Claim No. CFI 014/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
DAR AL MAL LIMITED
Claimant
and
BARCELONA SPORTS ELITE SL BSE
Defendant
ORDER OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claimant’s/Appellant’s (hereafter the “Appellant”) Application for Permission to Appeal dated 9 June 2022 (the “Permission Application”), seeking permission to Appeal the Order of H.E. Justice Maha Al Mheiri dated 23 May 2022
AND UPON the Appellant’s submissions in support of the Permission Application
AND UPON the Defendant’s/Respondent’s (hereafter the “Respondent’s”) submissions in opposition to the Permission Application dated 1 July 2022
AND UPON reading the documents submitted in the Court file
AND UPON reviewing Part 44 of the Amended Appeal Rules in the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. Permission to Appeal the Order of H.E. Justice Maha Al Mheiri dated 23 May 2022 is granted in accordance with RDC 44.19.
2. Costs shall be costs in the case.
Issued by:
Ayesha Bin Kalban
Deputy Registrar
Date of issue: 19 July 2022
At: 11am
SCHEDULE OF REASONS
1. This is an Application for Permission to Appeal against the Order of H.E. Justice Maha Al Mheiri dated 23 May 2022.
2. The Appellant’s Application for Permission to Appeal was dated 9 June 2022 and made pursuant to RDC 44.19.
3. The Claimant’s underlying position is that, in accordance with RDC 44.19, its appeal: (i) has a real prospect of success; or (ii) there is some other compelling reason why it should be heard. The Claimant advances the following grounds:
a. The Order is unjust, due to “case management irregularities”;
b. No reasons were given by the court for the Order;
c. The Defendant’s “evidence was insufficient”; and
d. The Claimant ought to be allowed to adduce “fresh evidence” as part of its appeal of the Order
4. RDC 44.19 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 reason why the appeal should be heard.
5. These requirements have been interpreted to mean that an appellant must show that the decision of the learned judge was either wrong or unjust because of procedure or other irregularity of the proceeding at the Court of the First Instance. The English Courts have in fact construed that the decision of the Court from which the appeal is sought must be shown to be ‘plainly wrong’ or ‘wholly wrong’ especially in respect of finding of fact or exercise of discretion. It is a well-established principle that appellate courts are reluctant to review the finding of facts by a trial judge.
6. The Respondent, on the other hand, submitted that procedures were complied with and a copy of the relevant application notice was served according to the procedures of the DIFC Courts on the Claimant.
7. According to the Respondent, the Claimant’s Appeal Notice should be dismissed and Permission to Appeal be denied, and the Claimant’s application for a stay of the Order, dated 23 May 2022, be dismissed. The Claimant’s request to adduce fresh evidence should also be dismissed and the Claimant should be directed to deposit the Security Amount of AED 338,160.
8. In my opinion, I have considered the relevant facts and submissions by both parties on this issue and the appeal, I am of the view that there is a real prospect of success of the appeal, and that there is a compelling reason that the appeal should be heard.
Conclusion
9. It follows therefore that I should make the following orders:
a. The Application for Permission to Appeal is granted.
b. Costs shall be costs in the case.