Claim No: CFI 009/2025

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

STEPHENSON HARWOOD MIDDLE EAST LLP

Claimant/Respondent

and

MARK AB CAPITAL INVESTMENT LLC

Defendant/Applicant

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

UPON the Judgment of H.E. Justice Shamlan Al Sawalehi dated 29 April 2026 (the “Judgment”)

AND UPON the Order of H.E. Justice Shamlan Al Sawalehi dated 12 May 2026 (the “Costs Order”)

AND UPON the Defendant’s Appeal Notice dated 20 May 2026 seeking permission to appeal the Judgment (the “Application for Permission to Appeal”)

AND UPON the Order of H.E. Justice Shamlan Al Sawalehi dated 19 June 2026 dismissing the Application for Permission to Appeal

AND UPON the Defendant’s Appeal Notice dated 9 July 2026 seeking renewed permission to appeal the Judgment (the “Renewed Application”), and the Defendant’s application for a stay of execution of the Judgment and the Costs Order, pending determination of the Renewed Application (the “Application for a Stay of Execution”)

AND UPON the Claimant’s submissions in opposition of the Renewed Application dated 23 July 2026

IT IS HEREBY ORDERED AND DECLARED THAT:

1. The Renewed Application is dismissed.

2. The Application for a Stay of Execution is dismissed.

3. The Applicant shall pay the Respondent’s costs of the Renewed Application on the standard basis to be assessed by way of immediate assessment in accordance with the directions which follow.

4. Within twenty-one (21) days of the date of this order the Respondent is to file a Statement of Costs together with any submissions in support of the costs claimed.

5. Within twenty-one (21) days of the date of service of the Statement of Costs the Applicant is to file any submissions in opposition to the quantum of the costs claimed.

6. Within fourteen (14) days of the date of service of the Applicant’s submissions pursuant to the preceding order, the Respondent shall file any submissions in reply.

7. The quantum of the Claimant’s costs to be paid by the Applicant will thereafter be assessed on the papers by H.E. Chief Justice Wayne Martin.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 10 August 2026
At: 10am

Summary

1. The Applicant/Defendant, Mark AB Capital Investment LLC (“Mark”), applies to the Court of Appeal for permission to appeal from the decision of the Judge at First Instance (the “Judge”) in which he entered judgment against Mark in favour of the Claimant/Respondent, Stephenson Harwood Middle East LLP (“SH”) in the amount of its claim (AED 2,893,362.66) plus interest and costs. The Renewed Application is made to the Court of Appeal because the Judge dismissed an application for permission to appeal made to him.

2. For the reasons which follow Mark has failed to establish that any of its proposed grounds of appeal has any real prospect of success or that there is some other compelling reason why the appeal should be heard. Accordingly, the Renewed Application must be dismissed with costs.

Overview of the dispute

3. SH is a limited liability partnership incorporated in the DIFC which carries on business as the Middle Eastern Branch of a large international law firm. Mark is a limited liability company incorporated and registered in Dubai which carries on business as an investment company engaged in asset management and investment banking services.

4. Mark engaged SH to provide legal services in connection with Mark’s proposed purchase of a Malaysian airline. The terms of Mark’s engagement of SH were recorded in a letter dated 24 August 2023 from SH to Mark. The letter incorporated SH’s Standard Terms of Business (“Standard Terms”). Both the letter and the Standard Terms provided that charges would be rendered by SH on the basis of time spent by professional staff engaged in the provision of services at standard hourly rates which varied depending upon the experience and expertise of the particular staff member. SH agreed to apply a 30% discount to its standard hourly rates.

5. SH commenced the provision of services in October 2023 and on 3 November 2023 raised an invoice for services rendered during the preceding month. The invoice contained a summary of the time spent during the month by each fee earner providing services in respect of the engagement. The invoice also contained a detailed narrative, in chronological order, containing a description of the work performed, the fee earner performing the work, the time spent in performing the work, the hourly rate applicable to that fee earner, and the amount charged.

