August 27, 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/Applicants
and
(1) MARJ HOLDING LIMITED
(2) ARJ HOLDING LIMITED
(3) MOHAMMAD AHMAD RAMADHAN JUMA
Defendants/Respondents
REASONS OF H.E. JUSTICE ROGER STEWART FOR THE ORDER DATED 2 JUNE 2025
Part 1 Introduction
1. This judgment will be given in eight parts. Part 1 is this introduction. Part 2 will be the Parties, The Background and Original Application. Part 3 will be the application to discharge the freezing injunction. Part 4 will be jurisdiction. Part 5 will be whether I should reimpose the freezing injunction. Part 6 is whether there should be a default judgement. Part 7 will be the contempt applications. Part 8 will be my conclusions.
2. This matter concerns a series of applications which have been made following the imposition by me of an ex parte worldwide freezing injunction on the three Respondents on the 10th of March of this year. The series of applications involve, first, an application which has been made to discharge the freezing injunction on grounds including a failure to provide full and frank disclosure. Secondly, an application to challenge jurisdiction which has been made by the Respondents. Third, the question as to whether or not I should reimpose the freezing injunction. Fourth, as to whether there should be a default judgement as a result of the issue of an application dated 12 May 2025. Next, whether or not the Respondent's Defendant should be found to be in contempt, as is alleged by the Claimants.
3. So far as the order of those matters is concerned, the Claimant urges that I should hear the contempt applications and determine them and not hear the Defendants unless and until they have purged what is said to be their alleged contempt. As I made clear at the hearing held on Friday 23 May 2025, that does not seem to me to be a convenient course given that it is said that the order in question should never have been made. I, therefore, propose to deal with the matters in the order which I previously set out.
Part 2 The Parties, the Background and the Original Application
4. On 10 March 2025, the Claimants filed an ex parte application for a Freezing Order accompanied by the first affidavit of Mr. Ali Sandali, who is the Chief Executive Officer of the first applicant. He described the second applicant as being EFG Bank Limited and said that that was also known as “EFG Bank SA” and “EFG Bank AG”.
5. The grounds for the application were summarised in his affidavit and in the skeleton argument put forward by the Claimants. In summary, reliance was placed upon a series of agreements. The first being what was referred to as the DIFC agreement dated 6 January 2022, by which the first Claimant would arrange loans and credit between Marj Holdings, the first Defendants. There was also evidence given as to the Lombard Credit Framework agreement dated 6 January, 2022 and 7 April 2022 Credit agreement between the Second Claimant and Marj Holdings, together with the Personal Guarantee of Mr. Juma. Then, there was evidence given as to the Supplementary agreement to the Framework agreement on the 3 November of 2023, together with the margin call, which was said to give rise to the liability of approximately 3.6 million euros. The claim was put upon the basis that there was a straightforward debt claim at paragraph 52 of the affidavit.
6. On the same day that I issued the Order, namely on 10 March, the claim form was issued, and it was, as I've said, supported by a skeleton argument which identified the relevant matters. I should pause to observe that neither the affidavit nor the skeleton argument had a section, as is conventional, dealing with the issues of full and frank disclosure.
7. At the hearing which took place before me on the 10March 2025, as is apparent from the transcript, I asked a number of questions and in particular, I asked as to whether or not the Order which was sought was in the standard form, as I had not checked it and I was told that it was. I also queried the existence of any matters which required to be disclosed pursuant to the Applicant's duty of full and frank disclosure and the reply that I was given was that there were no matters known to the Applicant's Counsel which required to be disclosed. The Order which I made on that occasion after some amendments which are for these purposes immaterial, is to be found at page 41 and 42 of the Case Management Bundle and the material parts provide as follows.
(a) First, by paragraph 1, it was identified that this was a Worldwide Freezing Order.
(b) Paragraph 2 stated this Order was made at a hearing without notice to the Respondents. The Respondents have a right to apply to the Court to vary or discharge the Order, see paragraph 7 below.
(c) Paragraph 4 provided that until the return date or further Order, the Respondents must not remove from DIFC any of their assets which are in the DIFC up to the value of 4.3 odd million dollars, and in any way dispose of, deal with or diminish the value of any of their assets whether they're in or outside of the United Arab Emirates.
