the present case and the Respondent was entitled to take the point, as they did on 16 October 2023, which led to the Claimants/Appellants writing to the Registrar contending that they had complied with RDC 44.29 whilst relying on RDC 44.14 which provides for the Respondent’s submission in opposition to an application for permission to appeal to become due either 21 days after the service of an Appellant’s Notice or where RDC 44.30 applies, 21 days after the later service of the Grounds of Appeal and/or Skeleton Argument. It is again self- evident that there had been noncompliance with RDC 40.29 in such circumstances, unless and until the Claimants/Appellants showed that it was impracticable to serve the Skeleton Argument in the prescribed period. RDC 44.14 does not have the effect of changing the time limits set out in RDC 44.29 and RDC 44.30. On 16 October 2023, the Claimants/Appellants sought confirmation (inter alia) from the Registry that they were entitled under the RDC to file a skeleton within 21 days from filing the Notice of Appeal on 13 October 2023, and did not have to substantiate the impracticability of filing a Skeleton Argument contemporaneously. They were wrong on both counts and required an extension of time for service of the Skeleton argument on the ground of the alleged impracticability of complying with RDC 44.29.

7. On 17 October 2023, the Registry directed the Claimants/Appellants to make submissions as to impracticability falling within RDC 44.30 by 9am the following day and for the Respondent to reply shortly thereafter. Later that day, the Claimants/Appellants set out in an 8 paragraph email the reasons upon which they relied as showing such impracticability. These are summarized in paragraph 16 of the tenth witness statement of Hari Gopala Krishna. It was said that the delay in handing down the judgment, the complexity of the case leading to the 21 grounds of appeal advanced, the commitments of Counsel and the impossibility of covering the areas of argument in 35 pages (which therefore meant an application would have to be made to submit a longer skeleton) all meant that a skeleton could not be provided in the original 21 day period along with the Notice and Grounds of Appeal. In my judgment, the case was not one of significant complexity but the unavailability of Counsel to produce a Skeleton in time is a matter which the Claimants/Appellants were entitled to pray in aid.

8. The Respondent made submissions in reply, relying, essentially, on the need for the Claimants/Appellants to establish the impracticability required by RDC 44.30 in order to avail themselves of the additional 21 day period to which that rule referred, contending that no impracticability had been shown.

9. On 18 October 2023, the Registry, having reviewed the submissions of both parties ordered the Claimants/Appellants to file their Skeleton Argument by 4pm the following day, 19 October 2023 and informed them that failure to do so would result in a late filing fee of USD 200 per day for each day after 13 October 2023 when the Skeleton Argument should have been filed with the Notice of Appeal and Grounds of Appeal.

10. Given the breach of the RDC 40.29 by the Claimants/Appellants in not seeking an extension of time and not providing any reasons as to impracticability until asked to do so by the Registry, this was an entirely appropriate direction to be given by the Registry. The Registry did not shut out the Appeal but sought immediate compliance with the RDC of which the Claimants/Appellants were in breach and provided a sanction for continuing failure to comply. Further exchanges with the Registry took the matter no further. In circumstances, where it was obvious why the Registry had made the order it did, as outlined above, subsequent requests to the Registry for it to supply reasons for its decision led only to the Registry saying that the Claimants/Appellants should make any application which they saw fit

11. There has been no significant development of the arguments since that date and the witness evidence has done little more than repeat the submissions previously made in correspondence. No Skeleton Argument has yet been served by the Claimants/ Appellants in support of its application for permission to appeal and its putative appeal and, as is common ground, the Respondents are not bound to serve any Respondent’s Notice until 21 days after service of that Skeleton. Any appeal is thus being delayed.

12. In these circumstances and given also the history of this matter which shows the Claimants’/Appellants’ attempts to hold up the proceedings since judgement was given against them, they attract no sympathy. Whilst I might have extended time for the submission of the Skeleton Argument, had a timely application been made for an extension of time with good evidence of impracticability, the only fact of any significance in relation to this appears to have been the availability of trial counsel who was nonetheless apparently able to draft a prolix wide-ranging series of Grounds of Appeal. No application was made in time and whilst the Claimants’/Appellants’ appeal is not struck out so that they are not precluded from pursuing it with the provision of a late skeleton argument, the decision taken by the Registrar was justified and on reconsideration I endorse it

13. Should there be a continuing failure to provide the Skeleton Argument, and particularly should there be continuing delay after the expiry of the further 21 day period following the filing of the Notice and Grounds of Appeal on 13 October 2023, then there could come a time when the Claimants/Appellants could be considered to be in deliberate or contumelious default, with the risk of the Appeal being struck out. As to whether any such application would have a real prospect of success, I say nothing, but the Claimants/Appellants should be conscious of that risk in continuing in breach of the Court rules.

14. In these circumstance I decline to quash the decision of the Registry and make any different decision.