December 17, 2014 court of first instance - Orders,Orders
Claim No: CFI 018/2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
Mr KISHANCHAND GANGARAM BHATIA
and
ICICI BANK LIMITED
ORDER OF JUSTICE ROGER GILES
UPON reviewingthe Claimant’s Application Notice CFI 018-2014/2 to amend the Particulars of Claim dated 20 November 2014, and
AND UPON reviewingthe Defendant’s submissions in response to the Claimant’s Application dated 10 December 2014 and the Claimant’s reply to the Defendant’s submissions dated 11 December 2014
IT IS HEREBY ORDERED THAT:
1. Permission be given to the Claimant to amend the particulars of claim filed with the application on 20 November 2014, save and except for paras 94-99 thereof.
2. Such permission is given with respect to paras 92 and 93 on the terms stated in the reasons below.
3. The amended particulars of claim shall be filed and served within seven days from the date of this order.
4. The time for filing the defence shall be extended to 22 January 2015.
5. The parties shall file and serve submissions, not exceeding two pages in length and stating the costs order he or it seeks and the reasons therefor, within 14 days from the date of this order.
The reasons
1. The proceedings were commenced by a claim form filed on 22 May 2014, accompanied by particulars of claim. The Defendant’s application contesting jurisdiction was filed on 25 June 2014, and after a hearing was dismissed on 30 October 2014. The time for filing a defence was subsequently extended to 15 December 2014.
2. On 20 November 2014 the Claimant filed an application to amend the particulars of claim. For the reasons which follow, permission to amend should be granted, save in one respect and on terms.
3. In his application the Claimant requested that it be dealt with without a hearing. Such an application may be dealt with at a hearing or, if Rule 23.68 [sic: Rule 23.69] applies, without a hearing; Rule 18.13. Rule 23.69 permits dealing with an application without a hearing inter alia if the parties so agree. On 6 December 2014 the Defendant filed submissions in opposition to the amendment, taking no objection to the Claimant’s request. I infer that the Defendant agrees that the application is to be dealt with without a hearing.
The Amendments
4. I described the elements of the Claimant’s claim and the asserted causes of action in my judgment on the jurisdiction application, whilst saying (at [3]) that the particulars of claim “are not well drawn”.
5. The amendments to the particulars of claim are extensive, and in part appear to have been prepared with the decision of the Deputy Chief Justice in Khorafi v Bank Sarasin-Alpen (ME) Ltd (CFI 026/2009, 21 August 2014) in mind.
6. Apart from a number of paragraphs under the heading “Investment Contracting Process” (paras 29-45), the dealings which the Defendant alleged as the factual basis for the claim remain essentially unchanged although clarified including by an allegation of specific advice concerning the proposed investment and an express allegation of reliance. The paragraphs above-mentioned are concerned with the signature of a number of documents, globally called the Defendant’s Contracts, and allege to the effect that they were signed in haste and without proper explanation, that with one exception copies were not provided to the Claimant, and that one of them (the DIFC Branch General Terms and Conditions) was “the controlling document” (para 40).
7. The causes of action are substantially recast, and considerably extend the complaints concerning the Defendant’s conduct. They are under the headings of “Regulatory Breaches”, “Contractual Claims”, “Breach of Collective Investment Law” and “Breach of DIFC Law of Obligations”. The regulatory breaches are wider than previously, the contractual claims are new, the Claimant now invokes the 2007 Collective Investment Law, and the breaches of the Law of Obligations are more fully described.
8. The reason for the amendments stated in the application is that, with the one exception, the Claimant did not have copies of the Defendant’s Contracts (scilicet, until they were disclosed in the course of the jurisdiction application) and –
“…on the review of the documents filed by the Defendant, new information has come to light and therefore new causes of action are required to be pled [sic!!] in the Particulars of Claim”.
9. On the face of the amendments, not all are tied to the Defendant’s Documents. However, it may be accepted that becoming aware of the Defendant’s Documents would spark a review of the Claimant’s case, and a review going beyond their immediate relevance with a view to otherwise improving the particulars of claim. I have no doubt that that is what happened.
The Defendant’s Opposition
10. The Defendant’s opposition to the amendments was on two grounds.
11. The first was to assert that the Claimant was provided with copies of the Defendant’s Documents at the time of execution, and to submit that he had failed to prove that he did not then receive them and for a number of reasons should be disbelieved in his witness statement in which he said that, with the one exception, he did not receive copies.