(d) Paragraph 7 was a provision dealing with the circumstances where the total income value of the assets do not exceed 4.3 odd million dollars
(e) Paragraph 8 dealt with the provisioning of information and said that unless paragraph 2 applies, the Respondents must within 48 hours of notification of this Order, and to the best of their ability inform the Applicants’ Legal Representatives of all of their assets worldwide exceeding USD25,000 in value, whether they're in their own name or not, and whether solely or jointly owned, giving the value, location and details of all such assets.
(f) Paragraph 9 was a non-incrimination provision and paragraph 10, provided that within three working days, the Respondents must swear and serve on the Applicant's Legal Representatives an affidavit setting out the above information.
(g) Paragraph 11 contained an exception in relation to the expenditure of sums not exceeding USD25,000 a week on ordinary living expenses, with a provision in paragraph 12 for the spending limits to be increased.
(h) It should be observed that the Order as granted had no exception in relation to the ordinary course of business.
8. On 17 March 2025, Mr. Juma served his first affidavit and in that affidavit, he gave very basic information and said that he required more time to comply with the terms of the Order. On 19 of March 2025, there was an acknowledgement of service filed. On 20March 2025, the second affidavit of Mr. Sandila was sworn on behalf of the Claimant, which gave more details of the alleged events of default and made allegations in relation to Contempt of Court. The original return date was on the 20March 2025 and led to an Order which required a further affidavit from the Defendants by 21March 2025. It required the Defendants to issue and serve an Order seeking to set aside the Order of the Mareva injunction by the 24 March 2025. This was to set out the grounds for the basis to vary the Order and/or to set aside and to identify details of the alleged non-disclosure. On 21 March 2025, the Claimants issued a Contempt Application. On the same day, the second affidavit of Mr. Juma was sworn, saying that no steps had been taken to dissipate assets. On 24 March 2025, a third affidavit of Mr. Juma was sworn pursuant to the Order made on 20 March 2025 saying that only limited information was able to be provided and saying that an extension of time until the 4 April 2025 was required.
9. In that affidavit, there were general allegations of failures to provide full and frank disclosure. And there was also a complaint about the failure to provide the skeleton argument, together with some general comments about forum non conveniens, together with the fact that the Corporate Guarantee was subject to Hong Kong Law and the Personal Guarantee of Mr. Juma was subject to Swiss Law. On 25 March 2025, the Defendants served an extension of time application. On the 27 March 2025, Mr. Sandila's third affidavit was served, rejecting grounds for an extension of time. On 28March 2025, the particulars of claim were served. On 28 March 2025, Mr. Juma's fourth affidavit was served, complaining about alleged irregularities in relation to the Committal Proceedings. On 2April 2025, I made an Order giving directions for the hearing of the Committal and setting aside applications, on the basis that they would be heard on a return date, which was subsequently listed on 12May 2025.
10. The Defendants filed their application to discharge on 4 April 2025, and that was supported by the fifth affidavit of Mr. Juma, which again made general statements in relation to the failure to provide full and frank disclosure including, for example, the allegation that there were no sections dealing with full and frank disclosure but with, in my view, extremely limited details of what was said to be wrong. On 15April 2025, Mr. Sandila swore his fourth affidavit, in which grounds for contempt and a response were set out. On 24April 2025, Mr. Juma swore his sixth affidavit, dealing with alleged failures to comply with the rules. On25 April 2025, the Defendants made an application to strike out the contempt allocation. Mr. Sandila's fourth affidavit was re-sworn on 2 May 2025 to deal with one of those allegations. On the same day Mr. Sandila swore his fifth affidavit dealing with service of the contempt applications which dealt with another complaint.
11. On 25 April 2025, an application was issued seeking to contest jurisdiction. On the 25 April 2025, the same day, Mr. Juma swore his sixth affidavit, seeking to support the strike-out. There were then further affidavits from Mr. Juma on, I think the 25 May 2025 and 6 May 2025, and on 6 May 2025, an amended application for Committal was issued by the Claimants. On the 12May 2025, which was the date of the hearing originally before me, an application for default judgment was issued. Further, skeleton arguments were served in advance of the hearing listed on 9 May 2025, and it was in those circumstances that the matter came on before me on 12 May 2025.
12. On 12 May 2025, Mr. Fear-Segal appeared for the first time, and it became apparent fairly shortly after he had started his submissions that he was making a series of detailed points about alleged non-disclosure, of which, in my view, there had been no prior notice given to the Claimant.
