Claim No: CA 015/2024

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

NAEL

Claimant/Respondent

and

NIAMH

Defendant/Appellant

ORDER OF THE COURT OF APPEAL

UPON the Judgment and Order of the Court of Appeal dated 9 January 2025 (the “Judgment”)

AND UPON the dismissal of the Defendant/Appellant’s appeal (the “Appeal”) against the Order of H.E. Justice Shamlan Al Sawalehi (the “Judge”) dated 30 October 2023 (the “R&E Order”)

AND UPON consideration of the Parties’ submissions provided for in paragraph 2 of the Judgment, in relation to interest payable pursuant to the R&E Order, the assessment of costs of the Appeal and of costs pursuant to “Other Outstanding Costs Orders” described as the “Ancillary Orders” in the reasons for this Order (together “the costs sought”)

AND UPON consideration of the Claimant/Respondent’s application for orders of disclosure required for the assessment of interest pursuant to the R&E Order

IT IS HEREBY ORDERED AND DIRECTED THAT:

1. The Defendant/Appellant shall forthwith pay to the Claimant/Respondent in respect of the costs sought, the amount of AED 646,535.00 being the aggregate of the following amounts assessed and payable in respect of:

2. The Defendant/Appellant shall provide to the Claimant/Respondent within 7 days of the date hereof, the relevant interest rate(s) from time to time applying, and all documentation substantiating those rates through the relevant periods, referred to in the R&E Order, namely, the official base rate of the Defendant’s commercial lending rate as of the date of 1 October 2020, from that date (being the date of the Demands) until the date hereof (the “interest rate information and documentation”).

3. The Claimant/Respondent shall within 7days of receipt of the interest rate information and documentation calculate its claim for interest due and payable under the R&E Order and file and serve its claim and supporting calculations upon the Defendant/Appellant.

4. Within 7 days of its receipt of the claim for interest and supporting calculation, the Defendant/Appellant, if it agrees with the amount of the claim for interest, shall pay that amount with the interest due and payable under the R&E Order to the date of payment.

5. If the Defendant/Appellant does not agree the amount of the claim for interest, it shall instead within the 7 days allowed under paragraph 4 of this Order, file and serve its response to the claim with its calculation of interest it contends is payable under the R&E Order.

6. The Court will thereafter determine the amount of interest due and payable on the claims and calculations filed, without a hearing.

7. The Defendant/Appellant shall pay interest on the costs awarded under paragraph 1 hereof, at the rate of 9% per annum from the date hereof to the date of payment in full.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 14 March 2025
At: 9am

(References hereafter to submissions are to CS/n (Claimant/Respondent’s Submissions on Costs), DS/n (Defendant/Appellant’s Submissions on Costs) and CRn (Claimant/Respondent’s Reply Submissions on Costs). References to paragraphs in the Judgment of the Court of the 9 January 2025 are [§n])

Introduction

1. For reasons of brevity hereafter, the Court will refer to the Defendant/Appellant as “Niamh” and to the Claimant/Respondent as “Nael”.

2. By its Judgment of 9 January 2025, the Court dismissed Niamh’s Appeal (the “Judgment”).

3. At paragraph 2 of its Order, the Court directed that:

“The parties shall exchange written submissions on interest and costs within 7 days of the date of this Judgment. The Court shall undertake an immediate assessment of any costs claimed by a party in relation to all costs not the subject of a previous Order and therefore the written submissions should be accompanied by a written statement of the costs in accordance with Rules 38.34 and 38.35 of the Rules of the DIFC Courts.”

4. Those submissions have now been provided, and the Court therefore proceeds as it said it would, to “undertake an immediate assessment of any costs claimed by a party in relation to all costs not the subject of a previous Order”.

5. Niamh’s Appeal having failed, it must pay Nael’s costs of the application for permission to appeal and the Appeal itself, pursuant to Rule 38.7(1) of the Rules of the Dubai International Financial Centre Courts (the “RDC”), under that so-called “general rule”, as hereafter assessed. Niamh does not suggest that the Court should make any different order.

