August 28, 2024 Technology and construction division - Orders
Claim No: TCD 001/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NORAIZ
Claimant
and
NED
Defendant
ORDER WITH REASONS OF JUDICIAL OFFICER MAITHA ALSHEHHI
UPON the Claimant’s claim having been filed on 24 April 2024
AND UPON the Defendant’s Defence with Counterclaim dated 2 August 2024 (the “Defence with Counterclaim”)
AND UPON the request made by the Defendant on 23 August 2024 (the “Request”) for a Default Judgment in accordance with Part 13 of the Rules of the DIFC Courts (the “RDC”) against the Claimant on the basis that the Claimant failed to serve their defence to the Defence with Counterclaim within 14 days in accordance with RDC 16.9(1)
AND UPON the Claimant’s reply to the defence and defence to counterclaim dated 23 August 2024 (the “Reply to the Defence and Defence to Counterclaim”)
AND PURSUANT TO Part 13, Part 16 and Part 21 of the RDC
IT IS HEREBY ORDERED THAT:
1. The Request is denied.
2. There shall be no order as to costs.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 28 August 2024
At: 10am
SCHEDULE OF REASONS
1. The Defendant relies on RDC 13.5(2) and RDC 21.5 to support its Request for a judgment in default of a defence to be entered against the Claimant for failure to file and serve its defence to the Defence with Counterclaim within 14 days in accordance with Rule 16.9(1).
2. RDC 16.9 reads as follows:
“Filing a defence
The general rule is that the period for filing a defence is:
(1) 14 days after service of the particulars of claim; or
(2) if the defendant files an acknowledgment of service under Part 11, 28 days after service of the particulars of claim.”
3. In accordance with RDC 16.9(1), the Defendant takes the view that the Claimant should have filed its defence to the Defence with Counterclaim by 16 August 2024. Given that the Claimant did not file any submissions by 16 August 2024, the Defendant lodged a request for a judgment in default of defence to be entered against the Claimant on 23 August 2024.
4. The Claimant filed its Reply to Defence and Defence to Counterclaim on 23 August 2024 which is within 21 days of the Defendant’s Defence with Counterclaim as opposed to 14 days.
5. The Claimant appears to have relied on RDC 16.16 which states that the Claimant has 21 days after service of the defence to file its reply to the defence.
6. RDC 16.16 reads as follows:
“Reply to defence
If a claimant files a reply to the defence, he must:
(1) file his reply within 21 days after service of the defence; and
(2) serve it on all other parties at the same time.”
7. The question arises as to whether the Claimant was out of time to file its reply to defence and defence to counterclaim on the basis that it was filed within 21 days and not 14 days as stipulated by the Defendant.
8. I find that RDC 16.9(1) is not applicable in this situation as it only applies to the Defendant upon filing its defence, this is further evidenced in RDC 16.9(2) where it states “defendant” and provides 28 days for the filing of a defence.
9. The Defendant’s right to make a counterclaim is set out at RDC 16.14 to 16.15 and the Claimant’s right to file a reply to defence immediately proceeds these rules and is summarised at RDC 16.16 to 16.19.
10. Therefore, it is fair to say that the Claimant is entitled to rely on the provisions set out at RDC 16.16 to 16.19 in respect of the relevant timelines.
11. RDC 16.19 reads as follows:
“Where a claimant serves a reply and a defence to counterclaim , the reply and defence to counterclaim should normally form one document, with the defence to counterclaim following on from the reply.”
12. In the present case, the Claimant’s Reply to Defence and Defence to Counterclaim was made in accordance with RDC 16.19 as it formed one document. For this reason, I find that RDC 16.16 should be applied in this situation as it is clear on its intention to provide the Claimant with 21 days to file its reply to the defence and RDC 16.19 makes it clear that a Claimant may file its reply and defence to counterclaim in one document.
13. Accordingly, I find that the Claimant filed its Reply to Defence and Defence to Counterclaim within the time allotted under the RDC and in particular RDC 16.16 (i.e. within 21 days). As such, RDC 16.9(1) is not applicable.
14. Given that I have determined that the Claimant’s Reply to Defence and Defence to Counterclaim was not out of time, it follows that the Defendant’s request for judgment in default of defence must be denied.
15. There shall be no order as to costs.
