December 21, 2023 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 005/2021
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 LORD ANGUS GLENNIE
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’ Appeal Notice dated 13 October 2023 seeking permission to appeal against the Judgment (the “Permission Application” or “Claimants’/ Appellants’ Application”)
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 Permission Application is refused.
2. The Claimants/ Appellants must pay the Respondent her costs of the Permission Application to be assessed by the Registrar on the standard basis if not agreed.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 21 December 2023
At: 12pm
SCHEDULE OF REASONS
1. The Grounds of Appeal filed by the Claimants/ Appellants run to some 18 pages and articulate 21 separate grounds. I have read them carefully and have also read the analysis of those grounds and the response to them set out in the Respondent’s submissions in opposition.
2. Although the Grounds of Appeal raise some legal issues, the case ultimately turned on my assessment of the evidence and my findings of fact. It is impossible to envisage a different result without overturning my fact findings. The Respondent’s submissions in opposition to the Permission Application – with which I agree – make it clear how many of the Grounds of Appeal are appeals on questions of fact.
3. It is well established that a party appealing against a judgment on the basis that the judge erred in his findings of fact has to show not simply that the judge could or even should have reached a different decision but that the finding in question was “plainly” or “clearly wrong” or, to put it another way, “outside the bounds within which reasonable disagreement is possible”: see e.g. Al Khorafi & Ors v Bank Sarasin-Alpen (ME) Ltd [2015] DIFC CA 003, McGraddie v McGraddie [2013] UKSC 58. Put another way, the Appellant would have to show “that the decision under appeal is one that no reasonable judge could have reached”: Henderson v Foxworth Investments Ltd [2014] UKSC 41 at para.62. This applies not only to findings of fact but also to inferences drawn from those established primary facts. The Grounds of Appeal do not address this test or seek to make good their challenge to particular findings of fact on this basis. There is, therefore, no proper basis for allowing an appeal on these grounds to proceed.
4. For the reasons set out by the Respondent in her submissions in opposition to the Permission Application, I do not consider that this threshold can be met.
5. I refuse the Permission Application for this reason.
6. I should just add two points.
7. First, much is made in the Grounds of Appeal about my delay in producing my Judgment in this case. It is suggested, I think, that I had forgotten parts of the evidence. I regret the delay, but the suggestion that I had forgotten parts of the evidence is incorrect. In any event, I also had the transcript of the evidence to hand, and I referred to it frequently in coming to my conclusions.
8. Second, the Grounds of Appeal contain complaints about case management decisions, in particular curtailing cross-examination and limiting the number of pages for final submissions after the close of the trial. The Respondent deals with these matters in her submissions, but I should add that no objection was raised, as far as I recall, to my limit on the number of pages for final submissions – much depends on the case, but I generally find it more useful to have submissions which are concise and to the point, and deal with the main issues, rather than lengthy documents which explore every conceivable point in minute detail and thereby risk detracting from the essential issues crucial to the resolution of the dispute. Nor was I aware of any serious disagreement about the principle of dividing time between counsel for examining and cross-examining witnesses. The real problem, which resulted in there being no crossexamination of Mr Miocevic, was the inability of counsel for the Claimants to stick to the agreed limits or to take note of the many reminders from the bench as to the consequence of overrunning in cross-examination of one witness and the inevitable knock-on effect as regards the lack of time to cross-examine the final witness.
9. The Permission Application is refused. The Claimants/ Appellants must pay the Respondent her costs of the Permission Application, to be assessed by the Registrar on the standard basis if not agreed.
