BAM HIGGS & HILL v AFFAN INNOVATIVE STRUCTURES [2023] DIFC CFI 106 — procedural timeline adjustment (17 March 2023)

What is the nature of the underlying dispute between BAM Higgs & Hill and Affan Innovative Structures in CFI 106/2021?

The litigation involves a commercial dispute between the Claimant, BAM Higgs & Hill, and the Defendants, Affan Innovative Structures and Amer Affan. While the specific underlying contractual or tortious claims remain subject to the ongoing proceedings, the matter has reached a stage where the court is overseeing the formalization of pleadings. The case has been active since at least 2021, and the parties are currently navigating the requirements for the filing of a re-amended claim.

The current procedural posture is defined by the need to finalize the Particulars of Claim and the subsequent Statement of Defence. The court’s intervention on 17 March 2023 was specifically requested to adjust the filing deadlines to ensure both parties have sufficient time to prepare their respective positions. As noted in the order:

The Claimant shall file and serve its Particulars of Claim by
4pm on 20 March 2023.
2.

This directive ensures that the litigation remains on track following the substantive judgment delivered by Justice Sir Peter Gross earlier in the year. The dispute represents a significant commercial matter within the DIFC Court of First Instance, requiring strict adherence to the Rules of the DIFC Courts (RDC) regarding the exchange of statements of case.

Which judicial officer presided over the procedural consent order in CFI 106/2021?

The consent order dated 17 March 2023 was issued by Assistant Registrar Hayley Norton within the Court of First Instance. This procedural order followed the substantive judgment previously handed down by Justice Sir Peter Gross on 31 January 2023, which addressed specific applications (CFI-106-2021/1 and CFI-106-2021/2) that had previously occupied the court’s attention.

How did the parties justify the request for an extension of time for the Particulars of Claim and Statement of Defence?

The parties, BAM Higgs & Hill and the Defendants, Affan Innovative Structures and Amer Affan, reached a mutual agreement to extend the procedural deadlines. The primary justification for this request was the onset of the Holy Month of Ramadan. Recognizing the practical impact of this period on business operations and legal administration, the parties sought a one-week extension to the existing deadlines.

By presenting a consent order to the court, the parties avoided the need for a contested hearing, demonstrating a cooperative approach to case management. The Defendants agreed to the extension for the Claimant’s Particulars of Claim, while the Claimant reciprocated by allowing the Defendants additional time to prepare their Statement of Defence. This pragmatic approach aligns with the DIFC Courts' objective of facilitating the efficient resolution of disputes while remaining sensitive to the cultural and professional context of the jurisdiction.

What is the precise procedural question the DIFC Court addressed in this consent order?

The court was tasked with determining whether to grant a variation to the existing procedural timetable established by previous orders, specifically the Consent Order dated 16 February 2023. The legal question was not one of substantive merit, but rather a procedural application under the RDC to amend the dates for the service of pleadings. The court had to ensure that the proposed timeline remained consistent with the overriding objective of the RDC, which is to enable the court to deal with cases justly and at a proportionate cost. By approving the extension, the court affirmed the parties' autonomy to manage their litigation timeline while ensuring that the progression of the re-amended claim remained within the court's oversight.

How did the Assistant Registrar apply the principle of party autonomy in the context of the Holy Month of Ramadan?

The Assistant Registrar exercised the court's discretion to facilitate the parties' agreement, acknowledging that the Holy Month of Ramadan necessitates a flexible approach to procedural deadlines. The reasoning was grounded in the principle that where parties are in agreement and the extension does not prejudice the court's ability to manage the case effectively, the court should support the parties' proposed timeline.

The order reflects a balance between maintaining the momentum of the litigation and respecting the practical constraints faced by the legal teams. As specified in the order:

The Claimant shall file and serve its Particulars of Claim by
4pm on 20 March 2023.
2.

By formalizing this agreement, the court ensured that the procedural steps were clearly defined, thereby preventing future disputes regarding the timeliness of the filings. The court’s reasoning emphasizes that procedural efficiency is best served when parties cooperate to set realistic deadlines, particularly when external factors such as religious observances impact the availability of resources.

Which specific Rules of the DIFC Courts (RDC) govern the granting of consent orders for procedural extensions?

The issuance of this consent order is governed by the general case management powers of the DIFC Courts, specifically those found in Part 4 of the RDC, which grants the court broad discretion to manage the progress of a case. While the order itself does not cite specific RDC sections, it operates under the authority of the court to vary directions and orders as provided for in RDC 4.2. The court’s power to approve such agreements is a standard exercise of its case management jurisdiction, ensuring that the litigation process remains orderly and predictable for all parties involved.

How does the judgment of Justice Sir Peter Gross dated 31 January 2023 influence the current procedural trajectory?

The judgment of Justice Sir Peter Gross on 31 January 2023 serves as the foundational authority for the current phase of the litigation. By resolving the applications CFI-106-2021/1 and CFI-106-2021/2, Justice Sir Peter Gross set the stage for the filing of the re-amended claim. The current consent order is a direct consequence of that judgment, as it provides the necessary procedural framework to implement the court’s earlier directions. The parties are effectively working within the parameters established by Justice Sir Peter Gross, ensuring that the re-amended claim is properly served and defended in accordance with the court’s previous findings.

What was the final disposition of the procedural application in CFI 106/2021?

The court granted the consent order as requested by the parties. The specific orders made were:
1. The Claimant is required to file and serve its Particulars of Claim by 4pm on 20 March 2023.
2. The Defendants are required to file and serve their Statement of Defence by 4pm on 15 May 2023.
3. The court ordered that there be no order as to costs, reflecting the collaborative nature of the application.

This disposition effectively resets the clock for the exchange of pleadings, providing the parties with the necessary time to finalize their submissions while maintaining the court's control over the litigation schedule.

What are the practical implications for practitioners managing complex litigation in the DIFC during Ramadan?

This case serves as a practical reminder for practitioners that the DIFC Courts are receptive to reasonable procedural adjustments when supported by evidence of practical necessity, such as the Holy Month of Ramadan. Practitioners should not hesitate to seek consent orders for extensions when external factors impede the ability to meet strict deadlines, provided that the request is made in good faith and with the agreement of the opposing party. This approach minimizes the risk of procedural defaults and demonstrates a professional commitment to the court's overriding objective. Future litigants should anticipate that while the court maintains a rigorous schedule, it remains a pragmatic forum that values the efficient and cooperative management of cases.

Where can I read the full judgment in BAM Higgs & Hill v Affan Innovative Structures [2023] DIFC CFI 106?

The full text of the Consent Order can be accessed via the official DIFC Courts website:
https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-1062021-bam-higgs-hill-llc-v-1-affan-innovative-structures-llc-2-amer-affan-2

A copy is also available via the CDN link:
https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-106-2021_20230317.txt

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC), Part 4 (Case Management)