6. Nael submits that Niamh must also pay the costs which this Court hereafter assesses as payable by it, pursuant to earlier orders of the Court below that it pay costs in principle or in the case. Those earlier orders are collected at [CS/6] as follows with the page numbers in the Appeal Bundle now added in square brackets:

In its Submissions on Costs, Niamh has dubbed these three orders collectively as the “Ancillary Orders”. Whilst terminologically imperfect, the Court will adopt that nomenclature hereafter. It should be noted that since the Judge made these orders deferring the assessment of costs, the Judges have endorsed the practice of immediate assessment by a Judge, at the time of dealing with a matter, wherever possible. It is fortunate that this Court can take the opportunity to confirm its endorsement of that practice in this case, in which its desirability is well-illustrated by the delay in Nael being awarded and receiving the quantified costs to which it is entitled.

7. Justice Shamlan’s Order of 30 October 2023 recognising and enforcing the Award provided that:

8. Nael could not quantify interest payable pursuant to that Order, which was under appeal in the proceedings before this Court, without being provided with the rate(s) of interest applying from time to time during the periods specified in the Order. It complains Niamh has refused to provide them; or any documentation substantiating any alleged interest rate(s) during those periods. It therefore invites the Court to direct Niamh to provide within 7 days the relevant interest rate(s) from time to time applying and all documentation substantiating those rates through the relevant periods; and to permit Nael 7 days to file submissions in reply.

Issues arising on these assessments:

9. These are extracted from the submissions as follows, and they will be dealt with seriatim in these Reasons.

What is the correct interpretation of paragraph 2 of the Order of 9 January 2025 (and paragraph 87 of the Judgment) and is Nael required to commence proceedings for detailed assessment under RDC 40.5, in respect of costs payable under the Ancillary Orders?

10. It is not necessary to summarize the Parties’ submissions on this issue of the Court’s intentions in making its order. The meaning of that Order and expressed intention, was, plainly and obviously, that the Court would immediately assess the costs of the Appeal and any costs claimed in the proceedings, pursuant to the Ancillary Orders, which had not been the subject of a previous order assessing their amount. The italicised emboldened words in the last sentence were clearly implied and intended. This Order was made with the intention so obvious as not to require expression, that: (i) a quantified order or orders for all costs claims outstanding could be made by assessment in this Court, which is now seized of the matter; (ii) that the receiving party should be paid its costs as promptly as fairness and efficiency in assessment of them might achieve; and (iii) that these proceedings would be brought to a final conclusion as speedily as possible.

11. Niamh’s contention to the contrary, that such unassessed costs claimed, ordered to be paid but not so far assessed, should be put off to detailed assessment under part 40 of the RDC is rejected because: (i) it does not accord with the plain and obvious meaning and intent of paragraph 2 of the Court’s Order dismissing its Appeal; (ii) the Court has sufficient material before it to enable it to make an immediate assessment of costs consistently with the overriding objective; (iii) it represents a nonsensical approach to attainment of the overriding objective in dealing with assessment of costs pursuant to orders of liability for costs in principle but not assessed, made in the course of the proceedings, of which this Court is seized and over which it has full oversight; (iv) none of the costs orders in the Ancillary Orders directs that the Registrar is to make a detailed assessment of costs under RDC 40.4 – the Orders of 12 July 2023 and 1 August 2024 simply direct that the Defendant shall pay the Claimant’s costs on the standard basis to be assessed by the Registrar if not agreed; (v) in those circumstances, it would be a grossly inefficient and unnecessary exercise to require proceedings for a detailed assessment of these costs, which can only have been advocated to cause delay in bringing about finality in this matter. This Court has therefore, by paragraph 2 of its Order of 9 January 2025, exercised its power and responsibility to undertake the necessary assessments instead of the Registrar.

12. In relation to Niamh’s decision not to make submissions on the Orders for costs other than the costs of the Appeal, as Nael correctly submits, their submissions plainly and obviously go directly to the assessment of the costs under the “Ancillary Orders” – including most obviously, to the costs of the permission application. Insofar as Niamh has not made submissions in response in relation to the assessment of the costs payable pursuant to these previous costs orders, that was its own deliberate or ill-advised choice in response to being given a fair and reasonable opportunity to make such submissions. The Court accordingly proceeds to deal with all outstanding applications and orders for costs not so far assessed on the submissions before it.

What is the appropriate basis of assessment of costs in this case – standard or indemnity?

