CFI 026/2009 (1) Rafed Abdel Mohsen Bader Al Khorafi (2) Amrah Ali Abdel Latif Al Hamad (3) Alia Mohamed Sulaiman Al Rifai v (1) Bank Sarasin-Alpen (ME) Limited (2) Bank Sarasin & Co. Ltd

November 30, 2015 court of first instance - Orders,Orders

Claim No: CFI-026-2009

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

(1) RAFED ABDEL MOHSEN BADER AL KHORAFI

(2) AMRAH ALI ABDEL LATIF AL HAMAD

(3) ALIA MOHAMED SULAIMAN AL RIFAI

Claimants

and

(1) BANK SARASIN-ALPEN (ME) LIMITED

(2) BANK SARASIN & CO. LTD

Defendants

ORDER OF CHIEF JUSTICE MICHAEL HWANG

UPON reviewing the following documents:

(a) The Claimants’ letter application dated 10 November 2015 seeking the Order of Chief Justice Hwang dated 9 November 2015 granting the Defendants permission to appeal to be set aside.

(b) The Defendants’ response to the Claimants’ Application filed by letter dated 10 November 2015

(d) The Order of Chief Justice Hwang dated 9 November 2015

IT IS HEREBY ORDERED THAT:

The Order of the Chief Justice granting the Defendants permission to appeal dated 9 November 2015 shall stand.

Skeleton Arguments for the appeal, along with any application to amend the grounds of appeal attached to the Appeal Notice dated 21 October 2015, shall be filed within 14 days of the date of delivery of the Court of Appeal Judgment in CA-003-2015.

Paragraph 7 of the Order of the Deputy Chief Justice dated 3 November 2015 shall be of no effect.

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 30 November 2015

Time: 10am

SCHEDULE OF REASONS

The discrepancy between the different orders issued by the Deputy Chief Justice on 3 November 2015 and my Order on 9 November 2015 arose because the parties, when invited to make written submissions on costs and interest only arising out of the Judgment dated 7 October 2015, chose to also make submissions on permission to appeal.

However, the effect of Rules 44.6 and 44.7 of the Rules of the DIFC Courts (“RDC”) is that, unless an application for permission to appeal is made to the trial judge at the hearing when the decision to be appealed against was made, any appeal against the trial judge’s decision must be made to the Court of Appeal by way of appeal notice, and that this application cannot be determined by the judge whose decision is being appealed.

Since the Judgment of the Deputy Chief Justice was delivered in writing and was released to the parties on 7 October 2015, no application could have been made to him under RDC 44.6(1). Accordingly any appeal against that order would have had to be made to the Court of Appeal. Indeed the Defendants filed two notices of appeal dated 21 October 2015 to the Court of Appeal. As a result, there is no legal basis under the RDC for any order to be made by the trial judge on the issue of permission to appeal.

With respect, paragraph 7 of the Order of the Deputy Chief Justice dated 3 November 2015 was of no effect, since the application for permission to appeal was before the Court of Appeal. However, for practical reasons, I consider it appropriate for case management purposes for the Defendants to review the decision of the Court of Appeal on liability in CA-003-2015 before they formulate their Skeleton Arguments and, if so advised, apply to amend their grounds of appeal in light of the decision of the Court of Appeal in CA-003-2015 within 14 days of that decision being handed down.