Claim No. CFI 009/2025

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

STEPHENSON HARWOOD MIDDLE EAST LLP

Claimant/Respondent

and

MARK A B CAPITAL INVESTMENT LLC

Defendant/Applicant

ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the Claim Form dated 5 February 2025 (the “Claim”)

AND UPON the Judgment of H.E. Justice Shamlan Al Sawalehi dated 29 April 2026, by which the Claim was granted, and judgment was entered against the Applicant in the principal sum of AED 2,893,362.66 together with contractual interest in the sum of AED 323,324.60 accrued up to 13 April 2026 (the “Judgment”)

AND UPON the Order with Reasons of H.E. Justice Shamlan Al Sawalehi dated 12 May 2026, by which the Defendant was ordered to pay the Claimant’s costs of the proceedings in the sum of AED 504,023.02 (the “Costs Order”)

AND UPON the Defendant’s Appeal Notice dated 20 May 2026 seeking permission to appeal the Judgment and for a Stay of Execution of the Judgment and Costs Order dated 12 May 2026 pending the determination of the appeal (the “Permission to Appeal Application” or the “Application”)

IT IS HEREBY ORDERED THAT:

1. The Defendant’s Permission to Appeal Application is dismissed.

2. The Defendant shall pay the Claimant’s costs of the Permission to Appeal Application on the standard basis. If not agreed, the parties shall file their submissions on costs within 14 days from the date of issue of this Order, for quantum to be assessed by the Court.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 19 June 2026
Time: 9am

1. This Permission to Appeal Application (alternatively, the “Application”) is brought by the Defendant (hence, the “Applicant”) seeking leave to appeal the Judgment of H.E. Justice Shamlan Al Sawalehi dated 29 April 2026, and a Stay of Execution (the “Stay Application”) of the Judgment and Costs Order dated 12 May 2026 pending the determination of the appeal.

2. The Claim was granted by the Judgment for the sum of AED 2,893,362.66 and added interest at AED 323,324.60 accrued up to 13 April 2026.

3. The underlying Claim concerned unpaid legal fees and disbursements arising out of a written retainer, referred by the parties as the “Engagement Letter”, between the Respondent and the Applicant in connection with the Applicant’s proposed acquisition of a Malaysian airline, referred to by the parties as “Project Apollo”, and at an earlier stage as “Project Firefly”.

4. The Applicant now submits nine grounds of appeal in its Application in addition to its submissions on the stay of execution of the Costs Order pending appeal. I shall address each ground in accordance with the relevant procedural rules.

Procedural Background

5. The procedural background to the Claim was meticulously set out in my Judgment and need not be repeated at length for the sake of brevity.

6. The Claim was commenced proceedings on 5 February 2025 by Part 7 Claim Form and Particulars of Claim seeking recovery of unpaid invoices, contractual interest and costs.

7. A default judgment was entered by Judicial Officer Maitha AlShehhi on 15 May 2025 (the “Default Judgment”). However, it was later set aside by Order with Reasons of Judicial Officer Maitha AlShehhi dated 29 July 2025.

8. The Applicant then served its Defence, denying liability and advancing allegations including defective legal services, overbilling, breach of duty, conflict of interest, fraud and unreasonable charging.

9. The Applicant also challenged the Court’s jurisdiction and sought, alternatively, a stay in favour of arbitration. By Order with Reasons dated 25 December 2025, I dismissed that application.

10. The trial took place on 13 April 2026 (the “Trial”), at which both parties were represented by counsel. I heard the evidence and submissions and reviewed the trial bundle and the parties’ written and oral submissions.

11. On 29 April 2026, I issued the Judgment in favour of the Respondent.

12. On 20 May 2026, the Applicant filed its Permission to Appeal Application against the Judgment and a Stay of Execution against the subsequent Costs Order.

