April 20, 2020 court of first instance - Orders
Claim No. CFI XXX/2019
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) LILA
(2) LULIAM
(3) LAITHEN
(4) LAITE
(5) LEUR
Claimants/Respondents
and
LAITER
Defendant/Appellant
ORDER WITH REASONS OF H.E. JUSTICE OMAR AL MUHAIRI
UPON reviewing the Defendant’s application dated 26 February 2020 for a retrospective extension of time for filing the Second Appeal Notice against the Order of Justice Sir Jeremy Cooke dated 19 November 2019 (the “Application”)
AND UPON the Claimants’ reply to the Application dated 4 March 2020
AND UPON reviewing the Claimant’s and Defendant skeleton argument filed simultaneously on 8 April 2020
AND UPON considering the direction of the Registry made by the Deputy Registrar Nour Hineidi by way of email on 29 January 2020
AND UPON reviewing all other case documents recorded on the case file
AND PURSUANT TO Part 44 the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Application is dismissed.
2. The Defendant is to pay the Claimants costs of the Application within 14 days from the date of this Order, to be assessed by the Registrar on the standard basis if not agreed.
Issued by:
Nour Hineidi
Deputy Registrar
Date of Issue: 20 April 2020
At: 11am
SCHEDULE OF REASONS
1. I have been asked to determine in the above application, in which the Defendant (Appellant) contends that the Registry was not entitled to find that his appellant’s notice, the (“Notice”) was filed late due to non-payment of the filing fee.
2. The facts as I understand them are as follows:
(a) This matter involves a dispute between the Complainant and Lila and others, who I shall refer to collectively as the (“Claimants”). On 22 April 2018 the Claimants applied for an interim injunction and later filed a Part 8 Claim on 23 April 2018. The Claimants’ application for injunctive relief was dismissed on 18 June 2018. On 9 July 2018 the Claimants filed a notice of appeal seeking permission to appeal, which was dismissed. A second application for permission was filed on 8 November 2018, which was granted. After further events, the Court ordered an evidentiary hearing to take place on 2 September 2019 before Justice Sir Jeremy Cooke (“Justice Cooke”). On 11 September 2019 Justice Cooke handed down judgment in favor of the Claimants.
(b) The Defendant filed an appeal notice to Justice Cooke’s Order on 22 September 2019. Permission of appeal was refused by Justice Cooke on 19 November 2019. The Defendant acknowledged the limitation period for paying the filing fee at paragraph 3 of his “Grounds of Appeal Against Judgment dated 11 September 2019” dated 13 October 2019, which states; “the Appellant was arranging funds to file the Appeal Notice and obtaining transcripts of the proceedings and did not want to exceed the limitation period to file the Notice of Appeal”.
(c) The Defendant submitted a further notice of appeal on 10 December 2019 via the e-Registry portal (the “Notice”), being the last day of the limitation period for bringing an appeal. The Defendant did not pay the filing fee at this time and eventually paid the fee on 2 January 2020; however, proof of payment was only sent to the Court on 8 January 2020. The Court, through its administrative team, accepted the Notice on 9 January 2020 and the Defendant served the Claimants with the Notice on 13 January 2020.
(d) The Claimants objected to the late filing of the Notice on 28 January 2020 and the Deputy Registrar sent her directions to the parties by email on 29 January 2020 stating that the Notice cannot be registered on the basis it was filed out of time, with corresponding reasons.
(e) The Defendant made an application for an extension of time under RDC 44.13 on 25 February 2020,
3. In my opinion the Notice was not complete in the absence of the filing fee and was therefore filed late. In my view, the Application should be Dismissed.
Was the Application filed without payment of the fees under the RDC on 10 December 2019?
