May 30, 2025 court of first instance - Orders
Claim No: CFI 053/2022
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
VISION INVESTMENT AND HOLDINGS LIMITED
Claimant/Appellant
and
MAHDI AMJAD
Defendant/Respondent
ORDER WITH REASONS OF H.E. JUSTICE SIR JEREMY COOKE
UPON the Claimant’s Part 7 Claim form dated 15 August 2022 (the “Claim”)
AND UPON the Judgment of H.E. Justice Sir Jeremy Cooke dated 9 April 2025 (the “Judgment”)
AND UPON the Claimant’s Permission to Appeal Application dated 30 April 2025 (the “Permission to Appeal Application”)
AND UPON the Defendant’s Submissions in Opposition dated 19 May 2025
AND UPON the Defendant’s Application No. CFI-053-2022/3 dated 8 May 2025 seeking an Order for the Claimant to pay the Defendant’s costs of and occasioned by the Claim, to be assessed on an indemnity basis (the “Application”)
AND UPON the Claimant’s Evidence in Answer dated 19 May 2025
AND UPON the Defendant’s Evidence in Reply dated 26 May 2025
AND UPON the Defendant’s Statement of Costs dated 26 May 2025
AND UPON the Claimant’s Statement of Costs dated 29 May 2025
IT IS HEREBY ORDERED THAT:
1. The Permission to Appeal Application is refused.
2. The Appellant shall pay the Respondent’s costs of the Claim on the indemnity basis.
3. The costs of the Claim are summarily assessed in the sum of AED 800,000
4. The costs of the Permission to Appeal Application shall be paid by the Appellant on the indemnity basis, in the sum of AED 50,000, as assessed by the Court.
5. The sum of USD 100,000 shall be paid into Court by the Claimant/ Appellant as security for costs be paid forthwith to the Defendant/ Respondent in part settlement of the costs payable under paragraph 3 of this Order.
6. The balance of the costs assessed under paragraphs 3 and 4 of this Order shall be paid within 21 days of the date of this Order.
7. The Application to stay the order for assessment and execution of the costs orders made herein is refuse because there is no basis for any appeal.
Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 30 May 2025
At: 8am
SCHEDULE OF REASONS
1. The proposed appeal has no realistic prospects of success for the reasons stated in the Judgement, with many of which the Notice of Appeal does not properly grasp, regardless of any argument that Mr Mahdi Amjad’s signature to the Loan Settlement Agreement could operate to bind him personally as well as Town Square.
2. In particular, there is no good answer to the points:
(a) That the alleged personal undertaking in the Loan Settlement Agreement, along with the other obligations owed by Town Square under that agreement were replaced by the greater obligations undertaken in the Addendum by Town Square, without any such personal undertaking/guarantee on the part of the Respondent.
(b) That the only parties to the Addendum were Town Square and Mr Al Tabari.
(c) That the Claim against the Respondent could not be for a guarantee that the cheques in favour of Vision would be met but for payment of the amount owing to Mr Al Tabari.
(d) That there was therefore no room for argument of entitlement of Vision as a third party beneficiary nor for unjust enrichment. Mr Al Tabari was always and remained entitled to sue Town Square on the Addendum.
3. Costs must follow the event and as the Application fails, the Appellant must pay the costs of the Application as well as the costs in the Claim.
4. The costs of the Claim and the costs of the Permission to Appeal Application are payable on the Indemnity basis because the conduct of this matter by the Claimant was outside the norm. The Claim was contrived in circumstances where it was obvious that the proper Claimant was Mr Al Tabari and the bringing of a hopeless Claim was compounded by a misrepresentation prior to the proceedings that the Dubai Court had ordered Town Square and the Respondent (and one other entity) to pay the sum claimed in these proceedings (when the Dubai Court had dismissed the claim for want of jurisdiction). Further, the Claimant persisted in making a claim for various sums which had already been struck out by an order of 14 January 2024. The Claimant/ Appellant’s conduct was unreasonable to a high degree in connection with this litigation and the accumulation of these factors take the Claim so far out of the norm as to justify indemnity costs.
