PRACTICE DIRECTION 7 APPLICATIONS BEFORE AND AFTER TRIAL
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Date first issued: 30 May 2016
This Practice Direction is to be read with, and subject to, the ADGM Court Procedure Rules 2016. Except as provided otherwise in this Practice Direction, terms have the meanings set out in those Rules.
7.1. A party wishing to make an application to the Court before the trial commences, or after judgment has been given, must file an application notice in accordance with Form CFI 12.
7.2. An application notice must state what orders or directions the applicant is seeking from the Court.
Service of application notice and material in support
7.3. An application may be made without notice if this is permitted by the Court or by the Rules or a Practice Direction.
7.4. In any other case, at least 3 days before the Court is to deal with the application, the applicant must serve on each respondent to the application:
(a) a copy of the application notice;
(b) notice of any written material previously served on that respondent and on which the applicant may rely at the hearing of the application; and
(c) any other written material on which the applicant may seek to rely at the hearing of the application.
Applications made without notice
7.5. Where the Court is asked to make an order on an application without notice, the applicant must bring to the Court's attention any matter which, if the respondent was represented, the respondent would wish the Court to be aware of. This includes any matters which might tend to undermine the application.
7.6. Where the Court makes an order on an application made without notice, unless the Court orders otherwise, the applicant must serve forthwith on every person against whom an order was sought or made:
(a) a copy of the application notice;
(b) all written material on which the applicant sought to rely in support of his application;
(c) a transcript of the hearing of the application;
(d) a copy of the order; and
(e) written notice that any person against whom an order was sought or made may apply to have the order set aside or varied.
Proceeding in the absence of a party
7.7. If an applicant or respondent to an application does not attend the hearing of the application, the Court may proceed in his absence.
Proceeding without a hearing
7.8. The Court may deal with any application without a hearing if the Court does not consider that a hearing is appropriate or the parties agree that no hearing is appropriate.
B. PARTICULAR APPLICATIONS BEFORE TRIAL
7.9. The following directions (relating to some particular applications that may be made before trial) are to be read as supplementing and varying the general directions about applications before trial.
Application for default judgments [r.39]
7.10. An application for default judgment under Rule 39 must be made by application notice in accordance with Form CFI 12, supported by:
(a) of the occurrence of the default relied on;
(b) that the default has not been remedied; and
(c) that the conditions prescribed by Rule 40 are satisfied.
7.11. A default judgment on a money claim may include interest at the rate agreed between the parties or, if there is no agreed rate, at the rate of 7 per cent from the date the money was due.
Application for further information [r.54]
7.12. The Court will exercise its powers to order a party to clarify any matter which is in dispute in a proceeding and to give additional information in relation to any such matter having regard to the overriding objective of the Rules: to secure that the ADGM Courts are accessible, fair and efficient.
7.13. Accordingly, a party seeking an order that another party clarify any matter in dispute or give additional information in relation to any such matter should state in the application notice how and why the provision of the further information sought is necessary to dispose fairly of the claim.
Applications for security for costs [r.75 and r.76]
7.14. An application for security for costs must be made by application notice in accordance with Form CFI 12.
7.15. The Court may order that security for costs be provided where an ADGM enactment permits the court to require security for costs or if the Court is satisfied that having regard to all the circumstances of the case, it is just to do so.
7.16. Without limiting paragraph 7.15, the Court may (but is not obliged to) conclude that it would be just to order security for costs if it is satisfied that:
(a) the claimant is resident out of the UAE;
(b) the claimant is a company or other body (whether incorporated inside or outside ADGM ) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so;
(c) the claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation;
(d) the claimant failed to give his address in the claim form, or gave an incorrect address in that form;
(e) the claimant is acting as a nominal claimant, other than as a representative claimant under Rule 57, and there is reason to believe that he will be unable to pay the defendant's costs if ordered to do so; or
(f) the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.
7.17. Where an order for security for costs is made, security shall be given in such manner and at the time the Court directs.
7.18. The Court may also order security for costs of an appeal as it may order security for costs in the circumstances set out in paragraphs 7.15 and 7.16.
Applications to set aside notice of discontinuance [r.171]
7.19. The defendant may not make an application under Rule 171 to set aside a notice of discontinuance more than 28 days after the date when the notice of discontinuance was served on him.
C. APPLICATIONS TO THE COURT OF FIRST INSTANCE FOR PERMISSION TO APPEAL [r.206(4)]
7.20. An application to the Court of First Instance for permission to appeal to the Court of Appeal should be made to the trial judge.
7.21. Unless made when the disputed judgment or order was pronounced or made, an application for permission to appeal must be made by application notice filed in the proceeding within 14 days of the day on which the disputed judgment or order was pronounced or made.
7.22. An application notice seeking permission to appeal must identify:
(a) the judgment or order against which it is sought to appeal;
(b) the ground or grounds on which the appeal would be brought; and
(c) the order or orders that would be sought in the appeal.
7.23. An application notice seeking permission to appeal must be served on all other parties to the proceeding in which the disputed judgment or order was pronounced or made.
7.24. An applicant for permission to appeal must file proof of the service of the application on a party forthwith after service.
7.25. The proof of service must state when and how service was made.
7.26. If permission to appeal is given, further proceedings in the matter are governed by Parts B to G of Practice Direction 11.