The DIFC Court of First Instance clarifies the threshold for alternative service, emphasizing that publication remains a viable, albeit last-resort, mechanism when traditional electronic service is deemed insufficient or inappropriate for the respondent.
Why did Berger Paints Emirates Ltd Co. seek an order for alternative service against Arabtec Construction in CFI 021/2021?
The dispute arises from a procedural impasse regarding the commencement of proceedings by Berger Paints Emirates Ltd Co. against Arabtec Construction. Faced with the inability to effect service through standard channels, the Claimant filed Application No. CFI-021-2021/1 on 10 March 2021. The Claimant sought judicial intervention to bypass standard service requirements, requesting permission to serve the Claim Form either via email or through the alternative method of public notice. This application was necessitated by the practical difficulties in locating or engaging the Defendant, Arabtec Construction, to ensure the litigation could proceed in the Court of First Instance.
The court’s decision to grant the request for publication while denying the request for email service highlights the court's cautious approach to ensuring that the Defendant receives actual notice of the proceedings. As noted in the court's order:
The Claimant shall be permitted to serve the Claim Form by publication, once in an English language newspaper and once in an Arabic language newspaper.
This order serves as a critical procedural step, allowing the Claimant to move forward with the litigation despite the Defendant's apparent unavailability for standard service.
Which judge presided over the application for alternative service in Berger Paints Emirates Ltd Co. v Arabtec Construction?
The application was heard and determined by H.E. Justice Nassir Al Nasser, sitting in the Court of First Instance of the Dubai International Financial Centre Courts. The order was issued on 15 March 2021, following the Claimant’s application dated 10 March 2021. The proceedings were handled administratively through the eRegistry, with the final order issued by Deputy Registrar Ayesha Bin Kalban.
What specific arguments did Berger Paints Emirates Ltd Co. advance to justify alternative service under RDC 9.36?
Berger Paints Emirates Ltd Co. argued that the standard methods of service were ineffective or impracticable, thereby necessitating the court's exercise of its discretion under the Rules of the DIFC Courts (RDC). The Claimant specifically requested two distinct methods of alternative service: electronic service via email and service by publication in local newspapers. The Claimant’s position was predicated on the need to satisfy the court that the Defendant would be adequately notified of the claim, even if traditional physical service could not be achieved. By invoking RDC 9.36, the Claimant sought to demonstrate that the court had the requisite authority to prescribe a method of service that would bring the proceedings to the attention of the Defendant, Arabtec Construction, in a manner consistent with the principles of natural justice and procedural fairness.
What was the precise legal question H.E. Justice Nassir Al Nasser had to resolve regarding the methods of service?
The court was tasked with determining whether the Claimant had satisfied the requirements for alternative service under the RDC and, if so, which specific methods were appropriate in the circumstances. The primary legal issue was whether the court should grant the Claimant’s request for service by email, or whether the circumstances warranted the more formal, public-facing method of service by publication. The court had to balance the Claimant’s need to progress the litigation against the requirement that the Defendant be properly served, ensuring that the chosen method of service was reasonably likely to bring the Claim Form to the Defendant's attention.
How did H.E. Justice Nassir Al Nasser apply the test for alternative service under RDC 9.31 to 9.33?
In reaching the decision, the court reviewed the Claimant’s application against the framework provided by RDC 9.31, 9.32, 9.33, and 9.36. The court exercised its discretion to permit service by publication, effectively determining that this method was the most appropriate way to ensure the Defendant was notified of the claim. However, the court exercised a restrictive approach regarding the request for email service, ultimately rejecting it. This indicates that the court requires a high degree of certainty that the chosen method of service will be effective. The court’s reasoning focused on the procedural necessity of the Claimant fulfilling its obligations to notify the Defendant, as evidenced by the requirement to file proof of the publication:
The Claimant shall file a Certificate of Service along with copies of the English and Arabic newspapers via the eRegistry.
By mandating the filing of a Certificate of Service, the court ensured that the record would clearly demonstrate that the alternative service had been executed in accordance with the court's specific instructions.
Which specific RDC rules govern the court's power to order alternative service in CFI 021/2021?
The court’s authority to grant the application was derived from RDC 9.31, 9.32, 9.33, and 9.36. These rules collectively provide the procedural mechanism for the court to permit service by a method not otherwise specified in the RDC. Specifically, RDC 9.36 allows the court to order that steps be taken to bring the claim form to the notice of the defendant by an alternative method. The court’s reliance on these rules underscores the flexibility afforded to the DIFC Courts in managing procedural hurdles, provided that the overriding objective of the RDC—to deal with cases justly—is maintained.
How does the rejection of email service in this case inform the interpretation of RDC 9.36?
The rejection of the request for email service in Berger Paints Emirates Ltd Co. v Arabtec Construction serves as a cautionary note for practitioners. While RDC 9.36 provides the court with broad discretion to authorize alternative service, the court will not automatically grant every requested method. The court’s decision suggests that where a party seeks multiple methods of alternative service, the court will scrutinize each method for its reliability. By rejecting the email service request while permitting publication, the court signaled that it may prefer traditional, albeit alternative, methods like public notice over electronic methods if the latter are not sufficiently proven to be effective for the specific respondent in question.
What was the final outcome and the specific orders made by the court regarding service and costs?
The court granted the application in part. The primary order permitted the Claimant to serve the Claim Form by publication in one English language newspaper and one Arabic language newspaper. The court explicitly rejected the request for service by email. Furthermore, the court ordered that the costs of the application be "costs in the case," meaning that the ultimate liability for these costs will be determined at the conclusion of the substantive proceedings. The Claimant was also directed to file a Certificate of Service along with the physical copies of the newspapers to the eRegistry to finalize the service process.
What are the practical implications for litigants seeking alternative service in the DIFC?
Practitioners must anticipate that the DIFC Court will require a robust justification for any requested method of alternative service. This case demonstrates that even when a party is struggling to serve a defendant, the court will not grant a "blanket" approval for all requested methods. Litigants should be prepared to provide evidence as to why a particular method, such as email, is likely to be effective, and why other methods, such as publication, are necessary. The requirement to file a Certificate of Service and copies of the newspapers emphasizes the importance of strict compliance with the court’s procedural orders to avoid delays in the litigation timeline.
Where can I read the full judgment in Berger Paints Emirates Ltd Co. v Arabtec Construction [2021] DIFC CFI 021?
The full text of the order can be accessed via the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-021-2021-berger-paints-emirates-ltd-co-llc-v-arabtec-construction-llc-1 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-021-2021_20210515.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | N/A |
Legislation referenced:
- Rules of the DIFC Courts (RDC): 9.31, 9.32, 9.33, 9.36