June 19, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 161/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
NICHOLAS
Claimant/Defendant in Counterclaim
and
NOLAN
Defendant/Claimant in Counterclaim
| Hearing : | 6 June 2024 |
|---|---|
| Judgment : | 14 June 2024 |
UPON the Claim having been filed on 24 April 2024 (the “Claim”)
AND UPON the Defendant’s defence with counterclaim dated 10 May 2024 (the “Counterclaim”)
AND UPON the Claimant’s reply to the Counterclaim dated 20 May and 29 May 2024
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 6 June 2024 with the Claimant and the Defendant’s representative in attendance (the “Hearing”)
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s Claim shall be dismissed.
2. The Defendant’s Counterclaim shall be dismissed.
3. Each party shall bear its own cost.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 19 June 2024
At: 12pm
THE REASONS
Parties
1. The Claimant is Nicholas (the “Claimant”), an individual who sought the services of the Defendant to apply for a visa to the United Kingdom.
2. The Defendant is Nolan (the “Defendant”), a company specialised in immigration services registered in Dubai, the UAE.
The Claim
3. The Claimant appointed the Defendant on 8 December 2022 for immigration services to apply for a start-up business visa to enter the United Kingdom in return for payment of AED 28,350 (the “Agreement”).
4. The Claimant asserts that the Defendant defaulted on the terms of the Agreement and failed to provide the agreed services diligently and efficiently. Therefore, pursuant to paragraph 7 of the Agreement, he is seeking a refund of the amount paid.
5. The Claimant submits that the Defendant initially advised him that the process will take one to three months, however, the process took almost two years, and the visa is not yet issued.
6. The Claimant argues that he followed up with the Defendant on numerous occasions by way of telephone and emails during this time and the Defendant was not transparent and clear in their communication and would only respond if the Claimant chased them for an update.
7. The Claimant contends that the Defendant advised him to change his visa package twice while he just wanted the easiest route, i.e. a startup visa (as per the Agreement) to enter the UK for the purpose of finding a part time job then continuing his studies.
8. The Claimant submitted various screenshots of emails sent to the Defendant asking for an update. One email dated 17 August 2023 read “What’s the update 9 months have passed by we are waiting desperately for a reply”.
9. The Claimant adds that he initially asked for a refund in April 2023 which was not approved by the Defendant. He therefore proceeded to elect the other visa category; Innovator Founder.
10. On 31 August 2023, the Claimant’s mother sent an email to the Defendant as per the below:
“Dear Norbert
We paid Nolan Dec 2022 and the time given to us was 3 to 6 months.
You have started interacting with us since 14 March and today 5+ months, NO RESULTS!!!!
Therefore as discussed yesterday kindly put me in the channel for seeking our fees paid to NOLAN FOR REFUND
Now no more exploring things related to start up visa and we completely LOST OUR HOPES WITH NOLAN.
Kindly connect me to your concern team to claim my refund back as per agreed written contract.”
11. The Claimant submits that he complied with all his obligations as set out within the Agreement and submitted all the required documentation as per the Claimant’s checklist.
12. The Claimant argues that he was asked to submit a variety of documents which was not discussed with him prior to signing the Agreement nor mentioned in the Agreement itself, regardless, he submitted it all to ensure that the process goes smoothly.
13. The Claimant takes the view that the Defendant should have informed him if any documentation remains pending as he was constantly asking them for an update, instead of staying silent and dragging the process longer.
14. With respect to the IELTS score, the Claimant alleges that he was not aware of the requirement to score more than 5.5 and argues that the Defendant should have notified him to re-take the exam after receiving his certificate.
15. The Claimant blames the Defendant for its incompetency and submits that he was asked to do unnecessary training which involved standing in front of the mirror and answering questions which led to unnecessary emotional stress and burden.
16. The Claimant further asserts that he was asked to undertake technology related courses which he did not sign up for but agreed to in order to finalise the visa process.
