October 31, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 242/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
VALENTYNA PLEWKA KOLESNIK
Claimant/Applicant
and
EMIRATES NBD BANK
Defendant/Respondent
ORDER WITH REASONS OF JUSTICE MICHAEL BLACK KC
UPON reviewing the Order with Reasons of Maitha AlShehhi (the “Judge”) dated 19 August 2024 (the “Order”)
AND UPON reviewing the Claimant’s Appeal Notice dated 2 September 2024 seeking permission to appeal the Order (the “Application”)
AND UPON reviewing the Defendant’s Application No. SCT-242-2024/1 dated 10 July 2024 (the “Jurisdiction Application”)
AND UPON hearing the representatives of the parties on 9 October 2024
AND UPON considering the documents and submissions filed by both parties and recorded on the case file
IT IS HEREBY ORDERED THAT:
1. The Claimant is granted permission to appeal the Order.
2. The appeal is allowed and the Order is set aside.
3. The Defendant’s Jurisdiction Application is dismissed.
4. It is declared that the DIFC Courts have jurisdiction over this Claim.
5. The Defendant shall serve its Defence to the Claim within 7 days of the date of this Order in accordance with RDC 53.14(2).
6. The Defendant shall pay to the Claimant the costs of the appeal. The Claimant is to provide a statement of any costs she seeks to claim within 7 days of the date of this Order.
7. Pursuant to the discretion contained in Practice Direction No. 3 of 2014, Confidentiality of Small Claims Tribunal (SCT) Judgments on Appeal to Court of First Instance, this Order and its reasons shall not be anonymised.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 31 October 2024
At: 12pm
INTRODUCTION
1. On 14 June 2024, Ms Valentyna Plewka Kolesnik (the “Claimant”) commenced proceedings before the Small Claims Court (“SCT”) claiming damages against the Defendant, Emirates NBD Bank PJSC (the “Bank”) for releasing funds from her account to fraudsters notwithstanding that she had immediately informed the Bank of the fraudulent nature of the relevant transactions.
2. The Bank acknowledged service on 10 July 2024 giving notice that it intended to challenge the jurisdiction of the Court. On the same day the Bank issued an application for the following:
(1) An order under the Rules of the DIFC Courts (“RDC”) rule 12.7(1) setting aside the Claim Form and the purported service of the Claim Form on 1 July 2024 (to the extent necessary), or any other date.
(2) An order in the form of a declaration under RDC 12.1 and/or 12.7 that the DIFC Court has no jurisdiction to try the Claim.
The Bank requested that its application be determined without a hearing. The application was supported by the First Witness Statement of Natalie Winwood, Senior Legal Counsel of the Bank.
3. On 5 August 2024, the Claimant replied to the Bank’s application and on 8 August 2024 a hearing took place before SCT Judge Maitha Alshehhi (the “Judge”). In an Order with Reasons issued on 19 August 2024 (the “Judgment”), the Judge allowed the Bank’s application and declared that the DIFC Courts do not have jurisdiction to hear and determine the Claim.
4. On 2 September 2024, the Claimant filed an Appeal Notice seeking permission to appeal, and on or about 24 September 2024 (the date is unclear from the Court file), after exchanges of written submissions by the parties, I directed that I would consider the application for permission to appeal at a remote hearing and if I were minded to give permission, I would decide the appeal.
5. The remote hearing took place on 9 October 2024. The Claimant was represented by her husband who is a lawyer. The Bank was represented by an English barrister instructed by a large international law firm.
THE BANK’S SUBMISSIONS BEFORE THE JUDGE
6. On 21 April 2014, the Claimant opened a savings account with the Bank whereby the Bank agreed to provide the Claimant with a debit card and associated financial services. The Account Opening Form (which was signed by the Claimant) provided that the Bank’s General Terms and Condition of the Accounts and Banking Services (“GT&Cs”) governed the relationship between the Bank and the Customer.
7. The material terms of the GT&Cs for present purposes are:
“32.2 What if there is a dispute between you and the Bank?
(a) The Bank and you agree to the exclusive jurisdiction of the Courts of the Applicable Emirate to settle any dispute arising out of or in connection with these General Terms, any application form for an Account of Service, any Key Facts Statement and/or any Special Features provided that the Bank may bring proceedings in any other jurisdiction (inside or outside the UAE) if it deems appropriate. For the avoidance of doubt and solely for the benefit of the Bank in its sole discretion, you also irrevocably agree to submit to the jurisdiction of the DIFC Courts (including without limitation the SCT) and the ADGM Courts (and any ADGM SCD operating from time to time).
