March 07, 2021 court of first instance - Orders
Claim No. CFI 022/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
IDBI BANK LIMITED
Claimant/Respondent
and
(1) AMIRA C FOODS INTERNATIONAL DMCC
(2) MR KARAN A CHANANA
Defendants/Appellants
ORDER WITH REASONS
UPON considering the Judgment and Order dated 30 November 2020 issued herein on 30 November 2020 (the “Decision”)
AND UPON considering the Defendants’: (i) application for permission to appeal the Decision; (ii) skeleton argument in support of the said application; and (iii) proposed Notice of Appeal (the “Application”)
AND UPON considering the Claimant’s skeleton argument served in opposition to the Defendants’ Application
IT IS HEREBY ORDERED THAT:
1. The Defendants are granted permission to appeal the Decision.
2. The costs of the Defendants’ Application shall be costs in the appeal.
Issued by:
Nour Hineidi
Registrar
Date of issue: 7 March 2021
At: 12pm
REASONS
1. The Defendants are entitled to be granted the permission they seek if, pursuant to RDC 44.19, they can establish that the proposed appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard.
2. In Aldi Stores Ltd v WSP Group plc and others [2007] EWCA Civ 1260, a decision cited in the judgment herein issued on 30 November 2020, Thomas LJ (who gave the leading judgment in the appeal) said:
In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. Nonetheless an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazzoni Generali v Arab Insurance Group 2002] EWCA Civ 1642 … and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 at paragraph 35. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him.
3. The “real prospect of success” threshold is a low one. In effect, so long as there is sufficient arguability in a proposed appeal for it to be said that the argument is not frivolous and has some substance, the threshold is met.
4. I have not found it at all easy to decide whether the proposed appeal surmounts the prescribed threshold. However, after a great deal of deliberation, I have come to the conclusion that it does and accordingly I grant the Defendants permission to appeal the Decision.
5. In all the circumstances of this particular case, I have decided that the appropriate costs order on the Defendants’ contested application is costs in the appeal.
