December 20, 2022 Technology and construction division - Orders
Claim No. TCD 003/2019
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
PANTHER REAL ESTATE DEVELOPMENT LLC
Claimant/Respondent
and
MODERN EXECUTIVE SYSTEMS CONTRACTING LLC
Defendant/Appellant
ORDER WITH REASONS OF JUSTICE SIR RICHARD FIELD
UPON The Defendant’s Appeal Notice dated 17 October 2022 seeking permission to appeal (the “Permission Application”) against the Judgment of Justice Sir Richard Field dated 26 September 2022 (the “Judgment”)
AND UPON considering the Defendant’s grounds of appeal (the “Grounds of Appeal”)
AND UPON considering the Judgment
AND UPON considering the Defendant’s Skeleton Argument dated 16 October 2022 in support of the Permission Application
AND UPON considering the Claimant’s written submissions dated 7 November 2022 opposing the Permission Application
AND UPON considering the Defendant’s submissions dated 21 November 2022 responding to the Claimant’s submissions dated 7 November 2022
AND UPON considering the Claimant’s Supplemental Skeleton Argument dated 5 December 2022
IT IS NOW HEREBY ORDERED:
1. The Permission Application is granted.
2. The Defendant shall have permission to appeal all of its Grounds of Appeal pursuant to RDC 44.19.
3. Costs of the Permission Application shall be costs in the appeal.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 20 December 2022
At: 2:45pm
SCHEDULE OF REASONS
1. This order replaces the order issued on 22 November 2022 granting the Defendant permission to appeal. That order was issued on the understanding that there would no further submissions from the Claimant responding to the Claimant’s submissions dated 7 November 2022. It then happened that the Defendant served its skeleton dated 22 November 2022 to which the Claimant served responsive submissions contained in its Supplemental Skeleton Argument dated 5 December 2022
2. RDC 44.14 and RDC 44.18 are silent on whether an applicant for permission to appeal must serve a skeleton argument in support of its application but the common practice is that a supportive skeleton is served. RDC 14.14 expressly permits a putative respondent to serve submissions in opposition to a permission application but there is no rule permitting a permission applicant to serve a skeleton challenging a putative respondent’s skeleton. Instead, RDC 44.18 (1) empowers the Court seised with the permission application to order further submissions from either or both of the applicant for permission and the putative respondent.
3. I have now read and considered the Defendant’s skeleton dated 22 November 2022 notwithstanding that it appears prima facie to have been served in breach of the RDC rules pertaining to appeals. I have also considered the Claimant’s Supplementary Skeleton Argument dated 5 December 2022 and the pleadings and documents listed in the Recitals to this order. In my judgment, each of the Defendant’s proposed grounds of appeal is sufficiently arguable for the purposes of RDC 44.19 notwithstanding both sets of the Claimant’s submissions and accordingly I grant the Permission Application.
4.1. It may be that a permission applicant has an implied entitlement to serve a second skeleton challenging a skeleton served by a putative respondent opposing the application and the putative respondent has an entitlement to respond to a second skeleton served by a permission applicant, but this is a very open question which I do not find it necessary to determine to deal with this Permission Application. In the meantime, applicants for permission to appeal and putative respondents would be well advised to obtain the permission of the Court before serving second skeletons.
