March 27, 2017 court of first instance - Orders,Orders
Claim No: CFI 008/2015
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
BOCIMAR INTERNATIONAL N.V.
and
EMIRATES TRADING AGENCY LLC
ORDER OF JUSTICE SIR JEREMY COOKE
UPON reviewing the Claimant’s Appeal Notice dated 21 March 2017 and supporting documents seeking permission to appeal the Order of Judicial Officer Maha Al Mehairi dated 6 March 2017
AND UPON reviewing the Order of Judicial Officer Maha Al Mehairi dated 6 March 2017 (the “Order”)
AND UPON reviewing the Rules of the DIFC Courts (“RDC”)
AND UPON reviewing the documents recorded on the case file
IT IS HEREBY ORDERED THAT:
1.The Claimant be granted leave to appeal against the Order, pursuant to RDC 44.8(1), on the basis that there is a compelling reason why the appeal should be heard and/or the appeal has a real prospect of success.
2. Costs shall be costs in the appeal.
Issued by:
Nassir Al Nasser
Judicial Officer
Date of issue: 27 March 2017
At: 11am
REASONS:
1.The Order of 6 March 2017 for wasted costs was made without reference to RDC 38.84 which states that “the Court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why the Court should not make such an order” against that representative. RDC 38.84 is phrased in mandatory terms.
2. When the application for a wasted costs order was filed on 13 February 2017, with service apparently effective on 14 February, it is arguable that the Court should have directed the legal representative to state whether it was content for the matter to be determined without a hearing and set a time for a response. It is arguable that it could not properly proceed to determine the matter on paper without a hearing after 14 days had expired without a response from the legal representative, given the nature of the application and the terms of the Rule.
3. Practice Direction No. 4 of 2014 also sets out the need for the Court to make directions about the procedure to be followed where there is an application for a wasted costs order to ensure fairness as well as simplicity.
4. The Court ordinarily takes such an application in two stages as set out in paragraph 7 of the Practice Direction and considers whether there is material, which, if unanswered, would be likely to lead to a wasted costs order and whether such wasted costs proceedings are justified before giving the legal representative the opportunity to make representations in writing or at a hearing and only then proceeding to decide whether it is appropriate to make such an order. No directions or any such procedure appear to have been followed here.
5. A longer period than 14 days might well have been required for a response in any event, because of the serious nature of the order sought, since a wasted costs order should only be made where the legal representative has acted improperly, unreasonably and negligently, where its defaults have caused unnecessary costs and where it is just in all the circumstances to compensate the other party for some or all of the costs incurred or wasted. Although it seems that the legal representative misunderstood the effect of the RDC about the need for service and/or was unclear about the representation of the witnesses as opposed to the Defendant judgment debtor and/or should have appreciated the need for personal service on the witnesses in respect of contempt proceedings, the legal representative had to be given a clear and adequate opportunity to deal with the application. It is arguable that:
(a) There was no good evidence of wasted costs incurred in relation to the failure to serve the Suspended Committal order or notice of the hearing.
(b) Justice may not have required such an order to be made, in the context of the enforcement proceedings as a whole, particularly given the history of difficulty in serving Messrs Kamya and Baroudi in respect of the judgment debt of the Defendant enshrined in the consent order of 26 January 2016.
(c) No such order should have been considered until the end of the proceedings.
6. In the circumstances, there is a compelling reason why this appeal should be heard and a realistic prospect of success, even if the legal representative failed to act as it should.
7. The Applicant has sought permission to appeal rather than applied for a reconsideration by a CFI Judge of the decision of the Judicial Officer de novo under Practice Direction No. 3 of 2015 which required such an application to be made within 3 days of the decision made. That would have been a more appropriate procedure, rather than seeking permission to appeal and pursuing an appeal.
8. The other relief sought in paragraph 3 of the draft order is not properly the subject of an appeal and should be the subject of a separate application if it is to be pursued.