Applicable Law and Rules

13. The relevant Rules of the DIFC Courts (“RDC”) for the purpose of this Application are:

14. It is well understood that a “real prospect of success” needs to be realistic rather than fanciful and so requires a more than a merely arguable case. Where an error of law is alleged, it must be demonstrated that the alleged error was material to the outcome of proceedings; being, if the alternative was applied, the outcome would be different. On a similar thread, where an error of fact is alleged, considerable deference must be afforded to the decision of the trial judge who must be shown to have been plainly wrong in their interpretation (Al Khorafi & Ors v Bank Sarasin-Alpen (ME) Limited & Ors [2015] DIFC CA 003). If the alleged error is a mix of fact and law, it must be shown that the wrong legal principle was applied and irrelevant considerations were made which culminated in a plainly wrong conclusion (Protiviti Member Firm (Middle East) Limited v Al-Mojil & Ors [2016] DIFC CA 003).

15. I approach the Application by reference to RDC Part 44. The starting point is RDC 44.19, which provides that permission to appeal may only be given where the lower Court or the appeal Court considers that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard.

16. In these circumstances, it is not enough for the Applicant to repeat arguments which were advanced at the Trial, or to submit that another judge might have placed different weight on, or attached different weight to, the evidence. The question is whether the Applicant has identified a realistic appealable error in the Judgment, or some other compelling reason which justifies the matter proceeding to an appeal.

17. RDC 44.31 is also material. The grounds of appeal must set out clearly why it is said that the decision of the lower Court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings. They must also specify, in respect of each ground, whether the ground raises a point of law or is an appeal against a finding of fact, and state the orders sought on appeal. That requirement, inter alia, ensures that a proposed appeal is properly focused on appealable error, rather than in general dissatisfaction with the outcome.

18. I also bear in mind that an appeal is ordinarily a review of the decision below, not a rehearing of the case. That matters in the present Application because many of the proposed grounds seek, in substance, to re-open the factual and evidential assessment made at the Trial. The fact that the Applicant disagrees with that assessment does not, without more, give rise to a real prospect of success on appeal.

19. It is also necessary to distinguish between a criticism of the reasoning and an error which is material to the disposition of the case. RDC 44.19 requires the proposed appeal to have a real prospect of success; even if an alleged error in the reasoning can be identified, that will not, without more, satisfy the threshold for permission to appeal. The alleged error must be material in the sense that it is capable of affecting the order ultimately made.

The Application

20. In regard to the discussion of the grounds of appeal below, I note that the summary of the submissions filed by the parties are intended as summaries only. Any part omitted is not an advertisement of any failure to consider or respond to a submission, but rather a decision to exclude an explicit address for the sake of brevity. All submissions on the Court file have been included in my deliberations.

Ground 1: Burden of Proof and the Invoices

21. The Applicant submits that I erred in law by treating the invoices as self-proving. It says that, in a professional fees claim, the Respondent was required to prove not solely the retainer and the issue of invoices, but that the work described in the invoices was actually performed and that the fees claimed were actually earned.

22. The Claimant (hence, “Respondent”) submits that the Applicant mischaracterises the burden of proof. It relies on the finding in the Judgment that the Respondent had established the foundational elements of its debt claim, namely that the five invoices were issued, their sums and structure were agreed, the first Project Apollo invoice had been paid, and the five later invoices remained unpaid. The Respondent’s position is that, once those matters were established, the Applicant bore the burden of identifying a legal or factual answer to non- payment.

23. I am not satisfied that this ground has a real prospect of success. The Judgment did not proceed on the basis that invoices are, in every case, automatically conclusive. Rather, the invoices were considered in the context of the written retainer, the agreed charging structure, the paid first Project Apollo invoice, the unpaid later invoices, and the detailed narratives identifying time spent, fee earners and work undertaken. In those circumstances, the finding that the Respondent had established the foundational elements of its debt claim does not disclose an arguable error of law.

24. This ground therefore fails because it does not identify a material error in the approach to the burden of proof. It is, in substance, a challenge to the evidential weight given to the invoices and surrounding contractual materials, which is insufficient to meet the threshold in RDC 44.19.

Ground 2: Absence of Attendance Notes

25. The Applicant submits that I wrongly treated the absence of attendance notes as a professional negligence issue rather than as a proof-of-debt issue. It says that attendance notes, file notes and meeting records were primary evidence by which the hours billed could be verified, and that without them the Respondent’s case remained uncorroborated.

