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Claim No: SCT 419/2023

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NORMANDIE

Claimant/Respondent

and

NORRIS

Defendant/Applicant

ORDER WITH REASONS OF JUSTICE ANDREW MORAN

UPON reviewing the Judgment of H.E. Justice Nassir Al Nasser (the “Judge”) dated 20 June 2024 (the “Judgment”)

AND UPON reviewing the Defendant’s Appeal Notice dated 19 July 2024 with attached first Explanatory Memorandum seeking permission to appeal the Judgment (the “Application”)

AND UPON reviewing the Defendant’s Amended Appeal Notice filed on 24 July 2024, again with the attached first Explanatory Memorandum seeking permission to appeal the Judgment

AND UPON reviewing the Defendant’s Further Appeal Notice dated 5 September 2024 with attached second Explanatory Memorandum (identical to the first save as to the requests made on the final page), wrongly implying that permission to appeal the Judgment had been given to the Defendant, which is not the case.

AND UPON considering the documents and submissions filed by both parties and recorded on the case file

IT IS HEREBY ORDERED THAT:

1. The request for an oral hearing of the Application is refused.

2. The Application is refused.

3. The Applicant may not request that this decision be reconsidered at a hearing.

4. Each party shall bear their own costs of the Application.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 16 September 2024
At: 2pm

SCHEDULE OF REASONS

1. By an Appeal Notice, (the “First Notice”) including the required application for permission to appeal, issued on 19 July 2024 (the “Application”), the Defendant Applicant and intending Appellant, Norris, (hereafter the “Applicant”) sought permission to appeal the Judgement of H.E. Justice Nassir Al Nasser dated 20 June 2024 (the “Judgement”) sitting in the Small Claims Tribunal (the “SCT” or the “lower court”). It was filed with a document entitled “An Explanatory Memorandum for the reasons of appeal” making in conclusion two requests under the request heading to “Amend the appealed ruling and decide a new one:”.

2. That Appeal Notice was served well beyond the time limit for such a notice (set out below), and was defective in the respects particularised below, with the result that an Amended Appeal Notice (the “Second Notice”) was filed on 24 July 2024, which is also deficient in the respects detailed below. It was filed with the same document entitled “An Explanatory Memorandum for the reasons of appeal”.

3. Yet a further Appeal Notice (the “Third Notice”) has been filed on 5 September 2024, with different grounds of appeal and seeking different orders. It was filed with the same document entitled “An Explanatory Memorandum for the reasons of appeal” which had been modified from the earlier versions filed, to seek the same substituted order as set out in this latest Appeal Notice. The latest grounds of appeal advanced were stated thus:

4. The remedy sought on the Appeal was changed to seeking substitution of the Judge’s orders set out in paragraph 8 below, to (sic):

5. This last-mentioned Third Appeal Notice stated that “Permission to appeal has been granted”, (which is correct, although not to this Applicant, but only to the Claimant, by order of this Court dated 29 July 2024); and so, it wrongly implied that permission to appeal had been granted to this Applicant. The position therefore remained that the Applicant was required to apply for permission to appeal, which is refused for the reasons now given.

6. The Applicant also sought a hearing of this Application for permission to appeal in its various Appeal Notices, but the Application is hereby refused without a hearing, for reasons given below.

7. The Judgement upheld the Claimant’s claim made against the Applicant for payment of the amount of AED 106,375.09 and the court’s fees in the sum of AED 5,318.80.

8. By his Judgment, the learned Judge ordered as follows:

9. Under the Rules of the DIFC Courts (the “RDC”), it is provided as follows in relation to the filling and service of an Appellant’s Notice:

10. The Appeal Notice and required application for permission to appeal, ought therefore to have been filed by no later than 4 July 2024, but the Application was not filed until 19 July 2024, over two weeks later than the RDC Rule required. When it was so lately filed, it was defective and lacking what the rules required in the following respects: It was not filed immediately after expiry (or even within a few days of expiry) of the time limit; it did not seek an extension of time for filing the notice; it did not state the reason for the delay or the steps (if any) that were taken prior to the application being made.

11. Consequently, and presumably having been informed by the Registry, that the Appeal Notice was late and defective in the respects identified, the Second Notice was filed, which was not much of an improvement. It contained a manuscript amendment in the following terms: “we would like to request for an extension of time, due to legal representation procedures, as we assigned a new representative”. This does not adequately or coherently state the reason for the delay in filing the notice, by explaining why the time limit was not complied with by any new representative or the Applicant itself, in circumstances where it (and not any legal representative) filed the First and Second Notices itself; and it has also filed the Third Notice. The Second Notice also, does not state any steps taken prior to the application for an extension of time.

