February 28, 2017 Court of Appeal - Orders,court of first instance - Orders,Orders
Claim No. CFI 020/2014
CA 002/2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
BETWEEN
GFH CAPITAL LIMITED
Claimant/Respondent
and
DAVID LAWRENCE HAIGH
Defendant/Appellant
ORDER WITH REASONS OF COURT OF APPEAL
UPON hearing Counsel for the Respondent at a hearing on 18 September 2016 at which the Appellant was not present despite having received notice of such hearing
AND UPON reviewing the following applications made by the Appellant dated 11 September 2016:
(a) Appellant’s application for permission to appeal the directions order of the Chief Justice dated 10 August 2016;
(b) Appellant’s application for permission to appeal the directions order of the Registrar dated 9 September 2016; and
(c) Appellant’s application for various orders of the DIFC Courts
AND UPON reviewing the Appellant’s application by way of letter dated 27 November 2016 for a stay in proceedings and for permission to appeal the orders given on 18 September 2016.
AND UPON reviewing the correspondence received on 29 November 2016 from Bryan Cave on behalf of the Respondent
ORDER
IT IS HEREBY ORDERED THAT:
1.The Appellant’s application to appeal against the directions order of the Chief Justice dated 10 August 2016 be struck out.
2. The Appellant’s application to appeal against the directions order of the Registrar dated 9 September 2016 be struck out.
3. The Appellant’s 11 applications by way of letter dated 11 September 2016 be struck out.
4. Costs reserved. Parties to make costs submissions within 14 days of the date of this Order.
Issued by:
Natasha Bakirci
Assistant Registrar
Date of Issue: 28 February 2017
At: 4pm
REASONS FOR THE ORDER
Brief Background
1.The appeals in this matter arose out of a series of applications made by the Appellant to the DIFC Courts. A brief background is given below to provide context to the matter.
2. The Respondent made a claim over the Appellant’s assets on the basis that the Appellant had allegedly committed fraud by issuing false invoices to third parties, thereby diverting US$ 5 million to his personal bank accounts, in breach of his fiduciary duties to the Respondent.
3. The Appellant was arrested on 18 May 2014 in response to a criminal complaint by the Claimant. He was released from prison on 21 March 2016.
4. The Respondent applied for a freezing order against the Appellant. On 3 June 2014, Deputy Chief Justice Sir John Chadwick granted a freezing order against the Appellant (the “Freezing Order”). The Appellant made various applications to the Court to vary the Freezing Order. In response, Justice Sir David Steel issued three subsequent orders dated 3 May 2015, 14 May 2015 and 28 June 2015.
5. On 14 July 2015, the Appellant made four appeals against the orders of Justice Sir David Steel by way of letter (the “Four Appeals”). Three appeals were made in relation to the amendment of the Freezing Orders so that some of the frozen funds could be released to fund the Appellant’s various court actions and the Appellant could be granted larger sums of maintenance. One appeal was made against Justice Sir David Steel’s refusal to recuse himself from all future proceedings in the matter.
Orders issued in relation to the Appellant’s Four Appeals
6. On 10 August 2016, the Chief Justice issued an order on the Four Appeals made by the Appellant (the “Order of the Chief Justice”). The relevant orders are summarised as follows:
(a) Amount(s) not exceeding AED 130,000 in the aggregate would be released from the Pro Bono Account to a legal representative appointed by the Appellant for the purpose of arguing the Four Appeals before the DIFC Courts. These funds would only be released to the legal representative, not to the Appellant himself, and would only be released after a review of bills rendered by the legal representative.
(b) The Appellant’s appeals for part of the frozen funds to be released to fund the various court actions in which the Appellant was involved (the “Releasing Funds Appeal”) would proceed for hearing on 18 September 2016 (the “Hearing”). The Skeleton Arguments for the Releasing Funds Appeal were to be filed by no later than 2pm on 1 September 2016. Failure to meet the deadline would result in the striking out of the Releasing Funds Appeal. It should be noted that this deadline was extended to 14 September 2016 by emails of the DIFC Courts Registry dated 5 September 2016 and 8 September 2016 respectively.
(c) The Appellant’s appeal for larger sums of maintenance (the “Maintenance Appeal”) and the Appellant’s appeal against Justice Sir David Steel’s refusal to recuse himself from all future proceedings (the “Recusal Appeal”) would be heard on 11 and 12 December 2016. However, skeleton arguments were to be filed by 4pm on 11 November 2016 and any failure to do so would result in the relevant appeal being struck out.
(d) The Claimant’s application for immediate judgment (the “Immediate Judgment Application”) would proceed between 16 and 18 October 2016 in “the absence of any indication to the contrary” by 4pm on 17 August 2016 that Parties would be unavailable on those dates.
7. On 8 September 2016, Registrar Mark Beer issued an order containing directions in relation to the appeal and the immediate judgment application (“Order of the Registrar”). It was ordered that the Appellant’s Releasing Funds Appeal was to be struck out and that the Immediate Judgment Application would proceed between 16 and 18 October 2016.
Applications made by the Appellant prior to the Hearing
8. The Appellant filed three applications on 11 September 2016 (the “Three Applications of 11 September 2016”):
(a) An application to appeal against the directions order of or otherwise reopen the Order of the Chief Justice dated 10 August 2016 (the “Appeal against the Order of the Chief Justice”);
(b) An application to appeal against the directions order of the Registrar dated 9 September 2016 (the “Appeal against the Order of the Registrar”); and
(c) An application for various orders to the DIFC Courts (the “Application to the DIFC Courts”).
