PART 23General Rules about applications for Tribunal Orders
- Meaning of ‘Application Notice’ and ‘Respondent’
- I FILING AND SERVICE OF NOTICE OF AN APPLICATION
- II EVIDENCE IN SUPPORT OF APPLICATIONS
- III PREPARATIONS FOR APPLICATIONS
- IV HEARINGS
- Applications which may be dealt with without a hearing
- Agreed orders
- Parties agree hearing unnecessary
- Tribunal does not consider hearing appropriate
- Hearings to be in public
- Hearings by video link, telephone, electronic device or other appropriate means
- Power of the Tribunal to proceed in the absence of a party
- Note of proceedings
- V JUDGMENTS, ORDERS AND DIRECTIONS
- VI COSTS
Meaning of ‘Application Notice’ and ‘Respondent’
In this Part –
(1) ‘application notice’ means a document in which the applicant states his intention to seek a Tribunal order; and
(2) ‘respondent’ means –
(a) the person against whom the order is sought; and
(b) such other person as the Tribunal may direct.
I FILING AND SERVICE OF NOTICE OF AN APPLICATION
Application notice to be filed
The general rule is that an applicant must file an application notice.
An applicant may make an application without filing an application notice if –
(1) this is permitted by a Rule or Practice Direction; or
(2) the Tribunal dispenses with the requirement for an application notice.
Notice of an application
The general rule is that a copy of the application notice must be served by the applicant on each respondent even if such service is on short notice.
An application may be made without serving a copy of the application notice if this is permitted by –
(1) a Rule; or
(2) a Tribunal order.
Applications without service of application notice
The Tribunal’s permission is required for an application to be made without serving an application notice. The Tribunal’s permission will be granted only:
(1) where there is exceptional urgency,
(2) where the overriding objective is best furthered by doing so,
(3) by consent of all parties,
(4) where Rule 23.19 below applies,
(5) where a Rule or Practice Direction permits, or
(6) where there are good reasons for making the application without notice, for example, because notice would or might defeat the object of the application.
Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy.
Where an application without notice does not involve the giving of undertakings to the Tribunal, it will normally be made and dealt with without a hearing, as, for example, applications for an extension of time in which to serve a claim form.
Any application for an interim injunction or similar remedy will require an oral hearing.
A party wishing to make an application without notice which requires an oral hearing should contact the Tribunal at the earliest opportunity.
On all applications without notice it is the duty of the applicant and those representing him to make full disclosure of all matters relevant to the application including in particular disclosure of any possible defences that may be available to the respondent in response to the application.
The papers lodged for the application should include two copies of a draft of the order sought. Save in exceptional circumstances where time does not permit, all the evidence relied upon in support of the application and any other relevant documents must be lodged in advance with the Registry. If the application is urgent, the Tribunal should be informed in writing of the fact and of the reasons for the urgency.
The Tribunal will expedite the hearing of an application on notice in cases of sufficient urgency and importance.
Where a party wishes to make an expedited application a request should be made to the Registrar on notice to all other parties.
All applications made before a claim is commenced should be made under this Part.
The written evidence in support of such an application must state that the claimant intends to bring proceedings.
Time when an application is made
Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.
Applications should wherever possible be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed. This is particularly so in relation to Case Management Conferences, listing hearings and pre-trial reviews fixed by the Tribunal.
Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should inform the other party and the Tribunal (if possible in writing) as soon as he can of the nature of the application and the reason for it. He should then make the application orally at the hearing.
The Tribunal will only entertain applications at a hearing for which a date has been fixed if the proposed (additional) application will not increase the time estimate already given for the hearing.
Where an application must be made within a specified time, it is so made if the application notice is received by the Tribunal within that time.
What an application notice must include
An application notice must state –
(1) what order the applicant is seeking; and
(2) briefly, why the applicant is seeking the order.
An application notice must be signed and include:
(1) the title of the claim,
(2) the reference number of the claim,
(3) the full name of the applicant,
(4) where the applicant is not already a party, his address for service, and
(5) either a request for a hearing or a request that the application be dealt with without a hearing.
On receipt of an application notice containing a request for a hearing the Tribunal will notify the applicant of the time and date for the hearing of the application.
Service of a copy of an application notice
Unless the Tribunal otherwise directs or Rule 23.5 applies a copy of the application notice –
(1) must be served as soon as practicable after it is filed; and
(2) except where another time limit is specified in these Rules, must in any event be served at least 3 days before the Tribunal is to deal with the application.
When a copy of an application notice is served it must be accompanied by –
(1) a copy of any written evidence in support; and
(2) a copy of any draft order which the applicant has attached to his application.
