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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

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ORDER WITH REASONS OF JUSTICE RENE LE MIERE

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UPON the Claimant’s claim dated 25 July 2023

AND UPON the Defendant filing an acknowledgement of service seeking to contest the jurisdiction dated 7 December 2023

AND UPON the Defendant’s Application No. CFI-052-2023/1 dated 21 December 2023 for an order that the DIFC Court should not exercise jurisdiction pursuant to RDC 12.1(2) because service was not validly effected on the Defendant in accordance with the RDC (the “Defendant’s Application”)

AND UPON the Claimant’s Application No. CFI-052-2023/2 dated 15 March 2024 seeking permission to rely upon his supplemental second witness statement dated 13 March 2024 for the purposes of responding to the Defendant’s Application (the “Claimant’s Application”)

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing held on 20 March 2024

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Application is granted.

2. The Claimant is permitted to rely on his second witness statement dated 13 March 2024 for the purposes of responding to the Defendant’s Application.

3. The Defendant’s Application is dismissed.

4. The period within which the Claimant may bring his claim under Part 9 of the Employment Law is extended to 25 July 2023.

5. If the claim form issued on 25 July 2023 was not served in accordance with RDC 9.2 and 9.3, the error does not invalidate service of the claim form and service of the claim form on 24 November 2023 by means of email addressed to dubai@kbh.ae is effective service of the claim form on the Defendant.

6. Within 7 days of this order each party shall file a minute of proposed orders in relation to costs together with any supporting witness statement or other document and submissions which are not to exceed 5 pages.

Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 15 April 2024
At: 12pm

 

SCHEDULE OF REASONS

 

Summary

1. The Claimant is a lawyer. The Defendant is a law firm. The Claimant was employed by the Defendant as a dispute resolution associate from 24 October 2021 to 19 December 2022 when the Defendant terminated his employment for cause.

2. On 15 June 2023, the Small Claims Tribunal (SCT) issued a claim form (SCT Claim Form) by which the Claimant claimed:

3. The total amount claimed by the Claimant in his SCT Claim Form was AED 892,022.09.

4. On 15 June 2023, the Court served the SCT Claim Form on the Defendant by email to dubai@kbh.ae.

5. On 16 June 2023, the Defendant filed an acknowledgement of service (SCT AOS). The SCT AOS stated that the Defendant's email is dubai@kbh.ae and that the Defendant intends to contest jurisdiction.

6. The Defendant asserted that the SCT did not have jurisdiction because there was no agreement between the parties electing the SCT as the forum for the claims.

7. After a hearing, H.E. Justice Nassir Al Nasser held:

“In light of the claimed value and the parties’ failure to agree in writing for this matter to be heard by the SCT, I find that the claim must be transferred to the CFI.”

8. On 17 July 2023, the SCT ordered:

9. On 25 July 2023, the Court issued a claim form in the Court of First Instance (CFI, and CFI Claim Form). The CFI Claim Form stated that the Defendant’s email is dubai@kbh.ae and the claim value is USD 242,892.33, which is the equivalent in USD of AED 892,022.09 claimed by the Claimant in the SCT Claim Form.

10. On 24 November 2023, the Claimant served the CFI Claim Form on the Defendant by email to dubai@kbh.ae, the email address in the SCT AOS.

11. On 7 December 2023, the Defendant filed, and the Court issued the Defendant’s CFI acknowledgement of service (CFI AOS) which stated that the Defendant intends to contest jurisdiction.

12. On 21 December 2023, by Application CFI-052-2023/1 the Defendant applied for:

13. On 15 March 2024, by Application CFI-052-2023/2 the Claimant applied for an order that the Claimant is permitted to rely on his second witness statement dated 13 March 2024 for the purposes of Application CFI-052-2023/1.

14. For the reasons that follow:

Additional grounds of application

15. In its skeleton argument the Defendant raised two additional grounds on which it claimed the relief stated in Application CFI-052-2023/1.

