This order addresses the procedural requirements for amending pleadings in the DIFC Court of First Instance when a claim has evolved due to a partial settlement.
What was the nature of the dispute in CFI 057/2021 that necessitated the Claimant’s application to amend the particulars of claim?
The litigation, initiated on 30 May 2021, originally involved the Claimant, Khaled Salem Musabeh Humaid Almheiri, pursuing claims against two defendants: Mohammed Ezelddine El Araj and John Cameron. The procedural landscape of the case shifted significantly following a settlement reached between the Claimant and the First Defendant. Consequently, the Claimant sought to update the particulars of claim to reflect the current status of the proceedings.
The Claimant’s request for amendment was formalized through Application No. CFI-057-2021/8, filed on 3 March 2023. The necessity for this amendment arose from the need to align the pleadings with the altered factual and legal reality of the case after the First Defendant was no longer a party to the active dispute. As noted in the court's reasoning:
On the basis that the claim and particulars of claim were originally filed on 30 May 2021 and given the recent developments in this case wherein the Claimant settled the claim against the First Defendant, I find that that the proposed amendments are expected at this stage of the proceedings.
The full judgment can be accessed via the DIFC Courts website: CFI 057/2021.
Which judicial officer presided over the application to amend pleadings in CFI 057/2021?
The application was heard and determined by Judicial Officer Maitha Alshehhi in the DIFC Court of First Instance. The order was issued on 5 April 2023, following a review of the Claimant’s application dated 3 March 2023, the Second Defendant’s evidence in answer dated 17 March 2023, and the Claimant’s reply evidence dated 24 March 2023.
What specific legal arguments did the Claimant and the Second Defendant advance regarding the proposed amendments?
The Claimant argued that the proposed amendments were necessary and would not cause prejudice to the Second Defendant, John Cameron, primarily because the Second Defendant had not yet filed a defence. The Claimant had initially bypassed seeking the Second Defendant’s consent, opting instead to move directly to the Court for permission. As the record states:
The Claimant did not seek the Second Defendant’s approval on the amendment and therefore proceeded to file an application seeking such relief.
Conversely, the Second Defendant opposed the application, contending that the draft amendments were "materially deficient." The Second Defendant argued that the amendments lacked the necessary particularisation required for him to formulate a proper defence. The Claimant countered this by emphasizing the lack of prejudice:
The Claimant submits that the Second Defendant would not be prejudiced by the proposed amendments on the basis that he did not file a defence yet.
What was the precise jurisdictional and procedural question the Court had to answer regarding RDC 18.2(2)?
The Court was tasked with determining whether, under the Rules of the DIFC Courts (RDC), it should grant permission to amend pleadings when the opposing party objects on the grounds of deficiency, but has not yet filed a defence. The core issue was whether the procedural stage of the litigation—specifically the absence of a filed defence—outweighed the Second Defendant’s concerns regarding the clarity and sufficiency of the amended particulars.
How did Judicial Officer Maitha Alshehhi apply the test for granting amendments under the RDC?
Judicial Officer Alshehhi focused on the procedural posture of the case. By evaluating the timeline of the litigation and the fact that the Second Defendant had not yet reached the stage of filing a defence, the Court determined that the amendments were a natural consequence of the settlement with the First Defendant. The Court prioritized the flexibility of the RDC in allowing pleadings to reflect the current state of the parties.
The Court’s reasoning was decisive regarding the timing of the application:
Given that the Second Defendant has yet to file his defence, I agree with the Claimant’s arguments. Therefore, the Application must be granted in accordance with RDC 18.2(2) and the Claimant must file and serve its amended particulars of claim by no later than 14 days from the date of this Order.
Which specific RDC rules were applied by the Court in CFI 057/2021?
The Court relied on Part 18 of the RDC, which governs the amendment of statements of case. Specifically, the Court cited RDC 18.2, which outlines the two pathways for amending a statement of case: obtaining the written consent of all other parties or obtaining the permission of the Court.
Furthermore, the Court exercised its authority under RDC 18.2(2) to grant the permission requested by the Claimant. Finally, regarding the allocation of costs, the Court applied RDC 18.27, which establishes the default position that the party seeking the amendment bears the associated costs.
How did the Court interpret the requirements of RDC 18.2 regarding the amendment of particulars of claim?
The Court interpreted RDC 18.2 as a mechanism that balances the right of a claimant to refine their case with the procedural rights of the defendant. The Court noted that while the Claimant had the option to seek the Second Defendant’s written consent, the failure to do so necessitated a formal application. By invoking RDC 18.2(2), the Court affirmed that it retains the discretion to permit amendments even in the face of opposition, provided the amendment is appropriate to the stage of the proceedings.
What was the final disposition of the application and the specific orders made by the Court?
The Court granted the Claimant’s application in its entirety. The specific orders were as follows:
- The Application was granted.
- The Claimant was permitted to amend the particulars of claim as set out in the exhibit to the witness statement of Antonios Dimitracopoulos dated 1 March 2023.
- The Claimant was ordered to file and serve the amended particulars within 14 days.
- The costs of the application were awarded against the Claimant.
Regarding the timeline for compliance, the Court ordered:
The Claimant shall file and serve its amended particulars of claim by no later than 14 days from the date of this Order.
Regarding the costs, the Court noted:
In accordance with RDC 18.27, a party applying for the amendment will usually be responsible for the costs. As such, the costs of and occasioned by the Application shall be borne by the Claimant.
What are the practical implications for practitioners regarding the amendment of pleadings in the DIFC?
This case serves as a reminder that while the DIFC Courts are generally permissive regarding amendments to pleadings—especially when a defence has not yet been filed—the applicant will almost invariably be held liable for the costs of the application under RDC 18.27. Practitioners should note that even if an amendment is "expected" due to case developments (such as a settlement with a co-defendant), failing to seek the other side’s consent first will lead to an unnecessary application and an adverse costs order.
Where can I read the full judgment in Khaled Salem Musabeh Humaid Almheiri v Mohammed Ezelddine El Araj [2023] DIFC CFI 057?
The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0572021-khaled-salem-musabeh-humaid-almheiri-v-1-mohammed-ezelddine-el-araj-2-john-cameron-1 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-057-2021_20230405.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external case law was cited in the Order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC): Part 18
- RDC 18.2
- RDC 18.2(2)
- RDC 18.27