May 16, 2017 court of first instance - Orders,Orders
Claim No. CFI 020/2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
GFH CAPITAL LIMITED
and
DAVID LAWRENCE HAIGH
ORDER WITH REASONS
UPON reviewing the Defendant’s Application Notice CFI-020-2014/21 dated 21 March 2017 and the Defendant’s Witness Statement dated 19 March 2017
AND UPON reviewing the correspondence received on 28 March 2017 from Bryan Cave on behalf of the Claimant by way of letter
AND UPON reviewing the email correspondence received on 29 March 2017 from the Defendant himself
AND UPON reviewing the correspondence received on 29 March 2017 from Keystone Law on behalf of the Defendant by way of letter
AND UPON reviewing the correspondence received on 29 March 2017 from Bryan Cave on behalf of the Claimant by way of letter
AND UPON reviewing the documents recorded on the Court file
IT IS HEREBY ORDERED THAT:
1.The Defendant’s application for service of documents relating to CFI-020-2014 by electronic means to his gmail account, dhaighlegal@gmail.com, is granted.
2. The Defendant’s application for service of documents relating to CFI-020-2014 to be in hard copy to c/o The Cove, Lamorna, Penzance Cornwall, TR196XH UK is denied.
3. The Defendant’s application for the DIFC Courts to request for the return of “various papers and notes” and “a memory stick”, which were “retained by the Dubai Police”, is denied.
4. The Defendant’s application for the DIFC Courts to commission an independent prison specialist to prepare a report on the conditions in Dubai prisons is denied.
5. The Defendant’s application for an order that the Claimant pays the sum of GBP 28,800 to the Defendant’s hospital, the Priory, is denied.
6. The Defendant’s application for the release of GBP 300 from the Pro Bono Account or his frozen funds to make payment to Dr Paul McClaren for his medical report is denied.
7. The Defendant’s application to release funds from the Pro Bono Account or his frozen funds to submit an application to reopen the “appeal judgment of the hearing heard dated 15 March 2017” is denied.
8. The Defendant’s application to release funds from the Pro Bono Account or his frozen funds to appoint local counsel to submit an application to the “Dubai Judicial authority” is denied.
9. The Defendant’s request for an oral hearing is denied.
10. Costs reserved.
Issued by:
Maha Al Mehairi
Judicial Officer
Date of Issue: 16 May 2017
At: 2pm
REASONS:
1.On 21 March 2017, the Defendant made an application with the following requests to the Court of First Instance as a litigant-in-person (the “Application”):
(a) An application for service on the Defendant to be in hard copy to c/o The Cove, Lamorna, Penzance Cornwall, TR196XH UK with copy to dhaighlegal@gmail.com;
(b) An application for the DIFC Courts to request for the return of “various papers and notes” and a “memory stick” from the Defendant’s “DIFC Courts case” which were “retained by the Dubai Police”;
(c) An application for the DIFC Courts to commission an independent prison specialist to prepare a report on the conditions in Dubai prisons;
(d) An application for an order that the Claimant pay the sum of GBP 28,800 to the Defendant’s hospital, the Priory, for the costs of “the required urgent treatment in the Priory Hospital of symptoms arising from torture in Dubai”;
(e) An application for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to pay GBP 300 to Dr Paul McClaren for the medical report required by the DIFC Courts Registry, by its letter of 15 March 2017;
(f) An application for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to appoint counsel and solicitors to submit an application to reopen the appeal judgment of the hearing heard on 18 September 2016;
(g) An application for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to submit an application to “reopen the appeal judgment of the hearing heard dated 15 March 2017”;
(h) An application for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to appoint local counsel to submit an application to the “Dubai Judicial authority”. The Defendant wanted to make an application to the “Dubai Judicial authority” to consider the issue that the DIFC Courts had no jurisdiction in this matter and the Dubai Court has, and “has already seized jurisdiction”; and
(i) A request for an oral hearing of the Application.
2. On 28 March 2017, the Claimant provided its response by way of letter to the Defendant’s Application (the “Claimant’s Letter of 28 March 2017”). In the Claimant’s Letter of 28 March 2017, the Claimant informed the DIFC Courts Registry that it had received a “Notice of Acting” from Keystone Law (“Keystone”) on the morning of 27 March 2017 stating that Keystone should be considered the address for service. At that time, the Claimant informed the DIFC Courts Registry that there was no record of a Notice of Acting filed on the DIFC Courts eRegistry.
3. Between 28 March 2017 and 29 March 2017, the Claimant and the Defendant exchanged correspondence in relation to comments made in the Claimant’s Letter of 28 March 2017.
4. On 29 March 2017, Keystone made an application to the Court of Appeal to represent the Defendant in his appeal against the Immediate Judgment of Justice Roger Giles dated 10 November 2016, CA-002-2017 (the “Appeal against Immediate Judgment”). As Keystone did not make an application to represent the Defendant in his applications related to his matter at the Court of First Instance (i.e. CFI-020-2014), the Defendant remains as a litigant-in-person in the present Application.