(b) If the Bank decides to commence a claim against you in the:
(i) SCT, you and the Bank both expressly agree that such claim may be made for any amount up to and including AED 1,000,000, or for such greater amount as may be within the jurisdiction of the SCT from time to time; or
(ii) (ADGM SCD, you and the Bank both expressly agree that such claim may be made for any amount as may be within the jurisdiction of the ADGM SCD from time to time.
(c) The two paragraphs above are for the benefit of the Bank only. The Bank will not be prevented from bringing proceedings relating to a dispute with you in any jurisdiction outside the UAE (and for the avoidance of doubt, this will include any jurisdiction in which you may be (or have been) registered, incorporated, resident, domiciled or hold assets).”
8. The Glossary of the GT&Cs defines “Applicable Emirate” as meaning if [the Customer is]:
(1) A citizen of the UAE, the Emirate of issue of [their] passport or Emirates ID card;
(2) Not a citizen of the UAE and resident in the UAE, the Emirate of issue of [their] residency visa; or
(3) Not a citizen of the UAE and not resident in the UAE, the Emirate of Dubai.
9. The Bank contended that the DIFC Courts lacked jurisdiction. It first made reference to Article 5(A)(2) of the Judicial Authority Law, Dubai Law No. 12 of 2004 (the “JAL”) which states:
“The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”
10. It argued that:
(1) Clause 32.2(a) of the Bank’s GT&Cs provides that both parties agree to the exclusive jurisdiction of the Courts of the Applicable Emirate. The Applicable Emirate in this case is Dubai as the Claimant is a resident of Dubai. The “exclusive jurisdiction of the Applicable Emirate” means and was intended to mean the exclusive jurisdiction of the so-called “onshore” Courts of the Applicable Emirate. This is confirmed by the second paragraph of Clause 32.2(a) and further in 32.2(b) of the Bank’s GT&Cs, which distinguishes between the DIFC and ADGM Courts, and provides that the Claimant submits to the DIFC and ADGM Courts solely for the benefit of the Bank in its sole discretion. Paragraph 32.2(c) further states “the two paragraphs above are for the benefit of the Bank only”;
(2) The clause is clearly not an exclusive jurisdiction agreement in favour of the DIFC Courts for all claims in all circumstances. It provides that only the Bank has the option – at its election and solely for its own benefit – of bringing proceedings in the DIFC or ADGM Courts and that, if such an election is made, the Claimant is not entitled to dispute the DIFC Court’s jurisdiction in those circumstances;
(3) The Bank has made no such election and so Clause 32.2(a) - (c) cannot found jurisdiction.
11. The Bank then went on to refer to Article 5(A)(3) of the JAL which states:
“The Court of First Instance may hear and determine any civil or commercial claims or actions falling within its jurisdiction if the parties agree in writing to submit to the jurisdiction of another court over the claim or action but such court dismisses such claim or action for lack of jurisdiction.”
12. The Bank submitted that even if the DIFC Court had jurisdiction (under Clause 32 or otherwise), the parties agreed in writing to submit to the jurisdiction of another court - the “onshore courts” of the Applicable Emirate, in this case, the Courts of Dubai. Accordingly, the DIFC Court has no jurisdiction under Article 5(A)(3) unless and until the Dubai Court dismisses the claim for want of jurisdiction (which it has not done).
13. It was said that the DIFC Court made a similar finding in the case of Lara Basem Musa Khoury v Mashreq Bank PSC [2022] DIFC CA 007, where the Court dismissed the claim on the ground that the DIFC Court had no jurisdiction, holding that there was no “opt-in” agreement under Article 5(A)(2) of the JAL. As per para. 62 of Mashreq Bank, Article 5(A)(2) of the JAL requires an agreement by both parties to bring the claim in the DIFC Courts; specific, clear and express provisions are required but were absent in that case.
14. A similar finding was also made in respect of A.5(A)(3), where it was stated at para. 71, “Art.5(A)(3) of the JAL is premised on the claim in question “falling within” the jurisdiction of the DIFC Court – the very proposition rejected earlier in respect of Art. 5(A)(2)”.
15. The Bank said that the same findings are true for Clause 32.2(a) - (c) of the Bank’s GT&Cs. The clause clearly only provides for the Bank to bring a claim, at its sole discretion, before the DIFC or ADGM Courts. There is no option for the Claimant to bring a claim before the DIFC Courts. There is no opt-in jurisdiction pursuant to A.5(A)(2) of the JAL. The parties agreed in writing to submit to the jurisdiction of another court, in this case, the “onshore” Courts of Dubai, which have not made any determination in respect of jurisdiction, which would be required for A.5(A)(3) of the JAL to operate.