17. Furthermore, the Claimant submits that it is unreasonable to ask a student to have a bank account with a balance of AED 250K as it is too high for an average working-class person.
18. Therefore, the Claimant is seeking the following remedies:
(a) Refund of the amount of AED 28,350 pursuant to paragraph 7 of the Agreement;
(b) Damages for breach of contract;
(c) Interest;
(d) Interest on the judgment sum pursuant to DIFC Courts’ Practice Direction No.4 of 2017; and
(e) Reimbursement of the DIFC Courts’ filing fee.
The Defence with Counterclaim
19. The Defendant rejects the Claimant’s claim that there is communication gap and submits that they have been transparent with the Claimant and provided them with all required information in order to proceed with the visa application.
20. The Defendant asserts that it has rendered its services towards the Claimant by providing him with multiple training sessions, different business plans (both technical and non-technical) and communicated with third parties to obtain the endorsement letter and expedite the Claimant’s process.
21. The Defendant submits that after receiving the initial approval on the business plan, they have been informed by the UK Home Office that the startup visa category is no longer an option, and a new category was announced and is called “Innovator Founder”. Therefore, they advised the Claimant to change his plan which he agreed to do in May 2023.
22. The Defendant explains that once a business concept is approved by the endorsement body, they start working on the business plan which ought to be approved by the applicant/Claimant. The Defendant submits that the Claimant failed to approve the business plan which halted their progress and resulted in not submitting the visa application.
23. The Defendant contends that as per the industry’s usual practice and to try and make the Claimant stand out in his application (although it is not a mandatory requirement), they requested him once again in November 2023 to provide his bank statement for the last 4 months and to make sure that he has at least AED 250K in funds, however, the Claimant failed to submit this.
24. The Claimant instead submitted the bank statement for the months of January, February and March which is not what the Defendant requested as it required the statements of the previous months with the recommended funds as a minimum standard.
25. Additionally, the Defendant states that the Claimant initially applied for a startup business visa and not a student visa. Therefore, rejects the Claimant’s argument that it is unreasonable to ask for bank statements as it is clearly mentioned as a requirement in the checklist.
26. The Defendant further submits that the Claimant is in breach of the Agreement for failure to provide all documentation in line with the checklist. This was shared after signing the Agreement, and the Claimant failed to provide his high school certificate (a transcript was shared only), the Claimant’s bank statement of the last 4 months with available funds, and an IELTS certificate of more than 5.5 scorecard. The Defendant submits that they sent a reminder via email on 10 November 2023.
27. The Defendant is of the view that the Claimant had a change of mind, as such, he is not eligible for a refund as outlined in clause 5 of the Agreement and rejects the Claimant’s claim in its entirety.
28. The Defendant adds that this case does not fall under clause 7 of the Agreement which states that if the application remains unsuccessful then the applicant is eligible for a refund. This is on the basis that the visa application was not rejected as they still did not apply for it for failure to get the Claimant’s business proposal approved by the Claimant himself. Therefore, it is premature to invoke this clause asking for a refund.
29. The Defendant argues that as a matter of principle they do not mention any timeline in the Agreement due to the fact that their work involves liaising with third parties and so forth which makes it unpredictable in terms of timeline. Therefore, rejects the Claimant’s stance that he should be eligible for a refund as the process took longer than anticipated and submits that the Claimant is bound by clause 1 of the terms of business of the Agreement which states “You are free to decline our offered services before your application is submitted to Visa authorities but you would lose any fee you may have already paid to NOLAN.”
30. The Defendant submits that they provided timely updates to the Claimant and accommodated the Claimant’s request by changing the business plan to be non-technical to support the Claimant in his application and to make sure he succeeds in his interview with the endorsement body.
31. The Defendant adds that the Claimant failed to demonstrate a mistake from their side and is just using the excuse of time while it does not constitute a breach of contract because no timeline was ever mentioned or agreed upon in the Agreement. As such, time constraints should not be used against the Defendant.