13. This question only arises in relation to the costs of the Appeal and the costs of the application for permission to appeal in the Order of H.E. Justice Shamlan Al Sawalehi of 25 October 2024, in which he ordered that the costs of the application for permission to appeal shall be costs in the case. As already noted, pursuant to the other two Ancillary Orders, costs in respect of those matters are to be assessed on the standard basis. The Claimant argues that Niamh’s conduct of these entire proceedings up to and including the making of the Appeal has been shoddy, if not abusive and relies on the Court’s Judgment at [§80] that:

“The Bank has clearly embarked upon policy (sic) of delaying payment under the Guarantees by whatever means it can, including misleading the Trustees and the Dubai Courts and raising the public policy exception as a 'last ditch' attempt to derail recognition and enforcement.”

The Court accepts that its finding thus quoted, and the basis for it, is relevant background to the Claimant’s grounds for seeking an assessment of its costs of the Appeal on the indemnity basis. The weightiest grounds may be extracted thus:

14. Grounding on these aspects of Niamh’s conduct, and the misconceived arguments it ran in pursuing the Appeal, together with the background of its conduct of these proceedings generally, Nael urges that the Court’s disapproval of Niamh’s conduct should be marked with an indemnity costs order. It relies on Practice Direction 5 of 2014 which directs that the Court should take into consideration:

15. It also relies on this Court’s approval in Vegie Bar LLC v ENBD Properties PJSC [2020] DIFC CA 001 (31 March 2021) at [7] of the observations of Mr Justice Christopher Clarke in the English case Balmoral Group Ltd v Borealis Ltd [2006] EWHC 2532 (Comm) that:

“There must therefore be something – whether it be the conduct of the claimant or the circumstances of the case – which takes the case outside the norm. It is not necessary that the claimant should be guilty of dishonesty or moral blame. Unreasonableness in the conduct of the proceedings and the raising of particular allegations, or in the manner of raising them may suffice.”

16. Nael further contends that the Court is very familiar with the practice of recalcitrant award debtors seeking to utilise the public policy exception in Article 44(1)(b)(ii), and seeking permission to appeal decisions dismissing such applications, as a desperate attempt to avoid paying their debts. It submits that is exactly the conduct that Niamh engaged in this case, seeking (hopelessly) to avoid any liability at all (despite the Guarantees being unconditional and payable on-demand); and (equally hopelessly) to deny the existence of the Award at all. It concludes with a plea that the Court should mark its disapproval of Niamh’s behaviour, which will also make clear to future award debtors that similarly abusive conduct will not be tolerated.

17. In response on this issue, Niamh submits that the costs of the Appeal should be assessed on the standard basis for the following reasons:

18. Considering these competing submissions, the Court is satisfied that it is appropriate for the reasons advanced by Nael summarized above, to mark its disapproval of Niamh’s conduct overall in bringing this appeal, by making an order that it should pay the costs of the Appeal and the application for permission to appeal now to be assessed, on the indemnity basis. Nael’s reasons are based largely on this Court’s findings already made in its judgment, as to the lack of merit in the Appeal against the background of Niamh’s conduct in and around its attempts to avoid recognition and enforcement of the Award and in bringing the Appeal. The Court is satisfied and holds that Niamh has engaged in a shoddy and disreputable last-ditch attempt to avoid or delay its liability to make payment under the Guarantees, under the Award and the judgment recognizing and enforcing it. Following the Practice Direction quoted by both Parties, and also having regard to Practice Direction No. 1 of 2017 – Indemnity Costs for Failed Challenges to Arbitral Awards in the DIFC Courts §3, Niamh’s conduct in these proceedings, was in this Court’s judgment, unreasonable to a high degree and beyond the norm of a vigorous defence, on properly arguable grounds of resistance, to recognition and enforcement of an arbitral award.

19. The Court does consider it appropriate so to hold based on Niamh’s overall conduct in the matter (which it need not recount again) notwithstanding the grant of permission to appeal by the Judge for the reasons he gave. It finds Niamh’s reliance upon the grant of permission to appeal to be misguided. It is plain to this Court, that the grant of permission by the Judge was based on there being a compelling reason for this Court to hear and pronounce its findings, on an appeal where the grounds relied on were of such a nature, as to require consideration by the apex Court in this jurisdiction, under RDC 44.19 (2). The Judge plainly recognized that permission to appeal was desirable in order that this Court might give an authoritative ruling and precedential guidance on the subject matter of the Appeal. In the result of his grant of permission to appeal, as Nael reasonably asserts:

“The Judgment is now the leading and landmark judgment on the meaning and application of the public policy ground of challenge in Article 44(1)(b)(ii). The Judgement canvasses the previous international and DIFC authorities, as well as the leading commentaries, dealing with the issue. Nael submits that such a review was essential for the Court to give an authoritative ruling on the scope of Article 44(1)(b)(ii), which ought to minimise reliance on it by award debtors as “last ditch” attempt at resisting recognition and enforcement.”

