Case No. ARB 005/2025

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

(1) NAJEM (2) NEX

Defendants/Appellants

and

NASHRAH

Claimant/Respondent

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ORDER WITH REASONS OF H.E. CHIEF JUSTICE WAYNE MARTIN

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UPON the Claimant’s ex parte Urgent Application No. ARB-009-2025/1 dated 20 January 2025 (the “Injunction Application”)

AND UPON the ex parte interim injunction Order of H.E. Justice Shamlan Al Sawalehi dated 20 January 2025 (the “Injunction Order”)

AND UPON the Defendants’ Application No. ARB-005-2025/2 dated 4 February 2025 seeking an order to discharge the Injunction Order (the “Discharge Application”)

AND UPON the Order of H.E. Justice Shamlan Al Sawalehi dated 6 February and the Reasons of the Order dated 19 February 2025, dismissing the Discharge Application and upholding the Injunction Order (the “6 February Order”)

AND UPON the Defendants’ Appeal Notice dated 12 March 2025 seeking permission to appeal the 6 February Order (the “Application for Permission to Appeal”)

AND UPON the Order with Reasons of H.E. Justice Shamlan Al Sawalehi dismissing the Application for Permission to Appeal

AND UPON the Defendants’ Renewed application for Permission to Appeal dated 1 July 2025

AND UPON the Claimant’s submissions in opposition dated 22 July 2025

IT IS HEREBY ORDERED THAT:

1. Permission to appeal is granted in respect of grounds 1, 3 (amended by the addition of the words specified in the reasons attached to these Orders), 4, 5, 6, 7, 9 and 11.

2. Permission to appeal is refused in respect of grounds 2, 8, 10 and 12.

3. Enforcement of the costs orders made against the Appellants to date in these proceedings is stayed until the determination of the appeal or further order.

4. As a condition of the grant of permission to appeal the Appellants are to pay into the Court the amount of USD 80,000 within thirty-five (35) days of the date of these orders, with liberty to apply to vary the date upon which payment is to be made.

5. The Registrar is to fix a timetable for the steps appropriately taken to prepare the appeal for hearing so that the appeal can be made ready and heard within the shortest time which is reasonably practicable.

6. The costs of the Renewed Application are reserved to the Court hearing the appeal.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 30 July 2025
At: 3pm

SCHEDULE OF REASONS

Summary

1. The Defendants, the Estate of the Late Mr Najem and Mr Nex (the “Appellants”) have made a Renewed Application to the Court of Appeal (the “Renewed Application”) for permission to appeal from the decision of the Judge at first instance (the “Judge”) made on 6 February 2025, for reasons published on 19 February 2025, extending the operation of an anti-suit injunction (“ASI”) which had been granted after an ex parte hearing on 20 January 2025 on the application of the Claimant, Nashrah (the “Respondent”). For the reasons which follow the Appellants have established that they have a real prospect of success in relation to some but not all of the proposed grounds of appeal and permission to appeal will be granted in respect of those grounds.

Factual context

2. It is important to emphasise that the decision in respect of which permission is sought is an interim interlocutory decision,¹ for a number of reasons.

3. The first of those reasons is that:

“When considering an interim injunction, the views of the Judge on the law and the facts going to the merits of the final relief claimed, can never be more than provisional. The final determination of the applicable law and the relevant facts, and the application of the law to the facts as found must await a final hearing in which the issues are agitated before the Court by all parties.”²

4. It follows that any reference to the facts of the case and the application of the law to those facts in these reasons must also be regarded as provisional and subject to determination following a final hearing of these proceedings.

5. The Respondent is a company incorporated in the UK on 1 November 2022 with no known assets in Dubai or the DIFC. The evidence suggests that the Respondent has limited assets in the UK. It seems that the Respondent engages in the provision of emergency air ambulance services.

6. The late Mr Najem instructed Mr Nex, who is a pilot, to engage air ambulance services to transport Mr Najem’s wife from Switzerland, where she was receiving chemotherapy treatment, to South Korea. Mr Nex engaged the Respondent’s services as agent for the late Mr Najem and substantial fees were paid to the Respondent. The Appellants claim that those fees must be refunded, and that claim is the underlying dispute between the parties.

7. The contract between the Respondent and the Appellants does not specify the governing law. It contains a dispute resolution clause which provides that if a dispute between the parties is not resolved by agreement:

“Either Party may by written notice to the other require that the dispute be referred to arbitration under the DIFC London Court of International Arbitration (DIFC-LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause. …. The seat, or legal place, of arbitration shall be Dubai, United Arab Emirates. All proceedings in any such arbitration shall be conducted in English.”

8. The contract was entered into after Dubai Decree No. 34 of 2021 (“Decree 34”) effectively abolished the DIFC-LCIA as an arbitral institution. The proper construction and effect of the dispute resolution clause, having regard to the terms of Decree 34 and the question of who should determine that issue are contentious issues in the various proceedings which have been instituted and to which reference will be made.

The procedural context

9. The Appellants commenced proceedings against the Respondent in the English High Court on 18 January 2024. On 6 February 2024 the Respondent filed an Acknowledgement of Service in those proceedings and indicated that it intended to dispute the jurisdiction of the English High Court. On 20 February 2024 the Respondent applied for an order staying the proceedings in favour of arbitration (the “Stay Application”) pursuant to s 9 of the Arbitration Act 1996 (UK). The Court indicated that the Stay Application would be listed for hearing between March and June 2024, and unavailable dates were provided to the Court.

10. However, before the Stay Application was listed, on 18 April 2024 Mr Najem passed away. The English proceedings stalled and on 14 May 2024 the English Court made an order by consent vacating the Stay Application, to be relisted on application by any party.

11. In November 2024, having received confirmed instructions from the Estate of the Late Mr Najem , the Appellants resumed the prosecution of the English proceedings.

12. On 13 December 2024, without prior notice, the Respondent filed a Request for Arbitration in the Dubai International Arbitration Centre (“DIAC”). The relief sought in the arbitration is a declaration to the effect that there is a binding arbitration agreement between the Appellants and the Respondent. No other relief is sought.

13. The Appellants were first notified of the request for arbitration on 24 December 2024, by DIAC. DIAC asserted that there was no prima facie basis for a claim against the late Mr Najem and gave Mr Nex until 24 January 2025 within which to file an Answer to the Request.

14. On 15 January 2025 the Appellants applied for an injunction in the English proceedings restraining the Respondent from prosecuting the arbitration proceedings. The hearing of the Application for the Anti-Arbitration Injunction (“AAI”) was listed for 21 January 2025.

15. The day before that hearing was to occur, the Respondent commenced proceedings in this Court seeking an anti-suit injunction restraining the Appellants from prosecuting the English proceedings and applied for an interim injunction to that effect without notice to the Appellants.

16. After hearing the Application, the Judge granted an interim injunction until further order or the return date, restraining the Appellants from prosecuting their Application for the AAI.

17. The proceedings and interim injunction were served on the Appellants who, on 4 February 2025, applied to discharge the interim injunction. That Application was heard on the return date for the continuation of the interim injunction, which was 6 February 2025.

18. After hearing argument the Judge dismissed the Application to discharge the interim injunction and ordered the continuation of the injunction which he had granted on 20 January 2025, for reasons to be published in due course.

19. The Judge’s reasons were published on 19 February 2025. Passages in those reasons raised a doubt as to the ambit of the order which had been made, and in particular, whether the order restrained the Appellants from merely prosecuting their Application for an AAI, or whether it restrained the Appellants from prosecuting the English proceedings in any form or manner. Following the exchange of correspondence between the parties and the Registry on that topic, the Judge instructed the Court Registry to advise that the Respondent’s view of the ambit of the Court order was correct, the Respondent having asserted that the order restrained the prosecution of the English proceedings in any form or manner. As a consequence of that correspondence, the Stay Application in the English proceedings, which was to be heard in the near future, was adjourned and the English proceedings were stayed until further order.

20. In the meantime, on 19 February 2025 the Appellants applied for a declaration that this Court has no jurisdiction to entertain the claim.

21. On 12 March 2025 the Appellants gave notice of appeal from the order of the Judge continuing the ASI. On 20 March 2025, the Appellants applied for orders staying the proceedings until their appeal had been determined.

22. The Judge dealt with the Appellants’ Applications for:

on the papers and on 23 June 2025 published his reasons for dismissing all Applications.

23. On 1 July 2025 the Appellants filed the Renewed Application and following the exchange of skeleton arguments the matter was referred to me for determination. I considered that the Renewed Application could and should be determined on the papers, and that is the course which has been followed.

Permission to appeal – legal principles

24. RDC 44.117 provides:

25. RDC 44.5 requires that an appellant obtain permission to appeal to the Court of Appeal except where the appeal is against a committal order.

26. RDC 44.19 provides:

27. RDC 44.19 provides that permission to appeal may only be given where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

28. In the context of an assessment of the prospects of success “real” means realistic rather than fanciful and involves the same test as is applied in applications for immediate judgment.³

29. A real prospect of success does not mean a probability of success, but more than mere arguability.⁴

30. “Some other compelling reason why the appeal should be heard” may include the public interest in clarifying the meaning and scope of relevant practice and provisions of DIFC and wider UAE law.⁵

31. It is established that “real” in the context of an assessment of the prospects of success means realistic rather than fanciful, applying the same test as is applied in an application for immediate judgment.⁶

32. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.⁷

33. Accordingly, in order to obtain the grant of permission a prospective appellant needs to establish more than the proposition that the proposed appeal is reasonably arguable – rather, it must be established that there is a real prospect of success.⁸

34. Particular principles apply to applications for permission to appeal against case management decisions and multi factorial assessments undertaken by a Judge at first instance, given the hurdles which must be overcome to obtain appellant intervention in such cases.⁹ However, as this case does not involve either an application to appeal against a procedural or case management decision, or against a multi factorial assessment by the trial Judge, it is unnecessary to essay the relevant principles in these reasons.

35. In this case the Appellants contend that at least some of the grounds of appeal give rise to some other compelling reason for the grant of permission in that they would result in the determination of significant issues of legal principle. As I have concluded that permission to appeal should be granted in respect of specific grounds on the basis that they have a real prospect of success, it is unnecessary to consider whether there is an additional or alternative reason for granting permission.

36. When a renewed application made to the Court of Appeal is refused, it is appropriate for the Court to provide reasons which adequately explain the reasons why permission has been refused. The adequacy and extent of those reasons will be informed by the fact that the refusal of permission is final and conclusive and determines the issues the subject of the appeal.

37. On the other hand, when a renewed application for permission to appeal is granted, the reasons for the grant can and should be expressed more briefly, and any views expressed should be expressed and read as provisional, on the basis that a different view might well be formed following the consideration of the fuller argument which will be presented at the hearing of the appeal. Any views expressed in these reasons should be read and construed on that basis. Further, the reasons for granting permission in respect of grounds of appeal will be expressed economically, not only because the determination of the issue raised by the ground must await the hearing of the appeal but also to limit the prospect that a party might consider that a member of the Court of Appeal does not retain an open mind in relation to any of the issues in the appeal.

Grounds of appeal

Ground 1

38. Ground 1 is expressed in the following terms:

“The Court granted the order of 6 February 2025 which was inconsistent with the reasons that followed. The order is binding, not the reasons.”

39. Full comprehension of this ground requires a little more elaboration of the procedural context.

40. The Application for an Interim ASI made on 20 January 2025 sought an order restraining the Appellants from prosecuting the proceedings before any court or tribunal in the United Kingdom or any other jurisdiction, except before an arbitral tribunal duly constituted under the arbitration agreement said to be contained within the dispute resolution clause.

41. However, the ex parte order was made in the following terms:

42. As already noted, the return date was 6 February 2025. After the hearing on that date the Judge made orders which included a reference to the ex parte interim injunction which he had made on 20 January 2025, described as the “injunction order” and orders in the following terms:

43. The reasons published on 19 February 2025 conclude with a passage in the following terms:

“On 20 January 2025, I was satisfied that the conditions to grant an interim injunction were met; I am satisfied here again for the anti-suit injunction to be granted, restraining the Defendants from initiating or continuing proceedings before any court or tribunal in the United Kingdom, or any alternative jurisdiction outside the DIFC.”¹⁰

44. The tension between the description of the order in that passage of the reasons, and the terms of the orders made by the Judge on 20 January and 6 February 2025 arose in correspondence between the parties. On 19 February 2025 the Respondent wrote to the Appellants asserting that the order made on 6 February 2025 restrained the Appellants from prosecuting proceedings of any kind before any court or tribunal in the UK or any other jurisdiction outside the DIFC.

45. On 20 February 2025 the Appellants wrote to the Court requesting clarification of the scope of the order made on 6 February 2025, noting that the parties appeared to interpret the order differently. The Appellants asserted in their correspondence that the order of 6 February 2025 continued the order of 20 January 2025, which was limited to the prosecution of the Application for an AAI.

46. Later that day the Court wrote to the parties advising that the issue had been referred to the Judge who had directed the parties to be informed that the Respondent's interpretation of the order of 6 February 2025 was correct. However, no amendment was made to the Orders of 6 February 2025.

47. In support of ground 1 the Appellants referred to the inconsistency between the express terms of the orders made on 20 January and 6 February 2025, which were limited to the AAI, and the reasons which suggest that orders in considerably wider terms had been made. They contend that the ambit of the orders is to be determined by their terms, rather than by an interpretation of later published reasons. They support this contention with the proposition that the penal consequences which can follow from breach of injunctive orders necessitates the precise and unambiguous delineation of the conduct which is proscribed by the orders in their terms, rather than by reference to documents, including, in this case, a document published almost two weeks after the relevant order was made.

48. These contentions are clearly arguable and have a real prospect of success.

Ground 2

49. Ground 2 is expressed in the following terms:

“The Court erred in apparently granting a permanent injunction when it only had before it an application for an interim injunction.”

50. This ground proceeds on a false premise, to the effect that a permanent injunction had been granted. There is, with respect, no basis for that premise as it is clear that:

51. As this ground challenges an order which was not made, it has no prospect of success and permission to appeal in respect of the ground must be refused.

Ground 3

52. Ground 3 is expressed in the following terms:

“The Court erred in not requiring an undertaking for the anti-suit injunction.”

53. The order of 20 January 2025 includes, as Appendix A, undertakings given to the Court by the Respondent including an undertaking in the following terms:

“If the Court finds that this Order has caused loss to the Defendants, and decides that the Defendants should be compensated for that loss, the Claimant will comply with any order the Court may make.”

54. In this context, it seems that the ground is based upon an assumption that the undertaking which was required by the Court had been released as a result of a statement made by the Judge in his reasons for the order of 6 February 2025 in the following terms:

“On the matter of the cross undertaking of damages, given that this order favours the Claimant, this is a non issue for the application.”

55. The meaning properly given to this statement will be a matter for argument on the appeal, but the proposition that it involves a release of the Respondent from its undertaking is somewhat tenuous.

56. However, the argument advanced in support of this ground is focused on a rather different point, to the effect that the Court erred by not considering whether the Respondent should be required to post security to support the undertaking.

57. In support of that proposition the Appellants refer to the fact that the Respondent has no apparent assets within either DIFC or Dubai, or any apparent connection with either DIFC or Dubai, and has apparently assets of limited worth in the UK. The Appellants also refer to Rule 25.25 of the Rules of the DIFC Courts (“RDC”) which includes the following:

“Where the applicant for an interim remedy is not able to show sufficient assets within the jurisdiction of the court to provide substance to the undertaking given, he may be required to reinforce his undertaking by providing security.”

58. The Appellants contend that although this may be a matter of discretion, the Judge did not consider whether he should exercise that discretion because of his view that the cross undertaking as to damages was a “non issue”. The error is not said to lie in the exercise of the discretion but rather in the failure to consider whether to exercise the discretion in circumstances in which it was clearly enlivened.

59. The proposition is supported by reference to English authorities and authoritative texts.

60. I am satisfied that this proposition is arguable and has real prospects of success. However, permission to appeal on this ground should be conditioned upon the amendment of the ground to make clear that the proposition is included within its terms, by adding to the end of the ground the words:

Grounds 4 and 5

61. Grounds 4 and 5 are conveniently considered together. They are in the following terms:

62. These grounds are obviously related to ground 1, although they generally advance the proposition that the course followed by the Judge denied the Appellants procedural fairness. In support of the grounds the Appellants contend that on the Return Date hearing, all parties and the Judge proceeded on the basis that the issue before the Court was whether the injunction granted on 20 January 2025 should be continued, not whether its terms should be expanded. The Appellants contend that they did not make any submissions on the question of the ambit of the injunction because of their assumption that the only issue before the Court was whether the injunction previously granted should be continued. They point out that their assumption is consistent with the order made by the Judge following the hearing in which no reference was made to any expansion of the ambit of the order made on 20 January 2025.

63. The Appellants further contend that at no point prior to, or during the Return Date hearing did the Judge inform the Appellants that the Court was considering the grant of an injunction in broader terms than previously granted, nor did the Respondent apply for any expansion of the order previously granted. They point out that the effect of the expansion of the ambit of the order, which was not notified to the parties until reasons were published on 19 February 2025, was dramatic. Instead of the Appellants being restrained from prosecuting their application for an AAI, they were restrained from prosecuting the English proceedings in any form or manner whatever, with the consequence that the Respondent’s application for a stay of those proceedings, which was being prepared for a hearing to be held in the immediate future and which might have promptly resolved the issue of the enforceability of the arbitration agreement was adjourned, and the English proceedings were stayed indefinitely.

64. These propositions are arguable and have a real prospect of success.

Ground 6

65. Ground 6 is expressed in the following terms:

“The Court erred in holding that this was not a consumer contract and therefore falls outside the scope of Article 12(2) of the DIFC Arbitration Law.”

66. This ground must be read subject to two implicit qualifications.

67. First, as already mentioned, all views expressed by the Judge in the course of his ruling on the Application for an Interim Injunction must be regarded as provisional, so that the Judge should not be taken to have determined, once and for all, that the arbitration agreement was not contained within a consumer contract for the purposes of the DIFC Arbitration Law. Rather, the Judge must be taken to have been expressing a view in connection with his assessment of the likelihood of it being determined either by this Court or the arbitral tribunal, after a full hearing, that there was a binding and enforceable arbitration agreement.

68. Second, the ground proceeds on the assumption that the DIFC Arbitration Law applies to the arbitration which has been commenced by the Respondent. That assumption depends upon the identification of the seat of the arbitration – a matter which is contested and which has not yet been determined. The question of whether that issue should be determined by the arbitral tribunal, or this Court, or the English Court, is also contentious.

69. Article 12(2) of the DIFC Arbitration Law defines a consumer contract as “a contract for the supply of goods or services, other than residential property, to a consumer made by a supplier who is a natural or legal person acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned”.

70. The Article goes on to provide that an arbitration agreement arising out of or in connection with such a contract cannot be enforced against the consumer except:

71. It is common ground that none of the exceptions to unenforceability apply to the circumstances of this case.

72. In his reasons the Judge dealt with this issue in the following terms:

“I am not satisfied that it is a consumer contract. The Defendants have done little other than insist that it is the reasonable course of understanding that the Defendants are consumers. The DIFC Arbitration Law is clear on who amounts to a consumer, and as Mr Najem is a pilot who entered into the repatriation agreement within the course of his trade, he cannot be regarded as a consumer irrespective of whether it is reasonable to assume that he has hired other planes previously. This matter does not invalidate the enforcement of the arbitration agreement.”

73. The Appellants contend that the Judge erred in this ruling in a number of respects.

74. First, the Appellants contend that Mr Najem was not a pilot who entered into the repatriation agreement in the course of his trade. Rather, Mr Najem was a high net worth individual who acquired the Air Ambulance services offered by the Respondent. The fact that Mr Najem was not a pilot does not appear to be contested. Although he instructed Mr Nex to act as his agent for the purposes of entry into the repatriation agreement, Mr Najem was the principal and the services involved the repatriation of his ill wife and had nothing to do with the course of his trade or that of Mr Nex. The fact that Mr Nexis a pilot is irrelevant, as there is no suggestion that Mr Nex was going to fly the plane.

75. The Appellants further contend that the Judge erred by characterising the repatriation agreement as an agreement for the hire of a plane when in fact it was an agreement for the provision of a repatriation service. Although this service involved the use of an aircraft, it is not to be equated with a contract for the hire of an aircraft to be used by the hirer for commercial purposes.

76. This ground of appeal is arguable and has real prospects of success.

77. The Respondent contends that this ground, and any other ground which could have a bearing upon issues relating to the jurisdiction of the Court, is precluded by the Judge’s dismissal of the Appellants’ jurisdictional challenge on 23 June 2025, which has not been the subject of appeal. I do not consider that proposition to deprive grounds of appeal which could have a bearing upon the jurisdiction of the Court of real prospects of success for the following reasons:

Ground 7

78. Ground 7 is expressed in the following terms:

“The Court erred in granting an anti-suit injunction when the arbitration clause and the underlying dispute had no connection to the DIFC.”

79. The Judge made the following observations on this topic in his reasons:

“I accept that the source of this Court’s supportive jurisdiction to grant the ASI stems from Article 32 of the Court Law, as this is a general interim relief not necessarily restricted to arbitration cases, and it follows the precedent set by the Court of Appeal. I also accept that there has been a good amount of contextual evidence shown to skew the favour of the DIFC being the seat of the arbitration, but not satisfied enough that the high probability threshold has been met. Further investigation will be needed, but nonetheless the Article 32 jurisdiction is an independent power irrespective of the seat, and I am sufficiently convinced that these are exceptional circumstances to exercise this power. This stems from the fact that the seat has not yet been established, nor has either court (the DIFC or the English High Court) determined the seat, but granting the ASI protects the contractual obligations of the parties.”¹²

80. The Appellants contend that it is clear from the passage above that the Judge did not rely upon the proposition that the seat of the arbitration was the DIFC in order to sustain his conclusion that the Court had jurisdiction to grant the ASI. That follows from his application of the “high probability threshold” taken from other cases and his conclusion that the threshold had not been met. This conclusion is reinforced by the Judge’s observation that “the Article 32 jurisdiction is an independent power irrespective of the seat”. The Appellants contend that it follows that the Judge has concluded that Article 32 of the Court Law 2004, which provided a power to grant injunctive relief¹³, provided a source of jurisdiction to grant injunctive relief of any kind in any circumstance.

81. The Appellants contend that this proposition is wrong and inconsistent with any precedent set by the Court of Appeal. They contend that if and to the extent that the Judge was referring to the recent decision of the Court of Appeal in Carmon v Cuenda,¹⁴ that case stands for the proposition that the power to grant injunctions can be used in connection with the exercise of substantive jurisdiction such as, in that case, the jurisdiction to enforce foreign judgements.

82. The Appellants further contend that if the Court lacks jurisdiction to grant injunctions other than in support of one or other substantive head of jurisdiction, the Court cannot acquire jurisdiction from “exceptional circumstances” such as the fact that the seat of the arbitration has not yet been established.

83. This ground is arguable and has real prospects of success.

Ground 8

84. Ground 8 is expressed in the following terms:

“The Court erred in holding that the DIFC may be the seat of the arbitration.”

85. The fundamental obstacle in the path of the success of this ground is that although the Judge did conclude that the DIFC may be the seat of the arbitration, it is clear that he did not rely upon that conclusion in order to sustain his view that the Court had jurisdiction, for the reasons given above. To the contrary, although the Judge concluded that the DIFC might be the seat of the arbitration, he was clear that such had not yet been established, nor was he satisfied that there was a high probability that it would be established such that he could take it into account in making his determination.

86. It follows that ground 8 is irrelevant to the outcome of the appeal and would not be considered by the Court of Appeal. It has no prospect of success.

Ground 9

87. Ground 9 is expressed in the following terms:

“The Court erred in holding that an arbitration agreement exists and is valid.”

88. The Judge made observations on this topic in the following passage of his reasons:

“I am also satisfied that a valid arbitration agreement exists between the parties. DIAC accepted jurisdiction on a prima-facie basis and registered the arbitration initiated by the Claimant, and so I see no reason why the DIFC Court would act contrary to this decision; nonetheless, the move from DIFC-LCIA to DIAC would not render DIFC-LCIA agreement invalid, but merely linguistically outdated. I am not entirely convinced by the grammatical interpretation of Article 6 of Decree 34, given that the article is a direct translation of the Arabic draft and so the intricate grammatical rules of English literature may not always apply as per the intention of the translation, but this has not affected my decision on the matter. Following from this, I accept that Mr Najem is equally bound by the Arbitration Agreement as a principal pursuant to Articles 130 and 131 of the DIFC Contract Law.”15

89. The Appellants contend that the Judge’s emphatic conclusion on this subject is simplistic and does not grapple with a number of issues including:

90. The Appellants point out that this is an issue which is currently under consideration by DIAC and which was to be considered by the English High Court in the Stay Application which had been listed for hearing over two days and which involved both factual and expert evidence. That hearing was adjourned following the publication of the Judge’s reasons on 19 February 2025 and the communication from the Court as to the ambit of the ASI on 20 February 2025.

91. The Respondent further points out that the Judge’s conclusion depends upon his conclusion that the repatriation agreement is not a consumer contract, which is challenged in this appeal. They further contend that one of the questions which the English Court was to consider is whether the terms and conditions which include the dispute resolution clause were successfully incorporated into the contract and in particular, whether the Appellants were given sufficient time to review the terms of the contract, and whether or not the terms are unfair.

92. It is arguable that the Judge’s assessment of the enforceability of the arbitration agreement was premature and should have been deferred until all the issues identified by the Appellants had been considered and addressed. This ground of appeal has real prospects of success.

Ground 10

93. Ground 10 is expressed in the following terms:

“The Court failed to set out any perimeters for the ASI.”

94. The substance of this ground is not clear from its terms or from the argument advanced in its support. In that argument reference is made to the proposition that the ASI might have been granted on a permanent basis, which is a proposition which lacks any substance. It is also contended that arbitration proceedings were enjoined by reason of a construction placed upon certain words in the Judge’s reasons. That proposition is tenuous, to say the least.

95. This ground is not arguable. It has no prospect of success.

Ground 11

96. Ground 11 is expressed in the following terms:

“The Court erred in the exercise of its discretion, if it had any discretion, by granting an ASI.”

97. The Appellants contend that if the Court had a discretion with respect to the grant of an ASI (which is contested) the discretion should have been exercised against the grant of the application essentially because of the principle of comity and the advanced stage of the proceedings in the English High Court.

98. On the subject of comity, in his reasons, the Judge observed:

“On the comity principle, in my view this is insufficient to justify or assume the English High Court’s unwavering jurisdiction to determine the section 9 application particularly since the section 9 application hearing has not happened yet, nor does comity apply where the intention of granting an anti suit injunction is to hold parties to their contractual obligations.”

99. It is well established that Appellate Courts are reluctant to interfere with discretionary judgements made by Judges at first instance. However, there are circumstances in which an Appellate Court will intervene including:

100. The Appellants point to the fact that the English proceedings had been on foot much longer than the proceedings in this Court, that they were well advanced, and that the parties to those proceedings were preparing for a listed hearing of the Stay Application which would have resolved many of the issues which the Respondent has brought to this Court. They contend that the commencement of these proceedings was an obvious strategy by the Respondent to try and avoid the determination of the issues by the English Court and that this Court should not endorse strategic maneuvering of this kind. They further contend that there is no reason to doubt that the English Court would have applied proper principle to the determination of the issues arising on the Stay Application.

101. The Appellants further contend that there is no question of whether the English High Court had “unwavering jurisdiction” to determine the Stay Application when that was the entirely proper course to be taken, and that there was no reason to doubt that the English Court would hold the parties to their contractual obligations if it found that the arbitration agreement applied to the dispute before the Court.

102. The Appellants contend that when all these considerations are taken into account, the only reasonable exercise of the discretion was to refuse the relief sought.

103. This ground is arguable and has real prospects of success.

Ground 12

104. Ground 12 is expressed in the following terms:

“The Court erred in failing to consider the Respondent’s breach of full and frank disclosure.”

105. The duty of full and frank disclosure in respect of ex parte applications is well established. The Appellants rely on various matters which they assert were not disclosed, including the proposition that the Respondent failed to disclose that it was seeking a permanent injunction, not an interim injunction. For the reasons given above, this contention is irrelevant, as no permanent injunction has been granted.

106. The Appellants also rely on various statements relating to the state of the English proceedings which they contend were inaccurate. However, these matters were all brought to the attention of the Judge at the hearing on 6 February 2025 and were not considered by him to be material to his determination. He was best placed to make an assessment of that kind.

107. It is also well established that even if there has been material non-disclosure, the Court has a discretion to continue the injunction or to set aside the injunction but entertain an application for the grant of a fresh injunction immediately.

108. Given the significant range of issues of greater substance which will be before the Court of Appeal, I consider it most unlikely that the Court would consider that this ground is likely to have any impact upon the determination of the outcome of the appeal and would therefore not entertain it. In my view this ground has no real prospect of success.

The grant of permission – conclusion

109. For the reasons given:

Expedition

110. The Appellants contend that the appeal should be expedited given the delays which have occurred to date, and the impact of those delays on the English proceedings. I consider that request should be granted, although not on the basis that the appeal must be determined as a matter of the utmost urgency, but rather on the basis that a timetable should be set for the preparation of the appeal for hearing which ensures that the matter can be made ready for hearing and heard within the shortest reasonably practicable time frame.

Costs orders to date

111. The Appellants seek a stay of the costs orders made to date in relation to the various Applications before the Judge, all of which are said to be affected by the errors the subject of the appeal. It may be accepted that the grant of permission to appeal does not operate as a stay on the decision below, but that is not to say that a stay cannot be granted in appropriate cases.

112. In my view this is an appropriate case for a stay of the costs orders made to date. There is a real prospect that one or more of the grounds of appeal may succeed with the result that one or more of the costs orders may be vacated.

113. The Respondent appears to have no assets within the DIFC or Dubai and if the costs orders are enforced and paid to the Respondent, there must be some doubt as to whether the funds would be recovered in the event that the orders were reversed.

Security for the Respondent’s costs of the appeal

114. The Respondent applies for an order that the Appellants post security for the Respondent’s costs of the appeal in the event that permission is granted. In support of that application they point out that Mr Nex is resident in South Africa and that the magnitude and location of assets held by the Estate of Mr Najem is uncertain, so that there would be a risk that an order for costs in favour of the Respondent would be unsatisfied if the appeal is dismissed. They also submit that it is clear that the Estate of Mr Najem has access to the resources needed to fund lawyers for the proceedings which were commenced by the Appellants in England, and to respond to the proceedings which the Respondent has commenced in this Court and to respond to the arbitration commenced by the Respondent. There is therefore no reason to consider that an order requiring the Appellants to post security would stifle the appeal.

115. Taking all relevant matters into account, I consider that this is an appropriate case in which to condition the grant of permission to appeal upon the posting of security for the Respondent’s costs of appeal, by directing that the Appellants pay into Court the amount of USD 80,000 within thirty-five (35) days of the date of these orders, with liberty to apply.