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Claim No: SCT 177/2023

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE SMALL CLAIMS TRIBUNAL

BETWEEN

MIRET

Claimant / Respondent

and

MUSTO

First Defendant / Appellant

MIPLY

Second Defendant

ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the Judgment of H.E. Justice Nassir Al Nasser dated 14 July 2023 (the “Judgment”)

AND UPON the Appellant’s Appeal Notice dated 28 July 2023 seeking permission to Appeal the Judgment (the “Permission Application”)

AND UPON the hearing scheduled before me on 24 August 2023 with the First Defendant’s representative and the Second Defendant in attendance and the Claimant failing to appear (the “Hearing”)

IT IS HEREBY ORDERED THAT the Permission Application is dismissed.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 13 October 2023
At: 3pm

SCHEDULE OF REASONS

1. The First Defendant applies for permission to appeal the Judgment of H.E. Justice Nassir Al Nasser dated 14 July 2023.

2. An appeal from the Small Claims Tribunal (the “SCT”) will be successful in only limited circumstances. These are, Rule 53.87 of the Rules of the DIFC Courts (the “RDC”) explains, where the challenged decision was (1) wrong, (2) unjust because of a serious procedural or other irregularity in the proceedings or (3) wrong in relation to any other matter provided for or under any law. In other words, for an appeal to be successful, it must be established that the decision was either wrong or unjust because of irregularity in the proceedings. This is not to say that valid criticisms against a judgment or the proceedings in which it was given are limited to criticisms which establish that at least one of these circumstances exists. Instead, it is to say that the appeal process is limited to correcting certain types of defects.

3. For example, if a decision is explained in abstruse or otherwise difficult language, there will be a justified criticism against the decision but, without more, that type of defect is not amenable to correction on appeal. Similarly, a decision may include in its reasons an error of law or fact, but if that error concerns a point which is of no consequence to the decision itself – for example, if it is given in obiter comments – such that it would not be possible to say that the error caused the decision to be wrong, that “defect” would not be amenable to correction on appeal. Likewise, there may be a procedural irregularity in a case, but one that leads to no injustice in the decision. And so on.

4. In the present case, the First Defendant does not dispute the correctness of the Judgment in terms of the amount it ordered the First Defendant to pay to the Claimant. The First Defendant accepts the judge’s conclusion in that regard. Indeed, at [19] of the Judgment the judge stated that, “At the Hearing, the First Defendant confirmed that the Claimant is entitled to its claims.”

5. The First Defendant’s criticism is instead that the Judgment granted the Claimant its claims as particularised in the claim form as amended after the Hearing of the claim and without the First Defendant having an opportunity to respond to the amended claims. While on the face of it this appears to be the type of procedural irregularity that renders a judgment unjust, it is clear, in my view, that such is not the case here. This is for two reasons.

6. First, the First Defendant accepts that the judge came to the right answer. As such, it may be that the Judgment was just notwithstanding an irregularity, but it seems to be very unlikely that it was unjust because of the supposed irregularity. Second, the First Defendant has explained what step it would have taken if it had been given the opportunity to respond to the amended claim form, and it seems to me that this step is not something that the First Defendant was entitled to do, such that it could be said that the First Defendant was deprived of its right. The First Defendant says that it would have sought to negotiate a payment plan. While there was nothing to stop the parties from reaching a settlement, including on a plan for payment, before the Judgment was made, in my view the task of the judge when giving judgment was to decide the rights and obligations of the parties, not impose rights and obligations on the parties whether in the form of a payment plan or otherwise.

7. In other words, I do not think that the First Defendant has highlighted a defect in the Judgment, much less one amenable to correction on appeal. For this reason, the First Defendant is not granted permission to appeal the Judgment.

8. It is of course open to the parties to agree to a payment plan between themselves.