Privacy Settings

Claim No: CFI 018/2019

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

DELOITTE PROFESSIONAL SERVICES (DIFC) LIMITED

Claimant

and

(1) ABWAB REAL ESTATE LIMITED CO LLC
(2) ZMZ INVESTMENTS LLC
(3) AL BARARI DEVELOPMENT COMPANY

Defendants

ORDER OF CHIEF JUSTICE ZAKI AZMI

UPON the immediate judgment of His Excellency Justice Ali Al Madhani against the Second and Third Defendants dated 30 September 2019 (the “Judgment”)

AND UPON the application of the Second Defendant for permission to appeal the Judgment dated 16 October 2019 (the “First Appeal Application”)

AND UPON the order of His Excellency Justice Ali Al Madhani dismissing the Second Defendant’s First Appeal Application dated 11 May 2020

AND UPON the application of the Second Defendant for permission to appeal the Judgment dated 7 June 2020 (the “Second Appeal Application”)

AND UPON the order of the Chief Justice Zaki Azmi dismissing the Second Defendant’s Second Appeal Application dated 25 August 2020 (the “Decision”)

AND UPON the application of the Second Defendant for the Decision to be reopened dated 3 September 2020 (the “Application”)

IT IS HEREBY ORDERED:

1. The Application is dismissed.

2. No order as to costs.

Issued by:
Nour Hineidi
Deputy Registrar
Date of Issue: 26 November 2020
Time: 1pm

SCHEDULE OF REASONS

Introduction

1. On 30 September 2019, immediate judgment was entered against the Second and Third Defendants in these proceedings (the “Judgment”). On 11 May 2020, an application made by the Second Defendant for permission to appeal the Judgment was dismissed by the Court of First Instance and on 25 August 2020, the Court of Appeal dismissed its second application (the “Decision”). On 3 September 2020, the Second Defendant issued the present application, requesting the Decision of the Court of Appeal to be reopened under RDC r. 44.154 read with r. 44.155 (the “Application”). As the Second Defendant correctly observed in a witness statement submitted with the Application, “the Claimant’s claim, in so far as the Appellant is concerned, has come to an end and the Appellant has no other avenues opened to it other than the current application”.

2. Before discussing the Application, I want to first emphasise the importance of finality in litigation. Litigation cannot go on forever. If proceedings are allowed to continue indefinitely, they would hardly be worth issuing in the first place. If a claimant cannot have his rights vindicated in a timely manner and conclusively or a defendant to an unfounded claim cannot be freed of its burden with promptness, the courts would too often be instruments of injustice rather than justice. The maxim “justice delayed is justice denied” and the Court’s duty, encapsulated in the Overriding Objective of the RDC, to ensure that cases are dealt with expeditiously (RDC r. 1.6(4)), address this principle.

3. Litigants are expected to put all their cards on the table from the get-go. A first instance determination of a dispute is final. Notwithstanding this, litigants are given the opportunity to appeal decisions, albeit on limited grounds. An appeal will be allowed only where the decision of the lower court was wrong or unjust. As such, strictly speaking, an appeal is concerned with flaws in a decision and is not a second chance for unsuccessful litigants, even if an appeal incidentally provides one. A decision of an appellate court is final too; indeed, even more so than first instance decisions in as much as, in the DIFC Courts, there is no appeal from an appellate decision.

4. The RDC provides for one further safety valve. Pursuant to RDC r. 44.154, an appeal may, in certain exceptional circumstances, be reopened. RDC r.44.154 provides:

Pursuant to RDC r. 44.155, “‘appeal’ includes an application for permission to appeal”.

5. An application under RDC r. 44.154 must, therefore demonstrate that reopening an appeal is necessary in order to avoid real injustice, that exceptional circumstances exist and that there is no alternative effective remedy. Unsurprisingly, RDC r. 44.154 is rarely invoked. The point which I wish to emphasise, however, is that in respect of reopening appeals, it is not enough that a decision is only demonstrably wrong or unjust. By such a point in proceedings, certain policy considerations, like the need for finality to litigation, will have kicked in. Litigants will have had by then ample opportunity to ensure that a decision is correct. It follows that the vast majority of grievances litigants might have with decisions of the Court of Appeal – whether the grievances are due to disagreement with the Court’s jurisprudence or, instead, stem from previous misunderstandings of the relevant laws or procedural rules on the part of an aggrieved litigant or a bad strategy deployed by him or his representatives in the litigation, and so on – vast majority of grievances will not be justiciable under RDC r. 44.154.

RDC rr. 44.154

6. In Silva v United Investment Bank [2014] CA 004 (13 November 2014), Giles J gave guidance on RDC r. 44.154’s predecessor, RDC r. 44.179:

7. In Re Uddin, the English Court of Appeal stated at [16]:

One may without levity ask the question, how exceptional is exceptional? The language used by the court (and in CPR 52(17)(1)) is necessarily general: apart from the descriptive phrase “exceptional circumstances”, the requirements are that the probability of a significant (CPR – “real”) injustice must be clearly established, and that there be no effective alternative remedy.

