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Claim No. CFI 054/2019

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

LARMAG HOLDING B.V.

Claimant

and

(1) FIRST ABU DHABI BANK PJSC
(2) FAB SECURITIES LLC
(3) MR ABDULLAH SAEED BAKHEET OBAID ALJABERI
(4) MR ALI MOHAMMED
(5) ELITE HOLDING GROUP LIMITED

Defendants

ORDER WITH REASONS OF JUSTICE SIR RICHARD FIELD

UPON considering the application of the Third Defendant (“D3”) dated 24 January 2022 for permission to appeal the order dated 19 January 2022 that ordered : (i) the Second Defendant to transfer all of the Reditum SA corporate bonds (the “Reditum Bonds”) held by the Second Defendant in an account numbered 47502 in the name of D3 to an account nominated by the Claimant forthwith; and (ii) the First Defendant to take all necessary steps to allow and procure the Second Defendant to effect the aforesaid transfer (the “Permission Application”)

AND UPON the Court issuing the Case Management Order dated 18 May 2020, which ordered that the First and Second Defendants shall hold a parcel of Reditum SA Bonds until final determination by the Court of the issue of which of the Claimant or D3 is the true owner and/or beneficially entitled to the same (and all other issues raised on the statements of case between the Claimant and D3) or further order

AND UPON considering the judgment herein dated 15 August 2021 (followed by a version dated 30 August 2021 containing corrections under the slip rule) which upheld the Claimant’s claim that D3 had fraudulently induced the Claimant to transfer the Bonds to the D3’s said account held with the Second Defendant and ordered D3 forthwith to give all necessary instructions and make all necessary arrangements for the transfer to the Claimant of the Reditum Bonds held in his account 47502 with the Second Defendant

AND UPON considering the note sent by D3 to the Registry, the contents of which are set out in paragraph (3) below

AND UPON considering: (i) D3’s application dated 6 September 2021 for permission to appeal the said judgment dated 15 August 2021 on the ground of lack of jurisdiction; and (ii) an application filed on behalf of D3 dated 9 September 2021 for an extension of time in which to appeal the said judgment

AND UPON considering Rules 44.19 and 20.7 of the Rules of the DIFC Courts (“RDC”)

IT IS HEREBY ORDERED THAT:

1. The Permission Application is refused with no order as to costs.

Issued by:
Maitha AlShehhi
Judicial Officer
Date of Issue: 19 August 2022
At: 4pm

SCHEDULE OF REASONS

1. Following a trial that lasted several days, the claims brought by the Claimant against D3 were upheld. The Court held that: (i) D3 had fraudulently procured the transfer by the Claimant of 70,000 EUR 1 million Reditum SA bonds free of charge into an account he held with the Second Defendant; (ii) in the course of achieving this transfer, D3 forged, or authorised the forging of documents purportedly issued by a reputable bank stating that a prepayment for the Reditum Bonds in the sum of Euros 20 million had been sent to the Claimant’s bank account in Holland; (iii) D3 had given false evidence dishonestly knowing that it was false; (iv) the Claimant was and remained the true owner of the Reditum Bonds; (v) D3 must forthwith give all necessary instructions and make all necessary arrangements for the transfer to the Claimant of the Reditum Bonds held in his account 47502 with the Second Defendant; and (vi) the deceit practised by D3 involved such grave dishonesty that he and those alleged to have been party to his fraud (the 4^th and 5^th Defendants) must pay the costs of the action on the indemnity basis.

2. The order dated 19 January 2022 is plainly predicated on the finding made in the said the judgment dated 15 August 2021 that the true owner of the Reditum Bonds is the Claimant, not D3.

3. D3 has not served any proposed grounds of appeal; nor has he served a skeleton argument. His note to the Registry reads:

4. D3 is not the subject of the order he seeks permission to appeal. Nonetheless, it is manifest that, in making the instant application, he is relying on his defence advanced at the trial that he is the true beneficial owner of the Reditum Bonds and it is to be readily inferred, from his note in particular, that in his proposed appeal he will challenge the findings of fact set out in the judgment dated 30 August 2021 that the Claimant is the true owner of the Reditum Bonds and not him.