12. By RDC 53.105 and 106, it is provided that:

13. The First and Second Notices were themselves devoid of any reasons or grounds of appeal as the Rules above require. On their face, both alongside “Grounds for Appeal” and “Remedy sought” the same words appeared thus:

These are not grounds or reasons for an appeal; but this defect may of course be disregarded where an Applicant files a separate document, as the Applicant did in this case, setting out its reasons for the appeal. However, what was received in this case in that manner, the “Explanatory Memorandum”, is replete with bare assertions of: invalidity; misapplication of law; flaws in reasoning and violation of rights of defense (sic); deficiency in the expert’s competence and approach; that the Judge was wrong to accept his report’s conclusions; failed to make his own judgment on the matters in issue, and failed to accept the Applicant’s case. It does not however demonstrate by precise reference to any part of it, why, the Judge’s decision or judgment was wrong or unjust. Whilst it also misguidedly makes extensive reference to principles of Federal Law of the UAE and decisions of its courts, which do not apply directly in the DIFC, that is not a defect of any significance, where the same or similar principles and requirements of judicial fairness, assessment of evidence and judicial, (rather than expert) determination of issues do apply, under the law and judicial procedures of the DIFC. What the Explanatory Memorandum completely fails to do however, is to show how and why those principles, applicable in common in the two jurisdictions, were breached by the Judge, in reaching his decision. There is no reference to any part of his judgment or reasons, demonstrating how and why he erred and was wrong; or how there was a serious procedural or other irregularity in the lower court. There is nothing more than bald assertion that he should have accepted the Applicant’s case, that he wrongly accepted the Expert’s view, that the Applicant was responsible for the delay, and that he did not make his own decision on that issue. On my reading of both the Judgment and the very detailed expert’s report, (the conclusions in which the Judge was entitled to accept and did accept), it is clear firstly that the expert gave careful consideration to the evidence; and secondly, that the Judge considered the competing submissions of the parties on the facts (see paragraphs 26-28 of the Judgment – there is a misnaming of the Defendant as Claimant in the first line of paragraph 28) and on the law (see paragraphs 29-30 and the fifth bullet point in paragraph 36). It is also clear he made his own judicial determination of the Applicant’s responsibility for the delay in completion of the works, in the final bullet point of paragraph 36, and in paragraphs 37, 39 and the first sentence of paragraph 40 of the Judgment. There was an evidential basis before him for these findings and this brief mode and content of his expression of those findings, was all that was required of the Judge, in an SCT judgment. All of the suggestions in the Explanatory Memorandum, based on Federal Law, to the contrary and to the effect that he was required to do more, are rejected by me; and they would undoubtedly be rejected by an appeal court.

14. Then, on 5 September 2024, now two months after an RDC compliant Appeal Notice ought to have been filed, the Third Notice was filed, that long out of time. As already demonstrated this version contained Grounds of Appeal that were different to the so-called grounds in the First and Second Notice. It (and the Amended Explanatory Memorandum filed with it) sought a different set of remedies; and thus, in those respects, it amended the previous notices. There was no accompanying application to amend the grounds of appeal as required under RDC 53.113 which provides:

15. There is thus revealed a serious disregard for, and serial non-compliance with provisions of the RDC by the Applicant. These rules are carefully designed as part of a system for swift and final determination of small claims, by a dedicated tribunal established for that purpose. The purpose and operation of the Small Claims Tribunal, including its informality of approach to judicial determination of disputes within its jurisdiction, with only short or summary reasons for decisions being required; and with a deliberately restrictive and short-time limited opportunity for bringing appeals, would be seriously compromised, if I was to overlook such a serious and serial disregard for the rules in the RDC, relating to appeals, and grant permission to appeal to this applicant. It would be unfair, unjust and an affront to the process. For all of these procedural reasons alone, permission to appeal is refused.

16. Whilst it is not necessary for the Court to go any further, it is also obvious that even in its latest iteration, the Third Notice and grounds now advanced, do not satisfy the substantive merits test or requirement for the grant of permission to appeal, on the issue of which party was responsible for the delay in completion of the relevant works.

17. Under RDC 53.87, the “Court”, meaning the Court to which an appeal is made, will allow an appeal where the decision of the lower court was:

18. By RDC 53.89, an application for permission to appeal a decision of the SCT, must be made to the Court of First Instance in a particular form, and under RDC 53.91, permission to appeal may only be granted by me as a judge of the Court of First Instance:

19. Application of that test, or satisfaction that its requirements have been met, obviously requires a prospective inquiry and assessment. In short, an applicant/intending appellant must show that there is a real (i.e. a realistic as opposed to a fanciful) prospect of persuading an Appeal Court, that the judge of first instance, in the Small Claims Tribunal was wrong in what he decided or proceeded in a manner that was unjust. This requirement must be satisfied by the grounds of appeal advanced, and submissions made at an oral hearing (if one is considered necessary), showing how it is contended that the judge erred in his findings and decision.

20. In this case, as already noted in paragraph 13 above, there is simply no prospect in my judgment of this Applicant showing, that the Judge of first instance, in the Small Claims Tribunal was wrong in what he decided on this issue of delay or proceeded in a manner that was unjust.

21. This Application for permission to appeal is, in my judgment, on the written materials before me, so wholly and obviously devoid of merit, on both the procedural grounds of the delay in bringing it - together with the serial breaches of the RDC demonstrated above in doing so; and also so lacking in the substantive grounds necessary to meet the test and requirement for the grant of permission to appeal, that it must be dismissed. I am also satisfied by that obvious lack of merit, on two separate grounds, that it is utterly pointless, would be a complete waste of time and costs, and also unfair to the Claimant, to afford the Applicant the hearing it has requested, before determining this application. Moreover, I am also satisfied for all of the reasons given heretofore for refusing permission to appeal, that this is one of those limited number of cases, where the court should go further and make an order under RDC 53.99, which provides as follows:

22. It is accordingly so ordered.