Claim No: CFI 055/2020

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NS INVESTMENTS LIMITED

Claimant/Respondent

and

AJAY SETHI

Defendant/Applicant

ORDER WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI

UPON the Judgment of H.E. Deputy Chief Justice Ali Al Madhani dated 27 September 2023

AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 7 February 2025 requiring the Claimant to pay USD 445,450.00 by way of interim payment as 50% of the Defendant’s costs on account within 7 days from the date of issue of that Order (the “Costs Order”)

AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 21 January 2026 requiring the Defendant to commence detailed assessment proceedings within 5 working days from the date of issue of that Order (the “Detailed Assessment Order”)

AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 4 March 2026 granting the Defendant an extension of 8 weeks to commence detailed assessment proceedings (the “Extension Order”)

AND UPON the Defendant’s Application No. CFI-055-2020/15 dated 28 April 2026 seeking a waiver or deferral of the Court fee payable to commence detailed assessment proceedings until such time as the Defendant has successfully enforced the Costs Order through the Dubai Courts (the “Defendant’s Application”)

AND UPON the Eighth Witness Statement of Salah Mattoo dated 23 April 2026 filed in support of the Defendant’s Application

AND UPON the Claimant’s Evidence in Answer dated 22 May 2026 opposing the Defendant’s Application

AND UPON the Claimant’s Application No. CFI-055-2020/16 dated 8 June 2026 seeking a retrospective extension of time for the filing of the Claimant’s Evidence in Answer dated 22 May 2026 (the “Extension of Time Application”)

AND UPON the Ninth Witness Statement of Salah Mattoo dated 12 June 2026 filed as the Defendant’s Evidence in Reply

AND UPON reviewing the relevant material on the Court file

AND PURSUANT TO the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The Extension of TimeApplication is granted.

2. The Claimant’s Evidence in Answer dated 22 May 2026 is treated as properly filed and admitted to the Court record.

3. The Defendant’s Application is dismissed insofar as it seeks a waiver, suspension, deferral or reduction of the Court fee payable upon commencement of detailed assessment proceedings.

4. The Defendant’s obligation to commence detailed assessment proceedings is stayed while the Claimant remains in default of the Costs Order, or until further order of the Court.

5. Nothing in this Order permits detailed assessment proceedings to be commenced or progressed without payment of the applicable Court fee unless the Court or the Registrar gives further directions.

6. There shall be no order as to costs in respect of either Application.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 6 July 2026
At: 3pm

Introduction

1. These proceedings are now concerned with costs, and in particular with the proper sequencing of the detailed assessment process in circumstances where the Claimant has not complied with an existing order for payment of costs on account.

2. There are two applications before me for determination on the papers. The first is the Defendant’s Application No. CFI-055-2020/15 dated 28 April 2026, by which the Defendant seeks a waiver or deferral of the Court fee required to commence detailed assessment proceedings until such time as he has successfully enforced the Order with Reasons dated 7 February 2025 through the Dubai Courts (the “Defendant’s Application”).

3. The second is the Claimant’s Application No. CFI-055-2020/16 dated 8 June 2026, by which the Claimant seeks a retrospective extension of time for the filing of its Evidence in Answer dated 22 May 2026, and an order that such evidence be treated as properly filed and admitted to the Court record (the “Extension of Time Application”).

4. The issue before me is narrow. I am not determining the final quantum of costs. I am not revisiting the Order with Reasons dated 7 February 2025. Nor am I determining the merits or likely outcome of any enforcement proceedings before the Dubai Courts. I am concerned only with: (i) whether the Claimant’s Evidence in Answer should be admitted notwithstanding its late filing; and (ii) whether the Defendant should now be required to incur the Court fee payable to commence detailed assessment proceedings before he has obtained the benefit of the order for payment of costs on account already made in his favour.

Procedural Background

5. By the Order with Reasons dated 7 February 2025, the Court ordered the Claimant to pay USD 445,450.00 to the Defendant by way of interim payment, being 50% of the Defendant’s costs on account, within 7 days of the issue of that Order (the “Costs Order”).

6. The Claimant has not paid the sum ordered under the Costs Order.

7. On 21 January 2026, the Court ordered the Defendant to commence detailed assessment proceedings within 5 working days of the issue of that Order. The Court also dismissed the Claimant’s application to stay the Costs Order.

8. On 4 March 2026, the Court granted the Defendant an extension of 8 weeks to commence detailed assessment proceedings. That extension was granted in circumstances where the Defendant wished to take steps to enforce the unpaid Costs Order before incurring further costs in the detailed assessment process.

9. The Defendant’s evidence is that the Part 45 enforcement order confirming that the Costs Order was final and executory was issued on 31 March 2026, and that the judicial deputation letter addressed to the Dubai Courts was issued on 2 April 2026. The Defendant says those steps were necessary before the Costs Order could practically be enforced through the Dubai Courts.

