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Claim No: CFI 020/2019

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

TEMPO EVENTS MANAGEMENT

Claimant/Appellant

and

ENVIE EVENTS LLC FZC

Defendant/Respondent

ORDER WITH REASONS OF DEPUTY REGISTRAR NOUR HINEIDI

UPON the Security of Costs Order of the Deputy Registrar Nour Hineidi issued on 11 June 2020 (“SOC Order”)

AND UPON reviewing the Appellant’s appeal notice filed on 2 July 2020 as well as those documents filed in support of that appeal notice (the “Permission Application”)

AND UPON reviewing the Respondent’s submissions opposing the Permission Application, filed on 23 July 2020, as well as those documents filed in support

AND UPON reviewing the case file

AND UPON having regard to the Part 44 of the DIFC Court Rules (“RDC”)

IT IS HEREBY ORDERED THAT:

1. The Permission Application is dismissed.

2. The Appellant is to pay the Respondent’s costs of the Permission Application, on the indemnity basis, to be assessed by a Registrar if not agreed.

Issued by:
Nour Hineidi
Deputy Registrar
Date of issue: 17 September 2020
At: 3pm

SCHEDULE OF REASONS

1. Pursuant to Rule 44.26 of the RDC, a security of costs order is deemed to be a case management decision.

2. On this basis, the test for whether permission to appeal should be granted, is not RDC 44.19, being the test identified by the Appellant in its Appeal Notice; the test to be applied is set out in RDC 44.27.

3. The reason RDC 44.27 is applicable arises by reason of RDC 44.26, which states:

4. RDC 44.27 states:

The test

5. I have reviewed the Appellant’s several pages of submissions supporting its application for permission.

6. In short, the Appellant applies the wrong test in those submissions and to that extent, I was not assisted by those submissions at all. On that basis, I now take the Respondent’s submissions, with respect to each of the three tests outlined in RDC 44.27, in turn.

Is the issue of sufficient significance to justify the costs of an appeal?

7. In my view and in general terms, appealing a security for costs order does not often justify the costs of an appeal.

8. The first point to make is a practical one: even if a security of costs order was wrongly made, the effect of a security of costs order is not an irreparable one, unless it can be proven that the party whom the order has been made against, is unable to pay the security amount into court. In this regard, the effect of a security of costs order can only be said to be damaging to the extent that a party against whom a “wrong” order is made, may not be able to continue litigating if it means that it must pay money into court (i.e. on the basis that it cannot afford to meet a security of costs order, and as a result, would have to discontinue its claim).

9. One of the main arguments posed by the Respondent, Tempo Events Management (hereafter “Tempo”) in the security for costs (“SOC”) application is that Tempo is able to satisfy a costs order if one was made against it. See paragraph 19 of the SOC Order.

10. On this basis, given that Tempo is not disadvantaged by the SOC Order, on the basis that it will simply be paying money, which it says it already has, into court, then in my view, the issue is not of sufficient significance to justify costs of an appeal. In fact, the disadvantages of proceeding with an appeal will outweigh the disadvantages of proceeding with payment of a, hypothetically speaking, “wrong” SOC order.

11. For the avoidance of doubt, although the question at hand does not involve an assessment of whether the SOC was wrongly made (i.e. whether there has been an error in fact or law), my view is that even in the event that the usual appeal criteria for permission applied (being RDC 44.19), the Appellant’s case for permission would fail. While it is entirely redundant to explain my reasons for this given the inapplicability of RDC 44.19, I will only go so far to say that, based on the papers filed in the Permission Application, the Appellant has drastically failed to prove that: (a) the appeal would have a real prospect of success; or (b) there is any other compelling reason why the appeal should be heard.

12. Furthermore, in taking into account the principles set out in Fidel v Felicia [2015] DIFC CA 002 at [24], the Applicant fails to demonstrate that the appellate court should be called on to interfere in the Permission Application. On that basis, even if that submission were made, I do not accept that that in the SOC Order: (a) gave rise to an error (or errors) in principle; (b) took into account irrelevant matters; (c) failed to take into account relevant matters; or (d) reflected a decision so plainly wrong it must be regarded as outside the generous ambit of the discretion entrusted in me as a decision maker.

Would the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision?

13. In the event the appeal was to proceed, the trial date would be further delayed.

14. This case ought to be tried soon. This case was registered on 29 April 2019 and has been the subject of considerable procedural delay. Even if the Appellant was successful in proving that the issue of the SOC Order is of sufficient significance to proceed to an appeal hearing, that criterion would fall away on the basis that the procedural consequences of proceeding with an appeal would outweigh the significance of the case management decision.

Would it be more convenient to determine the issue at or after trial?

15. The question of whether the SOC Order still stands will be determined shortly after trial, when the decision of the Court of First Instance is handed down.

Order

16. On the basis of the above, the Permission Application is dismissed.

17. The Appellant is to pay the Respondent’s costs of the Permission Application, on the indemnity basis, to be assessed by a Registrar if not agreed.