Claim No. CFI 013/2026

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURT

IN THE COURT OF FIRST INSTANCE

BETWEEN:

GREEN COMMUNITY HOLDINGS LIMITED

Claimant/Respondent

and

(1) MITCHELL WHITE
(2) GRACE ALEXANDRA WHITE

Defendants/Applicants

ORDER WITH REASONS OF H.E. JUSTICE MARK PELLING

UPON the Part 7 Claim Form dated 4 March 2026 (the "Claim")

AND UPON the Claimant's Request for Default Judgment against the First and Second Defendants dated 10 June 2026 pursuant to Rule 13.4 of the Rules of the DIFC Courts ("RDC")

AND UPON the Default Judgment of H.E. Justice Mark Pelling dated 16 July 2026 (the "Default Judgment")

AND UPON the First and Second Applicants' Application No. ENF-251-2026/1 dated 31 July 2026 under RDC Part 14 for an order setting aside the Default Judgment (the "Set Aside Application")

AND UPON the Order of Assistant Registrar Hayley Norton dated 3 August 2026 transferring the Set Aside Application to this Claim

AND UPON the Order with Reasons dismissing the Set Aside Application dated 2 September 2026 (the "Set Aside Order") and the directions contained therein for determination of the Claimant's application for its costs of and occasioned by the Set Aside Application (the "Costs Application")

AND UPON the Defendants' costs submissions filed on 9 September 2026 in answer to the Costs Application (the "Defendant's Submissions")

AND UPON the Claimant's submissions in reply to the Defendants' Submissions filed on 10 September 2026 (the "Claimant's Reply")

IT IS HEREBY ORDERED THAT: The Claimant's costs are assessed on the standard basis in the sum of USD 1500.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 14 September 2026
At: 1pm

1. By the Set Aside Order, I dismissed the Defendants' Set Aside Application and directed that the Defendants were to pay the Claimant's costs of and occasioned by the Set Aside Application. I gave directions for the filing of submissions in answer to the Costs Application which both parties have complied with.

2. By its Statement of Costs dated 13 August 2026, the Claimant sought costs in the total sum of USD 2,000. This sum consisted of 1 hour's attendance on an unidentified party (presumably the Claimant) and 3 hours work on documents, which although not identified in the Statement of Cost, was inferentially wholly or very largely time expended in preparing the Claimant's written submissions in answer to the Set Aside Application. This document consisted of 7 pages consisting of a total of 56 paragraphs although a number were only a couple of lines long and most were sub paragraphs within a total of 9 sections within the document.

3. In its submissions in answer to the Set Aside Application, the Claimant submitted in relation to costs that:

4. The Defendants submit that the Claimant's costs should be assessed on the standard basis under RDC 38.18 and reduced to USD 1,000 (against the USD 2,000 claimed), or alternatively that recoverable time be reduced to 2 hours if the USD 500 partner rate is accepted.

5. The first issue is whether or not the Claimant's costs should be assessed on the indemnity or standard basis. The Defendants submit that there is no material before the Court that justifies the Court directing an assessment on the indemnity basis. The Claimant maintains that costs should be directed to be assessed on the indemnity basis because (as I concluded when dismissing the Set Aside Application) the Set Aside Application had not been supported by evidence as it should have been; the documents referred to in Part C of the Set Aside Application were not of themselves evidence and the Defendants had failed to provide a draft Defence setting out what they claimed to be their Defence. Overall, the Set Aside Application failed both because the Defendants had failed to comply with various procedural requirements but also because in any event they failed to demonstrate that either of them have a real prospect of successfully defending the Claim. The Claimant also submits that assessment on the indemnity basis is justified because (i) at the time of the Set Aside Application they were in breach of an earlier costs order that has never been complied with; (ii) the Set Aside Application was advanced on two mutually contradictory accounts of their own knowledge of the proceedings and those factors taken together with the failure of the Set Aside Application justify an assessment on the Indemnity basis.

6. The circumstances in which costs can be ordered to be paid on an indemnity basis are well established. The principles applied by this Court in relation to indemnity assessments are similar to those which are applied by the English Courts. The applicable principle is that established by Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) [2002] EWCA Civ 879 and is that indemnity costs will be ordered only where the conduct of the paying party is outside the norm (i.e. outside ordinary and reasonable conduct) to be expected of those conducting civil litigation, or as it is sometimes put, is conduct which was unreasonable to a high degree. Whilst there is some authority for the proposition in the context of an indemnity assessment being sought following a trial, that bringing a claim that is "… speculative, weak, opportunistic or thin…" is capable of being conduct beyond the norm (see Three Rivers District Council v Bank of England [2006] EWHC 816 (Comm)), generally the circumstances would have to be extreme before that would of itself justify an order that costs be assessed on the indemnity basis. Generally, the receiving party's success over the paying party, however emphatic, is not sufficient of itself to justify an award of costs to be assessed on the indemnity basis - see Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883 at [83]. Generally, there have to be aggravating circumstances above and beyond lack of merit before a court will be justified in directing an indemnity assessment of the successful party's costs.

7. I am not satisfied that the grounds relied on by the Claimant are sufficiently aggravating to justify directing an assessment on the indemnity basis. The fact that there was an earlier outstanding costs order does not assist the Claimant, because there are means available to the Claimant to enforce that Order. The fact that the application contained mutually contradictory elements does not add greatly to the point that the application lacked merit, which is why it failed. Similar consideration apply to the absence of evidence in support – the Claimant could have chosen to rely only on that point if it considered it was decisive. In reality, that was an application that failed on its merits. That, of itself, does not justify directing an indemnity assessment. If the contrary were the case, then indemnity orders would be made much more frequently than they are. I therefore decline to order that the costs be assessed on the indemnity basis and direct that they be assessed on the standard basis.

8. I turn now to the assessment of the sum recoverable. The Defendant submits that where costs are to be assessed on the standard basis, the Court will allow only costs which were reasonably and proportionately incurred and are reasonable and proportionate in amount, with any doubt resolved in favour of the paying party. The Claimant submits that this inaccurately states the effect of RDC 38.18 which provides only that on a standard assessment the Court will allow only costs which are proportionate to the matters in issue. I consider that is a distinction without a difference. Whilst the Claimant is correct as to the literal terms of the rule, the effect of the rule is as described by the Defendants. As to what proportionality means in this context, the word is not defined in the RDC but it is likely that it is properly to be construed in the same way as that word is understood in relation to the costs rules within the Civil Procedure Rules that apply in England and Wales – that is that "… the touchstone (of reasonable and proportionate costs) is not the amount of costs which it was in a party's best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances." – see Kazakhstan Kagazy Plc v Zhunus [2015] EWHC 404 (Comm). Expenditure over and above that level is for a party's own account and not recoverable from the other party.

9. Returning to the facts of this case, the hourly rate that has been adopted is both reasonable and proportionate. Whilst at the outer limit of what is proportionate, I am prepared to accept that it was reasonable and proportionate to spend an hour with the Claimant considering the application. However, in my judgment 3 hours spent on the skeleton argument in answer to the Set Aside Application was in excess of what was proportionate. I conclude that no more than 2 hours was the reasonable and proportionate amount of time to spend on answering the Set Aside Application.

10. For those reasons, I assess the sum recoverable at USD 1500.