10. Following receipt of those documents, the Defendant commenced enforcement proceedings before the Dubai Courts under Execution Case No. 89/2026 in respect of the sum of USD 445,450.00 awarded under the Costs Order.

11. On 28 April 2026, the Defendant filed the present Application seeking relief from the requirement to pay the Court fee for commencing detailed assessment proceedings until such time as the Costs Order has been successfully enforced through the Dubai Courts.

12. The Claimant filed its Evidence in Answer on 22 May 2026. The Defendant’s evidence is that the Defendant’s Application was served on 30 April 2026 and that, pursuant to Rule 23.41 of the Rules of the DIFC Courts (“RDC”), the Claimant’s Evidence in Answer was due by 14 May 2026. It was therefore filed 8 days out of time.

13. On 8 June 2026, the Claimant filed the Extension of Time Application seeking to regularise the late filing of its Evidence in Answer.

14. On 12 June 2026, the Defendant filed the Ninth Witness Statement of Salah Mattoo in reply.

Applicable Rules

15. The Applications before me engage the Court’s powers under RDC 1.6, 1.7 and 4.2. The Court must deal with cases justly, including by ensuring fairness, proportionality and efficiency, and must give effect to that objective when exercising its powers.

16. RDC 4.2 confers broad case management powers on the Court. Those powers include, in particular, the power to extend or shorten time for compliance with a Court order, to stay the whole or part of any proceedings or judgment until a specified date or event, and to make such other order as is necessary for the purpose of managing the case and furthering the overriding objective.

17. RDC 4.51 provides that where there has been an error of procedure, such as a failure to comply with a Rule or Practice Direction, the error does not invalidate any step taken in the proceedings unless the Court so orders. The Court may make an order remedying the error.

18. RDC 23.41 governs evidence on ordinary applications and provides the timetable for evidence in answer and evidence in reply.

19. RDC Part 40 governs detailed assessment proceedings. Practice Direction No. 2 of 2019 identifies the fee payable upon commencement of detailed assessment proceedings under RDC 40.5. The Court’s case management powers under RDC 4.2 may be used to regulate the timing of procedural steps in the proceedings, including the timing of detailed assessment. They are not being used in this Order to waive, suspend, defer or reduce the applicable Court fee. Nothing in this Order removes the requirement for detailed assessment, waives any Court fee, or permits detailed assessment proceedings to be commenced without payment of the applicable fee unless the Court or the Registrar gives further directions.

The Applications

20. The Defendant’s Application is the main Application before me. The Defendant seeks a waiver or deferral of the Court fee payable to commence detailed assessment proceedings until such time as the Costs Order has been successfully enforced through the Dubai Courts.

21. The Defendant’s position is that the Claimant has failed to comply with the Costs Order, and that the Defendant is therefore the party presently out of pocket. The Defendant says that the Costs Order was intended to provide immediate partial recovery pending detailed assessment, but that benefit has not been received because the Claimant has not paid the ordered sum.

22. The Defendant relies in particular on the Eighth Witness Statement of Salah Mattoo and the Ninth Witness Statement of Salah Mattoo dated 12 June 2026. The Defendant says that requiring him to incur further substantial Court fees before recovering the interim costs already ordered in his favour would undermine the practical utility of the Costs Order. The Defendant also says that the relief sought is within the Court’s case management powers and causes no material prejudice to the Claimant.

23. The Claimant opposes the Defendant’s Application. The Claimant says that the Defendant has already been granted an 8-week extension, that the Defendant is already pursuing enforcement before the Dubai Courts, and that the present Application is, in substance, a further indefinite extension disguised as a fee waiver.

24. The Claimant also says that the Defendant has not established a proper evidential or legal basis for the relief sought. It relies on alleged procedural unfairness and equality of arms, including the fact that the Claimant says it has paid Court fees in connection with the assessment process.

25. Separately, the Claimant brings the Extension of Time Application. The Claimant accepts that its Evidence in Answer was filed late but says the delay was short, that the Defendant had the evidence and replied to it, and that no prejudice is caused by admitting the evidence onto the Court record.

Discussion

The Extension of Time Application

26. I deal first with the Extension of Time Application because it determines the evidential record on which the Defendant’s Application is to be considered.

27. I accept that the Claimant’s Evidence in Answer was filed late. On the Defendant’s analysis, which I accept, the Evidence in Answer was due by 14 May 2026 and was filed on 22 May 2026. It was therefore 8 days late.

28. However, the late filing does not require the Court to exclude the evidence. The delay was limited. The Claimant has applied retrospectively to regularise the position. The Defendant has had the Evidence in Answer and has filed evidence in reply addressing it.

