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Claim No. CFI 098/2021

THE DUBAI INTERNATIONAL FINACIAL CENTRE

IN THE COURT OF FIRST INSTANCE

BETWEEN

AL BUHAIRA NATIONAL INSURANCE COMPANY

Claimant/Respondent

and

HORIZON ENERGY LLC

Defendant/Appellant

ORDER WITH REASONS OF CHIEF JUSTICE ZAKI AZMI

UPON reviewing the Appellant’s Application no. CFI-098-2021/1 dated 27 December 2021 disputing jurisdiction and seeking to set aside the Claim Form and its service (the “Application”)

AND UPON the Order of Justice Roger Giles dismissing the Application on 27 April 2022 (the “Order”)

AND UPON reviewing the Appellant’s Permission to Appeal Application filed on 18 May 2022 (“Permission Application”)

AND UPON reviewing the Appellant’s Grounds of Appeal and Skeleton Argument filed on 8 June 2022

AND UPON the Respondent’s Response to the Permission Application dated 29 June 2022

IT IS HEREBY ORDERED THAT:

1. The Permission Application is dismissed.

2. Costs are awarded to the Respondent and assessed by the Registrar if not agreed.

Issued by:
Nour Hineidi
Registrar
Date of Issue: 5 August 2022
At: 12pm

SCHEDULE OF REASONS

1. The Appellant is seeking permission to appeal the Order of Justice Roger Giles dated 27 April 2022 (the "Order"), a former Court of First Instance judge. Unfortunately, Justice Giles has retired, and this application for permission to appeal has been allocated to me. I have been tasked to determine whether permission should be granted to appeal the Order, or otherwise.

2. The Appellant’s Application seeks to strike out the action by the Respondent on the grounds that: (a) it falls outside the jurisdiction of the Dubai International Financial Centre (“DIFC”) Courts; and (b) the application is an abuse of the process of the courts.

3. The background and the facts have been set out in the Order and need not to be repeated in this decision. However, the Respondent to this appeal claims compensation for the loss of a vessel that was insured with the Appellant. In from the facts that the vessel was missing but was later discovered in the waters of Iran.

4. On the issue of jurisdiction, in my opinion, the argument relies solely on the wording of the contract agreed between the parties which reads “this contract shall be governed by and construed in accordance with the English law and each party agrees to submit to the exclusive jurisdiction or the courts of the United Arab Emirates. The arbitration shall also be subject to the law and jurisdiction of the United Arab Emirates. The laws to apply to the policy is English law."

5. The Appellant provides several reasons as to why the judge erred in his decision. It was argued that the Respondent should have filed the case before the Sharjah Courts, as the agreement between the parties had no relation to the DIFC Courts.

6. Prior to proceeding to the following argument on the issue of abuse of process by the court, I will proceed in setting out my decision on the question of jurisdiction.

7. The term "Courts of Dubai," and "Courts of the United Arab Emirates" are well defined terms under the various authorities cited by the learned judge in his judgment. It is absolutely clear that the definition of “Courts of the United Arab Emirates” or “Courts of Dubai” will also include the DIFC Courts. Accordingly, if the part of the parties agreement that they have the right to file a claim in any of the Courts of the United Arab Emirates, it can be concluded that the parties intended that their agreement capture any courts within that United Arab Emirates jurisdiction. Therefore, filing the case in the DIFC Courts in my opinion, as reflected by the Respondent, is not prima facie, wrong.

8. Therefore, based on the above findings, I do not consider that there are any real prospects of success if permission to appeal is granted.

9. With respect to the second set of grounds of appeal, entailing that the Respondent had abused his powers by filing the case in the DIFC Courts; the arguments set out by my learned judge are correct, I do not see any error in his application to Article 5A (2) of the Judicial Authority Law, Dubai No 12 of 2004.

10. I will further deal with the other grounds raised by the Appellant.

11. The Appellant submitted that the judge had wrongly rejected their Lis alibi pendens argument, asserting that a lawsuit was pending elsewhere since the Respondent was seeking action from the Insurance Tribunal. The judge held that although they could do so, it does not prevent them from also filing an action in the courts according to the terms of the policy. The judge held that the filing of this claim before the DIFC Courts does not hinder any proceeding that may be filed before the Insurance Authority.

12. Further, another ground raised was an allegation of the judge’s failure in recognising that the Respondent would later rely on his judgement for their submissions to the Insurance Authority. I do not think this is a valuable argument, because they are two independent forums to determine the rights of the parties. I agree with the judge’s conclusion at paragraph 51 of his schedule of reasons, concluding that if an applicant had engaged with Article 110 process, he would have been entitled to challenge an adverse result in the DIFC Courts as a court of competent jurisdiction. There is no real argument of inconsistent decision.

13. Reverting to the Respondent’s preliminary objections on procedural grounds.In my opinion, the Respondent rightly raised those objections, and the objections should be upheld. The Appellant failed to comply with RDC r.44.10 in that the Appellant’s notice must have been filed within in 21 days from the date of the decision unless the lower courts order otherwise. In their notice of appeal, the Appellant did not provide any reason for the delay. We appreciate that there was a long Eid weekend followed by the holidays as a respect for the death of the late President, His Highness Shaikh Khalifa bin Zayed Al Nahyan, the Ruler of the United Arab Emirates. However, if we were to accumulate the holidays in total, the Respondent had correctly raised this issue part of their skeleton submissions, the Appellant had plenty of time to file the notice. Further, as rightly stated by the Respondent, the Appellant was working from their office in London where there was no Eid holidays or holiday for mourning the demise of the late President, His Highness Khalifa bin Zayed Al Nahyan, the Ruler of the United Arab Emirates.

14. The other issue raised was relevant to the length of the skeleton submission. I will not be taking that into consideration, as this is rather a matter of form rather than substance. Therefore, irrespective of the preliminary objections raised by the Respondent, there are sufficient grounds to refuse this permission to appeal. Nevertheless, I decided to set out the substantive arguments, which I decided earlier, there are prospects of success on well-established authorities.

15. Based on the above reasonings, I dismiss the application for permission to appeal.

16. Costs will be awarded to the Respondent and would be assessed by the Registrar if not agreed.