As the grant of permission was not based upon an assessment of the prospects of success, it sheds no light on the issues relating to indemnity costs.

20. As will become apparent from its assessments of costs which follow, on both the standard and the indemnity bases, the Court’s determination of this issue of the proper basis of assessment of the costs of the Appeal, does not in fact affect the quantum of its assessment for the reasons given in making those assessments in this case. Nonetheless, the Court considers that it is necessary for it to hold and record that it makes its assessment of the costs of the Appeal on the indemnity basis, to mark its disapproval of the conduct of the paying party in these proceedings. The Court is required to do so for that reason and to deter other litigants from engaging in such conduct as Niamh has engaged-in in this case, to promote achievement of the overriding objective in all cases that come before the DIFC Courts.

Is there a “general position” in the DIFC Courts, which establishes an identifiable percentage discounting of costs incurred, for a court to arrive at an assessment of the amount of costs payable on either or both of the different bases of assessment applied; and if there is, what is that percentage discount on each basis of assessment?

21. Founding on the observations of H.E Justice Sir Jeremy Cooke in Mirifa v Mahur [2023] DIFC ARB 009 (24 October 2023) at [§6], that a deduction to two-thirds of the claimed costs was ‘often the measure allowed [on standard assessment] in the UK’ but that ‘a higher figure is the norm in the DIFC’, Nael submits at [CS/20] that the Court should order Niamh to pay at least 75% of its total costs incurred. It does not suggest that the alleged normal percentage recognized in the DIFC Courts, or as claimed in this case, depends on the basis of assessment adopted.

22. Niamh responds with its claim that the “general position” in the DIFC Courts is that costs awarded on the standard basis amounts to about 55-65% of the costs claimed. No authority or data source is cited as the basis for this submission.

23. Nael, maintaining its plea for an order for 75% of its cost incurred, asserts in reply, that this submission is wrong and takes no account of the observations in Mirifa. It points out that 55% is substantially below a “normal” order in England and that the higher DIFC benchmark is fairer.

24. As to these competing submissions, the Court first recognizes that a demonstration of a discernible practice and outcomes in claims for costs, showing a percentage allowance of costs incurred and claimed, in orders made by courts, may provide a useful rule-of-thumb approach or tool for parties dealing with the assessment and/or settlement of claims for costs. It should not however be used in place of the rule-bound approach to the assessment of costs under the RDC by Judges. This Court has twice recently summarized the required approach in a practical manner, in its assessments of costs

25. Whilst the use of a discernible normal percentage allowance, derived from application of those summarized rules and principles in previously decided cases, should not replace their use and application, that is not to suggest that the use of a normal percentage allowance thus ascertained, is to be entirely deprecated, since it may be useful to parties for the limited purposes mentioned above. However, no discernible standard or uniform practice in this Court of allowing costs actually incurred discounted by a particular percentage has been established on the materials presented in this case.

26. Thus, the answer to the questions in the heading to this section of our Reasons is as follows: The Court is not able to identify a “general position” as to a percentage allowance of costs claimed in the assessment of costs in this jurisdiction. It would in any event be impermissible even if such a general position could be demonstrated, to determine claims for costs by reference to it, instead of applying the rules for assessment of costs, which the Court has again summarized above.

In what amounts does the Court assess costs payable by Niamh to Nael in respect of its costs incurred under the Ancillary Orders and this Court’s order of 9 January 2025, dismissing the Appeal?

27. The costs claimed are detailed in three statements of costs before the Court.

28. The first, issued on 25 April 2023, for a hearing on 26 April 2023, details costs incurred in resisting Niamh’s challenge to the jurisdiction of the DIFC Courts, rejected by the Judge in his order of 12 July 2023. The grand total claimed under that statement of costs is AED 262,025.00.

29. The second, issued on 30 January 2024, for a hearing on that date, details costs incurred in resisting Niamh’s application to set aside the R&E Order in respect of the Award, rejected by the Judge in his order of 1 August 2024. The grand total claimed under that statement of costs is AED 194,141.25.