THE JUDGMENT
16. The Judge directed herself to RDC 53.2 which requires that the SCT only hears cases that fall within the jurisdiction of the DIFC Courts. She noted the Bank’s submission that this was an asymmetric jurisdiction clause which is normal practice in the banking sector/financial institutions. She noted the reference to Khoury.
17. She recorded the submission of the Claimant that:
(1) Clause 32 is ambiguous;
(2) The clause is unreasonable within the meaning of the Implied Terms in Contracts and Unfair Terms Law DIFC Law No. 6 of 2005;
(3) The Defendant has agreed to submit to the jurisdiction of the DIFC Courts as per Clause 32.2(a);
(4) The DIFC Courts have jurisdiction to determine the Claim in accordance with Article 5(A)(1)(b) of the JAL as the Claimant used the financial services of the Defendant’s branch located in the DIFC; and
(5) Even if the provision does not apply, the term “Applicable Emirate” still applies to the DIFC as it is part of the UAE judicial system as there is no distinction between freezone and onshore emirate in the wording used in Clause 32.2.
18. The Judge’s conclusion was that the wording of Clause 32 is clear; none of the jurisdictional gateways are applicable for the following reasons:
(1) In the plain words the agreement to choose the “Applicable Emirate” and the definition of it brings us to the Dubai Courts and not the DIFC Courts;
(2) The term “exclusive” suggests that this is the only forum available to both parties and makes no reference to the DIFC;
(3) Given that the DIFC is a freezone and elective jurisdiction, the dispute resolution clause opting into the DIFC Courts must always be crystal clear and express to choose the DIFC Courts. In other words, it is not enough to say “Applicable Emirate” to suggest the DIFC or even say UAE courts and interpret it as DIFC. This is because Article 5(a)(1)(2) of the JAL requires clear express provisions to elect the DIFC which can only be established if the parties write it expressly and without any ambiguity;
(4) The reference to the SCT or DIFC in the dispute resolution clause appears to be for the benefit of the bank only as mentioned in Clause 32.2(b). This is described as an “asymmetric jurisdiction clause” which generally gives one party the liberty to choose where it brings proceedings while the other party is restricted to sue in only one specific jurisdiction;
(5) The statement “solely for the benefit of the Bank in its sole discretion, you also irrevocably agree to submit to the jurisdiction of the DIFC Courts” demonstrates the Claimant’s acceptance to the jurisdiction of the DIFC in favour of the Bank only. The Judge was of the view that it does not suggest that the Claimant has the right to file a claim as it was preceded with “solely for the benefit of the bank”. She relied upon a general statement in Khoury;
(6) Clause 32 is clear on the parties’ intention that the Defendant only has the advantage of bringing its claim to the DIFC Courts and is therefore deemed valid and enforceable;
(7) Although the Claimant stated that it does not contain express provision to restrict the Claimant from bringing the Claim to the DIFC Courts, a plain understanding of the clause is that only the Bank has such discretion and both the Claimant and the Defendant agreed to the “exclusive jurisdiction of the Applicable Emirate”.
THE PROPOSED GROUNDS OF APPEAL
19. The Claimant sought permission to appeal the decision on several grounds. In the interests of brevity, I will briefly indicate those I consider unarguable and will not consider them further. er Her
20. Her first point was that the Bank did not serve a Defence. It was not obliged to do so when challenging jurisdiction. The point is therefore unarguable.
21. Her second point was that the Court had in personam jurisdiction over the Bank as it had a branch in the DIFC. It does not have a branch in the DIFC. There is no in personam jurisdiction. The point is therefore unarguable.
22. Her third point was that the Court misinterpreted Clause 32.2(a). She submitted it is ambiguous especially for a consumer, in particular the expression “Court of Applicable Emirate”. Further, the wording of this clause does not suggest that the jurisdiction of the DIFC Courts is excluded unless the Bank requires the customer to choose the DIFC Courts. The term implies that the Bank may use its discretion and require that a customer agrees to the jurisdiction of the DIFC Courts although its jurisdiction is not given according to the JAL.
23. Her fourth point was that Khoury is to be distinguished from the present case. It dealt only with an opt-in clause. In the case at hand, the dispute does not regard an opt-in, but an opt-out. However, there is not an opt-out clause in Clause 32.2 of the GT&Cs.