9. The Appellant requested for waiver of fees for the Three Applications of 11 September 2016 or for the Court to consent to the release of fees from his frozen funds.
10. The Appellant sought various orders in its Application to the DIFC Courts. A summary of the orders sought are as follows.
(a) A finding that all instructions, pleadings, statements and evidence the Appellant provided to his instructed solicitors and counsel while he was in detention from 18 May 2014 to 24 March 2016 be set aside;
(b) Further or in the alternative, an order staying the Respondent’s claim (the “Claim”) until the United Nations had issued an opinion on “the torture, arbitrary detention, and unfair trial and other serious abuses” of the Appellant’s detention;
(c) Further or in the alternative, an order to adjourn all hearings and the timetable of the Court until one month after he had been released from hospital;
(d) Further or in the alternative, an order striking out or, alternatively, staying the Claim pending the resolution of his civil claim against the Respondent commenced in the Dubai Courts;
(e) Further or in the alternative, an order staying the Claim pending referral to and decision of the judicial tribunal for the DIFC Courts and the Dubai Courts. In the same application, the Appellant also requested for the said referral;
(f) An order releasing funds as reasonably required to enable the Appellant to appoint lawyers and counsel;
(g) An order releasing such frozen funds as may be reasonably necessary to enable the Appellant to obtain local Dubai legal counsel to seek a retrial of case number 2014/19856 based on new evidence which the DIFC Courts had prevented him from filing;
(h) An order releasing funds to enable the Appellant to file a criminal and civil complaint against the Dubai-based party which represented that they would act for the Appellant in defending the Immediate Judgment Application and to which funds of GBP 30,000 were released by the DIFC Courts. The Appellant alleged that the Dubai-based party had absconded with the funds;
(i) An order directing the Registrar to respond to the Appellant’s letter of 17 July 2016 and his letters and applications referred to therein;
(j) An order fixing a directions hearing following the alleged “maladministration and bungling” by the Registrar and Ms Lema Hatim of the DIFC Courts; and
(l) An order directing an investigation into Ms Lema Hatim’s handling of the Claim.
11. At the Hearing, Counsel for the Respondent took the Court of Appeal through the Appellant’s Three Applications of 11 September 2016 mentioned in paragraphs 8 and 10 of this Order.
12. The Court of Appeal noted that it would need to hear from the Appellant on his response to the Respondent’s oral submissions. At the Hearing, Chief Justice Michael Hwang stated that the Court would give the Appellant two weeks from the date of receipt of the transcript of the Hearing. The Court would only consider a written submission from the Appellant and there would be no further applications for any reconvening of the Court of Appeal. The response was due on 7 October 2016.
13. On 20 September 2016, the Registrar of the DIFC Courts informed the Appellant of the outcome of the Hearing (the “Registrar’s Letter of 20 September 2016”). The relevant decisions made by the Court of Appeal were as follows.
(a) The Orders of the Court dated 10 August 2016 and 6 September 2016 would stand unamended. The Court noted that there is a typographical error as the Registrar must have intended to refer to the Order of the Registrar dated 8 September 2016.
(b) The Appellant’s Releasing Funds Appeal remained struck out as the Appellant had not fulfilled the condition of filing his skeleton argument by the specified date despite several extensions.
(c) The Claimant’s Application for Immediate Judgment remained fixed for hearing as scheduled on 17 October and 18 October 2016.
(d) The Registrar listed the timelines for the Parties to file their respective witness statements in support of the Immediate Judgment Application.
(e) The Appellant was ordered to file his response to the oral submissions made by the Claimant at the Hearing on 18 September 2016 within two weeks after the transcript and bundle of documents had been delivered to him.
14. In the Registrar’s Letter of 20 September 2016, the Registrar noted that the Court expected service of the transcript and bundle of documents to be effected by 23 September 2016 and the Appellant’s response would be due on 7 October 2016. The Court notes that no response was filed by the Appellant by the due date.
15. By way of letter dated 23 September 2016, the Respondent informed the Court that the transcript and bundle of documents were sent to Keystone Law by courier on 20 September 2016 and received on the same date. The Respondent also informed the Court that a copy of the transcript and bundle of documents was sent to The Bristol Priory, the hospital which the Appellant asserted he was to check into. However, the Respondent was informed by The Bristol Priory that the Appellant was not a patient at that hospital and that there was no patient staying at the Bristol Priory under an assumed name. The Respondents repeated their request for an order that service upon Keystone Law be considered valid service upon the Appellant under rule 9.31 of the Rules of the DIFC Courts (“RDC”).
16. On 6 October 2016, the Court granted the Respondent’s request that service upon Keystone Law be deemed effective service.
Analysis of the Appellant’s Applications
17. Before the Court elaborates on its analysis, it bears emphasising that the Court is aware that the manner in which the Appellant is presenting his case is unorthodox presumably because the Appellant does not have a lawyer on record representing him in their DIFC proceedings between him and the Respondent. In order to put a speedy end to the Appellant’s applications, the Court is not taking into account any non-compliance of technical requirements relating to forms and payments of fees. Bearing in mind the Overriding Objective under RDC 1.6, it is simply addressing the arguments on its merits.
Applicable law
18. An appellant requires permission to appeal to the Court of Appeal under RDC 44.5.
19. Under RDC 44.89, the appeal Court may:
(1) Strike out the whole or part of an appeal notice;
(2) Set aside permission to appeal in whole or in part;
(3) Impose or vary conditions upon which an appeal may be brought.
