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Claim No: CFI 043/2020

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

BANK OF BARODA

Claimant

and

(1) NEO PHARMA LLC
(2) NNMC HEALTHCARE LLC
(3) NEW MEDICAL CENTRE LLC
(4) MR BABAGUTHU RAGHURAM SHETTY

Defendants

ORDER WITH REASONS OF JUSTICE WAYNE MARTIN

UPON the Order of Judicial Officer Nassir Al Nasser dated 1 September 2020

AND UPON reviewing the Fourth Defendant’s Application No. CFI-043-2020/5 dated 8 September 2020 for a de novo review

AND UPON reviewing the First Defendant’s Application No. CFI-043-2020/6 dated 8 September 2020 for a de novo review

AND UPON reviewing the Claimant’s Application No. CFI-043-2020/7 and CFI-043-2020/8 dated 15 September 2020 to reject the de novo review filed by the Fourth Defendant

AND UPON reviewing the Claimant’s Application No. CFI-043-2020/8 dated 15 September 2020 to reject the de novo review filed by the First Defendant

AND UPON reviewing all documents recorded in the Court file

IT IS HERBEY ORDERED THAT:

1. Each of the Claimant’s applications for orders dismissing the applications for review will be dismissed.

2. Each application for review will be allowed.

3. The Order of the Judicial Officer made on 1 September 2020 will be set aside and in lieu thereof, the Claimant’s application to amend will be dismissed, but with liberty to re-apply.

4. The Claimant will be ordered to pay each Defendant’s costs of:

Issued by:
Nour Hineidi
Registrar
Date of Issue: 7 March 2020
Time: 11am

SCHEDULE OF REASONS

Summary

1. These reasons deal with four applications which have been determined on the papers.

2. The First Defendant (“Neo Pharma LLC”) and the Fourth Defendant (“Mr Shetty”) have each applied for a review de novo of an order made by a Judicial Officer on 1 September 2020 granting permission to the Claimant to amend the Claim Form and Particulars of Claim. Review de novo is sought pursuant to Practice Direction 3 of 2015 (the “PD”). In response to each of those applications the Claimant has filed an application seeking orders dismissing each application for review on the ground that each was filed outside the period nominated in the PD.

3. For the reasons which follow, each application for review will be allowed, the order of the Judicial Officer granting permission to amend the claim set aside and the application to amend dismissed but with liberty to re-apply, and the applications filed by the Claimant opposing the applications for review will be dismissed. The Claimant will pay the Defendants’ costs of the applications for review and the Claimant’s applications to dismiss those applications.

The history of the proceedings

4. The proceedings were commenced on 7 May 2020, when the Claim Form was filed. Particulars of Claim were filed on 12 May 2020. Amended Particulars of Claim were filed on 21 May 2020. An Amended Claim Form and further Amended Particulars of Claim were filed on 27 May 2020.

5. On 9 July 2020, the First Defendant filed a Defence and Counterclaim. On the same day the Fourth Defendant filed a Defence.

6. On 30 July 2020, the Claimant filed a Reply and Defence to the First Defendant’s Counterclaim, and a reply to the Fourth Defendant’s Defence.

The application to amend

7. On 6 August 2020, the Claimant filed an application for an order without hearing “to amend the Claim Form and Particulars of Claim to plead non payment”. Although the Application Notice asserted that it was accompanied by a Draft Order, no such Draft Order was filed at the time the application was filed.

8. A number of documents which appear potentially to be primary exhibits in the substantive proceedings were filed with the Application Notice. However, they were not exhibits to any witness statement filed with the application, with the result that there was no evidence before the court identifying the provenance of the documents that were filed or verifying their truth. In short, there was no apparent attempt to comply with the requirements of Part 29 of the RDC in relation to evidence.

9. Further, and significantly, the application was not accompanied by any proposed amendment of either the Claim Form or the Particulars of Claim.

10. RDC 18.14 provides:

11. Further, RDC Part 24 provides:

12. RDC 23.5 provides that an application may be made without serving a copy of the Application Notice if permitted by a Rule or Court order. There is no Rule or order of the court which excused the Claimant from the obligation to serve a copy of the Application Notice and accompanying materials on all Defendants.

13. No attempt was made to serve notice of the application upon the Defendants in accordance with the requirements of Part 23.

14. On 17 August 2020, the Claimant filed a document in the form of a Draft Order. The Draft Order referred to an application dated 29 July 2020 (which is not the date of the Claimant’s application to amend) and to the Court’s review of “the Defendant’s Response to the Application”. Clearly such a review was unlikely when the Claimant had not served the Application Notice or accompanying documents (such as they were) on any of the Defendants.

15. The draft document proposed orders in the following terms:

16. The first proposed order is utterly meaningless.

17. The second proposed order is contrary to RDC 18.27 which provides:

“A party applying for an amendment will usually be responsible for the costs of and arising from the amendment, but the Court will have regard to any failure of a party to consent to an amendment in accordance with Rule 18.12.”

18. It was of course impossible for the Defendants to consent to an application of which they had no notice.

19. In relation to the third order proposed, it is difficult to see why liberty to apply would be granted in respect of an order which had a finite operation.

20. The lodgment of the Draft Order apparently triggered an automated email from the Registry of the Court to all Defendants advising that “the application for Draft Order by the opposing party to the abovementioned case has now been accepted by the Registry.” A document was attached to that email, but it wasn’t the Draft Order – rather, it was the form entitled “Other Documents” which had accompanied the lodgment of the Draft Order. This appears to be the first time any of the Defendants had any notice of the Claimant’s application to amend its claim.