4. When going through the wording of the RDC and Practice Direction 2 of 2019, DIFC Courts Fee Amendment, I could not locate a specific provision which expressly stated that filing on the e-Registry portal would not be complete until payment had been made. However, there are specific provisions relating to filing by email under the Schedule to Part 3 of the Rules of the DIFC Courts (“RDC”), paragraphs 1A and 17, which state:
Should E-mail be used for the submission of inter alia, documents, materials and information that require the payment of an accompanying fee, the submitted email’s contents and attachments will be considered incomplete and thus unprocessed by the Registry until the requisite fee has been paid and received by the Courts in full. [emphasis added]
Where a party makes an application by filing an application notice by email and that application attracts a fee, save in cases of extreme urgency, the application will not be considered filed until the fee is paid. [emphasis added]
5. It is non-sensical that this approach would only be taken to submission via email and not the e-filing system. Presumably this is due to the manner in which the e-filing system operates. I consider that it is, therefore, implied that this obligation also applies to the e-filing system. Furthermore, the wording of Practice Direction 2 of 2019 states throughout that the requisite fees are payable at the time of filing, although this is not specified in the Appeals section.
6. Another relevant provision includes RDC 9.71(4), in relation to applications filed when the Registry is closed:
When the proper officer at the Registry has checked and is satisfied that the document delivered under sub-paragraph (3) fully accords with the document received under sub-paragraph (2), and that all proper fees for issue have been paid, he shall allocate a number to the case, and seal, mark as “original” and date the claim form with the date on which it was issued (being, as indicated below, the date when the email is recorded at the Registry as having been received).
7. Most importantly, RDC 3.15 states: “a requirement that a Court Officer carry out any act at the request of a party is subject to the payment of any fee required by a fees order for the carrying out of that act”. The act of filing a notice or an application, in my view, is more than merely submitting it to the Court e-filing system. Filing occurs when the Court places its seal upon the relevant document, as is the case for issuing. Sealing the document has the effect of stopping the clock for limitation purposes. A sealed copy of the Notice of Appeal is required under RDC 44.34.
8. The definition of a seal under the Schedule to Part 2 of the RDC is: “a seal is a mark which the Courts put on a document to indicate that the document has been issued by the Courts”. However, filing is also defined as: “in relation to a document, means delivering it, by post or otherwise, to the Registry”. In my opinion, reference to a document in this definition relates to documents which do not require a seal, i.e. skeleton arguments. The process of sealing a document is undertaken by a Court Officer and is conditional upon a filing/issue fee being paid. I therefore consider that RDC 3.15 applies, the process of filing was not undertaken until the fee was paid and the Notice was sealed.
9. I do not agree that the Court was required to send a notice seeking payment from the Defendant under RDC 4.29 and 4.31, these provisions clearly relate to that of issue fees and not filing fees for appeal. RDC 4.29 states: “the Court will serve a notice on the Claimant requiring payment of a Court fee if, at the time the fee is due, the Claimant has not paid it”. RDC 4.34 further states: “rules 4.35 to 4.39 [of the RDC] apply where a Defendant files a counterclaim without payment of any fee specified”. On a strict reading, RDC 4.29 would not apply to the Defendant as he is a Defendant, not a Claimant. The reference to counterclaims in RDC 4.34 clarifies that “Sanctions for Non-Payment of Fees” relates only to issue fees. I am therefore of the view that RDC 4.29 does not apply to the present case.
The Claimants’ late payment in the successful appeal
10. During the history of the case the Claimants had filed an appeal notice but were also late in paying the filing fee. The Defendant is seeking to use submissions made by the Claimants, in my view out of context, relating to this late payment to support his submissions.
11. The circumstances of the Claimants’ late payment are entirely different from that of the current situation. The Claimants’ late payment was only by a matter of days and was due to a technical difficulty with the e-filing system. As noted in their “Supplemental Submission to Notice of Appeal” dated 2 August 2018, the Claimants made the Registry aware of this issue immediately and worked with them to resolve the issue. The key factor is that the Claimants were willing and intended to pay at the time of filing. The Defendant, however, allegedly could not afford the filing fee and therefore had no intention of paying at the time of filing. The failure to pay was intentional, not a mistake. As he was aware that he would not be able to pay the filing fee, he should have also filed an application for an extension of time. Additionally, the Defendant’s appeal is flawed in the sense that it heavily relies on additional evidence not before the lower court, contrary to RDC 44.114. An application should have also been made to rely upon this evidence.
Does the Registry have power to make this decision?
12. The Defendant submits throughout the Application that the Registry was not entitled to decide that the Notice was filed out of time, as only the Court can make this order/decision.
