March 01, 2022 court of first instance - Orders
Claim No. CFI 031/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
HIS EXCELLENCY HAMAD SUHAIL AL KHAILI
Claimant
and
BNP PARIBAS WEALTH MANAGEMENT (DIFC) LIMITED
Defendant
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON the Order with Reasons of Justice Sir Jeremy Cooke dated 15 December 2021 (the “Order”)
AND UPON reviewing the Claimant’s permission to appeal application dated 7 January 2022 filed against the Order (the “Permission Application”)
AND UPON reviewing the Claimant’s skeleton argument filed in support of the Permission Application dated 28 January 2022
AND UPON reviewing the Defendant’s written submissions in opposition to the Permission Application dated 17 February 2022
IT IS HEREBY ORDERED THAT:
1. The Permission Application is refused.
2. The Claimant is to pay the Defendant’s costs on the indemnity basis to be assessed if not agreed.
Issued by:
Nour Hineidi
Registrar
Date of issue: 1 March 2022
At: 10am
SCHEDULE OF REASONS
1. The appeal has no prospects of success.
2. The Permission Application is out of time and no application has been made for an extension of time.
3. No application has been made to adduce new evidence, though new translations of telephone calls have been provided which are inadmissible.
4. Points are taken now which were not taken at the immediate judgment hearing.
5. The grounds of the appeal are:
(a) That translations of the recordings of the telephone calls which were relied on by the Defendant are inaccurate. There was, however, evidence before the Court of their provenance of the recordings and translation. Moreover, the direct evidence of Ms Baajour was before the Court as to what was said in any event, which was uncontradicted by any evidence from the Claimant and her emails shortly thereafter confirmed the instructions given and were not contradicted nor countermanded at the time. The translations produced at the time of the hearing by the Claimant without evidence of provenance were incoherent and inconsistent and those now produced, without permission, do not improve upon the position nor take the matter further as their provenance is not given either.
(b) That inadequate time was given the Claimant to deal with the transcripts before the hearing, but he was furnished with them 2 weeks beforehand and four days after his first request for them. He had also received the evidence of Ms Baajour two and a half months earlier before, in which she referred to and exhibited translations of transcripts of the recordings.
(c) That the Claimant wishes to submit a witness statement from Mr Jaffal. He had every opportunity to do so before the immediate judgment hearing and did not do so and there is no basis under the Ladd v Marshall rule for fresh evidence to be admitted on appeal, even if an application had been made, which it was not.
(d) That the Claimant was not given the opportunity to cross examine Ms Baajour. There was no evidence before the Court to contradict what she said because the Claimant, despite having every opportunity to adduce his own evidence of the calls, or Mr Jaffal’s evidence failed to do so.
(e) The documents are insufficient to show that the Claimant gave the instructions for the specific transactions. The documents alone, however, were sufficient in themselves, but, in any event, the evidence taken as a whole was clear in showing that such instructions were given.
6. The skeleton argument raises a number of other points, none of which appear in the grounds of appeal and are therefore inadmissible. All are met by the Defendant’s submissions opposing permission to appeal. The reasons given for the grant of immediate judgment are borne out.
7. The application is one which should never have been brought and is out of the norm. An order for indemnity costs is fully justified.