6. The invoice issued on 3 November 2023 was paid by Mark.

7. SH issued invoices to Mark in the same format on 6 December 2023 in respect of work done during the month of November 2023, on 4 January 2024 in respect of work done during December 2023, on 5 February 2024 in respect of work done during January 2024, on 6 March 2024 in respect of work done during February 2024 and on 4 April 2024 in respect of work done during March 2024. None of those invoices were paid by Mark. Nor was any complaint made at that time by Mark in respect of the amounts claimed in the invoices or the quantity, quality or nature of the services provided pursuant to the engagement.

The proceedings

8. SH commenced proceedings against Mark on 5 February 2025. The claim was brought on the basis that services were provided in accordance with the Standard Terms, for which Mark had failed to pay in breach of those Terms.

9. Mark failed to file an Acknowledgement of Service after the proceedings were served upon it, and on 15 May 2025 default judgment was entered in favour of SH.

10. Mark subsequently filed an Acknowledgement of Service and successfully applied to set aside the default judgment.

11. Mark then filed a Defence in which it denied the claim of SH and asserted that SH was in breach of the Standard Terms for the following reasons:

12. Mark elaborated on each of these complaints in its Defence. In the portion of the Defence dealing with “overbilling; unreasonable expenses and fees” Mark contended that the fees charged were excessive having regard to the work done. The assertions were cast in the most general terms. In its Defence Mark did not contend that the detailed narrative of the work performed by SH provided in each invoice was inaccurate, or that the itemised work was not in fact performed.

13. The case was tried over one day on 13 April 2026. The judgment was published on 29 April 2026.

The Judge’s reasons

14. As a number of Mark’s grounds of defence to the claim are not pursued on appeal, it will be sufficient to provide an overview of the manner in which the Judge approached the case, referring to those aspects of his reasons which are relevant to the grounds pursued.

15. The Judge commenced his reasons with a recitation of the procedural history of the proceedings, followed by an outline of the submissions made by each party. He recorded that SH advanced its claim on the basis that it was a debt due under the Standard Terms. SH relied upon the absence of contemporaneous complaint and a series of communications in which Mark gave repeated assurances that payment would be made and attributed the delay in payment to administrative or banking issues rather than dissatisfaction with the invoices. SH also submitted that Mark’s Defence was incoherent and cast at such a level of generality as to make it impossible for SH to respond to the assertions made.

16. The Judge noted that Mark’s primary submission was that the substantive legal work required by the proposed transaction was carried out by Malaysian counsel and SH contributed little independent legal value but nevertheless charged large fees on top of fees paid to the Malaysian counsel by way of disbursement.

17. The Judge noted that the primary witness for Mark, Mr Bava, asserted that SH used multiple fee earners to review the same material, attend the same calls and participate in the same email chains and in generating multiple communications on straightforward administrative matters so as to create additional billable hours.

18. The Judge noted that Mark sought to reinforce this complaint by relying on discounts appearing on some of the invoices in relation to “duplication of work”, which Mark contended was an admission that its billing practices were generating duplicate or overlapping charges.

19. The Judge also noted that Mark contended that SH had billed for tasks which were outside the scope of proper legal services including work done in relation to public relations activities, media strategy, press statements, commercial introductions and general co-ordination with third parties.

20. In order to summarise the competing contentions of the parties the Judge analysed their submissions. In that section of his reasons the Judge expressed the view that when servicesCommentHighlight were performed in accordance with the Standard Terms and invoices were rendered in accordance with those Terms and payment was not made, a claim in debt arose as the natural remedy.¹

21. The Judge expressed the view that SH had clearly established the foundational elements of the debt claimed, by establishing that the invoices were issued and had not been paid. In his view:

“The defendant thus bears the burden of establishing some legal or factual answer to the non-payment of the remaining invoices.²”

22. The Judge then gave reasons for rejecting a submission to the effect that SH had not added significant value to the work which was primarily done by local Malaysian counsel.

23. On the subject of the allegation of overbilling, the Judge observed:

24. The Judge also noted submissions made by Mark with respect to the absence of attendance notes and file notes. On that subject he held:

25. The Judge concluded:

Permission to appeal – legal principles

26. RDC 44.117 provides:

27. 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.

28. RDC 44.19 provides:

29. 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.