13. In those circumstances, I inquired as to whether the Claimant was in a position to deal with those matters. And after some discussion, I ordered that the matter be adjourned to a further hearing which took place on Friday 23 May 2025. I also gave directions that there be a schedule of matters relied on in relation to the alleged full and frank disclosure and a response to those matters.
Part 3 - The Application to Discharge the Freezing Injunction.
14. The law in relation to the provision of full and frank disclosure is not in doubt. The principles applicable to such applications are set out in England in the useful judgment of Mrs. Justice Carr, as she then was, in the case of Tugushev v Orlov [2019] EWHC 2031 which is in the bundle before me at page 1448. I should say that the principles relating to the grant of ex parte injunctions are of considerable importance in this jurisdiction, as well as other common law jurisdictions. As has been repeatedly emphasized by the Courts in common law jurisdictions, the grant of a Freezing Order is an extraordinary measure and is one which has to be undertaken with considerable care, including by Claimants who seek it and who do so at their own risk.
15. The relevant principles are summarised at paragraph 7 of Mrs. Justice Carr's judgment and I draw attention, in particular, to the following:
(a) The duty of an applicant for a Without Notice Injunction is to make full and accurate disclosure of all the material facts and to draw the Court's attention to significant factual, legal and procedural aspects of the Case.
(b) It is a high duty and of the first importance to ensure the integrity of the Court's process. It's the necessary corollary of the Court being prepared to depart from the principle, that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation for that principle is an exceptional course in cases of extreme urgency or the need for secrecy. The Court must be able to rely on the party who appears alone, to present the argument in a way which is not merely designed to promote its own interest in a fair and even-handed manner, drawing attention to evidence and arguments which can reasonably anticipate the Absent Party would wish to make.
(c) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case to the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents.
(d) An applicant must make proper inquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters which the applicant would have been aware had reasonable inquiries been made. The urgency of a particular case make it necessary for evidence to be of less tidy or complete form is desirable, but no amount of urgency or practical difficulties can adjust a failure to identify the relevant cause of action and principal facts to be relied upon.
(e) Material facts are those which it's material for the Judge to know indeed when the application is made. The duty requires an applicant to make the Court aware of the issues likely to arise and the possible difficulties in the claim. But need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention, for example, to disclosure of related proceedings in another jurisdiction.
(f) Where matters are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases, where the opportunity to raise arguments about non- disclosure will be all the greater. The question is not whether the evidence and support could have been improved or one to be approached for the benefit of hindsight. The primary question was whether in all circumstances, its effect was such as to mislead the Court in any material respect.
(g) The Defendant must identify clearly the alleged failures, rather than adopt a scattergun approach. The dispute about full and frank disclosure should not be allowed to turn into a middling trial of the merits.
(h) In general terms, it’s inappropriate to seek to set aside a Freezing Order for non- disclosure, where proof of non-disclosure depends upon proofs of facts, which themselves are in issue in the action unless the facts are truly so plain, they can be readily and summarily established.
(i) If material non-disclosure is established, the Court will be astute to ensure that a Claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived.
(j) Whether or not the non-disclosure was innocent, is an important consideration, but not necessarily decisive. Immediate discharge without renewal is likely to be the Court's starting point, at least when the failure is substantial or deliberate. It's been said on more than one occasion, it will only be in exceptional circumstances, in cases of deliberate non-disclosure or misrepresentation that an Order would not be discharged.
(k) The Court will discharge the Order even if the Order would still have been made, had the relevant matter been brought to its attention without notice hearing. This is a penal approach, and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties.
(l) The Court nonetheless has the discretion to continue the injunction or impose a fresh injunction despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of:
(i) The importance of the facts not disclosed to the issues before;
(ii) The need to encourage proper compliance with the duty of full and frank disclosure to deter non-compliance;
(iii) Whether or not and to what extent the failure was culpable; and
(iv) The injustice to a Claimant which may occur if an Order is discharged, leaving a Defendant free to dissipate assets, although a strong case on the merits will never be a good case for failure to disclose material facts.
(m) The interest of justice may sometimes require that a Freezing Order be continued, that a failure of disclosure could be marked in some other way, for example by a suitable costs Order.
16. The Courts thus has at its disposal a range of options in the event of non-disclosure. Applying those principles to the circumstances of this case, I had no doubt at all, but that there was non-disclosure in relation to the obtaining of the Without Notice Order on 10 March 2025.
