March 11, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 478/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NOVA
Claimant/Respondent
and
NINA
Defendant/Applicant
ORDER WITH REASONS OF JUSTICE ANDREW MORAN
UPON reviewing the Judgment of H.E. Justice Nassir Al Nasser (the “Judge”) dated 5 February 2024 (the “Judgment”)
AND UPON reviewing the Defendant’s Application Notice dated 19 February 2024 and Statement of Appeal dated 18 February 2024 seeking permission to appeal the Judgment (the “Application”)
AND UPON considering the documents and submissions filed by both parties and recorded on the case file
AND UPON hearing and considering the oral submissions of the Defendant/Applicant and the Claimant/Respondent made at a hearing held on 7 March 2024 (the “Hearing”)
IT IS HEREBY ORDERED THAT:
1. The Application is refused.
2. Each party shall bear their own costs of the Application.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 11 March 2024
At: 2pm
SCHEDULE OF REASONS
1. By an Application Notice, including the required Application for Permission to Appeal, issued on 19 February 2024, and a Document entitled “Statement of Appeal” dated 18 February 2024, the Defendant Applicant and intending Appellant, Nina, seeks permission to appeal the Judgment of H.E. Justice Nassir Al Nasser sitting in the Small Claims Tribunal (the “SCT” or the “lower court”), of 5 February 2024.
2. The Judgment was made upholding certain claims of Nova(the “Claimant” in the lower court and the “Respondent” to the Application) made against the Applicant, for payment of sums due and payable pursuant to three invoices for public relations and social media management services, provided pursuant to a contract for those services, executed on 22 March 2023.
3. By his judgment, the learned Judge ordered as follows:
“1. The Defendant shall pay the Claimant the sum of AED 63,000.
2. The Defendant shall pay the Claimant the Court fee in the sum of AED 3,150.”
4. Under Rule 53.87 of the Rules of the Dubai International Financial Centre Courts 2014 (the “RDC”), the “Court”, meaning the Court to which an appeal is made, will allow an appeal where the decision of the lower court 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.”
5. 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:
“where:
(1) the Court considers that the appeal would have a real prospect of success; or
(2) there is some other compelling reason why the appeal should be heard.”
6. 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. This requirement must be satisfied by the grounds of appeal advanced, and submissions made at an oral hearing showing that the judge erred in his findings and decision.
7. On reviewing the grounds of appeal contained in the Statement of Appeal the Applicant highlights, as the basis of its application and intended appeal, that the decision of the Judge was wrong. It repeats its defence which may be summarised sufficiently for present purposes as being that it has paid money for work that was supposed to be done in March, April and May 2023 but was not performed by the Claimant. The agreed scope of work was not provided in those months or in June, July or August 2023, despite repeated requests for that performance, and it has therefore not received any services from the Claimant. It contends at paragraph 4 of the Statement of Appeal, that the Judge did not take into consideration “a lot of emails”, some of which are illustrated in the Statement of Appeal, of “an extremely high level of importance” for a full understanding and decision on the claim. It claims in its Application that:
“The above emails (which have been previously shared with the SCT) are considered unequivocal proof and evidence that the Appealed Judgment has not taken into consideration the facts and evidence that the defendant presented previously to the SCT. As such emails prove the desperate follow up of the defendant with the claimant and shows how to defendant was desperately requesting the claimant to fulfil its obligations in addition to updating the defendant accordingly, which the claimant failed in doing both.”
8. In making the allegation that the Judge did not take into consideration “a lot of emails”, the Applicant was referring to a bundle of emails and submissions (referring to slides of the emails) comprising some 45 pages of documents, every line of which I have read, in reaching my decision on this Application for permission to appeal.
9. The Applicant further relies at paragraph 4.2 of the Statement of Appeal, on correspondence late in the relationship, dated 18 August 2023, which it contends proves the falsity of the Claimant’s statements (and also demonstrates the erroneous findings of the Judge) that work was not done because of outstanding or pending approvals that the Applicant had not given or sent.
10. These grounds have been elaborated in oral submissions at the Hearing but remained fundamentally the same as summarised from their documentary expression above. Mr Nicholas, representing the Applicant concentrated on (i) the alleged failure in the supply of “deliverables” for PR purposes; (ii) that if there had been delivery of services promised, there would have been no need for the Applicant to engage consultants - indeed to substantiate that need, he relied on the lack of complaint by the Claimant about the presence of a consultant he had engaged at a meeting in July 2023 with the Claimant, when he contends he was seeking to secure the contractual performance the Applicant had paid for; (iii) on the issue of lack of approvals, he contended that he had sought a list of all pending approvals, but this was not provided.
