November 16, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 399/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
Mahut
Claimant
and
Mishti
Defendant
ORDER WITH REASONS OF SCT JUDGE DELVIN SUMO
UPON the claim having been filed on 10 October 2023 (the “Claim”)
AND UPON this Claim having been called for a consultation before SCT Judge Delvin Sumo on 15 November 2023 with the Claimant in attendance and the Defendant failing to appear although served notice of the Claim (the “Consultation”)
AND UPON reviewing the case file and submissions contained therein
IT IS HEREBY ORDERED THAT:
1. This Claim be dismissed due to lack of jurisdiction.
2. Each party shall bear its own costs.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 16 November 2023
At: 3pm
THE REASONS
The Parties
1. The Claimant is Mahut, an individual based in Dubai, UAE (the “Claimant”).
2. The Defendant is Mishti, an individual based in Dubai, the UAE (the “Defendant”).
Procedural Background
3. On 10 October 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment of sums allegedly owed by the Defendant to the Claimant in the amount of AED 12,000 plus all applicable interest, costs, fees and expenses (the “Claim”).
4. The Defendant failed to file any acknowledgement of service.
5. On 15 November 2023, a consultation was listed before me at which the Claimant attended and the Defendant failing to appear, although served notice of Claim (the “Consultation”).
Can the DIFC Courts hear and determine this Claim?
6. Rule 53.2 of the Rules of the DIFC Courts (the “RDC”) requires that the SCT hear only cases that fall “within the jurisdiction of the DIFC Courts”. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended (the “JAL”), which provides a number of limited gateways through which the DIFC Courts have jurisdiction over a claim, which are, as relevant:
“(a) Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;
(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;
(c) Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; …
(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations…
(2) …civil or commercial claims or actions where the parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”
7. For cases to be heard in the SCT, they must first fall within the DIFC Courts’ jurisdiction by engaging any of the jurisdictional gateways set out in the abovementioned Article.
8. Upon review of the case file and submissions contained therein, I find there is no evidence to suggest that the transaction was partly or wholly performed within the DIFC nor was it related to DIFC activities. In the absence of a sufficient nexus between the Claim and the DIFC, the DIFC Courts may still have jurisdiction over the Claim if it can be shown that the parties sought to ‘opt in’ to the jurisdiction of the DIFC Courts, pursuant to Article 5(A)(2) of the JAL. Such a provision would allow the parties to ‘opt-in’ to the DIFC Courts’ jurisdiction, provided that it clearly demonstrates the parties’ intention to do so.
9. At the Consultation, the Claimant confirmed that there is no underlying agreement between the parties other than e-mail correspondence and WhatsApp messages. The Claimant further submitted that the Defendant has not objected to the Claim being filed in the DIFC Courts, and therefore, the DIFC Courts has jurisdiction to hear and determine this Claim.
10. In order to successfully opt in to the DIFC Courts jurisdiction, Article 5(A)(2) of the JAL requires that the “parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises”. Upon review of the submissions filed in support of this Claim, I see no evidence to suggest that the parties sought to ‘opt in’ to the jurisdiction of the DIFC Courts, pursuant to Article 5(A)(2) of the JAL, and, therefore I find that the parties have failed to “agree in writing” for the DIFC Courts to have jurisdiction.
Conclusion
11. Accordingly, for the reasons I have set out above, I find that the DIFC Courts do not have jurisdiction to hear and determine this Claim.
12. Each party shall bear their own costs.