24. Her fourth point was that the wording of Clause 32.2 (a) of the GT&Cs does not cover the present dispute. It only provides for disputes arising out of or in connection with the General Terms and Conditions, an application form for an account service, a Key Facts Statement and/or any Special Features. None of these conditions are met. The present case concerns a claim for damage caused by intentional or at least grossly negligent misconduct on the part of the Defendant. I consider this point to be unarguable. The present dispute clearly “arises out of or in connection” with the GT&Cs. The GT&Cs govern the relationship between the customer and the Bank including initially the jurisdiction in which the customer may commence proceedings against the Bank and ultimately the Bank’s liability to the customer.
25. Her fifth point was that that asymmetrical jurisdiction clauses are not generally prohibited but that a clause providing for asymmetrical jurisdiction is inadmissible in general terms and conditions if this clause does not have a clear wording.
26. Her sixth point was that “Competent Emirate” [sic] includes the DIFC.
27. Finally, she noted that by the Implied Terms in Contracts and Unfair Terms Law, DIFC Law No. 6 of 2005, contract terms are subject to the “reasonableness” test, i.e. the term must be fair and reasonable and take into account the circumstances which were known or should reasonably have been known to the parties at the time of entering into the contract, or in the contemplation of the parties when the contract was made. She submitted that a consumer of bank services does not usually expect to sign a contract where only one contract party has a choice over a jurisdiction.
THE BANK’S SUBMISSION IN OPPOSITION to PERMISSION TO APPEAL/THE APPEAL
28. The Bank put in two sets of submissions drafted by counsel.
29. In the first, dated 13 September 2024, it was suggested that RDC Part 44 governs appeals from the SCT save that certain additional rules contained in RDC 53.75 – 53.81 also apply to such appeals. This was an error. That was the position under the former Part 53. Appeals are now governed by RDC 53.84 to 53.118 of the current Part 53.
30. RDC 53.87 provides that the Court will allow an appeal where the 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.
31. RDC 53.91 provides that permission to appeal may be given only 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.
32. While I consider the Claimant’s point on in personam jurisdiction misconceived as the Bank does not have a branch in the DIFC, the Bank’s response is also somewhat confusing as it states “the parties had contractually opted out of the DIFC Court’s jurisdiction entirely”. If the Bank did not have a branch in the DIFC there was no jurisdiction out of which to opt.
33. More significantly, the Bank submitted that Clause 32.2 did not amount to an unconditional opt-in to the jurisdiction of the DIFC Courts (although the section of the submission was headed “NO OPT-OUT UNDER THE DEFENDANT’S TERMS AND CONDITIONS”). The Bank submitted that Clause 32 was unambiguous and clear. The customer agreed to the exclusive jurisdiction of the courts of Dubai outside the DIFC (i.e. the “Courts of the Applicable Emirate”) and it was only at the unilateral election of the Bank that the Bank could bring proceedings in the DIFC (“solely for the benefit of the Bank in its sole discretion”). This is an asymmetrical clause as described in Khoury. Khoury was not distinguishable as the customer there had also agreed irrevocably and unconditionally to submit to the DIFC Court’s jurisdiction in any case brought against her by the bank; but this did not constitute a jurisdiction agreement in favour of the DIFC Courts which the customer could rely upon to bring a claim against the bank.
34. On 7 October 2024, the Bank served what it called its “Note for a PTA hearing on 9 October 2024”. It was suggested that the issue was “a single, short point relating to the construction of a contract term by which the parties opted-out of the DIFC Court’s jurisdiction in respect of claims by the Claimant under the contract.”
35. The Bank suggested that it is now well-settled that contracting parties are free to opt-out of DIFC Court’s jurisdiction and that the DIFC Court’s will give effect to such clauses. In Al Khorafi v Bank Sarasin-Alpen (ME) Ltd [2011] DIFC CA 003 (5 January 2012) the DIFC Court of Appeal held that, Article 5(A)(3) implicitly confers on litigants a right to opt-out of the DIFC Court’s jurisdiction, even where the DIFC Courts would otherwise have had exclusive jurisdiction.
36. The Bank noted that in order to give effect to a jurisdiction agreement, the relevant contractual term must be “specific, clear and express.” That applies whether the clause purports to opt-in to, or opt-out of, the DIFC Court’s jurisdiction: Commercial Bank of Dubai PSC v M/S Totora Restaurant and Lounge LLC [2017] DIFC CFI 047 (23 January 2019) at [39] – [40].