26. The Respondent submits that the absence of attendance notes was expressly addressed in the Judgment. It relies on the finding that there was no clear evidential demonstration that the absence of separate attendance notes meant that the invoice narratives were false or that the work described was not done. It also relies on Ms Forbes-Miranda’s evidence that, for transactional work of this nature, the relevant information was captured in time narratives and correspondence.

27. I am not satisfied that this ground has a real prospect of success. The absence of attendance notes was not ignored. The Judgment treated the point as relevant but concluded that the Applicant had not shown that the absence of separate attendance notes made the invoice narratives false or the work unperformed. That was an evidential conclusion open on the material before the Court.

28. This ground therefore fails because it does not show that the Judgment misunderstood the legal relevance of attendance notes or treated them as incapable of relevance. The Applicant’s disagreement is with the conclusion reached on the evidence, not with an appealable error of law, and so fails to meet the RDC 44.19 threshold.

Ground 3: Good Faith under Articles 57 and 58 of the DIFC Contract Law

29. The Applicant submits that I failed to apply Articles 57 and 58 of the DIFC Contract Law. It says that those provisions imposed duties of good faith and fair dealing, and that the Respondent breached those duties by charging premium legal rates for administrative tasks, billing for PR and media work at M&A rates and relying on the contractual 14-day objection clause in circumstances said to be commercially unfair.

30. The Respondent submits that the good faith argument is unfounded. It says that the Judgment recorded the Applicant’s reliance on good faith and fair dealing, and considered the contractual arrangements, the invoices, the Applicant’s opportunity to object, the absence of contemporaneous objection, and the allegations of overbilling. The Respondent also relies on the finding that voluntary discounts for duplication or double attendance showed that the Respondent was reviewing its own billing and reducing it where it considered fairness warranted.

31. I am not satisfied that this ground has a real prospect of success. The Judgment did not fail to recognise the Applicant’s good faith argument. The question was whether that argument, as pleaded and evidenced, provided a legal answer to the debt claim. On the material before me, it did not. The Applicant did not establish that the alleged billing complaints amounted to conduct which displaced the contractual obligation to pay the invoices, still less that any such error would have affected the outcome.

32. This ground therefore fails because it does not identify a material omission or misdirection in the application of the DIFC Contract Law. It seeks to reframe billing complaints as a good faith defence without showing a realistic basis upon which that defence could defeat or reduce the Judgment debt.

Ground 4: Out-of-Scope and PR Billing

33. The Applicant submits that I failed to determine whether PR strategy, media coordination, press release drafting, commercial introductions and marketing liaison activities fell outside the scope of the Engagement Letter. It says that the Engagement Letter was limited to a red-flags legal due diligence review and reviewing and negotiating transaction documents.

34. The Respondent submits that the Applicant’s present characterisation of PR and media- related work as a contractual construction issue was not pleaded or advanced in that form at Trial. It says that the point was presented as part of the Applicant’s overbilling or negligence case rather than as a distinct construction argument under the Engagement Letter. The Respondent also submits that the Applicant was aware of the Respondent’s involvement in PR strategy meetings and related communications and raised no contemporaneous objection.

35. I am not satisfied that this ground has a real prospect of success. The Judgment considered the nature of the Respondent’s role and the services performed in the context of the transaction. The Applicant has not shown that a separate contractual construction issue was properly before the Court in the manner now advanced, nor has it identified a sufficiently pleaded and quantified out-of-scope claim which, if accepted, would realistically affect the result.

36. This ground therefore fails because it attempts to recast a trial complaint about overbilling and scope into an appealable construction point. The Applicant has not shown that any alleged omission was material to the order made.

Ground 5: Alleged Contradiction Concerning Attendance-Note Entries

37. The Applicant submits that there was an unresolved internal contradiction in the evidence. It says that the Respondent billed for attendance-note-related work while Ms Forbes- Miranda admitted that no attendance notes were created. The Applicant says that this contradiction went directly to the credibility of the invoices.

