May 01, 2026 Arbitration - Orders
Claim No: ARB 003/2026
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
OLIWIA
Claimant
and
OMYSHA
Defendant
ORDER WITH REASONS OF H.E. JUSTICE ROGER STEWART
UPON the Arbitration Claim form dated on 7 January 2026 (the “Claim”)
AND UPON the Claimant purporting to serve the Claim form on 8 January 2026
AND UPON the Defendant’s Application No. ARB-003-2026/1 dated 5 February 2026 supported by the first witness statement of Zarghona Fazal of the same date (the “Application”)
AND UPON considering the second witness statement of Othmane Saadani Hassani of 19 February 2026
AND UPON considering the second witness statement of Zarghona Fazel of 26 February 2026
AND UPON considering the parties skeleton arguments dated 23 March 2026
AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing held on 25 March 2026 before H.E. Justice Roger Stewart (the “Hearing”)
AND UPON considering the Claimant’s post hearing submissions of 25 March 2026
AND UPON considering the Defendant’s further submissions of 26 March 2026
IT IS HEREBY ORDERED THAT:
1. Service of the Claim is dispensed with.
2. The Claim is to be treated as having been served on 8 January 2026.
3. Costs will be summarily assessed.
4. The Court provisionally orders the Defendant to pay to the Claimant the sum of USD 30,000 as the costs of the Application within 7 days of the order becoming final.
5. If either party wishes to challenge the provisional order above, it may do so with brief written submissions in writing within 7 days to which the other party may respond within 7 days thereafter and the matter will be decided on paper.
6. If no challenge is made by either party to the provisional order within 7 days, it shall become final.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 1 May 2026
At: 10am
SCHEDULE OF REASONS
Introduction
1. By an application dated 5 February 2026 (the “Application”), the Defendant seeks orders under Part 12 of the Rules of the DIFC Courts (“RDC”):
(a) Declaring that the Court should not exercise jurisdiction in the case; and
(b) Setting aside the Claimant’s purported service of the Claim form on 8 January 2026.
2. The Claimant maintains that the Application should be dismissed and seeks a declaration that the Claim has been validly served:
(a) As the transmission of the Claim complied with a direction from the Court which constituted or should be treated as an order for alternative service under RDC 9.31; alternatively
(b) That the Defendant waived any right to challenge the validity of service by acknowledging receipt of the proceedings and relying on the existence of the Arbitration Claim to advance substantive arguments during the Worldwide Freezing Order return hearing on 9 January 2026; alternatively
(c) To the extent there is an irregularity of service, the Court should exercise its discretion under RDC 4.51 to remedy any procedural defects and treat the claim as validly served.
The Material Facts
3. This action is the second to be issued in the DIFC Courts relating to a substantial underlying dispute between the parties.
4. This action seeks the recognition and enforcement of a Final Arbitral Award dated 16 December 2025 issued by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (the “Final Award”).
5. The Tribunal found the Respondent liable for 50,129,616,964.31 Rubles, equivalent to about USD 628,114,074.64, on the basis of personal guarantees which it found the Defendant had executed in favour of Bank as security for two loan agreements entered into in 2023 with Ojas (“Ojas ”), a Turkish company involved in the wholesale trade of liquid fuels and ores. The Defendant was, at the material time, the sole director of Ojas and a shareholder in it.
6. The Claimant, which is a Hong Kong company, alleges that the Defendant is liable to it on the basis of a series of assignment agreements entered into in 2024 whereby Bank assigned its rights and claims against Ojas and the Defendant to the Claimant. The assignments were formalised by an Additional Agreement dated 23 April 2024.
7. Prior to the issue of the Final Award, the Claimant had sought and obtained a Commercial Precautionary Seizure from the Dubai Courts to secure the Respondent’s assets in the UAE. This was granted on 7 November 2024. The Defendant sought, initially unsuccessfully, to set aside the attachment.
8. On 17 December 2025, the day after the Arbitration Award but in ignorance of it, the Court of Appeal in Dubai set aside the precautionary attachment in Grievance Appeal.
9. The first action, case number ARB-050-2025 (the “first action”) was issued in the DIFC Courts on 19 December 2025. It sought a worldwide freezing order and ancillary relief in support of anticipated enforcement and recognition proceedings relating to the Final Award.