20. In accordance with RDC 44.133, the Court of Appeal, on hearing an appeal from a decision of the Court of First Instance, may make the following decisions.
(1) Make or give any order that could have been made or given by the Court of First Instance;
(2) Attach terms or conditions to an order it makes;
(3) Annul or set aside a decision;
(4) Require or prohibit the taking of a specific action or of action of a specified class;
(5) Make a declaration of facts; or
(6) Make any other order that the Court of Appeal considers appropriate or just.
21. As mentioned in paragraph 12 of this Order, the Court ordered the Appellant to file a written response to the oral submissions made by the Claimant at the Hearing by 7 October 2016. However, there was no response from the Appellant by the due date. The Court would therefore have to arrive at its decision without any written response from the Appellant on the Claimant’s oral submissions at the Hearing. In the Appellant’s Appeal against the Order of the Chief Justice, the Appellant submitted that the order was a directions hearing order and that it could not be deemed a judgment of the Court of Appeal. The Appellant argued that the order relating to the Immediate Judgment Application was appealable as it was a matter for the Court of First Instance. He also made an alternative submission that the appeal could be reopened pursuant to rule 44.179 of the RDC, which provides:
“44.179
The Court of Appeal or the Court of First Instance will not reopen a final determination of any appeal unless:
(1) It is necessary to do so in order to avoid real injustice;
(2) The circumstances are exceptional and make it appropriate to reopen the appeal; and
(3) There is no alternative effective remedy.”
22. The Appellant made similar submissions with regard to the reopening of the Appeal against the Order of the Registrar.
Grounds of appeal
23. The grounds of appeal relied on in the Appeal against the Order of the Registrar and the Order of the Chief Justice are similar. It is clear that the Appellant had copied and pasted the grounds of appeal from one application to the other. The grounds of appeal can be briefly summarised as follows.
(a) The Appellant was not served or provided with “the order dated 18 February 2016”. The Appellant was referring to the Registry’s email which granted permission to the Appellant to proceed with the appeals made against the orders issued by Justice Sir David Steel.
(b) The Court scheduled dates when it was impossible for the Appellant to attend court. Accordingly, the Court failed to fully consider the medical evidence that the Appellant was in hospital and was unable to work on his appeals. The Court failed to consider that the Appellant would be unable to travel to Dubai and would be unable to procure a video link to the hospital for the Hearing.
(c) The Court failed to take into account “relevant considerations” by not releasing any of the Appellant’s funds or “sufficient pro bono funds” to enable him to appoint lawyers.
(d) The Court failed to take into account the appeal dated 8 April 2015 which was submitted by Stephenson Harwood and Zafar Ali QC.
(e) The Registrar failed to respond to the Appellant’s repeated requests for copies of all the full appeals, court orders, pleadings and case file.
(f) The Court did not give the Appellant the opportunity to present the medical evidence he submitted.
(g) In relation to the Order of the Chief Justice, the Judge deprived the Appellant of the “standard right of appeal” as the Judge sitting in the appeal court was not entitled to make an order of directions for the lower court, namely, setting the date of the Immediate Judgment Application and directions in relation to it.
(h) The Court erred in procedure, fact and in law in setting a timetable which required the submission of documents and work in the Islamic holiday of EID.
(i) The appeal should be reopened pursuant to RDC 44.179.
24. In all the Appellant’s applications, he emphasised that he was a litigant-in-person and that he did not accept the jurisdiction of the DIFC Courts.
25. It is clear that the Appellant had made a myriad of applications to the Court, many of which were convoluted and confusing. For the ease of reference, the Court has categorised the applications into seven main categories.
(a) Applications for permission to appeal against the Order of the Chief Justice and the Order of the Registrar.
(b) Application to reopen the Order of the Chief Justice and the Order of the Registrar pursuant to RDC 44.179.
(c) Application to adjourn all hearings and timetable of the Court until one month after the Appellant has been released from the hospital.
(d) Application for a waiver of fees for the Three Applications of 11 September 2016.
(e) Application to stay or strike out the Claim.
(f) Application to release frozen funds to appoint lawyers and counsel.
(g) Application to investigate into the alleged “maladministration” by the Registrar and Ms Lema Hatim of the DIFC Courts.
26. After reviewing the Appellant’s applications and hearing the oral submissions from the Respondent, the Court dismisses all the Appellant’s applications. The reasons are as follows.
Application for permission to appeal the Order of the Chief Justice and Order of the Registrar
27. The Order of the Chief Justice and the Order of the Registrar were direction orders which focused on the timelines for the Immediate Judgment Application, the Releasing Funds Appeal, the Maintenance Appeal and the Recusal Appeal.
28. These directions were case management decisions. Under RDC 44.30, case management decisions include decisions concerning directions about the timetable of the claim.
29. Under RDC 44.31, where an application is for permission to appeal from a case management decision, the Court dealing with the application may take into account whether (1) the issue is of sufficient significance to justify the costs of an appeal; (2) the procedural consequence of the case management decision; and (3) it would be more convenient to determine the issue at or after trial.
30. As mentioned in the Registrar’s Letter of 20 September 2016, the direction orders of the Chief Justice and the Registrar remain unamended. At the Hearing, the Court rejected the applications, denying the Appellant permission to appeal against the directions orders. The Court now elaborates on its reasons below.
31. The Court takes the view that the Appellant had not demonstrated respect for the RDC and the timelines set by the Chief Justice and the Registrar in the Order of the Chief Justice and the Order of the Registrar.
