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Claim No: CFI 052/2023

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

ANDREW RAOF

Claimant

and

KBH LIMITED (FORMERLY KNOWN AS KAANUUN LIMITED)

Defendant

DEFAULT JUDGMENT OF JUSTICE RENE LE MIERE

UPON the Claimant’s Request for Default Judgment dated 1 May 2024

IT IS HEREBY ORDERED THAT:

1. The Request for Default Judgment is granted.

3. The Defendant shall pay the Claimant the sum of AED 285,877.55 in respect of Penalty under Article 19 of the Employment Law 2019.

4. Judgment is entered for the Claimant for compensation pursuant to Article 61 of the Employment Law 2019 to be assessed in respect of discrimination and victimisation suffered by the Claimant and in respect of interest.

5. The Claimant has liberty to apply on notice to the Defendant for directions for the assessment of the Claimant's claims pursuant to Article 61 of the Employment Law 2019 for compensation in respect of the discrimination and victimisation suffered by the Claimant, and his claim for interest.

Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 14 May 2024
At: 2pm

Summary

1. The Claimant has filed a Request for Default Judgment.

2. For the reasons that follow there will be orders:

Defendant’s communications

3. On 6 May 2024 the Defendant emailed to the Court Registry two letters addressed to the Judge.

4. The first letter referred to the order which dismissed the Defendant’s application challenging jurisdiction and submitted that the Defendant considered it was not required to file a further acknowledgment of service where RDC 12.8 stipulates that a defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct and the rule provides that the Court shall give directions concerning the filing and service of the defence. The Defendant stated that they have been awaiting directions from the Court, which they anticipated might be addressed along with my decision on costs. The Defendant requested clarification on the required next steps and any specific directions regarding the filing of a new acknowledgment of service and the defence.

5. The Defendant sent a second letter the same day. The Defendant stated that without prejudice to the Defendant’s primary position, they have re-examined the procedural timelines under RDC 2.12 and RDC 9.27, confirming that the correct deadline for filing an acknowledgement of service is, in any event, 6 May 2024. The Defendant submits that this computation strictly adheres to the rules, counting only business days and excluding weekends and public holidays, and therefore the Claimant’s request for default judgment is premature. The Defendant said:

“… to protect the Defendant’s position, and in an effort to ensure compliance, we attempted to file a AoS via the court’s e-portal. Regrettably, this effort was frustrated by a system notification indicating that an AoS had already been filed (see attached), reinforcing our primary position that no further AoS was necessary pending new directions from Your Honour.”

6. The Defendant should not have sent those letters. The Defendant should have requested a hearing to make submissions or requested permission to make written submissions.

7. Parties should not communicate with a Judge, whether directly or through the Registry, outside a court hearing. Parties should only communicate with the Registry where it is necessary and appropriate to do so in the circumstances. Whether the proposed communication is appropriate depends on the relevant circumstances, including the subject-matter or nature of the communication, the sequence of events surrounding the communication, who may be affected by the communication and how, and who may or should participate in the communication.

8. Communications should generally be confined to matters concerning procedural, administrative or practical matters that are not controversial.

9. Communications containing allegations or matters of substance should not be addressed to the Judge without the parties' collective agreement. If the other party does not agree that a letter be sent to the Court, the party seeking to make submissions should send an email to the Registry requesting a listing or permission to make a written submission. It is generally not appropriate for that email to stray into argument or submissions unless all parties have agreed in advance that all competing views should be (briefly and accurately) clarified to the Court.

10. It is generally not appropriate to contact a judge seeking advice on matters relating to the Court's rules or what steps the party should take to advance its case or protect its position.

11. I have considered whether I have discretion to list the Request for Default Judgment for a hearing and if so whether I should exercise the discretion to do so.

12. In Edward v Okeke [2023] EWHC 1192 (KB), Master Dagnall found that, when a claimant makes a request for default judgment under CPR 12.4, there is no discretion to order a hearing; the rules simply require the request to be actioned. That was because CPR 12.4 enabled judgment to be entered following a request, rather than an application, and because of the analysis of the Privy Council in Lux Locations Ltd v Yida Zhang [2023] UKPC 3, to the effect that the entering of a default judgment is an administrative act (see per Lord Leggatt at [40] - [41]). The Master considered that the rules provided for a request for default judgment to be actioned administratively, and therefore did not permit the exercise of a judicial discretion to direct the listing of a hearing. On appeal, Justice Johnson held that the judge was right to conclude that a default judgment may be entered under CPR 12.5 by way of an administrative act without any hearing. His honour held it was not necessary to decide whether the Master was also right to conclude that he could not list a hearing because even if he was wrong to reach that conclusion, he was nevertheless right to conclude that the appellant had not made claims for specified amounts of money. His honour stated that if, however, it had been necessary to decide the point, he would have concluded that the judge was entitled to list a hearing.

13. It is unnecessary to decide whether I have discretion to order a hearing in this case for two reasons. First, the Defendant has not requested a hearing and has chosen instead to put written submissions to the Court. Secondly, I have considered the Defendant’s submissions, and no useful purpose would be served by a hearing. To the contrary it would be contrary to the overriding objective of saving expense, dealing with the case in ways which are proportionate, and ensuring that it is dealt with expeditiously and fairly.

