September 16, 2026 Court of First Instance - Orders
Claim No: CFI 053/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
QATAR GENERAL INSURANCE & REINSURANCE COMPANY QPSC
Claimant
and
EMRGENT RISK SOLUTIONS LIMITED
Defendant
AMENDED ORDER WITH REASONS OF H.E. JUSTICE SAPNA JHANGIANI
UPON the Order of H.E. Justice Sapna Jhangiani dated 19 December 2025 (the “Order”)
AND UPON the Judgment of H.E. Justice Sapna Jhangiani dated 3 June 2026 (the “Judgment”) following the Trial of this case from 26 to 29 January 2026 (the “Trial”)
AND UPON the Claimant’s costs submissions dated 17 June 2026
AND UPON the Defendant’s costs submissions dated 17 July 2026
AND PURSUANT TO the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Claimant is awarded its costs of these proceedings on a standard basis, to be submitted to detailed assessment if not agreed.
2. The Defendant shall pay to the Claimant AED 4,342,386.59 as payment on account of the Claimant’s costs within 14 days of this Order.
3. The Defendant shall pay to the Claimant the amount of AED 123,500 in respect of its remaining 50% costs of the Application (as defined below) within 14 days of this Order.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue:12 August 2026
Date of Re-Issue: 16 September 2026
At: 12pm
SCHEDULE OF REASONS
Introduction
1. There is no dispute between the parties that the Claimant is entitled to its costs of this case in principle, having succeeded at Trial, subject only to limited provision having been set out in the Judgment permitting the parties to return to Court for the determination of certain issues which may arise in future.
2. The Claimant seeks its costs on the indemnity basis, to be assessed if not agreed, with a 85% interim payment on account.
3. The Claimant further seeks the remainder of its costs held over from the Defendant’s Application No. CFI-053-2024/5 dated 17 November 2025 (the “Application”), which comprised two parts: (i) an application for an adjournment (“Part 1”); and (ii) an application to adduce expert underwriting evidence (“Part 2”). Part 1 of the Application was dismissed, with the Claimant awarded its costs of Part 1. Part 2 was adjourned to be determined at Trial. The Claimant seeks its remaining costs of the Application of AED 185,055.10, assessed immediately and payable within 14 days.
4. The Defendant submits that costs should be awarded on the standard basis and not the indemnity basis, with a payment on account of 50% and not 85%.
5. The Defendant submits that the Claimant’s costs of Part 2 of the Application should be included with the Claimant’s costs of the case, to be submitted to detailed assessment if not agreed.
The Applicable Principles
Awarding Indemnity Costs
6. Paragraph 1 of Practice Direction 5 of 2014 (“PD 5/2014”) provides:
“1. In determining whether costs should be assessed on the indemnity basis as opposed to the standard basis (see in this regard RDC (Rules of the DIFC Courts) 38.17), the following factors, inter alia, will be taken into consideration in the exercise of a judge's discretion:
(i) circumstances where the facts of the case and/or the conduct of the paying party are/is such to take the situation away from the norm; for example, where the Court has found deliberate misconduct in breach of a direction of the Court or unreasonable conduct to a high degree in connection with the litigation; or
…
(iii) where the Court considers the paying party's conduct to be an abuse of process.”
7. As submitted by the Claimant, and accepted by the Defendant, the Court “must” have regard to all relevant circumstances, including the conduct of the parties (RDC 38.8(1)). The conduct of the parties includes whether it was reasonable for a party to contest an allegation or issue (RDC 38.9(2)) and the manner in which the Defence has been pursued (RDC 38.9(3)).
8. As pointed out by the Defendant, the Court must also have regard to the complexity of the proceedings (RDC 38.23(4), (5) and (6)), the importance of the matter to the parties (RDC 38.23(3)), and the circumstances in which the work was undertaken (RDC 38.23(7)).
9. As submitted by the Defendant, relying on Paragraph 1 of PD 5/2014, the threshold for an award of indemnity costs is a high one, reserved for cases in which the Court considers it appropriate to express its disapproval of a party's conduct in the litigation.
10. I accept the Defendant’s submission that, in considering what behaviour takes conduct “away from the norm”, the following principles from English cases on indemnity costs are instructive:
(a) The unreasonableness required must be unreasonableness to a high degree, and not conduct which is merely wrong or misguided in hindsight (Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879 at [11] to [14] and Kiam v MGN Ltd (No 2) [2002] 1 WLR 2810).
(b) The following were identified by Christopher Clarke J in Balmoral Group Ltd v Borealis Ltd [2006] EWHC 2531 (Comm) as paradigm indicators of conduct taking a case outside the norm: the pursuit of a speculative claim involving a high risk of failure, the making of allegations of dishonesty that prove misconceived, a grossly exaggerated claim, or deliberate misconduct in breach of a direction of the Court.