16. The first additional ground is that the claim is time barred because it is a claim under Part 9 of the Employment Law, and Article 61(2) of the Employment Law provides that a Court shall not consider a claim under Part 9 unless it is brought to the Court before the end of:

17. An applicant may make an application without filing an application notice if the Court dispenses with the requirement for an application notice: RDC 23.3(2). I dispensed with the requirement that the Defendant file an application notice for an order that the claim be struck out on the ground that it is time barred because the Claimant was prepared to answer the application and it was expedient to resolve it without incurring further delay and expense by requiring the Defendant to file a further application notice.

18. The second additional ground raised by the Defendant in its skeleton argument is that the claim should be struck out on the ground of abuse of the process of the Court. I declined to hear the Defendant’s application on that ground because:

Claimant’s application CFI-052-2023/2

19. The Claimant filed a second witness statement dated 13 March 2024 in answer to the Defendant’s limitation argument. The Claimant applied for permission to rely on his second witness statement in answer to the Defendant’s limitation argument (Application CFI-052-2023/2).

20. I granted permission because the delay was adequately explained, and the Defendant did not oppose the application.

Transfer of the claim – the issue

21. A central part of the Defendant's argument is:

“The SCT claim was in effect dismissed and concluded [when the Court made the Transfer Order]. The SCT having no jurisdiction and no CFI claim in existence meant that the Claimant’s claim could not exist in a vacuum without the required originating process, which was issuing a CFI claim form and engaging the jurisdiction of the CFI.”

22. The Defendant submits:

“The use of the word transfer cannot of itself preserve the claim commenced on 15 June 2023 nor somehow circumvent the RDC in the absence of a claim form.”

23. The Defendant says that the limitation periods prescribed by Article 60(2)(a) and Article 10 of the Employment Law had expired by the time the Claimant brought the claim to the Court by the issue of the CFI Claim Form and therefore the Court does not have jurisdiction to hear the claim.

24. Further, the Defendant says that the SCT AOS was not filed in response to the claim now before the CFI and for that reason, as well as others, it is not “a response to a claim filed with the Court” within the meaning of RDC 9.3(2)(b) and was not served in accordance with the RDC.

25. The Claimant submits that the claim now before the CFI is the same claim and is a continuation of the claim commenced in the SCT. That claim was brought or presented to the Court when the SCT Claim Form issued on 15 June 2023. That was within six months of the termination of the Claimant’s employment and within six months of the acts to which the Part 9 complaint relates, which continued to the date of the termination of the Claimant’s employment. Therefore, the Court has jurisdiction to hear the claim.

Interpretation of RDC 53.41

26. This issue involves the proper interpretation of RDC 53.41 in Part 53 of the RDC, which provides rules for the administration and procedures of the SCT, in the context of the judicial authority of the SCT.

27. The SCT is a tribunal within and part of the DIFC Courts, not a judicial body separate from the DIFC Courts. The Judicial Authority Law 2004 (“JAL”) defines Courts as the Court of First Instance and the Court of Appeal established pursuant to the JAL, and any tribunals established by the Chief Justice pursuant to the DIFC Laws.

28. Article 14(3) of the DIFC Courts Law 2004 authorises the Chief Justice to set up and administer Tribunals of the DIFC Courts, and to authorise rules for their administration which shall be set out in the Rules of Court.

29. The SCT was established by DIFC Courts Order No. 2 of 2007 issued by the Chief Justice on 30 October 2007.

30. The SCT exercises part of the jurisdiction of the CFI. JAL Article 3(1) establishes the Courts of the DIFC and provides that the Courts, which includes tribunals established by the Chief Justice, shall be of two ranks: the CFI and the Court of Appeal. Article 5(A) confers exclusive jurisdiction on the CFI to hear and determine civil and commercial claims within the jurisdiction of the DIFC Courts.

31. The SCT was established for the purposes of cost efficient and speedy resolution of small disputes within the jurisdiction of the DIFC Courts: DIFC Courts Order No. 2 of 2007.

32. DIFC Courts Small Claims Tribunal Order No. 1 of 2021, which succeeded and replaced SCT Order No 2 of 2007, increased the amount of the claims which the SCT is authorised to hear and determine, but those claims remain claims within the exclusive jurisdiction of the CFI.

