Zuzana Kapova v (1) Miloslav Makovini (2) Pharm Trade Holding Ltd [2023] DIFC CFI 004 (10 March 2023)

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URL: http://www.bailii.org/ae/cases/DIFC/2023/DCFI_004.html
Cite as: [2023] DIFC CFI 004

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CFI 004/2023 Zuzana Kapova v (1) Miloslav Makovini (2) Pharm Trade Holding Ltd

March 10, 2023 COURT OF FIRST INSTANCE - ORDERS

Claim No: CFI 004/2023

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

ZUZANA KAPOVA

Claimant

and

(1) MILOSLAV MAKOVINI
(2) PHARM TRADE HOLDING LTD

Defendants


ORDER WITH REASONS OF H.E. JUSTICE MAHA AL MHEIRI


UPON the Claimant’s Application No. CFI-004-2023/1 dated 12 January 2023 seeking interim orders (the “Claimant’s Application”)

AND UPON the Defendants’ Application No. CFI-004-2023/2 dated 7 February 2023 seeking to withdraw the Acknowledgment of Service dated 26 January 2023 and stay the Claimant’s Application (the “Defendants’ Application”)

AND UPON the Claimant filing evidence in answer to the Defendants’ Application dated 21 February 2023

AND UPON the Defendants filing evidence in reply dated 28 February 2023

IT IS HEREBY ORDERED THAT:

1. The Defendants’ Application is granted.

2. The Defendants shall file and serve an Application Notice challenging the jurisdiction of the DIFC Courts by no later than4pm on Friday, 17 March 2023together with evidence in support of the Application Notice (the “Jurisdiction Application”).

3. The Claimant shall file evidence in answer by no later than 14 days after service of the Jurisdiction Application.

4. The Defendants shall file evidence in reply by no later than 7 days after service of the Claimant’s evidence in reply to the Jurisdiction Application.

5. The Defendants shall prepare, file, and serve the eBundle for the Jurisdiction Application at least 5 working days before the date fixed for the hearing of the Jurisdiction Application.

6. The parties shall file and serve skeleton arguments at least 3 working days before the date fixed for the hearing of the Jurisdiction Application.

7. Costs shall be costs in the case.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 10 March 2023
At: 11:30am

SCHEDULE OF REASONS

1. The Defendants seek permission of the Court to amend the Acknowledgment of Service dated 26 January 2023 (the “Acknowledgment of Service”) pursuant to Rule 11.6 of the Rules of the DIFC Courts (“RDC”). The proposed withdrawal was opposed by the Claimant for reasons including the Claimant’s position in relation to the alleged pleading of fraud, the Defendant’s fiduciary issues, and factual issues that are not material to the dispute.

The Defendants’ Submissions

2. The First Defendant argues that he is neither a UAE qualified or DIFC registered lawyer and does not provide any legal services as an “Executive Director” of Incorportas (World Assets Middle East Corporate Services Provider LLC) or as a director of the Second Defendant.

3. The First Defendant submits that he is an attorney in Slovakia, and qualified to practice law in Slovakia as a member of the Slovak Bar Association. He is a civil lawyer and practices in Slovakia under a law firm specialising in business law, corporate law, mergers and acquisitions. The Claimant submits that he does not perform any legal services outside of Slovakia and has never provided any legal services under his name or in his individual capacity.

4. In addition, that First Defendant argues that he is not a dispute resolution lawyer and, prior to the present matter, he was never involved in a contentious matter in the DIFC. Until hiring his present counsel, he did not fully understand the common law system followed by the DIFC Courts. Furthermore, the First Defendant denies being the legal adviser to the Claimant in the UAE since December 2018.

The Claimant’s Submission

5. The Claimant appears to object to the Defendants’ Application arguing that the First Defendant represented himself as a lawyer and has acted as the Claimant’s legal advisor in the UAE since 2018.

6. The Claimant argues that the Second Defendant was established in the Dubai International Financial Centre (DIFC) on the basis of the advice and recommendations of the First Defendant. The assertion that the First Defendant he did not offer legal services to the Claimant in his capacity as the director of Second Defendant is untrue. The First Defendant was providing legal services and the relationship was of a fiduciary nature.

7. In addition, the First Defendant is a lawyer registered in Slovakia, and offered his services as an attorney at law in Slovakia through his law firm. The website of the law firm demonstrates the First Defendant as one of the partners in this firm and is listed on the website as one of its contacts.

8. The services provided by the First Defendant, as described in its website, includes corporate law, mergers and acquisitions, tax planning, asset management and due diligence. The law firm’s website also indicates that the First Defendant was a specialist in tax planning and tax consultancy in several international markets.

9. In addition, the First Defendant’s LinkedIn page describes himself to be a director of INCORPORTAS, a business consultancy firm in Dubai. He further represented that he was an "experienced Attorney-at-Law with demonstrated history of working in the legal services industry." He also described himself as skilled in International Tax Consulting, Asset Management, Corporate Law, Spin Offs and Mergers and Acquisitions. Thus, the Claimant submits that his assertion that he had not offered legal services is not true.

10. Additionally, the Claimant argues that the First Defendant considered himself competent to advise the Claimant to establish the Second Defendant in the DIFC. Furthermore, the First Defendant engaged Davidson & Co, a law firm practicing in the UAE, to issue a legal notice to the Claimant alleging purported breaches of his duties as a director of the Second Defendant.

11. Thus, the Claimant submits, the First Defendant’s conduct reveals that he had sufficient time to carry out the necessary research or to procure legal assistance from his legal advisors who are conversant with DIFC laws and procedures for matters concerning himself and the Second Defendant.

12. In conclusion, the Claimant submits that the First Defendant is legally trained and has provided no reason or explanation for his failure to challenge the jurisdiction of the DIFC Courts in the first place nor has he given any proper or convincing reason for setting aside the Acknowledgment of Service, in addition to responding to the letter sent by the Claimant’s legal representatives by himself without appointing lawyers.

Finding

13. Pursuant to RDC 11.16, when an applicant is seeking permission of the Court to withdraw an acknowledgment of service filed, such an application must be made in accordance with Part 23 of the RDC and be supported by evidence. The relevant rule is set out below:

“11.16

An acknowledgment of service may be amended or withdrawn only with the permission of the Court. The application must be made in accordance with Part 23 and supported by evidence.”

14. I am persuaded by the Defendants’ arguments and find that, as a litigant in person, although the First Defendant has a legal background, having knowledge of the DIFC Laws is not as straight forward as anticipated by the Claimant.

15. The error made by the Defendant can be attributed to the nature of defending a Claim without the benefit of legal representation. In the exercise of the Court’s overriding objective, the Court has a discretion to giving the parties equal footing in pleading their Claim before the Court. It is noted that the request for permission to withdraw the Acknowledgment of Service has been made early on in these proceedings, prior to any defence being filed by the Defendant.

16. Therefore, I am inclined to grant the Defendants’ Application for the reasons being that the First Defendant is a litigant in person and the parties shall not be prejudiced procedurally as a result.


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