Request for Default Judgment

14. In his application for default judgment the Claimant states that the Defendant has not filed either an acknowledgment of service, an admission, or a defence to the claim and the time for doing so has expired. The Claimant requests for judgment to be entered against the Defendant for an amount to be decided by the Court.

Conditions for Default Judgment are satisfied

15. RDC 13.4 provides that the claimant may obtain judgment in default of an acknowledgment of service only if —

16. The Claimant served his amended claim form and particulars of claim on the Defendant and filed a certificate of service on 24 November 2023.

17. The Defendant filed an acknowledgement of service on 7 December 2023. The acknowledgement of service stated that the Defendant intends to contest jurisdiction.

18. On 21 December 2023 the Defendant applied for a declaration that the Court should not exercise its jurisdiction which it may have in respect of the Claim.

19. On 15 April 2024 the Court issued an order with reasons. The order dismissed the Defendant’s application. The title of the case on the order incorrectly spelled the Claimant’s name as “Roaf” instead of “Raof”. That did not make the order invalid. The following day the Court amended the order by correctly spelling the Claimant’s name in the title to the case. Accordingly, the order dismissing the Defendant’s application challenging the Court’s jurisdiction was made on 15 April 2024.

20. RDC 12.8 provides that if on an application to contest jurisdiction the Court does not make a declaration, the acknowledgement of service shall cease to have effect. The defendant may file a further acknowledgement of service within 14 days or such other period as the court may direct.

21. The Court has no obligation to make such a direction. The Defendant did not request the Court to make such a direction. The Court did not say that it would or might make such a direction. The Court did not make such a direction.

22. The acknowledgement of service ceased to have effect when the Court made the order of 15 April 2024.

23. Time for doing any act is computed in accordance with RDC 2.11 – 2.15. Where the specified period is 6 days or more, both normal working days in the DIFC and nonworking days in the DIFC shall be counted: RDC 2.14. A period of time expressed as a number of days shall be computed as clear days. “Clear days” means that in computing the number of days the day on which the period begins and, if the end of the period is defined by reference to an event, the day on which that event occurs are not included: RDC 2.12. Accordingly, the RDC provide that the Defendant may file an acknowledgement of service within 14 days of 15 April 2024, that is by 29 April 2024.

25. The time for the Defendant to file a further acknowledgement of service expired on 29 April 2024. Therefore, the time for the Defendant to file an acknowledgement of service had expired when the Claimant filed his Request for Default Judgment on 1 May 2024.

26. It is unnecessary to consider judgment in default of defence, but the Defendant has not filed a defence and the relevant time limit for doing so has expired.

27. The other conditions for the grant of default judgment are satisfied.

28. The request for default judgment is not prohibited by RDC 13.3:

29. The Defendant has not:

30. The Claimant has followed the procedure for obtaining Default Judgment required by RDC 13.7 and 13.8.

31. The Court is satisfied that conditions of RDC 13.22 are satisfied.

No discretion to not grant Default Judgment

32. If the Court has a discretion to refuse to enter default judgment, it would consider whether to exercise it in this case.

33. The Claimant requested default judgment on the first or second day the rules permitted. What the Claimant did was what used to be (and perhaps still is) described as ‘snapping’ judgment. The Claimant is aware from the materials filed by the Defendant in its application challenging jurisdiction that the Defendant maintains it has a defence to the Claimant’s claims and intends to defend the case. The Claimant may believe the defence will fail but the Defendant has disclosed its defence with some particularity. The Claimant must anticipate that the Defendant will apply to set aside the default judgment, and if the default judgment is set aside, the outcome will be a waste of the time and resources of the parties and the Court and a delay in resolving the case.

34. However, those are matters for the Claimant, not the Court. The Claimant had the right to request judgment when he did. The Defendant had not complied with the time limit stipulated in the rules. Therefore, the request for Default Judgment will be granted.

Form of judgment

35. The Claimant has requested judgment to be entered against the Defendant for an amount to be decided by the Court.

36. The Claimant’s claims are:

37. The RDC provide for default judgment in claims for a specified sum of money but do not define what is a claim for a specified sum of money.

38. What are claims for a specified amount under the CPR is the subject of conflicting decisions in England. In Merito Financial Services Ltd v David Yelloly [2016] EWHC 2067 (Ch) Master Matthews drew attention to the difference in language between the provisions for default judgment in the Rules of the Supreme Court and the Civil Procedure Rules. The former drew a distinction between liquidated demands (which can give rise to a default judgment for the liquidated sum) and claims for unliquidated damages (which can give rise to a default judgment for damages to be assessed). The latter draws a distinction between a claim for a specified amount of money (which can give rise to a default judgment in the specified amount) and a claim for an unspecified amount (which can give rise to a default judgment for damages to be assessed).

