Why did Expresso Telecom Group seek to strike out the Amended Particulars of Claim in CFI 015/2019?
The dispute between Musaab Tag Elsir Abdelsalam and Expresso Telecom Group Ltd has been characterized by a protracted procedural history involving multiple iterations of the Claimant’s Particulars of Claim. Following the Court of Appeal’s judgment in CA-011-2021, which permitted the Claimant to amend his pleadings to invoke the 2005 Employment Law, the Claimant filed his fifth version of the Particulars of Claim (POC 5) on 1 February 2022. Expresso Telecom Group contended that this filing failed to adhere to the specific directions issued by the Court of Appeal and remained in breach of the Rules of the DIFC Courts (RDC).
The Defendant argued that the Claimant’s persistent failure to align his pleadings with the appellate court’s requirements necessitated a strike-out of the claim. This application, filed on 23 February 2022, sought to terminate the litigation on the basis that the Claimant had failed to rectify the deficiencies identified by the Registry and the Court of Appeal. As noted in the formal order:
The Application is rejected.
The court’s decision to reject the strike-out application reflects a preference for procedural rectification over the terminal sanction of striking out, provided the Claimant adheres to the court’s specific mandates moving forward. Further background on the procedural evolution of this case can be found in the MUSAAB TAG ELSIR ABDELSALAM v EXPRESSO TELECOM GROUP [2019] DIFC CFI 015 — Procedural adjournment pending immediate judgment (24 July 2019).
Which judge presided over the strike-out application in the DIFC Court of First Instance on 6 April 2022?
The application was heard and determined by H.E. Justice Nassir Al Nasser in the DIFC Court of First Instance. The order was issued on 6 April 2022, following a review of the Defendant’s application, the Claimant’s evidence in answer dated 17 March 2022, and the Defendant’s reply evidence dated 23 March 2022.
What specific legal arguments did Expresso Telecom Group present regarding the Claimant’s non-compliance with the Court of Appeal’s judgment?
Expresso Telecom Group argued that the Claimant’s fifth iteration of the Particulars of Claim (POC 5) was fundamentally non-compliant with the directions provided by the Court of Appeal in CA-011-2021. The Defendant maintained that the Claimant had been given multiple opportunities to amend his pleadings—including previous iterations POC 2, POC 3, and POC 4—and that the continued failure to follow the court’s specific instructions constituted an abuse of process or, at minimum, a failure to comply with the RDC.
The Defendant further emphasized the Claimant’s failure to satisfy outstanding costs orders previously granted by the Court of First Instance and the Court of Appeal. By filing the application to strike out, the Defendant sought to enforce the finality of the appellate court’s directions, asserting that the Claimant’s inability to properly draft his pleadings in accordance with the 2005 Employment Law rendered the claim unsustainable. The Defendant’s position was that the court should exercise its power under the RDC to strike out the claim due to the Claimant's persistent disregard for procedural orders.
What was the precise doctrinal issue the Court of First Instance had to resolve regarding the Claimant’s pleadings?
The court was tasked with determining whether the Claimant’s failure to align his pleadings with the Court of Appeal’s judgment in CA-011-2021 warranted the extreme sanction of striking out the claim under Part 18 of the RDC. The doctrinal issue centered on the balance between the court’s duty to ensure procedural compliance and the principle of allowing a litigant to pursue a claim on its merits, provided the pleadings are brought into conformity with the law. The court had to decide if the Claimant’s non-compliance was so egregious that it necessitated the dismissal of the action, or if the interests of justice were better served by compelling the Claimant to amend the pleadings to meet the specific requirements previously set out by the appellate bench.
How did H.E. Justice Nassir Al Nasser apply the test for procedural compliance in this order?