33. RDC 53.2 provides that the SCT will hear and determine claims “within the jurisdiction of the DIFC Courts” as set out in the rule.

34. Thus, the SCT is a tribunal within the DIFC Courts. The SCT does not exercise an exclusive jurisdiction separate from, or independent of, the CFI. The SCT exercises part of the jurisdiction of the CFI.

35. RDC 53.41 provides:

“Where appropriate, the SCT Judge may issue a reasoned order that the small claim be transferred to the Court of First Instance to be progressed as a fresh claim under the procedures followed by the CFI.”

36. To transfer a claim means to move it from one institution or part of an institution to another. Typically, it involves moving specific rights or obligations associated with that claim. For example, if you have made an insurance claim with one department of an insurance company, it might be transferred to a different department for processing or resolution. The claim processed by the department to which the claim is transferred is the same claim that was transferred from the first department.

37. When a Judge orders a claim to be transferred from one part of a court to another part of the court which has coordinate jurisdiction, the case is relocated within the same court. The purpose of the transfer is to ensure that the matter is heard in the appropriate part of the court. The effect of the transfer will depend on the rules under which the transfer is made, but typically, despite the transfer, the claim remains intact. The legal issues, facts, and parties involved do not fundamentally change. The original claim is not extinguished, and a new claim does not come into existence merely due to the transfer.

38. The transfer of a claim from one part of the DIFC Courts, the SCT, to another part of the DIFC Courts, the CFI, results in the claim being progressed in the part of the Court to which the claim is transferred. The order does not dismiss the claim or cause it to end. After the transfer, the claim issued in the SCT is an extant claim that is progressed in the CFI.

39. The provision in RDC 53.41 that the claim “be progressed as a fresh claim under the procedures followed by the CFI” means that the claim will go back to its initial stage as if it had not been progressed in the SCT, regardless of what steps had been taken to progress the case in the SCT. When a claim is transferred to the CFI, the procedures to be followed in relation to the transferred claim will begin again and will not proceed from the stage the claim had reached in the SCT.

40. This interpretation of RDC 53.41 is consistent with, and confirmed by, RDC 53.42 which provides:

“A Claimant in a SCT claim that has been transferred to the CFI in accordance with 53.41 is at liberty to pursue its claim in the CFI by filing a Part 7 claim form.”

41. RDC 53.42 provides that a Claimant may pursue his claim in the CFI by filing a Part 7 claim form or may choose not to do so. This reflects the policy that when a claim is transferred from the SCT to the CFI, the Claimant may pursue his claim in the CFI, but he may elect not to pursue his claim in the CFI because the procedures to be followed are more extensive, elaborate, and difficult to navigate than the procedures in the SCT and the costs regimes are different.

42. RDC 53.81 supports this interpretation of RDC 53.41. RDC 53.81 provides that when a claim is transferred from the SCT to the CFI, the costs rule in the SCT will cease to apply after the claim has been transferred, and the costs rules in the RDC will apply from the date of transfer. This rule assumes that a claim transferred from the SCT to the CFI continues. The rule would be redundant if a transfer results in the claim in the SCT being dismissed and a new, separate claim arising in the CFI.

43. The judgment of H.E. Deputy Chief Justice Ali Al Madhani in First Middle East Distribution DMCC v Orange Chameleon Ltd DIFC CFI 066-2022 (31 October 2023) (“Orange Chameleon”) supports this interpretation of RDC 53.41.

44. The issue in Orange Chameleon was whether a claim can be amended without permission following a transfer from the SCT and prior to service in the CFI.

45. H.E. the Deputy Chief Justice decided that it could be amended without permission because:

“… when the SCT Judge directs that the proceedings be transferred to the CFI, this will result in the SCT claim being reallocated onto the CFI track as a fresh claim, meaning it will go back to its initial stage as if it had not been tried or heard before an SCT judge (irrespective of whether the case had developed to an extent that the parties attended a consultation, failed to reach a settlement agreement or even attended an SCT hearing)”.[37] (emphasis in original).