32. It is clear from the Order of the Chief Justice and the Order of the Registrar that ample time was given to the Appellant to file his skeleton arguments in relation to the Immediate Judgment Application. By the deadline of 1 September 2016, the Appellant still had not filed his skeleton argument. A further extension of the deadline from 1 September 2016 to 7 September 2016 was given, as noted in the Order of the Registrar. The intention was to give the Appellant more time to file his skeleton argument without causing any prejudice to the Respondent. However, no skeleton arguments were filed despite the extension of time.
33. In relation to the Releasing Funds Appeal, the Maintenance Appeal and the Recusal Appeal, the Court has taken into account the Appellant’s circumstances by repeatedly extending the deadline for the Appellant since March 2016. The Court was aware that the Appellant was unrepresented and required some time to obtain legal representation. It therefore gave the Appellant permission to appeal if the Appellant met the condition of filing his skeleton arguments. However, even up to the final deadline of 14 September 2016, the Appellant failed to do so.
34. In this regard, the Court needs to balance the need to give the Appellant a fair opportunity to be heard and the need for the Court to obtain a resolution of the matter within a reasonable time. The consideration of time was important especially because the appeal proceedings have been delayed since the start of 2016 owing to the Appellant’s lack of submissions.
Legal representation
35. The Court notes that the Appellant was allegedly unable to submit skeleton arguments by the stipulated deadline but was able to write three long applications on 11 September 2016 with more than six pages per application.
36. The Appellant asserted in all his applications that he was a litigant in person. However, it is clear that the Appellant had legal assistance in drafting his letter, in all probability Keystone Law, a law firm which was representing him in judicial review proceedings in England. In Keystone Law’s letter to the DIFC Courts Registry dated 15 August 2016, Keystone Law stated that it was “possible that we shall accept instructions from him to act on his behalf in these appeals.” Keystone Law stated that it was authorised by the Appellant to explain to the Court that he was not in a position to “deal satisfactorily with the various complicated legal and factual issues arising in the DIFC proceedings within the ordered timetable.”
37. While Keystone Law purported to make submissions on behalf of the Appellant, it was careful to say that it was not formally appointed to be the solicitors on record for the Appellant’s DIFC Courts proceedings. In Keystone Law’s email to the DIFC Registrar dated 15 September 2016, Keystone Law refused to be the conduit to carry messages back to the Appellant to transmit instructions. Keystone Law informed the DIFC Registrar that the DIFC “should not use us (Keystone Law) as a post box unless and until we are properly instructed.” It is clear that the Appellant was gaming the system as Keystone Law could say anything they liked to the Court without accepting responsibility for being the channel of communication between the Court and the Appellant. In particular, the tactic adopted by Keystone Law gave the Appellant the pretext to deny he had received communications from the Court even though it beggars belief that Keystone Law would not have been furnishing the Appellant with copies of the Courts’ replies to their various letters or at least informing the Appellant of the contents of the Courts’ replies.
38. Despite this ambivalence, it is clear that Keystone Law had the authority to write on the Appellant’s behalf. The Court had also extended further indulgence to the Appellant in considering Keystone Law’s letters notwithstanding their lack of official status as Haigh’s appointed lawyers.
39. It is clear that the Appellant conveniently used Keystone Law to act as his messenger whenever it suited him and to deny receiving information from the Court even if it had been furnished to Keystone Law.
40. Additionally, the Appellant had, in his correspondence with the Court and the Respondent, informed the court that there was no fixed address at which he could accept service of any documents in person or otherwise by electronic means.
41. In his email from dhaighlegal@gmail.com to the DIFC Registrar dated 16 May 2016, the Appellant stated that he was “unable to accept any service to this email or otherwise until I have a fixed abode.”
42. In the Appellant’s email to the Respondent dated 16 May 2016, the Appellant repeated that he had “no fixed abode and therefore no address for service.” He also stated that he would accept service once he had a fixed abode. The Respondent made efforts to verify the authenticity of his gmail account. The Respondent contacted the Appellant’s lawyers, Kaim Todner Solicitors, who represent him in a judicial review arising out of his attempt to prosecute the Respondent’s executives, to confirm the authenticity of the gmail address. However, Kaim Todner Solicitors refused to give any confirmation.
43. On 20 May 2016, the Respondent obtained an email from lawyers who represented Sport Capital Ltd, whose ultimate beneficial owner is the Appellant. The email, sent from an account of david@davidhaigh.co.uk, reflected the Appellant’s consent to a revised consent order. In the Appellant’s letter to the DIFC Courts Registry dated 17 July 2016, the Appellant informed the Court to cease emailing to the address of david@davidhaigh.co.uk as it was “insecure”. He emphasised that any correspondence should be sent to his gmail account of dhaighlegal@gmail.com. Despite his insistence that correspondence should be sent to dhaighlegal@gmail.com, he continued to state in the same letter that he could not accept service by email as he did not have any means to print and did not have ready access to a computer.
44. The Respondent informed the Court that it had attempted to contact the Appellant via the email address dhaighlegal@gmail.com. However, when the Respondent’s lawyers sent emails to that gmail account, they were met with an ”Out of Office” message which stated that “I am undergoing medical treatment as an inpatient and will not be able to deal with your email at present. I will deal with your email upon my return.”
45. Under RDC 9.15, a party must give an address for service within the DIFC or Dubai. A physical address in Dubai or the UAE will not be required if an email address is given. In the present matter, even though the Appellant emailed the Court and the Respondent with various email addresses, he specified that he could not accept service of documents via electronic means.
