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Claim No: CFI 078/2023

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURT

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) NAAZIM
(2) NABEEL
(3) NEILSON

Claimants/Respondents

and

NEVILLE

Defendant/Appellant

ORDER WITH REASONS OF JUSTICE MICHAEL BLACK KC

UPON the Winding Up Order dated 25 April 2024 (the “Winding Up Order”)

AND UPON the Order of Justice Michael Black dated 21 May 2024 setting aside the Winding Up Order (the “Set Aside Order”)

AND UPON the Order of Justice Michael Black dated 12 June 2024 (the “Costs Order”)

AND UPON the Defendant’s Application No. CFI-078-2023/2 dated 26 June 2024 seeking to challenge the Costs Order (the “Defendant’s Application”)

AND UPON the Defendant’s Appeal Notice dated 19 July 2024 (the “Application for Permission to Appeal”)

AND UPON the Respondents’ submissions dated 1 August 2024 filed in opposition of the Application for Permission to Appeal

AND UPON reviewing the submissions filed in the case file

IT IS HEREBY ORDERED THAT:

1. The Defendant’s Application is dismissed.

2. The Application for Permission to Appeal is refused.

3. The Application to stay execution of the Costs Order is refused.

Issued by:
Hayley Norton
Assistant Registrar
Date: 6 August 2024
At 9am

SCHEDULE OF REASONS

1. On 12 June 2024 I ordered that the Defendant shall pay the Claimants’ costs of a Winding Up Order (“the Winding Up Order”) made on 25 April 2024 in winding up proceedings (“the Winding Up Proceedings”) immediately assessed in the amount of USD 80,875.32 (“the Costs Order”).

2. I had made the Winding Up Order on 25 April 2024 in respect of unpaid judgment debts in favour of the Claimants arising out of SCT proceedings. On 21 May 2024 I set aside the Winding Up Order because the underlying SCT judgments were themselves set aside by H.E. Justice Maha Al Mheiri on 21 May 2024 (“the Set Aside Order”).

3. I did not however consider the fact that the Winding Up Order had to be set aside meant that the costs of the Winding Up Proceedings had to follow the event. On the contrary, I found that at every stage not only had the Defendant transparently sought to delay matters by repeatedly making last-minute applications hopelessly out of time when faced with enforcement, but also the Defendant had consistently ignored Court Orders. In the circumstances set out in the written reasons for the Costs Order, in the exercise of my discretion under RDC 38.8 and 38.9, I was in no doubt that the Defendant should pay all of the costs of the Winding Up Proceedings which could, and should, have been avoided had the Defendant engaged properly and timeously with the SCT proceedings.

4. On 26 June 2024 the Defendant served an Application Notice which was clearly intended to challenge the Cost Order but failed to comply with the RDC governing appeals. Believing at that time that the Defendant was acting in person I permitted the Defendant an opportunity to serve an Appeal Notice in the proper form.

5. On 19 July 2024 the Defendant served its Appeal Notice seeking permission to appeal. The grounds for appeal stated that permission to appeal the Set Aside Order had been granted to the Claimants on 4 July 2024 and the Defendant wanted

6. The Appeal Notice was accompanied by a document entitled “Defendants Ground for Appeal” which the Court accepts as the Defendant’s skeleton argument for the purposes of RDC 44.29(2). The Defendant not only repeated the contents of the Appeal Notice but also addressed the underlying merits of the SCT proceedings currently under appeal.

7. The Claimants made written submissions in opposition to the application for permission to appeal under RDC 44.14(1) on 1 August 2024. They contended that the Appeal Notice does not raise any legitimate ground that would meet the requirements for appealing the Costs Order and therefore the evidence on which the Defendant seeks to rely is irrelevant.

8. The Claimants took issue with the allegation that the Claimants had a "preplanned strategy" to charge the Defendant the "maximum amount by way of frivolous claim along with the penalties and legal costs". They submitted that this is a very serious allegation which is strongly denied by the Claimants and should be withdrawn by the Defendant. The Claimants noted that the level of costs incurred by the Claimants has already been found by the Court "proportionately and reasonably incurred and proportionate and reasonable in amount … having regard to the conduct of the Defendant with which the Claimants' legal representatives have had to deal”.

9. By RDC 44.16 an application for permission to appeal not made orally to the lower Court at the hearing will ordinarily be decided without an oral hearing. By RDC 44.19 permission to appeal may only be given where the lower Court or the appeal Court considers that: (1) the appeal would have a real prospect of success; or (2) unjust because of a serious procedural or other irregularity in the proceedings in the lower Court (RDC 44.117). In order to determine whether a proposed appeal has a reasonable prospect of success, the Court must assess whether there is a better than fanciful chance that the Court of Appeal will hold that the decision under review is wrong.

10. I do not consider that the proposed appeal enjoys a real prospect of success. The Cost Order was made under the exercise of the Court’s discretion under RDC 38.8 as supplemented by RDC 38.9. The Court’s decision was based on its findings of fact as to the Defendant’s conduct throughout the proceedings which fell substantially below the standard to be expected of a reasonable litigant.

11. As noted in the reasons for the Costs Order the merits of the underlying SCT proceedings are irrelevant. The Court expressed no view on those merits but held that the Defendant’s conduct had been procedurally wholly unacceptable; had the Defendant acted with propriety and within the appropriate time limits the Winding Up Proceedings would have been unnecessary.

12. Was there arguably injustice because of a serious procedural or other irregularity in the proceedings? On 22 May 2024 the Court directed that the parties file their written submissions on costs by no later than 4pm on Wednesday, 5 June 2024. On 5 June 2024 the parties served their costs submissions. The Claimants’ submissions were set out in detail and included a Statement of Costs complying with RDC 38.34. The Defendant provided an email which surprisingly sought to recover “Lawyers Fees” given that it has purported to be unrepresented throughout.

13. None of the parties sought permission to respond to the other’s costs submissions. The Court made its Order one week later on 12 June 2024.

14. Thus, when on 26 June 2024 the Defendant first sought to challenge the Costs Order, it was not accurate to say that “We have not been given time to comment on the costs submitted by the claimants therefore we would like to request to the honourable court to allow us to submit our arguments in relation to the costs submitted by the claimants”. Notwithstanding, the Court will have regard to what the Defendant now says about the quantum of the costs claimed by the Claimants.

15. The proposed grounds of challenge are those set out at paragraph 5 above. There is no principled criticism of the Claimant’s costs or of the analysis in the reasons to the Costs Order. The suggestion that “we have engaged a well-known firm in DIFC for all 3 cases and the amount is only (USD 1,850) this clearly shows it was preplanned” is not just inconsistent with the Defendant’s stance that it is unrepresented but is of no assistance as it is unknown what activities have been undertaken by these unidentified lawyers who appear unwilling to go on the record. The proposed grounds of challenge are no more than an unreasoned and fanciful complaint about the quantum of the Claimants’ costs.

16. Putting it bluntly – the Defendant only has itself to blame for the Winding Up Proceedings and must bear all of the consequences of its misconduct. Permission to appeal is therefore refused as is the application to stay the execution of the Costs Order pending the hearing of the Claimants’ appeals of the Set Aside Order. The Costs Order was made without regard to the underlying merits of the Claimants’ claims and may be enforced forthwith.