46. His Excellency had earlier explained that:

“RDC 53.41 provided the Claimant with the opportunity to file its case as a fresh claim and was therefore at liberty to file an amended claim as it saw fit, as though it was filing an originating claim before the CFI for the first time.” [35] (emphasis added).

47. His Excellency further stated:

“… the meaning of the phrase “fresh claim”, which is the main issue of dispute in this case, is to simply provide claimants with the opportunity to amend and replead their case as if they were filing a brand new claim before the CFI. Therefore, “to be progressed as a fresh claim” means once reallocation to the CFI takes effect, the transferred case will begin again and will not proceed at the same stage as it had been on before the SCT, for instance the original SCT claim will not immediately proceed to a CMC or a pre-trial review hearing before the CFI”.[39] (emphasis added).

48. His Excellency the Deputy Chief Justice did not regard the issue of the claim form in the CFI as filing ‘an originating claim” or filing “a brand new claim”.

49. The Defendant submits that its interpretation of RDC 53.41 is consistent with RDC Part 7. The Defendant refers to RDC 7.3 which provides that:

“Proceedings are started when the Court issues a claim form at the request of the claimant”,

and RDC 7.4 which provides that:

“A claim form is issued on the date entered on the form by the Court.”

50. The rules must be read as a whole and one rule should be construed with reference to other rules so as to avoid inconsistency or repugnancy between rules. Whenever it is possible to do so, the Court should construe rules which appear to conflict so that they harmonise. Furthermore, generalia specialibus non derogant, a Latin term literally meaning "things general do not derogate from things special", is a basic principle of statutory interpretation. This principle holds that a syntactical presumption may be made that where there is a conflict between a general and a specific provision, the specific provision will prevail.

51. RDC 53.41 is a specific provision dealing with the transfer of a claim from the SCT to the CFI which prevails over Part 7, which is a general provision dealing with starting proceedings, where and to the extent that there is a conflict between them. However, the rules may operate harmoniously by construing the provisions of Part 7, which deal with starting proceedings in the Court, not to apply to a claim which has been started in one part of the Court and is transferred to another part of the Court. The rules should be interpreted in that way.

52. In summary, RDC 53.41 does not provide that on transfer the SCT claim ceases to be a valid claim and a new separate claim arises. The rule provides that on transfer the claim continues as an extant claim but is to be progressed under the procedures followed by the CFI as if it was a new claim.

The limitation argument – the Financial Claims

53. Article 10 of the Employment Law provides that subject to Article 20(2) and Article 61(2), a Court shall not consider a claim under the Employment Law unless it is presented to the Court either during an employee’s employment with an employer or not later than 6 months after the employee's Termination Date.

54. Article 61(2) governs Part 9 claims. I will consider the Claimant’s Part 9 claims separately. For now, I will consider the Claimant’s Financial Claims. Neither Article 61(2) nor Article 20(2) is relevant to those claims.

55. It is common ground that the Claimant’s Termination Date is 19 December 2022. Six months after the Claimant’s Termination Date is 19 June 2023.

56. The Defendant submits that the Claimant's claim was presented to the Court when the CFI Claim Form was issued on 25 July 2023, which is more than six months after the Claimant’s termination date.

57. I reject that argument.

58. The Claimant presented to the Court his claim when the SCT Claim Form was issued on 15 June 2023 which is less than six months after the Claimant’s Termination Date.

59. For the reasons I have stated, the claim continued when it was transferred to the CFI by the Transfer Order. The claim now being progressed in the CFI as Claim CFI-052-2023 is the claim presented and brought to the Court on 15 June 2023 when the Claimant presented to the Court his claim and the SCT Claim Form was issued.

The limitation argument – the Part 9 claims

60. The Defendant advances a further limitation argument in relation to the Claimant’s Part 9 claims.

61. Article 61(2)(a) relevantly provides that a Court shall not consider a claim under Part 9 unless it is brought to the Court before the end of the period of 6 months beginning with the date of the act to which the complaint relates.

62. Article 61(3) provides that for the purposes of Article 61(2)(a), conduct extending over a period is to be treated as done at the end of the period. Accordingly, the period of six months beginning with the date of the act to which the Claimant’s complaint relates ended on 19 June 2023.

63. Clause 3 of schedule 1 to the Employment Law provides that in the Employment Law, unless the context indicates otherwise, “Court” means:

“any relevant court or tribunal established in the DIFC or, in relation to any proceedings under Part 9 of this Law, the DIFC Court of First Instance”.

64. Thus, the Defendant argues in relation to the Part 9 claims, the claim was not brought to the Court, that is the CFI, when the claim was brought to the SCT on 15 June 2023 and was not brought to the Court until the CFI Claim Form was issued on 25 July 2023, which is more than six months after the date of the acts to which the Part 9 complaints relate.

65. The Claimant submits there was only one occasion on which it could be said the Part 9 claims were “brought to the Court” by the Claimant, which is when his claim issued in the SCT. Because the claim is transferred seamlessly from the SCT to the CFI, the SCT has to be seen as an extension of the CFI for the purposes of issuing the proceedings. It is impossible to regard either the date stamped on the Claim Form or the transfer date as the date when the Claimant “brought” the claim to the Court.

66. That argument is addressing the wrong question. The relevant question is whether the Claimant brought the Part 9 claims to “the Court” as defined by the Employment Law when the SCT Claim Form issued on 15 June 2023. That is a question of the proper interpretation of Article 61(2).

67. Article 61(2) is in Part 9 which comprises Articles 59 - 61. Article 59 provides that an employer must not discriminate against an employee on the ground of specified statuses or attributes and contains provisions defining or providing what amounts to discrimination. Article 60 provides that an employer must not victimise an employee and contains provisions defining or providing what amounts to victimisation. Thus, Part 9 relates to claims of a different nature than claims brought under other provisions of the Employment Law.

68. Article 61 contains provisions in relation to bringing proceedings under Part 9 including provisions relating to the burden of proof, limitation periods, and relief.

69. Thus, Article 61 provides a different regime for commencing and maintaining proceedings in respect of Part 9 claims than for other claims brought under the Employment Law.

70. Clause 3 of schedule 1 contains defined terms that apply unless the context indicates otherwise. The meaning of “Court” is:

“any relevant court or tribunal established in the DIFC or, in relation to any proceedings under Part 9 of this Law, the DIFC Court of First Instance”.

71. This definition distinguishes between the meaning of “Court” in relation to proceedings under Part 9 and in relation to other proceedings under the Employment Law, and distinguishes between any court or tribunal established in the DIFC on the one hand and the CFI on the other hand. I conclude that the legislature intended that “Court” in relation to Part 9 proceedings means the CFI whilst in relation to other proceedings under the Employment Law “Court” includes any tribunal or court established in the DIFC which would include the SCT.

72. Proceedings under Part 9 must be brought to the CFI within 6 months. The requirement that the claim be brought to the CFI reflects the policy that claims under Part 9 are of a nature that they should be dealt with in the CFI not a tribunal of the Court.

73. The Claimant did not bring the Part 9 claims to the CFI on 15 June 2023 or at any time within 6 months after the date of the acts to which the Part 9 claims relate.

74. Therefore, the Court shall not consider the Part 9 claims unless the Claimant satisfies the Court that there are circumstances which justify disapplying Article 61(2)(a).

Power to extend time to bring Part 9 claims

75. Article 61(2)(b) gives the Court a power to disapply the limitation period specified in Article 61(2)(a) (the “primary limitation period”) where the complainant satisfies the Court that there are circumstances which justify disapplying Article 61(2)(a), and to apply such period as the Court considers reasonable.

76. The Employment Law does not specify the matters which the Court is to consider in determining whether there are circumstances which justify disapplying Article 61(2)(a).

77. The Claimant’s counsel drew the Court’s attention to the decision of the England and Wales Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050, where the Court of Appeal considered the scope of the discretion of the Employment Appeal Tribunal to extend time to bring claims for discrimination on the grounds of disability and of harassment under the UK’s Equality Act 2010 123(1)(b), which provides a limitation period of three months or “such other period as the employment tribunal thinks just and equitable.” The Court of Appeal held that section 123 gave the tribunal the widest possible discretion to extend time, with no list of factors to consider. However, the length of and reasons for the delay would almost always be relevant, as would prejudice to the respondent. (paras 18-20).

78. I do not find that decision helpful. The provision considered is quite different from Article 61(2) of the Employment Law. Article 61(2)

79. Article 61(2)(b) has two elements. First, the Court may only extend the primary limitation period of 6 months where a complainant satisfies the Court that there are circumstances which justify disapplying Article 61(2)(a). Secondly, if the Court is so satisfied the limitation period is such other period as the Court considers reasonable.

80. As I have said, Article 61(2)(b) does not specify what considerations justify disapplying Article 61(2)(a). The Court should have regard to the scope and purpose of the limitation provision.

81. A limitation period of 6 months promotes finality and certainty by ensuring that claims are resolved promptly. By requiring timely action, the primary limitation period ensures that relevant evidence is still accessible. Limitation periods strike a balance between the rights of claimants and the interests of defendants. Claimants have a reasonable time to bring their claims, while defendants are protected from indefinite exposure to legal action. Limitation periods promote judicial efficiency by encouraging parties to resolve disputes promptly. In short, the primary limitation period balances the interests of claimants and defendants, promotes efficiency, and ensures that claims are resolved in a timely manner.

82. Those considerations direct the Court’s attention to the length and reasons for delay, whether evidence is less readily accessible, whether the rights of the defendant will be affected or the defendant will be prejudiced by extending the limitation period, whether not extending the limitation period will deprive the claimant of a valuable claim he would otherwise have, as well as any other circumstances relevant in the case.

83. The circumstances which favour disapplying the primary limitation period in this case are:

84. The Defendant submits that the Claimant has engaged in conduct that disentitles him from the exercise of the Court’s discretion to extend the primary limitation period.

85. The Defendant says the Claimant waited to the cusp of the expiry of the limitation period before he brought his claim to the SCT. Nevertheless, the Claimant filed his claim within the limitation period, albeit, as I have found, within the wrong part of the Court.

86. The Defendant says the Claimant knowingly falsely represented to the Court on the SCT Claim Form, which he verified by a statement of truth, that “all parties have elected in writing to proceed in the DIFC Courts Small Claims Tribunal.”

87. The Claimant’s position is that it was open to the Defendant to consent to proceed in the SCT after the claim form had been issued, that it was in the Defendant’s interests to do so, and he pressed the Defendant to do so. Nevertheless, the statement was wrong. The Court was not misled. The Claimant acknowledged and corrected his error in his submission filed on 7 July 2023, that is a short time after filing the SCT Claim Form.

88. Nevertheless, the Claimant was wrong to make that statement. He knew the Defendant had not elected in writing to proceed in SCT.

89. The Defendant says that after the claim had been transferred to the CFI, the Claimant further delayed in serving the CFI Claim Form. That is relevant, but the Claimant did serve the claim form within the time allowed by the RDC.

90. The conduct of the Claimant referred to does not negate the circumstances which justify disapplying the primary limitation period.

91. Article 61(2)(b) does not require that the primary limitation period only be disapplied in exceptional circumstances. However, if it does, there are exceptional circumstances in this case. The exceptional circumstance is that the Claimant brought the claim to the Court and the SCT Claim Form was served on the Defendant within the primary limitation period.

92. The circumstances justify disapplying Article 61(2)(a).

93. Therefore, the period in which the claim may be brought to the Court is such other period as the Court considers reasonable.

94. The reasonable period is the period ending on the date on which the CFI Claim Form issued, that is the period ending on 25 July 2023.

95. In all the circumstances I will extend the limitation period to bring the Part 9 claims to the Court to 25 July 2023.