5. The costs of the Application for Permission to Appeal are also to be assessed on the Indemnity basis, as the Appellant has proceeded with an appeal which, in the light of the judgement given, never had any realistic prospects of success as the Appellant should have realised. This also takes the case out of the norm.
6. The Parties agreed in their written submissions on costs that the costs should be assessed by the Court and the Claimant/Appellant put forward a series of factors which it argued should be taken into account in reducing the claimed amount of AED 871,576.38.Because I have decided that the costs should be assessed on the Indemnity basis, questions of proportionality do not arise and the only question is whether, with the burden of proof on the Claimant/ Appellant, costs have been unreasonably incurred by the Defendant/ Respondent. It was submitted by the Claimant/Appellant that:
(a) The amount in issue of over AED 26.66 million plus interest (some AED 44 million in total) was not indicative of the complexity of the case, which it suggested boiled down to four issues.
(b) The Respondent did not succeed on all the arguments it put forward to deny the Claim.
(c) 268 hours spent on the case by someone of Mr Mithani’s seniority was excessive and more work should have been allocated to Mr Kilik.
(d) Costs relating to two amendments of the pleadings and the unsuccessful appeal against the reverse summary judgment should not be payable by the Claimant/Appellant
(e) The costs of AED 34,705.13 for Arabic language law research were unjustified when only one decision was referred to in the judgment (25 hours at Mr Kilik’s rate).
7. The Skeleton arguments on each side put forward a number of arguments with reference to principles of law, construction of the documents and facts. There were six headline issues and a series of sub- issues. Originally there was to be oral evidence which required preparatory work before the parties agreed, with the Court’s encouragement that it would serve no useful purpose. Any argument on proportionality would be doomed to fail, if costs fell to be assessed on a standard basis.
8. Whilst the Respondent did not succeed on all its arguments it succeeded on a good number, each of which was sufficient for a successful defence. There is no good reason here for any split issue on costs because not all arguments succeeded and, as appears from the judgement, it was not necessary to decide all the issues raised.
9. The bulk of the work done at partner level was reasonably allocated. It is always a question of balance between speed/time taken, expertise and cost and in this case, most of the work was appropriately done by a partner. About 50% was done at a discounted rate which was less than the guideline rate for lawyers up to 5 years post qualification and the rest was done at a partner rate which was less that the guideline rate for partners.
10. The amendments were in part necessitated by the Claimant’s failure to file Particulars of Claim verified by a Statement of Truth, which led to an Amendment to those Particulars and at the CMC, the Claimant informed the Court that it was relying on DIFC law as opposed to the law of the UAAE which it had pleaded. This led to an amendment of the Defence. Ultimately, the Claimant /Appellant conceded the applicability of UAE law, after filing a reply contesting this.
11. The Respondent has not included in its claim for costs, either the costs of the strike out/ reverse summary judgement application/ application for security for costs or for permission to appeal against the order made thereon.
12. The Court does not consider that the fees incurred in additional Arabic case law research were unreasonably incurred in principle but accepts that the time spent seems excessive even with the discount given.
13. The Court concludes that a reasonable figure for costs incurred in this matter is AED 750,000 and awards that sum in respect of the costs of the Claim.
14. So far as the costs of the Application for costs is concerned, the Respondent seeks the sum of AED 61,432.25. Allowing for the usual reduction in recoverable costs, the Court assesses this at AED 50,000.
15. The Defendant/ Respondent must also be entitled to recover the costs of opposing the Permission to Appeal Application which are assessed in the sum of AED 50,000, following consideration by the Court in the light of the much larger sum claimed by the Appellant in respect of its costs.
16. The Defendant/ Respondent is therefore entitled to an order for costs of AED 850,000 of which USD 100,000 is to be paid out of Court and the balance to be payable within 21 days of the date of this Order.
