Claim No: CA-012-2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
PETER MATTHEW JAMES GRAY
GIBSON DUNN & CRUTCHER LLP
ORDER OF THE COURT OF APPEAL
UPON reading the Appellant’s submissions on costs dated 16 March 2017 and the Respondent’s submissions on costs dated 27 March 2017 following the judgment of this Court on 12 March 2017
IT IS HEREBY ORDERED THAT the Appellant shall pay the Respondent its costs of the application both in the Court of First Instance and in the Court of Appeal on the standard basis, such costs to be the subject of assessment by the Registrar, if not agreed.
Nassir Al Nasser
Date of Issue: 27 April 2017
1.There is no reason to depart from the general rule in Rule 38.7 of the Rules of the DIFC Courts (“RDC”) that costs should follow the event and be paid by the unsuccessful party on the standard basis. In making any decision on costs the Court must, in accordance with RDC 38.8(3) have regard to all the circumstances but there is nothing in the circumstances surrounding the application and appeal which could lead to any other conclusion.
2. When the matter was in the SCT, there was agreement as to the existence of a binding arbitration agreement, from which the Appellant (“Mr Gray”) then sought to resile by making the application to the Court of First Instance which failed.
3. There is nothing in the conduct of the Respondent (“GDC”) at any stage, (whether prior to the first instance hearing or prior to the Court of Appeal hearing) which gives rise to any basis for departing from the general rule.
4. Prior to the first instance hearing, Mr Gray sought concessions from GDC about the venue, rules and procedure for the arbitration. GDC in a witness statement and correspondence showed a willingness to discuss such matters, but no agreement was reached. Mr Gray continued to pursue his application which failed.
5. Mr Gray did not succeed in any sense at first instance, which is why costs were awarded against him by the first instance judge. GDC sought dismissal or stay of the proceedings as alternatives and the essential argument was whether there was a valid agreement to arbitrate, on which it succeeded.
6. After launching his appeal and prior to the hearing in the Court of Appeal, Mr Gray, in a letter of 12 September offered to arbitrate on an ad hoc basis, as opposed to proceeding to arbitrate under the terms which had been agreed in the contract between the parties. Once again GDC showed a willingness to negotiate and although agreement was reached on some issues, no overall agreement resulted. GDC were entitled to insist on the agreed form of arbitration and did not act unreasonably in the circumstances.
7. Issues of quantum are matters for assessment by the Registrar if not agreed and it is for him to decide whether matters extraneous to the proceedings are contained in GDC’s bill of costs.
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