Service of the CFI Claim Form

96. The Claimant says that on 24 November 2023, he served the CFI Claim Form on the Defendant by email to dubai@kbh.ae.

97. The Defendant says that was not effective service because the Defendant had not previously expressly indicated in writing to the Claimant that he is willing to accept service by email to dubai@kbh.ae.

98. RDC 9.2 provides that a document may be served, amongst other methods, by means of electronic communication, which includes by email.

99. RDC 9.3(1) relevantly provides that where a document is to be served by electronic means the party who is to be served or his legal representative must previously have expressly indicated in writing to the party serving that he is willing to accept service by electronic means; and the email address to which it should be sent.

100. RDC 9.3(2) relevantly provides that an email address set out on a statement of case or a response to a claim filed with the Court shall be taken as sufficient written indication for the purposes of sub-paragraph (1).

101. The issue is whether the statement by the Defendant of its email address on the SCT AOS is “a response to a claim filed with the Court” within the meaning of RDC 9.3(2)(b). That raises two questions:

102. I find that an acknowledgement of service may be a response to a claim for the purpose of RDC 9.3(2) for the following reasons.

103. An acknowledgment of service is a formal document filed by a defendant in response to a claim. It serves as an acknowledgment that the defendant has received the claim form and intends to participate in the proceedings. The acknowledgment of service includes the defendant’s address for service.

104. The term “response to a claim” is not defined in the rules. However, in its ordinary meaning the term refers to any document filed by the defendant in response to the claim. This can include an acknowledgment of service, a defence, or other relevant documents. A “response to a claim” is not confined to a defence, which makes a full substantive answer to the claim, because a defence is a statement of case and the inclusion of “response to a claim” in the rule would be redundant if it is confined to a defence.

105. According to RDC 9.3(2), if an email address is provided on a statement of case or a response to a claim, it is considered sufficient written indication that the party is willing to accept service by email. In other words, the presence of an email address in these documents implies consent to electronic service.

106. The rules specify that a claim form must include the claimant’s address for service. A defendant does not have to file an acknowledgement of service but if the defendant has not filed an acknowledgment of service, he must provide an address for service in his defence.

107. An acknowledgment of service is not the only type of response to a claim, but it does fulfil the purpose outlined in Rule 9.3(2) by indicating the defendant’s willingness to accept service by email if their email address is included.

108. I find that the SCT AOS is a response to the claim being pursued by the Claimant in the CFI for the following reasons.

109. RDC 9.3(2) relevantly provides that an email address set out on a response to a claim filed with the Court shall be taken as sufficient written indication for the purposes of subparagraph (1), that is that the party who is to be served or his legal representative has previously expressly indicated in writing to the party serving that he is willing to accept service by email and the email address to which it should be sent.

110. An acknowledgement of service filed after the service of a claim form shall not be taken as satisfying the requirement of RDC 9.3(1) in relation to the service of that claim form because the acknowledgement of service does not fulfil the purpose outlined in Rule 9.3(2) of indicating the defendant’s willingness to accept service by email of the claim form.

111. In this case the SCT AOS was filed in the course of the case commenced in the SCT and continued in the CFI. The CFI Claim Form was filed in relation to the same claim as the SCT AOS was filed in relation to.

112. The SCT AOS fulfils the purpose of RDC 9.3(2) by indicating the Defendant’s willingness to accept service by email of documents filed in relation to the claim commenced by the SCT Claim Form. The CFI Claim Form is a document filed in relation to the claim commenced by the SCT Claim Form because the CFI claim is the same as and a continuation of the SCT claim.

113. After a defendant has filed an acknowledgement of service stating an email address, further documents, including an amended claim form, may be served on the defendant at that email address. Similarly, a claim form issued in the CFI after the claim is transferred from the SCT to the CFI may be served on the defendant at the address stated in his SCT acknowledgement of service.

114. The construction of the rule advanced by the Defendant defeats the purpose of RDC 9.3(2), is inconvenient, and is contrary to the overriding objectives.

Rectification of error of procedure in service

115. The Claimant alternatively submits that if the CFI Claim Form was not effectively served, the Court can, and should, exercise its power to remedy the defect under RDC 4.51.

