This order clarifies the strict limitations of the Part 8 procedure in the DIFC Courts, confirming that applications for disclosure and specific performance cannot be determined on the papers when the underlying employment relationship and jurisdictional basis are subject to substantial factual contest.
Why did Ahmed Majed Mohamad Lutfi Kabbara initiate a Part 8 claim against EFG-Hermes UAE Limited regarding his termination?
The Claimant, Ahmed Majed Mohamad Lutfi Kabbara, sought to utilize the Part 8 procedure of the Rules of the DIFC Courts (RDC) to compel his former employer, EFG-Hermes UAE Limited, to provide specific documentation and a formal written statement regarding his dismissal. The dispute arose following a meeting on 25 September 2016, where the Claimant was notified of his termination. The Claimant argued that he was entitled to a written explanation for his dismissal under the DIFC Employment Law, asserting that his employment had been effectively relocated to the DIFC office in 2014.
The Claimant’s strategy was to secure these documents as a precursor to a broader legal battle. As noted in the court’s findings:
The Claimant intends to issue a separate claim under RDC Part 7 in relation to his entitlements arising out of and in connection with the termination of his employment.
The Claimant’s frustration stemmed from a series of failed attempts to obtain clarity on his status. According to the court record:
It was by an email dated 16 October at 16:41 that the Claimant specifically requested ‘a written notice of termination...including the reason for dismissal’.
The Claimant viewed the provision of these documents as a ministerial requirement, whereas the Defendant maintained that the employment relationship was governed by Saudi Arabian law, thereby denying the Claimant’s entitlement to the requested disclosures.
Which judge presided over the CFI 011/2017 application and in which division was it heard?
The application was heard by Justice Tun Zaki Azmi sitting in the DIFC Court of First Instance. The order was issued on 12 April 2017.
What were the respective legal positions of Ahmed Majed Mohamad Lutfi Kabbara and EFG-Hermes UAE Limited?
The Claimant argued that his employment was governed by DIFC law, citing his relocation to Dubai in 2014 as the trigger for the application of DIFC employment protections. He contended that the Defendant’s failure to provide a written reason for his dismissal was a breach of his rights, and that the court should order the disclosure of these reasons and related documents summarily under Part 8. He further alleged that the Defendant had improperly conditioned the transfer of his residency visa upon his signing a waiver of his end-of-service entitlements.
Conversely, the Defendant, represented by Gibson, Dunn and Crutcher LLP, argued that the employment relationship was governed by the laws of the Kingdom of Saudi Arabia (KSA). They maintained that the Claimant was not entitled to the requested written statement under DIFC law because the employment contract did not fall under the DIFC jurisdiction in the manner the Claimant suggested. Furthermore, the Defendant argued that the visa transfer process was subject to the Claimant signing a certification of dues received, a standard practice they defended as lawful. The Defendant’s solicitors emphasized that the existence of these conflicting factual narratives—specifically regarding the governing law and the nature of the termination—precluded the use of the summary Part 8 procedure.
What was the specific doctrinal question Justice Tun Zaki Azmi had to resolve regarding the use of RDC Part 8?
The court was required to determine whether the Claimant’s application for disclosure and a written statement of reasons met the threshold for a Part 8 claim. The doctrinal issue was whether the RDC Part 8 procedure, which is intended for claims where there is no substantial dispute of fact, could be invoked when the parties fundamentally disagreed on the governing law of the employment contract and the circumstances of the termination. The court had to decide if it could adjudicate these issues "on the papers" without a full trial or if the existence of "substantial disputes of fact" necessitated a transition to the standard Part 7 litigation process.
How did Justice Tun Zaki Azmi apply the test for determining whether a Part 8 claim is appropriate?
Justice Tun Zaki Azmi applied a strict threshold test, emphasizing that the court must evaluate the likelihood of factual contention before granting relief under Part 8. The judge reasoned that the complexity of the employment relationship, including the dispute over whether the Claimant was employed by the KSA entity or the DIFC entity, created a factual matrix that could not be resolved through a summary application.
The judge’s reasoning was anchored in the procedural limitations of the RDC:
I have to decide whether there is likely to be a substantial dispute of facts. If there is then an Order under Part 8 cannot be made.
The judge observed that the Claimant’s own Particulars of Claim highlighted the ambiguity of his employment status, noting that he used the term "relocated to Dubai" rather than asserting a clear, undisputed DIFC employment contract. Because the Defendant’s evidence—provided by the Head of Human Resources—directly contradicted the Claimant’s assertions regarding the governing law and the nature of the termination, the court concluded that the matter was unsuitable for summary determination.
Which DIFC laws and RDC rules were central to the court’s decision?
The court primarily referenced the DIFC Employment Law, which was the source of the Claimant’s alleged right to a written statement of reasons for dismissal. Procedurally, the court relied on Part 8 of the Rules of the DIFC Courts (RDC), which governs claims that are unlikely to involve a substantial dispute of fact. The court also contrasted this with Part 7 of the RDC, which is the appropriate vehicle for standard claims where facts are contested.
How did the court utilize the evidence presented regarding the visa and termination disputes?
The court used the evidence of the visa transfer dispute to illustrate the depth of the factual disagreement between the parties. The court noted that the parties were at odds over the conditions of the visa transfer and the legal basis for the Claimant’s entitlements. As the court observed:
There was also a dispute as to whether the Claimant’s visa was transferred to “NewCo” (para 32 of the Particulars of Claim).
The court also highlighted the Defendant’s stance on the visa transfer:
The Defendant’s solicitors also claimed that the Claimant was required to sign a certification that he had received all of his dues before the visa could be transferred.
These factual disputes were used by the court to demonstrate that the case was not a simple matter of document production, but rather a complex employment dispute that required a full evidentiary hearing.
What was the final outcome and the specific relief ordered by the court?
The court dismissed the Claimant’s application to determine the claim on the papers. Justice Tun Zaki Azmi ordered that the matter be fixed for a hearing inter partes before a judge, allowing both sides to present their arguments in a full adversarial setting. The Claimant was ordered to pay the Defendant’s costs, to be assessed if not agreed upon by the parties.
How does this case change the practice for employment litigation in the DIFC?
This case serves as a cautionary precedent for practitioners attempting to use Part 8 of the RDC to "fast-track" employment disputes. It confirms that where an employer contests the jurisdictional basis of the employment contract (e.g., KSA vs. DIFC law) or the circumstances of termination, the court will refuse to grant summary relief. Practitioners must anticipate that any attempt to bypass the standard Part 7 litigation process will be met with resistance if the underlying facts are not straightforward. Litigants are now on notice that they must be prepared to proceed via the standard litigation path if there is any material disagreement regarding the governing law or the facts of the employment relationship.
Where can I read the full judgment in Ahmed Majed Mohamad Lutfi Kabbara v EFG-Hermes UAE Limited [2017] DIFC CFI 011?
The full judgment is available on the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0112017-ahmed-majed-mohamad-lutfi-kabbara-v-efg-hermes-uae-limited
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No specific case law precedents were cited in the text of this order. |
Legislation referenced:
- DIFC Employment Law
- Rules of the DIFC Courts (RDC): Part 7, Part 8