17. Dealing with the matters which are relied on now by the Defendants I start with the direct answer which was given as to whether or not the Worldwide Freezing Order was in the standard form. It seems to me that the answer given to that question was simply wrong. The point is taken that the first relevant provision in respect to which the Order was not in standard form, namely that there was no provision for the grant of ordinary business expenses, is in brackets in the form. I accept that it is in brackets, but first, such an Order is usually made. Second, a departure from that Order would require to be justified. And third, it follows that it seems to me inevitable that if that Order was not going to be included, it should have been specifically drawn to my attention, with reasons given as to why it was inappropriate to include the provision.. I also observe that when this matter was drawn to my attention, it seemed to me that the Order required to be amended in order to deal with the ordinary course of business exception.
18. The second respect in which the Order was not in the standard form was in relation to the provision of a Bank Guarantee, that is fortification for the undertakings which were provided. Again, it seems to me that that is something which should have been drawn to my attention, albeit that in the circumstances of this case, it seems to me to be likely that such a Bank Guarantee would not have been required. The third complaint about the lack of compliance with the standard Order referred to the fact that a Freezing Order usually refers to be particular assets which are frozen. I regard that as being of less significance given that as it seems to me, in this particular case, it was clear that no particular assets were known about
19. So far as other matters are concerned, it does seem to me that a fair presentation of disclosure in the circumstances of this case would also have required drawing to my attention possible difficulties in relation to issues of jurisdiction. It is said in relation to the points being put forward, the matters concerned were of secondary importance given the overall obligations. But it does also seem to me that the affidavit that which was made in support of the application, that there were straightforward debt applications that would ordinarily have been expected to give rise to a number of potential issues given the different jurisdictions and the different entities who are involved in relation to this matter.
20. It follows that in my view there is no doubt at all, but that the injunction which I granted on 10 March 2025 should be set aside. And it should be set aside on the basis that it was obtained by material non-disclosure as I have described.
Part 4: Jurisdiction.
21. So far as jurisdiction is concerned, there are a series of points which are taken in relation to the possible ability to sue of the various Claimants in the light of the jurisdiction clauses which have been identified. However, a preliminary point is taken by the Claimant, which is that given the date on which service was acknowledged, namely 19March 2025, any application to challenge jurisdiction had to be made within 14 days of that date and no such application was made. It is also apparent from the rules that if no such application is made, then jurisdiction is accepted. In my view, there are very good reasons for such an approach, and although the application to challenge jurisdiction was made only a relatively short time after the expiry of the 14 days, nonetheless, it seems to me that there are no good reasons to disapply the provisions of the rules. I say that in particular because when the matter came back before me on 20 March 2025, the Defendant was given a clear opportunity to serve applications that it wished to do so timeously and had it done so it would have been in time.
22. It also seems to me I should say, that having considered the relevant provisions upon which challenge is made in relation to the agreements, namely in summary that they should be subject to the jurisdiction of the Hong Kong and Swiss Courts respectively. On the evidence before me, it does seem to me to have been permissible for the Claimants to sue in this jurisdiction, that is in the DIFC rather than having been bound to issue proceedings in Hong Kong or in Switzerland. It follows, as it seems to me, that I would not find that there is no jurisdiction in relation to these matters.
Part 5: Whether the freezing injunction should be continued
23. I have already set out the principles which govern the question of freezing injunctions in an earlier part of this judgement. So far as the relevant considerations are concerned, I consider they are as follows:
(a) First, it does seem to me that the obtaining of the Order was culpable on the part of the Claimants. I do not, of course, suggest that it was a deliberate attempt to mislead me. But the fact is that in answer to direct questions, inaccurate information was provided. I also consider that the fact that there was no section in either the affidavit or the skeleton argument dealing with full and frank disclosure indicates that the likelihood is that the Claimants had not properly turned their minds to the question of full and frank disclosure. I find it very difficult to see otherwise why the answers were provided or why there was not at the least some setting out of the relevant considerations and the relevant matters.
(b) Second, I consider that although it is likely that had full and frank disclosure been provided, I would nonetheless still have granted an injunction (albeit not on the terms it was granted), that is shown by the authorities to be an inadequate reason of itself for the reimposition of an injunction.
