February 07, 2023 Technology and construction division - Orders
Claim No: TCD 001/2020
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
TECHNOLOGY AND CONSTRUCTION DIVISON
BETWEEN
(1) GATE MENA DMCC (FORMERLY HOUBI OTC DMCC)
(2) HUOBI MENA FZE
Claimants
and
(1) TABARAK INVESTMENT CAPITAL LIMITED
(2) CHRISTIAN THURNER
Defendants
ORDER WITH REASONS OF JUSTICE SIR RICHARD FIELD
UPON the Claimants’ Appeal Notice dated 5 December 2022 (“the Application”) seeking permission to appeal the judgment of Justice Sir Richard Field dated 26 October 2022 (the “Judgment”)
AND UPON the Claimants’ Grounds of Appeal dated 5 December 2022 (the “Grounds of Appeal”)
AND UPON considering the Claimants’ Skeleton Argument dated 5 December 2022
AND UPON the written submissions dated 20 January 2023 in opposition to the Application served by the First Defendant (the “First Defendant”)
AND UPON the written submissions dated 20 January 2023 in opposition to the Application served by the Second Defendant (the “Second Defendant”)
AND UPON considering and giving effect to RDC 44.19
IT IS HEREBY ORDERED THAT:
1. The Application is granted in respect of the following grounds pleaded in the Grounds of Appeal:
1. (claim for breach of confidence) pleaded in para 1
6. (claim for negligence (3) pleaded in paragraphs 6-11 including “Breach of Duty”
7. (appeal on a point of law) pleaded in para 12
8. (appeal on a point of law) pleaded in para 13
2. The Application in respect of the remaining Grounds of Appeal is refused.
3. The Claimants must pay 35% of the costs incurred by the First Defendant and the Second Defendant in opposing the Application.
4. The remaining costs of the Application shall be costs in the appeal.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 7 February 2023
At: 9am
Schedule of reasons
1. The First Defendant and the Second Defendant oppose the Application in its entirety on the grounds that the proposed grounds of appeal have no real prospect of success as required by RDC 44.19.
2. Pursuant to RDC 44.19: “Permission to appeal may only be given where the lower Court or the appeal Court considers that: (a) the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard”.
3. It is para (a) of RDC 44.19 that is in issue in this application. It is now well established in this jurisdiction that a “real prospect of success” means a “realistic”, as opposed to a “fanciful”, prospect of success; see Khorafi et al v Bank Sarasin-Alpen (ME) Limited (CFI-026-2009); DNB Bank ASA v (1) Gulf Eyadah Corporation; and (2) Gulf Navigation Holding PJSC (9 September 2015) CFI-043-2014; Vannin Capital PCC Plc v Mr Rafed Abdel Mohsen and Ors [2014] CFI 036 (18 April 2018) at [73].
4. In my judgment, the following grounds have a realistic prospect of success and I grant permission for them to be argued in the Court of Appeal:
1. (claim for breach of confidence) pleaded in para 1
6. (claim for negligence (3) pleaded in paragraphs 6- 11 including “Breach of Duty”
7. (appeal on a point of law) pleaded in para 12
8. (appeal on a point of law) pleaded in para 13
5. The remaining grounds seek to appeal findings of fact made after an 8 day trial. The authorities cited in paragraph 7 of the First Defendant’s written submissions in opposition to the Application, including the decision of the UK Supreme Court in McGraddie v McGraddie [2013] UKSC 58, are a useful reminder of the oft stated declarations by appellate courts, (including the DIFC Court Appeal in Hormodi Bankmed (SAL) (CA006/2019) per Zaki Azmi CJ at [21]-[22]), that an appellate court will only interfere with a finding of fact made by the trial judge if it is satisfied that the finding was “plainly wrong” or exceeded “the generous ambit within which a reasonable disagreement is possible”. The rationale for this deference to the trial judge was explained by Lord Reed in McGraddie at [3] & [4] as follows:
The reasons justifying that approach are not limited to the fact, emphasised in Clarke and Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses’ evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer 470 US 564 (1985), 574-575: “The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the “main event” … rather than a “tryout on the road.” … For these reasons, review of factual findings under the clearly erroneous standard - with its deference to the trier of fact - is the rule, not the exception.” Similar observations were made by Lord Wilson in In the matter of B (a Child) [2013] UKSC 33; [2013] 1 WLR 1911, para 53. [3]
Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 at para 14: “The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.” [4]
6. In my judgment, in light of the above cited authorities, the grounds of appeal styled Issue 2, Issue 3, Issue 4 and Issue 5, all of which challenge findings of fact, do not have a realistic prospect of success and accordingly I decline to grant permission for them to be argued on appeal.
7. The Second Defendant contends that the Application should be dismissed in respect of himself on the ground that the Claimants fail to appeal any issue against him and instead hold to their primary case that he acted within the scope of his employment and/or within the authority of the First Defendant. However, the Second Defendant acknowledges that the Claimants advance an alternative case that he is jointly liable for any damages awarded against the First Defendant under Articles 13 and 15 of the Law of Obligations, although he maintains that this claim is not advanced with any analysis to support it.
8. In my judgment, the Claimants’ alternative case based on Articles 13 and 15 presently constitutes an arguable legal basis for obtaining judgment against the Second Defendant if the appeal succeeds against the First Defendant. Accordingly, I decline to accept the Second Defendant’s invitation to dismiss the Application against him. It is up to the Second Defendant whether he wishes to participate in the appeal to reinforce the First Defendant’s case that the appeal should be dismissed with the consequence that no judgment could be entered against him pursuant to Articles 13 and 15.
9. Given that I have dismissed the Application in respect of Issue 2, Issue 3, and Issue 4, I order that the Claimants must pay 35% of the costs incurred by the First Defendant and the Second Defendant in resisting the Application. So far as the remaining costs of the Application are concerned, I order that should be costs in the appeal.
