July 29, 2021 Technology and construction division - Orders
Claim No.: TCD 009/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE
IN THE COURT OF FIRST INSTANCE
BETWEEN
FIVE REAL ESTATE DEVELOPMENT LLC
Claimant/Appellant
and
REEM EMIRATES ALUMINIUM LLC
Defendant/Respondent
ORDER WITH REASONS OF CHIEF JUSTICE ZAKI AZMI
UPON the judgment of Justice Sir Richard Field dated 4 May 2021 (the “Judgment”)
AND UPON the Order of Justice Sir Richard Field dated 8 June 2021 refusing permission to appeal against the Judgment
AND UPON reviewing the Claimant’s Second Appeal Notice filed on 29 June 2021 against the Judgment (the “Second Permission Application”)
AND UPON reviewing the Defendant’s written submissions in opposition to the Permission Application dated 1 July 2021
AND UPON reviewing the relevant documents on the Court file
IT IS HEREBY ORDERED THAT:
1. The Second Permission Application is dismissed.
2. The Claimant shall pay the Respondent’s costs of the Second Permission Application on the standard basis, to be assessed by a Registrar if not agreed.
Issued by:
Nour Hineidi
Registrar
Date of issue: 29 July 2021
At: 3pm
SCHEDULE OF REASONS
1. The judge of First Instance has refused this similar application made before him and he has given a well written set of reasons for doing so. A second application is in fact a request to reconsider that application.
2. The RDC provides that permission to appeal may be given only where the lower court or the Court of Appeal, as the case may be, considers that:
(a) the appeal would have a real prospect of success; or
(b) there is some other compelling reasons why the appeal should be heard.
3. The principles and authorities for deciding are very well established and I do not need to recite them here.
4. In my opinion, the Appellant has failed to show he will be able to cross this threshold.
5. I have read through the Judgment as well the submissions made by both parties on the case and in respect of this application.
6. The reason given by the Judge for dismissing the Appellant’s application to amend is as follows (to use the Appellant’s submission):
“Reasoning refusing permission
In refusing permission the Judge justified his approach as follows:
“2. The Strike Out Application having been issued long before the amendment application, the former application was decided first, as was entirely proper and to be expected by both parties. In the result, the strike out application succeeded and the whole of the Claimant’s claim was struck out by the Strike Out Order. As a result, it was inevitable that the Amendment Application was nullified.”(underline added)
7. The Appellant’s gravamen against the decision was that the Judge did not give reasons for his decision.
8. But these are the Judge’s reasons for his refusing the application to amend. I cannot see how it cannot be read as his reason. I do not think he needs to provide any authorities, because it is so logical. He then subsequently, in the application for permission to appeal, in very strong terms, refused the application. The learned judge, said:
“In my judgment, the Claimant’s proposed appeal is wholly without merit and would have no realistic prospect of success. Any competent practising litigant lawyer should have appreciated that it followed as night follows day that the Amendment Application was nullified and ceased to be maintainable by reason of the Strike Out Order without the need for an order or direction to this effect being issued by the Court. A fortiori where, as here, the Registry made absolutely clear why the Amendment Application was nullified when it issued the email of 16 May 2021.”
And later concluded:
“..in my judgment the application is so hopelessly devoid of merit that the Claimant should pay the Defendant’s costs on the indemnity basis such costs to be the subject of an immediate summary assessment by the Registrar.”
9. Again, I cannot disagree with him.
10. For these reasons, the application for permission to appealed is dismissed with costs, to be assessed by the Registrar, if not agreed.