Interim Payment on Account
11. An interim payment on account of costs to be assessed is the usual practice of this Court following a judgment of the Court of First Instance.
12. The amount of the payment must not exceed what is likely to be recovered on detailed assessment: Al Khorafi v Bank Sarasin-Alpen (ME) Ltd CFI 026-2009 (30 October 2014) at [22].
13. The parties agree that the starting point for an interim payment on account is 50%, as set out in the Court of Appeal case of Vegie Bar v Emirates National Bank [2020] DIFC CA 001 (17 March 2021) (“Vegie Bar”) at [24], citing PD 5/2014 which provides that where costs are ordered to be subject to detailed assessment, the Court will order 50% of the amount claimed to be paid on account, unless the Court sees fit to order otherwise. The Court of Appeal at [28] of Vegie Bar referred to 50% as a “safe” percentage, “open to increase in the particular circumstances”.
14. As further set out in Vegie Bar at [23] [CS/92], the Court has unfettered discretion as to the amount of the payment on account to be ordered, to be exercised taking all relevant circumstances into account, including the parties’ financial circumstances:
“By RDC 38.13, where the Court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed. The rationale includes that a party who has obtained the benefit of an order for costs should not be kept out of his money longer than is necessary (Al Khorafi v Bank Sarasin-Alpen (ME) Ltd CFI 026-2009 (30 October 2014) at [22]), but the discretion is unfettered and is to be exercised having regard to all the circumstances of the case. These include the parties’ financial circumstances, relevantly because, as was said in Rupert Allison and Westinel Research Ltd v Random House UK Ltd (Laddie J, 27 February 2002, unreported: cited in Al-Awlaqi v Tabarak Partners LLP CFI 023-2009 (22 December 2002) at [33]), if the paying party has limited funds the court should not force the receiving party to engage in a detailed assessment, spending more money which will not be recovered, before receiving any money at all.”
The Court’s Decision
15. I have carefully considered both the parties’ submissions, as well as the correspondence between them.
16. The Claimant relies on episodes of conduct which it submits, when taken together, demonstrate a consistent and persistent pattern of conduct by the Defendant justifying an award of indemnity costs. The points raised by the Claimant may be summarised as follows:
(a) Case on Cancellation Notice: On 19 May 2025, after disclosure took place, the Claimant wrote to the Defendant stating that the only course of action was for the Defendant to admit that the Cancellation Notice was not sent to the Claimant by the Defendant, as there was no reasonable prospect of the Defendant establishing at Trial that it did so. The Claimant submits that this was the only factual issue on breach, and it was addressed at length in the skeleton argument for Trial, before it was abandoned on the eve of Trial in January 2026. The Claimant submits that the contesting of this issue until the eve of Trial was hugely wasteful of time and resources.
(b) Case on Breach: The Claimant submits that the Defendant was invited several times to admit whether, if the Cancellation Notice was not sent, the Defendant would have been in breach of its pleaded duties to the Claimant. As noted in the Judgment at [48], it was not clear even at Trial whether this point was actually contested, as it was not formally admitted but did not appear to be contested.
(c) Defendant’s Factual Witness Evidence: Mr Tommy’s witness statement was the subject of an application for relief from sanctions for the late filing of witness evidence, but on 24 January 2026, the Defendant withdrew him as a witness and indicated it no longer relied on his witness evidence. As a result, the Claimant had prepared for the Trial on the basis of witness cross-examination which was not required.
(d) Attendance of Claimant’s Witnesses: At 17:01 on the Sunday night before the Trial, the Defendant informed the Claimant that two issues were no longer contested, and two of its witnesses were no longer required. Those witnesses were already travelling to the UAE from Qatar. This wasted significant time and costs.
(e) The Defendant’s Expert: As set out in the Judgment at [41] to [42], there was uncertainty as to how much the Defendant’s expert, Mr Al Muhannadi, contributed to his own report and the extent to which the reports presented his views. The Claimant submits that in addition, Mr Al Muhannadi’s evidence caused disruption because: (i) he failed to attend the first Joint Expert Meeting, and then complained to the Claimant’s expert at the rescheduled meeting that he was not provided with the Claimant’s expert’s exhibits; and (ii) the report was written in English, accompanied by a translation into Arabic, and then there was an application for him to give evidence in Arabic on the basis that he could not speak English.
(f) Underwriting Evidence: The Defendant submitted a second application to submit underwriting evidence, after the first was refused. It was accompanied by an application to adjourn the Trial, which was abandoned during the hearing of the application, and morphed into an application for a split Trial. The Claimant was awarded its costs of the adjournment part of the application, but the “whole episode is a further example of the attitude taken by the Defendant to this litigation as a whole”.
