June 11, 2025 court of first instance - Orders
Claim No: CFI 029/2025
IN THE COURTS OF DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) EFG (MIDDLE EAST) LTD
(2) EFG BANK LTD
Claimants
and
(1) MARJ HOLDING LIMITED
(2) ARJ HOLDING LIMITED
(3) MOHAMMAD AHMAD RAMADHAN JUMA
Defendants
ORDER WITH REASONS OF H.E. JUSTICE ROGER STEWART
UPON the Claimants’ Urgent Application No. CFI-029-2025/1 dated 10 March 2025 for a world wide freezing order and the Witness Statement dated 10 March 2025 filed in support of the Application (the “Urgent Application Notice or “Application”)
AND UPON the Order of H.E. Justice Roger Stewart dated 10 March 2025 as amended on 11 and 12 March 2025 granting the Application (the “WWF Order”)
AND UPON the Order of H.E. Justice Roger Stewart dated 28 March 2025
AND UPON the Order of H.E. Justice Roger Stewart dated 22 May 2025
AND UPON H.E. Justice Roger Stewart’s judgment given ex tempore at a hearing held on 27 May 2025 with the order issued on 2 June 2025 (the “Judgment”)
AND UPON the Claimants’ Appeal Notice dated 2 June 2025 seeking permission appeal the Judgment (the “Permission to Appeal”)
AND UPON the Claimant’s submissions on costs dated 30 May 2025
AND UPON the Defendant’s submissions on costs dated 2 June 2025
AND PURSUANT TO the Rules of the DIFC Courts
IT IS HEREBY ORDERED THAT:
1. Permission to Appeal is refused.
2. The discharge of the current freezing injunction is stayed until 14 days from this Order.
3. The Claimants are to pay the sum of USD 53,530 to the Defendants on an immediate assessment of costs within 14 days of today.
Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 11 June 2025
At: 3pm
SCHEDULE OF REASONS
Permission to Appeal
1. Permission to Appeal is refused as none of the Grounds of Appeal, whether considered individually or collectively have real prospects of success and there is no other compelling reason why the appeal should be heard.
2. In relation to Ground 1 where it is asserted that there was an error of law in finding that the non-disclosures were material;
(a) The test as to whether facts are material is whether the facts are material for the judge to know in dealing with the application as made – Tugushev v Orlov [2019] EWHC 2031 (Comm) at [7v] and is linked with fair presentation so that the Judge can have complete confidence in the thouroughness and objectivity of those presenting the case for the Appellant – Tugushev [7iii];
(b) Whether an order is or is not in the standard form is inevitably material for the Judge to know as the Court will wish to consider the justification for any departures from the standard form;
(c) Further when a Judge specifically enquires as to whether the order is in the standard form and is told that it is, when, in fact, it is not, there is a clear breach of the obligation of fair presentation;
(d) The assertion that the Business Exception may sometimes be excluded does not mean that knowing the injunction is not in the standard form is immaterial nor does the fact that fortification may not be required;
(e) The fact that an argument as to why there should not be a business exception was made more than two months after the injunction was made is irrelevant to the materiality of the original non-disclosure; and
(f) The assertion that the Claimants’ jurisdictional arguments were included in the Claimants’ original skeleton argument does not obviate the need to draw to the Court’s attention the arguments the Defendants are likely to make.
3. In relation to Ground 2 (the alleged failure correctly to apply the test for exercising discretion or taking into account all relevant factors in considering whether to continue or re-grant the freezing order;
(a) There is no statement as to what the allegedly correct test is – the relevant considerations being set out in Tugushev at [7ix – xiii] as set out in the Judgment;
(b) The Claimant does not deal with the powerful points against re-imposition of the freezing order as set out in the judgment; and
(c) There is no real prospect of the Court of Appeal substituting its own discretion for that of the first instance court.
4. In relation to Ground 3 (default judgment):
(a) The Claimant accepted the Particulars of Claim dated 20 March 2025 required amendment in order to make sense;
(b) It is not permissible to construe a pleading by reference to an affidavit served some six weeks after the Particulars or other unidentified correspondence; and
(c) The order made permitted the Claimant to amend its claim and for the Defendant to respond to the same which constituted a sensible case management decision.
Stay of the Freezing Injunction
5. Given that permission to appeal is refused, there is no reason to grant a stay until the hearing of any appeal.
6. The Court is, however, prepared to grant a stay in respect of the discharge of the freezing injunction for 14 days after the date of this Order as:
(a) The Claimant wishes to seek to renew the application for permission to the Court of Appeal;
(b) It is arguable that the absence of a stay might make any appeal moot;
(c) The 14 day period allows the Court of Appeal to consider whether any stay should be granted pending either an appeal or a decision as to whether to grant permission to appeal and, if so, on what terms; and
(d) The Defendant has at least some protection against any damage suffered as a result of the continuation of the injunction by reason of the undertakings given by the Claimant to secure the order.
Costs
7. As indicated on 27 May, I considered that:
(a) The Defendant was the overall “winner” of the applications I heard on that day on the basis that the Freezing Injunction was discharged – that being the biggest issue before me and was also successful in relation to defeating the application for a default judgment;
(b) The Claimant was successful in relation to the contempt proceedings and was also entitled to the costs of the adjournment on 12 May;
(c) Each party had some measure of success in relation to jurisdiction issues as:
i. I found that the Defendant had accepted the Court’s jurisdiction; but
ii. There were failures in relation to bringing jurisdiction issues to the attention of the Court.
