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Claim No. CFI 065/2020

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) EMIRATES NBD BANK PJSC
(2) AL KHALIJI FRANCE S.A.
(3) HSBC BANK MIDDLE EAST LIMITED
(4) UNITED ARAB BANK PJSC
(5) UNITED BANK LIMITED
(6) NATIONAL BANK OF FUJAIRAH PJSC
(7) COMMERCIAL BANK OF DUBAI PJSC
(8) NOOR BANK PJSC

Claimants

and

(1) ADVANCED FACILITIES MANAGEMENT LLC
(2) NASER BUTTI OMAIR YOUSEF ALMHEIRI (PERSONALLY AND TRADING AS NBB GROUP ESTABLISHMENT)
(3) ADVANCED INTERNATIONAL EMPLOYMENT SERVICES LLC
(4) ADVANCED LAUNDRY LLC
(5) ADVANCED ENVIRONMENTAL SERVICES LLC
(6) AL ETIHAD INTERNATIONAL TYPING & TRANSACTION FOLLOWING CENTRE LLC
(7) ADVANCED NATIONAL CONTRACTING LLC
(8) CRUISE EXPRESS RENT A CAR LLC
(9) BIN BUTTI INTERNATIONAL HOLDINGS LLC

Defendants

ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE

UPON the Claimants’ ex parte without notice application for service by alternative methods

AND UPON the Court’s order dated 18 November 2020 granting service by alternative methods (the “Alternative Service Order”)

AND UPON the Defendants’ application by Application Notice dated 11 February 2021 to set aside the Alternative Service Order

AND UPON reading the evidence filed by the First to Seventh and Ninth Defendants and the Claimants;

IT IS HEREBY ORDERED THAT:

1. The Alternative Service Order shall be set aside.

2. There be no order as to costs, save that:

Issued by:
Ayesha Bin Kalban
Deputy Registrar
Date of issue: 17 March 2021
At: 2pm

SCHEDULE OF REASONS

1. The First – Seventh and Ninth Defendants (the “Defendants”) contend that the Claimants should, on receipt of the email from Al Mahrous Advocates and Legal Consultancy at 1238pm on 18 November 2020, have notified the Court before it issued the Ex Parte Order at 1330 the same day or before the Court sent it to the Claimants’ lawyers at 1347 pm that day. That is absurd in relation to a papers application made on 15 November 2020 which had been necessitated by the Defendants’ refusal to accept service through its appointed lawyers in the DIFC. There is no basis for any suggestion of failure to disclose that email in the application; nor is it realistic to say that, in the period of one hour or so, after receipt of the email, it should have been drawn to the Court’s attention prior to issue of the Ex Parte order or notification of its issue. It cannot be said that there was, in any real sense, any material non-disclosure, even if the email came to the attention of the relevant personnel prior to notification of the issue of the Ex Parte order.

2. There is also nothing in the point about non-disclosure of the departure of the two individuals named in the CTA as those to whom notice should be given. They were the named individuals to whom a fax notice was to be sent in accordance with the CTA. Whether or not they had left the Defendants, or the Claimants knew that, is nothing to the point. Any failure to disclose that fact was not material to the application as the faxes were sent to the Defendants.

3. There is no suggestion that the Claimants were aware that the fax numbers given for the Defendants did not work, so there was nothing to disclose on that front.

4. On receipt of the email from Al Mahrous saying that it was authorised to accept service for the Defendants in Abu Dhabi, the Claimants served proceedings on Al Mahrous on 19 November 2020, without the need to rely on the Ex Parte order for service by alternative means. By agreeing to service in Abu Dhabi, as opposed to DIFC, the Defendants gained extra time for service of Defences.

5. Whilst the terms of RDC 23.93 required service of the application notice, evidence in support and order on the Defendants, absent an order of the Court to the contrary, and the Claimants failed to provide those documents when asked to do so several months later, the reality is that the order no longer served any useful purpose and no prejudice was suffered by the Defendants from the Claimants’ failures to do serve or provide the documents at any stage.

6. The Claimants have always been willing for the order to be set aside, as no longer serving any useful purpose, without any order as to costs, and were agreeable to a consent order to achieve that. Instead the Defendants have made this application on contrived grounds, which itself serves no useful purpose and appears to be driven by a desire to create unnecessary issues and/or distract from their own delay in serving a defence and from the substance of the proceedings.

7. It is only because the Claimants, should, in strict compliance with the Rules, either have served the order and other documents on the Defendants or applied to the Court to set aside the order and for relief from that provision of the Rules requiring service that I do not order the Defendants to pay indemnity costs of this application to set aside. If the Claimants had adopted either course, it would have resulted in additional costs and as a practical matter it is understandable why neither course was adopted once the Defendants agreed to accept service in Abu Dhabi. Nonetheless, the Defendants’ conduct in relation to this matter and in particular the refusal to agree a consent order to set aside the Ex Parte order means that they should bear all their own costs and should pay the costs of the Claimants in relation to the 3rd Witness Statement of Jonathan Richard Brooks which has been necessitated by pursuit of the application to set aside on spurious grounds. The Claimants’ costs of the application for the Ex Parte Order should be costs in the case.