37. The Bank repeated once again that the DIFC Courts will give effect to asymmetrical jurisdiction clauses again referring to Khoury.
38. The Bank submitted that in these proceedings, even if the DIFC Courts would otherwise have had jurisdiction over the claim under Article 5(A)(1) JAL, the parties have expressly opted-out of that jurisdiction in respect of claims brought by the Claimant by reason of Clause 32.2 of the GT&Cs. In particular, it is said, the GT&Cs designate the onshore courts of the “Applicable Emirate” as the Court with exclusive jurisdiction over any disputes. There is then an asymmetric or unilateral carve-out by which the Bank only is entitled to bring a claim in the DIFC if it elects to do so. That unilateral right would be entirely superfluous if Clause 32.2 was read as giving the Claimant the right to bring proceedings in the DIFC.
39. Finally, the Claimant served a “RESPONSE TO THE DEFENDANT’S NOTE” on 8 October 2024. The Claimant denied that the GT&Cs explicitly provide for an opt-out. She submitted that Clause 32.2(a) does not provide for an opt-out because it is not “specific, clear and express” as required in the Commercial Bank of Dubai case. She went on to submit that the wording does not explicitly state that only the local courts in Dubai have jurisdiction if a customer of the Defendant raises claims for damages. The term “Courts” is not defined; thus Courts can be the courts on the mainland and the Courts of the DIFC. The DIFC Courts are also Courts of Dubai, as they are located within Dubai.
40. The Claimant disputed that Clause 32.2(a) provides for a unilateral right of the Defendant to be the only party allowed to bring claims in the DIFC, if the jurisdiction of the DIFC is established under the rules of the JAL.
PERMISSION TO APPEAL
41. I agree with the Bank that the proposed appeal raises a single, short point relating to the construction the Bank’s GT&Cs. In my judgment the Claimant’s submissions raise a “more than fanciful” (being the accepted meaning of “real”) prospect of successfully arguing that the Judge was wrong in her interpretation of the GT&Cs.
42. Further, I also consider there is considerable public interest in the Court providing its interpretation of the Bank’s GT&Cs on the issue of jurisdiction as the question will affect a large number of the Bank’s customers.
43. Accordingly, I give the Claimant permission to appeal on the issue of the true meaning and effect of the Bank’s GT&Cs with regard to the jurisdiction of the DIFC Courts under both limbs of RDC 53.91, namely on the bases that (1) the proposed appeal has a real prospect of success and (2) there is another compelling reason why the appeal should be heard.
THE MERITS OF THE APPEAL
44. Although it did not figure in the Bank’s submissions it is to be noted that Clause 32.1 of the GT&Cs provides that:
“These General Terms, each application form for an Account or Service, each Key Facts Statement and each Special Features, including any non-contractual obligations arising out of or in connection with them, will be governed by the laws of the UAE.”
I understood it to be conceded that “the laws of the UAE” include DIFC law and consequently I am entitled to determine this appeal under DIFC law.
45. At the outset of the hearing, I asked counsel for the Bank why there was no reference to the decision of the Court of Appeal in the case of Investment Group Private Limited v Standard Chartered Bank [2015] DIFC CA 004, (November 19, 2015) (“the IGPL case”) either before the Judge or in his two written submissions. The case was clearly relevant as I will show below. I did not receive a satisfactory answer as to why it was not referred to before me. I was told that it did appear in the speaking note of the Bank’s representative who appeared before the Judge. That does not mean that case was drawn to the attention of the Judge and I consider it highly unlikely that it was, because had it been, I am in no doubt the Judge would have referred to it.
46. DIFC Courts’ Order No. 4 of 2019 Mandatory Code of Conduct for Legal Practitioners in the DIFC Courts provides at paragraph 10(A) “Practitioners shall inform the Court of all relevant decisions and legislative provisions of which they are aware, regardless of whether the effect is favourable or unfavourable to the contention for which they argue” and at paragraph 10(B) “The Court must be informed of all relevant decided cases (“Decisions”) and legislative provisions of which the Practitioners appearing in the matter are aware.” The Bank’s representatives were aware of the IGPL case as it appeared in the speaking note for the hearing before the Judge.
47. In the IGPL case the Court of Appeal considered two clauses:
(1) (a) Subject to sub-clause (b) below, unless a Finance Document provides otherwise, each Borrower submits to the exclusive jurisdiction of the courts of United Arab Emirates to settle any dispute arising out of or in connection with any Finance Document (including a dispute regarding the existence, validity or termination of any Finance Document (a “Dispute”).