116. RDC 4.51 provides:

117. The statutory basis of the Court’s power to rectify procedural errors is Article 44 of the DIFC Court Law 2004 which provides:

118. There are relevantly two questions. The first is whether the Court has power to remedy the error in service of the claim form. The second is whether the Court should exercise the power.

119. The failure to serve the claim form in accordance with the rules is an error of procedure. Unlike in other common law jurisdictions, the jurisdiction of the Court does not depend upon service of the originating process.

120. The Court has held that the power can be used in respect of mandatory procedural rules, including rules in relation to the service of a claim form: DIFC Investments LLC v Mohammed Zia [2017] DIFC CFI 001 (11 April 2017) [17-19], VIH Dubai Palm Jumeirah Ltd (Cayman Islands) v Assas Opco Ltd & Ors [2017] DIFC ARB 005 (CFI 25 December 2019) [159]-[162].

121. The Court aims to achieve a just and fair outcome. While rules and procedures must be complied with, they should not become tools for unjust advantage. If the rights of the party to be served are not genuinely affected and the party is not prejudiced by the procedural error, the Court should remedy the error where there is an adequate explanation for the error.

122. It is appropriate to exercise the power conferred by RDC 4.51 to order that the CFI Claim Form should be treated as validly served for the following reasons.

The skeleton arguments

123. Skeleton arguments serve as concise written submissions that outline the main legal points and arguments in a case.

124. The Defendant’s skeleton argument fails to comply with Practice Direction No 2 of 2016.

125. The skeleton argument is 35 pages long which exceeds the limit prescribed in the Practice Direction of 15 pages for ordinary applications and 25 pages for heavy applications and the Defendant did not seek the Court's permission to exceed the page limit in accordance with the Practice Direction.

126. The Practice Direction provides that where a party files and serves a skeleton argument longer than prescribed without the Court's permission the Court may apply one of the specified sanctions which includes making an order for wasted costs under RDC 38.83 or any other order.

Costs

127. My provisional view is that the Claimant should have the costs of his application for permission to rely on his second witness statement - Application CFI-052-2023/2.

128. The Claimant made his second witness statement in answer to the Defendant’s argument that the Claimant's claim was time barred. The Defendant raised that argument for the first time in its evidence in answer. The Defendant objected to the Claimant relying on his second witness statement which caused the Claimant to make Application CFI-052-2023/2.

129. My provisional view is that the Defendant should pay the Claimant his costs of the Defendant’s application.

130. The Claimant is the successful party in that the Court will not declare that it should not exercise its jurisdiction or strike out the Claimant's claim.

131. That is so notwithstanding that the Claimant failed in his argument that he brought his Part 9 claims to the Court within the primary limitation period prescribed by Article 61(2)(a) of the Employment Law.

132. I will give the parties an opportunity to make submissions in relation to costs after considering these reasons.

133. As far as a party seeks a costs order in their favour they should, amongst other things, address the following points. First, can the Claimant or the Defendant recover costs of representing themselves and if so, what costs can they recover? Secondly, they should provide a statement of their costs of the relevant application which identifies the costs incurred by each person or fee earner and counsel, the work for which those costs were incurred and the basis of calculating the costs incurred.

134. The parties may, but are not required to, make any submission whether any and if so, what sanction should be applied as a result of the Defendant’s skeleton argument not complying with Practice Direction No 2 of 2016.

Conclusion

135. The Claimant’s application to be permitted to rely on the contents of his second witness statement will be granted and it will be ordered that the Claimant is permitted to rely on his second witness statement dated 13 March 2024.

136. The Defendant’s Application No CFI-052-2032/1 will be dismissed.

137. It will be ordered that the period within which the Claimant may bring his claim under Part 9 of the Employment Law is extended to 25 July 2023.

138. It will be ordered that if the claim form issued on 25 July 2023 was not served in accordance with RDC 9.2 and 9.3, the error does not invalidate service of the claim form and service of the claim form on 24 November 2023 by means of email addressed to dubai@kbh.ae is effective service of the claim form.

139. The parties may make submissions in relation to costs.