38. The Respondent submits that the alleged contradiction concerning attendance-note entries is artificial. It relies on Ms Forbes-Miranda’s explanation that an entry described as “finalising attendance note” referred not to the creation of a formal standalone attendance note, but to recording or summarising action points or agreed changes to transaction documents, often by email or mark-up.

39. I am not satisfied that this ground has a real prospect of success. The issue is a narrow evidential point. The Respondent gave an explanation for the entry, and the Applicant has not shown that the Judgment was required to treat that point as undermining the invoices as a whole. Nor has the Applicant shown that any alleged failure to resolve the point in greater detail was capable of affecting the outcome.

40. This ground therefore fails because it does not identify a material contradiction which renders the Judgment wrong or unjust. At its highest, it is a challenge to the assessment of one aspect of the evidence.

Ground 6: Discounts for Duplication

41. The Applicant submits that I misdirected myself by treating discounts for duplication as evidence of fair billing. It says that a discount to “factor in duplication of work” was an admission that the Respondent’s billing system had generated duplicative or overlapping charges, and that it should have been treated as an admission against interest.

42. The Respondent submits that the discretionary discounts for duplicated attendance or overlapping work were properly treated as evidence that the Respondent reviewed its billing and reduced it where appropriate. It says that the invoices transparently recorded both the work performed and the discounts applied.

43. I am not satisfied that this ground has a real prospect of success. A discount applied to account for duplication may be capable of more than one inference. It does not necessarily establish systemic overbilling or prove that the balance of the invoices was unreliable. The inference drawn in the Judgment, namely that the discounts showed billing review and fairness, was open on the evidence.

44. This ground therefore fails because it challenges an evaluative inference rather than identifying an appealable error. The Applicant has not shown that the conclusion reached was outside the range reasonably open to the Court.

Ground 7: SRA Code of Conduct and Professional Standards

45. The Applicant submits that I failed to apply the SRA Code as the benchmark of the applicable standard of care. It says that the SRA Code was not relied upon as a separate cause of action, but as the measure of the reasonable care and skill expected of an English- regulated solicitor. It also relies on the DIFC Courts Code of Best Legal Professional Practice.

46. The Respondent submits that the SRA Code point was not properly pleaded or particularised. It relies on the finding in the Judgment that no precise operative provisions were identified and analysed in a manner showing how they altered the Applicant’s obligations under the retainer or created a set-off or defence. The Respondent also denies that any breach of professional standards was established.

47. I am not satisfied that this ground has a real prospect of success. The Judgment did not proceed on the basis that professional standards were irrelevant. The difficulty was that the Applicant did not plead or particularise the point in a manner capable of providing a legal answer to the debt claim. A general reliance on professional standards does not, without more, establish a defence, set-off or basis for reducing a contractual fee claim.

48. This ground therefore fails because it does not identify a material error in the treatment of the SRA Code or professional standards. It seeks to elevate a general regulatory submission into a substantive answer to the debt without the necessary pleading, evidence or legal analysis.

Ground 8: Absence of a Pleaded Counterclaim

49. The Applicant submits that I placed excessive weight on the absence of a pleaded counterclaim. It says that it had reserved its right to counterclaim, but was unable properly to formulate such a counterclaim because the Respondent’s alleged failure to maintain attendance notes or file records deprived it of the evidence needed to do so.

50. The Respondent submits that I did not treat the absence of a counterclaim as determinative, but as a relevant factor in assessing the Applicant’s position. It says that the Applicant had every opportunity during disclosure and throughout the proceedings to plead a counterclaim if it wished to do so.

51. I am not satisfied that this ground has a real prospect of success. The absence of a counterclaim was not treated as a standalone or determinative reason for entering judgment. It was relevant because many of the Applicant’s allegations were, in substance, allegations of defective performance, breach of duty or professional negligence. If such allegations were to operate as a monetary answer to the debt, they needed to be pleaded and advanced in a legally recognisable form.

52. This ground therefore fails because the Applicant has not shown that the Judgment placed legally impermissible weight on the absence of a counterclaim. Nor has it shown that the absence of attendance notes prevented it from pleading a defence, set-off or counterclaim with sufficient particularity.

