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Claim No. CFI 045/2012

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

TVM CAPITAL HEALTHCARE PARTNERS LIMITED

Claimant

and

ALI AKBAR HASHEMI

 Defendant

ORDER OF JUSTICE ROGER GILES

UPON the Defendant having filed Application Notice CFI-045-2012/5 on 6 August 2014 to stay the detailed assessment of costs proceedings;

AND UPON reviewing both parties’ submissions;

IT IS HEREBY ORDERED THAT:

1. The detailed assessment of costs be stayed from the filing of the Claimant’s reply until:
2. The Application for permission to appeal is dismissed; or
3. The determination of any appeal.
4. Liberty to apply.

Issued by:

Nassir Al Nasser

Judicial Officer

Date: 7 August 2014

At: 4pm

Background/ Reasons For Order

1. The Judgment in the Claimant's favour was given on 22 May 2014, with a costs order largely in its favour.  On 25 June 2014 the Defendant filed an application for permission to appeal.  The application has not yet been determined.  On  10 July 2014 the Claimant filed a notice commencing a detailed assessment of costs together with a bill of costs. On  3 August 2014 the Defendant filed points of dispute, and the Claimant is in the process of preparing a reply thereto.  This is an application by the Defendant, filed on 6 August 2014, for a stay of the assessment pending the outcome of the application for permission to appeal and any appeal.

2. An appeal does not operate as a stay of a costs assessment, but a stay may be ordered ( RDC 40.2).  I have not seen the grounds of appeal, but the Claimant does not submit in this application that they are wholly without merit and a delaying device.  The Defendant submits that continuance of the assessment to a detailed assessment hearing will mean wasted costs if there is a successful appeal.  The Claimant responds that that is a risk inherent in any assessment pending an appeal and the Defendant can apply for an order for any wasted costs if there is a successful appeal, and that it may be prejudiced by any delay in assessment since the Defendant is an expatriate presently resident in the UAE and costs recovery is not assured.

3. The Court should not readily see parties exposed to incurring wasted costs.  The decision on permission to appeal is likely to be soon available, and if permission is granted it could not be said that the appeal is without prospects of success.  The asserted prejudice is not supported beyond the status of the Defendant, for example by evidence of disposal of assets, and I do not think that that status is a strong reason for the Claimant being in a position to recover assessed costs immediately if an appeal is unsuccessful.  In my view, in balancing the  parties' interests the Defendant should not have to incur potentially wasted costs and be left to a later application, and the assessment should not continue beyond the filing of the Claimant's reply.