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Arabtec Construction LLC v Ultra Fuji International LLC [2007] DIFC CFI 004

Arabtec Construction LLC v Ultra Fuji International LLC [2007] DIFC CFI 004

March 10, 2009

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Claim No CFI 004/2007

THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE COURT OF FIRST INSTANCE

Between

ARABTEC CONSTRUCTION LLC

Claimant/Part 20 Defendant

and

ULTRA FUJI INTERNATIONAL LLC

Defendant/Part 20 Claimant


JUDGMENT OF JUSTICE SIR JOHN CHADWICK ON CLAIMANT’S APPLICATION FOR INDEMNITY COSTS ORDER


I am not persuaded that this is a case in which an Order for the assessment of the Claimant’s costs on an indemnity basis should be made. In reaching that conclusion I have taken account of the points made in the letter of 10 February 2009 from Clyde & Co LLP. Although there is force in those points I am satisfied:

 (a) That, to the extent that additional costs were occasioned by the Defendant’s failure to take any part in the proceedings between April and August 2008, the Claimant is sufficiently compensated by the Order for costs made on 21 August 2008;
(b) That the Claimant was not, in the event, disadvantaged by the Defendant’s failure to make full disclosure of documents in response to the Order of 21 August 2008;
(c) That it would be disproportionate to expend further time in seeking to determine whether the Defendant’s failure to comply with that Order was contumacious; and
(d) That, to the extent that the length of the trial was prolonged by the conduct of the Defendant’s case, the Claimant is sufficiently compensated by an Order that the Defendant pay the whole costs of the trial on the standard basis.

Nevertheless, I direct that, in assessing the costs of the trial on the standard basis:

(a) Regard be had to the fact that any additional costs incurred by the Claimant in connection with the need for an adjourned hearing in December 2008 were attributable to the manner in which the Defendant chose to advance its case during the hearing in November 2008; and
(b) The reasonable travel and accommodation costs of the Claimant’s expert witness (Mr Lindsey) and of the Bureau Veritas employee (Mr Madi) be allowed on the grounds that the attendance of those witnesses was made necessary by the Defendant’s refusal to agree to their respective written reports being admitted as evidence without formal proof.

 

Justice Sir John Chadwick
Dated: 10 March 2009
At 4pm

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