Overview

• The DIFC Courts function with their own independent legal system based on English common law. They have been instrumental in efficiently managing the influx of civil and commercial cases which were earlier managed by the UAE Courts and were hindered by delays, absence of oral advocacy and the involvement of experts limiting opportunities of engagement with Judges to address ambiguity.

• The DIFC Law No.12 of 2004 empowers the Court of First Instance (CFI) and Court of Appeal (CA) to have jurisdiction over civil and commercial matters only. The DIFC Courts however, don’t have jurisdiction over criminal matters which are referred to the appropriate external authority in the UAE.

• This Practice Note provides an insight into the appellant jurisdiction of the DIFC Courts, discusses the crucial requirement of seeking a permission to appeal, briefly considers appeals from the orders of the DIFC Small Claims Tribunal and describes the case management process of the DIFC Court of Appeal.

Definitions

• “CA” – DIFC Court of Appeal;
• “CFI” – DIFC Court of First Instance;
• “CPR” – English Civil Procedure Rules
• “RDC” – Rules of the DIFC Courts
• “SCT” – Small Claims Tribunal

Appellate Jurisdiction of the DIFC Courts

• Part 44 of the RDC governs the appeal process by the DIFC Courts. The CA is comprised of at least three Judges with the Chief Justice or most senior Judge to preside over the bench. The Judges qualify on the basis of being holders of high judicial office in any jurisdiction recognized by the UAE government and having significant experience as qualified lawyer or Judge in the common law system.

• The CA has exclusive jurisdiction over the appeals filed against judgments and awards made by the CFI and to interpret any article of the DIFC’s law upon request by any DIFC body or establishments, subject to the permission of the Chief Justice. It is the Court of last resort laying down the final order / judgment of the DIFC Courts and no appeal lies from the decision of the CA.

• A peculiar feature of the DIFC appeal process is that the appellant must first seek permission to appeal which will only be given on the grounds of the appeal having a real prospect of success or there is some other compelling reason for the appeal to be heard [RDC 44.19].

• Although Part 44 which deals with appeals under the RDC follows the CPR in form and manner, in substance, the provisions have been derived from best practices across common law jurisdictions. RDC 2.10(4) clarifies this by providing that if no particular provisions or appropriate form is provided by the RDC or any other DIFC law, Part 52 of the CPR and any associated practice directions and forms (as defined and applied therein) with such changes as the Court considers appropriate would be applied in such circumstances.  

2017 Amendment

Part 44 was amended by the DIFC Courts in 2017 to make the appeal process more effective for Judges and lawyers and operate on a basis of common understanding and collective knowledge. The key amendments were as follows:

• The timelines for filing pleadings were extended to make them more practical and realistic. The appellant has 21 days (earlier was 14 days) from the impugned judgment to file an application to seek permission to appeal and the respondent has 21 days (earlier was 14 days) to submit its counter skeleton argument.

• Applications for appeals post amendment are reviewed by the same Judge who handled the initial case at the CFI instead of being made directly to the CA. This was done to ensure a more insightful decision-making process whilst granting leave to appeal without the need of the CA having to conduct detailed background research to understand the case, dealing with extra documentation which would cause delays.

Consequently, Part 44 of the RDC is divided into two segments i.e. Former Part 44 – Appeals which apply to judgments and orders issued before 25 May 2017 and Amended Part 44 – Appeals which apply to judgments and orders issued on or after 25 May 2017.

Permission to Appeal

• The Appellant must seek the CFI’s permission to appeal either orally at the hearing at which the impugned decision was made or by filing an appellant’s notice within 21 days of the date of the judgment / order being appealed [RDC 44.6]. The appellant’s notice must set out the grounds of appeal relied upon and include or be accompanied by a skeleton argument and where impracticable, the same must be filed within 21 days of filing the notice [RDC 44.29 and 44.30].

• The CFI may refer an application for permission to appeal to the CA or refuse the permission, in which case, a further application for permission to appeal may be made to the CA within 21 days of such refusal by the CFI [RDC 44.8, 44.9 and 44.11]. Filing an appeal however, does not operate as a stay of any decision of the Lower Court, unless otherwise ordered by the CA or CFI [RDC 44.4].