(1) an application notice is served; but
(2) the period of notice is shorter than the period required by these Rules,
the Tribunal may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.
II EVIDENCE IN SUPPORT OF APPLICATIONS
Evidence already filed
Rule 23.26(1) does not require written evidence –
(1) to be filed if it has already been filed; or
(2) to be served on a party on whom it has already been served.
Filing and service of evidence
The requirement for evidence in certain types of applications is set out in some of the Rules. Where there is no specific requirement to provide evidence it should be borne in mind that, as a practical matter, the Tribunal will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.
The Tribunal may give directions for the filing of evidence in support of or opposing a particular application. The Tribunal may also give directions for the filing of evidence in relation to any hearing that it fixes on its own initiative. The directions may specify the form that evidence is to take and when it is to be served.
Where it is intended to rely on evidence which is not contained in the application itself, the evidence, if it has not already been served, should be served with the application.
Where a respondent to an application wishes to rely on evidence which has not yet been served, he should serve it as soon as possible and in any event in accordance with any directions the Tribunal may have given.
If it is necessary for the applicant to serve any evidence in reply, it should be served as soon as possible and in any event in accordance with any directions the Tribunal may have given.
Evidence must be filed with the Tribunal as well as served on the parties. Exhibits should not be filed unless the Tribunal otherwise directs.
Evidence verified by statement of truth
Although evidence may be given by affidavit, the Tribunal will generally exercise its discretion under Article 51(1) of the Court Law (as amended and applied by the Schedule to the Tribunal Decree) to permit evidence to be given by witness statement, except where Part 29 requires evidence to be given on affidavit (as, for example, in the case of an application for a freezing order or a search order). In other cases the Tribunal may order that evidence be given by affidavit.
Witness statements and affidavits must comply with the requirements of Part 29, save that photocopy documents should be used unless the Tribunal orders otherwise.
Witness statements must be verified by a statement of truth signed by the maker of the statement.
At hearings other than trial, an applicant may rely on the application notice itself, and a party may rely on his statement of case, if the application notice or statement of case (as the case may be) is verified by a statement of truth.
Proceedings for contempt may be brought against a person who makes, or causes to be made, a false statement in a witness statement (or any other document verified by a statement of truth) without an honest belief in its truth. Evidence in support of an application for contempt should generally be given by affidavit unless the Tribunal orders otherwise.
III PREPARATIONS FOR APPLICATIONS
Applications likely to require an oral hearing lasting 2 hours or less are regarded as “ordinary” applications.
Many ordinary applications are very short (e.g. applications to extend time). Such applications can normally be heard without evidence and on short (i.e. a few days) notice.
Where evidence is necessary, the timetable for ordinary applications is as follows:
(1) evidence in support must be filed and served with the application;
(2) evidence in answer must be filed and served within 14 days thereafter;
(3) evidence in reply (if any) must be filed and served within 7 days thereafter.
The timetable may be abridged or extended by agreement between the parties provided that any date fixed for the hearing of the application is not affected. In appropriate cases, this timetable may be abridged by the Tribunal.
If the date fixed for the hearing of an application means that the times in Rules 23.42(2) and 23.42(3) cannot both be achieved, the evidence must be filed and served –
(1) as soon as possible; and
(2) in sufficient time to ensure that the application may fairly proceed on the date fixed.
Applications likely to require an oral hearing lasting more than 2 hours are regarded as “heavy” applications.
Heavy applications normally involve a greater volume of evidence and other documents and more extensive issues. They accordingly require a longer lead-time for preparation and exchange of evidence.
The timetable for heavy applications is as follows:
(1) evidence in support must be filed and served with the application;
(2) evidence in answer must be filed and served within 28 days thereafter;
(3) evidence in reply (if any) must be filed and served as soon as possible, and in any event within 14 days of service of the evidence in answer.
The timetable may be abridged or extended by agreement between the parties or by the Tribunal provided that any date fixed for the hearing of the application is not affected.
Liaison with the Registrar
In all cases the parties must liaise with the Registrar:
(1) for directions as to the preparations for the hearing of the application;
(2) to fix a date for the hearing; and
(3) for directions as to the management of the hearing.
Hearing dates, time estimates and time limits
Not later than 5 days before the date fixed for the hearing the applicant must provide the Registry with his current estimate of the time required to dispose of the application.
It is essential for the efficient conduct of the Tribunal’s business that the parties inform the Tribunal of the reading required in order to enable the Tribunal to dispose of the application within the time allowed for the hearing and of the time likely to be required for that purpose. Accordingly
(1) each party must lodge with the Registry a reading list with an estimate of the time required to complete the reading; and
(2) each party’s reading list should identify the material on both sides which the Tribunal needs to read.