(c) Third, it seems to me that although the Claimant has suffered or will suffer some possible injustice as a result of not getting the injunction, that is something which it has brought upon itself and moreover, it has not lost the right to pursue Mr. Juma in relation to the various claims that it has.
(d) Fourth, I do not consider that this is a situation which can adequately be dealt with in some other way for example by the imposition of a costs order
(e) Fifth, I have considered whether or not the fact that the Respondents have undoubtedly delayed in bringing the various points forward is a matter which should cause me concern. In relation to that, it seems to me that the points which were taken by Mr. Fear-Segal on 12 May 2025 were ones which could and should have been taken earlier. However, in relation to that it seems to me that the position can adequately be dealt with by way of costs. And as against that, it seems to me that the Claimant will undoubtedly have received some benefit from the existence of the Order, in particular knowledge as to assets and so forth, which it would not otherwise have made.
(f) In all the circumstances, it seems to me to be clear that I should not reimpose the Mareva injunction that I previously ordered.
Part 6: Whether there should be a default judgment.
24. The Defendant is now out of time for serving a defence. However, it seems to me plain that there are legitimate questions which can be asked in relation to the particulars of claim and in particular as to how the defaults are put forward in the circumstances. Given that the application was only issued on 12 May 2025, I do not propose to issue a default judgment. I will give directions first for any amendments to the particulars of claim to be made within a short period of time. Secondly, then for the filing of a defence, and it will of course be open to the Claimant to seek to enter a summary judgment or make any application it wishes to in relation to that. But I do not consider it appropriate to issue a default judgment now.
Part 7: The contempt application
25. So far as this is concerned, the practical position is as follows. First, I consider that the technical points which were taken on behalf of the Defendant, have now been cured by the steps that have been taken, so that the Defendants have properly been served. Secondly, it seems to me that Mr. Juma, having been given notice of the hearing and saying that he would not appear is in a position where the explanations that he has put forward cannot properly be used by him to defend the allegations which are made. Third, I consider the principles under which it is necessary for the Claimant to establish liability for contempt of a criminal standard to be clear and well known. Fourth, it does appear to me to be plain, that subject to one point which I will deal with in a moment, Mr. Juma has not provided information in accordance with the Order and in particular given full details of his un- encumbered assets above USD25,000. He has not done that despite repeated opportunities. And it seems to me that the points made in relation to inconsistencies by the Claimants in the skeleton argument for this case are well and properly made.
26. The one point which I pause to consider is the point made by Mr. Fear-Segal in relation to the form of the Order which is contained at page 45 of the bundle. In relation to that point, what Mr. Fear-Segal says is that the words ‘subject to’ mean that the obligation contained within the provision of information never came into effect. It is true that something has plainly gone wrong with the drafting of the Order. It appears likely that what paragraph 8 should have referred to was subject to paragraph 9 and the obligation of self-incrimination. It also seems to me however that it is plain on the face of the Order that something has gone wrong. This Order could not have been read, except with the fertility of Mr. Fear-Segal’s mind, as qualifying the obligation to provide the information. I bear in mind the need to strictly comply with the relevant orders. But on this point, it does seem to me to be plain that the Order could only be understood, and indeed was understood by the Defendants as requiring the provision of the relevant information.
27. It therefore seems to me that in relation to paragraph 8 of the Order, the Defendant, Mr. Juma in particular was guilty of Contempt of Court in failing to comply with it. He could and should have sought either earlier to have the Order discharged, or that his obligation to provide information be stayed whilst the applications were made, but he did neither. In the circumstances of this case, I have to consider what the appropriate penalty is. Normally, the primary purpose of the Contempt of Court jurisdiction is to ensure that its orders are obeyed. A secondary purpose is to ensure that the failure to comply with orders is marked. And in those circumstances, a penal aspect of the law of contempt applies.
28. However, in the circumstances of this case it does not seem to me that requiring the provision of further information now would be just. I have found that the Order should never have been made and that Mr. Juma and the other Defendants should accordingly never have been subject to the provision of information. However, it does seem to me that Mr. Juma's failure to comply with the Order was deliberate and it is required to be marked. In the circumstances of this case, I consider it appropriate to order that Mr. Juma pay a fine of USD25,000 in relation to his Contempt of Court and that in the circumstances of this case that adequately meets the provision.
