This clarificatory order addresses the procedural status of a substantive application for permission to appeal that was filed out of time, following the court's refusal to grant the necessary extension of time.
What was the specific procedural dispute between Larmag Holding and the Third Defendant, Mr Abdullah Saeed Bakheet Obaid Aljaberi, in CFI 054/2019?
The dispute concerns the procedural aftermath of a failed attempt by the Third Defendant (D3) to challenge a judgment delivered on 15 August 2021. Larmag Holding B.V. had successfully navigated the litigation against multiple respondents, including First Abu Dhabi Bank PJSC and Mr Abdullah Saeed Bakheet Obaid Aljaberi. Following the adverse judgment, D3 filed an application for permission to appeal on 6 September 2021. However, this application was filed out of time, necessitating a subsequent application for an extension of time, which was filed on 9 September 2021.
The court was tasked with clarifying the status of the substantive application for permission to appeal once the request for an extension of time was formally denied. The court emphasized that the procedural life of the appeal application was entirely contingent upon the success of the extension request. As the extension was refused, the court moved to formally declare the status of the pending application to prevent any ambiguity regarding the finality of the proceedings. As noted by the Registrar:
It follows that it is beyond any reasonable argument that the effect of the order dated 19 August 2022 is to leave the application dated 6 September 2021 legally dead in the water.
Which judge presided over the issuance of the Clarificatory Order in Larmag Holding v First Abu Dhabi Bank on 25 August 2022?
The Clarificatory Order was issued by Registrar Nour Hineidi of the DIFC Courts, Court of First Instance. The order was issued on 25 August 2022, following the substantive refusal of the extension of time application that had been determined by the court on 19 August 2022.
What were the specific arguments advanced by the Third Defendant regarding the jurisdictional basis of the appeal in CFI 054/2019?
The Third Defendant, Mr Abdullah Saeed Bakheet Obaid Aljaberi, sought to challenge the judgment of 15 August 2021 primarily on the basis of a jurisdictional challenge. D3 argued that the DIFC Court lacked the requisite jurisdiction to hear and determine the claims brought by Larmag Holding B.V. against him. This jurisdictional argument served as the sole ground for his application for permission to appeal.
The court noted that this specific argument was central to both the out-of-time application for permission to appeal and the subsequent application for an extension of time. By grounding the entire appeal on the assertion that the court lacked jurisdiction, D3 attempted to bypass the procedural hurdles associated with filing out of time. However, the court found this argument to be substantively deficient, ultimately determining that the jurisdictional challenge lacked a "good prospect of success," which is a mandatory threshold for granting permission to appeal under the Rules of the DIFC Courts (RDC).
What was the precise legal question the court had to answer regarding the status of an out-of-time application for permission to appeal?
The court was required to determine the legal effect of an order refusing an extension of time on a substantive application for permission to appeal that had been filed out of time. Specifically, the court had to decide whether the substantive application remained "alive" or pending in any capacity once the procedural gateway—the extension of time—was closed.
The doctrinal issue centered on the procedural finality of the litigation. The court had to clarify whether a party could maintain a substantive appeal application if the prerequisite procedural application (the extension of time) had been denied. The court’s inquiry was focused on ensuring that there was no ambiguity regarding the termination of the appeal process, effectively confirming that the refusal of the extension of time rendered the underlying application for permission to appeal legally void.
How did Registrar Nour Hineidi apply the test for permission to appeal to the Third Defendant’s jurisdictional argument?
Registrar Nour Hineidi applied the standard set out in RDC 44.19, which requires an applicant to demonstrate a "good prospect of success" for an appeal to be granted. The court examined the Third Defendant's sole ground of appeal—lack of jurisdiction—and determined that it was "hopeless." Because the underlying ground for the appeal failed to meet the threshold of having a good prospect of success, the court concluded that there was no compelling reason to grant the extension of time.
The reasoning process was binary: if the extension is denied, the out-of-time application cannot proceed. The Registrar clarified the causal link between the refusal of the extension and the expiration of the appeal application:
It follows that it is beyond any reasonable argument that, if an extension of time were not granted for the appeal for which the application dated 6 September 2021 sought permission, the application dated 6 April 2021 would cease to be of any legal effect.
The court further noted that the failure to satisfy RDC 44.19 meant that the application for permission to appeal was effectively extinguished by the refusal of the extension request.
Which specific RDC rules and legal standards were applied by the court in determining the fate of the appeal application?
The court primarily relied on RDC 44.19, which governs the criteria for granting permission to appeal. Under this rule, the court must be satisfied that the appeal has a "real prospect of success" or that there is "some other compelling reason" for the appeal to be heard.
The court also considered the procedural implications of filing an application out of time. By acknowledging that the Third Defendant had admitted the application was out of time, the court applied the standard procedural requirement that an extension of time must be granted before the court can even consider the merits of the appeal application. The failure to meet the RDC 44.19 threshold for the extension of time rendered the entire appeal process moot.
How did the court use the principle of "hopeless" grounds of appeal to justify the refusal of the extension of time?
The court utilized the "hopeless" characterization to dismiss the Third Defendant's jurisdictional argument. By determining that the ground of appeal was incapable of meeting the "good prospect of success" requirement, the court effectively closed the door on the extension request. The court’s reasoning was that if the substantive appeal itself is meritless, there is no procedural justification for granting an extension of time to file it.
The court explicitly stated:
The main reason for refusing the application dated 9 September 2021 was that the ground of the appeal for which an extension of time was being sought was hopeless and therefore incapable of being found to have a good prospect of success as required by RDC 44.19.
This approach ensures that the court does not waste judicial resources on appeals that are procedurally flawed and substantively meritless.
What was the final disposition of the application dated 6 September 2021?
The court ordered that the application dated 6 September 2021, which sought permission to appeal the judgment of 15 August 2021, has "ceased to have any legal effect." This was a formal declaration intended to remove any doubt regarding the status of the litigation. The court confirmed that the legal effect of the previous order dated 19 August 2022 (which refused the extension of time) was to render the substantive application for permission to appeal "legally dead in the water." No monetary relief or costs were addressed in this specific clarificatory order, as it was limited to the procedural status of the application.
What is the wider implication of this ruling for litigants seeking to appeal DIFC Court judgments out of time?
This order reinforces the strict procedural discipline required in the DIFC Courts. Litigants must recognize that an application for permission to appeal filed out of time is inherently fragile. If the court refuses the necessary extension of time—particularly on the basis that the underlying appeal grounds are "hopeless"—the substantive application for permission to appeal is not merely suspended; it is rendered legally void.
Practitioners should anticipate that the DIFC Courts will not tolerate "dead" applications lingering on the docket. This ruling serves as a reminder that the "good prospect of success" test under RDC 44.19 is a rigorous gatekeeper. Litigants who fail to meet this threshold, especially when already in breach of time limits, face the immediate and final termination of their appellate rights.
Where can I read the full judgment in Larmag Holding B.V. v First Abu Dhabi Bank PJSC [CFI 054/2019]?
The full Clarificatory 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-abdullah-saeed-bakheet-obaid-aljaberi-4-m
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external case precedents were cited in this specific Clarificatory Order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) 44.19