H.E. Justice Nassir Al Nasser adopted a corrective approach rather than a punitive one. By rejecting the strike-out application, the court signaled that the Claimant’s errors were remediable. The judge focused on the necessity of strict adherence to the Court of Appeal’s previous directions, effectively placing the Claimant on a final notice to rectify the pleadings. The reasoning focused on the specific requirements for the Claimant to align his case with the 2005 Employment Law as permitted by the appellate judgment. As stated in the order:
The Claimant shall comply with the Judgment of CA-011-2021 dated 20 December 2021 on the following:
(a) The Amended Particulars of Claim filed on 1 February 2022 shall be amended pursuant to the direction of the Court of Appeal.
This reasoning ensures that the litigation proceeds only if the Claimant satisfies the procedural hurdles established by the higher court. The judge also addressed the outstanding financial obligations of the Claimant, reinforcing that procedural compliance is not limited to the drafting of pleadings but also includes the fulfillment of cost orders.
Which specific RDC rules and legislative provisions were central to the court’s decision?
The primary procedural framework cited in the application was Part 18 of the Rules of the DIFC Courts (RDC), which governs the court’s power to strike out statements of case that are non-compliant or disclose no reasonable grounds for bringing a claim. Additionally, the court relied heavily on the substantive provisions of the 2005 Employment Law, which the Court of Appeal had previously identified as the correct legal basis for the Claimant’s action in CA-011-2021. The court’s order was explicitly framed to enforce the directions issued in the appellate judgment, which served as the governing authority for the permissible scope of the Claimant’s amendments.
How did the Court of Appeal’s judgment in CA-011-2021 influence the current order?
The Court of Appeal’s judgment in CA-011-2021 acted as the foundational authority for the current proceedings. It provided the Claimant with the specific scope for his amendments—namely, the invocation of the 2005 Employment Law—while simultaneously confirming that the costs orders from the Court of First Instance remained in effect. H.E. Justice Nassir Al Nasser utilized this judgment as the benchmark for compliance. The court’s order effectively incorporated the appellate directions by reference, mandating that the Claimant must now bring his POC 5 into alignment with those specific instructions to avoid future strike-out risks.
What was the final disposition of the application and the court’s order regarding costs?
The court rejected the Defendant’s application to strike out the claim. However, the court did not grant the Claimant unconditional leave to proceed. Instead, it issued a mandatory order requiring the Claimant to amend the Particulars of Claim filed on 1 February 2022 to comply with the Court of Appeal’s directions. Furthermore, the court explicitly ordered the Claimant to satisfy the outstanding cost directions. Regarding the costs of the current application, the court ordered that they be "costs in the case," meaning the ultimate liability for these costs will be determined at the conclusion of the trial. As noted in the order:
(b) The Claimant shall comply with the cost directions directed by the Courts of Appeal.
What are the wider implications for practitioners regarding employment claims in the DIFC?
This case serves as a reminder of the DIFC Courts' emphasis on procedural discipline, particularly when a claimant has been granted multiple opportunities to amend pleadings. Practitioners must note that while the court may be reluctant to strike out a claim entirely, it will impose strict, mandatory conditions to ensure compliance with appellate directions. The case underscores that failure to satisfy cost orders and procedural mandates can lead to repeated applications and judicial intervention. Litigants must anticipate that the court will prioritize the integrity of its own directions and the Court of Appeal’s rulings over the convenience of the parties. For further context on the court's approach to procedural flexibility, see MUSAAB TAG ELSIR ABDELSALAM v EXPRESSO TELECOM GROUP [2020] DIFC CFI 015 — Procedural flexibility in employment claims (15 March 2020).
Where can I read the full judgment in Musaab Tag Elsir Abdelsalam v Expresso Telecom Group Ltd [2022] DIFC CFI 015?
The full text of the order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-015-2019-musaab-tag-elsir-abdelsalam-v-expresso-telecom-group-ltd or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-015-2019_20220406.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Musaab Tag Elsir Abdelsalam v Expresso Telecom Group | CA-011-2021 | Provided the governing directions for the amendment of the Particulars of Claim and costs. |
Legislation referenced:
- 2005 Employment Law
- Part 18 of the Rules of the DIFC Courts (RDC)