32. As to the Claimant’s assertion that the Defendant mentioned 3 months, the Defendant states that the application process after applying the visa could potentially take up to 3 months. However, in this case, the visa was never applied for as the business plan was not accepted by the Claimant.
33. As such, as the Claimant withdrew from the application, the Defendant is counterclaiming from the Claimant the amount of AED 10,000 for damages for breach of contract pursuant to DIFC Law No. 6 of 2004 Contract Law.
Jurisdiction
34. RDC 53.2 requires that the Small Claims Tribunal (“SCT”) hear only cases that fall “within the jurisdiction of the DIFC Courts” which are set out below:
“(1) where the amount of the claim or the value of the subject matter of the claim does not exceed AED 500,000 or;
(2) where the claim relates to the employment or former employment of a party; and all parties elect in writing that it be heard by the SCT (there is no value limit for the SCT’s elective jurisdiction in the context of employment claims);
or
(3) which do not fall within the provisions of sub-paragraphs (1) or (2) above, but in respect of which:
(a) the amount of the claim or the value of the subject matter of the claim does not exceed AED 1,000,000; and
(b) all parties to the claim elect in writing that it be heard by the SCT, and such election is made in the underlying contract (if any) or subsequent to execution of that contract
(c) where they have been filed with the Small Claims Leasing Tribunal
or
(4) such other claims as may be ordered or directed by the Chief Justice to be heard by the SCT from time to time.”
35. 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 perform 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 inwriting 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.”
36. The dispute resolution clause is set out in paragraph 4 of the Agreement which reads as follows:
“Disputes and Jurisdiction: Any dispute, difference, controversy or claim arising out of or in connection with this contract, including (but not limited to) any question regarding its existence, validity, interpretation, performance, discharge and applicable remedies, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre (“the DIFC Courts”)….”
37. Therefore, I am of the view that the DIFC Courts have jurisdiction to hear and determine this claim in accordance with the above and Article 5(2) of the JAL.
Discussion
Can the Claimant ask for a full refund?
38. Before answering the above question, the Court must first examine the services rendered by the Defendant and whether there is any provision that qualifies the Claimant for a refund in the Agreement.
39. The Agreement sets out the services expected to be carried out by the Defendant before and after obtaining the visa. There is no need for me to mention the services for after visa issuance as the visa was not issued in this case.
40. The Defendant was expected to perform the following services;
a. Provide a detailed assessment of client’s circumstances,
b. Provide a documentation list
c. Complete the online application for the applicant and any dependents
d. Draft a business plan,
e. Keep the applicant informed about his application status and to continue working on the application until success.
41. As to the first point being detailed assessment of client’s circumstances, I am of the view that this has been complied with which prompted the Claimant to enter into the Agreement and elected the start-up business visa which then helped the Defendant in drafting the business plans accordingly.
42. As to the documentation needed to facilitate the visa, the Defendant submitted evidence that the checklist was shared with the Claimant on 12 December 2022 and the Claimant did not deny it. The checklist does mention that the Claimant must produce an academic document of higher education in School, English language certification with minimum 5.5 which must be submitted before the endorsement letter issuance and latest personal bank statements for 3 months of GBP 40,000 confirming availability of funds.
43. Further to the above, the Claimant submits that the Defendant lacked transparency and did not disclose the exact documentation required, whilst the Defendant submits that the checklist is exhaustive and clear, and the same request was sent to the Claimant by way of email on 10 November:
“Please note on your approval on the business plan, it will be submitted to UK endorsement bodies along with your English language certificate and bank statement proving the availability of maintenance funds and investment funds (As also mentioned in the required documents checklist, already sent to you earlier via email by our office), in case you have not provided your English Language Certificate and bank statement for maintenance funds and investment funds until today, you are requested to provide these documents at earliest so that we can submit these documents to UK endorsement body along with your business plan for evaluation.”
