April 27, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 125/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
MERTIN
Claimant
and
MIKHA
Defendant
ORDER WITH REASONS OF SCT JUDGE HAYLEY NORTON
UPON this Claim having been called for a Consultation before SCT Judge Hayley Norton on 13 April 2023
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 their own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 27 April 2023
At: 3pm
SCHEDULE OF REASONS
The Parties
1. The Claimant is Mertin, an individual located in the United Kingdom (the “Claimant”).
2. The Defendant is Mikha, an individual located in Dubai, the UAE (the “Defendant”).
Background
3. On 23 March 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment of an alleged sum owed by the Defendant to the Claimant in the amount of USD 120 (the “Claim”).
4. On 4 April 2023, the Defendant filed an Acknowledgment of Service setting out his intention to defend part of the Claim.
5. On 13 April 2023, a consultation was listed before me at which the Claimant attended and the Defendant failed 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 (“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 or 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.
9. 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.
10. At the Consultation, I requested the Claimant to provide submissions by no later than 20 April 2023 to address this point and to confirm whether he was able to obtain a written agreement with the Defendant opting into the DIFC Courts’ jurisdiction, however, no submissions were filed.
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.