• An application for permission to appeal referred by CFI to CA or made to the CA may not be decided by the same Judge against whose decision such permission to appeal is being sought [RDC 44.15]. This application is ordinarily decided without an oral hearing however, an oral hearing may be requested if it is deemed fit by the Court in the interest of justice [RDC 44.16 and 44.17].

• The grounds of appeal must clearly set out why the impugned decision was wrong or unjust due to a serious procedural or other irregularity in the proceedings of the CFI. It shall also specify whether each ground raises a point of law or a finding of fact and state the orders sought on appeal [RDC 44.31].

• The application for permission to appeal shall also be accompanied with the following documents where:

• Permission to appeal is sought from CFI – the appellant’s notice and skeleton argument along with any witness statement and affidavit in support of such application [RDC 44.32(1)]; and

• CFI refuses permission to appeal and a further permission is sought from CA – a copy of order refusing permission to appeal along with Judge’s reasoning for refusal, claim form and statements of case, suitable record of the judgment, copy or record of impugned decision, relevant parts of documentary evidence including transcripts of evidence and any witness statement and affidavit in support of the application [RDC 44.32(2)].

Appeal from orders of the Small Claims Tribunal

• The provisions of Part 44 of the RDC (as relevant) apply to appeals against orders of the SCT [RDC 53.75]. An appellant seeking to challenge a decision of the SCT should file an appellant’s notice seeking permission to appeal from the CFI within 21 days of the impugned SCT decision. [RDC 53.76].

• The CFI will allow the permission to appeal on the grounds that the decision was wrong in relation to a question of law, unjust because of procedural unfairness or a miscarriage of justice and / or wrong in relation to any other matter provided for in or under DIFC Law [RDC 53.76]. 

• If the appeal is allowed by CFI, the CA will dispose of the case at the same time without ordering a new hearing or recording further evidence [RDC 53.80]. The CA may however, allow the appeal subject to conditions considered appropriate by the Judge including costs of the appeal [RDC 53.81].

Case Management Process of the Court of Appeal

• As indicated above, the appellant’s notice is to be filed to the CFI seeking permission to appeal within 21 days of the date of the impugned judgment / order. The respondent is to be served with the notice along with skeleton argument and grounds of appeal (either with the notice or subsequently) within the said 21 days.

• The Respondent is to file submissions in reply to the Appellant’s request for permission to appeal within 21 days of receipt of the appeal notice or 21 days from the date of the skeleton argument and grounds of appeal, if filed subsequently [RDC 44.14].

• The Respondent’s skeleton argument must be filed within 28 days from the date of filing of the Appellant’s skeleton arguments [RDC 44.85] and the supplementary skeleton arguments of the Appellant and Respondent respectively within 14 days thereto and in any event be filed at least 14 days before the appeal hearing [RDC 44.102, 44.103 and 44.106].

• If the permission is denied by CFI, the aforesaid steps may have to be repeated if so advised with the appeal notice filed to the CA. However, if the permission is referred to CA by CFI, the CA will review the aforesaid documents to determine whether the permission is to be granted. If the permission is granted either by the CFI or the CA, an Appeal Case is opened by the Registry.

• Within 14 days of the date of permission being granted, the parties’ legal representatives are to provide their time estimates for the hearing which gets listed by the Registry after liasing with the parties [RDC 44.74].

• The appeal bundle shall be filed at least 21 days before the appeal hearing and the bundle of authorities shall be filed at least 7 days before the appeal hearing such that all documents are to be with the CA at least 7 days before the appeal hearing [RDC 44.39 and 44.99].

• The appeal hearing takes place before a panel of 3 Judges of the CA and after the Appeal hearing, the CA will hand over the judgment within 3 to 6 months or in some urgent cases, decisions can be made ex temore. The judgment shall be final and binding on the parties and no further appeal lies from a decision of the CA [RDC 44.153].

Order which can be passed by Court of Appeal

The CA can pass the following orders under RDC 44.108:

• Issue an order that could have been made by the CFI;
• Attach terms and conditions to an order it makes;
• Annul or set aside a decision;
• Require or prohibit taking of a specific action or action of a specified class;
• Make a declaration of facts; or
• Make any other order as the CA considers appropriate or just

About the Author

Siddhanth Kochhar is a Principal Associate with Kadernani and Company Legal Consultants where he is primarily involved with disputes before the DIFC and ADGM Courts, arbitration under the DIAC, DIFC-LCIA and ICC Rules and instrumental in drafting commercial contracts.