11. The thrust of his submissions to explain the absence of any substantial, contemporaneous complaint about the deficient performance the Applicant is now complaining of, was that he did not want to break the relationship with someone who was assuring him they would perform; and that if he had wanted to complain he would have made more of his grounds in the documents placed before the Court. He complained about the lack of monthly reports but did not refer to any contemporaneous material to substantiate such a failure. Most notably, although directed to the Response to the Application (see below) by me, which details regular actions and exchanges in the nature of reports (though not of production of a formal document – and noting the Contract does not prescribe the form of reports required), Mr Nicholas did not attempt to challenge that responsive narrative of work that was done under the contract. He explained the evident lack of serious contemporaneous complaint by the Applicant about the seriously defective performance it now complains of, by saying that he did complain “softly”.
12. The Claimant/Respondent has provided its Response to the Application in an undated document with a filing date of 23 February 2023. It comprises first a recital of the fundamental allegations of the defence and now grounds of appeal, followed by what I find to be, a meticulous refutation of the Applicant’s case, by recital of events and actions taken in discharge of its contractual obligations. The Applicant (as noted above) has failed to counter this recital of performance and attempted performance, still less refute it, in any significant respect or degree.
13. The Respondent refers, pertinently, to the material terms of the contract entitling it to payment for its services, which it demonstrates it performed until termination of the contract; cancellation notice of which, was never in fact given by the Applicant (Contract Clause 3.1). It points to its decision not to apply the late payment penalty to which it was contractually entitled (Contract clause 4.5). It highlights the express contractual declaration that it did not and could not guarantee the success of any project or service undertaken on behalf of the Applicant and that the client (the Applicant) remained responsible for approving all work to be done on its behalf (Contract Clause 11.3). I do not refer to the reference to the Force Majeure clause, which is inapt and irrelevant.
14. It finally summarises its position and the cause of the lack of promotional success from its efforts, which lack of success it seems to me, (from an overall reading of all of the contemporaneous inter-partes correspondence filed in the proceedings), was the principal complaint that was being made by the Applicant towards the end of the parties’ relationship, as follows:
“The agency input maximum effort and hours to ensure Nina is front of mind, however due to lack of material provided, and lack of feedback/ responses from the brand, the agency could not perform to the best of its capability.”
15. In support of its response, it has submitted several weblinks embedded in the Response and eight documentary attachments to it, which substantiate the narrative of its contractual performance, and the Applicant’s failures of response to, and approval of promotional proposals, in significant respects. I have considered these documents, which do not require further description in these reasons, together with the Applicant’s own defence bundle of “a lot of emails”, and find that, without the need for anything more, they all stand together in stark disproof of the Applicant’s fundamental assertion in its Application and Statement of Appeal that:
“However, the Claimant has never demonstrated to The Defendant any intention to provide the services or conduct the agreed scope of work. Which resulted in having the Defendant paying the amount of AED 45,387.1 to the Claimant without having received any services from the Claimant. It is the Claimant who has refused to properly engage with the Defendant and to fulfil its contractual obligation.”
16. In his oral submissions for the Claimant/Respondent, Mr Niles focussed on what he described as the real lack of response on proposals for the deliverables and the ill-advised insistence on the press release, when the Applicant’s website was not live or down – pointing out that it was not good sense to push something that was not live; and that as soon as the site was live, he obtained coverage. He conceded there was a change in the team in June 2023, providing the services (by putting a more senior Arabic speaking person in place) but he remained silently involved thereafter. He pointed out that the Applicant did not share a business or marketing plan for the Claimant to promote. He re-iterated the lack of contemporaneous complaint and submitted that if there had been any valid ground of complaint about deficiency of performance or the Applicant had been unhappy with that performance, it could have used the notice period to stop working with the Claimant.