All time estimates should be given on the assumption that the Tribunal will have read in advance the skeleton arguments and the documents identified in the reading list lodged in accordance with Rule 23.51(1).
If at any time either party considers that there is a material risk that the hearing of the application will exceed the time currently allowed, it must inform the Registry immediately.
A time estimate for an ordinary application should allow time for judgment and consequential matters; a time estimate for a heavy application should not.
Save in the situation referred to in Rule 23.56, a separate estimate must be given for each application, including any application issued after, but to be heard at the same time as, another application.
A separate estimate need not be given for any application issued after, but to be heard at the same time as, another application where the legal representative in the case certifies in writing that
(1) the determination of the application first issued will necessarily determine the application issued subsequently; or
(2) the matters raised in the application issued subsequently are not contested.
If it is found at the hearing that the time required for the hearing has been significantly underestimated, the Tribunal may adjourn the matter and may make any special costs orders (including orders for the immediate payment of costs) as may be appropriate.
Applications – Preparation of documents
Bundles for use on applications may be compiled in any convenient manner but must contain the following documents (preferably in separate sections in the following order):
(1) a copy of the application notice;
(2) a draft of the order which the applicant seeks;
(3) a copy of the statements of case;
(4) copies of any previous orders which are relevant to the application;
(5) copies of the witness statements and affidavits filed in support of, or in opposition to, the application, together with any exhibits.
Copies of the statements of case and of previous orders in the action should be provided in a separate section of the bundle. They should not be exhibited to witness statements.
Witness statements and affidavits previously filed in the same proceedings should be included in the bundle at a convenient location. They should not be exhibited to witness statements.
The applicant must, as a matter of course, provide all other parties to the application with a copy of the application bundle at the cost of the receiving party. Further copies should be supplied on request, again at the cost of the receiving party.
Bundles of Legal Authorities
On some applications there will be key legal authorities that it would be useful for the Tribunal to read before the oral hearing of the application. Copies of these authorities should be provided with the skeleton arguments.
It is also desirable for bundles of all of the legal authorities on which the parties wish to rely to be provided to the Tribunal as soon as possible after skeleton arguments have been exchanged.
Skeleton arguments (with a chronology unless one is unnecessary, and with a list of persons if one is warranted) must be lodged with the Registry and served on the advocates for all other parties to the application. Guidelines on the preparation of chronologies are set out in Schedule A to this Part.
Problems with the lodging of bundles or skeleton arguments should be notified to the Registrar as far in advance as possible. If the application bundle or skeleton argument is not lodged by the time specified, the application may be stood out of the list without further warning.
Failure to comply with the requirements for lodging bundles for the application will normally result in the application not being heard on the date fixed at the expense of the party in default. An order for immediate payment of costs may be made.
The parties must anticipate that at any hearing the Tribunal may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the Tribunal in doing so and to answer questions the Tribunal may ask for this purpose.
Applications which may be dealt with without a hearing
The Tribunal may deal with an application without a hearing if –
(1) the parties agree as to the terms of the order sought;
(2) the parties agree that the Tribunal should dispose of the application without a hearing, or
(3) the Tribunal does not consider that a hearing would be appropriate.
Rule 352 sets out the circumstances where an agreed judgment or order may be entered and sealed.
Where an agreed order is to be made by the Tribunal, a member of the Tribunal, by a judicial panel or by a member of a judicial panel, the order must be drawn so that the name of the Tribunal or panel member or members making the order can be inserted.
The parties to an application for an agreed order must ensure that they provide the Tribunal with any material it needs to be satisfied that it is appropriate to make the order. Subject to any Rule or Practice Direction, a letter will generally be acceptable for this purpose.
Agreed orders may be submitted to the Tribunal in draft for approval and initialling without the need for attendance.
(1) Two copies of the draft, one of which (or a counterpart) must be signed on behalf of all parties to whom it relates, should be lodged at the Registry. The copies should be undated. The order will be dated with the date on which the Tribunal initials it, but that does not prevent the parties acting on their agreement immediately if they wish.
(2) The parties should act promptly in lodging the copies at the Registry. If it is important that the orders are made by a particular date, that fact (and the reasons for it) should be notified in writing to the Registry.
Where a judgment or order has been agreed in respect of an application or claim where a hearing date has been fixed, the parties must inform the Tribunal immediately.
