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  • Writer's pictureKartik Sharma

DIFC Court's jurisdiction to grant injunctive relief: Sandra Holdings and Beyond

Sandra Holdings v. Al Saleh [2023] DIFC CA 003

On 7 September 2023, the DIFC Court of Appeal overturned the decision of Sir Jereme Cooke at first instance, and in that process, overturned a long line of single judge decisions in the DIFC Courts and clarified the circumstances in which the DIFC Court can grant an injunction in support of foreign proceedings.


Background

Claimants commenced proceedings against the Defendants in Kuwait claiming that assets had been misappropriated from a Cayman company. The Claimants then, in the DIFC, relied on the Kuwaiti proceedings as 'foreign proceedings' and obtained an ex parte worldwide freezing injunction against the Defendants from the DIFC Courts. The Defendants were not DIFC entities and had no discernible connection to the DIFC.


First Instance Decision

The Court of First Instance grounded jurisdiction on Part 25.24 of the RDC. "RDC" are the Rules of the Dubai International Financial Center and mainly relate to the procedural rules governing the court process of the Court of First Instance and the DIFC Court of Appeal.

Part 25.24 of RDC provides that any party applying for an injunction in support of foreign proceedings should do so through Part 8 procedure.

At first instance, Justice Sir Jeremy Cooke, applying the previous judgment in Jones v Jones CFI 043/2022, found that Part 25.24 was a “DIFC Regulation” and that, when read in conjunction Article 5A(1)(e) of the Judicial Authority Law ("JAL"), the rule was sufficient to confer a jurisdiction on the court to grant an injunction against a party whether or not they had any connection with the DIFC.


Appeal

The Defendant appealed. Their argument was that the DIFC Courts did not have jurisdiction and that by doing so, the DIFC Court had conflated the statutory jurisdiction of the DIFC Court and other common law courts.

Importantly, the gateways for granting such relief are found in Article 5A(1)(e) of JAL and they need to be met before such relief could be considered.


Decision

The Court of Appeal in its judgment held that there are no such ‘clear and expressive words’ in RDC 25.24 permitting the DIFC Courts to act outside of the gateways in Article 5A(1)(a)-(d). Further, RDC 25.24 is procedural in the sense that it deals with how applications for relief are to be made and does not expand the Court’s jurisdiction.


At paragraph 58 of the judgment:


"58. The RDC cannot add nor extend the DIFC Courts’ jurisdictional powers without clear expressive words to confer such powers. The ruling in Nest Investment should not be taken as an indicator that the Court had conclusively determined that all rules in the RDC confer jurisdiction on the DIFC Courts. Instead, one needs to make an assessment on a case-by-case basis to determine their true effects and ascertain if the relevant rule in fact confers jurisdiction."


and then at paragraph 59:


"The wording of RDC 25.24 provides a general power which the Court may exercise when granting an interim remedy in aid of foreign proceedings. The words used in that rule are not meant to confer jurisdiction. Its operation is not forceful enough to confer jurisdiction. By its terms, it operates when a prospective applicant seeks a remedy in support of foreign proceedings. It is procedural in the sense that it deals with how such applications are to be made, namely under Part 8. Rather, the words used in that rule i.e. “Where the party wishes to apply…any application must be made in accordance with Part 8 ” indicate that it is merely intended to be procedural."


Consequently, “RDC 25.24 should not be read on its own, but rather in parallel and consistent with the gateways of Article 5”. The DIFC Court’s powers are limited to those circumstances outlined in Article 5 of JAL.


Significance

Overturning a long line of decisions most recently in Jones v Jones CFI 043/2022, the DIFC Court of Appeal confirmed that RDC 25.24 simply refers to general procedural matters and cannot be read in isolation to confer additional jurisdiction. It must be read in parallel with the jurisdictional gateways under Article 5A JAL.

At present, there is no DIFC equivalent to s.25 of the Civil Jurisdiction and Judgments Act 1982 which provides the English Courts with power to grant injunctions in support of foreign proceedings. The DIFC Courts do not have inherent jurisdiction and any expansion of its remit needs to be achieved via statue and not through decisions of the Court.

The defendants failed to dispute the jurisdiction of the DIFC Courts within the 14 day time limit in RDC 12.4. The claimant argued that, under RDC 12.5, this gave the DIFC Court jurisdiction over the defendants. This judgment confirms that RDC 12.5 does not confer jurisdiction, but only applies where the DIFC Court has prima facie jurisdiction on other grounds.


Kartik is an English barrister and has a broad commercial and corporate practice focusing on banking and financial litigation, civil fraud, commodities, corporate insolvency, restructuring, shipping, insurance, sanctions law, and issues pertaining to company law such as shareholder disputes, breach of director duties, and schemes of arrangement. Kartik also has rights of audience across the BVI, India, and is also registered as a Part II practitioner at DIFC Courts. If you require clarification on any of the above, or assistance generally, please feel free to reach out by clicking here, or here.


The judgment in this case is available here.


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