12. This is not a sound basis for opposing the amendments. Whether the Claimant was given copies of all the Defendant’s Documents at the time of execution may be an issue at the trial, and is not for resolution in this application. It is sufficient that the Claimant alleges that he was not provided with copies and so says in a witness statement. Further, whether the amendments should be allowed must look beyond the asserted reason for amendment of the particulars of claim, to the substance of the Claimant’s case and the changes from his existing case, and to any prejudice to the Defendant if amendment is now permitted.
13. As part of the submissions on this ground, the Defendant said that amendment five months after commencing the proceedings was “hopelessly out of time…[and]…an afterthought intended to delay the proceedings and obscure the facts of the case”. No reason appears for the Claimant wishing to delay the proceedings, and the assertion of obscuring the facts is nonsense. This kind of submission is not of assistance.
14. The other ground was expressed as –
“The amendments proposed to be made by the Claimant go beyond the scope of the Documents and is an attempt to expand the allegations as originally made. Further the Defendant believes that the admission of the Amended Particulars of Claim, especially on the grounds stated for amendment, will negatively prejudice the interests of the Defendant, without the Claimant having to provide any evidence to support his claim of non-receipt of the Documents. The Claimant has quoted the law (which existed even at the time of filing of the original Particulars of Claim) through the amended Particulars of Claim without pleading and specifically setting out the particular facts that constituted a violation of the quoted law. Further, the pleadings of the Claimant in the Amended Particulars of Claim are not substantiated by any additional documents or evidence.
Moreover, several proposed amendments have no relationship with Documents alleged not to have received by the Claimant and are merely being made with a view to bolster the existing claims.”
15. As I have said, the amendments are not all tied to the Defendant’s Documents. But that is not the end of the matter; to the extent that they go beyond taking account of the Defendant’s Documents, should they nonetheless be permitted? That the amendments might “bolster the existing claims” is not of itself a reason for refusing to allow them.
16. The Defendant did not further explain any prejudice it would suffer if amendment were permitted. Nor did it further address the substance of the amendments with a view to demonstrating that the pleading was defective, or that the case as pleaded in one or more of the causes of action disclosed no reasonable grounds. No relevant prejudice to the Defendant has been shown or is self-evident; nor, save as mentioned below, is it for the Court to question the detail of the amended pleading where the Defendant has not done so.
Decision
17. While the application to amend is made some time after the proceedings were commenced, the jurisdiction application intervened. The Defendant has not yet filed a defence. In my opinion, amendment should be permitted subject to two matters, albeit not matters raised by the Defendant. Both stand out, and they should not be passed over.
18. First, the causes of action now include breach of contract in “the unfair terms” of the Defendant’s Contracts and “the manner in which they were executed”, whereby it is said that the contracts do not satisfy the test of reasonableness under Articles 39 and 40 of the Implied Terms in Contracts and Unfair Terms Law, DIFC Law No. 6 of 2005 (paras 94-99). The pleading in this respect misconceives the operation of the Articles. They do not give a cause of action for breach of contract. If the Defendant relies in its defence on a term of one or more of the Defendant’s Contracts, and the term comes within the scope of the Articles, if so advised the Claimant can plead in his reply that the term is subject to the test of reasonableness and is not reasonable. Paragraphs 94-99 will therefore not be permitted.
19. The causes of action now include breach of contract in failing to give suitable advice (paras 92 and 93). It is likely that the claim in this respect is statute barred, and that Rule 18.9 applies. In the absence of submissions on the operation of the Rule and whether it should be given effect, I will permit amendment to include those paragraphs on the terms that –
(b) the amendment is without prejudice to the Defendant’s ability, if so advised, to include in its defence that the cause of action is statute barred; and in that event
(c) the amendment is subject to submissions at the trial as to whether, if the limitation period has run, (i) by the operation of Rule 18.9 a remedy for the breach of contract can be granted, and if so (ii) the Rule should be given effect.
20. I consider that I can properly disallow paras 94-99 and impose these terms without hearing the parties because their rights are preserved. Reasonableness can still arise, and any limitations defence is a matter for the trial. The proceedings will not be delayed, and the parties will not be put to the expense of additional submissions at this time.
Other Matters
21. The Claimant submitted that he should have the costs of the application. The Defendant made no submission as to costs. Rule 18.27 is relevant, but there are other considerations and the appropriate costs order is not straightforward. The parties should file further brief submissions as to costs.
22. The time for the defence must be extended.
Issued by:
Maha AlMehairi
Judicial Officer
Date of Issue: 17 December 2014
At: 4pm