46. Under RDC 9.19, where no legal representative is acting for the party to be served and the party has not given an address for service, the document must be sent to the individual’s usual or last known residence. Under RDC 9.21, a party or his legal representative who changes his address for service shall give notice in writing as soon as it has taken place to the Court and every other party. According to the Appellant, he has no fixed abode for service of documents. Without any fixed place of residence or any email which could be used for service of documents, it is clear the Appellant wanted to receive correspondence and communicate only when it was convenient for him.
The Appellant’s medical condition
47. The Appellant claimed in the Three Applications of 11 September 2016 that he was on medication which was “such to diminish my [his] mental capacity and ability to work”. The Appellant gave Morphine, Tramadol, Diazapaam, Xanax, Clompazapm Imigran, Escitalopram as some examples of the medication he was taking. He submitted that it was hard for him to stay awake and near impossible to focus or recall events. He stated that he was “comprehensively disabled” until the completion of his treatment, which was estimated to be “late October early November 2016”.
48. The Appellant had previously presented a medical report by Dr Az Hakeem dated 21 June 2016 (the “Medical Report by Dr Hakeem”). In his covering letter, Dr Hakeem noted that the report was based on an initial psychiatric assessment on 21 June 2016. Dr Hakeem confirmed that the Appellant was “too unwell to attend for work and I (Dr Hakeem) envisage will remain too unwell for approximately the next month.” The Medical Report by Dr Hakeem provided a history of the circumstances of the Appellant’s detention in Dubai. Dr Hakeem advised the Appellant “not to have any contact with any of those persons involved in his detention, torture or abuse, or others whom he deems to have had a negative impact upon his mental state, connected to these events.”
49. Additionally, the Appellant was advised to avoid involvement in situations relating to the traumas experienced which including “legal proceedings that are connected to the traumatic events experienced.”
50. According to the Appellant, he was diagnosed with Post Traumatic Stress Disorder (“PTSD”) and Severe Depression. After reviewing the Medical Report of Dr Hakeem, the Court notes that the report was only an initial psychiatric assessment. The diagnosis of PTSD and Severe Depression were the impressions of the initial assessment.
51. The Court notes that the Medical Report by Dr Hakeem did not comment on the mental capacity of the Appellant. It did not state that the Appellant was unable to read or comprehend legal documents, or give instructions to his legal counsel regarding the conduct of this matter. The Appellant was advised not to recount the unpleasant memories and legal proceedings which related to his incarceration in Dubai, rather than the civil proceedings in Court. In fact, the Appellant chose not to follow the medical advice given by the doctor by writing letters to the Court and instructing Keystone Law.
52. In the Appellant’s Application to the DIFC Courts, the Appellant submitted that he had a change in circumstances by presenting a medical report by Dr Ben Laskey dated 12 June 2016 (the “Medical Report by Dr Laskey”). The Appellant explained in his Application to the DIFC Courts that he had not submitted the Medical Report by Dr Laskey previously “due to the very personal nature of the report and the previous wholly criminal behaviour of the Claimant and the irresponsible behaviour of this Court, causing me to be beaten and raped in Jail by making public, on its YouTube channel (notwithstanding my solicitor’s application for the hearing to be private) my sexuality.” The Appellant stated that the Medical Report by Dr Laskey “clearly confirmed the diagnosis of Post-Traumatic Stress Disorder” made in the Medical Report by Dr Hakeem and confirmed the “urgency” of the Appellant’s need to get treatment.
53. Dr Laskey stated that his report was based on his meeting with the Appellant for around 60 minutes, on a pro bono basis, on 27 May 2016 for a discussion about his mental health and emotional coping following his release from prison. The Medical Report by Dr Laskey opined that he was suffering from significant emotional distress and symptoms consistent with PTSD. Dr Laskey stated that he believed that the Appellant’s symptoms would “meet the diagnostic threshold for PTSD”. However, he also noted that he had not conducted a formal diagnostic assessment.
54. Taking the medical reports at face value, it is clear that the Appellant was in a position to proceed. The Appellant’s physical presence was not essential. The option of appearance by way of video link was also offered to the Appellant in paragraph 5 of the Order of the Chief Justice. Even if the Appellant was physically disabled to attend the Hearing, arrangements could have been made for him to instruct lawyers to be present on his behalf. If the Appellant’s representatives or lawyers had appeared on his behalf and apologised for his absence, there was no doubt that the Court would have into taken consideration his personal circumstances.
55. Furthermore, if the Appellant’s need for medical treatment was “urgent”, the Appellant would not have waited until 17 September 2016 - three months after the medical reports were written, and just a day before the Hearing - to be admitted into hospital.
56. In the Appellant’s Application against the Order of the Chief Justice and the Application against the Order of the Registrar, the Appellant stated, “at the time of writing this application I am now hours away from inpatient treatment at a psychiatric hospital.” The Applications were dated 11 September 2016. At the Hearing, the Respondent informed the Court that, according to the Appellant’s Twitter feed, he did not check into hospital until 17 September 2016, one day before the Hearing.
57. The Hearing was scheduled almost six months after the Appellant had been released from prison on 24 March 2016. It is clear that the Appellant kept using medical records to delay the proceedings but only chose to admit himself into hospital just before the date of the Hearing. The Appellant had strategically timed his medical appointments and inpatient treatment dates in an effort to delay the proceedings in the DIFC Courts.
58. In addition, the Court notes that the Appellant had enough mental and physical capacity to instruct Keystone Law to write letters, as explained in paragraphs 36 to 39 The Appellant could have instructed these lawyers to argue the Appeals but instead, he chose to instruct them only to write letters.
