Justice Sir Jeremy Cooke grants the Claimant leave to amend her Particulars of Claim, clarifying fiduciary duty allegations and introducing a statutory claim for unlawful director removal under the DIFC Companies Law.
What is the nature of the dispute between Zuzana Kapova and Miloslav Makovini and what is the total monetary value at stake in CFI 004/2023?
The litigation involves a commercial dispute between the Claimant, Zuzana Kapova, and the Defendants, Miloslav Makovini and Pharm Trade Holding Ltd. The core of the claim centers on allegations of breach of fiduciary duties, specifically regarding the First Defendant’s role as the Claimant’s advisor, and the circumstances surrounding the Claimant’s removal as a director of the Second Defendant. The proceedings have been marked by various procedural developments, including: Zuzana Kapova v Miloslav Makovini [2023] DIFC CFI 004 — procedural fairness for litigants in person (10 March 2023), ZUZANA KAPOVA v MILOSLAV MAKOVINI [2023] DIFC CFI 004 — procedural flexibility for litigants in person (30 March 2023), ZUZANA KAPOVA v MILOSLAV MAKOVINI [2023] DIFC CFI 004 — Consent order regarding jurisdiction challenge deadlines (06 April 2023), ZUZANA KAPOVA v MILOSLAV MAKOVINI [2023] DIFC CFI 004 — procedural variation by consent (08 May 2023), and ZUZANA KAPOVA v MILOSLAV MAKOVINI [2023] DIFC CFI 004 — procedural variation of timelines for pending applications (15 June 2023).
The financial stakes are significant, with the Claimant seeking substantial damages. As noted in the court's order:
(e) The Claimant claims a total of USD 4,268,000 in paragraph 40 and in the prayer for
relief.
The court clarified that this figure aligns with the original claim form, which referenced EUR 4 million or its USD equivalent, noting that the existing Particulars of Claim already contained figures totaling this amount or higher.
Which judge presided over the August 2024 order in Zuzana Kapova v Miloslav Makovini and in which division of the DIFC Courts was this heard?
The order was issued by Justice Sir Jeremy Cooke, sitting in the Court of First Instance of the Dubai International Financial Centre Courts, on 7 August 2024.
What were the parties' respective positions regarding the Claimant's application to amend the Particulars of Claim in CFI 004/2023?
The Claimant sought permission to amend her Particulars of Claim to refine her legal arguments, including the abandonment of an anti-suit injunction claim related to Slovakian proceedings and the addition of a claim under Article 149 of the DIFC Companies Law regarding her removal as a director. The Claimant argued that these amendments were necessary to clarify the case and reflect the facts already pleaded.
The Defendants opposed the application, leading to a dispute over whether the amendments were coherent and whether they caused undue prejudice. The court found that the First Defendant’s opposition was unreasonable, noting that the Defendants would have likely opposed the request even if the Claimant had sought consent prior to filing the formal application.
What was the precise legal question Justice Sir Jeremy Cooke had to answer regarding the Claimant’s request to amend her pleadings?
The court was tasked with determining whether the Claimant should be granted permission to amend her Particulars of Claim under the relevant Rules of the DIFC Courts (RDC). The central doctrinal issue was whether the proposed amendments were coherent and whether the Defendants would suffer any prejudice that could not be adequately addressed or compensated through a costs order. Additionally, the court had to decide on the appropriate allocation of costs for the application, given the First Defendant's opposition.
How did Justice Sir Jeremy Cooke apply the test for granting permission to amend pleadings in this case?
Justice Sir Jeremy Cooke applied the established judicial test for amendments, which prioritizes the absence of irreparable prejudice to the opposing party. The court concluded that the amendments were logical and consistent with the existing factual matrix of the case.
Regarding the test for granting such applications, the court stated:
The principles upon which permission to amend is granted are well known and there is no
prejudice to the Defendants that cannot be compensated in costs.
(a) There is nothing incoherent about the amendments sought.
The judge further reasoned that the inclusion of the Article 149 claim was a logical consequence of the facts already pleaded in the case, and that the abandonment of the anti-suit injunction claim was a procedural simplification that could not be reasonably objected to by the Defendants.
Which specific DIFC statutes and legal provisions were cited in the court's reasoning for allowing the amendments?
The court specifically referenced Article 149 of the DIFC Companies Law. This provision was utilized by the Claimant to support her new prayer for relief, which seeks a declaration that her removal as a director of the Second Defendant, Pharm Trade Holding Ltd, was unlawful and null and void. The court accepted this as a valid amendment, noting that it flowed logically from the facts already set out in paragraphs 48, 59, and 63 of the Particulars of Claim.
How did the court handle the procedural timelines for the Amended Defence and Reply in light of the granted amendments?
The court set a clear procedural schedule to ensure the case moves forward efficiently following the amendments. The order mandates:
The Defendants shall file, if so advised, any Amended Defence within 28 days of today and
the Claimant shall, if so advised, file any Reply thereto within 21 days thereafter.
This structure ensures that the Defendants have sufficient time to respond to the new claims while maintaining the momentum of the litigation.
What was the final disposition of the application and how did the court allocate the costs between the parties?
The court granted the Claimant permission to amend the Particulars of Claim in the form presented. Regarding costs, the court applied a bifurcated approach. While the Claimant remains responsible for the costs of and occasioned by the amendment itself, the court penalized the First Defendant for unreasonable opposition to the application.
The court ordered:
The First Defendant shall pay the costs of the Application for Permission to Amend, to be
the subject of assessment by the Registrar if not agreed.
This decision reflects the court's finding that the opposition was unnecessary and that the Claimant would have been entitled to the amendment regardless of the Defendants' stance.
What are the wider implications of this ruling for practitioners dealing with amendments to pleadings in the DIFC Court of First Instance?
This case reinforces the principle that the DIFC Courts will generally favor the amendment of pleadings provided there is no prejudice that cannot be cured by a costs order. Practitioners should note that unreasonable opposition to an amendment application—where the amendment is coherent and supported by the existing facts—may result in the opposing party being ordered to pay the costs of the application, even if they are not responsible for the costs of the amendment itself. The ruling also highlights the court's willingness to allow the inclusion of statutory claims, such as those under the DIFC Companies Law, when they are clearly derived from the factual narrative already established in the pleadings.
Where can I read the full judgment in Zuzana Kapova v Miloslav Makovini [2024] DIFC CFI 004?
The full order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0042023-zuzana-kapova-v-1-miloslav-makovini-2-pharm-trade-holding-ltd-9 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-004-2023_20240807.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | N/A |
Legislation referenced:
- DIFC Companies Law, Article 149