(b) Notwithstanding sub-clause (a) above, the Bank shall not be prevented from taking proceedings relating to a Dispute in the courts of any other jurisdiction where any asset of an Obligor may be located. To the extent allowed by law, the Bank may take concurrent proceedings in any number of jurisdictions.
(2) The Bank and the Borrower agree to submitting to the jurisdiction of the courts of the U.A.E. [T]he Bank may, at its option, elect to commence proceedings in the courts of other jurisdictions and the Borrower hereby agrees, in such case, to submit to the jurisdiction of such courts.
48. The Court of Appeal held:
“136 … In our view, Dhir provides no answer to the question since it was unarguable there that the Parties could not have intended the phrase “Emirate of Dubai” to designate both non-DIFC Dubai and the DIFC as the arbitral seats. Here, where the meaning of “Dubai Courts” in a jurisdiction agreement is concerned, the choice of the non-DIFC Dubai Courts and the DIFC Courts are not mutually exclusive, so the existence or even preponderance of connecting factors pointing towards the former does not evidence an intention by the parties to exclude the latter. We therefore find that the analysis in Dhir is inapplicable to the present facts.
137. Neither are we moved to a different conclusion because the parties’ transaction bore no connection to the DIFC. The jurisdiction of the DIFC Courts covers disputes in which any of the DIFC’s entities, bodies or licensed establishments is a party, as was held in Corinth. It also extends to civil and commercial claims commenced in the DIFC Courts pursuant to a written agreement between the disputing parties, whether before or after the dispute arises, provided that such agreement is founded on specific, clear and express contractual provisions. In these situations, the DIFC Courts are not deprived of jurisdiction even if the claims and underlying facts do not have any connection the DIFC or do not originate from a contract that has been carried out in whole or in part in the DIFC. Bearing in mind that IGPL transacted with SCB with full knowledge that it was a Licensed Entity, we take the view that the parties must surely have contemplated the possibility that the DIFC Courts could assume jurisdiction over any action commenced against either party. In the circumstances, the onus must be on the parties to specifically exclude the DIFC Courts’ jurisdiction, if they so intended, by employing express language to that effect. They did not do so.
138. For the reasons set out at [125] to [137] above, we find that the ordinary meaning of the phrase “Dubai Courts” must include all the courts and judicial committees formed within the territory of Dubai and established by the Emirate’s legislation, regardless of whether these courts exercise separate jurisdictions.
139. We also do not accept IGPL’s argument that the phrase “Courts of the UAE” was intended to refer specifically to the UAE Federal Judicial Authority.
…
143. As a practical matter, it is more conceivable that the meaning of “courts of the UAE” under the Agreements was intended to cover all courts located within the territory of the UAE. This includes all courts within Dubai, which in turn includes the DIFC Courts.” [emphasis added]
49. The reasoning in the IGPL case has been followed consistently. In (1) Ashok Kumar Goel (2) Sudhir Goyel (3) Manan Goel (4) Prerit Goel v Credit Suisse (Switzerland) Limited [2021] DIFC CA 002 (April 26, 2021) and (1) Laabika (2) Labhdi v (1) Ladu (2) Lakesh [2021] DIFC CA 008 (September 07, 2021) the Court of Appeal held “When the term “the Courts of Dubai” is used in a contract the ordinary meaning, absent content and purposes pointing in a different direction, refers to all of the Courts of Dubai.”
50. The question in the present case is whether Clause 32 points to a different meaning where “the Applicable Emirate” is Dubai.
51. The Bank suggests that the words “For the avoidance of doubt and solely for the benefit of the Bank in its sole discretion, you also irrevocably agree to submit to the jurisdiction of the DIFC Courts …” restrict the meaning of “Courts of the Applicable Emirate” in the context of Dubai to those courts outside the DIFC and are by way of explanation of the Bank’s right to bring proceedings in any other jurisdiction it deems appropriate.
52. I cannot agree with this interpretation for two reasons:
(1) First, on the literal interpretation of Clause 32.2(a) the first sentence is a straightforward asymmetrical jurisdiction clause. Had the Bank wanted to emphasise that “any other jurisdiction (inside or outside the UAE)” included the DIFC and ADGM it could simply have said so, i.e. either –
(a) Bank may bring proceedings in any other jurisdiction (inside or outside the UAE) if it deems appropriate including in the DIFC Courts (including without limitation the SCT) and the ADGM Courts (and any ADGM SCD operating from time to time); or
(b) Bank may bring proceedings in any other jurisdiction (inside or outside the UAE) if it deems appropriate. For the avoidance of doubt and solely for the benefit of the Bank in its sole discretion any other jurisdiction includes the DIFC Courts (including without limitation the SCT) and the ADGM Courts (and any ADGM SCD operating from time to time).