10. An application was made to me, without notice, for a Worldwide Freezing Order in the first action which I granted on Friday 19 December 2025. The Order was sought and obtained on the essential basis:
(a) That the Claimant had a good arguable case based on the Final Award;
(b) That there was a real and immediate risk that the Defendant would dissipate his assets in particular as a result of the lifting of the precautionary attachment at almost the same time as the issue of the Final Award; and
(c) That there were good reasons for seeking and obtaining the Freezing Order without notice.
11. The application was made on the basis that no fortification of the cross-undertaking in damages was required on the basis that the existence of the debt which was the subject of the Final Award provided sufficient security. The Court, however, insisted on the provision of fortification by means of a bank guarantee for USD 5m.
12. The Defendant denies and denied that the loans were made to Ojas and further denies that he personally guaranteed such loans. He asserts that the documents relied on by the Claimant were forged and, in particular, that his signatures were forged. He did not, himself, attend the arbitral proceedings although he did instruct a lawyer in Russia who appears to have played some part, at least to the extent of observing some of the proceedings.
13. The return date for the Worldwide Freezing Order was 7 January 2026. Prior to that date:
(a) On 2 January 2026, the Claimant applied for an order extending the Worldwide Freezing Order until further notice;
(b) On 5 January 2026, the Defendant applied to set aside the Worldwide Freezing Order; and
(c) On 6 January 2026, the Claimant issued the present proceedings, on a without notice basis pursuant to RDC 43.17.
14. There was a dispute between the parties as to whether the return date should be adjourned as a result of the illness of the Claimant’s counsel and as to whether applications had been served. In the course of email correspondence concerning these matters
(a) On 6 January, by an email timed at 17:01pm, the Defendant stated:
“The WFO has been granted in support of proceedings for recognition and enforcement that, even now, have not actually been commenced. It is inappropriate for such relief to remain in place where the proceedings they are supposed to support have not been brought.”
(b) On the same day, by an email timed at 18:06pm to the Registry copied to the Defendant’s lawyers, the Claimant’s lawyers stated:
“The Defendant’s assertion that not proceedings have been commenced is incorrect. The Claimant has filed its claim for recognition and enforcement of the underlying award on an ex parte basis in accordance with the Rules. The Registry is fully aware of that filing. The Claimant is under no obligation to provide the Defendant with supporting documentation at this stage, and the Defendant’s suggestion to the contrary is legally unsustainable.”
(c) On the same day at 18:28pm, the Defendant replied including the statement:
“It goes without saying that the Respondent does not accept the remaining submissions made by the Claimant in its email below, particularly the suggestion that the Claimant is not entitled to see a copy of any recognition application filed”.
15. On 7 January 2026, the Court granted a short adjournment of the return date and the hearing of the applications to 9 January 2026 as a result of the illness of the Claimant’s advocate.
16. On 8 January 2026, pursuant to a request for expedition from the Claimant in the present proceedings the Registry sent a direction from the Court to the Claimant in the following terms:
“Please find the Judge’s direction below:
‘Given the proceedings in case ARB-050-025 and the hearing in that case due to take place on 9 January 2026, the Court directs that the Claimant should give immediate notice to the Defendant, by email to the lawyers representing the Defendant I case ARB-050-025, of the issue of the claim form in case ARB-003-2026 and send copies of the claim form and the accompanying documents to those lawyers.”
17. Later the same day, the Claimant’s lawyers sent the Defendant’s lawyers an email enclosing the arbitration claim form and accompanying documentation. The email materially provided:
“By way of service, please find enclosed our Arbitration Claim ARB-003- 2026 and accompanying documentation.
Given the proceedings in case ARB-050-025 and the hearing in that case due to take place in 9 January 2026, the Court has directed that the Claimant should give immediate notice to the Defendant, by email to the lawyers representing the Defendant in case ARB-050-025, of the issue of the claim form in case ARB-003-2026 and send copies of the claim form and the accompanying documents to those lawyers.”