5. The Court will now elaborate on its decisions with regard to each specific application below.
Request for service on the Defendant
6. In the Application, the Defendant requested for service of correspondence and filings on the Defendant to be in hard copy to c/o The Cove, Lamorna, Penzance Cornwall, TR196XH UK with copy to dhaighlegal@gmail.com.
7. As mentioned in paragraph 4 of this Order with Reasons, the Defendant remains a litigant-in-person in his applications related to his case at the Court of First Instance (i.e. CFI-020-2014). Accordingly, even though Keystone is the Defendant’s legal representative in the Appeal, any correspondence or filings in relation to the Defendant’s case at the Court of First Instance should be sent directly to the Defendant, instead of to Keystone.
8. Under Rule 9.2(4) of the Rules of the DIFC Courts (“RDC”), a document may be served by means of electronic communication.
9. RDC 9.3(1)-(2) states as follows.
“Where a document is to be served by electronic means:
(1) the party who is to be served or his legal representative must previously have expressly indicated in writing to the party serving:
(a) that he is willing to accept service by electronic means; and
(b) the fax number, e-mail address or electronic identification to which it should be sent;
(2) the following shall be taken as sufficient written indication for the purposes of sub-paragraph (1) above:
(a) a fax number set out on the writing paper of the legal representative of the party who is to be served; or
(b) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the Court”
10. 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 in given.
11. From the above elaboration in paragraphs 8 to 10, it is clear that the Court is in a position to grant the Defendant his request for documents to be served on his gmail account, dhaighlegal@gmail.com, as he does not have a physical address in Dubai or the UAE. The Defendant’s request for service of correspondence and filings by electronic means to his gmail account is therefore granted.
12. On this basis, given that there is already an email address at which service on the Defendant could be effected, the Court denies the Defendant’s application for service to be in hard copy to c/o The Cove, Lamorna, Penzance Cornwall, TR196XH UK.
Request for the DIFC Courts to request for the return of “various papers and notes” and a “memory stick” from the Defendant’s “DIFC Courts case” which were “retained by the Dubai Police”
13. The Defendant made an application for the DIFC Courts to request the assistance of the Dubai Court and the Dubai Public Prosecutor for the return of “various papers and notes” from his “DIFC Courts case” which were “retained by the Dubai Police, including a memory stick.”
14. The Court is aware that the Claimant’s law firm, Bryan Cave, has provided the Defendant with electronic copies of the documents he had sought, including skeleton arguments and transcripts of hearings in the DIFC Courts.
15. The DIFC Courts have provided judgments and directions directly to the Defendant and have kept the Defendant updated on his matters via his email account, dhaighlegal@gmail.com. This is the same email account which the Defendant has requested for service to be directed, as explained in paragraph 6 of this Order with Reasons.
16. In his Application, the Defendant did not specifically state the contents and the relevance of these “various papers and notes” and the “memory stick”. Accordingly, there is no reason why the DIFC Courts should accede to this request. The DIFC Courts are not vehicles which the Defendant can use to obtain his personal belongings. Should the Defendant wish to obtain his personal items from the Dubai Police, he should approach them directly, either in person or by his duly appointed lawyers.
Request for the DIFC Courts to commission an independent prison specialist
17. In the Defendant’s Application, he sought an order that the DIFC Courts commission an independent prison specialist to “prepare a report on the conditions in Dubai prisons, specifically focusing on the availability of lawyers, translators, paper, pens, medical care, as well as the use of torture, abuse and rape by the Dubai Police.”
18. For the avoidance of doubt, the Defendant’s case in the DIFC Courts is a civil matter. As the Court of Appeal has stated in paragraph 84 of the Order of the Court of Appeal with Reasons dated 28 February 2017 (“Order of the Court of Appeal dated 28 February 2017”), the circumstances of the Defendant’s detention are not related to the proceedings in the DIFC Courts. Accordingly, the Court denies the Defendant’s request to commission an independent prison specialist.
Request for an order that the Claimant pays the Defendant’s hospital, the Priory, the sum of GBP 28,800
19. In the Defendant’s Application, he sought an order that the Claimant pay his hospital bill of GBP 28,800, being the costs of “required urgent treatment in the Priory Hospital of symptoms arising from torture in Dubai.” The Defendant did not state any reasons as to why the Claimant should pay for his medical treatment.
20. The Court emphasises again that the Defendant’s case in the DIFC Courts is a civil matter, which is unrelated to the Defendant’s detention in the Dubai prisons.
21. The Defendant’s request for the Claimant to pay GBP 28,800 is therefore unjustified. Accordingly, the Defendant’s request is denied.
Request for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to pay GBP 300 to Dr Paul McClaren for the medical report required by the DIFC Courts Registry, by its letter of 15 March 2017
22. On 15 March 2017, the DIFC Courts Registry requested that the Defendant provide a medical report from his doctors indicating the reasons he would be unable to attend court or give instructions to his legal representatives from 25 April 2017 to 25 June 2017.