59. The Appellant abused the system by using Keystone Law both as a sword as well as a shield but refused to allow Keystone Law to perform the full and proper role of a lawyer representing a party, namely, to represent and act for him. In other words, it was simply a one way street and inconsistent with the proper function of a legal representative.
Other grounds of appeal
60. The Appellant contended that the Court failed to take into account the appeal dated 8 April 2015 which was submitted by Stephenson Harwood and Zafar Ali QC (“Appeal dated 8 April 2015”).
61. The Appeal dated 8 April 2015 was filed against the Judgment of Justice Sir David Steel dated 25 March 2015. The Judgment of Justice Sir David Steel dated 25 March 2015 was the result of the Appellant’s application to vary a freezing order issued by Justice Sir David Steel where the Appellant was restrained from disposing of his assets.
62.The Appellant was wrong in contending that the Court failed to take into account the Appeal dated 8 April 2015. The Court clarifies that, while the appeal notice was filed, it was not paid for and never accepted. Accordingly, there was no live appeal before the Court. In addition, shortly after the appeal notice was filed, the Appellant’s former representatives, Stephenson Harwood, refused to act on the basis that they were not paid by the Appellant. In May 2015, Stephenson Harwood came off the record and made no intention to pursue the Appeal dated 8 April 2015. The Appellant made no further attempts to pursue the Appeal dated 8 April 2015.
63. The Appellant also argued that, in relation to the Order of the Chief Justice, the Judge deprived the Appellant of the “standard right of appeal” as the Judge sitting in the appeal court was not entitled to make an order of directions for the lower court, namely, setting the date of the Immediate Judgment Application and directions in relation to it.
64. As a matter of case management, and taking into account the Appellant’s personal circumstances in defending the Immediate Judgment Application, the Court had intentionally scheduled the hearing for the Immediate Judgment Application after the Releasing Funds Appeal so that the Appellant would have the opportunity to present his case. If the Appellant was successful in the Releasing Funds Appeal, he would be able to avail himself of funds to be used in the Immediate Judgment Application. This was a case management decision by the Court, bearing in mind the Overriding Objective under RDC 1.6 to ensure that the case was dealt with expeditiously and fairly.
65. Based on the reasons cited above, the Court concludes that any appeal against the timelines for the Immediate Judgment Application, the Releasing Funds Appeal, the Recusal Appeal and the Maintenance Appeal would be futile as the Appellant had demonstrated that he was clearly attempting to delay the progress of these cases. The Appellant had abused the system by refusing to give a proper address for service and by placing himself outside the realm of contact by the DIFC Courts.
66. The Appellant’s applications are therefore dismissed.
67. Nevertheless, the Appellant may make fresh applications for the release of frozen funds and maintenance if he believes that circumstances have changed to a significant degree to justify a new application for relief. With regard to the Recusal Appeal, it is open to the Appellant to file an extension of time under RDC 44.41, if and when Justice Sir David Steel is assigned to hear any matter involving the Appellant.
68. With regard to the Immediate Judgment Application, the hearing and consequently, the judgment, had been issued on 18 October 2016. Accordingly, the Court cannot relook the timelines given on the Immediate Judgment Application. However, the Court notes that the Appellant had applied for permission to appeal the Judgment of Justice Roger Giles dated 18 October 2016. Any issues regarding the Immediate Judgment Application will be dealt with in the Appellant’s application for permission to appeal.
69. In arriving at these decisions, the Court has taken into account the Overriding Objective under RDC 1.6 in disposing of contentious issues in the most cost and time efficient manner possible while respecting due process. In other words, the Court will not necessarily require each contested issue to be tried and to have related applications heard by separate courts, but will deal with them in a practical manner to reconcile Parties’ need for determination of essential issues with procedural efficiency.
Application to reopen Order of the Chief Justice and the Order of the Registrar pursuant to RDC 44.179
70. RDC 44.179 provides that the Court of Appeal will not reopen the final determination of an appeal unless (1) it is necessary to do so to avoid real injustice; (2) the circumstances are exceptional and make it appropriate to reopen the appeal; and (3) there is no alternative effective remedy.
71. Justice Roger Giles examined the application of RDC 44.179 in Raul Silva v. United Investment Bank Claim No: CA-004-2014 (“Raul Silva”). This position in Raul Silva was repeated in the Order of Justice Sir David Steel dated 27 April 2015 in (1) Roberto’s Club LLC (2) Emain Kadrie v Paolo Roberto Rella CFI 019/2013.
“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.”
72. The Appellant argued that the appeal must be re-opened as there was no hearing allowed for the directions hearing or that there was “no consideration or examination and presentation of the medical evidence”.
73. As mentioned in paragraphs 27 to 34 of this Order, the directions given were case management decisions. To re-open the appeal, the Appellant had to show that the integrity of the earlier litigation process had been undermined. The Appellant was given numerous extensions so that he would have had time to obtain legal representation to meet the deadline to file skeleton arguments.
74. It is clear that there was no real injustice to the Appellant as he is entitled to make fresh applications as stated in paragraph 67 of this Order. The Court does not consider the reopening of directions orders as exceptional circumstances. The Court also disagrees that there was no consideration or examination of the Appellant’s medical evidence and refers to paragraphs 47 to 59 of this Order.
75. Accordingly, the Appellant’s applications to re-open the Order of the Chief Justice and the Order of the Registrar pursuant to RDC 44.179 are dismissed.