It did not do so, instead it included the words “you also irrevocably agree to submit to the jurisdiction of the DIFC Courts …”. Read literally that is an unambiguous submission on the part of the customer to the jurisdiction of the DIFC Courts. I am willing to accept for the purposes of argument that the qualifying words “For the avoidance of doubt and solely for the benefit of the Bank in its sole discretion” are intended to ensure that the “Courts of the Appropriate Emirate” are deemed to include the DIFC. What those words are not is a “specific, clear and express” (per the Commercial Bank of Dubai case) opt-out of the jurisdiction of the DIFC Courts if the Applicable Emirate is Dubai and there is jurisdiction in the DIFC Courts, being an integral part of the judicial system of Dubai, as recognised in successive Court of Appeal cases;
(2) Secondly, the argument from superfluity in fact highlights the commercial purpose of the clause. It is true that if the clause were simply seeking to establish jurisdiction in all the Courts of Dubai it would be unnecessary expressly to provide for a separate submission to the jurisdiction of the DIFC Courts. That is not however its commercial purpose. The GT&Cs apply throughout the UAE and, for example, in relation to a customer in Sharjah they make perfect sense. The “Courts of the Applicable Emirate” would confer jurisdiction on the Courts of Sharjah and the customer would be bound to commence any proceedings in those Courts. Due to the asymmetrical nature of the clause the Bank could however commence proceedings anywhere. That would include in the DIFC Courts. While its is perhaps a pleonasm expressly to specify the DIFC Courts, I accept that the use of the phrase “for the avoidance of doubt and solely for the benefit of the Bank in its sole discretion” links the submission by the customer in Sharjah to the jurisdiction of the DIFC Court to the Bank’s asymmetrical ability to commence proceedings where it deems appropriate.
53. In my judgment the true meaning and effect of Clause 32.2(a) of the Bank’s GT&Cs, where the Appropriate Emirate is Dubai, is that it is a specific, clear and express opt into the jurisdiction of the DIFC Courts within the meaning of Article 5(A)(2) of the JAL, irrespective of whether there would otherwise be jurisdiction under any of the gateways in Article 5(A)(1). That view accords with established Court of Appeal authority and I do not find anything in the subsequent reference to the DIFC Courts in the clause to negate that view.
54. For the sake of completeness, I should record that I have not found the Khoury case of assistance. If it is relied on the show that the DIFC Courts enforce asymmetrical jurisdiction clauses so much was obvious 7 years earlier in the IGPL case. If it is relied on for anything else one must look at the clause under consideration (judgment [59]) and one can see it is very different from that in the present case. There was an express submission to the jurisdiction of the DIFC Courts but the bank in that case clearly and in simple terms reserved the right to take proceedings against the client in the courts of any other competent jurisdiction. The Court of Appeal held (not without some reluctance) that the clause in question did not amount to an opt in under Article 5(A)(2) of the JAL. In the context of the present case it was an analogous situation to the example of a customer of the Bank in Sharjah I gave above, but not to that of the Claimant.
55. Not only do I consider that the decision of the Judge in the present case was per incuriam because she was not directed to the relevant authorities, I respectfully disagree with her reasoning when interpreting Clause 32, in particular paragraph 32 of the Judgment where she says “it is not enough to say applicable emirate to suggest the DIFC or even say UAE courts and interpret it as DIFC”. If she been shown the guidance of the Court of Appeal, I consider she would have come to a different conclusion. I also disagree with her reliance on the Khoury case. I do not consider that it supports her conclusion that “Clause 32 is clear on the parties’ intention that the Defendant only has the advantage of bringing its claim to the DIFC Courts”. The clause in that case was quite different from the present.
56. It follows that I am satisfied that the decision was wrong and the Bank’s application contesting the jurisdiction of the DIFC Courts should have been dismissed.
57. Again, for the sake of completeness I do not feel it is necessary that I should make any findings on the Claimant’s submission that any of the GT&Cs do not satisfy the test of reasonableness in the Implied Terms in Contracts and Unfair Terms Law, DIFC Law No. 6 of 2005.
COSTS
58. On 8 October 2024, the Bank’s legal representatives put in a statement of their costs. From that I assume that the Bank accepts that the costs of this appeal shall follow the event in the normal way.
