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Claim No: CFI 090/2022

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

BANK OF SINGAPORE LIMITED

Claimant

and

(1) MARJ HOLDING LIMITED
(2) MOHAMMED AHMAD RAMADHAN JUMA

Defendants

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ORDER WITH REASONS OF JUSTICE RENE LE MIERE

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UPON the Judgment dated 20 November 2023

AND UPON reviewing the parties’ costs submissions dated 28 November 2023

IT IS HEREBY ORDERED THAT:

1. The Defendants jointly and severally pay the Claimant’s costs of the Immediate Judgment Application to be assessed by a detailed assessment of the costs by the Registrar if not agreed.

2. The Defendants jointly and severally pay the Claimant’s costs of the Case except the extra costs caused by the misrepresentation claim to be assessed by a detailed assessment of the costs by the Registrar if not agreed.

3. The Defendants pay the Claimant the sum of AED 500,000 by way of an interim payment on account, within 14 days of the date of this Order.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 3 January 2024
At: 3pm

SCHEDULE OF REASONS FOR COSTS ORDERS

Summary

1. By a Claim Form issued on 14 December 2022 the Claimant claimed:

(“the Remedies”)

2. In its Particulars of Claim filed with its Claim Form, the Claimant pleaded two causes of action. The first is a claim that the Defendants were indebted to it in the amount claimed under the agreement between the Claimant and the First Defendant and a guarantee given by the Second Defendant (the “debt claim”). The second is a claim for damages for misrepresentation by the First Defendant (the “misrepresentation claim”).

3. By Application Notice CFI-090-2022/2 dated 21 June 2023 the Claimant sought immediate judgment against the Defendants on the debt claim (the “Immediate Judgment Application”).

4. After hearing Counsel for the Claimant and Counsel for the Defendants in a hearing before me on 12 October 2023 and receiving further submissions from the Claimant on 19 October, 27 October, 10 November, and 17 November 2023 and from the Defendants on 19 October, 27 October, 14 November, and 17 November, I ordered on 20 November 2023 that the Immediate Judgment Application be granted, and judgment be entered in favour of the Claimant against each of the Defendants in the sum of USD 55,884,582.50.

5. I further ordered the parties to file and serve a minute of the orders in relation to costs which they submit are appropriate together with submissions. On 28 November 2023 the Claimant filed a draft order in relation to costs together with submissions in support of its proposed order and the Defendants filed submissions in opposition to the draft orders proposed by the Claimant.

6. I will refer to the costs of the whole of the proceeding by which the Claimant seeks the Remedies as the costs of the Case.

7. The Claimant seeks orders that the Defendants jointly and severally pay the Claimant’s costs of the Case and of the Immediate Judgment Application on an indemnity basis, pay its lawyers, Al Tamimi & Co, (on behalf of the Claimant) the sum of AED 717,108 by way of an interim payment on account, and the Claimant’s costs be assessed by detailed assessment if not agreed

8. The Defendants submit that the Court should award costs in the case as opposed to granting the Claimant the costs at this stage because the misrepresentation claim is yet to be determined. The Defendants further submit that the Claimant’s statement of costs ought to be rejected because it relates to the costs of the Case rather than the costs of the Immediate Judgement Application and further is not proportionate to the purported complexity and issues in the case.

9. For the reasons which follow it will be ordered:

Outline of Immediate Judgment Reasons

10. The Claimant and the First Defendant, MARJ Holding Limited (“MARJ”), entered into an agreement in October 2021 pursuant to which the Claimant made certain facilities (the “Facilities”) available to MARJ (the “Facility Agreement”).

11. The Second Defendant, Mr Juma, is a director and majority shareholder of MARJ.

12. On 6 October 2021 Mr Juma signed a guarantee in favour of the Claimant, guaranteeing the obligations of MARJ to the Claimant (the “Guarantee”).

13. MARJ placed certain securities in its accounts with the Claimant which were the subject of a charge in favour of the Claimant, including certain bonds (the “Bonds”).

14. The Facilities became operational on 8 October 2021.

15. By the end of 2021, MARJ was in margin shortfall.

16. On 11 March 2022, the Claimant demanded repayment of the amounts outstanding under the Facilities and gave notice of its intention to close MARJ’s accounts and terminate the agreement. The Claimant gave notice that unless MARJ repaid the advances under the Facilities, the Claimant would proceed to liquidate the securities held in MARJ's accounts with the Claimant.