44. By virtue of the checklist and the above email, I find that the Defendant notified the Claimant of the required documents to be submitted and gave him an opportunity to re-send it.
45. It is evident from the emails shared by the Claimant that he was constantly following up with the Defendant with regards to the status of the application. Nevertheless, the responses received from the Defendant are satisfactory in answering the Claimant’s queries. I acknowledge that the Defendant refrained from giving the Claimant any timeframe as to the next steps, but I do not consider this a breach of contractual obligation.
46. While I appreciate the Claimant’s frustration and sympathise with the Claimant that the process took very long with no desirable outcome, the fact remains that the visa category has been changed twice with no fault of the Defendant, which meant that the whole process would start all over again, and the business proposal was not eventually agreed, and thus contributed to prolonging the progress of the visa application.
47. Clause 4 of the terms of business in the Agreement states expressly that the Defendant does not have the authority to grant the visa, and that their role is merely to assist an applicant in doing so. From the evidence before me, although two years have lapsed and the visa application is not yet submitted, this does not mean that the Defendant did not fulfil its obligations under the Agreement as its duty is to continue to provide services until the issuance of the visa.
48. Further to the emails shared by the Claimant and the Defendant, it seems that the Defendant was communicating with the Claimant regularly in relation to the specifics of the business plan and even offered training courses to be taken to assist the Claimant which means that the Claimant was aware of the progress of the application and the Defendant complied with its obligations to complete the online application and assist in business plan.
49. As to the last point requiring the Defendant to continue working on the visa application, without the Claimant’s approval, the Defendant is unable to proceed with it which is why the application is suspended.
50. Despite the fact that this process has taken longer than initially anticipated, given that there is no timeline mentioned in the Agreement, I am of the view that the Defendant performed its obligation to the best of their ability and is still willing to do so.
51. Further to the above, I must note that the Defendant should have been more proactive in approaching the Claimant for updates rather than wait for the Claimant. Additionally, the Defendant should have been more precise in dealing with the Claimant as to the missing documents; the Defendant should have explicitly asked the Claimant to re-submit the official high school certificate and IELTS exam instead of saying there are missing documents.
52. I appreciate that these documents are already included within the checklist and a reminder was sent, however, to maintain a good standing with its clients, the Defendant should have taken the extra mile to elaborate all of this to the Claimant which could have avoided the unfavourable current situation.
53. In any event, paragraph 7 of the Agreement gives the Claimant the right to ask for a refund only in the event the visa application was rejected, which is not the case here. Therefore, I am of the view that the Claimant is not eligible for a refund.
54. In light of the aforementioned and having reviewed the case file and submissions filed by the parties, I find that the Defendant has performed all of its in accordance with the terms of the Agreement. Consequently, I find that the Claimant is not entitled to a refund and the Claim must be rejected.
55. It follows that the Claimant’s claims for damages and interest shall be dismissed.
56. The Defendant’s representative expressed her willingness at the Hearing to proceed with the Agreement and render the services accordingly and I see no harm in continuing this if the Claimant agrees given that no refund is allowed.
57. The Defendant is of the view that the Claimant breached the contract and therefore it should be compensated in the amount of AED 10,000. Though, the Agreement gives the Claimant the right to withdraw from it while losing the fee and as such, I do not find that the Claimant breached the Agreement.
58. I do not find it appropriate to order any damages to be paid to the Defendant as it is my view that the Defendant failed to provide evidence to demonstrate the damages that it has been subjected to by the Claimant and failed to provide an explanation or a breakdown as to how it arrived at the amount of AED 10,000.
59. Moreover, there is no reference in the Agreement in respect of damages being awarded to the Defendant in case of breach of contract, which is not the case. Accordingly, I find that the Defendant’s Counterclaim shall be rejected.
Findings
60. The Claim shall be dismissed.
61. The Counterclaim shall be dismissed.
62. Given that neither party has been successful in its claim, I find that each party shall bear its own cost.