18. On 9 January 2026, the adjourned return date took place. At the hearing:
(a) The Court, in the course of argument, asked counsel for the Defendant as to receipt of the claim form in the following terms “You know that, I think yesterday, the Claimant issued an arbitration claim form without notice which I directed you should be given immediate notice of, you’re aware of that presumably?”
(b) Counsel replied “Yes, Your Honour, my understanding is that it was issued on the 7th and the court kindly directed and we got it yesterday. So yes, I’m aware of that. There are proceedings.”
19. On 19 January 2026:
(a) The Claimant was requested by the Registry to file a Certificate of Service confirming the date, time and method of service of the Arbitration Claim by no later than noon;
(b) The Claimant replied:
(i) saying that the claim was filed without notice and the claim form together with the supporting materials was “served on the Defendant at the Judge’s request in Case ARB-050-2025”; and
(ii) asking for confirmation as to whether the certificate of service referred to related to “that service effected pursuant to the Judge’s request.
(c) The Registry replied confirming that the Certificate of Service referred to in the Registry’s email related to the service effected pursuant to the Judge’s request;
(d) The Defendant sought from the Registry a copy of the Court’s direction of 8 January which was duly provided;
(e) The Defendant also sought a copy of the direction from the Claimant’s lawyers and asked for confirmation as to whether the Claimant had been directed to serve the arbitration claim form in accordance with RDC 43.63; and
(f) The Claimant filed a certificate of service asserting that the claim form had been served on 8 January 2026 “as per the Judge’s directions”.
20. On 22 January 2026, the Defendant filed an Acknowledgement of Service indicating an intention to contest jurisdiction.
21. On the same date, the Court gave judgment in relation to the applications heard on 9 January. The effect of the judgment was to continue the Freezing Order but not on a worldwide basis. The Defendant has sought permission to appeal against that order which application has been referred to the Court of Appeal.
The Parties Arguments
22. The Claimant submitted:
(a) That there is an inextricable link between the first action and this action;
(b) That the direction on 8 January was an active exercise of the Court’s case management powers;
(c) That compliance with the judicial direction of 8 January 2026 constituted valid service as supported by the Court’s conduct in instructing the filing of a Certificate of Service documenting “the service effected pursuant to the Judge’s request”;
(d) That:
(i) The confirmation provided by the Defendant at the 9 January hearing as to receipt of the proceedings;
(ii) The statement that “there are proceedings”; and
(iii) The absence of any reservation of rights;
together amounted to a waiver of any procedural objection to service;
(e) That, if there were any procedural objections to valid service, the Court could and should remedy the same pursuant to RDC 4.51 and the decision of this Court in Andrew’s Raof v KBH Ltd DIFC CFI 052-2023 in which the Court stated that the rules and procedures should not “become tools for unjust advantage”; and
(f) That the Defendant had received the claim form and suffered no prejudice.
23. The Defendant’s essential submissions were;
(a) That the purported service on 8 January 2026 was not good service as:
(i) There had been no indication in writing that electronic service of the claim form would be accepted for the purposes of RDC 9.3; and
(ii) There was no court order for service by an alternative method;
(b) There was no waiver of the right to challenge service; and
(c) There is no power retrospectively to dispense with service or authorize service pursuant to RDC 4.51 but ever if there was, there would be no good reason to exercise the power on the facts of this case.
24. The Defendant made the following main points in support of its submissions:
(a) No sensible reading of the Defendant’s lawyers’ correspondence indicated an express willingness to accept service of process in the second action by electronic means;
(b) Any attempt by the Claimant to rely on an implicit agreement by electronic means would require it first to seek to clarify whether there were any limitations to the Defendant’s agreement to accept service in accordance with RDC 9.3(3);
(c) The Court’s direction was not and could not be understood to be a direction permitting alternative service as:
(i) The direction was a direction made in and for the purposes of the first action prompted by the exchanges with the Registry on 6 January;
(ii) The direction did not purport to be an order for service by an alternative method as:
1. It did not concern service but required notice of the claim form to be given; and
2. There was no date specified by which the Defendant would be deemed served which would be required under RDC 9.33
(iii) There was no application by the Claimant for service by an alternative method supported by evidence as required by RDC 9.32;
(d) There was no act or statement demonstrating that the Defendant unequivocally renounced the right challenge service;
(e) There are express powers contained in the RDC to dispense with service altogether or to authorize retrospectively service by an alternative method as set out in RDC 9.34 and 8.31;
(f) The general power under RDC 4.51 cannot be used to override a specific provision in the RDC that caters for an event in accordance with Vinos v Marks & Spencer [2001] 3 All ER 783 at [20] and Ideal Shopping v Mastercard [2022] EWCA Civ 14 at [146] which are English decisions on the identically worded CPR 3.10;
(g) The decision in Andrew Raof v KBF Ltd [2023] DIFC CFI 052, in that it holds that the Court can treat a claim form as being validly served under RDC 4.51 is wrongly decided with the consequence that the Court should decline to follow it; and
(h) That if there is power to cure the procedural failure, the Court should decline to exercise it on the grounds that the Claimant failed to comply with straightforward procedural rules without good reason.
Discussion
25. At the heart of this Application are two tensions:
(a) The first is the relatively narrow tension between ensuring that there are clear mandatory rules identifying how a Defendant should be given valid notice of a claim whilst not insisting on over-technical compliance in a way which leads to injustice; and
(b) The second is the broader tension between giving the Court wide powers to overcome procedural defects (as exemplified in RDC 4.51) and the need for some certainty as to how Rules will, on occasion, be relaxed which is reflected in the existence of specific powers within the Rules to do such things as specify means of alternative service or retrospectively justify methods of alternative service.
26. These tensions have to be considered in the context of the procedural rules which are in force in the DIFC and the general rules of construction. Those Rules have significant elements in common with the English Civil Procedure Rules. Thus RDC 4.51 is identical to CPR 3.20. Further the two sets of Rules have very similar overall objectives. However:
(a) The Rules as a whole are not identical to each other;
(b) One of the areas in which there are important differences concerns the function and importance of the service of proceedings and the detailed rules concerning the same;
(c) Although decisions of the English Courts, particularly the English Court of Appeal, are accorded very significant respect, especially when considering the interpretation of English procedural Rules which are the same or very similar to the RDC:
(i) It is only decisions of the Court of Appeal of the DIFC which bind me;
(ii) A proper process of interpretation requires consideration of the DIFC Rules as a whole which, as set out above, are not the same as the CPR Rules even if individual rules are identical; and
(iii) where there is a first instance decision of the DIFC which considers a question as to construction of the DFC Rules I should follow it unless I consider it to be clearly wrong.
27. For reasons which I set out below, I consider:
(a) There was no order, whether by the direction of 8 January or otherwise, which permitted service by alternative means;
(b) That the Defendant did not consent, either expressly or impliedly, to service of the proceedings in this action by electronic means;
(c) That the Defendant did not waive the right to object to jurisdiction on the basis that the proceedings had not been validly served; but
(d) That there is, nonetheless, power pursuant to RDC 4.51 to cure the procedural defects which I have found to exist so as to waive the requirement for service and treat the Claim as being validly served on 8 January 2026; and
(e) That I should exercise that power.
28. Prior to 8 January, the Defendant did not expressly or impliedly consent to the service of proceedings on it by electronic means.
29. Further although RDC 9.3(2)b provides that email address set out on a “statement of case or a response to a claim filed with the Court”, shall be a sufficient written indication of such willingness, there was no relevant statement of case or response to a claim in the present proceedings.
30. The Claimant sought to rely on the Acknowledgement of Service filed in the first action and/or correspondence in the first action and the decision of H.eE. Justice Rene Le Miere in Andrew Raof. The Judge there held that an acknowledgement of service in the Small Claims Tribunal could amount to an agreement to accept service when the proceedings were transferred to the Court of First Instance.
31. In that case:
(a) The Claimant issued proceedings in the Small Claims Tribunal in an employment dispute asserting (falsely as the Judge found), that the parties had agreed to the matter being determined in the SCT when they had not;
(b) The Defendant filed an Acknowledgement of Service challenging jurisdiction on the basis that there was no such agreement but giving an email address for service;
(c) The SCT made an order transferring the matter to the CFI on the basis that the parties had not agreed to the dispute being heard in the CFI;
(d) The Claimant then issued a claim form in the CFI and the Defendant filed a further Acknowledgement of Service and challenged jurisdiction on a series of bases:
(i) That the claim form in the CFI amounted to a fresh claim;
(ii) That it was issued outside the applicable 6 month limitation period; and
(iii) That there had been no agreement to service by electronic means;
(e) The Judge dismissed the Defendant’s challenge on the basis
(i) That the order for transfer did not bring the SCT proceedings to an end but instead meant that the proceedings originally brought in the SCT would be continued by way of the procedures adopted in the CFI so that the SCT and CFI proceedings concerned the same claim (see paragraphs 52, 59 and 111);
(ii) That the proceedings were brought in time in respect of limitation in respect of the financial claims as the SCT proceedings were brought within 6 months of the termination of employment (see paragraph 59);
(iii) That the proceedings were brought out of time in respect of separate Part 9 claims for discrimination which were brought in the CFI (but not the SCT) as being brought more than six months after the relevant act (see paragraph 73);
(iv) That the Court would nonetheless extend the limitation period for the Part 9 claims in the exercise of its discretion (see paragraph 95); and
(v) That the CFI Claim was validly served by email given the Acknowledgment of Service in the SCT which constituted a “response to a claim” and had indicated an email address for service (see paragraph 108); alternatively
(vi) That any defect in service would be remedied pursuant to RDC 4.51.
32. It was essential the Judge’s decision in respect of the Acknowledgement of Service in the SCT that it be in the same proceedings. Here, the first action and the second action are not the same proceedings. They seek different relief and were issued for different purposes. It is, no doubt, the case that a single set of proceedings could have been issued seeking both the Freezing Order and recognition and enforcement of the Final Award. However, that does not mean that the first and second action are the same actions – the Claimant chose to take a different course and have two separate actions. It follows that the decision in Andrew Ruof is of no assistance to the Claimant in respect of reliance on the address given in the acknowledgement of service in the first action.
33. The above conclusion makes it unnecessary for me to consider or resolve the Defendant’s further argument that Andrew Ruof is wrongly decided in holding that an Acknowledgement of Service was a response to a claim given the decision of H.E. Justice Omar Al Muhairi in Union Bank of India v Velocity [2020] DIFC CFI 025 at [15] that an Acknowledgement of Service does not constitute such a response.
34. So far as the direction of 8 January is concerned:
(a) I essentially accept the Defendant’s submissions on this point:
(b) The direction, which is clearly set out in the Registry’s email of that date as quoted above:
(i) Was not made pursuant to any application by the Claimant and was not supported by a witness statement as required by the rules;
(ii) Did not purport to be a direction permitting or requiring alternative service;
(iii) Required not “service” of the proceedings but “notice” of the same;
(iv) Did not set out any date when service would be deemed effected as required by RDC; and
(v) Was plainly made for the purpose of the return date in the first proceedings, and, in particular, to ensure that the hearing did not proceed on a false basis with respect to the question as to whether the proceedings in this action had been issued.
35. I do accept that the Claimant may have been confused as to the status of the direction given by the Court’s subsequent request for a filing of a confirmation of service and that this request related to what had occurred on 8 January. However:
(a) It was the Claimant which had stated that it was providing the Claimant with the Claim form and accompanying documents by way of service;
(b) The request could not and did not purport either to be a direction for alternative service or a validation of invalid service.
36. As to waiver:
(a) I accept the Defendant’s submission that what is required to amount to a waiver is an act that clearly conveys to the Claimant and the Court that the Defendant is unequivocally renouncing his right to challenge jurisdiction – see Deutsche Bank v Petromena [2015] EWCA Civ 226;
(b) Nothing done or said at the hearing on 9 January amounted to such an act;
(c) It is perfectly true that it was made clear by the Defendant that the Defendant had received the documents, but that did not mean that there was an acceptance of valid service still less any unequivocal renunciation of a right to challenge the validity of service; and
(d) There was no requirement for the Defendant to reserve any rights to challenge service at the hearing on 9 January when making submissions. That hearing was taking place in the first action and was not concerned with the validity of service in the present proceedings.
37. It follows that in order for there to be valid service, the Claimant requires relief under RDC 4.51.
38. By its terms, that rule grants apparently wide powers to the Court in the following terms:
“Where there has been an error of procedure such as a failure to comply with a Rule or Practice Direction:
(1) The error does not invalidate any step taken in the proceedings unless the Court so orders; and
(2) The Court may make an order to remedy the error.”
39. The English rule CPR 3.10 is in identical terms.
40. In submitting that there is no power to grant relief under RDC 4.51, the Defendant relies on two decisions of the English Court of Appeal (and cases referred to in those decisions) as supporting the proposition that the general power cannot be sed to override a specific provision that caters for the procedural failure in question.
41. The first is Vinos v Marks & Spencer [2000] EWCA CivB526. The case concerned a personal injury accident in which proceedings were issued shortly before the three year limitation period. They were then not served within the four month period for service but were served 9 days late as a result of an error by the Claimant’s solicitors. The Claimant then sought an extension of time. This was, of course, after the period for service had run out. CPR 7.6(3) provided that in such circumstances, the Court could make an order for an extension “only if” certain conditions were satisfied which included either that the Court had been unable to serve the claim form or “the claimant has taken all reasonable steps to serve the clam form but has been unable to do so”.
42. The Claimant was unable to satisfy the above condition. May LJ held, in the circumstances, at paragraph 20:
“The general words of Rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time. What Mr Vinos needs in substance needs is an extension of time – calling it correcting an error does not change its substance. Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that that because Mr Vinos case is a deserving one, the rues must be interpreted to accommodate his particular case.”
43. Peter Gibson LJ delivered a concurring judgment in which he stated at [26] and [27]:
“The construction of the Civil Procedure Rules, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the Civil Procedure Rules, unlike their predecessors, spell out in Part 1 the overriding objective of the new procedural code. The Court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use in rule 1.1(2) of the word “seek” acknowledges that the court can only do what is possible. The language of the rule may be so clear and jussive that the court may not be able to do what it may otherwise consider to be the just way of dealing with the case….”.
A principle of construction is that general words do not derogate from specific words. Where there is an unqualified specific provision, a general provision is not to be taken to override that specific provision. Rule 7.6 is specific sub-od dealing with the extension of time in all cases where the time limits in rule 7.5 have not been or are likely not to be met. The sub- code sets ou in some detail wha the claimant must do if he wants an extension of time and the circumstances in which the court may exercise the discretion conferred on it to extend the time: rule 7.6(3). That the circumstances specified in sub-paragraphs (a), (b) and (c) of rule 7.6(3) are the sole relevant conditions for the discretion t be exercisable seems to me to be made crystal clear by the words “only if”. It is plain that the general power in paragraph 3.1(2)(a) to extend time cannot override rule 7.6. Nor, in my judgment, could the general power in rule 3.10 to remedy a failure to comply with a rule be pressed into service to perform the like function of in effect, extending time….”
44. The decision in Vinos has been followed in several English authorities as summarized in Ideal Shopping v Mastercard [2022] EWCA Civ 14. In that case, Sir Julian Flaux C:
(a) Summarised the effect of the existing decisions as being
“The general provision in rule 3.10 cannot be used to override a specific provision, here rule 6.15 or rule 6.16. The appellants could not satisfy the “good reason” or “exceptional circumstances” criteria under those two rules and they are not permitted to use rule 3.10 to bypass the requirements of those specific provisions. Likewise, since the appellants could not have satisfied condition (b) of rule 7.6(3), as they could not have shown that they had taken all reasonable steps to comply with rule 7.5 or that they had been unable to do so, they cannot be permitted to use rule 3.10 to bypass the requirements of rule 7.6(3).”
45. Read correctly, I do not consider that the English cases are authority for as wide a proposition as contended for by the Defendant. Rather, they are authority for the propositions:
(a) That the Civil Procedure Rules are to be construed, like any statutory provision, as a whole;
(b) That where a specific rule limits the substantive circumstances in which relief can be given, the general power in rule 3.10 cannot be used to circumvent the limitation as an aspect of the general rule of construction that the specific trump the general.
46. Thus, the real question is as to whether the apparently general power contained in RDC 4.51 is circumscribed by other provisions of the RDC. As to this:
(a) RDC 9.31 provides “Where it appears to the Court there is a good reason to authorize service by a method not permitted by these Rules, the Court may make an order permitting service by an alternative method.