29. I am satisfied that admitting the Evidence in Answer causes no procedural unfairness to the Defendant. The Defendant was not deprived of an opportunity to respond. To the contrary, the Defendant responded through Mr Mattoo’s Ninth Witness Statement.

30. It is also consistent with the overriding objective that the Defendant’s Application be determined on the basis of the full material filed by both parties. The Court is not assisted by excluding evidence where the delay has been short, the opposing party has responded, and no practical unfairness is caused by admitting it.

31. I therefore grant the Extension of Time Application. The Claimant’s Evidence in Answer dated 22 May 2026 is treated as properly filed and admitted to the Court record.

The Defendant’s Application

32. I turn to the Defendant’s Application.

33. The Defendant has the benefit of a subsisting Costs Order requiring the Claimant to pay USD 445,450.00 by way of interim payment on account of costs. The Claimant has not complied with that Order. The Defendant has therefore not received the benefit which the Court intended him to receive pending detailed assessment.

34. The Court ordered payment on account because the Defendant was entitled to immediate partial recovery pending final assessment. If the Defendant is now required to incur further Court fees and costs in order to commence detailed assessment before receiving any meaningful recovery under the Costs Order, the practical benefit of the Costs Order is substantially weakened.

35. I have had particular regard to Mr Mattoo’s Ninth Witness Statement dated 12 June 2026, including paragraphs 19, 22, 27, 28, 42 and 52. Those paragraphs explain the Defendant’s position that immediate commencement of detailed assessment would undermine the practical utility of the Costs Order, that the Defendant does not seek to avoid detailed assessment altogether, that enforcement through the Dubai Courts is not inconsistent with seeking case management relief from this Court, and that the Claimant’s alleged equality of arms objection does not establish any real prejudice.

36. I accept those points to the extent that they support the need for a case management order regulating the timing of detailed assessment. They do not, however, establish that the Court should waive, suspend, defer or reduce the applicable Court fee. The distinction is important. The fee payable upon commencement of detailed assessment is regulated by the applicable fees regime, including Practice Direction No. 2 of 2019. The Court’s case management powers under RDC 4.2 are not being exercised in this Order to alter that fee. Rather, they are being exercised to determine whether the Defendant should be required to take the procedural step of commencing detailed assessment now, while the Claimant remains in default of the Costs Order.

37. The Claimant’s objection proceeds on the basis that the Defendant seeks to avoid procedural obligations altogether. I do not accept that the matter should be analysed in that way. The Court is not permitting detailed assessment proceedings to be commenced or progressed without payment of the applicable fee. The real question is whether, in the particular circumstances of this case, it is just and proportionate to require the Defendant to commence detailed assessment proceedings, and thereby trigger the applicable commencement fee, before the Claimant has complied with the Costs Order.

38. In my judgment, the answer to that question is no.

39. The Claimant has not paid the sum ordered by the Court. The Defendant has therefore not received the benefit of the payment on account which the Court ordered in his favour. The Defendant has also taken enforcement steps through the Dubai Courts to obtain the benefit of the Costs Order. Those enforcement steps are not inconsistent with the present Application. They arise because the Claimant has not paid.

40. I do not accept the Claimant’s submission that the Defendant’s commencement of Dubai Courts enforcement proceedings is a reason to refuse relief. The Defendant is not seeking to subordinate this Court’s procedure to another court. He is seeking to enforce this Court’s own Costs Order through the mechanism available for enforcement outside the DIFC. That is not opportunistic. It is a practical consequence of the Claimant’s non- compliance.

41. Nor do I accept that the prior 8-week extension is a complete answer to the Defendant’s Application. The evidence shows that the enforcement order confirming the Costs Order as final and executory was issued on 31 March 2026, and the judicial deputation letter was issued on 2 April 2026. On the material before me, those steps were necessary before enforcement through the Dubai Courts could properly be pursued. The effective enforcement window was therefore materially affected by the timing of those procedural steps.

42. The Claimant says that the Defendant has not produced sufficient evidence of the Dubai Courts technical issues. Even if one approaches that aspect of the evidence with caution, it does not displace the core point. The Costs Order remains unpaid. The Defendant has commenced enforcement. The Defendant would be required to incur further court fees before receiving the interim costs payment already ordered in his favour. That is the material prejudice.

43. I also reject the Claimant’s submission that a case management order regulating the timing of detailed assessment causes real prejudice to the Claimant. The order made does not finally determine the costs payable. It does not prevent the Claimant from challenging the Defendant’s bill of costs in detailed assessment. It does not deprive the Claimant of any substantive objection to the amount claimed. It merely regulates the timing of the Defendant’s obligation to commence detailed assessment proceedings.

