Claim No. SCT 202/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
MUTLA
Claimant
and
MEHERO
Defendant
ORDER WITH REASONS OF SCT JUDGE AND ASSISTANT REGISTRAR HAYLEY NORTON
UPON my Order dated 13 July 2023 (the “Order”)
AND UPON reviewing the Defendant’s Application Notice dated 22 November 2023 seeking to set aside the Order (the “Application”)
AND UPON reviewing the Claimant’s evidence in answer dated 29 November 2023
AND UPON reviewing the Defendant’s evidence in reply dated 30 November 2023
AND UPON a hearing having been held before me on 6 December 2023 with the Claimant and the Defendant’s representative in attendance
AND UPON reviewing the court file and documents contained therein
AND PURSUANT TORules 53.34 to 53.36 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Application shall be dismissed.
2. Each party shall bear its own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 14 December 2023
At: 8am
SCHEDULE OF REASONS
The Parties
1. The Claimant is Mutla (the “Claimant”), an individual residing in Sharjah, the UAE.
2. The Defendant is Mehero (the “Defendant”), a company registered and located in the DIFC, Dubai, the UAE.
Background
3. On 31 May 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment from the Defendant for alleged unpaid employment entitlements in the amount of AED 46,198.74 (the “Claim”).
4. On 16 June 2023, the Claimant filed a Certificate of Service confirming that the Defendant had been served notice of the Claim by delivering the Claim Form at the Defendant’s registered address.
5. Thereafter, a Consultation was listed before me on 12 July 2023, at which the Claimant attended and the Defendant failed to appear, although served notice of the Claim.
6. On 13 July 2023, following the Defendant’s failure to attend the Consultation and pursuant to RDC 53.32, I made an order against the Defendant in the sum of AED 46,198.74, in addition to an order that the Defendant pay the Claimant the DIFC Courts’ filing fee in the sum of AED 923.97 (the “Order”).
7. On 22 November 2023, the Defendant filed an Application Notice seeking to set aside the Order (the “Application”).
8. In support of its Application, the Defendant submits that notice of this Claim was sent by way of email to Mr. Mokin (test@test.ae), the Head of Finance and Human Resources for the Defendant, when in fact it should have been sent to the email address of the legal team, that beingtest@test.ae. The Defendant contends that due to the death of Mr. Mokin’s father, he “was out of the country” and “unable to check the emails” regarding this Claim. The Defendant submits that it operates as an outsourcing agency, billing its clients on a monthly basis for the payment of staff salaries and end of service benefits. The Defendant requests that the Court reopen the case as there are “irregularities” within the Claim. The Defendant takes the position that, as per its calculation, the final settlement amount owing to the Claimant should be the sum of AED 9,129.97.
9. The Claimant filed its response to the Application on 29 November 2023, and the Defendant filed its reply on 30 November 2023.
10. The Claimant submits that the Application should fail because the Claim Form was served in person at the Defendant's DIFC offices, meaning there was no good reason for the Defendant not to be aware of the Claim (as it alleges). The Claimant draws the Court’s attention to the fact that the Application was filed over four months out of time, despite the Defendant expressly acknowledging the existence of the Claim by way of an email dated 20 July 2023 to which the SCT Registry is in copy (the “Email”). The Claimant also puts forward the position that, even if the Application was allowed, the Defendant has no reasonable prospect of successfully defending the claim so it would fail in any event.
11. The Defendant requested that the Application be determined at a hearing which was duly held before me on 6 December 2023 (the “Hearing”). At the Hearing, the Claimant and the Defendant’s representative, Mr. Mokin, were in attendance.
Discussion
12. The relevant rules regarding an application to set aside an order are set out at RDC 53.34 and 53.35, and state as follows:
“53.34
A party who was neither present nor represented at the consultation and against whom the claim has been decided in accordance with Rule 53.32 …may apply for that order to be set aside and the claim reinstated.
53.35
A party who applies for an Order to be set aside in accordance with Rule 53.34, must make the application not more than 7 days after the day on which notice of the Order was served on him. The SCT judge who’s Order is subject to an application to set aside may extend the time for the filing of an application to set aside an order.”
13. Pursuant to RDC 53.35, an application to set aside an order must be made not more than 7 days after the day on which the notice of the order was served on him.
14. At the outset, I note that this Application was filed on 22 November 2023, 132 days after the Order was issued.
15. At the Hearing, the Defendant confirmed that it first received notice of the Claim and the Order “around the third week of September 2023” by receiving an envelope left at the Defendant’s office. I asked Mr. Mokin whether the Defendant had any knowledge of this Claim and/or the Order prior to the third week of September 2023, to which he confirmed, “I believe, no”. When asked what action the Defendant had taken from the third week of September 2023 until the eventual filing of the Application on 22 November 2023, Mr. Mokin stated that the Defendant had communicated with the Claimant and “had no problem” paying the Claimant’s airfare and end of service entitlements but it would not pay the late payment penalty as “there is no justification for doing so”. Mr. Mokin was asked whether the Defendant was aware of the time limits set out by the Court for the filing of an application pursuant to RDC 53.34. He simply responded by saying “no” he was not aware of the time limits imposed by the Court and in any event, he was travelling outside of the country from 18 June 2023 to 1 September 2023.
16. I found the oral submissions of Mr. Mokin to be contradictory to the written evidence provided by the Claimant. Mr. Mokin stated that the Defendant only became aware of the Claim and the Order around the third week of September 2023 however upon review of the Email, it is clear the Defendant had knowledge of the Order from as far back as 20 July 2023. Mr. Mokin sent the Email to the Claimant and the SCT Registry stating that the Defendant was "willing to settle the actual final settlement amount" but that the Defendant was "appealing the rest of the amount". The Email was sent from Mr Mokin's work email address, which was the same email address included for the Defendant on the Claim Form and which had been used by the SCT Registry for all correspondence relevant to this Claim, including service of the Order upon the parties on 13 July 2023.
17. The SCT Registry responded to the Email on the same day (the “SCT Registry’s Email”), copying Mr. Mokin and the Claimant, stating as follows:
"If the Defendant is seeking to make any applications, please do so by filling the application on the eRegistry online portal.
Please be advised to review the Rules of the DIFC Courts relevant to the Small Claims Tribunal, specifically the Defendant may wish to review Rule 53.30 detailing the requirements to be set out within an application to set aside a default order. Please submit your application online via the eRegistry online portal using a P23 Application Notice. Please also note that if the deadline to file such an application, as detailed in Rule 53.31, has passed when you are filing your application then please also address why the application is out of time".
18. I find Mr. Mokin’s oral submissions to be unreliable regarding the Defendant’s alleged unawareness of the Claim, the Order and the Court Rules. Having reviewed the SCT Registry’s Email, I find that, on 20 July 2023, the Defendant was provided with clear guidance from the Registry regarding the relevant rules that would apply in the event it wishes to file an application to set aside an order. However, it was only 125 days later that it finally proceeded to file its Application with no apparent reason for such a delay.
19. The Defendant has failed to provide a sufficient reason for why there has been such a delay in the filing of its Application nor has it provided a good reason for why I should grant an extension of time for the late filing. Therefore, as the Application has failed to satisfy the requirements of RDC 53.35, I shall order that it be dismissed.
20. As the Application has failed at the first hurdle, I shall not proceed to consider whether the Defendant might have a good reason for failing to attend the Consultation or if it has a real prospect of success in the small claim. For the benefit of doubt, I make no comment as to whether the Defendant might have been successful in this regard as the Application has already failed on the basis that it has been filed out of time.