June 26, 2024 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 045/2023
IN THE DUBAI INTERNATIONAL FINANCE CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
MELVIN STANLEY PAREKKAT
Claimant
and
(1) SHAHAB AHMAD MOHAMED AYOUB ALSHEHHI
(2) THE COINS RESTAURANT & COFFEE SHOP LTD
Defendants
ORDER WITH REASONS OF JUSTICE ANDREW MORAN
UPON the Part 7 Claim Form dated 4 July 2023
AND UPON the Case Management Order of H.E. Justice Nassir Al Nasser dated 6 December 2023 (the “CM Order”)
AND UPON the Order with Reasons of Justice Andrew Moran dated 20 February 2024, refusing the Defendants’ Application No. CFI-045-2023/2 dated 18 January 2024 seeking an extension of time to submit the Counterclaim and to make standard production
AND UPON reviewing the Defendants’ Application No. CFI-045-2023/4 dated 25 April 2024 seeking an order to amend their defence and renewed application to file a counterclaim out of time (the “Application”)
AND UPON reviewing all relevant material added on to the Court file
AND UPON reviewing the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. By consent, permission to amend the defence in accordance with the draft amended defence filed with the Application, is granted (for the avoidance of doubt, that permission is granted only for the amendments to the defence shown in that draft and does not extend to the counterclaim contained in the draft).
2. The Claimant shall have permission to amend its reply to the defence within 14 days of this Order.
3. The renewed application for permission to file a counterclaim is refused.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 26 June 2024
At: 9am
SCHEDULE OF REASONS
1. On 25 April 2024, the Claimant filed Application Notice No. CFI-045-2023/4 along with the Second Witness Statement of Mr. Shahab Ahmad Mohamed Ayoub Al Shehhi, together with Exhibit-SH2, and an Amended Defence (with tracked changes and clean), and a Draft Order (the “Application”).
2. The trial in this matter is fixed for 14-16 August 2024. The Defendants once again apply, even more belatedly than in Application No. CFI-045-2023/2 dated 18 January 2024, (which was refused for the reasons given therein) to bring a counterclaim against the Claimant in these proceedings.
3. The grounds of the Application are for the main part concerned with advocating the grant of permission to amend the defence, which is not contested; and so permission for the amendments to the defence, has been granted in this Order by consent.
4. By way of preliminary observation on its contents, the proposed new counterclaim is tacked onto the end of the amended defence without correlation to it. It is poorly pleaded, lacking proper particularity of its factual and legal basis against the Claimant. When read with the allegations in the defence, particularly now the amendments, which are more concerned with making allegations against the Claimant’s father and his company Kompas Global, it is difficult to discern the legal and factual basis of a claim against the Claimant himself, beyond a bald allegation of complicity in the alleged wrongdoing of his father – who is not a party to these proceedings.
5. The excuse of the Defendants for failing to bring a counterclaim in time as directed in the Order dated 28 September 2023 (paragraph 3) made by H.E. Justice Nassir Al Nasser (i.e within 28 days of the Order) depends on alleged inability to access documents due to them being “damaged or taken away by the Claimant and his father Mr Stanley Joseph”, which allegation is unevidenced and unsubstantiated.
6. The Application also confusingly attempts to merge and present proper grounds for amendments of the defence to avoid an unjust judgment on the Claim against the Defendants, as if they also: (i) excused the failure to bring a counterclaim within the time period directed; (ii) justified a reversal by the court of its decision refusing the first belated and potentially disruptive (of the trial process of the claim) attempt to raise a counterclaim; and (iii) warranted a wide-ranging investigation and determination of allegations and claims being made principally against a non-party to these proceedings. In my judgment, the grounds for amending the defence do nothing of the sort in relation to the bringing of a counterclaim, at this inordinately late stage in the proceedings.
7. This second application to bring a counterclaim is also resisted by the Claimant on the basis of multiple grounds. They include the following, which the Court accepts as compelling grounds for refusal of permission again to bring a counterclaim, namely that:
a. The attempt to bring a counterclaim has already been rejected by the Court and is therefore “closed” – the Court takes this to be an objection on the ground of procedural res judicata;
b. The Defendants already had access to the financial records and bank account details produced by them pursuant to the production Order dated 18 March 2024, on which they now seek to found this new counterclaim; and
c. The Defendants have been able since the commencement of the proceedings to make the claims and allegations they now seek to raise in the counterclaim.
8. In the Court’s judgment, all of the reasons given by the Court for refusing the first application to bring a counterclaim at paragraphs 3-6 of the Court’s reasons for its Order dated 20 February 2024; namely:
“3. Matters of complaint concerning the Claimant’s allegedly prejudicial conduct in relation to the management and operation of the Second Defendant, were extensively articulated in the defence. It is obvious that these matters might have formed the basis of a counterclaim, so that it appears that a conscious decision was taken not to raise one.
4. This decision not to raise a counterclaim, was in the presence of (i) the Judge’s agreement with the Claimant that the dispute required expeditious determination; and (ii) his case management order requiring the Defendants to file a counterclaim (if they intended to bring one), by a certain date, to achieve that particular objective and satisfy the overriding objective.
5. The consequence of now allowing the bringing of a counterclaim, delayed disclosure and the consequential revised directions that granting the application would entrain and require, would unacceptably delay and disrupt the current proceedings and put the hearing dates in jeopardy.”
6. I am satisfied that the balance of fairness and efficiency to be struck in order to achieve the overriding objective in this case, tilts clearly in favour of rejecting this late-coming and unjustified Application.
still apply, and now with even greater force, as the imminent trial of the claims would certainly be disrupted, if the counterclaim was allowed to be brought.
9. For all of the foregoing reasons, the renewed application to bring a counterclaim is refused.