17. MARJ did not repay the outstanding advances.

18. On 15 June 2022, the Claimant terminated the Facilities and demanded repayment of the amounts outstanding under the Facilities.

19. On 14 December 2022, the Claimant commenced this action by Claim Form in which the Claimant made two claims. The first claim is that MARJ and Mr Juma are liable to the Claimant for the unpaid balance under the Facility Agreement and the Guarantee respectively (the “debt claim”). The second claim is that MARJ is liable to the Claimant for damages for misrepresentation in that MARJ misrepresented the value of the Bonds provided as security for the Facilities (the “misrepresentation claim”).

20. The Claimant applied for immediate judgment on its debt claim. The Claimant did not apply for immediate judgment on its misrepresentation claim.

21. The Defendants admitted that they had not repaid the advances under the Facilities but did not admit the amount allegedly outstanding and said that MARJ is entitled to set-off sums owed to it by the Claimant pursuant to its counterclaim for losses it has suffered as a result of breaches by the Claimant of implied terms of the Facility Agreement and regulatory obligations.

22. The Defendants asserted that various terms should be implied into the Facility Agreement, that the Claimant breached those implied terms and regulatory obligations under the DFSA Rules causing MARJ loss, and as a result MARJ has a counterclaim which it is entitled to set off against its liabilities to the Claimant.

23. Mr Juma asserted that the Guarantee is invalid because it was not properly witnessed and so could not take effect as a deed and was signed after the Claimant had agreed to grant the Facilities and so could not take effect as a contract because it lacks consideration.

24. Alternatively, Mr Juma asserted he is entitled to set-off against any liability to the Claimant, the Claimant's liabilities to MARJ.

25. For the reasons published on 20 November 2023¹ I found:

Claimant’s application for costs orders

26. The Claimant seeks orders:

Costs Framework

27. RDC Part 38.6 provides that the relevant approach to be adopted on any application for costs is as follows:

Defendants must pay Claimant’s costs of Immediate Judgment Application

28. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party².

29. The Claimant was the successful party. There is no reason for departing from the general rule. The Defendants must pay the Claimant's costs of the Immediate Judgement Application.

Defendants must pay the Claimant’s costs of the Case excluding the misrepresentation claim

30. The Claimant submits that the general rule ought to apply to the Claimant’s claim – the Defendants should pay the Claimant’s costs of the Case.

31. The Claimant submits³:

32. The Defendants submit that the Claimant cannot be awarded the costs of the entire claim at this stage because there are issues which remain to be decided. The Claimant has not applied for immediate judgment on its misrepresentation claim and that claim remains open for trial and determination.

33. At [5] – [64] and [66] – [68] of its Particulars of Claim, the Claimant pleads the debt claim based on its entitlement to demand repayment at any time and on MARJ committing events of default under the Facilities Agreement including failure to provide valid and effective security in the form of the Bonds, and the misrepresentations as to the Bonds.

34. At [65] the Claimant pleads the misrepresentation claim:

35. When a claimant pleads a separate claim “further and alternatively”, they are essentially asserting two legal causes of action in the same case.

36. The Claimant pleads it has suffered loss and damage as a result of the misrepresentations in that it was induced to provide the Facilities without the effective security which was to be provided by the Bonds. The Claimant does not particularise the loss and damage it claims to have suffered as a result of the pleaded misrepresentation.

37. However, in its prayer for relief the Claimant claims damages for misrepresentation against MARJ as well as, not in the alternative to, the amount it claims in debt against MARJ and Mr Juma.

38. The Claimant has obtained judgment on the debt claim, but the misrepresentation claim has not been disposed of. The Claimant may still pursue the misrepresentation claim, and if it does the Court will make a separate determination on that claim.

39. In these circumstances the Claimant should not have the costs of the misrepresentation claim which remains to be determined.

40. In deciding what order to make about costs the Court must have regard to all the circumstances including whether the Claimant has succeeded on part of its case even if it has not been wholly successful⁴.

41. Success is not a technical term but a result in real life.

42. The reality of the case is that the Claimant has succeeded on its principal claim and has obtained the principal, and perhaps the whole of, the relief it seeks.