21. On 19 August 2020, the legal representative of the Claimant sent an email to the legal representative of the Fourth Defendant advising that an application had been filed to amend the Claim Form and the Particulars of Claim. The email asserted:

“Questions of amendment, and consequential amendment, should wherever possible be dealt with by consent; therefore, the Claimant is informing the Respondents of the same. Pursuant to RDC 18.12 a party should consent to a proposed amendment unless he has substantial grounds for objecting to it.”

22. The email did not include any evidence explaining the circumstances of the proposed amendment or identify the amendments proposed. Clearly there was no basis upon which the Claimant could have reasonably expected the Defendants to consent to amendments which were not identified.

23. On 26 August 2020, the legal representative of the Fourth Defendant sent an email to the legal representative of the Claimant in the following terms:

“We are in receipt of your purported application to amend the claim form and your statement of case.

Your application is not supported by evidence. Neither have you set out any [sic] (your amendments to either document. Please also explain your intention with your reply to our defence. Unless and until we receive a properly made and supported application, we are not in a position to consider it and we reserve our position. For the avoidance of doubt, we do not agree to costs in your purported application being costs in the case. We would see the costs of any consequential amendment to our defence and, if necessary and in the circumstances, i) costs thrown away, or ii) wasted costs.

We await your response.”

24. Also on 26 August 2020, the legal representatives of the First Defendant wrote to the legal representatives of the Claimant. In that letter, a number of objections were raised in relation to the Reply and Defence to Counterclaim which had been filed by the Claimant. The letter also contained the following:

“We understand that you have filed (or intend to file) an application to amend the Claim Form and Particulars of Claim. We have not been served with any such application. The First Defendant will consider any proposed amendments when such are provided to us and reserves all of its rights in respect of any application which may have been brought or is to be brought.

Any such amendment, if granted, will also allow the First Defendant to make consequential amendments to its Defence (if required). The Claimant’s reply and Defence to the Counterclaim may also thereafter require amendments.

…

We request that you inform us of the status of the application to amend the Claim Form and Particulars of Claim and that you serve the same on us.”

25. On 30 August 2020, the Claimant’s representative sent an email to the Court attaching a response from the Second and Third Defendants advising that they were not in a position to consent to amendments which were not supported by evidence or identified in any proposed form of amended document. The email also attached an email from the First Defendant’s representatives covering the letter from those representatives to which I have referred, but not the letter itself. The email also attached the email from the fourth respondent’s representative to which I have referred.

26. A copy of the email to the court was sent to the representatives of the First and Fourth Defendants without the attachments to which I have referred, but with the documents which I have described as potential primary exhibits relevant to the case against those parties and which were filed with the application to amend on 6 August 2020.

27. On 1 September 2020, the judicial officer made an order in the following terms:

28. This order was made despite:

29. The Order also departed from the presumption created by RDC 18.27 with respect to the costs of and arising from the application without justification or explanation.

30. I would also observe that the order failed to make any provision for amendment to the Counterclaim which had been lodged by the First Defendant, or for amendment to the Replies and Defence to Counterclaim which had been filed by the Claimant.

31. Each of the First and Fourth Defendants initiated their applications for review of the Judicial Officer’s order on 8 September 2020.

32. On 9 September 2020, the Claimant filed an Amended Claim Form, and Amended Particulars of Claim. This was the first occasion upon which the proposed amendments had been identified.

33. On 15 September 2020, the Claimant filed applications for orders rejecting the applications for review by the First and Fourth Defendants on the grounds that they were made out of time. Why it was thought necessary to file applications rather than simply oppose the reviews on that ground has not been explained.

Disposition

34. The parties have filed documents in which extensive reference is made to various provisions of the RDC. In the case of the Claimant, those documents include witness statements in which the Claimant’s legal representative refers to the Rules (both relevant and irrelevant) with the same apparent lack of comprehension which appears to have characterized her pursuit of the Claimant’s application to amend.

35. It is unnecessary to analyse the competing contentions of the parties as the only appropriate disposition of these applications will be apparent from the procedural history which I have set out above. In short, the Claimant missed no opportunity for non-compliance with the relevant Rules of court. The application was not supported by the materials required by the Rules and was not served in accordance with the Rules. Most significantly, no attempt was made to identify the proposed amendments at the time the application was brought, or before the order was made. The Defendants were denied the opportunity to respond in any meaningful way to the application and could not have been expected to consent to amendments of which they had no notice. They were also subjected to a costs order which departs from the presumption created by the rules without having been given any opportunity to put submissions before the court.

36. I have set out above the various reasons why there was no proper basis for the judicial officer to make the order which he made on 1 September 2020. In the interests of justice that order must be set aside.

37. The PD provides that:

“A request for a de novo review should be submitted by way of application. Unless the Court orders otherwise, such a request should be filed and served within three working days after the Court Officer or Registrar’s decision sought to be reviewed has been issued …”

38. So, the PD confers a discretion upon the Court to receive and hear an application for review lodged outside the period of three days specified in the PD. That discretion should be exercised in the interests of justice. In this case, for the reasons I have given, it is clearly in the interests of justice for the decision of the Judicial Officer to be reviewed and set aside, and therefore it is in the interests of justice to receive and determine each application for review notwithstanding that each was lodged outside the time specified in the PD.

Conclusion

39. For these reasons: