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Claim No: CFI-019-2013

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

 (1) ROBERTO’S CLUB LLC

(2)  EMAIN KADRIE

                                                                                          Claimants

and

PAOLO ROBERTO RELLA

Defendant

 REASONS FOR ORDER OF JUSTICE SIR DAVID STEEL DATED 27 APRIL 2015

1. In this application the Defendant seeks permission to re-open his application for permission to appeal against the judgment of this Court dated 10 December 2014. The application for leave to appeal was dismissed on 26 February 2015. The present application is made under Rule 44.179 of the Rules of the DIFC Courts (“RDC”).  This Rule is modelled on CPR Part 52.17 which in turn was based on the reasoning of the English Court of Appeal in Taylor v. Lawrence [2002] EWCA Civ. 90.

2. The jurisdiction does not furnish an avenue for appeal against a decision of the DIFC Courts of Appeal. Indeed RDC 44.178 states in terms that no appeal lies. In short there is a high hurdle to be surmounted to justify the exercise of the jurisdiction which is seldom to be exercised. In In Re Uddin (A Child) [2005] 1 WLR 2398 the English Court of Appeal identified the limited scope of the jurisdiction in that it can only be 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”.

3. That approach equally applies to the engagement of RDC 44.179.  In Raul Silva v. United Investment Bank Claim No: CA-004-2014, Justice Roger Giles set out the position as follows:

“5.  RDC.44.179 is modelled on the English CPR 52.17 introduced in 2003 after the decision in Taylor v. Lawrence [2002] EWCA Civ 90; [2003] QB 528 that there was an inherent jurisdiction to reopen an appeal in order to avoid real injustice in exceptional circumstances.  In In re Uddin (A Child) [2005] EWCA Civ 52; [2005] 1 WLR2398 it was said at [18] that it must generally be demonstrated “that the integrity of the earlier litigation process…has been critically undermined” and “the process itself has been corrupted”, and that “it is the corruption of justice that as a matter of policy is most likely to validate an exceptional course; a course which relegates the high importance of finality in litigation to second place”.

6.   An appeal is not to be reopened so that a party can relitigate 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…The jurisdiction must be exercised with caution, given the importance of the public interest in the finality of litigation.  Generally it will not be exercised unless the applicant can show by accident and without fault on his part he has not been heard or his appeal has not been fully considered, although there may be other circumstances in which, for example, misapprehension of the facts or the law has fundamentally afflicted the integrity of the judgment in question.”

4. I accept that approach as entirely correct and appropriate.  In the result the difficulty with the present application is that the Defendant does not even contend (let alone establish) that the integrity of the process has or may have been critically undermined or corrupted. The thrust of the skeleton argument in support of the application is simply that the judgment refusing permission to appeal is erroneous in various respects. This is purportedly supported by a witness statement from the senior partner of the Defendant’s legal representatives to like effect. I have grave doubts about the admissibility of that evidence but I will accept it as constituting supplementary submissions on the Defendant’s part. But, again, it is based upon the presumption that the appeal may be reopened simply in order to reargue matters on which it is claimed that the decision was arguably wrong.

5. The application can be dismissed on this basis alone. There are two complaints. First is the complaint that the Defendant has forfeited his valuable shares in circumstances where neither the company nor the majority shareholder has suffered any loss. However, questions of value and loss were not issues at the trial. Indeed at a late stage in the trial the Defendant was refused leave to amend to plead matters relating to the value of the shares. Thus any disparity between the value of the shares and losses occasioned by the breach were not established and could not be relied upon in support of an order for relief against forfeiture (even assuming it is a principle that could be relied on in the DIFC). No suggestion of the process being undermined or corrupted is arguable.

6. It is likewise in regard to the second complaint. It is still submitted that the trial judge was in error in concluding that the forfeiture provision relied upon was unenforceable as a penalty. This is merely to repeat matters which have been considered and rejected both at first instance and on appeal. It cannot be contended that the analysis in paragraph 105 of the original judgment reflects a corruption of the process.

7. For the sake of completeness, two specific errors which are alleged are considered.  The reliance on the Constitution as a ground for avoiding exposure to forfeiture provisions as being unenforceable is necessarily a secondary argument given the premise that relief against forfeiture was not applicable to the DIFC. Further, the suggestion that the construction of the DIFC provisions in regard to damages must be undertaken in the light of the Constitution and thus inconsistent with a disproportionate form of relief is “strongly arguable” cannot support a submission that the process has been corrupted. In any event the constitutional argument was not raised at trial or in the Defendant’s skeleton for the appeal.

8. The other error is said to be contained in regard to the question of disparity of treatment.  The focus of the discussion in the Claimant’s argument was the absence of any complaint at the material time. Regardless of whether the Defendant regards the rejection of the argument as wrong, the point provides no support for a complaint of corruption of the process.

9. The application was accordingly refused at an earlier date with costs.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 10 May 2015

At: 4pm