September 07, 2016 court of first instance - Orders,Orders
Claim No: CFI 036/2015
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
PHILIPPE YVES MOSER
and
ES BANKERS (DUBAI) LIMITED (IN LIQUIDATION)
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON reviewing the Claimant’s Appeal Notice and supporting documents dated 29 August 2016
AND UPON reviewing the relevant documents in the case file
IT IS HEREBY ORDERED THAT the Claimant is denied permission to appeal against the Order with Reasons of H.E. Justice Shamlan Al Sawalehi dated 30 June 2016.
Issued by:
Natasha Bakirci
Assistant Registrar
Date: 7 September 2016
At: 4pm
SCHEDULE OF REASONS
1.It appears from the evidence before me that service of the Claim Form was properly effected on Clifford Chance, the lawyers acting for the Defendant, who had agreed to accept such service electronically. It therefore appears that the terms of Rule 9.3 of the Rules of the DIFC Courts were met.
2. However, there is no real prospect of success on the appeal against the Order of H.E. Justice Shamlan Al Sawalehi dated 30 June 2016 upholding of the Order of Judicial Officer Maha Al Mehairi dated 2 June 2016 because it is clear that the prior leave of the Court was not obtained in relation to the issue of proceedings against the Defendant and there is no other compelling reason why the appeal should be heard. The Defendant was in liquidation at the time of the commencement of proceedings and leave was required under Article 56 of the DIFC Insolvency Law. The Claimant was not therefore entitled to bring the proceedings and could not properly claim judgment in default of Acknowledgment of Service or Defence.
3. Article 56 of the DIFC Insolvency Law provides that when a winding up order has been made “no action or proceeding shall be…commenced against the company or its property, except by leave of the Court and subject to such terms as the Court may impose.” It is undisputed that the Defendant was in liquidation at the time when the Claimant commenced proceedings on 27 November 2015. The claim made in the Claim Form and the Particulars of Claim was commenced against the Defendant in liquidation and/or its property and it is nothing to the point that annulment of the decision of the liquidators on 9 November 2015 to reject the claim was sought. The claim is nonetheless against a company in liquidation and/or its property, as is plain from the terms of the claim and the other relief sought, including an injunction, damages for misrepresentation and/or fraud, and/or breaches of contract and/or duty and an order for payment. The claim falls fairly and squarely within Article 56 whether or not it is also a claim made under Article 5 of the DIFC Insolvency Regulations.
4. As no leave was obtained prior to the issue of proceedings, the proceedings were invalid from the outset and any application for judgment in default could not properly be made. No leave was sought from the Court until the point was raised in the Claimant’s Skeleton argument on permission to appeal on 13 July 2016. This is not in accordance with the Rules, and latitude cannot be extended to the Claimant in the face of the absolute prohibition on commencing proceedings against a company in liquidation without such leave, merely because he is a litigant in person, whether or not he has legal advisers.
5. Permission to appeal against the Order of H.E Justice Shamlan Al Sawalehi dated 30 June 2016 must therefore be refused as he was clearly right to uphold the Judicial Officer’s decision to deny summary judgment because of the failure to comply with Article 56 of the DIFC Insolvency Law.