30. The third, issued on 29 January 2025, for the hearing before the Court on 10 December 2025, details (i) the costs incurred in responding to Niamh’s application for permission to appeal the Judge’s upholding of the R&E Order in his further Order dated 25 October 2024; and (ii) the costs of the Appeal before this Court. The grand total claimed under that statement of costs is AED 405,880.41.

31. Those three highlighted amounts, aggregate to the total costs claimed and referred to in Nael’s submission at [CS/11] that:

“The costs claimed by Nael arising from the two Orders of Justice Shamlan at 6.1 and 6.2 above as well as the permission to appeal application and this Appeal itself total AED 862,046.66 which is c. USD 234,698 and c. 0.49% of the total sum Niamh has been ordered to pay Nael.”

32. The Court has checked those closely approximate calculations – the costs claimed do indeed amount to less than half of one percent of the amount in issue in the proceedings. Moreover, the subject matter of the Appeal, involving as it did (in brief) the vital issues of the enforcement of arbitral awards and resistance to enforcement on claimed public policy grounds, provides additional and substantial justification for incurring a significant amount of costs to uphold and enforce the Award. The Court therefore accepts that the overall amount of costs claimed, is incontestably proportionate to the amount at stake and issues in play, in these proceedings. Niamh has wisely not argued to the contrary save in respect of one matter. All of the features for assessing proportionality referred to by H.E. Justice Rene Le Miere in Gulf Petrochem FZC LLC v Petrochina International (Middle East) Company Ltd & Ors [2023] DIFC CFI 048 (23 November 2023) at [144], viz. that ‘[c]osts will be proportionate if they bear a reasonable relationship to the sums in issue in the proceedings, the value of any non-monetary relief in issue in the proceedings, the complexity of the litigation, and any additional work generated by the conduct of the paying party, are present and satisfied in this case.

33. Niamh has however submitted that the use of leading and junior counsel in respect of the Appeal was disproportionate. This is by reference to the fact that in previous applications, Nael had either declined to instruct counsel or instructed only junior counsel. Moderating the terms of its dismissal of this hopeless submission, to the maximum degree its lack of merit deserves, the Court finds that the historical restraint in the use of counsel by Nael in these proceedings, only serves to support, in a persuasive manner, a finding that Nael has generally, and particularly in relation to the use of counsel, adopted a reasonable approach in its allocation of appropriately qualified lawyers to the legal tasks that had to be undertaken, in seeking to have its Award recognized and enforced in this jurisdiction; and, subsequently, in upholding that recognition and enforcement. The Court finds that the instruction of leading and junior counsel for the Appeal, was entirely reasonable and proportionate, having regard to what was at stake; and having regard to the complexity and importance of the subject matter of the Appeal. It will address the amount of counsels’ fees separately below. Niamh’s submission that it was disproportionate to instruct leading and junior counsel for the Appeal (at a composite fee), is accordingly rejected.

34. Turning to assessment of the costs claimed in the three statements of costs before the Court. The Court has considered Nael’s submissions (following the requirements of the rules for assessment set out above). These do not require recital or summary, serving as we find they do, to demonstrate that the costs it has incurred overall and in total, were reasonably and proportionately incurred and reasonable in amount, to the extent that it should be awarded 75% of them. Niamh responded to that submission and claim, with nothing more of substance than a counter submission that there is a “general position” in the DIFC Courts that awards on the standard basis of assessment amount to about 55%-65% of the costs claimed. It provided no substantiation whatsoever in the form of authority or data source, for that contention or percentages.

35. In its reply submissions, Nael submitted that as Niamh had not challenged the hourly rates claimed, that the challenge to jurisdiction was always bound to fail, the importance of the Appeal and the work necessary to present it and that the time incurred and charged by the lawyers was reasonable and proportionate with no substantial criticism made of it, the Court should find all of that conceded.

36. Taking all of those submissions into account, the Court has approached its assessment applying the rules governing the process of assessment summarized above. Nael is only seeking 75% of its actual costs incurred and this Court finds that approach, and the resulting amount claimed, reasonable and proportionate, in assessing costs payable under each statement of costs.

37. Accordingly, Niamh has been ordered to pay costs in the Order above, calculated as follows:

In total, Niamh shall pay to Nael AED 646,535.00 in respect of its costs incurred in these proceedings, under the Ancillary Orders and this Order.

