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CFI 016/2009 – Order

CFI 016/2009 – Order

March 23, 2010


Claim No: CFI 016/2009






UPON reading the Defendant’s Application for orders that:

1. The deemed order for costs in favour of the Defendant on the Claimant’s discontinuance by reason of RDC 34.15 and 38.42(3) be assessed on the indemnity basis.


2. The Claimant make a payment to the Defendant on account of the costs to be assessed in the sum of AED 309,000.00 (IS$84,000) under RDC Rule 38.18.


3. Mohamed Abdel-Khaleq Mohammed Abu Al Haj be joined as a party to these proceedings pursuant to RDC Rules 20.7(2) and 20.11.


4. Mohamed Abdel-Khaleq Mohammed Abu Al Haj be jointly and severally liable with the Claimant to pay the costs of the Defendant referred to at paragraphs 1 and 2 above.


5. Mohamed Abdel-Khaleq Mohammed Abu Al Haj and the Claimant be jointly and severally liable to pay to the Defendant the costs of this application to be assessed on an indemnity basis

AND the evidence filed by the Defendant in support

AND UPON reading the evidence filed by the Respondent and the Proposed Third Party in response to the Application

AND UPON reading the joint Application of the Claimant and the Third Party for adjournment of the hearing set for 23 March 2010

AND UPON reading the Defendant’s Application for its costs of the hearing of the adjournment application on 22 March 2010

AND UPON hearing counsel for the Defendant and the Claimant and counsel for the proposed Third Party


1. The joint Application of the Claimant and Third Party for an adjournment is granted on the condition that the Claimant and Third Party undertake to comply with the Order
contained in paragraph 2 below.


2. Pursuant to RDC 38.18 and in respect of the Defendant’s Application (2) above, the Claimant shall pay into Court no later than 5pm on Thursday, 25 March 2010 the sum of US$65,000 on account of the costs to be assessed. The said sum of US$65,000 shall be held by the Court in an interest bearing account to await further order of the Court. The payment may be made by cheque. If no such payment is made or if payment is made by cheque, but the cheque is not honoured, the order for adjournment made in paragraph 1 above will be deemed inoperative and the case in respect of the Defendant’s claim for costs shall, at the election of the Defendant, be heard and determined at the earliest practicable time, such time to be fixed by the Court on the Application of the Defendant.


3. In respect of the Defendant’s Applications (1), (3), (4) and (5) above the following directions are made:
(a) Paragraph 15 of the Fichte & Co letter dated 20 March 2010 is hereby struck out. A signed replacement of the letter omitting paragraph 15 shall be filed bearing a Statement of Truth in respect of that letter.
(b) The Second Witness Statement of the Proposed Third Party shall be replaced by a fresh Witness Statement which specifies with precision which parts of the Fichte & Co letter of 20 March 2010 are incorporated.
(c) The Defendant shall no later than 6 April 2010 file in the Court and serve on the Claimant and the Proposed Third Party further particulars of its Statement of Costs in the Case dated 4 January 2010 providing:
(i) a breakdown of the costs with regard to, first, its costs application and, secondly, its application for joinder of third party;
(ii) clarification of how the disbursements relating to Michael Black’s fees are composed;
(iii) particularising the work on attendance and documents so as to identify the particular documents work is being claimed for as well as the time spent on each document.
[Note: if it is impracticable to comply with (i) and (iii), the Defendant shall so indicate and explain why compliance is impracticable].
(d) The Claimant and Proposed Third Party shall file and serve no later than 19 April 2010:
(i) Answers in the form of skeleton arguments with accompanying authorities relied upon in response to the Defendant’s skeleton of 17 March 2010; and
(ii) Any further Witness Statements in support of such Answers.
(e) If any party wishes to apply under RDC 29.58 for permission to cross-examine any witness whose witness statement has been served, it shall do so no later than 26 April 2010.
(f) The Defendant to file and serve a Reply to Answers and any Reply or Supplemental Witness Statements no later than 6 May 2010.
(g) The Defendant’s Application for Indemnity Costs and its Application for Joinder shall be heard before Justice Sir John Chadwick on Sunday, 16 May 2010 at 10am (one day allocated).
Note: The hearing on Sunday, 16 May 2010 is an in person hearing where all counsel must be present in person.


4. As to the Defendant’s Application for its costs of the hearing of the adjournment application on 21 March 2010, the Application is refused since the primary, if not sole, cause of the need for an adjournment was the discharge of counsel for the Claimant due to a conflict of interest, a matter beyond the control of the Claimant and the Proposed Third Party. No costs to be awarded to any party.


Justice David Williams
Date of Issue: 23 March 2010
At: 3.45pm



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