Parties agree hearing unnecessary
If the applicant considers that the application is suitable for determination on paper, he should ensure before lodging the papers with the Tribunal:
(1) that the application notice together with any supporting evidence has been served on the respondent;
(2) that the respondent has been allowed the appropriate period of time in which to serve evidence in opposition;
(3) that any evidence in reply has been served on the respondent; and
(4) that there is included in the papers
(a) the written consent of the respondent to the disposal of the application without a hearing; or
(b) a statement by the applicant of the grounds on which he seeks to have the application disposed of without a hearing, together with confirmation that a copy has been served on the respondent.
Only in exceptional cases will the Tribunal dispose of an application without a hearing in the absence of the respondent’s consent.
Certain applications relating to the management of proceedings may conveniently be made in correspondence without issuing an application notice. It must be clearly understood that such applications are not applications without notice and the applicant must therefore ensure that a copy of the letter making the application is sent to all other parties to the proceedings. Accordingly, the following procedure should be followed when making an application of this kind:
(1) the applicant should first ascertain whether the application is opposed by the other parties;
(2) if it is, the applicant should apply to the Tribunal by letter stating the nature of the order which it seeks and the grounds on which the application is made;
(3) a copy of the letter should be sent (by email where possible) to all other parties at the same time as it is sent to the Tribunal;
(4) any other party wishing to make representations should do so by letter within two days (i.e. two clear days) of the date of the applicant’s letter of application. The representations should be sent (by email where possible) to the applicant and all other parties at the same time as they are sent to the Tribunal;
(5) the Tribunal will advise its decision by letter to the applicant. The applicant must forthwith copy the Tribunal’s letter to all other parties, by email where possible.
Tribunal does not consider hearing appropriate
Where Rule 23.68(3) applies the Tribunal will treat the application as if it were proposing to make an order on its own initiative.
Hearings to be in public
Applications (other than arbitration applications) will be heard in public in accordance with Article 5(2) of the Tribunal Decree, save where otherwise ordered.
With certain exceptions, arbitration applications will normally be heard in private.
An application without notice for a freezing order or a search order will normally be heard in private.
Parties must consider whether hearings can conveniently take place by video link, telephone, electronic device or other appropriate means in accordance with Article 51 of the Court Law (as amended and applied by the Schedule to the Tribunal Decree).
Guidelines on the conduct of hearings by video link and telephone are set out Schedules B and C to this Part.
Power of the Tribunal to proceed in the absence of a party
Where the applicant or any respondent fails to attend the hearing of an application, the Tribunal may proceed in his absence.
(1) the applicant or any respondent fails to attend the hearing of an application; and
(2) the Tribunal makes an order at the hearing,
the Tribunal may, on application or of its own initiative, re-list the application.
The power to re-list the application in Rule 23.84 is in addition to any other powers of the Tribunal with regard to the order (for example to set aside, vary, discharge or suspend the order).
Note of proceedings
The Tribunal will keep, either by way of a note or recording, brief details of all proceedings before it, including the dates of the proceedings and a short statement of the decision taken at each hearing.
V JUDGMENTS, ORDERS AND DIRECTIONS
Orders generally drawn up by the parties
Except for orders made by the Tribunal on its own initiative and unless the Tribunal orders otherwise, every judgment, order or direction will be drawn up by the parties.
An application for an agreed order must include a draft of the proposed order signed on behalf of all the parties to whom it relates in accordance with Rule 23.72(1).
Parties are reminded that the Tribunal may require the production of an Arabic translation of any judgment, order or direction pursuant to Rule 2.4.
Time for compliance with Orders
Where an order provides a time by which something is to be done, the order should wherever possible state the particular date by which the thing is to be done rather than specify a period of time from a particular date or event.
Service of application where application made without notice
This Rule applies where the Tribunal has disposed of an application which it permitted to be made without service of a copy of the application notice.
(1) Where the Tribunal makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the Tribunal orders otherwise, be served with the order on any party or other person –
(a) against whom the order was made; and
(b) against whom the order was sought.
(2) The order must contain a statement of the right to make an application to set aside or vary the order under Rule 23.92.
A person who was not served with a copy of the application notice before an order was made under Rule 23.91, may apply to have the order set aside or varied.
An application under Rule 23.92 must be made within 7 days after the date on which the order was served on the person making the application.
Immediate assessment of costs
Attention is drawn to Part 38 and, in particular, to the Tribunal’s power to make an immediate assessment of costs.
Attention is also drawn to Rule 38.55 which provides that if an order makes no mention of costs, none are payable in respect of the proceedings to which it relates.
In carrying out an immediate assessment of costs, the Tribunal may have regard amongst other matters to:
(1) advice from the Registrar on costs of legal representatives;
(2) any survey published showing the average hourly expense rate for legal representatives in Dubai;
(3) any information provided to the Tribunal by a Bar Association on average charges by legal representatives.