Part 8: Conclusion
29. It follows that for the reasons I have set out the Order dated 10 March 2025 will be discharged. There is no question but that the Court has assumed jurisdiction in relation to this matter. The freezing injunction will not be re-imposed. There will not be a default judgment. I will order that the Claimant make any amendments that it chooses to do so within 14 days of today’s date and that the Defendants file a defence within 14 days. Thereafter, I will hear the parties in relation to costs and any other matters. That is my judgment in relation to this matter.
30. In relation to this point, Ms. Bijlani seeks a stay. She seeks to put forward grounds for permission to appeal. She said orally in reply that one such point will be that there is a general practice in relation to the business exception that it should not apply and that that is a point which should be considered by the Court of Appeal. I don't think it's appropriate for me to say anything at the moment about merits of that point save perhaps that it doesn't go directly to the allegations of non-disclosure. But the better and more general point it seems to me, is that there is at least a very real chance of her clients being prejudiced in circumstances where no one, either I or the Court of Appeal has had any opportunity of considering what the points might be in relation to an appeal given that I've given an oral judgment this morning. In the circumstances, it seems to me that what I should do is to say that the discharge of the Mareva injunction, stay in respect of the order to provide further information where for the avoidance of doubt there will be no continuing obligation absent further order, will be stayed until draft grounds of appeal are provided. And in the circumstances, it seems to me that those grounds must be provided by 4pm . on 30 May 2025. The stay will be until I have considered what those grounds should be. So, for the avoidance of doubt, the order that I make is that the Mareva injunction will continue in force until further order of this Court, subject to one, there being no further order for the provision of information, and two, to the fact that any grounds of appeal must be provided by 4pm . on 30 May 2025. And that's the order in relation to the first part.
Costs Judgment
31. I'm going to give a brief judgement in relation to the proper approach to costs in the light of the arguments that have been made to me, and I'm going to give the parties an opportunity to put in no more than five pages each on how those points of principle should be applied to the cost schedules that have been put forward. I do that because it seems to me that a wide variety of different courses have been open on me. I want to set the parameters for the principles and then I will make what was referred to as a dollars and cents order in relation to this matter. Bearing in mind, in particular, given the rather complicated factual history that I've set out, my own knowledge of it, it seems to me that I'm in a better position to make a dollars and cents appraisal than it would be to send it off elsewhere. So, against that background, I determined the following points of principle. First, it seems to me that the Respondent should have its costs of seeking to set aside and discharge the Mareva injunction which has been imposed upon it. It also seems to me that in principle, those costs should be assessed on an indemnity basis. The reason for that is, it seems to me that for reasons given my judgment, the respondents were successful in relation to those matters. So far as contempt is concerned, it seems to me that the Claimant is, in principle, the successful party and it should be entitled to its proper costs in relation to that issue. For the avoidance of doubt, I do not accept that it would be proper to say that the Claimant could have all of its costs up until the hearing held on 12 May 2025 on that basis. That seems to me to be unrealistic. It has to be the costs which relate properly to the contempt application. I would also accept that in principle, those should be assessed on an indemnity basis, although the indemnity basis, of course, does not do anything other than get rid of proportionality and reverse the burden of proof. So, it's still got to be assessed on the basis that they're attributable to the contempt application. But so far as jurisdiction is concerned, I consider that the Claimant was successful in relation to the point upon which I decided the jurisdiction point, which was that the challenge was made out of time. I, however, also accept Mr. Fear-Segal's point that insofar as costs were spent, debating issues which went to what he referred to as the double duty, the good arguable case and the failure to disclose, they did double duty. In these circumstances, it seems to me that insofar as there were separate issues in relation to jurisdiction, the proper order is no order in relation to those costs.
32. So far as the adjournment from the hearing listed on 12 May 2025 is concerned, the costs of and occasioned by that adjournment should be the Claimants in any event. However, I would accept that the proper approach to that which can often be misunderstood is that it is the costs thrown away by the adjournment. And that would include the costs of the 12May 2025 itself, and it would include the proper preparation for the 12 May 2025, but it would not include dealing with points which would always have to have been dealt with if taken in time. On that basis, it seems to me that the Parties should identify what they say are the dollars and cents consequences of those rulings in principle. They should do so in no more than five pages by 4pm on Tuesday, 2 September 2025 and I will then issue rulings in relation to what the dollars and cents consequences of these matters are, having considered what the parties say about it. And that is therefore the order I make in relation to costs.
Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 27 August 2025
At: 3pm
