December 28, 2021 court of first instance - Orders
Claim No. CFI 069/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
TARIG H.A.G. RAHAMTALLA
Claimant
and
EXPRESSO TELECOM GROUP LTD
Defendant
ORDER WITH REASONS OF JUSTICE SIR PETER GROSS
UPON the Judgment of Justice Sir Peter Gross dated 8 August 2021
AND UPON reviewing the Defendant’s Appeal Notice filed on 30 August 2021 (the “Permission Application”)
AND UPON reviewing the Defendant’s amended grounds of appeal and skeleton argument dated 30 November 2021
AND UPON reviewing the Claimant’s written submissions in opposition to the Permission Application dated 14 December 2021
IT IS HEREBY ORDERED THAT:
1. The Permission Application is refused.
2. The Defendant should pay the costs of the Permission Application, to be assessed by the Registrar on the standard basis, if not agreed.
Issued by:
Amna Al Owais
Chief Registrar
Date of Issue: 28 December 2021
At: 2pm
SCHEDULE OF REASONS
1. I thank the Defendant/(putative) Appellant and the Claimant/(putative) Respondent for their respective submissions.
The Permission Application
2. For the reasons which follow, I refuse the Permission Application.
3. I am not persuaded, for the reasons given in the Judgment, that there is any real prospect of success under RDC 44.19(1). I draw attention to the observations in the Judgment, at [75] and [82], underlining that the remedy with regard to the Penalty claim lay in the Defendant’s own hands, namely, paying the sums admittedly due for the Gratuity and Accrued Annual Leave. I add only that the Slip Decision is irrelevant to any issue/s arising on the PTA application.
4. With regard to the test contained in RDC 44.19(2) of “some other compelling reason” why the appeal should be heard, I note the industry of the Appellant’s (now) legal representatives in drawing attention in the PTA application to authorities and background not cited to me at Trial. Nonetheless, I refuse the Permission Application. My view on “real prospect of success” remains as above and, to my mind, the test of “some other compelling reason” is best considered by the Court of Appeal itself, should the Defendant decide to pursue the matter further.
Stay
5. The Defendant further applies to stay execution of the Judgment and Costs Judgment pending an appeal.
6. As is clear from RDC 44.4, together with the commentary on that Rule in DIFC Courts Practice, at pp. 571-572, the burden rests on the applicant for a stay to show why the stay should be granted; the grant of a stay must be justified and is not to be treated as the default rule simply because there is an application for PTA.
7. With respect, beyond assertion, nothing in the Defendant’s application grapples with that requirement at all and I therefore refuse the application for a stay.
Costs of the Permission Application
8. The Defendant should pay the costs of the Permission Application to be assessed by the Registrar on the standard basis, if not agreed.