44. The Claimant’s reliance on equality of arms is also misplaced. The relevant comparison is not simply whether both parties have paid some court fees. The relevant question is whether the Defendant should be required to incur further procedural expenditure while the Claimant remains in breach of a Costs Order requiring it to make an interim payment to the Defendant. In those circumstances, there is no unfairness to the Claimant in making a case management order regulating the timing of detailed assessment.

45. The prejudice to the Defendant if he is required to commence detailed assessment now is practical and immediate. He would be required to incur further expenditure in detailed assessment proceedings while the Claimant remains in non-compliance with a subsisting Costs Order and while enforcement is ongoing. That outcome would be inconsistent with fairness, proportionality and the practical purpose of the Costs Order.

46. By contrast, the prejudice alleged by the Claimant is not made out. The Claimant remains able to contest the final quantum of costs in due course. The detailed assessment process is not abolished. The final amount of costs recoverable by the Defendant is not determined. The question is whether, in the present circumstances, the Defendant should be required to commence detailed assessment now while the Claimant remains in default of the Costs Order.

47. I have considered the proper characterisation of the relief sought by the Defendant. A request for the waiver, suspension, deferral or reduction of Court fees is not simply an ordinary extension of time application. It may require consideration of matters including the purpose for which the fee relief is sought, whether the party is genuinely unable to bear the fee, and the financial capacity of the party seeking fee relief. The fact that a party has not received payment under a costs order made in his favour is relevant, but it is not necessarily the same as establishing financial incapacity for the purpose of obtaining Court fee relief.

48. On the material before me, I do not consider it appropriate to grant a waiver, suspension, deferral or reduction of the court fee payable upon commencement of detailed assessment proceedings. The Defendant has not placed before the Court a sufficient evidential basis to justify such fee relief by reference to financial capacity. The Defendant’s Application is therefore not granted in the terms sought.

49. That, however, is not the end of the matter. The Court retains its case management powers under RDC 4.2. In exercising those powers, the Court must consider the circumstances as a whole, including the Claimant’s continuing default under the Costs Order, the fact that the Defendant has not received the interim payment ordered in his favour, the purpose of the earlier order for payment of costs on account, and the proportionality of requiring the Defendant to incur further procedural costs at this stage.

50. In my judgment, it would not be just or proportionate to require the Defendant to commence detailed assessment proceedings now while the Claimant remains in default of the Costs Order. The Claimant should not, while remaining in default, be permitted to place pressure on the Defendant to incur further costs in detailed assessment proceedings before the Defendant has received the interim payment already ordered in his favour.

51. The appropriate order is therefore not to waive, suspend, defer or reduce the applicable Court fee. It is to stay the requirement for the Defendant to commence detailed assessment proceedings while the Claimant remains in default of the Costs Order, or until further order of the Court. This preserves the Court’s control over the detailed assessment process and avoids any risk that detailed assessment might proceed without the applicable Court fee being paid.

52. For the avoidance of doubt, if detailed assessment proceedings are commenced, the applicable Court fee remains payable unless the Court or the Registrar gives further directions. The present Order regulates only the timing of the Defendant’s obligation to commence detailed assessment. It does not determine the final amount of costs recoverable by the Defendant and does not remove the requirement for detailed assessment.

Costs

53. The Defendant’s Application has been dismissed insofar as it seeks a waiver, suspension, deferral or reduction of the Court fee payable upon the commencement of detailed assessment proceedings. The Court has not waived, suspended, deferred or reduced that fee. Rather, the Court has exercised its case management powers under RDC 4.2 to regulate the timing of the detailed assessment process while the Claimant remains in default of the Costs Order.

54. In those circumstances, I do not consider it appropriate to order the Claimant to pay the Defendant’s costs of the Defendant’s Application. The appropriate order is that there shall be no order as to costs in respect of the Defendant’s Application.

55. As to the Extension of Time Application, the Claimant required the Court’s permission because its Evidence in Answer was late. However, the delay was short, the evidence has been admitted, and the Defendant has suffered no procedural unfairness as a result. I also make no order as to costs in respect of that Application.

Conclusion

56. The Extension of Time Application is granted.

57. The Claimant’s Evidence in Answer dated 22 May 2026 is admitted.

58. The Defendant’s Application is dismissed insofar as it seeks a waiver, suspension, deferral or reduction of the court fee payable upon commencement of detailed assessment proceedings.

59. The Defendant’s obligation to commence detailed assessment proceedings is stayed while the Claimant remains in default of the Costs Order, or until further order of the Court.

60. Nothing in this Order permits detailed assessment proceedings to be commenced or progressed without payment of the applicable Court fee unless the Court or the Registrar gives further directions.

61. There shall be no order as to costs in respect of either Application.