Application to adjourn all hearings and timetable of the Court until one month after the Appellant has been released from the hospital
76. The hearing dates and timetable of the Court are case management decisions of the Court. Accordingly, the Court repeats its reasoning in paragraphs 27 to 59 of this Order and dismisses the application.
Application for a waiver of fees for the Three Applications of 11 September 2016
77. As mentioned in paragraph 17 of this Order, the Court is aware that the Appellant’s method of applications by way of letter is unorthodox.
78. At the Hearing, the Court did not make any order on the payment of fees by the Appellant.
79. The Court notes that, at the Hearing, the Respondent had urged the Court to deal with the Appellant’s applications by refusing waiver of the fees.[1] However, the Court proceeded to hear all the applications made by the Appellant. Despite the Respondent’s initial call for the Court to reject the applications because of the non-payment of fees, the Respondent continued to take the Court through the Appellant’s various applications.
80. In light of the Appellant’s circumstances, the Court will reserve the question of whether the fees are payable and make a decision at a later date.
81. On the issue of funds available to the Appellant, the Court notes that funds from the Pro Bono Account have been allocated to the Appellant. In paragraph 2 of the Order of the Chief Justice, it was ordered that amounts up to AED 130,000 in the aggregate would be released from the Pro Bono Account to a legal representative appointed by the Appellant for the purpose of arguing the appeals. Despite the financial assistance extended by the Court, the Appellant failed to take advantage of this offer of legal aid and failed to comply with the deadline given to file his skeleton arguments. The Appellant had disingenuously and repeatedly complained about his inability to access the frozen funds and the Court’s refusal to waive filing fees when the Court went out of its way to structure the hearing of the Three Appeals with the Releasing Fund Appeal first, coupled with the offer of legal aid to put him with certain amounts of funds to mount the first step of his legal battles, which, if successful, might then have put him in sufficient funds to furnish his two other Appeals.
Application to stay or strike out the Claim
82. Any stay application is not applicable as the Immediate Judgment Application has been granted. There are no further proceedings in relation to this part of the legal process which the Appellant may seek to stay.
83. The Appellant cited three reasons why the Claim should be stayed or struck out. First, the Claim should be stayed until the United Nations has issued an opinion regarding the terms of his detention. Second, the Claim should be stayed or struck out pending the resolution of the Appellant’s civil claim against the Respondent in the Dubai Courts. Third, the Appellant requested for a referral of the decision to the judicial tribunal for the DIFC Courts and the Dubai Courts, and then requested for a stay of the Claim pending the decision of the judicial tribunal.
84. With regard to the opinion from the United Nations on the Appellant’s detention, the Court emphasises that the circumstances of the Appellant’s detention are not related to the civil proceedings in the DIFC Courts.
85. In relation to the Appellant’s request to stay or strike out the Claim pending the resolution of his civil claim against the Respondent commenced in the Dubai Courts, the Respondent clarified at the Hearing that there was no civil claim. The Respondent informed the court that the civil case was not ongoing, and was settled at the same time as the criminal proceedings in Dubai. Accordingly, the Appellant’s request to stay or strike out the Claim is dismissed. The transcript of the Hearing stated as follows.
“MR BODNAR: Yes. The civil claim in the Dubai Court, there is not a civil claim, as such. I am sure that you are aware --
CHIEF JUSTICE HWANG: I am not aware.
MR BODNAR: The Dubai criminal system is a civil law system, something akin to French Continental and it is possible to engage in the process as a civil party.
CHIEF JUSTICE HWANG: Sort of a restitutionary claim.
MR BODNAR: Yes.
CHIEF JUSTICE HWANG: So it is an adjunct to a criminal proceeding.
MR BODNAR: It is part, it is integral to it. In common law jurisdictions a criminal trial is held in front of a jury and it is very separate from a civil claim and the victim is no more and no less in a criminal trial. In a civil law jurisdiction it is often the case that it is possible for the victim to also be a party to a civil claim to be heard at the same time as the prosecution, because the trial is in front of a professional judge.
CHIEF JUSTICE HWANG: That is your short answer to --
MR BODNAR: Yes, but the --
CHIEF JUSTICE HWANG: Is there a long answer?
MR BODNAR: Not entirely. As I understand it, it is a nominal claim.
A MEMBER OF THE BENCH: May I ask, the civil case here consider as a compensation case, not to claim the (Overspeaking)
MR BODNAR: Exactly. Yes. Exactly.
CHIEF JUSTICE HWANG: Is that still ongoing?
MR BODNAR: No.
CHIEF JUSTICE HWANG: It was settled at the same time as the conviction?
MR BODNAR: The criminal proceedings have come to an end. Yes.
CHIEF JUSTICE HWANG: He was convicted of embezzlement, as you said, and what was the financial order made?
MR BODNAR: I do not actually know the answer to that question. I am sure we can find out but, as I understand it, it is a nominal amount. It was only a nominal amount so that he had some standing in the proceedings. Because the primary source of recovery is (Inaudible), and there is a good reason for that and is as follows. The Dubai legal system does not really recognise the concept of a proprietary claim, equitable interests and so on, and civil law does not recognise this (Several inaudible words) inherent in common law.
CHIEF JUSTICE HWANG: There is some provision in the civil court for restitution (Overspeaking)
MR BODNAR: (Overspeaking) yes.
CHIEF JUSTICE HWANG: Not to the same extent as in common law probably. Yes, go on.
MR BODNAR: Also the Dubai process is very different to the British process.
CHIEF JUSTICE HWANG: No, but the main thing is this: do you have two conflicting things going on?
