LARMAG HOLDING B.V. v FIRST ABU DHABI BANK [2021] DIFC CFI 054 — Alternative service via email (01 July 2021)

This amended order addresses the procedural necessity of establishing a valid method of service for the Third Defendant, Mr. Abdulla Saeed Bakheet Obaid Aljaberi, following the withdrawal of his legal representation in the ongoing litigation.

Why did Larmag Holding B.V. seek an order for alternative service against Mr. Abdulla Saeed Bakheet Obaid Aljaberi in CFI 054/2019?

The litigation involves a complex dispute between the Claimant, Larmag Holding B.V., and multiple defendants, including First Abu Dhabi Bank PJSC, FAB Securities LLC, and the Third Defendant, Mr. Abdulla Saeed Bakheet Obaid Aljaberi. The core of the dispute centers on the Claimant’s efforts to progress the proceedings against the Third Defendant, which were stalled due to a breakdown in the attorney-client relationship between the Third Defendant and his former legal counsel, Bird & Bird (MEA) LLP.

Following the formal withdrawal of Bird & Bird (MEA) LLP as the Third Defendant's legal representatives, the Court required the Third Defendant to provide a new address for service. The Third Defendant’s failure to comply with this requirement created a procedural impasse, preventing the Claimant from effectively serving documents and moving the case forward. Consequently, the Claimant filed a without-notice application to utilize alternative service methods, specifically requesting permission to serve all future documents via email to a known address, elitehold@yahoo.com.

Any party affected by this Order has the right to make an application to set aside or vary this Order, under RDC 23.94, within 14 days from the date of this Order.

Which judge presided over the amended order in Larmag Holding B.V. v First Abu Dhabi Bank on 01 July 2021?

H.E. Justice Maha Al Mheiri presided over this matter in the DIFC Court of First Instance. The amended order was issued on 01 July 2021, following an initial order dated 17 June 2021, to resolve the ongoing procedural challenges regarding the service of documents on the Third Defendant.

What arguments did Clyde & Co LLP advance on behalf of Larmag Holding B.V. regarding the Third Defendant’s address for service?

Clyde & Co LLP, acting for the Claimant, Larmag Holding B.V., argued that the Third Defendant had failed to fulfill his obligations under the Rules of the DIFC Courts (RDC) to provide a valid address for service after his previous legal representatives ceased to act. The Claimant emphasized that the Third Defendant had been given ample opportunity to provide updated contact details following the 17 June 2021 order, which mandated that Bird & Bird (MEA) LLP provide the Registry with the Third Defendant's contact information.

The Claimant’s position was that the email address elitehold@yahoo.com was a viable and appropriate channel for service, given the lack of cooperation from the Third Defendant. By filing the application on 24 June 2021, the Claimant sought to ensure that the proceedings were not indefinitely delayed by the Third Defendant’s non-responsiveness, asserting that service via this email address would satisfy the requirements of justice and procedural efficiency.

What was the specific procedural question H.E. Justice Maha Al Mheiri had to resolve regarding RDC 9.31?

The Court was tasked with determining whether it was appropriate to grant permission for alternative service under RDC 9.31, given the Third Defendant's failure to provide a physical address for service as required by RDC 37.17. The legal question was whether the Court could authorize service via email to a specific address when the defendant had become unresponsive and failed to appoint new legal representation, thereby ensuring the Claimant’s right to proceed with the litigation without further obstruction.

How did H.E. Justice Maha Al Mheiri apply the test for alternative service in the absence of a registered address?

H.E. Justice Maha Al Mheiri exercised the Court’s discretion to facilitate the progress of the case by permitting service via email. The reasoning was predicated on the fact that the Third Defendant had been afforded sufficient opportunity to provide a new address for service but had failed to do so. By invoking RDC 9.31, the Court determined that the email address elitehold@yahoo.com was a sufficient and effective means of ensuring the Third Defendant received notice of the proceedings.

Furthermore, the Court validated previous attempts at service, specifically deeming the Claimant’s document entitled “Submissions on Further Evidence from the First and Second Defendants” to have been validly served on the Third Defendant via the same email address on 23 June 2021. This approach ensured that the litigation could continue without prejudice to the Claimant, while still providing the Third Defendant with the opportunity to challenge the order.

Any party affected by this Order has the right to make an application to set aside or vary this Order, under RDC 23.94, within 14 days from the date of this Order.

Which specific RDC rules were cited by the Court in the amended order for CFI 054/2019?

The Court relied on several key provisions of the Rules of the DIFC Courts (RDC) to formalize the service process:

• RDC 9.31: This rule provided the primary authority for the Court to permit service by an alternative method, in this case, email, when standard service was not feasible due to the Third Defendant's failure to provide an address.
• RDC 37.17: This rule was cited to highlight the Third Defendant’s failure to provide a new address for service after his legal representatives ceased to act, which triggered the need for the Claimant’s application.
• RDC 23.94: This rule was referenced to protect the rights of the affected parties, granting them the ability to apply to set aside or vary the Court’s order within a 14-day window.

What was the disposition of the application filed by Larmag Holding B.V. on 24 June 2021?

The Court granted the Claimant’s application in its entirety. The specific orders made by H.E. Justice Maha Al Mheiri were as follows:

1. The Claimant was granted permission to serve all future orders and documents on the Third Defendant via email at elitehold@yahoo.com.
2. The Claimant’s “Submissions on Further Evidence from the First and Second Defendants” (dated 23 June 2021) were deemed validly served on the Third Defendant as of 23 June 2021 at 14:47.
3. Any party affected by the order was granted the right to apply to set aside or vary the order under RDC 23.94 within 14 days.
4. Costs were awarded as "costs in the case," meaning the final liability for these costs will be determined at the conclusion of the proceedings.

What are the wider implications for DIFC practitioners regarding service on unrepresented defendants?

This order reinforces the DIFC Court’s proactive stance in managing litigation where a party becomes unresponsive or fails to maintain a valid address for service. Practitioners should note that the Court will not allow a defendant to stall proceedings simply by withdrawing legal representation and failing to provide a new address.

The reliance on RDC 9.31 to authorize email service demonstrates that the Court prioritizes the efficient administration of justice over rigid adherence to traditional service methods when those methods are frustrated by a party's non-compliance. Litigants should be prepared to demonstrate that they have exhausted reasonable efforts to locate the defendant before seeking such orders, but they can be confident that the Court will provide a procedural pathway to continue the case if the defendant remains uncooperative.

Where can I read the full judgment in Larmag Holding B.V. v First Abu Dhabi Bank [2021] DIFC CFI 054?

The full text of the Amended Order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-054-2019-larmag-holding-bv-v-1-first-abu-dhabi-bank-pjsc-2-fab-securities-llc-3-mr-abdulla-saeed-bakheet-obaid-aljaberi-4-mr-3

The document is also available via the following CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-054-2019_20210701.txt

Cases referred to in this judgment:

Legislation referenced:

• RDC 9.31 (Alternative Service)
• RDC 37.17 (Address for Service)
• RDC 23.94 (Setting aside or varying an order)