39. Master Matthews referred to well-known case law that explains the Civil Procedure Rules were a new procedural code and that references to equivalent provisions in the Rules of the Supreme Court may have little interpretative utility. He considered that the language of the Civil Procedure Rules was sufficiently broad to enable a claim to be made for a specified amount of money by way of damages, even where it would not constitute a liquidated demand under the Rules of the Supreme Court. He also referred to the notes in "Civil Procedure" that observed that this had practical utility in the context of claims for the cost of repairs, or hire-car costs, following a road-traffic accident. Master Matthews went further and suggested, obiter, that this could be extended to cover claims for general damages – see at [36]:

"In my judgment the notion of a claim for 'a specified amount of money' is prima facie apt to cover the case of a claimant who in his particulars of claim alleges, with full particularity, that the defendant negligently caused him pain and suffering to the value of £X, loss of earnings in the sum of £Y, and damage to property in the sum of £Z, and then claims for the specific sum of £(X+Y+Z). Of course, in the usual case of a road traffic or clinical negligence claim, it would be unusual that the claimant was in a position to particularise all the losses caused in such a precise fashion at so early a stage. But I am testing the position, and the present is not a case of a road traffic or clinical negligence claim."

40. In Edward v Okeke & Others [2023] EWHC 1192 (KB) [2023] EWHC 2932 (KB) Master Dagnall declined to treat claims for damages for professional negligence, which included general damages for psychiatric injury; damages for libel and slander, breach of confidence and misuse of private information; and claims for damages for unspecified unjustified threats and protection from harassment as claims for specified amounts notwithstanding that on the claim forms the claimant stated the value of each claim to be GBP 100,000.

41. Justice Johnson dismissed an appeal: Edward v Okeke [2023] EWHC 2932 (KB). The key issue on appeal was whether each claim was for a "specified amount of money". If it was, the claimant was entitled to judgment in that sum under CPR.12.5(2). If it was not, he was entitled to judgment for damages to be assessed under CPR.12.5(3). Under CPR16.2(1)(b), it was incumbent on the claimant to specify in the claim form the remedy that he sought, and he did not do that. He had stated that the value of each claim was GBP100,000 but that did not necessarily mean that the claim was for a specified amount of money. It was consistent with the claim being for damages up to GBP 100,000, recognising that it would be for the court to assess the quantum of damages. The fact that schedules of loss had been served with values attributed to each item did not necessarily mean that the claim was for a specified amount. It was equally consistent with a claim for an unspecified amount where the claimant was setting out his case as to the value of the loss he had sustained.

42. Justice Johnson found it unnecessary to decide the point of principle as to whether a claim for general damages can properly be put forward as a claim for a specified amount of money within the meaning of CPR 12.5(2), which was the subject of the different conclusions reached by Master Dagnall and Master Matthews. That difference flows from their different conclusions as to whether the change in language in the Civil Procedure Rules was intended as the use of more modern expressions to reflect the liquidated claim/unliquidated damages distinction in the Rules of the Supreme Court, or whether it was intended to introduce an entirely different approach.

43. The Claimant’s Financial Claims appear to be claims for specified sums of money. The Claimant sets out the precise amount he claims for unpaid entitlements following termination under Article 19(1) of the Employment Law 2019 and for Penalty under Article 19 of the Employment Law 2019 and how those amounts are calculated.

44. The Part 9 claims appear to be claims for general damages. But in his particulars the Claimant states that he is entitled to (and seeks) “Pursuant to Article 61(7), compensation in the sum of AED 456,000 in respect of the discrimination and victimisation suffered by the Claimant caused by the Defendant in contravention of Part 9 of the Employment Law.” The Claimant does not state what amount he seeks pursuant to Article 61(5)(b) for any other compensation which the Court considers reasonable in the circumstances, including compensation for the Claimant’s injured feelings.

45. The claims pursuant to Article 61(7) and Article 61(5)(b) are not separate claims. Article 61(5) provides that if the Court finds that there has been a contravention of a provision referred to in Part 9, it may, amongst other things, order the respondent to pay compensation to the complainant which the Court considers reasonable in the circumstances which may include compensation for injured feelings but it is subject to Article 61(7) which caps the amount of compensation that may be awarded.

46. I find that the Claimant’s claims for “Payments following termination in the sum of AED 74,434.79 under Article 19(1) and “Part 19 Penalty in the sum of AED 285,877.55” are claims for specified amounts. Judgment should be entered for the Claimant against the Defendant for those amounts.

47. I find that the Claimant's claims pursuant to Article 61 of the Employment Law 2019 for compensation in respect of the discrimination and victimisation suffered by the Claimant, and his claim for interest are not claims for specified amounts. In respect of those claims, judgement should be entered for the Claimant against the Defendant for damages to be assessed.

48. RDC 13.16 provides that where the claimant obtains a default judgment on the filing of a request and judgment is for an amount of money to be decided by the Court; when the Court enters judgment it will give any directions it considers appropriate. The appropriate directions are that the Claimant has liberty to apply on notice to the Defendant for directions for the assessment of the Claimant's claims pursuant to Article 61 of the Employment Law 2019 for compensation in respect of the discrimination and victimisation suffered by the Claimant, and his claim for interest.