59. RDC 53.118 provides that costs in relation to an appeal of an SCT case are likely to be assessed under the Judge’s discretion. I do not know if the Claimant has any recoverable costs. She was not represented by her husband in his professional capacity, but if she does wish to make a claim, she shall submit a Statement of Costs within 7 days of the date of this judgment and the costs will be subject of an immediate assessment by the Registrar.
ANONYMITY
60. As the Bank notes in written submissions dated 10 October 2024 that at the conclusion of the hearing on 9 October 2024, I noted that this judgment might have wider general importance, given that it will involve a ruling as to the proper construction of the jurisdiction agreement contained in the Bank’s standard terms and conditions. I therefore invited the parties to file written submissions as to whether this judgment, which would otherwise be anonymised, should instead publicly name the parties.
61. The Claimant immediately consented to the lifting of anonymity.
62. The default position is contained in Practice Direction No. 3 of 2014, Confidentiality of Small Claims Tribunal (SCT) Judgments on Appeal to Court of First Instance. The Practice Direction provides that where an SCT judgment has been appealed to the Court of First Instance and where the Court of First Instance subsequently issues a judgment which is to be made publicly available, both the parties’ names and the names of individuals referred to in the judgment shall remain confidential unless the Court orders otherwise.
63. The Bank does not agree that my decision should be made public. It maintains that the decision should be anonymised of the following reasons:
(1) The Court must be satisfied that it would be in the public interest to depart from the default position;
(2) The only argument in favour of naming the parties in the judgment is that the judgment will provide a ruling as to the proper construction of Clause 32.2 of the Bank’s GT&Cs, which govern its contractual relationship with various other customers. It might then be said that naming the parties will enable other customers of the Bank to better understand the jurisdiction agreement to which they have agreed. However, naming the parties in the judgment is not strictly necessary, and in fact goes beyond what is necessary, to achieve that aim. Provided that the Court sets out fully in the judgment the relevant parts of Clause 32, perhaps by quoting it in full, there will be a public judgment which deals with the proper interpretation of that clause. Where others of the Bank’s customers are subject to an identically worded Clause 32 in the relevant terms and conditions governing their relationship, there will be a public judgment on the proper construction of that term. It is not identifying these as the Bank’s terms and conditions that matters, but setting out Clause 32 in sufficient detail to allow other customers whose Clause 32 is identical to have available to them a public judgment ruling on its proper construction;
(3) It should also be borne in mind that even an anonymised judgment would obviously need to be cited and brought to the Court’s and the parties’ attention in any further jurisdiction challenges (whether in the DIFC or elsewhere) based on Clause 32 of the terms and conditions. Indeed, given that the judgment will involve analysis of, and a ruling on, the proper construction of that clause, it might be anticipated that any further jurisdiction challenges are unlikely: the Court will be making the meaning of the clause clear either way;
(4) There is also the question of the Claimant’s default right to anonymity.
64. Point (4) is now irrelevant as the Claimant has agreed to the waiver of anonymity. I find point (3) somewhat ironic given the Bank’s failure to bring relevant authorities to the attention of SCT Judge. I consider that citing the express terms of Clause 32 in my judgment will not be enough to alert the Bank’s customers (often acting in person) to the decision. It would require the customer to find the anonymised reference in the first place and then compare the terms cited with the terms governing their relationship with the Bank.
65. I consider that it is in the public interest to depart from the default position of anonymity. There will be many customers of the Bank who will have contracted on the same terms as the Claimant. It is in their interests, in the interests of open justice and indeed in the interests of the Bank to ensure that there is ready and easily available access to guidance on the meaning and effect of those terms in relation to the jurisdiction of the DIFC Courts and, possibly, other Courts. It is hoped that thereby time and expense will be saved by avoiding a multiplicity of proceedings. I therefore direct that that this judgment shall not be anonymised.
DISPOSITION
66. The appeal is allowed.
67. The Defendant’s Jurisdiction Application is dismissed.
68. It is declared that the DIFC Courts have jurisdiction over this Claim.
69. The Defendant shall serve its Defence to the Claim within 7 days of the date of this Order in accordance with RDC 53.14(2).
70. The Defendant shall pay to the Claimant her costs of the appeal (if any). The Claimant is to provide a statement of any costs she seeks to claim within 7 days of this Order. Such costs will thereafter be the subject of an immediate assessment by the Registrar.
71. It is directed that this judgment shall not be anonymised.