38. As already noted, Nael claims interest on its costs now assessed and ordered to be paid, pursuant to Practice Direction No. 4 of 2017 at a rate of 9% p.a. from the date on which each of the “Ancillary Orders” was made and, in respect of the Appeal itself, the date of Judgment. The Court has noted that Nael did not claim interest on costs in its original submissions on costs; and has only made the claim in its reply submissions. Niamh has therefore not responded to the claim for interest on costs now made. The Court has noted however the following: (i) In resisting Nael submission that this Court should proceed to assess interest payable on the Award and order that it be paid, Niamh itself submitted “As such, the Court should apply interest at the appropriate rate on any award of costs made in respect of the Appeal, running from the date of the Judgment.” (ii) That Niamh has neither objected to the claim for interest on costs lately made, nor sought permission to respond to it. (iii) There can be no doubt that Nael is entitled to claim interest on costs from the date of an order establishing its entitlement to those costs in an amount assessed and quantified. (iv) There is a Practice Direction regulating the default rate of interest to be applied. (v) Niamh is a bank represented by an experienced law firm, which would be aware of all of these matters. In those circumstances, the Court is satisfied that Niamh recognises Nael’s entitlement to interest on costs at the rate lately claimed and does not wish to contend to the contrary.

39. Taking all of those matters into account, and whilst the Court has some sympathy for the claim that interest on costs now assessed under the Ancillary Orders should run from the date of those orders, the Court has decided that interest on the costs now assessed and ordered, should be paid only from the date of this order assessing them, to the date of payment at 9% per cent per annum.

40. Our reasons for so deciding are as follows. Niamh was not at the time of the Ancillary Orders in a position to pay costs, as the amounts for which it was liable, had not been assessed. Interest on costs at the judgment debt rate, is not usually ordered until the costs (equivalent to judgment for a certain amount) have been quantified. This is on the basis that it is not possible for the paying party to prevent the receiving party entitled to costs, which have not been assessed, from being kept out of its money by paying an ascertained amount. Interest is normally awarded to compensate the receiving party for loss of use of the money during the period between assessment and payment. For those reasons, a party ordered to pay costs in the case and/or in an amount to be later assessed, is not normally ordered to pay interest on costs until they are assessed. The Court does not consider it appropriate to depart from that normal approach in the circumstances of this case. That outcome does however powerfully illustrate the desirability for judges dealing with matters before them, to make immediate assessments of and orders for costs incurred in relation to those matters, wherever possible.

How should the Court deal with the assessment of interest payable pursuant to the R&E Order of 30 October 2023?

41. Nael seeks orders of this Court directed towards enabling it to assess and order payment of the interest due and payable to it under the Judge’s R&E order of 30 October 2023. It has been kept out of its money due under the Guarantees since 1 October 2020 and this Court is satisfied that it should make the most effective order it is empowered to make, to rectify that long continuing injustice in the shortest time possible.

42. The R&E order in its material parts provides as follows:

43. Neither Nael nor the Court can quantify the interest payable under the R&E Order, without knowing Niamh’s rates and without evidence to substantiate them being charged, from time to time during the relevant period. Niamh has refused to provide that information and material to Nael. It maintains that refusal before this Court on the spurious grounds that:

“Paragraph 87 of the Judgment invites submissions in respect of interest and costs of the Appeal, and not of the Award. As such, Nael's request for documents substantiating Niamh's commercial lending rates between 2020 and 2022 are entirely irrelevant. The Court is not seeking to make an order in respect of any interest payable pursuant to the Award.”

44. The Court makes it clear beyond any doubt, notwithstanding that it believes it must have been plain and obvious to “Niamh as a pre-eminent UAE bank …obliged to ensure its compliance with Court orders” (as it describes itself and recognizes its obligations at) and to its lawyers, that the Court did intend to assess interest payable under the R&E Order, to bring these proceedings to a close.

45. Nael seeks orders to enable it to calculate and make submissions as to the amount of interest it is entitled to, in short requiring Niamh to produce the interest rate information and the materials to substantiate it within seven days and providing for submissions in reply. The orders sought do not provide for anything to occur after the right to reply sought; or lead to a determination of what is due and payable pursuant to the R&E Order. The Court has made its additional orders to achieve that objective, by agreement if possible.

46. The Court is therefore satisfied that the answer to the question in the heading of this section of these Reasons, is to make the orders it now makes, to achieve an assessment of interest payable under the R&E Order, in the fairest, shortest and most economical manner possible.