30. 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.⁶

31. A real prospect of success does not mean a probability of success, but more than mere arguability.⁷

32. “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.⁸

33. 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.⁹

34. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.¹⁰

35. 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.¹¹

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. 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.

The grounds of appeal

38. There are four grounds of appeal.

Ground 1

39. The first ground asserts that the Judge misapplied the burden of proof and treated the invoices as “self proving” and required that Mark disprove the debt.

40. In support of this ground Mark contends that SH carried the burden of proving not merely the retainer and the rendering of invoices but also that the work described in the invoices was actually performed and the fees thereby earned. Mark submits that time narratives within an invoice are nothing more than an assertion that work was done and contends that they are not, without more, evidence that the work was in fact done. Mark contends that treating the production of detailed invoices as discharging the Claimant’s burden of proof and requiring that Mark disprove the debt was to reverse the legal burden of proof.

41. Mark relies on Volterra Fietta v Diag Human SE¹² for the proposition that time records, while relevant, are not conclusive proof of the work done, and that the burden of establishing the value of the services provided rests on the professional providing those services.

42. In opposition to this ground SH submits that the Judge did not misplace the burden of proof. On the evidence as a whole, he considered that SH had established that the work the subject of the invoices had in fact been performed, in part in reliance upon the failure of Mark to make any contemporaneous complaint with respect to the work at the time it was performed. SH further submits that Mark’s reliance on Volterra is misplaced, as that case concerned the enforceability of a contingency fee arrangement, not the burden of proof in a claim for unpaid legal fees based on hourly billing.

Analysis

43. The reasons given by the Judge do not sustain the proposition that he reversed the burden of proof. Rather, he approached the matter on the basis that SH had discharged its burden of proof by the evidence which had been adduced. He considered that the evidence established that the work had been performed, with the consequence that a practical onus shifted to Mark to establish reasons why the work performed in accordance with the Standard Terms should not be paid for. That process of reasoning is, with respect, entirely orthodox and does not reveal error.

44. Mark’s assertions in relation to this ground are, in substance, a challenge to the Judge’s finding of fact that SH had established that work had been performed in accordance with the Standard Terms. The principles relating to appellate constraint with respect to the review of findings of fact made by a Judge at first instance were recently reviewed by this Court in Krystal Financial Consultants LLC v Nextgen Robopark Investment LLC.¹³ In common with many other common law jurisdictions the Court held that an appellate court should only interfere with a contentious finding of fact made by a Judge at first instance on the basis of contentious evidence if the Judge was plainly wrong, in the sense that the finding of fact was not reasonably open on the evidence.

45. The finding made by the Judge was clearly open to him on the evidence which he had received. In this regard it is significant that Mark’s Defence did not assert that the detailed work itemised on each invoice had not been performed. To the contrary, Mark’s Defence proceeded on the assumption that the work had been performed, but that it was duplicative, unnecessary or inefficient.

46. Similarly, in his witness statement Mr Bava did not contend that the work detailed on the invoices had not been performed. Rather, his complaint was that the work had been performed but was unnecessary or duplicative. He also complained that the work performed involved “file churning” and charges for routine administrative tasks so as to “artificially inflate billable hours”.¹⁴ This complaint presumes that the time claimed was in fact spent working on the matter.

47. Mr Bava also refers to a “Time Detail” report disclosed by SH. That report was in evidence before the Judge. It provides a detailed print out, in chronological order, of entries obviously made in the time sheet records maintained by SH. When the invoices are compared to the time sheet records, it is clear that the invoices collate and recreate the entries in the time sheets made by the relevant fee earners during the period the subject of the invoice, including the narrative description of the work done.

48. Put another way, there was evidence before the Judge of the systematic recording of time spent on the engagement by professional fee earners within SH and the embodiment of those records in the invoices sent to Mark. In the absence of evidence to the contrary, the Judge was entitled to infer that the Time Detail record provided evidence of the work performed. As those records corresponded with the invoices, the Judge was entitled to conclude that the evidence established that the work detailed in the invoices had been performed, especially in a circumstance in which Mark had not asserted that the records were inaccurate or reflected work which had not been performed.

