August 25, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 254/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
MIRKU
Claimant
and
MIFIT
Defendant
ORDER WITH REASONS OF H.E. JUSTICE MAHA AL MHEIRI
UPON reviewing the Claim Form dated 7 July 2023 (the “Claim”)
AND UPON a Jurisdiction Hearing having been held before H.E. Justice Maha Al Mheiri on 2 August 2023, with the Claimant’s and the Defendant’s representatives in attendance
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant’s application to contest jurisdiction is denied.
2. The DIFC Courts have jurisdiction to hear and determine this claim.
3. Each party shall bear their own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 25 August 2023
At: 12pm
SCHEDULE OF REASONS
The Parties
1. The Claimant is Mirku (the “Claimant”) a company located in London, the UK.
2. The Defendant is Mifit (the “Defendant”) a company located in, DIFC, the UAE.
Background and the Preceding History
3. The Defendant appointed the Claimant to draft a share purchase agreement in addition to a loan agreement and advice in relation to a project known as Murri (the “Agreement”). The Claimant performed the task and delivered the Agreement on 14 March 2019.
4. The Claimant was assured on multiple occasions that the fee associated with the Agreement would be paid. However, the Defendant failed to settle the invoice.
5. The Claimant filed its claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) on 7 July 2023 seeking payment from the Defendant for an unpaid fee associated with the Agreement in the amount of USD 9,100.
6. The Defendant responded to the Claim indicating its intent to contest the jurisdiction of the DIFC Courts, stating that the SCT is not the appropriate forum to adjudicate this Claim. In addition, the Defendant submits there is inadmissibility of the Claim against the Defendant due to non-capacity.
7. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 2 August 2023 with the Claimant’s and the Defendant’s representatives in attendance.
The Jurisdiction Application
8. The Defendant disputes the jurisdiction of the DIFC Courts and expressly denies that there is any valid agreement between the parties agreeing to the SCT jurisdiction. It submits that there is no contract signed with the Claimant that indicates that the DIFC Courts are to have exclusive jurisdiction to settle any dispute arising out of or in connection with the signed contract.
9. The Defendant’s position is that it had never entered into a direct contractual relationship with the Claimant in relation to the present claim. It states that it is legally decided that arbitration is an exceptional way and shall not be proven except in writing and from an exclusively authorised person. Hence, the SCT is not the appropriate forum to adjudicate this Claim.
10. In addition, the Defendant submits non-acceptance of the lawsuit against the Defendant because of “filing the case with non-capacity”. The Defendant submits that it is not a party to this dispute as the service rendered by the Claimant is related to another company. The Defendant assert that there is no contractual relationship between the parties and that sending an email to refer any invoice to the finance department of another company does not mean in any way approval or willingness to pay, but its referral is purely an administrative procedure and does not constitute a legal procedure. Hence, the Defendant submits that the present case is based on an unsubstantiated law.
11. In reply, the Claimant argues that the Defendant misunderstood that the current proceedings are not arbitration proceedings. It is a dispute subject to litigation under the jurisdiction of the DIFC Courts. Pursuant to Article 5 (A)(1)(a) of Law No. 12 of 2004, the DIFC Court has the exclusive jurisdiction to hear and determine civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party.
12. Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended, (the “JAL”) sets out the DIFC Courts’ jurisdiction over:
“(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.”
13. Pursuant to Article 5 (A)(1)(a) of the JAL, the DIFC Court has the exclusive jurisdiction to hear and determine civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party.
14. The Defendant is an active and regulated private company incorporated in the DIFC as of 2011 and registered in the DIFC. Hence, the requirements for the jurisdictional gateway as set down by Article 5(A)(1)(a) of the JAL are fulfilled. The Claimant adds that the SCT can hear and determine with commercial claims under the claim value of AED 500,000.
15. Furthermore, the Defendant’s representative operates as a professional advisor of financial products and manager of a collective investment fund. As a professional, he has hired the Claimant in its capacity as a law firm and provided clear instructions about the expected performance. This is evidenced by emails submitted by the Claimant as evidence.
16. Furthermore, the Defendant did request from the Claimant an invoice for the Claimant’s services that were provided on 14 March 2019. Accordingly, the invoice was addressed to the Defendant, which in return the Defendant confirmed receipt of the invoice and agreed to pay. The Defendant failed to object or raise any concern regarding the invoice being under the “wrong name” at any point of communication between the parties.
Discussion
17. Pursuant to Article 5(A)(1)(a) of the JAL, the DIFC Courts can exercise its jurisdiction over a matter that concerns an entity that is related to the DIFC, where the parties have not agreed in writing which jurisdiction should apply in case of any dispute arising between.
18. The emails submitted by the Claimant as evidence demonstrates the Defendant engaging the services of the Claimant. Although the Defendant suggests that it was acting on behalf of someone else, the Defendant’s representative did not make that clear nor did he nominate a different contact point for the Agreement to be facilitated by a third party.
19. Having reviewed the evidence submitted before this Court to adjudicate upon the jurisdictional challenge, I find that the Defendant requested a service which was then provided by the Claimant in the manner that it was requested, which resulted in an invoice being issued under the Defendant’s name.
20. For the above cited reasons, I find that the Defendant’s application to contest the DIFC Courts’ jurisdiction must be dismissed as the DIFC Courts has jurisdiction over the matter in accordance to Article 5(A)(1)(a) of the JAL.
21. Each party shall bear their own costs as to the Application to contest jurisdiction.
