December 19, 2019 court of first instance - Orders
Case No: CFI-048-2019
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
IN THE MATTER OF AN APPEAL UNDER ARTICLE 33(1) OF THE REGULATORY LAW 2004 (DIFC LAW No. 1 OF 2004)
BETWEEN:
ANNA WATERHOUSE
Appellant
and
THE DUBAI FINANCIAL SERVICES AUTHORITY (“DFSA”)
Respondent
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON reading the submissions and skeleton arguments of the parties and the documents relied on by each party
AND UPON receipt of the email application by the Appellant to adjourn the hearing on the basis of the medical certificate and other information given by the Appellant
AND UPON hearing Counsel for the Respondent in relation to the application to adjourn
IT IS HEREBY ORDERED THAT:
The oral hearing is adjourned in order to determine the application for permission to appeal on paper in accordance with Rules of the Dubai International Financial Centre Courts (the “RDC”) part 44.14.
Issued by:
Nour Hineidi
Date of issue: 19 December 2019
At: 4pm
SCHEDULE OF REASONS
1.Under article 33(1) of the Regulatory Law, DIFC Law No. 1 of 2004, an appeal lies from the decision of the Financial Markets Tribunal (the “FMT”) only on a point of law. The FMT's decision was itself an appeal from the Decision-Making Committee of the DFSA (the “DMC”). The proposed Appellant I shall refer to throughout as simply "the Appellant" for the sake of convenience.
2. Under part 44 of the rules of the Dubai court as they apply here, the Appellant requires permission to appeal from the FMT decision, which was refused by the FMT as part of its 127-page written judgment or decision. At paragraphs 277 to 278, the tribunal stated that the real issue in the case concerned questions of fact and judgment, not of law, and as a specialist tribunal which had been created to deal with such matters it had come to clear conclusions which had been set out earlier in a draft decision published to the parties in April 2019, which had been the subject of challenge by the applicant on grounds which the tribunal regarded as having no realistic prospect of success.
3. In those circumstances, the tribunal took the view that there was no utility in allowing a formal application to be made to it for permission to appeal following its decision, particularly given all the costs and inconvenience involved in that. In the tribunal's view, it would be better for any such application for permission to appeal to be made to the court.
4. Under RDC 44.8 a lower court can refer an application for permission to appeal to the appeal court, which is the effect of what has happened in the present case.
5. The formal position is that permission has been refused by the tribunal and it now comes before this court. The court has to determine whether any of the 17 grounds put forward by the Appellant have any realistic prospect of success or whether there is any other compelling reason for an appeal to be heard, bearing in mind that the only form of challenge open is on a point of law.
6. The Appellant has in the past been represented by leading and junior counsel at one time or another at three hearings before the FMT, the history of which is set out in its decision and the appendices thereto. The Appellant has had the assistance of junior counsel in the drafting of grounds of appeal and a skeleton argument for the application to this court and on 7 November 2019 adduced a further large quantity of documents for consideration by this court, in addition to all those materials filed in support of the grounds of appeal. She has had four months since the decision was formally issued and eight months since receipt of the draft decision, which was sent to the parties for the usual typographical corrections or correction of agreed manifest errors. She was able to set out her challenges to that draft decision, as I have already mentioned.
7. On the application of the Appellant I ordered that this matter be determined at a hearing and gave two reasons for that.
7.1 First was the absence of a hearing of the application for permission to appeal before the FMT as a separate matter following the decision.
7.2 The second was that there appeared to be some references in the exchanges which might be thought to give rise to an expectation of an oral hearing as opposed to the matter being dealt with on the papers, which is the ordinary course under RDC 44.16. I had in mind when so doing that it appeared that the Appellant would be appearing as a litigant in person as opposed to making use of the counsel that she had previously engaged, albeit that she had taken advantage of their assistance in putting together the appeal papers.
8. The position today is that the court has received extensive written submissions on the application from both sides and is well able to see the points raised and to come to a decision thereon. There is, in my judgment, plainly no scope for further submissions to be made which have not already been made and any further opportunity would be likely to involve considerable duplication and additional expense.
9. Yesterday, however, the court was informed that the Appellant was unwell. She sought an adjournment of the hearing with the intention of providing a medical certificate, which was eventually sent last night at 8.57 pm UK time, that is early this morning in Dubai time.
10. On the basis of the earlier emails the Respondent opposed any adjournment in the light of the history of the matter and particularly in the light of the part adjournment which had taken place in April 2018, which had been granted on the ground of limited medical evidence of the health of the applicant with no real opportunity to check the validity or accuracy of it. That point was made in terms to the Appellant at the time.
11. The medical certificate which has been produced to justify an adjournment is in the form which I described at the outset of this hearing. The name of the doctor does not appear. It is a British standard form of 'off work' certificate. There is reference to rib injury but no details beyond that. It is effectively what amounts to a signing off from work for a period of two weeks.
12. My attention was directed by Mr George today, and indeed had been the subject of reference by Mr Blake in his email of last night, to the decision of the Court of Appeal in General Medical Council v Ijaz Hayat [2018] EWCA Civ 2796. The relevant paragraphs are essentially those which appear at paragraphs 37 to 41, where earlier authorities are cited and a definitive judgment is given as to the standards to be applied when assessing medical evidence of this kind. The evidence must identify with particularity the individual's condition, it must explain why that condition prevents the participation of the individual in the hearing, it must identify the medical attendant, it must give details of all recent consultations and it must provide a reasoned prognosis and give the court some confidence that what is being expressed is an independent opinion after proper examination.
13. The certificate which has been provided does not fulfil those criteria. This is all the more significant in the context of the history of the matter and the adjournment which took place in April 2018, when the inadequacy of the medical evidence was pointed out with some force. In an email of 9 December 2019, the one received last night, the Appellant made eight points in seeking to justify an adjournment. Mr George has dealt with those matters today and I find little in the points made by the Appellant that gives me any pause for thought.
14. The tribunal was entitled to follow the procedure it did in relation to the question of permission for appeal and adequate opportunity has been given to the Appellant to file documents in support of the appeal, both in terms of submissions and other material. There is no need for the Appellant to be given any further opportunity to address, as she suggests she should, the 700 or 800 pages of additional documents that she was able to put together and file on 7 November 2019. They are said to be filed in support of the argument that the findings of the tribunal were perverse but it seems to me, having looked at that material and the other material, that in reality they cannot assist in that submission.
15. It is said by the Appellant that there is no prejudice to the Respondent and none which arises as a result of the continued bar on publication of the FMT's decision. Mr George addressed that specifically this morning and submitted that given the stance taken by the Appellant and the television broadcasts which resulted in Justice Sir Richard Field allowing a partial publication of elements of the judgment, there was in fact prejudice in the matter being delayed with the continued hold-up in publication of the decision.
16. The DFSA has been the subject of criticism in public in circumstances where, had the decision been available for publication, that would have been seen to have been unjustified. The reason for the lack of publication of the decision relating to Mr Palmer is simply that it is parasitic upon the decision involving the Appellant. They rightly must go together.
17. In her email of yesterday the Appellant said that she had been unwell for approximately three weeks, but on 24 November 2019 she was persisting in seeking an oral hearing. That is just over two weeks ago. Furthermore, she attended a hearing in London on another matter on 26 November 2019.
18. In such circumstances cogent evidence of medical inability to attend the hearing is required. What she has said in an email is that although she had been unwell for three weeks, her condition deteriorated over the weekend and that she had collapsed. She stated that she believed that she had lost consciousness briefly and as a result sustained the injury referred to in the medical certificate. She said that she felt dizzy and unable to travel or to concentrate. She had obtained legal assistance in drafting the eight-point email over the course of the day but was unable to afford legal representation at the hearing of her application. That email shows every sign of facility in drafting, with whatever legal assistance the Appellant has been able to obtain.
19. As I have already said, that certificate, in the form sent, was and is wholly inadequate to support the adjournment which is sought. In ordinary circumstances where a party fails to appear for inadequately explained reasons, the court then proceeds with the hearing and the party present addresses the court on the substance of the application.
20. This morning I have not allowed Mr George to do that, simply asking him to address me on the question of adjournment. The reason for that is the need, as the Appellant would put it, for equality of arms. Whilst, as I have said, she has been given every possible opportunity to present the case she wishes to present, if I was now to allow Mr George to address me further in addition to all the written submissions she could say that she had not had the opportunity to respond orally.
21. In these circumstances it appears to me that notwithstanding my earlier decision that the matter should be dealt with at an oral hearing, the right course is for me in fact to deal with the matter on the papers with all the written submissions provided by both parties. To do anything else would be to allow the Appellant to play fast and loose with the court procedure. She, as a person with legal background, must be well aware of the requirements in relation to seeking an adjournment on the grounds of ill health. Nothing has been forthcoming in the three weeks during which she says she was ill until the day before the hearing, when she stated that she had fallen over the weekend and suffered a rib injury. The medical evidence does not suggest that this renders her unfit to attend the hearing and there are no details given which would support such a proposition.
22. When I look back on the order that I made and the reasons I gave for an oral hearing, I can see that I did so on the basis of, as is common, the material available to me, without fully considering all the details which emerge when exploring all the material put before the court on the hearing itself.
23. I considered at the time it was a matter of indulgence to the Appellant because she had had no formal hearing of an application for permission to appeal in front of the FMT and because she might have some expectation of an oral hearing.
24. The way in which she has behaved since, however, leads me to think that she has sought to take advantage of the position and that any further delay would not serve the interests of justice but would merely lead to further expense without advancing the position of either party beyond what is already plain from the submissions they have made.
25. Both parties have received an adequate opportunity to present all the arguments which they desire in the period since the issue of the decision and there is nothing in the point the Appellant has made that she should have the last word, as she suggests in her email seeking an adjournment. The terms of RDC 44.14 provide for Respondents to an application for permission to appeal to make written submissions in opposition, as has happened here.
26. There is therefore, in my judgment, no possible prejudice to the Appellant if I decide this matter on paper on the basis of all the submissions made by the parties. There is nothing further that could properly have been said orally beyond what has already been said in writing.
27. My formal decision therefore is to adjourn this hearing so that I can determine the question of permission to appeal on the papers, which I hope to do during the course of the day. In the interim, the order against publication of the decision remains intact in the form ordered by Justice Sir Richard Field on 11 November 2019.
28. I should perhaps finally add that I see no reason to postpone the decision on permission to appeal, as suggested elsewhere by the Appellant. In this case the FMT has made its final decision and any alteration to the footnote relating to Mr Glynn as the result of any submissions he might wish to make, having not had any prior opportunity to do so, apparently, could not redound to the benefit of the Appellant or her case, or affect the decision that has been taken by the FMT or the decision which I have to make.
29. The existence of the data proceedings is, in my judgment, likewise entirely irrelevant in the context of the tribunal decision because all the documents relevant to that decision were the subject of disclosure in the tribunal proceedings.
30. For all these reasons I will adjourn this matter and proceed to deal with it on paper, hopefully during the course of today.
