The National Bank of Ras Al Khaimah/IDRWW Courtclaim - old UAE Loan/CC

[Imnotthere]

I’ll have a read through that topic & yes you did say that Andy

 

so CPR24 24.5 point 2 regarding written evidence in reply (I assume this applies to the secondary/ supplementary WS)

 

These documents received on Saturday, hearing is weds PM, does that constitute 3 days?

 

 

[AndyOrch]

I'm afraid it does constitute...but its not really a response...nor is it a supplemental.....simply and updated statement having the benefit of seeing your response.

This must be brought to the judges attention ....verbally...ask the judge to confirm which statement the claimant wishes to relay on ...Aug of last years or this weeks ?

 

That way you bring it to the judges attention.....if they have not filed with the court in time...but simply served you...then that second statement is inadmissible.

[Imnotthere]

Thanks Andy, you answered my next question as to how I would flag this.

 

So in this instance- Should this revision have been filed with the court 7 days before, or 3 days ?

[AndyOrch]

Well CPR 24.5 states...but what you have been served is neither...not a response or a SWS....so In my view it should be disregarded ...not that there is anything new or threat to your response....but get the fact over to the court...its not process.

 

2) If the applicant wishes to rely on written evidence in reply, he must –

(a) file the written evidence; and

(b) serve a copy on the respondent,

at least 3 days before the summary judgment hearing.

 

 

[Imnotthere]

Thanks Andy,

 

any other tips tips or advice ahead of this afternoon? I’m not really sure what to expect, so any pointers additional advice appreciated as always !

[Imnotthere]

So the SJ was app was dismissed, just, but the SO application re my defence- "stayed" I think is the right term, pending me submitting a further revised defence within 6 weeks revised to clarify / address a number of points

[AndyOrch]

Apologies I wasn't able to get on to the forum yesterday...well done on beating their application....if you could expand as to why the judge dismissed their application ?

[Imnotthere]

No problem Andy- Specifically, it was all a bit of a blur to be honest, in summary I believe he felt, as I asserted, due to the complexity it was not suitable for a SJ.

 

I’ll advise specifics once I have the exact details, as not to mislead.

 

I have to submit a revised defence,  contestable points specifically relating to relevant points in non compliance with CPR and the remedy sought.

 

It was clear that the judge was only prepared to review the case under merits of English Law, regardless of where the agreement was alleged to have been undertaken or the laws of that country.

 

 

 

 

[AndyOrch]

Sounds promising and as should be.....the laws are completely incompatible.....totally unsuitable for summary judgment as I advised....hence why all the claims made they always file for SJ because they don't want the claim to proceed to full hearing.

[Imnotthere]

Morning folks,

 

I received this in the post last week, was expecting it sooner to be honest as the date for filing revised defense is this week.

 

Any thoughts/ comments @Andyorch as to how to effectively & carefully respond to these specific points?

 

I'm also interested in clarity as to what cost I could claim as an LIP.

 

During the hearing it was stated that my original defence only just passed muster, so clearly it needs to be beefed up, probably using some of the additional (superfluous to) information I added with my SJ witness statement.

 

I've also been researching rule 25.2 as I feel it is a pertinent argument to make with regard to such a claim 

 

TIA

Order Redacted.pdf

[AndyOrch]

Good.....so now if you could refresh your topic and upload a copy of the particulars...your initial defence and a copy of their statement in support of their failed application...all redacted...so we have all the information in one post for easy reference.

 

Andy

[AndyOrch]

And the date you must comply with the order......you blanked it out not sure why .

[Imnotthere]

This Friday!

[AndyOrch]

Eeeek...not much time then...so have a go at afresh particularised draft...a bit like a statement but not if you get me. Dont divulge too much detail you must keep to their particulars of claim on point.

 

I would have their particulars in front of me along with their application statement although it failed it does give you insight to their argument and what they are relying on.

 

Have a copy of the Order and look closely at the judges directions...why has he requested a/b/c/ etc read between the lines......he obviously wasn't impressed with their application ...so join the dots up for him.

 

Have a go post it here and I will give it the once over before you have to submit. You cant rely on English law but you can utilise the CPR and what a court expects from a claimant to prove its case and also be CPR compliant.

 

[Imnotthere]

I know, tell me about it, but I wanted the exact wording of the order in front of me before acting, it was said it could take several weeks to arrive.

 

So there is no point to argue that application of English Law to Foreign Law contracts are fundamentally incompatible? And that it is not reasonable to try to apply one to the other?

 

It was also said that "no further applications" would be accepted in regard to this case.

 

Can you point me in the right direction on costs? I take that as a clear direction to pursue.

 

 

Edited June 21, 2021 by Imnotthere

[AndyOrch]

Quote

So there is no point to argue that application of English Law to Foreign Law contracts are fundamentally incompatible? And that it is not reasonable to try to apply one to the other?

 

Correct because of the none exclusive jurisdiction clause....there are downsides to this type of clause also in that there is a risk of parallel proceedings and therefore you could argue that the UK Courts are not the preferred venue when a claim really should be heard in its own jurisdiction.

 

No further applications is a good sign the judge will not tolerate any further applications and the claim will proceed to a full hearing.

 

Costs are subject to CPR 44.

 

PART 44 - GENERAL RULES ABOUT COSTS

WWW.JUSTICE.GOV.UK

 

[Imnotthere]

Ok, - so if there is an argument regarding the claimant holding a valid / enforceable agreement - any clauses contained in that agreement also become invalid? Or has the boat sailed there?

 

Thanks for the link re costs, will have a read.

[AndyOrch]

But how do you determine if the agreement is valid or invalid under foreign law ?  As long as they can disclose an agreement in English with your signature/date...that is all that is requires to support their claim.

[Imnotthere]

That's a key point Andy, the signature on the "agreement" doesn't match the signature on the identity documents the claimant submitted in support, despite the identity documents being stamped as verified by the claimant.

[AndyOrch]

Then that should be a fundamental argument to your defence.

[Imnotthere]

Draft so far @Andyorch, still needs more ?

2nd defence draft.pdf

[AndyOrch]

Okay thanks.....

 

Your particulrised defence you cant have a separate intro sheet it must all be incorporated into the main body of the defence.

Looking again at the judges orders its rather strange that a defendant should have to prove points to deny liability rather than the claimant having to prove its claim..I'm sure you have heard the saying  " innocent until proved guilty " it would appear the judge is leaning on you more to prove that innocence  rather than the other way around and the claimant having to prove its claim.....under UK law its for the claimant to prove its claim.

 

There is also an illegibility issue with the documents even with or without a signature...that would be straight forward under UK law and CCA1974...basically if you cant read it its not enforceable. I note you have referred to this but it wont harm to mention the UK equivalent to UAE and state that it therefore renders the the reconstituted version unenforceable as it would pursuant to CCA1974  sec 61 (1c)

 

I cant really advise further bar the points above.....it will be easier to attack if and when you get to allocation stage and then you can counter their witness statement.......anyway a claim cant really be decided on particulars vs defence....lets hope the defence is accepted and proceeds to allocation.

 

Andy

 

 

.

 

 

[Imnotthere]

Thanks Andy, will digest that information.

 

Not sure what you meant by CV though? 

 

Curriculum vitae? I don’t recall that being a part of any of the documents?

[AndyOrch]

Scratch that..its the experts report CV

[Imnotthere]

So update is that status is defended, proposed to be allocated to Fast Track 

.

Submit N181 (although one has already been submitted before the SJ application etc) 

+ attempt to agree directions 

+ file proposed directions (agreed or not)