8. At [18], the Court elaborated on the jurisdiction, partially cited above:

But the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. We think this language appropriate because the jurisdiction is by no means solely concerned with the case where the earlier process has or may have produced a wrong result (which must be the whole scope of a fresh evidence case), but rather, at least primarily, with special circumstances where the process itself has been corrupted. The instances variously discussed in Taylor v Lawrence or in other learning there cited are instructive. Fraud (where relied on to reopen a concluded appeal rather than found a fresh cause of action – Wood v Gahlings); bias; the eccentric case where the judge had read the wrong papers; the vice in all these cases is not, or not necessarily, that the decision was factually incorrect but that it was arrived at by a corrupted process. Such instances are so far from the norm that they will inevitably be exceptional. And it is the corruption of justice that as a matter of policy is most likely to validate an exceptional recourse; a recourse which relegates the high importance of finality in litigation to second place. (emphasis added)

9. The test was put slightly broader still at [21]:

the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claims of finality in litigation – especially pressing where what is contemplated is a second appeal. Finality is itself a function of justice, and one of great importance.

10. And the Court said at [22]:

It is to be remembered that apart from the requirement of no alternative remedy, “[t]he effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations” (Taylor v Lawrence, 547). Earlier we stated that the Taylor v Lawrence jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. That test will generally be met where the process has been corrupted. It may be met where it is shown that a wrong result was earlier arrived at. It will not be met where it is shown only that a wrong result may have been arrived at. (emphasis added)

The Application

11. In brief, the Second Defendant submits that the following three grounds (the “Grounds”) justify the Court of Appeal reopening the Decision which dismissed its application for permission to appeal the Judgment.

12. First, it submits that the Claimant, Deloitte Professional Services DIFC Limited, did not in fact have standing to bring the claim as the relevant letters of engagement (the “LOEs”) under which the Defendants are sued were concluded with Deloitte Corporate Finance Limited (“Deloitte Corporate”), a separate entity.

13. Second, the Second Defendant says that it is improperly sued by the Claimant in as much as Mr Zaal Mohamed Zaal is the Claimant’s counterparty under the LOEs, not the Second Defendant.

14. Third, the Second Defendant pleads that the Court may have “unwittingly lent aid to a claim was based on breaches of regulation and public policy,” in as much as, it submits, the Claimant and Deloitte Corporate carried on business outside of the DIFC while both being at all material times DIFC-registered entities, crucially before DIFC entities were permitted to do so.

15. The Grounds were all capable of being submitted to the Court of First Instance, yet this Application is the first time that they have been pleaded. As such, it can be said at once that, insofar as the Grounds are correct and have resulted in the Claimant obtaining the Judgment, the Second Defendant is unquestionably an author of its own misfortune. Taylor v Lawrence requires the Court to give significant weight to this fact in determining this Application.

16. And in as much as these Grounds were not before the Court of First Instance when the application for immediate judgment was being considered, I do not think that it can be argued that the litigation process was in any way corrupted. The examples of corruption of process given in Re Uddin were fraud, bias and “the eccentric case where the judge had read the wrong papers”. No such corruption has gone on or has been alleged in the instant matter.

17. The Second Defendant has not explained to the Court why it has waited until such a late stage in the proceedings before raising its proposed defences, the Grounds, or, alternatively, it has not clearly explained any previous misapprehension of the facts of the case or the relevant laws; misapprehensions which persisted for over a year in this litigation and until it had exhausted its right of appeal. In my judgment, the Second Defendant’s may even have faced difficulty in introducing the Grounds on appeal, but in the context of an application to reopen an appeal, I think it has failed altogether to satisfy the criteria of RDC r. 44.154 – no injustice so grave as to overbear the claim of finality in litigation has been demonstrated – and so, in my view, the Court is unable to accede to its request.

18. Under Silva, the Court should not reopen an appeal “so that a party can re-agitate a matter already considered or present the matter more fully or better than it may have been previously presented, even if the application is based on mistakes by the party’s lawyers”. This ratio sets a high bar for the Second Defendant which, in my judgment, it has not cleared.

19. By its Application, the Second Defendant effectively asks the Court to allow it to run an entirely different case to the one it ran at first instance and which, the evidence suggests, could have been run the first time around without any difficulty. (It is worth noting that in rejecting the Second Defendant’s first application for permission to appeal the Judgment, the judge below, His Excellency Justice Ali Al Madhani, identified that the Second Defendant had attempted to advance a number of new arguments; as such, the case now run is probably the third iteration of it.)

20. To indulge the Second Defendant in this way would, in my judgment, incentivise litigants to keep their cards close to their chests and to try plan A before plans B and C and so on. Such an indulgence would have an unjustifiable negative impact on the Court’s ability to facilitate the speedy resolution of disputes. The narrowness of the objective of RDC r. 44.154 is fortified by the terms of the provision and caselaw has not attempted to broaden its application. This Application, in not so many words, asks the Court to broaden the jurisdiction of RDC r. 44.154. I see no reason whatsoever for doing so.

21. The Second Defendant has not demonstrated exceptional circumstances that would justify reopening the Decision. At best it has demonstrated a badly articulated case which remained a work in progress until the present Application.

22. In such circumstances, the Application to reopen the Decision of the Court of Appeal is dismissed.