49. The skeleton argument served by Mark prior to trial is consistent with the approach evident in Mark’s Defence and in Mr Bava’s evidence. There is no allegation in the skeleton to the effect that SH had failed to prove that the work detailed in the invoices had been performed. Rather, the basis of the Defence was the assertion that SH had charged for time spent doing work that was purely administrative or secretarial or which added little value to the work performed by local Malaysian counsel and which involved file churning or duplication of effort.

50. It is clear from the materials as a whole that the assertion made in support of this ground to the effect that SH failed to prove that the work detailed on the invoices was actually performed is not a submission which was presented to the Judge at trial. The submission appears to have been made for the first time in the applications for permission to appeal, the other lines of defence advanced by Mark having failed.

51. For these reasons ground 1 has no real prospect of success.

Ground 2

52. Ground 2 contends that the Judge wrongly treated the admitted absence of any attendance note, file note or recording as a question of professional negligence, rather than as a question going to whether SH had proved the work for which it billed. In support of this ground Mark contends that the Judge misconstrued the significance of the absence of documentary proof of the work done and failed to conclude that such absence should have resulted in the conclusion that SH had failed to prove the work performed.

53. In support of this ground Mark also contended that SH provided inadequate disclosure and that the materials ultimately provided “did not specify the time taken or the services performed by individual fee earners and consultants in a manner permitting the hours to be verified”.

54. SH responded to this submission with the observation that the Judge took account of the absence of attendance notes but did not consider that this negated the conclusion that the work recorded in the time records and invoices had been performed.

Analysis

55. This is another ground which challenges a finding of fact made by the Judge and which could only succeed if it could be established that the Judge’s conclusion was “plainly wrong” in the sense described in Krystal.

56. Mark’s submission that the documents disclosed by SH do not specify the time taken or the services performed by individual fee earners is not correct – that is precisely the information provided by the Time Detail records. Further, the partner responsible for the performance of the work at SH gave evidence to the effect that it was not standard practice in transactional matters to keep separate formal attendance notes for every meeting or call. She explained that the relevant information is captured in the time narratives and that preparing separate attendance notes for every interaction would be an unnecessary additional cost to the client and was not typically requested or expected in large scale cross border transactional matters. The Judge was entitled to accept this evidence.

57. The Judge also had evidence in the form of 24 versions of a substantial legal Due Diligence Report prepared by SH in November and December 2023 which together comprised thousands of pages of work product.

58. Having regard to the evidence as a whole, the Judge was entitled to discount the significance of the lack of attendance notes or records and maintain his finding that SH had performed the work itemised in the invoices which it provided to Mark.

59. Ground 2 has no real prospect of success.

Ground 3

60. Ground 3 contends that the Judge erred by treating the discounts provided by SH in respect of duplicated work as evidence of fair billing rather than as an admission that duplication had occurred and that there was a real possibility of such duplication.

61. This is another challenge to a finding of fact made by the Judge. It is clearly a finding that was open to him, and there is no basis whatever upon which an appellate court could conclude that his assessment of the evidence was “plainly wrong”.

Ground 4

62. Ground 4 contends that the Judge failed to determine whether the work done by SH which related to public relations and media activities fell within the contractual scope of the retainer. Mark contends that this was a question the Judge was required to determine.

63. The Judge resolved this issue on the basis that:

64. In these circumstances it was entirely open to the Judge to conclude that Mark had acquiesced in the performance of the work, with the result that it was unnecessary to undertake any formal process of construing the scope of the retainer contained in the Standard Terms. That approach was within the range of approaches open to the Judge and is not therefore a matter which an appellate court would consider reviewing.

Other compelling reason

65. Mark submits that there is a compelling reason why the appeal should be heard in that the grounds raise a question of general importance to professional fee litigation in the DIFC and the standard of proof required of a law firm seeking to recover time based fees. However, because the grounds of appeal have no real prospect of success, and turn upon the particular facts and circumstances of this case, no issues of general importance would be determined by the appellate court.

Conclusion

66. As Mark has failed to establish that any of its proposed grounds of appeal have a real prospect of success, or that there is any other compelling reason why the appeal should be heard, the Renewed Application must be dismissed with costs.

67. As the application for a stay of execution in relation to the judgment and the costs order made against Mark depends upon the prospect of a successful appeal, that application must also be discussed.