5. It is also to be inferred from the words “and all orders made since 2019” in D3’s application for permission to appeal the order of 19 January 2022 and from D3’s application for permission to appeal the judgment dated 15 August 2021 that he intends to argue in support of his proposed appeal against the order dated 19 January 2022 that the said judgment should be set aside on the ground that the Court lacked jurisdiction to determine the Claimant’s claim against him, with the consequence that the order he seeks to appeal must be set aside because the predicate underlying the order is unsustainable.

6. RDC 44.19 states:

7. The Claimant has not served any submissions in response to D3’s application; nor was it obliged to do so. It did, however, oppose D3’s application for an extension time in which to file his appeal against the judgment based on lack of jurisdiction. In these circumstances, which include the fact that the Claimant has not informed the Court that it does not oppose D3’s application, the Court must consider the application on its merits to the extent these are discernible from the material before the Court.

8. In my judgment, D3’s proposed appeal is hopeless and has no prospect of success. I say this for two reasons. First, there is no arguable basis for challenging the findings of fact made by the Court after having heard the evidence given by the Claimant’s witnesses and the evidence of D3 who was cross-examined over three days. As has been persistently stated in appeals heard in the House of Lords and the EWCA, where there is a clash in the oral or documentary evidence about the facts, the exercise carried out by the judge is an evaluative one, in which appropriate respect needs to be given to the decision of the judge; see eg Lord Hoffmann in Biogen Inc. v Medeva Plc [1997] RPC 1 at 45; EI Dupont De Nemours and Co v ST Dupont (Note) (CA) [2003] EWCA Civ. 1368, [2006] 1 WLR 2793 at [94]; and Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ. 1642, [2003] 1 WLR 577per Clarke LJ at [16].

9. Second, the Court plainly had jurisdiction over D3 who was joined into the proceedings on 21 November 2019 under RDC 20.7, which provides:

10. The joinder order was made on the basis that the Court had jurisdiction over the First and Second Defendants which it did on the basis they were “Licensed DIFC Establishments” for the purposes of Article 5(A)(1)(a) of the Judicial Authority Law, as held at first instance on 4 August 2019, and as confirmed by the DIFC Court of Appeal on 23 March 2020¹.

11. Previously, on 13 March 2019, the DIFC Court of Appeal held in Nest Investments Holding Lebanon Lebanon SAL v Deloitte & Touche (ME) [2018] DIFC CA 011 that RDC 20.7 is a “DIFC Regulation” that confers jurisdiction for the purpose of Article 5(A)(1) (e) of the Judicial Authority Law.

12. In my judgment, the Court’s conclusion that it was desirable under RDC 20.7 to add D3 as a Defendant so that the Court could resolve all the matters in dispute in the proceedings and/or because there was an issue involving D3 and the First and/or the Second Defendants which was connected to the matters in dispute in the proceedings, is beyond any challenge required to have a real prospect of success.

13. Further, RDC 12.5 poses a separate formidable difficulty to an argument that the Court lacked jurisdiction over D3. This rule provides:

14. D3 filed an Acknowledgement of Service on 4 December 2019, six days after he had engaged Bird & Bird (solicitors) and leading counsel to represent him in the proceedings. Then, on the return date of 18 December 2019 for the Freezing Order granted against him and some of the other Defendants on 21 November 2019 (as amended on 24 November 2019), D3 neither consented to nor opposed the continuation of the injunction, leaving it to his leading counsel to seek to reserve D3’s right to challenge the order at a future date without having to show a change of circumstances.

15. D3’s application for permission to appeal against the judgment dated 15 August 2021 on the ground of lack of jurisdiction was filed on 6 September 2021, some 10 months after he filed his Acknowledgement of Service on 4 December 2019, during which period these proceedings were actively prosecuted, several orders were made, the trial took place and the judgment dated 15 August 2021 (followed by the corrected version of 30 August 2021) was handed down without any suggestion that the Court lacked jurisdiction.

Conclusion

16. Try as I might, I cannot see any other challenge that might be made to the order sought to be appealed which has a real prospect of success and I also find that there is no other compelling reason why the proposed appeal should be heard. Accordingly, for the reasons I have given, I dismiss D3’s application for permission to appeal on the ground that neither of the two limbs of RDC 44.19 is satisfied.