(g) The Re-Amendment Application: The Defendant applied at the close of evidence during a four-day Trial to amend its Defence.
17. Having considered all the matters set out above, and the Defendant’s responses, I accept that the Claimant's complaints are for the most part well-founded, and describe conduct which can best be categorised as disorganised, often very last-minute, and in many instances highly disruptive to the proceedings.
18. However, I also accept the Defendant’s submission that, even taken at their highest, the Claimant’s complaints are criticisms of case management decisions taken within an evolving landscape, with the benefit of the hindsight. The Defendant’s decisions may be regarded as misguided and often highly inconvenient, but they do not reveal dishonesty, bad faith, abuse of process or other misconduct capable of taking the matter outside the norm. As submitted by the Defendant, these proceedings were a piece of hard fought commercial litigation, involving complex insurance and reinsurance issues, several parties and multiple policies, with high stakes (including an almost certain impact on another set of proceedings ongoing in the English Courts).
19. In all the circumstances, even taking the Claimant’s complaints at their highest, I do not consider the Defendant’s conduct in this case to warrant a departure from the usual award of standard costs, and I therefore award the Claimant its costs on a standard basis, to be submitted to detailed assessment if not agreed.
20. In relation to a payment on account, the Claimant relies on the DIFC Court’s online “Assessment of Costs Guide” which states that receiving parties recover on average 85% of their costs when assessed on the standard basis.
21. The Defendant submits that the 85% figure from the Assessment of Costs Guide is the average total recovery achieved by receiving parties on detailed assessment on the standard basis, and is not a benchmark for interim payments on account.
22. Further, the Defendant submits that the Claimant’s own authorities (Barclays Bank v Shetty [2020] DIFC CFI 061 and Vegie Bar) demonstrate that interim payments materially below 85% are ordered even where the indemnity basis applies. The Defendant also relies upon Kirtanlal International DMCC v State Bank of India (DIFC Branch) & others CFI 041/2022 where an award of 60% was made by way of payment on account even though the order for costs in principle was on an indemnity basis.
23. The Defendant contends that “significant elements of the Claimant's claimed costs fall to be substantially reduced” upon detailed assessment, including the costs of Trial bundle preparation by the Claimant which the Defendant submits was inefficient, and necessitated the reconstruction and reprinting of the hearing bundles on the eve of Trial. The Defendant submits that any interim payment must remain at a conservative level pending detailed assessment.
24. Taking the parties’ submissions and all the circumstances into account, the Court considers that a payment on account of 65% of the Claimant’s claimed costs of AED 6,680,594.75 is appropriate, and is set at a realistic amount to ensure that the amount of the payment is unlikely to exceed what is likely to be recovered on detailed assessment on the standard basis. The payment on account will therefore be set at the amount of AED 4,342,386.59.
25. In relation to the Claimant’s request for immediate assessment of the costs of AED 185,055.10 left over from the Defendant’s Application, the Claimant requests that these costs should be assessed immediately and payable within 14 days.
26. The Defendant submits that it would be premature for those costs to be assessed now, relying on [152] of the Judgment which held that, should Liberty take the material non-disclosure point in the future, the parties are at liberty to return to Court to seek relief for any consequences. The Defendant submits that the remaining Application costs should be assessed together with the general costs of the proceedings.
27. The Defendant further contends that the application to admit the expert report of Mr Hanna was not dismissed on the merits, but on the basis that the issue to which that evidence was relevant did not arise for determination (as set out at the Judgment at [150] to [153]).
28. The Court’s decision is that, notwithstanding that the parties are at liberty to return to Court should Liberty take the material non-disclosure point in the future, as matters stand the Claimant has been successful in its claim and is awarded the costs of these proceedings on a standard basis in this Order.
29. In the Court’s Order of 19 December 2025, the Court determined that 50% of the Claimant’s costs of the Application should be allocated to Part 1.
30. The Defendant had made submissions on the Claimant’s costs of the Application generally, submitting that the work done on documents was excessive; the Defendant’s team was overly resourced; and it was not necessary for the Claimant to be represented by two Counsel at the PTR. Taking into account the matters referred to at RDC 38.23 and set out in the Order, as well as the Claimant’s submissions in response, the Court immediately assessed the costs of 50% of the Application at AED 123,500 (in comparison to the AED 185,055.10 set out in the Claimant’s costs schedule, as 50% of the Claimant’s claimed costs of the Application).
31. The Court considers that the Claimant is immediately entitled to 50% of its remaining costs of the Application (for Part 2 of the Application), on the basis that the Court has already considered the assessment of those costs and has immediately assessed 50% of the costs of the Application at AED 123,500. Accordingly, the Court holds that the Claimant is entitled to AED 123,500 in respect of its remaining 50% costs of the Application, to be paid within 14 days.
