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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Normandie v Norval [2024] DIFC SCT 105 (12 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_105.html Cite as: [2024] DIFC SCT 105 |
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Normandie v Norval [2024] DIFC SCT 105
July 12, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 105/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NORMANDIE
Claimant/ Applicant/Respondent
and
NORVAL
Defendant/ Respondent/Applicant
ORDER WITH REASONS OF LORD JUSTICE ANGUS GLENNIE
UPON reviewing the Judgment of H.E. Justice Maha Al Mheiri (the “Judge”) dated 27 June 2024 (the “Judgment”)
AND UPON reviewing the Claimant’s Appeal Notice dated 28 June 2024 seeking permission to appeal the Judgment (the “Claimant’s Application”)
AND UPON reviewing the Defendant’s Appeal Notice dated 10 July 2024 seeking permission to appeal the Judgment (the “Defendant’s Application”)
AND UPON considering the documents and submissions filed by both parties and recorded on the case file
AND UPON hearing and considering the oral submissions of the Claimant and the Defendant made at a hearing held on 11 July 2024 (the “Hearing”)
IT IS HEREBY ORDERED THAT:
1. The Claimant’s Application is refused.
2. The Defendant’s Application is refused.
3. Each party shall bear their own costs of the Applications.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 12 July 2024
At: 8amSCHEDULE OF REASONS
1. There are two applications in respect of the Judgement of H.E. Justice Maha Al Mheiri dated 27 June 2024 (the “Judgment”). This is the Hearing of both the Claimant’s Application dated 28 June 2024 (the “Claimant’s Application”) and the Defendant’s Application dated 10 July 2024 (the “Defendant’s Application”) seeking permission to Appeal against that Judgment.
2. In terms of the Rules of the DIFC Courts (the “RDC”), RDC 53.87 provides that an appeal can only succeed if the decision of the lower Court is shown to be wrong, or unjust because of some serious procedural or other irregularity in the proceedings, or wrong in relation to any other matter provided for or under any law. RDC 53.91 provides that permission to appeal may only be granted where the court hearing the application considers that the appeal would have a ‘real’ or, in other words, realistic prospect of success, or that there is some other compelling reason why the appeal should be heard.
3. The Claimant’s proposed appeal is on a narrow point. In summary, the judgment given on the 19 January 2024, that is sometimes referred to as ‘the first claim’, was for a Sum of approximately AED 163,000 in respect of the Defendant’s unpaid entitlement during her employment and period of gardening leave thereafter. The sum awarded in the judgment was not in fact paid by the Claimant until 19 March 2024, some 60 days late. The Judge took the view that this justified the award of 60 days’ worth of salary or employment benefits. The Judge relied on Article 19 of the DIFC Employment Law: see paragraph 31 of her Judgment.
4. The Claimant argues that there was no obligation to pay, since the entitlement under that judgment was disputed. The Claimant had sought permission to appeal but that came before Justice Andrew Moran on 19 February 2024, and he held that what was before him was not actually an appeal against that judgment, it was a challenge to the conduct of the Defendant on different aspects. It follows that no dispute was pending in the Court regarding the amount that was awarded under the judgment of January. The sum awarded by that judgment should have been paid, and in default of payment the Claimant was obliged to pay the 60 days entitlements as awarded by the Judge. Therefore, there is no basis for allowing permission to appeal and the Claimant’s Application for leave on that aspect is refused.
5. The Defendant’s Application raises issues as to the breadth of the restrictive covenant in the contract between the parties. The Defendant argues, in summary, that it was unreasonable both as regards the length of time restriction and as to the geographical extent of the restriction, a 5 kilometre radius, but no evidence was led before the Small Claims Tribunal on these matters to support the Defendant’s argument.
6. In paragraph 22 of her Judgment, the Small Claims Tribunal Judge says that she regarded certain parts of the restrictive covenant as unfair and she found for the Defendant on certain aspects; see for example paragraphs 22 and 23. But in paragraph 24 she found that the clause was enforceable as far as the 5 kilometre radius was concerned and she gives her reasoning that it was entirely reasonable as it defined the geographical scope which surrounded the Claimant’s clinic location and restricted the Defendant from working within a 5 kilometre radius. By contrast, the Defendant’s place of work during this period was only 1.7 kilometres away from the Claimant’s clinic. There is no basis, in my opinion, for challenging that conclusion and it follows that the Defendant’s Application must also be refused.
7. So, I refuse both applications for permission to appeal.