Claim No: CA 006/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the Name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF APPEAL
BEFORE CHIEF JUSTICE ZAKI AZMI, JUSTICE SIR JEREMY COOKE AND JUSTICE ROBERT FRENCH
|Hearing :||8 September 2021|
|Counsel :||Francis Hornyold-Strickland instructed by Holman Fenwick Willan Middle East LLP & Co on behalf of the Appellant|
Paul Toms instructed by Fitch & Co. Legal Consultancy on behalf of the Respondent
|Judgment :||8 September 2021|
UPONthe Order with Reasons of H.E Justice Shamlan Al Sawalehi issued on 10 March 2021
AND UPONreviewing the Appellant’s Appeal Notice issued on 16 August 2021
AND UPONthe Order H.E Justice Shaman Al Sawalehi granting the Appellant permission to Appeal against the Judgment issued on 7 June 2021
AND UPONthe Respondent’s Appeal Notice filed on 16 August 2021
AND UPONreviewing the Respondent’s Application No. CA-006-2021/2 dated 23 August 2021 seeking permission to amend its appeal notice dated 16 August 2021 into an application notice or retrospectively extend the time asking for permission to file an appeal against the Order dated 7 June 2021 (the“Strike Out Application”)
AND UPONreviewing the Appellant’s evidence in answer to the Strike Out Application dated 24 August 2021
AND UPONreviewing the Respondent’s evidence in reply to the Strike Out Application dated 24 August 2021
AND UPONthe Order of the Registrar Nour Hineidi issued on 26 August 2021
AND UPONthe Court of Appeal’s direction issued on 2 September 2021 that the Strike Out Application be dealt with at the same time in the appeal hearing
AND UPONhearing counsel for the Appellant and counsel for the Respondent at a hearing on 8 September 2021
AND UPONreading the submissions and evidence filed and recorded in the Court file
IT IS HEREBY ORDERED THAT:
1. The Strike Out Application is dismissed.
2. The Appeal is dismissed.
3. Costs of appeal to be borne by the Appellant.
4. Costs of the Strike Out Application to be borne by the Respondent.
Date of issue: 19 September 2021
CHIEF JUSTICE ZAKI AZMI, JUSTICE SIR JEREMY COOKE AND JUSTICE ROBERT FRENCH IN AGREEMENT:
1. We have listened with care to the submissions of the parties following questions which were raised by the Court as threshold questions on this appeal. We have decided to dismiss the appeal as serving no useful purpose. We do not consider there was any need for an application to be made by the Respondent to strike out the appeal where the rules provide very limited grounds for so doing, particularly after permission to appeal has been given. We make this determination as part of the appeal itself. Indeed, the very point that was raised in the Respondent's application was one raised in an earlier skeleton of Mr Toms in support of his opposition to the appeal itself.
2. The essential reason for our decision is this. This Court is not in a position to determine finally the nature of the guarantee cheque. The reason for that is that this is an appeal in relation to an interlocutory injunction. For exactly the same reason, the First Instance Judge was not in a position to make any such determination either, whether or not he purported to do so or his reasons could be expressed better and may have indicated that he did so. We make it clear that no decision by this Court on an interlocutory injunction in relation to the nature of the guarantee cheque could be final and binding between the parties. That remains a matter for the arbitrator to decide in an arbitration which is in being between the parties and where we understand a hearing is due to take place in January of next year.
3. Until that point there remains a serious issue to be tried, an issue between the parties as to whether or not the guarantee cheque could properly have been presented prior to determination by the arbitrator of the underlying rights and wrongs and liabilities of the parties. We make that clear in case that is of any assistance to the parties. It is a question for them as to how any Court order is utilised in relation to potential criminal prosecution or how this transcript can be used, but it is right that we should make clear that no final decision has been made by the Court on that matter.
4. In the context, it seems to us that there is no order that we could usefully make that can assist. The only benefit of deciding whether or not the Judge was right in the approach he took would relate to questions of costs and no Court of Appeal ever determines whether or not an appeal is rightly raised simply because of the issue of costs below. In the circumstances, we do not think that this appeal should have been pursued and, therefore, the costs of this appeal must be borne by the Appellant, but we also consider that there was no good reason for the Respondent to bring the application they did and so the costs of the Strike Out Application must be borne by the Respondent.