8. Prior to the hearing, the parties had each served cost two cost schedules as follows:
(a) The Claimant’s cost schedule of 9 May 2025 in the total sum of USD 451,877.50 including other expenses of USD 65,000 in respect of court fees, Cayman Counsel fees, UAE local counsel fees, printing and courier fees with hourly rates for 11 fee-earners from a trainee and paralegals at $350 per hour to a partner at USD 915 per hour;
(b) The Defendants’ cost schedule of 12 May 2025 in the total sum of USD 124,779.including Counsel’s fee of USD 19,995.83 with hourly rates for 6 feeearners ranging from paralegals at USD 327 per hour to a partner at USD 708 per hour;
(c) The Claimant’s cost schedule of 22 May 2025 in the total sum of USD 634,220 including other expenses of USD 77,500 which included Swiss expert fees with the same hourly rates although with an additional partner involved; and
(d) The Defendants’ cost schedule of 23rd May 2025 in the total sum of USD 165,857.67 including counsel’s fees of USD 40,275 with the same hourly rates.
9. The following points should be noted:
(a) None of the cost schedules broke down time between applications;
(b) The costs schedules did not deal with the hearing where judgment was given on 27 May 2025;
(c) The Claimants’ schedules appear likely to have dealt with all hearings and work on the case given:
i. The number of hours spent;
ii. The fact that total time for attendances at hearings was 10 hours for each of 3 fee earners for the first schedule and 12 hours for 3 fee earners plus a further 6 hours for a fourth fee earner for the second schedule which would only have been possible if all hearings were included;
(d) The total time claimed by the Claimants for all fee earners amounted to 927 hours;
(e) The Claimants’ schedules showed a very substantial partner involvement with:
i. 227.5 hours for one partner being charged in the first schedule; and
ii. 297.5 hours being charged for one partner and 26 hours ten minutes for another in the final schedule;
(f) This therefore meant:
i. The total time charged by the Claimants amounted to more than 13 person weeks;
ii. That in the approximately 2 month period between the initial injunction and 12 May, one partner charged for almost 6 working weeks of work; and
iii. Given that the Claimant’s cost schedule of 9 May was for the hearing on 12 May and therefore meant that it included work up to that date whilst the one for the 22 May was for the hearing on 23 May, one partner charged for 70 hours work on the 9 working days between 13 May and 23 May with another partner charging for more than 26 hours.
10. The Claimants’ submissions were;
(a) That cost should be determined on a detailed assessment at the conclusion of the proceedings; alternatively
(b) If costs were assessed summarily they were entitled to costs in the sum of USD 596,504.35.
11. The Claimants made particular points:
(a) That all the time up until 14 May 2025 was properly to be considered as costs of the contempt proceedings estimated at USD 353,527.35
(b) That the wasted costs of preparing for and attending the 12 May hearing were estimated to be USD 83,586.50 (incl,750.16 included in the above figures) with USD 76,750.16 for contempt and USD 51,166.78 for jurisdiction thereafter.
12. The Defendants sought payment of their costs with relatively small deductions for the 12 May hearing and the contempt proceedings leading to a payment of USD 146,030.96.
13. I consider that this is a case where I should make an immediate assessment of costs under RDC 38.30. Although the information I have is far from perfect, I consider that I should make an assessment:
(a) As both parties have served schedules;
(b) As I consider that relatively small sums are due;
(c) As I am in a reasonably good position to assess likely proportionate costs;
(d) As the costs of assessment are likely to outweigh the sums awarded; and
(e) As the matter was determined at a hearing of less than a day.
14. I consider the Claimants’ submissions as to amount to be lacking any reasonable basis given:
(a) That the freezing order has been set aside and they are the substantial loser;
(b) The extraordinary number of hours charged and the very large number of partner hours which seem to be plainly unreasonable – and this is so whether costs are assessed on a standard or indemnity basis.
15. I consider the Defendants’ submissions to be more reasonable but fail to allow a deduction for costs incurred by the Claimants and under-estimate the proper costs of the adjournment of 12 May hearing and the contempt proceedings.
16. In principle, I consider that I should award a sum which reflects the Defendants’ reasonable costs of setting aside the freezing injunction less the Claimants’ reasonable costs of the contempt proceedings and the adjournment.
17. As to this:
(a) The Defendants propose total deductions of USD 22,500 from their own costs in relation to the above matters;
(b) I consider these deductions to be too low considering the hours involved, the hours spent on Mr Juma’s evidence and the wasted costs of the skeleton and the need for a new hearing;
(c) I consider a reasonable deduction to have been USD 45,000;
(d) In relation to the Claimants’ costs:
i. They would have been entitled to the proper costs of preparing the committal application, the costs of the first five affidavits of Mr Ali Sandila, the costs of reviewing the evidence of Mr Juma and the costs wasted by the abortive 12 May hearing;
ii. I do not consider that the Claimants schedules really help as to this save that hourly rates are given;
iii. I consider that a proper cost for this activity would have been USD 70,000 which equals 100 hours of fee earner time at an average rate of USD 700 per hour (taking into account the different rates used);
(e) This would lead to a total award in favour of the Defendants of USD 53,530 ignoring cents which is the award I therefore make.
18. I do not consider there is any reason to stay this Order.
