October 28, 2025 Court of Appeal - Orders
Claim No: CFI 004/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
ZUZANA KAPOVA
Claimant
and
(1) MILOSLAV MAKOVINI
(2) PHARMTRADE HOLDING LTD
Defendants
and
SEBASTIAN KAPPA
Third Party
ORDER WITH REASONS OF H.E. JUSTICE SIR JEREMY COOKE
AND UPON the Defendants’ Application No. CFI-004-2023/17 dated 9 October 2025, seeking immediate judgment, declarations and strike out of various paragraphs in the Particulars of Claim, and in the alternative an application for unless orders (the “Application”)
AND UPON the Pre-Trial Review listed on 10 December 2025 before H.E. Justice Sir Jeremy Cooke
AND UPON the Trial listed on 6 to 14 January 2026 before H.E. Justice Sir Jeremy Cooke (the “Trial”)
IT IS HEREBY ORDERED THAT:
1. The Application for immediate judgement, for the striking out of various paragraphs in the Particulars of Claim relating to fiduciary duties and for declarations are all dismissed.
2. The Defendants’ alternative application for unless orders is also dismissed.
3. For the avoidance of doubt the application for each of the orders sought in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Application are all dismissed.
4. The Defendants shall pay the Claimant’s costs of the Applications referred to in paragraphs 2 and 3 hereof on the indemnity basis, such costs to be the subject of assessment after the Trial by the Registrar if not agreed.
5. The Claimant shall give full particulars of her claim for compensatory damages by no later than 4pm on Monday, 15 December 2025. If the Claimant seeks aggravated damages, she shall by the same date set out the basis for such claim and in particular the egregious or offensive conduct relied on and the reasons for the award of any particular amount. In the absence of such particularisation, the Claimant shall not be entitled to advance any such claim.
6. The costs relating to the Application to strike out the claim for aggravated damages are reserved.
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 28 October 2025
At: 2pm
SCHEDULE OF REASONS
1. The Defendants’ Application for strike out is misconceived whether founded on the submission that the Particulars of Claim disclose no reasonable grounds for bringing the claim, the submission that the Particulars of Claim constitutes an abuse of process or is likely to obstruct the just disposal of the proceedings or the submission that there has been a failure to comply with a Rule, Practice Direction or Court Order.
(a) The Application essentially proceeds on the basis that the Claimant will not be able to establish the existence of the fiduciary duties pleaded under section 158 (1) or 158 (2)(a), (b), (c) or (d) of the DIFC Law of Obligations. The pleas are, however, comprehensible and cannot be dismissed as a matter of law. Factual issues arise as to whether there was a relationship of trust and confidence between the Claimant and the First Defendant, whether the First Defendant held himself out as an attorney or tax adviser to the Claimant, whether he through his company Pollux acted as a consultant and gave any such advice on tax optimisation to the Claimant or to PTSK, whether he breached such fiduciary duties or duties owed as a director of PTH or under the JVA and whether as the Claimant says, he secured an interest in PTH by misrepresentation and trickery, without payment of any joining fee. These factual issues mean that there is no possibility of a strike out of any of the allegations of fiduciary duty or breach thereof. They will have to be determined at trial.
(b) It cannot be said that there is any abuse of process in making these pleas nor are such pleas likely to obstruct the just disposal of the proceedings. To the contrary, the just disposal of the proceedings requires that such factual matters be investigated and determined, whether in favour of the Claimant or the Defendants,
(c) The suggestion that there has been a failure to comply with a Rule, Practice Direction or Court order cannot be established at this stage, whether in relation to disclosure obligations or particularisation. The Claimant maintains that full disclosure has been given and the best particulars of the claims have been provided in the absence of full disclosure by the Defendants.
(d) The Application to strike out might itself be characterised as an abuse of process, coming at a late stage in the proceedings, but following only 2 days after a Request for Further Information was made and before it was answered- the answer coming in a 10 page letter 14 days after that. The lateness of the Application and the failure to wait for any answer to the request is revealing. If some of the particulars given are inadequate to make good the pleas, that is a matter for determination at the Trial which is fixed for January 2026.