17. On that basis, and against that background of careful analysis of all of the materials and submissions written and oral before me, I turn to address the question I am required to answer on this Application, namely: Do I consider the appeal it is sought to bring against the Judgment and Order of the Judge, would have a realistic as opposed to a fanciful prospect of success? My answer to that question is unhesitatingly in the negative for the following reasons:
(1) First, I reject the suggestion that the Judge failed to have regard to the bundle of emails and submissions presented in support of the defence. It is abundantly clear to me from: (i) the written form of the defence and supporting materials; (ii) the way the defence was presented before him at the hearing below; and (iii) his commendably brief identification and determination of the matters in issue, that the Judge took the contents of the emails (and submissions based on them) contained in the bundle, into account in reaching his decision, and that he formed a correct impression of what they did and did not demonstrate.
(2) Secondly, having read the emails line by line, far from demonstrating the validity of the grounds of appeal summarised above, the impression they convey as a whole, is one tending to substantiate the Claimant’s case, that it was attempting to perform its contractual obligations and substantially did so perform, but was hindered in doing so by various impeding circumstantial factors, including failures of response, action and co-operation on the part of the Applicant.
(3) Thirdly, whilst it is true that there are also some emails seeking follow up and performance from the Applicant’s side, and some delay in performance and action on occasions on the Claimant’s side. These normal exchanges in a contract where time of performance is not of the essence, have been exaggerated in their nature, frequency and effect by the Applicant, in its Application and Statement of Appeal. This has been done in a futile attempt to advance the case of a total failure of consideration from the Claimant, which, as the documents demonstrate, and the Judge was entitled to reject. If the Claimant had not been performing its obligations in the manner and to the extent now contended for in the defence and on this Application, the contemporaneous email traffic coming from the Applicant would have had an altogether different hue and colour of protest, to the moderate prompting to action that, at worst, it manifests. I have weighed the late coming suggestion from the Applicant that he was complaining softly because he was intent on maintaining and progressing the business relationship - but must reject it as afterthought. It is at odds with the assertion in the Statement of Appeal (supra paragraph 7), which is unsupported by the documentary evidence, that:
“……As such emails prove the desperate follow up of the defendant with the claimant and shows how to defendant was desperately requesting the claimant to fulfil its obligations in addition to updating the defendant accordingly, which the claimant failed in doing both”
(emphasis added)
There was no manifest desperation nor express requesting of the Claimant to fulfil its obligations until the end of the relationship, when the Claimant was demanding payment due to it.
(4) What is later plainly manifest in my judgment from the correspondence, is the emergence of dissatisfaction and complaint from the Applicant at the lack of success borne of the promotional effort and expense it had invested. This is an outcome commonly encountered in contracts of this type, for public relations and media promotional services, and it frequently gives rise to disputes, in my experience. This dissatisfaction when it arises, also explains both the unwillingness of some clients to pay; and the almost universal inclusion of clauses such as clause 11.3, in this contract and in others of the same ilk, preventing reliance on lack of success, as a contractual ground for non-payment of fees.
(5) Fourthly, and most importantly, the Judge clearly understood the nature of the claim and defence as summarised in §§ 10-14 of the Judgment. Relying on contemporaneous emails placed before him by the Claimant, he determined and found that a material cause of non-delivery of services was a lack of co-operation on the part of the Applicant. This was a finding he was entitled to make and one which the email of 18 August 2023, now relied on at paragraph 4.2 of the Statement of Appeal, does not undermine. To the contrary, that email principally manifests the Applicant’s late dissatisfaction with the lack of success achieved – as it was put, “paying for something that has no progress nor achievements doesn’t make commercial sense to our stakeholders”. The email certainly does not, “prove the false statements of the Claimant that there were pending approvals that the defendant has not sent”. Or “that the defendant has requested the claimant to clarify what are the pending approvals required but the claimant has never replied”, as the Applicant contends.
(6) Finally, the Judge was entitled to rely on the evidence, submissions and correspondence before him, and find that the Claimant had performed its obligations under the contract (or had tried to do so but was prevented by lack of co-operation from the Applicant). He was also entitled to find on his review of all that was placed before him, including the Applicant’s bundle it wrongly suggests he did not take into account, that the Applicant had failed to provide evidence to support its defence. This was not a reversal of the burden of proof by him, but recognition of a source of confirmation for him, that the Claimant had discharged its burden of demonstrating that it had performed it contractual obligations owed to the Applicant and was entitled to payment of its outstanding invoices.
18. I therefore conclude that the Applicant does not have a realistic prospect of demonstrating that the Judge was wrong in his findings and order, in the appeal it seeks to bring. The Application for permission to appeal is therefore refused.