43. The Claimant may or may not pursue the misrepresentation claim. If it does and succeeds it will have succeeded on the whole of the Case and should have the costs of the whole of the Case.

44. Where a winner fights and loses certain issues, an issue based costs award may be appropriate⁵. The Court will consider the issues on which the parties have succeeded and failed in exercising its discretion. However, there is no automatic rule requiring reduction of a successful party's costs if they lose on one or more issues⁶. If the Claimant pursues the misrepresentation claim and does not succeed, it might or might not be appropriate to award the Defendants the costs of that claim.

45. It is appropriate that at this stage the Claimant should have the costs of the Case but not the separate costs of the misrepresentation claim. The costs of the misrepresentation claim should await the resolution of that claim.

46. The costs orders should reflect the distinction between costs of the case or action and costs of issues. The relevant principles were explained by Justice Dixon in the High Court of Australia in Smith v Madden⁷, where his honour considered the principles applied by English and Irish courts in Medway Oil and Storage Company, Limited v Continental Contractors, Limited⁸, Crean v. M'Millan⁹, and Wilson v. Walters¹⁰

47. Justice Dixon held that on the taxation of the costs of an action in which judgment had been given for the plaintiff on the claim with costs and for the defendant on the counterclaim with costs, the claim should be treated as if it stood alone, and the counterclaim should bear only the amount by which the costs of the proceedings have been increased by it. Justice Dixon explained that in an action where the generally successful party had failed on some issues, the successful party recovered his costs of the action, and the unsuccessful party recovered the costs of the issues on which he succeeded only to the extent that those costs were discrete and had added to the costs of the proceeding:

48. Justice Dixon applied the common law rule which distinguished the costs of the action from the costs of issues to the situation where one party was awarded the costs of the action and the other party the costs of a counterclaim.

49. Later in his judgement Justice Dixon explained the difference between mixed costs, common costs, and costs attributable only to an issue, or, in the case his Honour was considering, a counterclaim:

50. The Claimant will be the successful party, whatever the outcome of the misrepresentation claim. The principal issue in the proceeding between the Claimant and MARJ is whether the Claimant should recover from MARJ the outstanding amount advanced under the Facilities together with interest. The Claimant has succeeded on that issue. The only issue between the Claimant and Mr Juma is whether the Claimant can recover those amounts from Mr Juma under the Guarantee. The Claimant has succeeded on that issue.

51. The order for costs should recognise that whilst the Claimant succeeded in the Case on the whole, it raised an issue - the misrepresentation claim - which has not been resolved and on which it might fail and which increased the costs of the proceeding, It is not appropriate to order that the Defendants have the costs of that issue at this time because the issue has not been resolved.

52. The appropriate order is that the Defendants jointly and severally pay to the Claimant:

Basis of assessment

53. The Claimant contends that its costs should be payable on the indemnity basis.

54. In deciding what order to make about costs, the Court must have regard to all the circumstances, including (1) the conduct of the parties; (2) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and (3) the manner in which a party has pursued its case¹³

55. The Court has a wide discretion to award costs on an indemnity basis where the circumstances justify such an award.

56. Practice Direction No.5 of 2014 provides that in determining whether costs should be assessed on the indemnity basis the Court should take into account, amongst other things, in the exercise of its discretion:

57. The Practice Direction reflects the approach of English courts to the award of indemnity costs. In Excelsior Commercial v Salisbury Hamer¹⁴ , the Court of Appeal of England and Wales held that, for costs to be awarded on the indemnity basis pursuant to CPR 44, there has to be something in the conduct of the action or the circumstances of the case which takes that case "out of the norm". In that case it had been legitimate to award costs on the indemnity basis because the claimant had made a speculative claim and been awarded only nominal damages at trial, whereas the defendant had made numerous attempts to settle the matter without recourse to the court and a substantial Part 36 offer one day before trial.