(e) The absence of documents on which the Claimant relies to support her allegations does not assist in this Application particularly given the First Defendant’s own failings in this respect in respect of the relations between the two of them, the services allegedly rendered and the basis for the fees which he and his companies charged. I have already made it clear that disclosure by both parties appears inadequate thus far. As has been made clear in a previous order of the Court, inferences may in due course be drawn against either party which fails in its disclosure obligations, but that requires consideration at and following a trial where all the evidence is available for examination. The essence of the Claimant’s claim is clear and represents a case to answer, whatever the inadequacies in particularisation and disclosure.
(f) Whether or not the Defendants acted as the Claimants’ legal and tax adviser is a matter of fact which will have to be determined at trial.
2. Essentially the same points apply in relation to the application for summary judgement and unless orders. If the Claimant cannot make good her claim on the evidence which she adduces at trial, the Defendants will succeed. But there is certainly enough evidence to show a prima facie case that the Defendants provided no services which could justify the payment of fees or the procurement of a shareholding in PTH other than advice of the kind alleged and there is a prima facie case that invoices were paid for services which were never rendered at all in an attempt to gain tax advantages in Slovakia.
3. There is no basis for the alternative application for unless orders since the basis of the claim which the First Defendant has to meet is clear and the absence of supporting documents takes him no further, for the reasons already given.
4. It is alleged by the First Defendant that the transfer of the Second Defendant’s 90% shareholding in PTSK to the Claimant’s son was unauthorised and occurred without any Board approval or shareholder approval which appears to be common ground. A declaration and/or immediate judgement is sought on that basis. A declaration or immediate judgement is also sought in respect of the transfers of Euro 945,000 without such approvals. The underlying issue is, however, the issue of control of the Second Defendant and the allegation that the First Defendant acquired his shareholding and directorship in it by chicanery. The Claimant claims that she acted to protect her interests and what she did was a form of self help in the face of the First Defendant’s wrongdoing. Any claim for the wrongful transfer of shares owned by the Second Defendant or of its monies lies with the Second Defendant and not the First Defendant and any declaration or judgment of the kind sought by the Defendants’ Application would pre-empt the question of entitlement to the shares and control of the Second Defendant and the relief sought by the Claimant in respect of the First Defendant’s shareholding and directorship of the Second Defendant and management of that company for his own benefit and in a manner prejudicial to the Claimant. It is self evident that all these matters need to be determined at the same time on the basis of evidence at trial.
5. There is again no basis for any alternative relief in the form of an order for the Claimant or Third Party to file an affidavit of assets. No attempt has been made to justify such an order for what amount to the grant of a freezing injunction and the Court will not make orders of this kind without the necessary criteria being met. Liability must be established before any issue of enforcement could arise and liability depends on a determination at Trial on evidence.
6. In short, I can see no basis for granting the Application of the Defendants without a full trial and the attempt to avoid these matters being determined at such a trial does not reflect well on the First Defendant. The Claimant has real prospects of success on her claims and there are compelling reasons why the full range of disputes between the parties should be determined at the Trial on the basis of the fullest evidence that can be adduced. I consider that the Applications are misconceived and that they were made in the hope of pre-empting full consideration of the matters raised by the Claimant. It is my view that these applications are so out of the norm as to justify not only their rejection but also an order for indemnity costs in respect of them.
7. There remains however the application in respect of the claim for damages and aggravated damages in paragraph 75.3 and 75.4 and 80(3) and 80(4) of the Particulars of Claim. These pleas are bald and unparticularised, with no more than a cross reference to Article 40(2) of the Law of Damages and Remedies. The First Defendant is entitled to know what damages are sought and particulars must therefore be provided, whether dependent on factual evidence, expert evidence or otherwise. In the absence of particularisation and proof, the Court will not be in a position to award such damages, even if the Claimant is entitled to other remedies and the Claimant will be debarred from making any such claim.
8. Aggravated damages can be awarded by the Court where “warranted in the circumstances” in an amount no greater than three times the actual damages, “where it appears to the Court that the defendant’s conduct producing actual damages was deliberate and particularly egregious and offensive”. Compensatory damages will have to be established, by fact or expert evidence but aggravated damages will depend on the Court’s assessment of the conduct of any party found liable for such damages. The Claim for compensatory damages must be particularised by the Claimant by 15 December 2025 following finalisation of the expert evidence. If the Claimant seeks such aggravated damages, she should by the same date set out the basis for such claim and in particular the egregious or offensive conduct relied on and the reasons for the award of any particular amount.