23. On the same day, the Defendant informed the DIFC Courts Registry that the medical report would take two weeks and would cost GBP 300.
24. In its email to the Defendant dated 16 March 2017 (“DIFC Courts Registry’s Letter of 16 March 2017”), the DIFC Courts Registry informed the Defendant that the sum of the GBP 300 would not be released from the Pro Bono Account. The Defendant was required to make his own arrangement to pay the sum of GBP 300 to Dr Paul McClaren.
25. The contents of the DIFC Courts Registry’s Letter of 16 March 2017 are, in pertinent part, as follows.
“…kindly note the following:
26. In the Defendant’s Application, the Defendant requested that the DIFC Courts provide GBP 300 from its Pro Bono Account or release his frozen funds to make payment to Dr Paul McClaren. The Defendant also submitted that the medical report was “legally privileged” and should not be disclosed to the Claimant. He reasoned that the purpose of the medical report was “for timetabling for the registry nothing more”.
27. The Defendant is reminded that, at paragraph 25 of the Order of the Chief Justice dated 2 March 2017, the Chief Justice stated that the sums of AED 130,000 were to be used to fund his skeleton argument and appeal bundle in support of his Appeal against Immediate Judgment. The Chief Justice highlighted that the funds from the Pro Bono Account would only be released to the Appellant’s legal representatives upon receipt of the invoice for work done.
28. The DIFC Courts Registry’s Letter of 16 March 2017 re-stated the Court’s stand that the funds from the Pro Bono Account are only to be used for payment of legal fees of the Defendant’s legal representatives, and not his medical fees. The medical report is also not subject to legal professional privilege.
29. Accordingly, the Defendant’s request for funds to be released for payment of his medical report by Dr Paul McClaren is denied.
Request for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to appoint counsel and solicitors to submit an application to reopen the appeal judgment of the hearing heard on 18 September 2016
30. On 28 February 2017, the DIFC Courts of Appeal issued the Order of the Court of Appeal dated 28 February 2017, which was an order recording the decisions made by the Court of Appeal at the hearing on 18 September 2016.
31. On 8 March 2017, the Defendant made an application to reopen the Order of the Court of Appeal dated 28 February 2017. This application was dismissed by Justice Sir Jeremy Cooke on 14 March 2017 as there was nothing to suggest that the conclusions reached on the Defendant’s appeal were unjust. There were no exceptional circumstances which permitted the Defendant to re-open the appeal.
32. The Court repeats paragraph 27 of this Order that the release of funds from the Pro Bono Account are only to be used for the Defendant’s Appeal against Immediate Judgment.
33. Accordingly, given that there is no basis to re-open the Order of the Court of Appeal dated 28 February 2017, the Defendant’s request is denied.
Request for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to reopen the “appeal judgment of the hearing heard dated 15 March 2017”
34. The Court should clarify that there was no hearing on 15 March 2017. The Defendant was referring to the letter sent by the DIFC Courts Registry dated 15 March 2017 in which the Defendant’s application to seek a waiver of registration fees for Keystone and Mr Alun Jones QC was denied.
35. This has become a non-issue as Keystone is now registered with the DIFC Courts. Keystone has also informed the DIFC Courts that Mr Alun Jones QC is in the process of his registration with the DIFC Courts.
36. Accordingly, the Defendant’s request is denied.
Request for more funds from the Pro Bono Account or to release the Defendant’s frozen funds to appoint local counsel to submit an application to the “Dubai Judicial authority”
37. In the Defendant’s Application, the Defendant requested that the DIFC Courts release funds for him to appoint a local counsel for his application to the “Dubai Judicial authority”. He submitted that the DIFC Courts had no jurisdiction in his matter and the Dubai Court has “already seized jurisdiction”.
38. The DIFC Courts of Appeal has previously informed the Defendant that any application on jurisdiction to the Joint Judicial Committee is not within the scope of the DIFC Courts. At paragraph 87 of the Order of the Court of Appeal dated 28 February 2017, the Court of Appeal stated that the DIFC Courts were the inappropriate forum to make an application to the Joint Judicial Committee. Any application should be made directly to the Joint Judicial Committee.
39. Accordingly, the Defendant’s request is denied.
Request for an oral hearing
40. In the Defendant’s Application, the Defendant had requested that this Application be heard over video link with his Counsel and solicitors present.
41. As stated in paragraph 4 of this Order, the Defendant remains a litigant-in-person. The various applications sought by the Defendant do not warrant an oral hearing. Accordingly, the Defendant’s request for an oral hearing is denied.
42. The Court reserves the question of whether the application fee for this Application is payable and will make its decision at a later date.
43. The Court is also aware that, in the Claimant’s Letter of 28 March 2017, the Claimant raised several issues with regard to the availability of Counsel and the schedule of the Appeal hearing. These issues will not be addressed in this Order with Reasons as they are matters to be dealt with separately by the Court of Appeal.