(b) RDC 9.32 provides that an application for an order permitting service by an alternative method (1) must be supported by evidence stating (a) the reason for an alternative method of service is sought; and (b) what steps have been taken to serve by other permitted means; and (2) may be made without notice”;
(c) RDC 9.34 provides that the Court may dispense with service of a document; and
(d) RDC 9.35 provides that an application for an order to dispense with service may be made without notice.
47. I do not consider RDC 9.32 requiring the service of evidence covering specific matters to have the same effect as the “sub-code” of provisions dealing with service in the English CPR. It does not provide expressly, for example, that the Court may only make an order for alternative service if the provisions of RDC 9.32 are complied with. Nor does it require the court only to grant relief under RDC 9.31 if certain substantive provisions are complied with. No doubt the Court would consider the matters identified in RDC 9.32 in deciding to make an order under 9.31 but it does not follow that the making of an order under RDC 4.51 is precluded.
48. The matter is even clearer in relation to RDC 9.34 where there is no mandatory requirement set out and no matters governing the circumstances which the Court should take into account.
49. Further, even if it were required to issue an application or for a witness statement to cover particular matters, the only effect of the Rules might be to require the issue of an application or a witness statement with particular matters covered. Where the court was satisfied that that was unnecessary, this would seem to do nothing more than generate cost and run counter to the Overriding Objective.
50. I also consider the decision of H.E. Justice Rene Le Miere in Andrew Raof to be of importance. Although his conclusion as to the extent of the power contained in RDC 4.51 was, I consider, obiter given that he considered there was not procedural defect to remedy, I consider that I should follow it unless I considered it to be wrong.
51. He considered:
(a) That the Court’ s power in RDC 4.51 derived from what was then Article 44 of the DIFC Courts Law 2004) (now substantially reenacted in Article 27 of the Courts Law 2025));
(b) That a failure to serve a claim form in accordance with the Rules was an error in procedure (paragraph 119);
(c) That, unlike in certain other common law jurisdictions, the jurisdiction of the Court does not depend on service of originating process;
(d) That the Court has held that the power can be used in the case of mandatory procedural rules (paragraph 120); and
(e) That the Court aims to achieve a just and fair outcome and that although rules should be complied with, they should not become tools for unjust advantage (paragraph 121).
52. The Judge did not expressly consider the English authorities which were drawn to my attention but it is clear that the Judge was fully aware that the importance of service and the Rules surrounding them could vary in different jurisdictions. Further, I consider that his overall approach fully reflects a construction of the RDC as a whole. Accordingly, far from considering the observations on the point to be wrong, I consider them to be correct.
53. It follows that I reject the Defendant’s submission that there is no power under RDC 4.51 to grant relief.
54. I am relieved to have come to that conclusion as I consider that it is appropriate, in this case to dispense with service altogether. This is for the following reasons:
(a) Although the first action and this one are not the same action, they are closely connected and arise in relation to the same underlying dispute;
(b) The Defendant is represented in both actions by the same lawyers and has had full knowledge of and, indeed, possession of the proceedings since 8 January 2026;
(c) The circumstances which I have set out including the direction of 8 January 2026 were to make understandable, if not correct, the actions of the Claimant and the belief that it was entitled to serve by email;
(d) The Defendant has not suffered any prejudice and will not suffer any prejudice by service being dispensed with; and
(e) The only effect of granting the relief sought by the Defendant will be to delay the substantive progress of the action and increase costs.
Costs
55. Each side has served statements of costs. The Claimant’s statement sought USD 40,000 whilst the Defendant sought AED 241,524.36 (equivalent to USD 65,763.86).
56. I was not addressed on costs. In the circumstances, I consider the proper course is to set out my provisional view but to allow either party to make submissions on costs within a short period.
57. My provisional view is that the Defendant should pay USD 30,000 to the Claimant assessed as follows:
(a) the Claimant is the successful party in respect of the Application;
(b) It has nonetheless failed in respect of two limbs of the application and there should be some reduction in the amount sought, which I consider to be 25% to reflect such failure; and
(c) There is no reason to reduce the amount of costs given the overall amount of USD 40,000 and the level of the Defendant’s costs.
