September 08, 2021 court of first instance - Orders
Claim No. CFI 005/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
(1) ANOOP KUMAR LAL
(2) PAUL PATRICK HENNESSY
ORDER WITH REASONS OF THE REGISTRAR NOUR HINEIDI
UPON the Claimants’ application for immediate judgment being discontinued
AND UPON the Consent Order executed by the parties, sealed by the Court on 18 May 2021 (“Consent Order”)
AND UPON the costs of the withdrawal of the Application for Immediate Judgment not being agreed
AND UPON the Defendant’s application for summary assessment filed on 28 July 2021, including documents filed in support (the “Application”)
AND UPON the Claimants’ reply, to the Application, filed on 11 August 2021, including documents filed in support (the “Reply”)
AND UPON considering documents on the Court record
IT IS HEREBY ORDERED THAT:
1. The Claimants shall pay Defendant’s costs of, and occasioned by, the Application summarily assessed at AED 48,500.40 (inclusive of 5% VAT and court filing fee disbursement of AED 1,101.90) within 14 days from the date of this order accruing at 9% per annum from 23 September 2021 until the date of full payment.
Date of issue: 8 September 2021
SCHEDULE OF REASONS
1. I have not awarded the Defendant her costs in full on the basis that it cannot follow that simply because the Claimants did not agree costs to the Defendant’s costs, that the Claimants then become liable for the full amount due to non-agreement.
2. The task at hand was to assess the degree to which costs claimed by the Defendant are proportionate to the matters in issue (RDC r.38.18(1)). The Application and the Reply, which were each thorough, fulfilled the second objective under RDC r.38.18(2) and comfortably “resolved” any doubt I may have had as to whether costs were reasonably incurred, or reasonable and proportionate in amount in favour of the paying party.
3. I do not consider AED 74,159.77 (being inclusive of 5% VAT and court fee disbursements of AED1,101.90) as a general amount to be a proportionate to the matters in issue. It is necessary to break down the amount and assess each strand of costs claimed, in isolation.
4. At the time the Consent Order was being agreed by the parties, the Defendant’s costs had only accrued to AED 24,715. It should be said that this amount appears to have accrued only by virtue of the parties’ negotiations with respect to the terms of the Consent Order, and more specifically, costs of the immediate judgment application which the Defendant was only put on notice of for a period of two days (before the Claimants expressed an intention to withdraw). A sum of AED 10,000 seems to me to be a proportionate amount for agreement of the consent order.
5. The second “strand” of costs claimed by the Defendant, to the tune of approximately AED 19,500 (given that costs had increased from AED 24,715 to AED 44,160), seems to have been accrued between 9 May 2021 and 26 May 2021. These costs seem to be largely accrued by virtue of ongoing negotiations between the parties for payment of costs of the discontinued immediate judgment application (filed by the Claimant). In my view, a proportionate amount to reward the Defendant for costs accrued during this period would 50% of that amount, being AED 9,722.50.
6. The final “strand” of costs claimed by the Defendant, amounts to AED 25,418.92 (given that costs had increased from AED 44,160 to AED 69,578.92 (excluding 5% VAT and court disbursement fees of AED 1,101.90)). These costs appear to have been purely accrued on account of the Application. With respect to this amount, I am satisfied that AED 25,418.92 in costs is proportionate to the work completed on the Application.
7. Adding the three figures of AED 10,000 with AED 9,722.50 and AED 25,418.92, gives a total of AED 45,141.42 plus VAT at 5% (AED 2,257.10), equating to AED 47,398.50.
8. The disbursement claimed and paid for by the Defendant is AED 1,101.90. Adding this amount to the amount at paragraph 7 above equates to AED 48,500.40.
9. In final words, I would encourage parties, moving forward, to resort to the Court for directions in case no agreement can be swiftly reached on trivial matters such as this. Had the matter been brought to the Court’s attention earlier, costs would be lower and the issue between the parties, on costs, would have been disposed of more efficiently.
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