May 14, 2024 court of first instance - Orders
Claim No. CFI 073/2022
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
LALS HOLDINGS LIMITED
Claimant
and
(1) EMIRATES INSURANCE COMPANY (PSC) (“EIC”)
(2) SIACI INSURANCE BROKERS LLC
Defendants
ORDER OF JUSTICE SIR PETER GROSS
RULING ON COSTS
1. I am grateful to the parties for their respective submissions on costs, all of which have been considered. It is unnecessary to lengthen this Ruling by setting out those submissions here.
2. (I) Approach: I am not attracted by EIC’s argument that it is premature to deal with the costs of the Trial of the Preliminary Issues (the “PI Trial”, “PI”, “PIs”, as appropriate). This was, for practical purposes, a standalone Trial and justice is better served by dealing with costs now. The wide discretion conferred by Parts 38 and 40 of the Rules of the DIFC Courts (the “RDC”) amply permit such a course.
3. For similar reasons, I am not persuaded that the right course is to order “costs in the case”. The outcome of the Trial of the PIs should be considered and reflected in this Order as to costs, regardless of the ultimate outcome of the (full) Trial.
4. Furthermore, I am not deflected from this course by the fact that there is an extant appeal to the DIFC Court of Appeal. Should EIC succeed in its appeal on PI 1.3.1, the Court of Appeal can make a relatively straightforward adjustment to the Order I propose to make.
5. (II) The position as between the Claimants and EIC: Whether approached PI by PI, or via a consideration of the PI Trial overall, it is clear to me that as between the Claimants and EIC, the Claimants were largely successful. The contention by EIC that the result was a “score draw” was, with respect, valiant but unfounded. The large measure of success achieved by the Claimants must be recognised in the Order as to costs.
6. It is, however, fair to EIC to acknowledge that it was successful on PIs 1.1.3 (the proviso to the meaning of “Customer”) and 1.2.3 (the “radius” point).
7. In the circumstances, the just order is that as between the Claimants and EIC, reflecting success achieved, EIC must pay to the Claimants 80% of its costs of and relating to the PIs and the PIs Trial on the standard basis, to be subject to detailed assessment by the Registry unless agreed within 28 days of this Ruling. That outcome may be marginally generous to EIC but gives me scope to make a simpler order than might otherwise have been the case under (III) below.
8. (III) The position of the Brokers: The substantial reality here is stark. The Brokers were brought into the proceedings by the Claimants in the light of EIC’s stance, to the effect that the Closure Clause did not provide cover for “…closure as a result of infectious or contagious disease”: PI 1.2.2. In the event, the Claimants and the Brokers were successful on PI 1.2.2 and EIC failed on this PI.
9. The Brokers were likewise successful on PI 1.2.3 (the “radius” point), where they were allied with EIC, but both were opposed by the Claimants. As between PIs 1.2.2 and 1.2.3, by far the more time-consuming PI was PI 1.2.2.
10. I am satisfied that the Brokers are entitled to their costs. Those costs can either be awarded against the Claimants, leaving the Claimants to recover them from EIC, or they can be recovered directly from EIC – recognising the substantial reality of the matter. I do not think that considerations of justice compel a split order or a division between PIs 1.2.2 and 1.2.3 – for example, ordering EIC to pay the Brokers’ costs of PI 1.2.2 and the Claimants to pay the Brokers’ costs of PI 1.2.3. Introducing such unnecessary complexity would itself add to costs and not benefit any party, especially as the costs properly attributable to PI 1.2.3 are unlikely to be unduly significant.
11. As it seems to me, the simple and just solution is to order EIC to pay the Brokers’ costs of and relating to the PIs and the PIs Trial, on the standard basis, to be subject to detailed assessment by the Registry unless agreed within 28 days of this Ruling.
12. The Brokers further sought a payment on account of their costs. I am not persuaded that the materials before me justify such a course. Instead, it must be hoped that the costs will be agreed – and, if not, they will be dealt with by way of a detailed assessment by the Registry.
Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 14 May 2024
At: 9am