13. Under RDC 3.1: “where [the RDC] provide[s] for the Court to perform any act then, except where an enactment, Rule or Practice Direction provides otherwise, that act may be performed by any Judge or Registrar.” Under Article 17 of Law 10 of 2004 “subject to the Rules of Court, the Deputy Registrars and officers may exercise the powers and duties of the Registrar.” Under these provisions, as the email setting out the decision and reasons why the Notice was deemed filed on 9 January 2020 was sent and made by the Deputy Registrar, her decision is the decision of the Court and the Complainant’s submission fails.
Does this engage Article 44(1) of Law 10 of 2004 by way of a procedural irregularity?
14. The Defendant seeks to assert by finding that the Notice was deemed filed on 9 January 2020, due to the late payment, the Court/Registry would be in breach of Article 44(1) of Law 10 of 2004, which states:
Technical Defects
(1) No proceedings in the DIFC Court are invalidated by a technical defect or an irregularity, unless the DIFC Court orders otherwise.
(2) The DIFC Court may, on conditions the DIFC Court considers appropriate, make an order declaring that a proceeding is not invalid by reason of a defect or irregularity.
15. I do not agree with this submission. The Defendant’s failure to pay the filing fee, failure to make the Application on time, support the Application with sufficient evidence and seek relief from sanctions is a wholesale non-compliance with the RDC, not merely a technical defect. An example of a technical defect may include using the incorrect form, or filing under the incorrect case number, in which cases the offending party would be able to apply for relief. Examples of a procedural irregularity include constant and contentious interference with oral evidence1 and failing to give a party a fair hearing due to lack of time2 . The Defendant was also able to file an application for relief but failed to do so sufficiently or on time.
1. London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281 at para [147]
2. Richards v Vivendi SA [2017] EWHC 1581 (Ch)
The Application
16. In my view the Defendant’s application for an extension of time should be refused. The majority of the Application is irrelevant and reads more like a claim for judicial review. The reason for the delay in paying the filing fee are stated at paragraph 36 of the Defendant’s application are allegedly because the Defendant could not afford to pay the filing fee.
17. In contravention of RDC 44.13 the application for an extension of time was not submitted at the time of filing the Appeal Notice. In considering the Application, including the late submission of the same, the Court should have regard to the test under RDC 4.49 for relief from sanctions. The factors for the Court to consider are set out below:
(1) the interests of the administration of justice;
(2) whether the application for relief has been made promptly;
(3) whether the failure to comply was intentional;
(4) whether there is a good explanation for the failure;
(5) the extent to which the party in default has complied with other Rules, Practice Directions and Court orders;
(6) whether the failure to comply was caused by the party or his legal representative;
(7) whether the trial date or the likely trial date can still be met if relief is granted;
(8) the effect which the failure to comply had on each party; and
(9) the effect which the granting of relief would have on each party.
18. In my opinion, the Defendant fails on almost all parts of the test. The Defendant was late in filing the Application by more than 40 days. The Defendant did not comply with the other rules by failing to file the Application with the Notice.
19. A mistake as to the correct procedure is not a good reason, particularly when the Defendant is represented. If there was any doubt about payment of the fee, he should have sought clarification from the Registry. As such, failure was due to both the Defendant and his legal representative. Even after he became aware of the Claimants’ opposition to the late filing, he delayed in making the Application by over a month. His application cannot be said to been made promptly.
20. It is also notable that the Defendant did not seek to serve an unsealed Notice upon the Claimant. The non-payment of the fee was intentional as the Defendant has acknowledged that he could not pay.
21. Further, it would not be just in all the circumstances for the Court to grant relief. The Defendant was well aware that the filing fee would be late, the evidence does not set out the steps taken to make the payment. The matter has been ongoing for some years and there must be finality for all parties.
22. The Application is not supported by any evidence form the Defendant himself. I cannot see how the Defendant’s legal representative is able to give evidence about the Defendant’s financial position and the steps he has taken to secure payment of the filing fee.
23. In conclusion, I agree with the Registry’s decision that the Appeal Notice is late due to the Defendant’s failure to pay the filing fee on time. The Defendant breached RDC 44.13 in failing to submit an application for an extension of time with the Notice. As such the Defendant must seek relief from sanctions. On the Defendant’s application for an extension of time I cannot see that they would be entitled to relief from sanctions or an extension of time and as such this Application should be dismissed with costs.