MR BODNAR: No.
CHIEF JUSTICE HWANG: Because it is concluded.”
(emphasis added)
86. The Appellant also requested a referral to the judicial tribunal for the DIFC Courts and the Dubai Courts. In the same request, the Appellant requested that the DIFC Courts stay the Claim pending the referral and decision of the judicial tribunal. As the Appellant did not provide any further information in his request, the Court presumes that the Appellant was referring to an application under Decree No. 19 of 2016 in respect of the Judicial Committee at Dubai Courts and at the DIFC Courts (the “Decree”). Article 4 of the Decree provides the application process for a referral of the dispute to the Judicial Committee.
“Referral of the dispute to the Joint Judicial Committee
In the event of a conflict of jurisdiction between the Dubai Courts and the Center’s Courts, where neither court did not give up considering the case or both abandoned considering the case or judged a conflicting judgment, the following must be applied:
1.Submit an application to the Judicial Committee through a petition by any of opponents or the Attorney General to identify the competent court or the enforceable judgment.
2. The petition shall be enclosed with a true copy of the statements of claim or applications or conflicting judgments, as applicable.
3. Judicial Committee adjudicates applications submitted as per provided for in this decree in accordance with the legislation(s) in force and the rules of jurisdiction applicable in this regard.”
87. By simply making a request in his Application to the DIFC Courts, the Appellant has not fulfilled the requisite steps for an application to the Joint Judicial Committee. An application should therefore be made directly to the Joint Judicial Committee. The DIFC Courts are inappropriate forums to make such an application. Accordingly, the Court disregards this referral request.
Application to release frozen funds to appoint lawyers and counsel
88. In the Order of the Registrar, it was ordered that the Appellant’s Releasing Funds Appeal was struck out as he failed to file his skeleton arguments by the stipulated deadlines.
89. In the Registrar’s Letter of 20 September 2016, the Registrar informed the Appellant that the Releasing Funds Appeal remained struck out.
90. It is important to note that, while the Releasing Funds Appeal had been struck out, it does not mean that the Appellant is forever denied any use of the frozen funds. An application for the release of any part of the frozen funds must be judged on its own particular merits and therefore each decision on any such application must be fact specific and in light of prevailing circumstances at the time of each application.
91. The Appellant may therefore file a fresh application for a release of funds if he believes he has the justification for doing so, based on his current needs and circumstances. This observation merely states the legal position and is not to be taken as a pre-judgment on the success or otherwise of any such application.
92. The Court also notes that the Appellant sought an order releasing funds to enable the Appellant to file a criminal and civil complaint against the “Dubai-based party” which represented that they would act for the Appellant in defending the Immediate Judgment Application and to which funds of GBP 30,000 were released by the DIFC Courts. The Appellant alleged that the “Dubai-based party” had absconded with the funds. The Appellant did not provide any evidence that any funds had been absconded; neither did he identify the “Dubai-based party” he was referring to.
93. As far as the Court is aware, in the Order of Justice Sir David Steel dated 14 May 2015, £40,000 was released to the Appellant for the purpose of dealing with the Respondent’s Immediate Judgment Application. In the same Order, AED 35,000 was released to Nasser Malalla towards the representation of the Appellant in his criminal proceedings. The Court of Appeal is not the appropriate forum to file a claim for the release of funds for an action which has not been commenced in any DIFC Courts. An application should be made to the Court of First Instance with regard to any criminal or civil complaint against the “Dubai-based party”.
Application to investigate the alleged “maladministration” by the Registrar and Ms Lema Hatim of the DIFC Courts
94. The Appellant alleged that there was maladministration and bungling of the Registrar and Ms Hatim due to a typographical error in an email from the Court which confirmed an extension of the deadline for the filing of the Appellant’s skeleton argument.
95. On 5 September 2016, the Registry sent an email to the Parties to extend the deadline to 14 September 2016.
96. On 8 September 2016, the Registry clarified that there was a typographical error and that the Registry intended to extend the deadline to 7 September 2016 instead of 14 September 2016. Nevertheless, the Registry stated that the deadline of 14 September 2016 would remain, as the Parties were likely to have acted on that basis.
97. In the Appellant’s Application to the DIFC Courts, the Appellant submitted that it was “wholly confusing as to what is to be filed and when and whether or not the Judicial authority as opposed to an administrator has approved these changes”.
98. The Appellant further alleged that Ms Hatim mishandled the matter, and wanted to commence an investigation. He stated that she made “several serious mistakes on dates for applications and emails” amongst other instances.
99. Other examples of the alleged maladministration include a breach of Dubai law and procedure as well as the misplacement of “countless letters and applications.”
100. It is not clear how there was any injustice to the Appellant as he was afforded the extended deadline of 14 September 2016. As mentioned in paragraphs 32 to 33 of this Order, the Appellant was given ample opportunities to file his skeleton argument, but still failed to do so without submitting any reason for such failure.
101. Moreover, the Court has taken into account the Appellant’s circumstances by accepting documents submitted by Keystone Law, which was not the Appellant’s counsel on record.
102. The Court takes the view that this is an administrative matter, and not one of judicial or legal application. The Court disagrees with the Appellant that he has any legal justification for asking the Court to direct Ms Hatim to be removed from the performance of her normal duties, which include dealing with the Appellant’s case.
103. Accordingly, the Court dismisses the Appellant’s application.
Costs
104. The Court has not heard submissions for costs from both Parties. Costs will be reserved for Parties to make such submissions within 14 days of this Order.