58. Although it is always a matter for the court's discretion, case law shows that indemnity costs are often ordered when there is some culpability or abuse of process on the part of the party who has to pay costs. Generally, when considering an application for the award of costs on the indemnity basis, the court is concerned, principally, with the losing (paying) party's conduct of the case, rather than the substantive merits of that party's position. The fact that a party advanced and pursued a weak case is not usually sufficient alone to justify indemnity costs. To justify an indemnity order, the litigant's conduct must amount to misconduct deserving moral condemnation or be unreasonable to a high degree and not just be wrong or misguided in hindsight¹⁵

59. In Arcadia Group Brands Ltd v Visa Inc¹⁶ the claimants' claims failed as they were statute-barred but an indemnity costs order was overturned on appeal. The Court of Appeal of England and Wales held that the weakness of a legal argument was not, without more, justification for an indemnity basis of costs, which is in its nature penal. The position might be different if proceedings or steps taken within them were not only based on a plainly hopeless case but were motivated by some ulterior commercial or personal purpose or otherwise for purely tactical reasons unconnected with any real belief in their merit.

60. In Easyair Limited v Opal Telecom Limited¹⁷, Opal had successfully applied to strike out the majority of claims against it by Easyair. In declining to award indemnity costs Lewison J said:

61. The Claimant referred to MAG Financial Services LLC v. Theron Entertainment LLC ¹⁸ where the Court had regard to the absence of any proper evidential basis for the claim and its dependence on an unsustainable contention as to the construction of relevant instruments.

62. The Claimant says that the Defendants ran almost every possible defence and a counterclaim in a hopeless and transparent attempt to avoid immediate judgment, alleging numerous breaches of purported implied terms and reckless or negligent breaches of regulatory rules. The Claimant submits fairly:

63. I am not persuaded that the Defendants defended the debt claim including the claim under the Guarantee with a culpable motive or improper purpose or otherwise such as to amount to an abuse.

64. I am not persuaded that the Defendants’ case was so hopeless that it amounts to unreasonable conduct taking the case outside the norm and justifying an award of indemnity costs. Costs should be assessed on the standard basis.

The Amount of Costs Payable

65. Where the Court orders a party to pay costs to another party it may either make an immediate assessment of the costs or order detailed assessment of the costs¹⁹.

66. The parties have filed statements of costs as follows:

67. The Claimant contends that the amount of costs payable should be determined by a detailed cost assessment, unless agreed.

68. The Defendants object to the statement of costs filed by the Claimant. First, the Defendants say that the Claimant’s statement of costs includes work done in relation to the entire Case, the Claimant can only claim costs for the Immediate Judgment Application because the entire Case has not been disposed of, and accordingly the Claimant’s statement of costs should be rejected. Secondly, the Defendants object to items of the Claimant’s statement of costs. For example, the Defendants say that fee earners have repeat entries with different rates and times and many items of work are not justified. The Defendants submit that by the Claimant’s own submission this is not a complex matter, but a simple debt recovery case and it would be disproportionate to award the amount of costs signed by the Claimant.

69. In the circumstances the appropriate order is an order for detailed assessment of the amount of costs payable by the Defendants to the Claimant.

Interim payment on account of costs

70. Where the Court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed²⁰. Practice direction No. 5 of 2014 [5] provides:

71. It is common practice in the DIFC Courts, as in other Courts exercising a commercial jurisdiction, to recognise that a party who has obtained the benefit of an order for costs in his favour should not be kept out of his money longer than is necessary “whilst the process of assessment grinds through”.²¹

72. The guiding consideration in such a case is to seek to limit the amount of the interim payment to an amount which is not greater than that which will be obtained on assessment. The amount to be awarded should be the “best estimate that [a judge] can make, with caution in mind, on the material that is available.”²²

73. As I have noted above, the Claimant filed a statement of costs prior to the immediate judgment hearing which set out its costs of the entire Case, in the amount of AED 1,195,181.02. I have determined that the Defendants should pay not the whole of the Claimant’s costs of the Case but rather the Claimant’s costs of the Case except the extra costs caused to the Claimant by the misrepresentation claim. Also, the Defendants have raised objections to particular items in the Claimant’s statement of costs and that the costs claimed are disproportionate to the nature and complexity of the case.

74. The appropriate order is that the Defendants pay the Claimant AED 500,000 by way of an interim payment on account.

Time for complying with order for costs

75. A party must comply with an order for the payment of costs within 14 days of the date off the order if it states the amount of those costs or such later date as the court may specify²³.

76. The Claimant submits that the interim payment on account of costs should be paid within 14 days of the Court’s order. There is no material before the Court and no reason has been advanced why the Court should specify a later date for the payment off the interim costs than the date specified in the Rules.

Conclusion

77. The appropriate exercise of discretion is to order: