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Claim No: CFI 051/2017

IN THE COURTS OF DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE COURT OF FIRST INSTANCE

BETWEEN

GLOBEMED GULF HEALTHCARE SOLUTIONS L.L.C

Claimant/Respondent

and

OMAN INSURANCE COMPANY PSC

Defendant/Appellant

ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the Judgment of H.E. Justice Shamlan Al Sawalehi dated 30 January 2024 (the “Judgment”)

AND UPON the Order with Reasons of H.E. Justice Shamlan Al Sawalehi dated 31 July 2024 (the “Order”)

AND UPON the Order with Reasons of H.E. Justice Shamlan Al Sawalehi on Quantum dated 5 September 2024 (the “Quantum Order”)

AND UPON the Defendant’s Appeal Notice dated 26 September 2024 (the “Appeal Notice”)

AND UPON the Respondent’s submissions in opposition of the Appeal Notice dated 17 October 2024

IT IS HEREBY ORDERED THAT:

1. The Defendant is granted permission to appeal on all grounds

2. The case is transferred to the Court of Appeal.

3. The parties are to liaise with the DIFC Courts Registry in order to list the hearing for any case management of this appeal on a date mutually convenient to the parties.

4. Costs of the permission to appeal application to be reserved to the Court of Appeal determining the appeal

Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 4 December 2024
At: 2pm

SCHEDULE OF REASONS

1. This Application is brought by the Defendant to appeal the quantum calculation of USD 18,199,571 as stated in my order dated 5 September 2024 (the “Quantum Order”). The Appellant submits one ground of appeal, with an additional ground in the alternative and a third that seeks further exploration into the interest calculation.

2. As this order addresses the issues on quantum only, I will dispense with the summary of the factual and procedural background and delve directly into the crux of this appeal.

3. The DIFC Rule 44.19 contains the test for granting permission to appeal, in that the proposed appeal has a real prospect of success or there is some other compelling reason to do so.

The Appeal

4. As the first and second grounds of appeal are largely similar, I will combine them here for the sake of brevity.

5. The crux of the issue the Applicant has with the Quantum Order is that the decision to agree with the Respondent’s calculations raises serious procedural irregularities as well as errors in fact and law.

6. Ultimately, the Quantum Order is inconsistent with the Judgment and the evidence presented before the Court.

7. The Applicant submits that the Respondent mislead the Court in their post-judgment calculations by changing the ramp-up period to be four times as fast as agreed at trial, which artificially inflated the administration fee income earned. This is not only contrary to what was agreed at trial, but also contrary to the Respondent’s evidence and case.

8. By way of example, it is the Applicant’s position that the ramp-up period being 12 months was a non-issue considering that the parties’ experts agreed that the ramp-up on renewal, the 12 months, was supported by the Respondent’s witness evidence and clause 5.4 of the TPA Agreement which expressly states that the lives would be transferred on renewal (therefore the 12 months period is annual).

9. Therefore, applying this thought to paragraph 86 of the Judgment which states that “15 January 2016 is the date that shall be assumed for the transfer of the Bupa portfolio”, I made an error in agreeing with the Respondent’s calculation which was done based on a misinterpretation of the Judgment and a serious procedural error in allowing the Respondent to depart from the case run at trial.

10. Allowing a party to depart from its case after judgment is beyond my jurisdiction as a judge. As there was no agreement between the parties to depart from the case nor was there an application from the Respondent seeking permission to do so, I should have sided with the Applicant’s quantum calculation in the Quantum Order.

11. Further, the Applicant expands their position by highlighting a serious procedural irregularity in approving a calculation based on a factual and expert position not explored or run at trial, as it had been a non-issue at trial.

12. Further or in the alternative, the Applicant submits that my decision to approve the Respondent’s calculation was wrong in fact and/or law and/or made beyond the ambit of reasonable decisions as it was;

13. The Respondent rejects the appeal grounds, in short, by submitting that the prospect of establishing that I erred in interpreting my own judgment has no success. Therefore, there is no issue of procedural impropriety. This is particularly true of the ramp-up period, as explained by the Respondent.

14. On the ramp-down period, the Respondent stresses that my decision to permit it to advance its position was within the reasonable scope of quantum litigation and within the power of case management, without turning on any issues of evidence. The Applicant’s arguments are therefore a mischaracterisation of the evidence at trial.

15. On the points set out in paragraph 11 of this order, the Respondent submits that the unparticularised nature of the ground doom it to fail on the basis that no actual error has been presented, and in fact attempts to relitigate the paragraphs 59 to 64 of their own Quantum Appeal Skeleton.

The Third Ground

16. This ground is in relation to the Applicant’s approach to interest, which may need further review at appellate level, hence my decision to separate it from the above.

17. The Applicant submits that, as its interest calculation was favoured regarding the date from which interest should run, interest should stop at the date of the First Order and Reasons, which is 30 January 2024, as there is no sensible basis on which the Respondent should be rewarded by interest during a period where it sought to run a different case post-Judgment. If not, then the Applicant seeks to appeal paragraph 2 of the Quantum Order on the grounds that if it succeeds on this appeal.

18. The Respondent rejects this on the basis that this is a misinterpretation of what the Quantum Order says. The Quantum Order plainly states that interest between 30 April 2024 and the Quantum Order should be calculated as this period was not accounted for in the submissions for the Quantum Order.

19. The Respondent also rejects any reference to being “rewarded” with interest, as interest is compensatory for being kept out of monies owed. This is not a legitimate justification for appealing to the Judge to change a decision.

Conclusion

20. I agree that there are inconsistencies between the Judgment and the Quantum Order, particularly concerning paragraphs 85 and 86 of the former and paragraph 6 of the latter, that must be reviewed in the interest of procedural fairness and accuracy, particularly as the overall calculations presented to the Court are so vastly different.

21. There is a compelling reason to revise the submissions and review the Quantum Order; put simply, the need to establish coherency and consistency in debt owed is sufficient to call for appeal. There is a lot of confusion here, and so for quantum to be heard again at a hearing is necessary to ensure that methods of calculation, figures and interest are agreed, which is of distinct interest considering permission to appeal the Judgment has already been granted and listed before the Court of Appeal in March 2025.

22. For this reason, I will grant permission to appeal for all grounds.

23. Costs shall be costs in the appeal.