Ground 9: Malaysian Law Competence

53. The Applicant submits that the Respondent’s admitted lack of Malaysian law competence should reduce the recoverable fees. It says that the transaction concerned the acquisition of a Malaysian airline and depended on Malaysian corporate law, regulatory requirements and court processes. The Applicant accepts that Malaysian counsel could be instructed but says that the Respondent was not entitled to charge fees at primary lead-counsel rates where its role was limited to coordination and oversight.

54. The Respondent submits that the Malaysian law argument is without merit. It says that the Engagement Letter expressly stated that the Respondent was not licensed or qualified to advise on Malaysian law and that Malaysian counsel would be engaged to provide local law advice. The Respondent further submits that its role was to act as transaction counsel and to coordinate the overall legal work, while Malaysian counsel addressed Malaysian law aspects.

55. I am not satisfied that this ground has a real prospect of success. The use of Malaysian counsel was not concealed or inconsistent with the retainer; it was part of the contractual structure recorded in the Judgment. The fact that Malaysian counsel was instructed does not itself show that the Respondent’s work was outside scope, unnecessary or unrecoverable. Nor does it establish that the Respondent’s transaction counsel role had no independent value.

56. This ground therefore fails because it seeks to turn an expressly contemplated feature of the engagement into a basis for reducing the fees. The Applicant has not identified an appealable error in the Judgment’s treatment of the Malaysian law issue.

Stay of Execution

57. I turn to the Applicant’s application for a stay of execution. The starting point is RDC 44.4, which provides that, unless the lower Court or the appeal Court orders otherwise, an appeal shall not operate as a stay of any decision of the lower Court. The filing of the Application therefore does not, of itself, suspend the Respondent’s entitlement to enforce the Judgment or the Costs Order.

58. The Applicant seeks a stay of execution of the Judgment in the sum of AED 3,216,687.26, being the principal sum and contractual interest, and a stay of execution of the Costs Order in the sum of AED 504,023.02 pending the determination of any appeal, if permission is granted. In the alternative, it seeks a conditional stay upon the provision of such security as the Court considers appropriate and proportionate.

59. The Stay Application is directly connected to the permission application. The Applicant’s principal basis for seeking a stay is that the proposed appeal is arguable and raises serious errors of law. Nevertheless, for the reasons set out above, I have concluded that none of the nine grounds advanced by the Applicant has a real prospect of success, and that there is no other compelling reason why the appeal should be heard. That conclusion substantially undermines the foundation upon which the stay application is advanced.

60. I am therefore not satisfied that the Applicant has provided sufficient evidence to justify a stay as a matter of discretion. The Applicant asserts that enforcement would cause serious prejudice to its business operations, investment activities and reputation. Those are matters which may, in an appropriate case, be relevant. However, they are advanced here at a high level of generality. The Applicant has not provided detailed evidence of its financial position, nor has it explained with sufficient particularity how payment of the Judgment debt and the Costs Order would cause irremediable harm.

61. The sums in issue are substantial, but that is not, without more, a reason to deprive the Respondent of the benefit of the Judgment and Costs Order. The Respondent has obtained final orders in its favour. In the absence of a proposed appeal with a real prospect of success, or evidence demonstrating real prejudice or irremediable harm if enforcement proceeds, I see no proper basis for staying execution.

Conclusion

62. The Applicant’s Permission to Appeal Application is dismissed.

63. The Applicant shall pay the Respondent’s costs of the Permission to Appeal Application on the standard basis. If not agreed, the parties shall file their submissions on costs within 14 days from the date of issue of this Order, for quantum to be assessed by the Court

64. The conclusion reached is consistent with the overriding objective. RDC 1.6 requires the Court to deal with cases justly, which includes dealing with them proportionately, expeditiously and fairly, and allotting to each case an appropriate share of the Court’s resources. RDC 1.8 requires the parties to assist the Court in furthering that objective. Those provisions are engaged at the permission stage. The appellate process should not be invoked solely to reformulate matters already advanced and determined at Trial, absent a realistic appealable error or some other compelling reason for appellate intervention. To permit such an application to proceed would not be consistent with the efficient and proportionate use of the parties’ and the Court’s resources.